The Applicant, Mr Sam Sarath Dissanayake, is a citizen of New Zealand. He was born in Sri Lanka in 1966 and obtained New Zealand citizenship on 22 November 2010. He presently resides in Western Australia and holds a Special Category Visa (subclass 444) (SCV) granted under s 32 of the Migration Act 1958 (Cth) (Migration Act).
The Applicant made an access request to the National Disability Insurance Agency (NDIA). On 27 June 2025, the CEO of the NDIA decided that the Applicant did not meet the access criteria to become a participant in the National Disability Insurance Scheme (NDIS). The basis for that decision was that the Applicant did not meet the residence requirements under of the (Cth) ().
On 15 August 2025, the Applicant requested an internal review of the access decision. On 24 September 2025, the internal reviewer affirmed the original decision. The internal reviewer found that the Applicant did not meet the residence requirements because he is not an Australian citizen, nor the holder of a permanent visa, nor a protected SCV holder. Having reached that conclusion on the residence requirements, the internal reviewer did not proceed to consider the disability or early intervention requirements under ss 24 and 25 of the NDIS Act.
On 10 October 2025, the Applicant applied to this Tribunal for review of the internal review decision. The Applicant is self-represented, with family assistance in the preparation of his written submissions.
On 21 January 2026, the NDIA filed submissions requesting that the application be dismissed pursuant to s 101(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) on the basis that it has no reasonable prospects of success. The Applicant filed submissions in opposition on 21 January 2026 and supplementary submissions on 27 January 2026.
On 6 March 2026, the parties confirmed that they were agreeable to the dismissal application being considered without a hearing, having regard to the arguments that they had put in writing. In the circumstances, I was satisfied that course was appropriate and that the parties had adequately addressed the various arguments in their materials and that, in all of the circumstances, the question of whether the review application has reasonable prospects of success could be adequately determined without a hearing.
[2]
Section 101(1) of the ART Act provides that the Tribunal may, on the application of a party or on its own initiative, dismiss an application if it is satisfied that the application is, relevantly, one that has no reasonable prospects of success. This power is to be exercised with caution, as it deprives an applicant of a hearing on the merits. However, where the legal position is clear and no amount of additional evidence could alter the outcome, summary dismissal is appropriate and serves the interests of all parties by avoiding unnecessary delay and expense.
It is well established that the power to summarily dismiss an application must be approached with caution and not exercised lightly, and that to determine that an application has no real prospect of success, there must be a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to a hearing in the ordinary way.[1]
The CEO submits that the Applicant cannot satisfy the residence requirements under s 23(1)(b) of the NDIS Act on any available pathway, and that the application should accordingly be dismissed.
The Applicant opposes the dismissal application. His submissions, which I have considered carefully, raise several arguments which I address below.
[3]
Pursuant to s 21(1) of the NDIS Act, a person meets the access criteria if the CEO is satisfied that: (a) the person meets the age requirements in s 22; (b) the person meets the residence requirements in s 23; and (c) the person meets the disability requirements in s 24 or the early intervention requirements in s 25. The requirements are conjunctive and all three requirements must be satisfied. Failure to meet any one of them is fatal to an access request.
The residence requirements are set out in s 23 of the NDIS Act. Section 23(1) provides that a person meets the residence requirements if: (a) the person resides in Australia; and (b) the person is one of the following: (i) an Australian citizen; (ii) the holder of a permanent visa; or (iii) a SCV holder who is a protected SCV holder.
Both limbs of s 23(1) must be satisfied. It is not in dispute that the Applicant resides in Australia for the purposes of s 23(1)(a). The present dispute concerns whether the Applicant falls within any of the three categories in s 23(1)(b).
The term 'protected SCV holder' is defined in s 9 of the NDIS Act. A person is a protected SCV holder if: (a) the person was in Australia on 26 February 2001 and was a SCV holder on that day; or (b) the person had been in Australia for a period of, or for periods totalling, 12 months during the two years immediately before 26 February 2001 and returned to Australia after that day.
[4]
DOES THE APPLICATION HAVE A REASONABLE PROSPECT OF SUCCESS?
[5]
There are three pathways available to a prospective participant to satisfy s 23(1)(b) of the NDIS Act, namely:
[6]
(a) holding Australian citizenship (s 23(1)(b)(i)):
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> (b) holding a permanent visa (s 23(1)(b)(ii)); or
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> (c) being a 'protected SCV holder' (s 23(1)(b)(iii)).
[7]
The Applicant has not claimed to be an Australian citizen. His New Zealand Certificate of Citizenship indicates that he obtained New Zealand citizenship on 22 November 2010. The VEVO Visa Details Check dated 19 September 2025 confirms that he holds a SCV (subclass 444), which is a temporary visa.[2] He is not an Australian citizen. This pathway is not available to the Applicant.
The VEVO check confirms that the Applicant holds a SCV (subclass 444). The SCV (subclass 444) is classified as a temporary visa under the Migration Act. I find that the Applicant does not hold a permanent visa. This pathway is not available to the Applicant.
The Applicant holds a SCV and is therefore a SCV holder. However, to satisfy s 23(1)(b)(iii), he must also be a 'protected SCV holder' as defined in s 9 of the NDIS Act. This requires that either: (a) the person was in Australia on 26 February 2001 and held a special category visa on that day; or (b) the person had been in Australia for a period of, or for periods totalling, 12 months during the two years immediately before 26 February 2001 and returned to Australia after that day.
The evidence is clear that even taking the Applicant's case at its highest, neither criterion is met. First, the applicant does not claim to have resided in Australia at any time at all within the two years immediately prior to 26 February 2001. Second, the Applicant's New Zealand Certificate of Citizenship shows that he obtained New Zealand citizenship on 22 November 2010, nearly a decade after the 26 February 2001 cut-off date. Since the SCV (subclass 444) is available only to New Zealand citizens,[3] the Applicant could not have held such a visa on or before 26 February 2001, as he was not then a New Zealand citizen.
I am satisfied that the Applicant is not a protected SCV holder within the meaning of s 9 of the NDIS Act. Accordingly, this third pathway is not available to the Applicant.
Accordingly, the Applicant does not fall within any of the three categories in s 23(1)(b). He does not meet the residence requirements under s 23 of the NDIS Act. Because the access criteria in s 21 are conjunctive, failure to meet the residence requirements means that the Applicant cannot meet the access criteria regardless of whether he might otherwise satisfy the disability requirements (s 24) or the early intervention requirements (s 25).
[8]
I have carefully considered the Applicant's submissions, which raise arguments that I acknowledge reflect deeply held concerns about his situation. However, for the reasons that follow, none of them is capable of altering the outcome.
The Applicant submits that his eligibility for the Disability Support Pension (DSP) under the Australia-New Zealand Social Security Agreement demonstrates that he should also be eligible for the NDIS.
I note that non-protected SCV holders may indeed be eligible for DSP under the Social Security (International Agreements) Act 1999 (Cth) (Social Security Agreement) and the bilateral agreement between Australia and New Zealand set out in Schedule 3 to that Act. However, that eligibility arises under a separate statutory scheme with its own residence and qualification criteria. The NDIS Act contains its own self-contained residence requirements in s 23, which are expressed in clear and specific terms. Those requirements do not incorporate or cross-reference the social security law, nor do they provide for eligibility to be established by reference to entitlements under other Commonwealth schemes. Eligibility for DSP under the Social Security Agreement does not confer eligibility for the NDIS. Each statutory scheme must be applied according to its own terms.
The Applicant refers to a prior Tribunal decision in which Services Australia's application of residency criteria was found to be erroneous in the context of social security entitlements. That decision, whatever its merits in the social security context, concerned a different statutory scheme with different eligibility criteria. It does not establish any principle that is applicable to the construction of the NDIS Act. The residence requirements in s 23 of the NDIS Act are distinct from those in the Social Security Act 1991 (Cth),[4] and a finding that one scheme's residence criteria were misapplied says nothing about whether a different scheme's criteria are satisfied.
The Applicant submits that the NDIS Act should be interpreted purposively and consistently with Australia's broader statutory, constitutional and inter-governmental framework, and that reducing the issue to visa categorisation is an oversimplification.
I accept that the NDIS Act, like all Commonwealth legislation, must be interpreted having regard to its text, context and purpose.[5] However, what the Applicant submits is a purposive interpretation is, in reality, the applicant seeking to fundamentally alter the clear words used in s 23(1)(b). The Applicant's proposed purposive approach cannot override clear and unambiguous statutory language.
Section 23(1)(b) sets out three categories of persons who may satisfy the residence requirements. Those categories are expressed in precise terms and are not ambiguous. The Applicant does not fall within any of them. No amount of purposive construction can extend the categories in s 23(1)(b) to encompass persons whom the provision, on its plain terms, does not include. Parliament has made a deliberate choice to limit NDIS access to Australian citizens, permanent visa holders and protected SCV holders. Whatever the Applicant may think about that decision, and whether that choice is wise or fair is nevertheless a matter for the Parliament, not for this Tribunal.
The Applicant submits that the legal position of New Zealand citizens in Australia is grounded in inter-governmental arrangements and that Australian law has consistently recognised that New Zealand citizens with disabilities lawfully residing in Australia occupy a distinct legal position. While I accept that New Zealand citizens residing in Australia do occupy a particular position in Australian law, with various rights and entitlements across different statutory schemes, those rights and entitlements are defined by each particular scheme. The Applicant can, as such, be a resident for purposes of the social security law, whilst not being resident for other purposes. The NDIS Act defines its own residence requirements. It is not open to this Tribunal to read into s 23(1)(b) a category that the Parliament has not enacted.
The Applicant notes that he intends to apply for Australian citizenship under the direct pathway that has been available to eligible New Zealand SCV holders since 1 July 2023, which permits New Zealand citizens who have resided in Australia for at least four years to apply directly for citizenship without first obtaining a permanent visa.
If and when the Applicant is granted Australian citizenship, he will be able to make a fresh access request to the NDIA. However, the Tribunal must assess the Applicant's position as it stands at the time this application falls to be determined. At this time, no evidence has been placed before me that an application for Australian citizenship has been made, let alone granted. A future possibility of meeting the residence requirements does not assist the Applicant in the present proceeding.
The Applicant has provided information about his medical conditions, including neurological and psychological symptoms, and his need for support.
I am sympathetic to the difficulties the Applicant faces. However, the residence requirements in s 23 are a threshold criterion that must be met before any consideration of disability or early intervention requirements can arise. The severity of a person's disability, impairment, or condition, however genuine, cannot overcome the absence of a prerequisite statutory criterion. There is no discretion to waive statutory residency requirements, irrespective of however deserving the circumstances may, or may not, be.
[9]
Having considered all the material before me, including the Applicant's submissions of 21 and 27 January 2026 and his application of 10 October 2025, I am satisfied that the Applicant's application for review has no reasonable prospects of success.
The Applicant does not satisfy s 23(1)(b) of the NDIS Act on any available pathway. He is not an Australian citizen, he does not hold a permanent visa, and he is not a protected SCV holder. No amount of further evidence or argument could alter this position, as the Applicant's visa status and citizenship are factual matters which are not, nor are they capable of, being in dispute.
The Applicant's arguments, while articulated with care, do not raise any arguable question of statutory construction. The terms of s 23(1)(b) of the NDIS Act are clear and admit of no interpretation that would extend their reach to a non-protected SCV holder. The Social Security Agreement, prior Tribunal decisions in other statutory contexts, and general principles of purposive interpretation do not and cannot displace the plain words of the provision.
I note, for completeness, that I make no finding regarding the Applicant's disability or functional capacity. Those matters have not been considered, and nothing in this decision should be taken as reflecting on whether the Applicant might otherwise meet the disability requirements or the early intervention requirements. Should the Applicant's citizenship or visa status change in the future, he would be entitled to make a fresh access request to the NDIA.