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Post by Banjo on Jul 21, 2012 4:48:55 GMT 7
While I'm the first to refer people to Welfare Rights I have deep seated concerns about their commitment, or even their interest, in portability and residency. There's just not enough of us and they deal on a day to day basis with an avalanche of problems involving more mainstream Centrelink issues. JCA issues for people on NewStart must be a nightmare in itself. Still, in many cases they are all we have.
What people have to realise is that anything to do with Centrelink takes time, there is no fast track unless you can get a politician to push things along. While it can be extremely frustrating it is often better to take more time with theses things, it gives Centrelink a bit of space to think the issues through as well.
Over the last two years we've really drawn attention to the unfairness of the portability rules and there has been another advance this week that we will discuss later when rowdy gets back from gallivanting around.
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Post by anotherdsp on Jul 21, 2012 7:00:34 GMT 7
to scuzzy,i left aust on the day they changed portability from 26 to 13 weeks?
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Post by scuzzy on Jul 21, 2012 8:23:34 GMT 7
to scuzzy,i left aust on the day they changed portability from 26 to 13 weeks? So was that 1 July 2004? Grab your passport and have a look for the arrival stamp of the country you arrived at. There won't be an Australian exit stamp because they stopped doing that years ago. If you've lost your passport since then, you can make a request to the Dept of Immigration for your International Movement Records. There's a form you can download and fill out, and you just specify the date range you are interested in. Takes a couple of weeks. The other way to do it would be to go back over your banking records. If you were pretty sure you used the ATM on your first day of arrival overseas as most people would, then have a look for the date of this transaction on your statement.
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Post by anotherdsp on Jul 21, 2012 8:48:56 GMT 7
to scuzzy i first left on the 1/06/2004,returned 28 days later as i had an incorrect signature in my passport,got that sorted and left again on the 6/08/2004.i have these dates in a doco from my file.so i actually left jjune 2004.
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Post by scuzzy on Jul 21, 2012 9:30:42 GMT 7
Ok, so you arrived back in Oz on the 29th June 2004? Is that right?
If so, given that you were overseas till June 29th(?), and the legislation for Grandfathering says '...must have been overseas either on or immediately prior to 1 July 2004', I'd say you've got a case.
In other words, you were overseas until a day before. The 1st July started at midnight of the 30th June, so depending on what time you arrived on the 29th June (if it was the 29th), then we are talking about roughly 24 hours or less, which I imagine would be covered under "either on or immediately prior to 1 July 2004".
However, that would require interpretation of legislation as to what exactly 'immediately prior to' means, so you'll need to do some homework.
I'd start trawling through the 'Guide to Social Security Law'. I'd also get in touch with Welfare Rights to get their advice as lawyers specialising in Social Security law as to what they think the legal interpretation of 'immediately prior to' in this case would mean, and where that leaves you.
But first, check what date you actually arrived back in Australia and roughly what time, if you can remember back that far. This is the sort of thing that could boil down to a matter of hours. For example, maybe 'immediately prior to' means within 24 hours, and depending on your actual arrival time you may either just scrape in or you may be outside (That's just an example I've made up)
I'd also get a hold of your 'International Movement Records' from the Immigration Department from the start of June 2004 up until the present, firstly to prove when exactly you arrived back in Australia, and secondly to demonstrate that you haven't returned for any one single period that lasted more than 26 weeks.
By memory, trips back to Oz also had to have been for certain reasons, such as visiting relatives as opposed to things like purely seeking subsidised medical treatment. This is some of the homework you'll have to do. You're in the middle of the mine field now! You can't afford to put a foot wrong.
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Post by anotherdsp on Jul 21, 2012 11:08:14 GMT 7
to scuzzy, yes i arrived in aust on the 29th,i have my DIAC records but buggered if i know what time!! but they have always given me a pension card and Rent assistance so i am confused by this??
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Post by scuzzy on Jul 21, 2012 12:19:47 GMT 7
to scuzzy, yes i arrived in aust on the 29th,i have my DIAC records but buggered if i know what time!! but they have always given me a pension card and Rent assistance so i am confused by this?? Hmmmmm; quite the conundrum. I'd say what's happened is that when you left again in August 2004, when you rung up to tell them you were leaving, they haven't picked up that you were already entitled to Indefinite Portability. This isn't surprising as the whole thing was a total mess around that time; no-one knew what was going on including Centrelink. Your immediate dilemma is that if you attempt to assert your right to Indefinite Portability that you should have been made aware of in 2004, it will mean denying that you have been an Australian Resident since that time. But once you've thrown those cards down on the table, it could come back to bite you if the attempt fails and then your denial of having been an Australian Resident then puts you on their 'Residency' radar screen and could jeopardise your DSP as it stands now. Catch 22. It's a real tricky one. Probably time to consult someone with more expertise like Welfare Rights, unless anyone else out there on the forum has any ideas. I suppose the first thing you've got to ask yourself is whether you would exchange Australian Residency along with Medicare, concession card, rent assistance and some of the other add-ons, accrual of AWLR (Australian Working Life Residency, which impacts rate of OAP later) for the sake of Indefinite Portability. Maybe tackle this question first. Only if the answer is 'Yes' is there any need to pursue it. There's a lot to deliberate. I've sometimes wondered how safe the Grandfathered mob are. How sure are they that some day down the track they won't have the Indefinite Portability rug puled out from under them, meaning that they end up stranded back in Australia, restricted from leaving Australia at all for 2 years under former-ex resident regulations, plus they would have not been accruing AWLR all those years of being non-resident, meaning their OAP is reduced.
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Post by anotherdsp on Jul 21, 2012 12:27:46 GMT 7
to scuzzy,i think i will email welfare rights an see if they can make sense of this,as i am already going to an SSATappeal about being deemed a non resident?? but thanks for your help mate!!
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Post by scuzzy on Jul 21, 2012 13:16:01 GMT 7
to scuzzy,i think i will email welfare rights an see if they can make sense of this,as i am already going to an SSATappeal about being deemed a non resident?? but thanks for your help mate!! Well I suppose if they are saying you're not a resident, then that may strengthen your claim to Indefinite Portability under the 2004 grandfathering provisions. On the other hand, you could also argue that you must be a resident otherwise you'd already have Indefinite Portability under the 2004 Grandfathering provision. I suppose it boils down to which way you want to play it. I suppose you've got to pick the one that has the most chance of success. Is it possible that they are picking on you for residency reasons because you are in this 'twighlight'?
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Post by anotherdsp on Jul 21, 2012 15:47:13 GMT 7
to scuzzy,
yeah not sure what i will do ,they say because i have traveled too much in the past?
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Post by Banjo on Jul 22, 2012 5:27:19 GMT 7
I put this to the investigations officer last year when he claimed I had not been a resident for 10 years.... "well why wasn't I grandfathered?". He was genuinely stumped for while and then said that I must have been in the country at the time so I replied... "well I must have been a resident then".
Something the ARO as well as the investigator constantly referred to when they were on the back foot was "grey areas". It seems that when there is a grey area they will rule against the pensioner and this is what we need to correct. Reasonable doubt plays a big part in criminal law and we need to get a few astute legal minds working on making Centrelink take notice of it as well.
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Post by Denis-NFA on Jul 22, 2012 5:35:21 GMT 7
Banjo, I envy you your speed of thought.
Well done.
It would take me days to think of that response.
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Post by Banjo on Jul 22, 2012 6:39:30 GMT 7
Yes, a few girlfriends have commented on how quick I was. I assume they meant my speed of thought. ;D
Seriously, when these people have me on the phone, my thought process usually goes like mud. You can only overcome this with confidence, which comes with experience. The more you talk to them the better you get at it. I struggle on the phone at the best of times which is the reason I always try to get face to face interviews.
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Post by scuzzy on Jul 22, 2012 9:32:49 GMT 7
I put this to the investigations officer last year when he claimed I had not been a resident for 10 years.... "well why wasn't I grandfathered?". He was genuinely stumped for while and then said that I must have been in the country at the time so I replied... "well I must have been a resident then". Something the ARO as well as the investigator constantly referred to when they were on the back foot was "grey areas". It seems that when there is a grey area they will rule against the pensioner and this is what we need to correct. Reasonable doubt plays a big part in criminal law and we need to get a few astute legal minds working on making Centrelink take notice of it as well. Just out of interest Banjo, were you also overseas either on or immediately prior to 1 July 2004? The reason I'm asking is that I'm wondering whether all you guys who are being picked on by Das Gestapo over residency are all people who are in the 'Grey Area', and the whole Blitzkrieg over residency is their way of seperating the greyness into black and white. Is there anyone else out there who is having their balls busted over residency who was recieving DSP and was overseas either on or just before 1 July 2004?
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Post by anotherdsp on Jul 22, 2012 9:51:19 GMT 7
to scuzzy, interesting point of veiw mate??
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