Editors --- "Parenting payment: residency requirements: protected special category visa: whether discretion exists if application for determination made outside of time" [2007] SocSecRpr 36; (2007) 9(3) Social Security Reporter, Article 10

• SECRETARY TO THE DEWR and BLAKELY
• Background
• The issue
• Discussion
• Formal decision
• Contributor’s note

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Parenting payment: residency requirements: protected special category visa: whether discretion exists if application for determination made outside of time

SECRETARY TO THE DEWR and BLAKELY

(2007/1450)

Decided: 29th May 2007 by J. Kelly

Background

Blakely was a New Zealand citizen who arrived in Australia on 2 March 2001. On 5 June 2006, she contacted Centrelink about making a claim for family assistance support payments. On 19 June 2006, she completed a customer declaration form for parenting payment.

Blakely was not an Australian citizen and did not have permanent residency, however she was a special category visa holder. Centrelink determined that she was not a ‘protected special category visa holder’ and therefore did not meet the qualification requirements for parenting payment.

Blakely sought review of this decision and was successful before the SSAT. The Secretary sought a review of the SSAT’s decision by the AAT.

The issue

The issue for determination by that was whether the respondent was a ‘protected special category visa holder ‘for the purposes of the Social Security Act 1991 (‘the Act’).

Discussion

The AAT considered the relevant residency provisions in the Act and concluded that the respondent could only qualify for parenting payment if she met the requirements of ss.7(2C)(b)(i) of the Act. That is, as she was a New Zealand citizen who commenced residing in Australia within three months of26 February 2001, she would be a ‘protected special category visa holder ‘only if there was a determination under ss. 7(2E)(b) made in respect of her.

The AAT then considered whether a determination under ss.7(2E)(b) was in force in relation to Blakely. The Tribunal found that the first ‘application’ for a determination under ss.7(2E)(b) made by Blakely was the claim for parenting payment which was lodged 19 June 2006.

The AAT found that this ‘application’ was made outside the relevant timeframe specified in ss. 7(2F)(b)(ii) of the Act.

The AAT was asked to consider whether there was a discretion conferred on the Secretary to make the determination under ss.7(2E) in circumstances where the time limits specified in ss.7(2F)(b)(ii) had elapsed. It was submitted for Blakely thatss.7(2F) has the effect that if one of the specified temporal criterion is satisfied, the Secretary must make the determination, but if it is not, the Secretary has a discretion to make or not make a determination under ss.7(2E). The Department argued that an applicant for a determination must satisfy the factual and temporal criteria in ss.7(2E) and 7(2F) in order for a determination to be made. It was contended that the Secretary has no discretion to exercise if the relevant time limit in ss.7(2F) is not met.

The AAT noted the earlier Tribunal decisions in QX05/5 and Secretary, Department of Family and Community Services [2005] AATA 646; (2005) 87 ALD 730 (that ss.7(2F) prescribes timeframes that have to be met) and Anab Jama and Secretary, Department of Employment and Workplace Relations [2005] AATA 1188 (that ss.7(2F) did not allow a discretion).

In reaching its decision in this matter, the AAT reviewed s.7 in its entirety. The AAT found that the purpose of s.7 was to define the term ‘Australian resident’.

The AAT also found that s.7 was amended in 2001 to limit New Zealanders’ access to social security payments whilst protecting the status of those New Zealanders who qualified to be Australian residents as of 26 February 2001, by virtue of the amendments to the Act.

The AAT found that ss.7(2F) of the Act required the following:

• an application to be made;

• the Secretary to be satisfied that paragraph (2E) applies; and

• that the application was made within the applicable period.

The AAT preferred a statutory construction that ss.7(2E) and 7(2F) operate together and that there are time limits on applications made for determinations under ss.7(2E). The AAT considered that such a construction was neither ‘strained’ nor ‘unreasonable or unnatural’ in the context of the legislation.

As Blakely had not applied fora determination under ss.7(2E) within the prescribed timeframe in ss.7(2F), the AAT found that she was not an ‘Australian resident’ and did not qualify for parenting payment.

Formal decision

The AAT set aside the decision under review and substituted a decision that Blakely was not an ‘Australian resident’ within the meaning of s.7 of the Act.

[S.O.]

Contributor’s note

The AAT’s reasoning in this matter has recently been considered in Secretary, Department of Employment and Workplace Relations and Rhodes (2007) AATA1664 (Dr Gordon Hughes, Member). In that case, the AAT agreed with the findings in Blakely that ss.7(2E) and 7(2F) operate together and that there is no discretion to make determinations where the timeframes in section 7(2F) have elapsed. The AAT said (at paragraph 21):

The purpose of the scheme created by sections 7(2A) to(2G)...was to place New Zealand citizens on the same basis as other migrants in relation to their entitlement to access social security payments. New Zealand citizens who, like the Respondent, took up residence in Australian within a period of three months from 26 February 2001 were exempted from the effect of the change for a three year period so as to minimise any adverse and capricious effects of the new rules on persons who were already committed to moving to Australia. Beyond that three year period, however, New Zealand citizens would only retain that protected status if they had taken one of the steps prescribed by section 7(2C) - either by applying for a determination under section 7(2E) or by making a claim for social security payments. In other words, the legislation was structured in a manner which deliberately acknowledged and accommodated the special circumstances of New Zealand citizens who were committed to becoming Australian residents at the commencement of the scheme. It seems improbable that the legislature would have intended that this precisely defined leeway could be further extended at the discretion of the Secretary.

It was further noted that this construction was consistent with paragraph 3.1.1.10 of the Guide to Social Security Law.