Editors --- "Special bene?t: exemption from newly arrived resident's waiting period" [2011] SocSecRpr 15; (2011) 13(2) Social Security Reporter, Article 4

• HUSSAINI and SECRETARY TO THE DFHCSIA
• Background
• The law
• Issues
• Consideration
• Determination

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Special benefit: exemption from newly arrived resident’s waiting period

HUSSAINI and SECRETARY TO THE DFHCSIA

(2011/94)

Decided: 14th February 2011 by N. Isenberg

Background

Mr Ebrar Hussaini left Afghanistan and arrived in Australia via Pakistan in 2001. In May 2006, he was granted permanent residency in Australia. He returned to Pakistan and married his wife who joined his mother’s household. In January 2008, he initiated the visa application process for his wife, mother, two sisters and brother to join him in Australia.

Ebrar’s mother and two sisters were the applicants in these proceedings. Mrs Dornisa Hussaini and her two daughters Rokhsana and Shahnaz arrived in Australia on 22 May 2010 on sub-class 309 visas as sponsored family members (combined visa application). They claimed special benefit on 24 May 2010.

The law

Sections 739A to 739C of the Social Security Act 1991 (the Act) deal with qualifications for and disqualifications from special benefit. Section 739A provides that special benefit may not be payable if a person is subject to a newly arrived resident’s waiting period (NARWP). Section 739(A) (7) provides that a NARWP does not apply if, in the Secretary’s opinion, the person has suffered a substantial change in circumstances beyond the person’s control.

Issues

In Secretary, Department of Social Security v Secara and Others (1998) 51 ALD 481 (Secara), a unanimous decision of the Full Federal Court, Mansfield J at [493] stated:

The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be ‘substantial’, that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person’s control.

The Hussainis led evidence about the circumstances surrounding their fleeing from Afghanistan due to persecution and living in Pakistan illegally from 2001 until their visas were granted in April 2010. It was also submitted that Ebrar was their sole means of financial support, where since 2002 he had been sending his family approximately $10,000 per annum to support them by working long hours and living frugally. Ebrar also managed to save $30,000 and in November 2009 he decided to invest in a wholesale fruit and vegetable business in Perth with a friend who led him to believe the business was going well. Ebrar gave evidence that it was his intention to invest the money, ensure he had a permanent job for himself and to have a business in which he could employ his family members. However, the business was not a success and his investment was lost in March 2010.

The Hussainis contended that there was a substantial change of circumstances on three bases: the loss of Ebrar’s savings; Ebrar’s loss of employment; and their loss of work opportunity in Ebrar’s business. Further, it was submitted that they were not aware that Ebrar had become unemployed and had no savings. Ebrar’s evidence was that he had not told his family of his loss because he did not want to worry them. He considered they had no option but to come because they would be killed if they remained in Pakistan.

The Secretary argued that the Hussainis impoverished circumstances were not beyond their control and that the loss of funds which would have supported them was not directly responsible for their poverty in Australia. Rather it was a result of their decision to continue with their plans to migrate to Australia.

The Secretary referred to the matter of Jaydev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 332 where SM Bell at [26] - [27] referred to the case of Fomin (unreported, AAT, President Matthews, No S97/422, 12 March 1998) in which her Honour stated that in situations where

... the immediate cause of the depletion of the [migrants’] funds was the fact that they were inadequate in the first place ... [o]ne must then go back to ask whether the inadequacy of the funds was itself beyond their control.

Consideration

The Tribunal accepted that there was a substantial change in circumstances, where the support provided by Ebrar for the past decade had become unavailable and the family members did not become aware of it until their arrival in Australia.

The Tribunal next looked at whether the change was beyond their control. The Tribunal accepted that the Hussainis had a reasonable expectation that Ebrar would continue to support them as he had done for many years. The Hussainis referred to the case of Chelechkov and Department of Social Security [1998] AATA 94 (18 February 1998) where the Tribunal considered at [28] that it was inappropriate to limit the operation of s.739 (A) (7) of the Act to changes which occur after a migrant arrives in Australia:

Each case needs to be determined according to its own facts. It will no doubt be unusual for a change in circumstances which occurs before a migrant leaves his or her country of origin to fall within subsection

(7). This is because subsection (7) will only apply to changes which are directly responsible for the migrant’s state of poverty in Australia ...

The Tribunal accepted that the Hussainis had left their country of origin more than 10 years ago and lived illegally in Pakistan. It was their long-term plan to join Ebrar in Australia as soon as visas could be arranged. They were irretrievably committed to following Ebrar to Australia and he was their only means of support. The Tribunal did not accept that the Hussainis decided to migrate notwithstanding the change in circumstances, because at the time of travel, on the evidence, they were unaware of it.

The Tribunal considered Secara where the Full Federal Court said:

I do not see any reason in logic or in fairness why a temporal limitation by reference to the person’s arrival in Australia should be specified... In my judgment, the point at which in a sensible and realistic way it can be said that the person irrevocably committed to migrating to Australia marks one point in time from which s.739A (7) may operate.

The Tribunal further observed that the s 3.7.2.20 of the Guide that requires newly arrived residents to have attempted to obtain support from all possible alternative sources before being granted special benefit lacked a legislative basis and seemed unreasonable.

Determination

The decision under review was set aside and in substitution thereof the Tribunal found that the Hussainis experienced a substantial change in circumstances such that the special benefit newly arrived resident’s waiting period did not apply.

[C.W.]