ABDIRAHMAN MOHAMED and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2012] AATA 470
•25 July 2012
[2012] AATA 470
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1071
Re
ABDIRAHMAN MOHAMED
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Mr P Wulf, Member
Date 25 July 2012 Place Brisbane The Tribunal affirms the decision under review
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Mr P Wulf, Member
Catchwords
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Residency criteria – International Agreement – New Zealand citizen – Not qualified as a resident – Impairment Tables – Condition not fully treated and stabilised – No impairment rating – Decision under review affirmed
Legislation
Social Security Act 1991 (Cth) ss 7, 94, Schedule 1B
Social Security (International Agreements) Act 1999 (Cth) Schedule 3, Articles 1, 2
REASONS FOR DECISION
Mr P Wulf, Member
25 July 2012
introduction
Mr Abdirahman Mohamed (“the applicant”)[1] is a New Zealand citizen and made a claim to Centrelink for disability support pension (“DSP”) on 13 October 2011.[2] On 16 November 2011, Centrelink made a decision to reject the applicant’s claim as he did not meet the residency requirements under the Social Security Act 1991 (Cth) (“the Act”). Alternatively, he also could not qualify under the Social Security (International Agreements) Act 1999 (Cth) (“the International Agreement”) as he could not be considered “severely disabled”.[3] On 13 December 2011, an authorised review officer affirmed the decision[4] which was then subsequently also affirmed by the Social Security Appeals Tribunal on 28 February 2012.[5] On 21 March 2012, the applicant applied to this Tribunal for review of the decision.[6]
[1] Exhibit 1, T-Document 1, pp. 1-2.
[2] Exhibit 1, T-Document 4. pp. 61-74 and T-Document 11, p. 100.
[3] Exhibit 1, T-Document 8, pp. 91-92.
[4] Exhibit 1, T-Document 9, pp. 93-95.
[5] Exhibit 1, T-Document 2, pp. 3-8.
[6] Exhibit 1, T-Document 1, pp. 1-2.
The application was listed to be heard by the Tribunal on 26 June 2012. On that day the applicant failed to attend in person due to health reasons but was heard by telephone. During the telephone hearing, the applicant requested that the matter be determined without a hearing. In accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth), the parties consented to a decision being made by consideration of documents lodged with the Tribunal prior to the hearing; therefore a hearing on the papers.
For the reasons contained within, the Tribunal affirms the decision under review.
issues for determination
The relevant issues for determination by the Tribunal are:
(a)Does the applicant qualify for DSP under the Act; and
(b)If the applicant does not qualify for DSP under the Act, does he qualify for DSP under the International Agreement?
Legislation
Qualification for DSP is assessed in accordance with s 94 of the Act, which, in this case, relevantly provides:
(1)A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
i).the person has a continuing inability to work;
…
(d) the person has turned 16; and
(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
…
(5) …
"work" means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia even if not within the person's locally accessible labour market.
Section 7 of the Act provides the definition for an Australian resident, which relevantly provides:
…
(2)An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i)an Australian citizen;
(ii)the holder of a permanent visa;
(iii)a special category visa holder who is a protected SCV holder.
…
(5)A person has 10 years qualifying Australian residence if and only if:
(a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b) the person has been an Australian resident during more than one period and:
at least one of those periods is 5 years or more; and
the aggregate of those periods exceeds 10 years.
Schedule 3 of the International Agreement provides for reciprocal social security arrangements between Australia and New Zealand (“the New Zealand Agreement”). It relevantly provides:
Article 2
…
2. For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:
(a) the person is severely disabled;
(b) the person was a resident of one of the Parties at the date of severe disablement; and
(c) the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
Article 1
1. …
(l) “severely disabled” means a person who:
(i)has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:
(aa) to work for at least the next 2 years; and
(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(ii)is permanently blind;
…
2.In the application by a Party of this Agreement in relation to a person, any term not defined in this Article shall, unless the context otherwise requires, have the meaning assigned to it in the social security law of either Party.
To qualify for DSP, an applicant must meet the requirements set out in s 94 of the Act above at the time of the claim or in the period of 13 weeks from the day of the claim.[7] In regard to Mr Mohamed’s claim, this is from 13 October 2011, when he made his claim, to 12 January 2012 (“the relevant period”).
[7] See sch 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth).
evidence
The applicant was born in Somalia in 1979 and, as a refugee, commenced living in New Zealand. He became a New Zealand citizen in March 1996.[8] On or about 22 January 2007, he entered Australia on a Special Category (subclass 444) visa, which is a visa automatically granted to New Zealand citizens who do not hold a permanent visa. Mr Mohamed has continued to live in Australia since that date.
[8] Exhibit 1, T-Document 4, p. 64.
According to a medical report by Dr Kathleen Armstrong, dated 10 October 2011, Mr Mohamed was diagnosed with “acute liver failure” on 13 September 2011.[9] He was subsequently hospitalised at the Princess Alexandra Hospital in Brisbane for this condition on 15 September 2011 for a period of three and a half weeks.[10]
[9] Exhibit 1, T-Document 6, p. 83.
[10] Exhibit 1, T-Document 6, p. 84.
In her report, Dr Armstrong lists the symptoms of Mr Mohamed’s condition as “jaundice, itchy [skin], lethargy”. She states that his current treatment was “awaiting resolution” and any future treatment would be determined after assessing his condition if it were to progress “to chronic failure”.[11] Dr Armstrong also states that his “lethargy prevents working” and that the condition will impact on his ability to function for the next “3-24 months”. However, she also indicates that this impact is expected to “fluctuate” within the next two years.[12]
[11] Exhibit 1, T-Document 6, pp. 83-84.
[12] Exhibit 1, T-Document 6, p. 84.
On 1 November 2011, Mr Mohamed was assessed by rehabilitation counsellor Ms Anne Myers. In compiling her Job Capacity Assessment Report (“JCA report”), dated 15 November 2011,[13] Ms Myers relied on the medical report of Dr Armstrong as well as information provided by Mr Mohamed at the assessment. Ms Myers, in her report, indicates that Mr Mohamed’s liver failure is due to cirrhosis. She describes it as a “temporary” condition and that, while it was verified, she notes that he was currently having weekly blood tests and that any future treatment would involve monitoring of his liver function with further assessment if his liver condition progresses to “chronic failure”. She also states that Mr Mohamed “may have to have a liver transplant if his condition does not improve”.[14]
[13] Exhibit 1, T-Document 7, pp. 88-90.
[14] Exhibit 1, T-Document 7, p. 88.
On 22 November 2011, Dr Armstrong wrote a letter to Centrelink indicating that Mr Mohamed’s liver failure had now progressed to a chronic stage. She states that the condition was permanent and that he would be unable to work.[15] However, her letter does not contain any information regarding how long she considered he would be unable to work for nor whether he was undergoing any further treatment and if his condition had fully stabilised.
ANALYSIS
[15] Exhibit 1, T-Document 6, p. 87.
Does the applicant qualify for DSP under the Act
A condition of qualification for DSP under s 94 of the Act, is that the person claiming the benefit must be either an Australian resident at the time (s 94(e)(i)) or have 10 years qualifying Australian residence (94(e)(ii)).
Mr Mohamed is not an Australian resident for the purposes of s 94(e)(i) of the Act as he is not an Australian citizen; his visa is merely a temporary visa which allows the holder to live and work in Australia for a period of five years; and he is not the holder of a protected special category visa.[16]
[16] See definition for “Australian resident”, s 7(2) of the Act.
In his application for DSP, Mr Mohamed states that he entered Australia on 22 January 2007. He has remained here since that time but this is the only period he has lived in Australia. He had therefore only resided in Australia for approximately five years at the time of his DSP claim (and during the relevant period). Therefore, the applicant does not have the 10 years qualifying residence in Australia for the purposes of s 94(e)(ii) of the Act.[17]
[17] See definition for “10 years qualifying residence”, s 7(5) of the Act.
As Mr Mohamed cannot fulfil either of the potential avenues available to satisfy the residency requirements contained within s 94 of the Act, he is not eligible to be paid DSP under the Act.
Can the applicant meet the residency qualification under the International Agreement
The international agreement between Australia and New Zealand allows for a reciprocal arrangement whereby citizens of each country may qualify for certain social security benefits, such as disability pensions, of the other country when they may not otherwise meet residency criteria under the ordinary domestic legislation covering those benefits.
Article 2, para 2 of the New Zealand Agreement limits claims for disability type pensions, such as the DSP in Australia, to situations where the claimant is severely disabled; was a resident of one of the countries at the date of severe disablement; and, prior to severe disablement, was residing in the other country for a period of not less than one year at any time. For the purposes of Mr Mohamed’s application, Article 1, para 1(l) of the New Zealand Agreement defines severe disablement as being a physical impairment that will render him “totally unable” to work for a period of at least the next two years and also prevent him benefiting from participation in an assistance or rehabilitation program. While Mr Mohamed may have a physical impairment, to meet the requirements of that paragraph he must also be “totally unable” to work for the next two years.
Neither the International Agreement nor the New Zealand Agreement defines “work”. However, Article 1, para 2 states that terms not defined are to be interpreted according to the social security law of the relevant country. Section 94(5) of the Act relevantly defines “work” to mean work of at least 15 hours per week at or above the minimum wage for that type of work.
Dr Armstrong’s letter to Centrelink on 22 November 2011 states that Mr Mohamed was “unable to work because of his condition”. However, she does not indicate for what period of time this inability refers to. Consequently, little weight can be given to her letter as to Mr Mohamed’s work capacity within the period of two years from his claim.
In the JCA report of Ms Myers, she assessed Mr Mohamed’s work capacity within the following year as being up to 7 hours per week only. However, her view was also that after that first year his work capacity would be 30 plus hours per week. On an ordinary reading, Mr Mohamed cannot be said to be “unable” to work within the next two years.
The definition of severely disabled in Article 1, para 2 is qualified in that the person must be “totally” unable to work. There is no guidance given in either the Act or the International Agreement as to what number of hours of work, if any, qualifies as “totally” unable. The Macquarie Dictionary (4th edn.) defines “totally” to mean “wholly; entirely; completely”. It is therefore reasonable to suggest that “totally” unable to work would mean the applicant could not work at all; whereas Ms Myers indicates that Mr Mohamed could work seven hours a week in the first year.
I am satisfied that Mr Mohamed cannot be considered to be severely disabled and, therefore, he cannot qualify as an Australian resident under the International Agreement with New Zealand for the purposes of DSP. It follows then that he cannot qualify for DSP under the Act.
decision
Mr Mohamed did not qualify for DSP during the relevant period as he could not meet the residency requirements under either the Act or the International Agreement.
The Tribunal therefore affirms the decision under review.
I certify that the preceding 26 (twenty six) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
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Associate
Dated 25 July 2012
Date of hearing 26 June 2012 Applicant In person Advocate for the Respondent Bob Hamilton
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Residency Criteria
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Disability Support Pension
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International Agreement
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