Jafari and Secretary, Department of Social Services (Social services second review) [2020] AATA 5942 (11 December 2020)

Last Updated: 26 February 2021

Jafari and Secretary, Department of Social Services (Social services second review) [2020] AATA 5942 (11 December 2020)

Division: GENERAL DIVISION

File Number(s): 2020/0894

Re: JAFARI, Shukria

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member Durkin

Date: 11 December 2020

Place: Adelaide

The Tribunal affirms the decision under review.

...................[sgnd].....................................................

Member A Durkin

Catchwords

Claim for Special Benefit – Eligible visa holder – waiting period – substantial change in circumstances beyond the person’s control – decision under review is affirmed.

Legislation

Social Security Act 1991

REASONS FOR DECISION

Member Durkin


11 December 2020

1. The hearing of the applicant’s Application for Review was conducted on 6 November 2020. The Tribunal was assisted by an interpreter in the Hazaragi language. The respondent’s representative attended in person and Ms Jafari attended remotely.
2. The Application for Review concerns a claim for Special Benefit made on 30 August 2019. The applicant sought review of a decision by an Authorised Review Officer to reject the claim for Special Benefit. That review was heard and determined by Member Forgan on 29 January 2020. The issues before the Tribunal on this Application for Review are:
   • Has Ms Jafari served the relevant waiting period?
   • If not, has there been a substantial change in her circumstances which would allow for an abridgement of the relevant waiting period?
3. The respondent’s original determination to reject the Application, as confirmed on review, was because the applicant had not lived in Australia for the requisite waiting period (having arrived on 17 October 2018) or been present as a Special Benefit Eligible Visa Holder.
4. Neither the Authorised Review Officer nor the Tribunal found that there had been a substantial change of circumstances which would warrant abridgment of the waiting period. The Authorised Review Officer found that the applicant applied for the relevant visa (Sub Class 820) on 20 January 2019 and that the waiting period commenced from this date. It is noted that the applicant had travelled outside of Australia between 14 July 2019 and 28 August 2019 and accordingly had spent 23 weeks and 1 day in Australia when the claim was lodged.
5. Subsection 739A(5) of the Social Security Act 1991 (the Act) provides that a waiting period of 208 weeks must be served by all newly arrived residents.
6. Subsection 739A(7), however, provides that the relevant waiting period can be abridged if the applicant has had a “substantial change in circumstances beyond the person’s control” in the relevant period.
7. It is not in dispute that the applicant is subject to the relevant waiting period which had not been served prior to the applicant applying for a Special Benefit. On the Tribunal’s calculation (excluding the period when the applicant was overseas from 14 July to 27 August 2019), she served approximately 9 months of the four year waiting period when she lodged the Special Benefit application.
8. Paragraphs 14 to 16 of Member Forgan’s Decision of 29 January 2020 provide a convenient description of the applicant’s circumstances. In the hearing on 6 November 2020 the applicant was invited to provide further evidence and make further submissions in respect of her circumstances.

COURSE OF HEARING:

9. The applicant’s submission to the Tribunal was that she is in dire financial straits. She is living with her husband but, on account of her fear of being alone at night, her husband (who works as an Uber driver) had changed from the night shift to the less-well paid day shift, which did not provide sufficient monies for their support. The Tribunal was also told that the car he had used for Uber driving had been sold and that the replacement vehicle was unsuitable for Uber driving.
10. The applicant reported that she had medical difficulties which she said amounted to a relevant change in her circumstances, but was unable to supply further medical information, as she had no funds to access medical services. She also informed the Tribunal that she is now pregnant.
11. The applicant told the Tribunal that her lack of English skills prevents her working. She had enrolled at TAFE to improve her English skills, however her shortage of funds prevented her even paying for transport to that course. She told the Tribunal that she had told the Department that if she was to improve her English, she would be able to obtain work.
12. The applicant told the Tribunal that her husband has been diagnosed with a plantar fasciitis. He had this condition when she arrived in Australia in October 2018. There is no evidence that it was this condition that prevented his continuing to work as an Uber driver.
13. The Tribunal asked the applicant as to what, since her arrival in Australia, had changed in her circumstances in a way which was beyond her control.
14. The applicant told the Tribunal that her physical and mental health had changed. She also told the Tribunal that her home had little furniture and that she has few clothes and she had been required therefore to wear the same clothes each day when attending TAFE.
15. T12 is a letter from a Dr Nargis addressed “To Whom it May Concern” of 20 January 2020. The doctor deposes that the applicant had been suffering “from mental and physical illness”. He or she also makes mention of depression and abdominal pain which had not been treated on account of a lack of resources held by the applicant. No timeframe for the onset or diagnosis of these conditions was provided.
16. The respondent’s representative was invited to ask the applicant questions. The applicant conceded that in March 2020 she had made another application for Special Benefit which, due to special COVID-19 response regulations, was abridged. This means that she is in receipt of a COVID supplement and has been receiving $750.00 a fortnight. Additionally, her husband is receiving JobSeeker payment.
17. Mr Cummings submitted to the Tribunal that the COVID-19 virus response regulations meant that all waiting periods had been waived and that, therefore, the applicant, at the hearing on 6 November, was applying for a benefit which she is currently receiving. On present arrangements, the waiver will end on 1 January 2021.
18. Mr Cummings noted that the relevant period, in which to analyse whether there had been a substantial change in the applicant’s circumstances beyond the applicant’s control, began on 30 January 2019 (when the applicant applied for the sub-class 820 visa) and ended on 30 August 2019 (when the applicant applied for Special Benefit).
19. Mr Cummings submitted that any change in circumstances had to have occurred within that intervening period and, further, has to apply as at the date of the subject hearing.
20. The subject claim for Special Benefit as exhibited at T5 states in para. 2 that the applicant and her husband are in severe financial hardship “... as he also lost his job months ago”. Before the Tribunal, however, the applicant instead advised that her husband had ceased driving Uber to take care of her in the evenings. The Tribunal has noted the submissions on the question of a “substantial change in the applicant’s circumstances beyond her control” as set forth in para 5.2 of the Secretary’s Statement of Issues, Facts and Contentions.
21. The applicant at hearing explained the difficulties she had in obtaining evidence of her health problems (lack of Medicare card etc.). The Tribunal had before it a Centrelink Medical Certificate in respect of the applicant’s husband diagnosing a left plantar fasciitis. The date of onset of that condition is recorded as being 20 January 2020 and the Tribunal notes that even if this were to be considered a substantial change of circumstances which would abridge the relevant waiting period, it is not a change of circumstances which occurred within the period under consideration. The Tribunal struggled to find any evidence that the applicant was unable to work on account of a medical condition or any other condition in respect of the relevant period.
22. The Tribunal is satisfied that the applicant has not served the relevant waiting period in respect of a payment of a Special Benefit. The Tribunal was not satisfied that there was any evidence of a substantial change in circumstances in the period 30 January 2019 to 30 August 2019. Accordingly, the decision under review is affirmed.

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member A Durkin.

..............[sgnd]................................................
Administrative Assistant Legal

Dated: 11 December 2020

Date of hearing:	6 November 2020
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr S Cummings