Editors --- "Special bene?t: two year Newly Arrived Resident's Waiting Period; whether substantial change in circumstances beyond the person's control" [2009] SocSecRpr 36; (2009) 11(3) Social Security Reporter, Article 14

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Special benefit: two year Newly Arrived Resident's Waiting Period; whether substantial change in circumstances beyond the person’s control

MANSOUR & GABER and SECRETARY TO THE DFHCSIA

(2009/433)

Decided: 17th June 2009 by T. Schafer

Background

In August 2005, Mansour and Gaber and their three young children arrived in Australia on a Subclass 495 (Skilled Independent Regional (Provisional)) visa. This is a temporary visa for skilled people to work in regional areas or areas of low population growth in Australia and allows the holders of the visa to remain in Australia for a period of three years.

Prior to arrival, Mansour and Gaber received a letter dated 20 July 2005 from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) advising them that their application for subclass 495 visas had been granted. The letter included the following statement about the applicant’s social security rights:

Temporary visa holders in Australia cannot receive most social security income support payments. Special Benefit is the only form of government welfare assistance which may be payable. However, a special benefit payment is only available to new migrants on a very restricted basis – that is, if there has been a substantial change in circumstances beyond the person’s control. Not being able to find employment or running out of money are not sufficient reasons to qualify for special benefit.

Mansour completed the requirements of the temporary visa by living and working in regional areas of Tasmania and Victoria until December 2007, when his last contract position ended. In September 2007, the family applied for a subclass 887 (Skilled Regional (Residence)) visa and was granted permanent residency on 21 May 2008.

On 28 May 2008, Mansour and Gaber lodged claims for special benefit. In June 2008, both Mansour’s and Gaber’s claims for special benefit were rejected on the basis that they had not suffered a substantial change in circumstances beyond their control.

The ARO affirmed the decisions to reject their claims on the same basis and noted that Mansour had lost his job in December 2007, but this was before he and Gaber became Australian residents. The SSAT affirmed the decisions under review, stating that they were both subject to the 2 year NARWP and this waiting period could not be waived because they had not suffered a substantial change in circumstances beyond their control.

The law

Sections 729 to 731 of the Social Security Act 1991 (the Act) deal with the subject of qualification for special be-nefit. Section 729(2) of the Act contains a number of criteria to which the Secretary may have regard, prior to determining whether a ‘special benefit’ ought to be granted under the Act. Importantly, the Secretary has to be sat-isfied that the person is unable to earn a sufficient livelihood and that there is no other social security pension or benefit payable to the person during the period.

Sections 732 to 739C of the Act deal with qualifications for and disqualifications from special benefit. Section 732, so far as is relevant, provides:

(1) Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because:

...

(da) the person is subject to a newly arrived resident’s waiting period and that period has not ended (see section 739A)....

Section 739A relevantly provides as follows:

739A(1) Subject to this section, a person who, on or after the commencement of this subsection:

(a) enters Australia; or

(b) becomes the holder of a permanent visa; or

...

is subject to a newly arrived resident’s waiting period.

739A(5) If:

(a) a person is subject to a newly arrived resident’s waiting period; and

(b) neither subsection (3) nor (4) apply to the person;

the waiting period starts on the day on which the person:

(c) first entered Australia; or

(d) becomes the holder of a permanent visa;

whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

739A(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary’s opinion, has suffered a substantial change in circumstances beyond the person’s control.

Issues

The issues for the Tribunal to decide were whether, as at 28 May 2008, Mansour and Gaber qualified for special benefit and whether there was a substantial change in circumstances beyond their control which would justify waiving the two year newly arrived resident’s waiting period (NARWP).

Consideration

The Tribunal looked at Secretary, Department of Social Security and Tadros (1991) AATA 111 and Zoarderand Department of Social Security (1998) AATA 98. In Tadros, a substantial change in circumstances was found to have occurred because of a failure by the Australian embassy to provide proper advice; the exhaustion of interim assistance from charity and family and concomitant health and family issues. In Zoarder, the AAT held that the applicant’s severe state of anxiety resulted from his family’s financial hardship and inability to obtain employment in Australia amounted to a substantial change of circumstances beyond his control.

The Tribunal was satisfied that Man-sour had made a concerted effort to become employed, including moving within Australia over the three and a half years to try and improve his employment prospects. The Tribunal also noted that Mansour and Gaber had limited financial means and all their alternative sources of funds, including those borrowed from extended family overseas, had been exhausted. The Tribunal found the facts in the current case to be sufficiently analogous to the facts inTadros and Zoarder.

Further, the Tribunal noted that the incorrect advice, provided by DIMIA on two separate occasions, both in the letter dated 20 July 2005 and in a completed visa application form dated 1 November 2004, understandably led to Mansour’s and Gaber’s assumption that they would be eligible for social security payments after two years from the date of their arrival in Australia. The Tribunal found that the subsequent advice given to Mansour and Gaber that they were not entitled to social security payments for two years after their permanent visa was granted to be a substantial change beyond their control.

On the issue of whether Mansour and Gaber qualified for special benefit, the Tribunal was satisfied that both Mansour and Gaber were unable to earn a sufficient livelihood at the time the claim was submitted.

Formal decision

The decisions under review were set aside and in substitution the Tribunal decided that:

(a) The applicants had suffered a substantial change in circumstances beyond their control that waived the application of subsection 739A(1) of the Act; and

(b) The discretion in section 729 to pay special benefit should be exercised in favour of the applicants.

[C.W.]

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