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Post by horace on Feb 2, 2011 14:27:49 GMT 7
If the legislation is passed, then from what I can understand, if a Disability Support Pensioner leaves Australia for a third time in a calendar year, their residency status will be automatically flagged for review, with the data from the Immigration computer automatically going to the Centrelink computer.
This means that DSPers will only be "allowed" to travel overseas for 6 months in a calendar year, otherwise their residency status will be reviewed. They are targeting about 1000 people who travel overseas for 3 or more times in one year, that means, essentially, staying overseas for 9 months or more.
The outcome of the review of their residency will depend on a number of factors:
-the nature of the accomodation used by the person in Australia
-the nature and extent of the family relationships the person has in Australia
-the nature and extent of the persons employment, business or financial ties with Australia
-the nature and extent of the person's assets located in Australia
-the frequency and duration of the person's travel outside Australia
The DSPer could try to "enhance" their residency qualification status, for example, by trying to establish some permanent-style accomodation in Australia, establishing family relationships, establishing employment, business or financial ties, or assets in Australia.
But I would say the critical factor is likely to be the "presence test" that they talked about: and this is likely to mean the difference between staying in Australia for 6 months or 3 months is the difference between being a resident or being a non-resident.
But vigorously fighting the Centrelink decisions in the court system could mean the difference between being forced to stay in Australia for 6 months, or being forced to stay in Australia for just 3 months in a calendar year.
And the more people who challenge the legislation in the court system, the more likely the government and Centrelink will be forced to back down, and allow just a 3 month stay in Australia to qualify as a resident. It all depends on the outcome of the legal challenges.
And then there is the challenge to the whole concept of the legislation, on the grounds that it violates the human rights of DSPers:
The United Nations Convention on the Rights of Persons with Disabilities, signed by Australia on the 30th of March 2007, and ratified by the Australian Parliament on the 17th of July 2008, which reads in part:
"Article 18: Liberty of movement and nationality 1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others.."
And this legal challenge is the most exciting, because it could mean that the 13 week limit is also found to be a violation of Article 18, a violation of the human rights of disabled people.
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Post by pauley on Feb 2, 2011 19:25:22 GMT 7
Thankyou for this info could you keep me/us informed as you find out more
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Post by Banker on Feb 3, 2011 6:16:55 GMT 7
The advice I have been given is that if you were not born in Australia the requirements are going to be harder still to meet. That would then look like 6 months and 1 day in Aus a year. Then again i have also been told that it will depend on recurring destinations. If you take 4 13 week trips in a year but to diffferent countries it is then very difficult for centreink to say you are resident in any of them. As I guess saying you are resident in one country would be paramount for them to say you are not resident in australia during an appeal. Initially, before an appeal, as we know they csan say what they want. Well that is what happened to me, staying out of Australia between 2002 & 2008, because I was told by C/L that I could return when ever I wanted & nothing (Residency, Concessions etc) would not be affected. More LIES by C/L and their staff.
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Post by Banjo on Feb 3, 2011 7:51:38 GMT 7
When we were searching the forums to poach members and explain what we were about sceadugenga had an interesting discussion in the Living in Cebu forum, part of which touched on the UNHRC charter. www.livingincebuforums.com/ipb/topic/18733-australian-dsp-changes-to-overseas-portability/It's also relevant because it exposes "I'm all right mate" attitudes about the DSP being used to rip off the system by a few which, of course, we have to deal with also.
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Post by latindancer on Nov 28, 2011 10:48:46 GMT 7
The United Nations Convention on the Rights of Persons with Disabilities, signed by Australia on the 30th of March 2007, and ratified by the Australian Parliament on the 17th of July 2008, which reads in part:
"Article 18: Liberty of movement and nationality 1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others.."And this legal challenge is the most exciting, because it could mean that the 13 week limit is also found to be a violation of Article 18, a violation of the human rights of disabled people. I'd like to get other peoples' ideas about this declaration, as I have often wondered about it's application to us. For instance, courts can take phrasing like this and interpret it as they wish. Could not Centrelink interpret this as a statement about people in (for instance) Communist countries literally being prevented from leaving their own country ? As they are in North Korea and China (most notably Tibet). Centrelink could easily say that they were not actually preventing us from leaving Oz and moving to another country, as this declaration seems to state. And that they just don't have an obligation to pay us when we are overseas.....or that this is a separate issue.
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Post by zorro1 on Nov 28, 2011 16:32:34 GMT 7
"Article 18: Liberty of movement and nationality 1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others.." [/i] And this legal challenge is the most exciting, because it could mean that the 13 week limit is also found to be a violation of Article 18, a violation of the human rights of disabled people. [/quote] Has anyone tested the above in an appeals process? are centre link even aware of it? Will be interesting if we can find a common pattern in the residency crack down. For example Rod gets a pull but latin dancer doesnt. There has to be a reason for that and perhaps they have drawn a line purely on Time out of oz. I know rods been out around 5-6 years so it would be good if members here can give a time frame and whether or not they have received a call back and time out of OZ . I have only just been approved and its my first trip
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Post by Banjo on Nov 28, 2011 17:01:59 GMT 7
It was brought up when we did our submissions to the Senate earlier this year and I think it was discussed at committee level.
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Post by latindancer on Nov 28, 2011 17:43:46 GMT 7
Hah ! SOMETHING is going on between Centrelink and myself at the moment, but I don't know what it is. I could get interviewed at any time. It's now SEVEN full working days since I requested a statement from them about what is actually going on with my payment. I got married, and payment reduced by 30%.....which is more than what my wife here earns ($90/week). No letter from them.....just less money in the bank. I fortnightly payment missing completely and no explanation yet. One brief email saying my email received and will be attended to as soon as possible. I don't think they know what they're going to do in my individual case. Further updates in the "Centrelink Experiences" thread, including venting by me of the stress and anxiety they're causing me. I can't survive either here in Asia or in Oz on half the married rate, which is 30% less than the single rate. So I can't stay here and pay for flights back and forth. And I can't return to Oz because I just got married but don't want to be separated from my wife. I just wish the idiots would tell me what's going on. Seven full working days is unacceptable.
Anyway, what I was originally saying is that I think Centrelink can interpret that statement in the UN Convention as they see fit. As those in power usually do.
Then again, the wording is interesting : " Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination".
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Post by zorro1 on Nov 29, 2011 9:24:00 GMT 7
LD
Keep onto them by phone if you can, emails have a habit of disappearing. call their international number it always gets answered fairly quick.
the best of luck to you, there will be a lot of shattered families as a result of the new residency laws
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Post by Banker on Nov 29, 2011 12:36:06 GMT 7
LD re you getting married. I think if you & your wife were to separate you will get back your full pension....Banker just thinking ;D
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Post by latindancer on Nov 29, 2011 13:29:47 GMT 7
No can do. I want us to move back to Oz, after I somehow scrape together the $2,000 visa application fee. Gawd knows how we'll survive there though. But life here in Asia ain't great in many ways, particularly if we have a child. What would be interesting is if I have to go back to Oz while she's still here. Would they pay me the full single rate again ?
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Post by zorro1 on Nov 29, 2011 14:55:53 GMT 7
LD re you getting married. I think if you & your wife were to separate you will get back your full pension....Banker just thinking ;D I typed the same but deleted it due to my good manners ;D LD is in a jam becuase he needs to be married for the visa but then loses his single rate. Even if his wife doesn't work in oz it will still be a married pension rate. There really is no way out of it
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Post by Banjo on Nov 30, 2011 11:07:56 GMT 7
There's not a lot Latindancer can do except keep focussed on the big picture. Obviously it's cheaper for them to live in Thailand while they wait for his wife's visa to come through and then do it hard while they get settled in Australia. They both still have their lives ahead of them so it's pretty much a case of tighten the belt and keep in mind that things can only get better. I know that sounds pretty mealy mouthed but I can't see any other way around it.
I had a friend who brought his Filipina girlfriend to Australia under similar circumstances and they struggled for a while, living with family, but she started a small business and they have a kiddy now and are doing well. He still gets some DSP but I don't think she was ever on a Centrelink benefit.
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Post by latindancer on Nov 30, 2011 11:23:26 GMT 7
You're not mealy-mouthed Banjo. I'm a realist ( I think) . We'd be doing it hard, alright, if we both have to live on half the married rate. Which is what may happen if she gets the type of visa in which she is ineligible for Social Security benefits. Actually, that may not happen as she will not even be given a visa if I can not prove I can support her. Which I wouldn't be able to do without a job. To get one kind of visa, someone needs to post a $20,000 bond in case she needs to access government benefits....and I don't have 20k, nor a relative who would provide it. It all goes around in circles.
Now 8 1/2 working days since I sent an email asking for details of the rationale behind my payment being reduced to half the married rate. On day 4 ( after a "hurry-up" email from me) I got an email saying I would be answered as soon as possible. Ha ha. However I think my missing payment is simply a backdated reduction to my date of marriage. And an indication of just how much less I'm getting now.....THIRTY PERCENT LESS than the single rate.
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Post by immiadvice on Nov 30, 2011 11:56:01 GMT 7
You're not mealy-mouthed Banjo. I'm a realist ( I think) . We'd be doing it hard, alright, if we both have to live on half the married rate. Which is what may happen if she gets the type of visa in which she is ineligible for Social Security benefits. Actually, that may not happen as she will not even be given a visa if I can not prove I can support her. Which I wouldn't be able to do without a job. To get one kind of visa, someone needs to post a $20,000 bond in case she needs to access government benefits....and I don't have 20k, nor a relative who would provide it. I am not sure where you get your advice from but you have certainly been misled. Partner migration Visa's (subclass 309 and 100) are not means tested. You are not required to disclose assets nor income. If you partner is likely to have to depend on Centrelink an AOS may be required. This is at the discretion of the DIAC officer processing the application. If your partner can read and write english there is no grounds for considering an AOS. If an AOS is required then it is merely a signed guarantee by someone earning more then $26k/pa. No money changes hands. If you can prove your relationship has been strong for longer then 3 years you can skip the subclass 309 visa and have subclass 100 given straight away which allows most Centrelink benefits.
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