Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous

Background 3 On 14 June 2012 in Mahrous v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs the Tribunal found that the applicant satisfied the residence requirements of s 94(1)(e)(ii) of the Social Security Act 1991 (Cth). In doing so, the Tribunal set aside a decision of the Social Security Appeals Tribunal ("SSAT") which had found to the contrary. 4 The application was made by Mr Raif Mahrous, the father of Mr Andro Mahrous who is the respondent to the case before me. Mr Andro Mahrous is a minor, who suffers from disabilities. On 2 March 2011 his parents applied for a disability support pension for him. The Department rejected the application for a pension on the basis that Mr Andro Mahrous did not meet relevant residency requirements. 5 It appears that Mr Raif Mahrous and his son Andro emigrated from Egypt to New Zealand in 1998 when Mr Andro Mahrous was 3 years old. The family became New Zealand citizens, and subsequently moved to Australia on 6 November 2003. 6 The evidence before the Tribunal was that although Mr Andro Mahrous had been born a healthy baby, at the age of around 4 years he began experiencing epileptic seizures, as a result of which he may have suffered brain damage. He has confirmed intellectual impairment of some magnitude. 7 Before the Tribunal the Secretary conceded that Mr Andro Mahrous was severely disabled but said that he cannot satisfy the residency requirements. Section 94(1)(e) of the Social Security Act requires that an applicant for a disability pension satisfies one of three criteria, as follows: (e) the person either: (i) is an Australian resident at the time when the person first satisfies paragraph (c); or (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: (A) is not an Australian resident; and (B) is a dependent child of an Australian resident; and the person becomes an Australian resident while a dependent child of an Australian resident… 8 The Tribunal found that Mr Andro Mahrous could only meet the requirements of the section under para 94(1)(e)(ii). The Tribunal had regard to provisions of the Social Security Act and Art 12 cl 4 of Sch 3 to the Social Security (International Agreements) Act 1999 (Cth) ("Social Security (International Agreements) Act"), as well as relevant authorities. So far as relevant, Art 12 reads as follows: Totalisation for Australia 1. Where a person to whom this Agreement applies has claimed an Australian benefit under this Agreement and has accumulated: (a) a period as an Australian resident that is less than the period required to qualify that person, on that ground, under the social security law of Australia for a benefit; (b) a period of working age residence in Australia equal to or greater than the period identified in accordance with paragraph 3; and (c) a period of working age residence in New Zealand. then: That period of working age residence in New Zealand shall be deemed to be a period in which that person was an Australian resident only for the purposes of meeting any minimum qualifying periods for that benefit set out in the social security law of Australia. 2. Where a person's period of working age residence in Australia and a period of working age residence in New Zealand coincide, the period of coincidence shall be taken into account once only by Australia for the purposes of this Article as a period as an Australian resident. 3. The minimum period of working age residence in Australia to be taken into account for the purposes of subparagraph 1(b) shall be 12 months, of which at least 6 months must be continuous. 4. No person shall be entitled to claim a disability support pension under this Agreement unless he or she has accumulated an aggregate of more than 10 years of residence in Australia and/or New Zealand. 9 After consideration, the Tribunal found, contrary to the submissions of the Department, that Art 12 cl 4 of Sch 3 should not be read subject to cll 1, 2 and 3 of Art 12. Accordingly, the Tribunal concluded at [37] that: Mr Andro Mahrous must be regarded as having more than 10 years residence in Australia and/or New Zealand as he has been a resident of either country continuously since 1998; he therefore satisfied cl 4; and he therefore satisfied s 94(1)(e)(ii) of the Social Security Act.