Aguilar-Trejo and Anor and Secretary, Department of Family and Community Services
[2005] AATA 734
•3 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 734
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/183
GENERAL ADMINISTRATIVE DIVISION )
Re MISAEL AGUILAR-TREJO and
ILIANA RAMOS-GONZALEZApplicants
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr KS Levy, Member Date3 August 2005
PlaceBrisbane
Decision The decision under review is affirmed. The Applicants’ claim is unsuccessful. .....................[Sgd].........................
KS Levy
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension - pension portability overseas - s1217 Social Security Act - severely disabled - depression.
Social Security Act 1991: s23(4B), 1217(1), (3), 1218AA (1), (2), (3)
Acts Interpretation Act 1901 (Cth): s 8, 15AAGidaro v Secretary, Department of Social Security (1998) 154 ALR 550
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
Makris and Secretary, Department of Family and Community Services [2005] AATA 375
Salamon v Salamon and Co Limited (1897) AC 22
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Director of Public Works v Ho Po Sang (1961) AC 901
Robertson v City of Nunawading (1973) [VR 819]
JR Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717REASONS FOR DECISION
3 August 2005 Dr KS Levy, Member 1. This is an application made by the Applicant under section 29(1) of the Administrative Appeals Tribunal Act 1975. The application is an appeal against the decision dated 22 February 2005 by the Social Security Appeals Tribunal (the “SSAT”).
2. That Tribunal’s decision affirmed the previous decision by Centrelink in respect of the Applicants dated 20 October 2004.
3. The decision of the SSAT was that, as a matter of law, Mr Aguilar-Trejor and Ms Ramos-Gonzalez were now entitled to portability of their Disability Support Pensions for a 13 week period only since the legislative amendments which came into effect on 1 July 2004.
4. This matter was heard in the Administrative Appeals Tribunal (“the Tribunal”) on 29 June 2005. The Applicants represented themselves. The Secretary, Department of Family & Community Services (the Respondent) was represented by Ms Christina Heffner, departmental advocate.
5. The following documents were admitted into evidence:
· Exhibit 1 – text of a letter provided to all disability support pension recipients in March/April 2004
· Exhibit 2 – copy of Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 No. 122 of 2003 – Schedule 6 reducing portability period
· Exhibit 3 – T documents – documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
6. The Applicants gave sworn evidence. The Respondent cross-examined the Applicants and made submissions on behalf of the Department. The Applicants were afforded the opportunity of further questioning the Respondent’s advocate and making any final submissions to the Tribunal.
Background
7. Both Applicants came to Australia as refugees, with their families, in 1989. Since that time, Ms Ramos-Gonzalez has become estranged from her parents following violence towards her from her father. As a result, Ms Ramos-Gonzalez now has a mood disorder and has been awarded a Disability Support Pension. Mr Aguilar-Trejo had been a student for a period of time both in high schools and a TAFE college in Coffs Harbour. He developed psychological problems as an adolescent and following an unsuccessful adjustment to the workforce, has been on a Disability Support Pension since 1997. The record indicates that he had severe depression.
8. Mr Aguilar-Trejo was categorised as being severely disabled for purposes of achieving pension portability whilst overseas. This determination was made on 4 August 2001. Mr Aguilar-Trejo then left Australia on 15 October 2001 to return and reside in El Salvador.
9. Ms Ramos Gonzalez was also assessed as being “severely disabled” and granted a Disability Support Pension with portability benefits on 26 October 2001. On 22 November 2001 she also departed Australia to reside in El Salvador.
10. On 28 April 2004 the Applicants both returned to Australia to visit his mother and planned to return to El Salvador on 7 May 2004. Prior to returning to Australia, Mr Aguilar-Trejo contacted Centrelink seeking clarification of the new portability rules that were to commence on 1 July 2004. This enquiry was made on 2 April 2004 (see T7 folio 22). However, their return to El Salvador was delayed as Ms Ramos-Gonzalez gave birth their second child on 13 May 2004. While flights were re-booked for 12 June 2004, a serious of unfortunate occurrences delayed their departure on that date. This included the need to have a passport for the baby to leave Australia and both parents and the baby having a reportable disease which required treatment before they could leave.
11. They were again delayed and re-scheduled their flight for 30 June 2004. Mr Aguilar-Trejo had treatment on 29 June 2004 at the Princess Alexandra Hospital. On 30 June 2004, he and Ms Ramos-Gonzalez missed the flight that they were scheduled to take. He stated he was confused and unwell from a psychological point of view.
12. They were present in Australia at the commencement of the amended legislation on 1 July 2004.
Issues
13. The issue in this case is to determine whether Mr Aguilar-Trejo and Ms Ramos-Gonzalez are entitled to Disability Support Pension portability beyond 13 weeks as provided for section 1217 of the Social Security Act 1991.
Legislation
14. The Social Security (International Agreements) Act 1999 is not applicable in this circumstance as there is no agreement between Australia and El Salvador.
15. However, the following provisions of the Social Security Act 1991 are relevant:
“23(4B) For the purposes of this Act, a person is severely disabled if:
(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:
(i) to work for at least the next 2 years; and
(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or
(b) the person is permanently blind.
….
1217(1) The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:
(a) the payment (as specified in column 2 of the table); and
(b) the class of persons to which the person belongs (as specified in column 3 of the table).
…..
1217(3) If the person's maximum portability period for the payment is an unlimited period, the person's portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.
…..
Extended portability period for disability support pension
1218AA(1) The Secretary may determine that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person's absence from Australia is or will be permanent; and
(e) the purpose of the person's absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person's country of origin.
1218AA(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
1218AA(3) If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person's maximum portability period for the pension were 13 weeks starting at that time.
Schedule 1A
Clause 135 (1) (2)
Clause 20 (1) of Schedule 6 to the Family and Community Services and Veterans Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003.
122 of 2003 – Schedule 6
20
Application
(1) The amendments of the Social Security Act 1991 made by this Schedule apply in relation to absences from Australia that start on or after the commencement of this Schedule ie 1 July 2004”
Evidence
16. Mr Aguilar-Trejo provided sworn evidence. He stated that he suffers from schizophrenia. He did not believe Centrelink had provided full and truthful information about his plans for travel. He emphasised that his plans for travel had been complicated by the birth of their second child in Australia.
17. This Applicant’s main issue was dealing with emotional issues. He described the effect on he and his wife by their return to Australia, whereby they spent one week in a hotel and one week in a caravan park. Having to deal with his wife who suffered from depression since the birth of their second child was difficult and his situation was even more critical as he received no support for medical and financial issues and was entitled to no allowance for the cost of maternity expenses. Equally, he was not entitled to a medical concession card.
18. He admitted receiving correspondence from Centrelink about the changes to the legislative arrangements but said that he had read the letter many times but could not understand it.
19. This Applicant was cross-examined by the Departmental advocate and he was referred to folios 88 91 of the T-documents. This was a letter written on the Applicants behalf by Welfare Rights Centre Inc. dated 24 August 2004 to the SSAT. In Item 1 of “The Facts” there was reference to a letter which the Applicants had received from Centrelink and was written in English. Mr Aguilar-Trejo admitted this letter was received in March or April 2004, a couple of weeks before they left. He was also referred to folio 22 which was an electronic note dated 2 April 2004 summarising a telephone call from El Salvador by the Applicant. The note indicates that he had rung from El Salvador to seek clarification about the new rules which were to commence on 1 July 2004. The official note also indicates that he may return to Australia permanently but was not sure when. It also shows that the Applicant was advised that if he returned to Australia permanently then under the rules which would commence from 1 July 2004 he would get a portability period of 13 weeks only from that time for any visit to El Salvador.
20. The Applicant stated that he could not recall whether that conversation was as a result of his receiving the letter from Centrelink. However, he stated that the letter from Centrelink was received in mid April. In a further electronic communication with Centrelink (T14 folio 32 of the T-documents), that advice indicates that a person called Nicky from “Mica” was acting on behalf of the Applicants and was contacted by Centrelink on 24 May 2004. The purpose of that communication was to discuss the entitlements and qualification for payments of the Applicants. An interview was arranged with Nicky and the two Applicants on 25 May 2004 at Stones Corner. The advice further states that the purpose of the meeting was solely to inform the Applicants of what may occur to their disability payments if different circumstances were to arise. The Applicants stated in evidence that Nicky was there to help him in understanding any communication from Centrelink, however, he stated that her prime concern was to help them get accommodation. When further questioned as to whether she also helped him understand the Centrelink communications, he answered “Yes”.
21. Ms Heffner further cross-examined the Applicant by reference to folio 34 of the T-documents. This electronic record shows that the Applicants were advised that if they are in Australia on or after 1 July 2004, then they will become eligible only for portability of their payments for 13 weeks, in accordance with the new rules. The Applicant stated that he did not have a copy of the new rules at that time but does have them now. The Applicant admitted that he was provided with that information. He also indicated that medical treatment that he was receiving in June 2004 has now ceased. However, he stated that he did not leave on 30 June because of mental incapacity. He informed the Tribunal that he still gets medication for his condition but there is a lack of community support for him. When asked whether he had any other condition or whether his condition was “terminal”, he replied that it depends on the definition of “terminal”. He said he has a “mental problem”, which he thinks is “terminal”.
22. He admitted that he and his wife were physically in Australia on 30 June 2004 and 1 July 2004.
23. The Applicant indicated that he had Australian citizenship but did not have a Medicare card. It became apparent that he has permanent residency.
Ms Ramos-Gonzalez
24. Ms Ramos-Gonzalez stated that her evidence was consistent with that of Mr Aguilar-Trejo. She also believed that Centrelink had not considered her case and given her a “fair go”. She explained the difficulty of living in another country and that she could not go without her children and her husband. She described her medical condition as being one of depression but she received medication for that condition.
25. It became evident that both Ms Ramos-Gonzalez and Mr Aguilar-Trejo both now have permanent residence, both are in receipt of the Disability Support Pension and also get the Family Tax Benefits payment. Ms Ramos-Gonzalez was concerned that there is not support for her family in El Salvador and that she was requesting Centrelink to give her a period of time to overcome her present illness. She expressed a desire to become a teacher and be independent in El Salvador. She thought she would be better in El Salvador as she had been in Australia for 15 years but still had difficulty with the language.
Submissions
26. Mr Aguilar-Trejo made further but brief submissions. Ms Heffner made more detailed submissions based on the relevant legislative provisions and referred to the Secretary’s Statement of Facts and Contentions.
27. The Tribunal was also informed that the Applicants presently have applied for an Act of Grace payment with the Department of Finance and Administration. This matter was on hold until this application was finalised.
Considerations
28. There was little dispute about the facts in this matter, although the Applicant was unclear about the dates of some communications with Centrelink. He also stated that his understanding of all the communications was incomplete. It was also not in dispute that Mr Aguilar-Trejo has a psychotic illness and that Ms Ramos-Gonzalez suffers from a mood disorder. Both Applicants clearly have had difficulties to contend with, both in Australia and in El Salvador. The question for the Tribunal is whether the amendment to the legislation, which was effective on 1 July 2004, can be considered in a discretionary way. That is, should this legislation which is currently in force be interpreted favourably for the Applicants. This is essentially a matter of statutory interpretation.
29. The Applicants who lived in Australia from 1989 to 2001, returned to El Salvador to be closer to his family and the culture with which he felt more comfortable. Both Applicants expressed a desire to return to El Salvador but wish to have the Disability Support Payment payable from Australia, to help overcome their mental illness and become independent. Ms Ramos-Gonzalez said she would like to become a teacher. It appears Ms Ramos-Gonzalez’ family are mostly in Australia and from whom she is estranged. Mr Aguilar-Trejo has a mother and a sister in Australia but it was not apparent what family specifically he had in El Salvador.
30. Achievement of their expectations is dependent upon satisfying various statutory provisions. Both Applicants have been classified as being “severely disabled”. As defined in section 23(4B) of the Act, therefore both Applicants have been accepted as being unable to work for at least the next two years. Section 1217(1) entitled a person who is severely disabled to an unlimited maximum portability period prior to 1 July 2004. Both Applicants satisfied that requirement prior to 1 July 2004. However, since 1 July 2004, that section has been amended to limit the portability period to 13 weeks. Both Applicants were in Australia on 1 July 2004 and are now caught by the amended legislation. Section 1217(3) of the Act also indicated an unlimited portability period from the commencement of a period of absence. That subsection also provided some protection to both Applicants as at the time they left Australia in 2001. Also, when they returned to Australia in April 2004 that entitlement was retained. However, they sought advice by telephone from El Salvador and in Australia between April and May 2004. They were advised on those occasions that they would only be entitled to 13 weeks portability if they remained in Australia on the date of effect of the legislative amendment, that is 1 July 2004.
31. On 1 July 2004, the eligibility provisions changed. Section 1218AA provides that an unlimited period of portability would be retained if all of the following circumstances exist:
(a)The person is severely disabled; and
(b)The person is receiving disability support pension; and
(c)The person is terminally ill; and
(d)The person’s absence from Australia is or will be permanent; and
(e)The purpose of the person’s absence is to be with or near a family member of the person or to return to the person’s country of origin.
The above circumstances exist for both of the above Applicants, except for section 1218AA(1)(c) – that the Applicants are not terminally ill. The Applicant, Mr Aguilar-Trejo admitted he was not terminally ill in the context of having a diagnosed terminal illness.
32. The fundamental question therefore is whether the Applicants have a right which preserves the entitlement existing before 1 July 2004.
33. In interpreting the statutory amendments, they must be read within the statutory context within which they are described (Gidaro v Secretary, Department of Social Security (1998) 154 ALR 550 at 561; see also CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408).
34. The question is whether the Applicants have a right or an extension of their entitlement. Ordinarily, if a right exists, section 8 of the Acts Interpretation Act 1901 (Cth) would have application:
“Effect of repeal
Where an Act repeals in whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
(d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
35. In a similar case, it was held by Senior Member MD Allen that the Applicant had an “entitlement” and not a “right”. See Makris and Secretary, Department of Family and Community Services [2005] AATA 375. In that decision the Applicant was held to have an entitlement to 13 weeks portability only.
36. However, under section 8 of the Acts Interpretation Act 1901(Cth) if there is an entitlement or right, it might be expected to continue, “…. unless by contrary intention appears”. Whether a contrary intention appears is sometimes elusive. In fact, intention in a legislative document has been regarded as a “very slippery phrase” (Salamon v Salamon and Co Limited (1897) AC 22 at page 38 per Lord Watson). But the approach to interpreting a statute has of more recent times adopted a purposive approach to statutory interpretation. This is demonstrated by the inclusion of section 15AA of the Acts Interpretation Act 1901 (Cth) which provides:
“Regard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. “
37. This amendment followed the High Court decision of Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation(1981) 147 CLR 297. That section has also been the subject of judicial comment in the Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at page 384, where a majority of the High Court of Australia said:
“..the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of the legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
38. Therefore, does a contrary intention appear from the legislative amendment? Firstly, any saving provision would attach only to a “right”. However, as indicated in Makris v Secretary, Department of Family and Community Services, the Applicants had an “entitlement” to approach Centrelink that was not a “right” within the meaning of section 8 of the Acts Interpretation Act 1901 (Cth) (see also Director of Public Works v Ho Po Sang (1961) AC 901 and Robertson v City of Nunawading (1973) [VR 819]. In those cases it was held that there was no accrued “right” within the meaning of the Acts Interpretation Act 1901 (Cth). The approach adopted in Makris and Secretary, Department of Family and Community Services (supra) is consistent with the Full Federal Court decision in JR Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717. At page 719 Fox J said:
“it is not possible to define an ‘accrued right’, anymore than it is a ‘right’, but the notion which underlies the latter when dealing with the present type of problem is that there is something in the nature of a cause of action which has arisen, was claimed to have arisen, before the repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending act to affect the situation adversely”.
39. In Makris v Secretary, Department of Family and Community Services, Senior Member Allen held that a contrary intention appeared in the amending legislation. For example, Clause 20(1) of Schedule 6 shows that the amendments are to apply in relation to absences from Australia commencing on or after the commencement of that Schedule, that is 1 July 2004. He held that that evinces an intention to displace any effect which section 8 of the Acts Interpretation Act 1991 (Cth) might have. The Applicant also had been in Australia from 1989 to 2001 and spent some high school and TAFE college education in Australia. It appears he had some understanding that the rules were to change as he rang Centrelink from El Salvador. He also made a number of other contacts with Centrelink prior to 1 July 2004.
40. Whilst the Applicants have had a number of unfortunate occurrences in their lives and suffer from mental health conditions, they nevertheless have not demonstrated that there is any legislative provision which entitles them to a continuation of their entitlements to Disability Support Pension if they return to El Salvador. As submitted by the Respondent, Clause 135(1) of the amending legislation has no application in favour of the Applicants in this case.
41. In the circumstances, the decision of the original decision-maker and of the SSAT is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr. K.S. Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 29 June 2005
Date of Decision 3 August 2005
The Applicants appeared in person
For the Respondent Ms C Heffner, Departmental Advocate
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