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Social Security Reporter |
Parenting payment, family tax benefit and child care benefit: requirement to be an Australian resident and Child Care Benefit (Australian Resident) Guidelines 2000
(2013/286)
Decided: 22nd November 2013 by K. Bean
Fernando arrived in Australia from Sri Lanka on a three year temporary visa on 14 December 2008 with her partner and daughter, who was one. She separated from her partner in early 2009. She stayed in Australia and applied for a permanent visa in June 2011. She was on a bridging visa from 12 July 2011 and was granted a permanent visa (along with her daughter) on 8 August 2011.
Before being granted a permanent visa, she applied for child care benefit (CCB) in March 2011. She was, however, advised that she did not meet the residency requirements. In September 2011, after becoming a permanent resident, she claimed parenting payment (PP), family tax benefit (FTB) and CCB.
Centrelink granted her CCB from 19 September 2011 and FTB from 8 August 2011. Her claim for PP was refused because she did not meet the residence requirement. She requested review of the PP decision by an authorised review officer who ultimately reviewed and affirmed each of the decisions. The Social Security Appeals Tribunal also affirmed the PP and FTB decisions, but varied the CCB decision so that the start date for that was the same as for FTB, 8 August 2011.
The Administrative Appeals Tribunal (the AAT) reviewed all three decisions.
The issues were:
(a) whether Fernando was qualified for PP at the date of her claim, or within 13
weeks;
(b) whether she qualified for FTB from 8 August 2011 or some earlier date; and
(c) whether she qualified for CCB from 8 August 2011 or some earlier date.
Relevantly, under s.500 of the Social Security Act 1991 (Cth) (the Act), a person must have been in Australia for 104 weeks in total during a period of continuous Australian residence, exempt from this qualifying residence period or have become a ‘lone’ or single parent since becoming an Australian resident.
The meaning of Australian resident and qualifying residence exemptions are set out in s.7 of the Act. There was no dispute that Fernando did not meet any qualifying residence exemption. To be an Australian resident, a person who did not enter Australia on a New Zealand passport must either be an Australian citizen or permanent resident.
Eligibility for FTB is determined by s.21 of the A New Tax System (Family Assistance) Act 1999 (the FA Act). Relevantly, a person who did not enter Australia on a New Zealand passport, must either be an Australian resident or hold a temporary visa of a class specified by the responsible Minister for this purpose.
Section 42 of the FA Act deals with qualification for CCB. Relevantly, if the person did not enter Australia on a New Zealand passport, the individual (or their partner) must be an Australian resident, undertaking study in Australia and receiving direct Commonwealth financial assistance to do so, or hold a class of temporary visa specified by the responsible Minister.
However, s.8 of the FA Act expands this residence requirement by providing that a person may be treated as an Australian resident in certain circumstances. The Secretary of the responsible Department has a discretion to treat a person as an Australian resident for a period or indefinitely to avoid hardship or because of the special circumstances of the case. The decision must be made in accordance with any guidelines issued by the responsible Minister. This is a decision which has been delegated to authorised review officers, although it appears it was not considered by a decision-maker until the matter reached the Tribunal.
Guidelines were issued in June 2000, the Child Care Benefit (Australian Resident) Guidelines 2000 (the Guidelines). They deal, relevantly, with the circumstance in which a person may be found to be in hardship if not treated as an Australian resident.
The Tribunal affirmed the PP decision, the FTB decision and the CCB decision.
Fernando did not become an Australian resident within the meaning of the Act until she was granted a permanent visa on 8 August 2011, by which time she was already a lone parent. This meant that she had not been an Australian resident for 104 weeks by the time of her PP claim (or within 13 weeks), she did not have an exemption and she had not become a lone parent after gaining Australian residency.
There was no dispute that Fernando did not hold a specified temporary visa and was not an Australian resident until 8 August 2011. The Tribunal therefore
decided that she could not be paid FTB from any earlier date.
The Tribunal found that Fernando could only qualify for CCB from a date earlier than 8 August 2011 if the discretion to treat her as an Australian resident were
exercised.
Fernando gave evidence that she had to work when her partner left her, and needed to put her daughter into child care (apart from a period when a friend looked after her). She said she suffered hardship as a result.
The Tribunal accepted this, but found that she did not satisfy the Guidelines. The Tribunal found that her partner leaving her was ‘reasonably foreseeable’ which, under s.5(1)(a) of the Guidelines counted against an exercise of its discretion in her favour on the ground of hardship. It also found her circumstances were not special. It therefore decided not to exercise the discretion in s.8 of the FA Act to treat Fernando as an Australian resident and affirmed the decision to pay her CCB from 8 August 2011.
The Tribunal affirmed the decision of the SSAT.
[M.B.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2013/26.html