Akram Korkes and Secretary, Department of Social Services
[2013] AATA 903
[2013] AATA 903
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5447
Re
Akram Korkes
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 20 November 2013 Date of written reasons 18 December 2013 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
Social Security – disability support pension – New Zealand citizen – failure to satisfy residential qualifications – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (International Agreements) Act 1999
Social Security (Tables for the assessment of work related impairment for disability support pension) Determination 2011
REASONS FOR DECISION
Miss E A Shanahan, Member
18 December 2013
Mr Korkes is a citizen of New Zealand, citizenship having been granted with effect from 28 June 2006. He arrived in Australia with the intention of remaining in this country on 24 November 2011. He has subsequently lodged two claims for payment of the disability support pension (DSP). The first of these was made on 20 December 2011. This claim was rejected by a delegate of Centrelink on 20 January 2012 as Mr Korkes did not satisfy the residency rules for DSP. On 3 February 2012 a Centrelink authorised review officer (ARO) advised Mr Korkes that the original decision had been affirmed. Mr Korkes sought review of this decision by the Social Security Appeals Tribunal (SSAT) the review taking place on 13 March 2012. The SSAT affirmed the decision under review on the grounds that Mr Korkes did not meet the residency qualification requirements for the DSP.
A further claim for the DSP was lodged by Mr Korkes on 11 July 2012. The claim was again rejected. Another review was undertaken by an ARO who affirmed the primary decision. Once more Mr Korkes applied to the SSAT for review, this application being lodged on 24 August 2012. On 9 November 2012 the SSAT affirmed the decision under review on the basis that Mr Korkes’ medical condition was not fully diagnosed, treated and stabilised and therefore did not attract an impairment rating. Mr Korkes lodged an application for further review by the Administrative Appeals Tribunal on 3 December 2012.
Mr Akram Korkes attended the hearing in the company of his brother Kosh Korkes who is his Centrelink approved nominee. Mr Korkes was self-represented or more correctly was represented by his brother Kosh. Ms Ailsa Bramley an advocate with Department of Human Services represented the Secretary, Social Services (the Secretary). The Tribunal was ably assisted by an interpreter in the Assyrian language and the Tribunal was provided, in accordance with s 37A of the Administrative Appeals Tribunal Act 1975, with the documentation known as the T-documents. These have been admitted into evidence and assigned exhibit notation of R1. Mr Korkes tendered a report from Dr Samir Ibrahim a consultant psychiatrist (Exhibit A1).
BACKGROUND TO THE APPLICATION
Mr Akram Korkes was born on 4 July 1961 in a small village in Iraq. He has never attended school there being no such establishment in his village, nor has he had any formal education in his later years. At the age of 19 (1980) Mr Korkes became a soldier in the Iraqi army. Details of his army service are unknown as is the duration of his service. The International Committee of the Red Cross have provided certification that Mr Akram Korkes, then known as Akram Gorgis, was registered by them in the Kingdom of Saudi Arabia on 14 March 1991 and repatriated to Iraq on 10 April 1991, in the presence of the Red Cross (T-doc 23, p96). Mr Akram Korkes is said to have resided in Jordan from 1991 until he migrated to New Zealand.
Mr Kosh Korkes had migrated to New Zealand in 1992 and subsequently assisted the migration of his parents, sister and Mr Akram Korkes. Three female siblings are residents in Australia but the duration of their residence is unknown.
When Mr Akram Korkes arrived in New Zealand his brother Kosh realised he was not well and sought medical assistance. Over a period of six months Mr Akram Korkes was investigated and treated in New Zealand. A definitive diagnosis of grand mal or tonic/clonic epilepsy was made. In the early phases of treatment Mr Akram Korkes was required to have weekly blood tests presumably to measure the level of his antiepileptic medications. The details of Mr Akram Korkes’ investigations and treatment in the year 2000 have not been obtained from the New Zealand authorities.
Mr Akram Korkes received income support payment throughout his time in New Zealand he having been medically certified as unfit for any work. As previously stated he became a New Zealand citizen on 26 June 2006 and on 30 March 2010 qualified for the New Zealand invalid benefit. This invalid benefit was cancelled on 15 December 2012 as Mr Korkes was then residing in Australia.
The Secretary has requested the medical information on which Mr Korkes’ qualification for this invalid benefit was based but it has not been provided by the New Zealand authorities.
Dr Simon Garlick, Mr Akram Korkes general practitioner in New Zealand has provided his patient medical record regarding Mr Korkes. Mr Korkes was a patient of Dr Garlick from 21 September 2010 until 13 September 2011. (T-doc 4). Throughout that period Mr Akram Korkes was treated with three antiepileptic medications namely Tegretol, Epilim and Clonazepam for his epilepsy and Atorvastatin for hypercholesterolaemia. Throughout this 12 month period there are no reports of any seizures occurring, Mr Korkes’ attendance were predominantly for repeat prescriptions and minor illnesses such as blocked ears and otitis externa, checking of his blood pressure and advice regarding diet and cessation of smoking. Dr Garlick regularly monitored Mr Akram Korkes his liver and renal function and the levels of his anti-epileptic drugs. Dr Garlick frequently used the services of a telephone interpreter service to obtain the clinical history from Mr Korkes. As of 5 September 2011 Mr Korkes was smoking 20 cigarettes per day but endeavouring to reduce his consumption with the use of nicotine lozenges.
Since his arrival in Australia, Mr Akram Korkes has attended a general practice in Broadmeadows where his general practitioner is Dr Basim Francis. Dr Francis provided the treating doctor medical report accompanying both applications made by Mr Korkes for DSP. In the first of these reports dated 23 December 2011 Dr Francis stated that Mr Akram Korkes suffers from epileptic fits/seizures and has done so for 30 years having suffered a head injury requiring surgery during his Iraqi Army service. As a result of this condition Dr Francis stated Mr Korkes required support in activities of daily living and that this condition was likely to remain stable or deteriorate and impact on Mr Korkes ability to function for more than 24 months.
Mr Korkes was also said to suffer from depression and anxiety as evidenced by Flat mood, tiredness, poor sleep. These symptoms were said to being treated by Counselling and Clonazepam. The condition was considered stable; it interferred with Mr Korkes’ functioning and would persist for more than 24 months. Other conditions which were said to be well managed and cause minimal impact on functional ability were listed as Hypercholesterolemia treated with Atorvastatin.
Dr Francis second medical report which accompanied Mr Akram Korkes’ claim for DSP dated 11 July 2012 differs in that there is no reference to the epilepsy being diagnosed in 1981. It states that it is poorly controlled and that Mr Korkes suffers frequent seizures despite maintaining and complying with all medications. In this report the impact on functional ability is said to affect his communication, cognitive function and ability to self-care. Mr Korkes is described as having moderate to severe depression and in addition to earlier described symptoms poor concentration.
Dr Francis stated that he was planning to refer Mr Korkes to a psychologist. The other medical conditions that were well managed and not impacting on functional ability were listed as being Hypertension, Hypercholesterolemia, back pain and pilonidal sinus. The first three of these were well controlled and the pilonidal sinus was to be treated surgically. (T-doc 14)
On 20 May 2012 Mr Korkes was admitted to the Northern Hospital where he was diagnosed with Vestibular Neuritis. The Tribunal presumes he presented with dizziness and unsteady gait. The discharge summary states that his epilepsy was diagnosed in the 1980s and followed an acute brain injury sustained during his war service in Iraq. His last seizure was said to have occurred five months previously. He was also said to have suffered intellectual impairment for the past 5-10 years. In hospital Mr Korkes was found to be suffering from chronic hyponatremia which was considered to be secondary to his anti-epileptic drugs. Hyponatremia is an adverse reaction in several of these medications. Mr Korkes underwent an MRI brain scan which ruled out any cerebrovascular cause or cerebellar lesion but did show chronic small vessel disease. He was prescribed Stemetil to control his dizziness and referred to a neurologist.
On 23 July 2012 he was seen by Dr Jorge Zavala, consultant neurologist, at the Outpatient Clinic of the Broadmeadows Health Service. In his report of 27 July 2012 Dr Zavala noted that Mr Korkes had run out of medications due to his financial state and was most anxious that he would have more seizures. Dr Zavala thought that Mr Korkes’ presentation to the Northern Hospital with presumably dizziness had been related to hyponatremia which had been caused by his antiepileptic medication. At this time Mr Korkes was unable to state when he had last had a seizure. All medications were continued and Mr Korkes was to be reviewed with an interpreter in six months’ time.
Dr Devan Gya, a general surgeon, saw Mr Korkes on 18 June 2012 and confirmed the presence of a recurrent pilonidal sinus. Surgical excision was recommended and Mr Korkes was placed on the waiting list for surgery. (T-doc 16, p80).
Mr Korkes has provided a medical report from the Ministry of Health of Iraq dated 13 June 2000 but referring to a decision of the permanent medical panel made on 19 March 1995. This states that:
... after doing a clinical examination on Mr AKRAM YOUKHNA KORKES and looking at his pathological tests and scans, the permanent medical panel decided the following:-
That Mr AKRAM YOUKHNA KORKES, is fit and has no physical disabilities or contagious diseases.
The document is signed by three named medical practitioners.
Dr Francis provided Mr Akram Korkes with two letters that were presented to the SSAT hearing of 9 November 2012. The first of these dated 31 October 2012 states:
This is to certify that Mr.Akram Korkes is my patient.He is suffering from eplepsy , (sic) Dizziness, vertigo , diplopia and unable to walk properly.He is unable to site (sic) in public transport & walk for long time. [formatting as per letter]
In the second letter Dr Francis states:
This is to certify that Mr.Akram Korkes is my patient.He is suffering from epilepsy for long time. The reason of this epilepsy is unknow .(sic)What was mention at his medical disability pension application it was depend (sic) on what the patient and his brother’s told me. [formatting as per letter]
Dr Samir Ibrahim a consultant psychiatrist provided a very short report to a senior lawyer at Victorian Legal Aid. He had apparently seen and assessed Mr Akram Korkes. In his report he states that:
1.Mr Korkes is described to have suffered intellectual disability which is a lifelong condition and has no treatment. ...
He referred to Mr Korkes’ epilepsy but did not comment further as this was not his field of expertise. (Exhibit A1)
Throughout hearing of this matter Mr Akram Korkes remained totally impassive and unresponsive. He had not emotional affect and did not respond to any questions posed to him through the interpreter. All questions were answered by his brother Mr Kosh Korkes.
Mr Kosh Korkes explained that his brother Akram required constant care and that he Kosh, was the only one able to provide such supervision. Both he, his brother and their sister, in whose garage they live, are financially stressed and not able to purchase enough food. He stated that Akram beats himself up. In answer to a question from the Tribunal Mr Kosh Korkes informed us that his brother had ceased smoking some eight months ago. Kosh Korkes explained the conflicting evidence his brother Akram had given at the first SSAT hearing regarding the onset of his epilepsy in 1980 as being due to his brother’s inability to recall passed events and his practice of relating every event into his life to the time when he joined the Iraq army. According to Mr Kosh Korkes his brother, did not suffer a head injury during his service in the Iraqi army and was in perfect health when he joined the army at the age of 19.
Mr Kosh Korkes had attended the consultation with Dr Ibrahim the psychiatrist and had challenged Dr Ibrahim’s suggestion that Akram had a congenital intellectual defect as he had been normal prior to Army service.
The Korkes’ cousin Mr Odisho who was present in the hearing room confirmed that Mr Akram Korkes had not shown any evidence of congenital intellectual defect.
ORAL EVIDENCE BEFORE THE TRIBUNAL
The evidence as provided by Mr Kosh Korkes has been summarised under BACKGROUND TO THE APPLICATION.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Job Capacity Assessments (JCA)
Mr Korkes has undergone two Job Capacity Assessments (JCA) since his arrival in Australia. On 19 January 2012 the assessment was performed by Ms Kathleen Ager who is a registered psychologist. The interview was conducted with the assistance of an interpreter in the Assyrian language. The interview requirements were stated to be to determine whether Mr Korkes was:
‘Severely Disabled’ assessment required for DSP under NZ Agreement. A work capacity of 0-7hrs per week is required for DSP qualification under the agreement. (T-doc 7)
The medical conditions considered by Ms Ager were epilepsy (tonic-clonic), depression and anxiety secondary to the epilepsy and hypercholesterolemia. The assessment was based on the reports of the treating general practitioner Dr Basim Francis and presumably the medical history provided by the applicant and his brother Kosh Korkes.
Mr Akram Korkes’ epilepsy was found to have an onset in 1980 possibly following a head injury and was described as resulting in up to five seizures per day with complete loss of consciousness and bladder evacuation. Mr Korkes’ depression and anxiety was said to be treated and fully stabilised and unlikely to improve although it could fluctuate. The hypercholesterolemia was considered to be fully diagnosed, treated and stabilised but did not contribute to any functional impairment. Based on these findings Ms Ager recommended a rating of 40 impairment points for the epilepsy and 10 points for the depression and anxiety.
Mr Akram Korkes was accessed as having 0-7 hour per week baseline work capacity that would not improve with intervention. Ms Ager recommended social work intervention and assistance from the Epilepsy Foundation.
The second JCA was performed on 9 August 2012 by a registered psychologist (Anne Tricia) and a physiotherapist identified Annette. On this occasion as well as relying on Dr Francis’ reports they contacted him by telephone to discuss Mr Korkes. On this occasion Mr Akram Korkes’ epilepsy was considered to be fully diagnosed but not fully treated and stabilised, Dr Francis having advised that Mr Korkes was compliant with his anticonvulsant medication therapy. Similarly, Mr Korkes’ depression was not considered fully treated and stabilised as he had not been seen by a psychiatrist or a clinical psychologist.
The conditions of hypercholesterolemia, hypertension, low back pain and pilonidal sinus were considered to be permanent but not impacting on function with the exception of pilonidal sinus which was considered temporary and awaiting surgical correction. The assessors proceeded to consider the condition of traumatic brain injury which it had been suggested Mr Korkes had suffered during his service in the Iraqi army in 1980 or 1981. Following a telephone conversation with Dr Francis this acquired brain injury was considered to be fully diagnosed, treated and stabilised. Dr Francis had informed the assessors that an MRI scan of Mr Korkes’ brain had shown an acute stroke/cerebellar lesion with chronic small vessel ischaemic changes. This was predicted by Dr Francis to remain stable without any improvement within two years.
The assessors also recorded that Mr Akram Korkes’ level of education was to year six. An assessment of 20 impairment points was recommended for the supposed traumatic brain injury and Mr Akram Korkes’ work capacity was considered to be 0-7 hours per week with no likelihood of improvement in the future.
Correspondence between Centrelink (International Agreements) and the corresponding New Zealand authorities
The email communications provided to the Tribunal indicate that the Australian authorities were investigating whether or not Mr Akram Korkes met the definition of severely disabled. Apparently the New Zealand authorities had rejected a claim for New Zealand invalid benefit on 15 February 2012, the reason for the rejection being that any severe disablement had occurred in a third country (Iraq) in 1980. The communications are concerned with the actual date of this disablement and whether it was as recorded in the New Zealand data as the 1/1/1980 or whether it should be 31/12/1980. Eventually it was determined that the date both countries would use for Mr Korkes’ onset of severe disablement was 31 December 1980.
While further information has been sought from the New Zealand authorities it has not been forthcoming.
RELEVANT LEGISLATION
Section 94 of the Social Security Act 1991 (the Act) detail the qualification for DSP as follows:
(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; 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
(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; and ...
Section 94 subsections dealing with continuing inability to work and program of support are not applicable in this matter.
Subsection 7(2) of the Act provides the definition of an Australian resident as follows:
(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.
Note:For holder and permanent visa see subsection (1).
Subsection 7(2A) to 7(2F) define the term SVC which stands for a Special Category Visa holder as it relates to refugees or former refugees and are not relevant to Mr Akram Korkes’ application, that is he is not a refugee or former refugee nor in a class of permanent visas giving refugee status.
Section 6 of the Social Security (International Agreements) Act 1999 (International Agreements Act) provides:
6Overriding of social security law by scheduled international social security agreements
(1)The provisions of a scheduled international social security agreement have effect despite anything in the social security law.
(2)Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law. ...
Schedule 3 to the International Agreements Act provides for the agreement between New Zealand and Australia. Article 2 of the Agreement states:
...
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 of the Agreement defines severely disabled as:
(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 ...
Section 23(4B) of the Act defines severely disabled as:
(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.
this is the same as the definition in the Agreement.
The Guide to social security law defines severely disabled as:
Definition
A recipient is accepted as being severely disabled if their impairment prevents them from:
·doing any work for 8 hours a week or more for the next 2 years, and
·benefiting from training, education or rehabilitation to the extent of being able to work at least 8 hours a week.
Note: Recipients who have been accepted as having a manifest inability to work are not necessarily severely disabled. The critical matter is the severity of the condition.
Example: Recipients may be accepted as being severely disabled without a medical examination if they have:
·a terminal illness such as AIDS (group IV HIV infection),
·severe degenerative neurological conditions, or
·severe disabilities as a result of head injuries.
Recipients who receive a special rate disability pension from DVA because of blindness or total and permanent incapacity for work are accepted as being severely disabled.
SUBMISSIONS
Mr Akram Korkes, through his nominee Mr Kosh Korkes, did not make any final submissions. Ms Bramley on behalf of the Secretary contended that Mr Akram Korkes did not satisfy the requirements for residency in Australia or Article 2 of the International Agreement in that he had not been resident in a territory of either Australia or New Zealand for a period of not less than one year prior to the date of disablement, be it severe or not, and additionally he did not satisfy s 94(1B) of the Act in terms of an impairment rating of 20 points based on the medical evidence provided.
TRIBUNAL’S DELIBERATIONS
Mr Akram Korkes’ application for review by this Tribunal relates to the decision of the SSAT of 9 November 2012. In that decision the SSAT concluded that:
... those impairments of Mr Korkes’ which might impair functional capacity were not fully diagnosed, treated and stabilised at the time of his July 2012 for disability support pension and, therefore, cannot be given a rating under the Impairment Tables. Accordingly, he is not qualified to receive disability support pension under section 94 of the Act, and cannot be said to be severely disabled for the purpose of determining whether he is residentially qualified on the basis of the international agreement between Australia and New Zealand.
The earlier decision of the SSAT dated 13 March 2012 was determined solely on Mr Korkes’ residency qualifications. On this occasion Mr Akram Korkes’ gave evidence himself to the effect that he had had epilepsy since childhood and had suffered a traumatic head injury whilst in the Iraqi army in 1980 following which his epilepsy worsened. The Tribunal notes that on this occasion Mr Korkes described his head injury as occurring in 1991 following which he was discharged from the army but remained in the army reserve. The Tribunal determined that Mr Korkes was not an Australian citizen, did not hold a permanent residence visa and was not a protected SCV holder. Article 2 of the International Agreement limits claims for DSP to a person who is severely disabled and was a resident of either Australia or New Zealand at the time that they became severely disabled. As Mr Akram Korkes’ evidence was that his significant medical impairment occurred in about 1991 when he was then resident in Iraq he did not meet the requirements in terms of either the International Agreement or the Australian residency requirements for DSP.
For the benefit of the applicant this Tribunal will consider the s 94 requirements for qualification for DSP both in terms of his medical conditions and his residency qualifications.
The medical evidence is both contradictory and incomplete. Mr Akram Korkes suffers from grand mal epilepsy, this diagnosis having been made in New Zealand within six months of his arrival on 2 March 2000. Appropriate antiepileptic treatment had been prescribed and the serum levels of these drugs were appropriately monitored. Dr Garlicks’ clinical records over a 12 month period from September 2010 to September 2011 indicate that Mr Korkes’ seizure control was excellent.
The Tribunal accepts the seizure frequency experienced by Mr Akram Korkes increased after his arrival in Australia on 24 November 2011 as his financial status did not always permit him to purchase the antiepileptic drugs as prescribed. The frequency of these seizures is unclear being variously described as up to five per day (JCA Report of 19/1/12, T-doc 7) or one to two per year (T-doc 6) but without continuous medication such seizures would increase in frequency.
The etiology of Mr Akram Korkes’ epilepsy is also unclear. On his evidence to the SSAT on 13 March 2012 it had been present since childhood and was exacerbated by a head injury and subsequent surgery sustained in Iraq in either 1980, 1981 or 1991. Mr Kosh Korkes, Akram’s brother and nominee, states there was never a head injury sustained and this appears to be supported by the International Red Cross report of 15 April 1997 which does not mention such an injury (T-doc 23) and that of the Permanent Medical Panel in Risafa who clinically examined and assessed the results of pathology tests and scans performed on Mr Akram Korkes on 19 March 1995(T-doc 22). Mr Kosh Korkes contended his brother would not have been accepted in the Iraqi army in 1980 had his epilepsy been present from childhood.
With the exception of Dr Garlick none of the reporting practitioners have provided any of their findings on physical examination on Mr Akram Korkes. If, as he stated to the SSAT, he had undergone surgery in relation to such a head injury a scar would be readily detectable on physical examination.
Mr Akram Korkes’ epilepsy was fully diagnosed, treated and stabilised while he resided in New Zealand but has not been stabilised in Australia, primarily due to poor access to medication.
Mr Kosh Korkes said his brother Akram is depressed however there is no medical opinion to support this diagnosis. Dr Francis in his letter of 7 November 2012 (T‑doc 21) said that his treating doctor reports which accompanied the Centrelink claims for the DSP were based on what Akram and Kosh Korkes had told him rather than any assessment he had made himself.
The psychiatrist Dr Ibrahim has diagnosed a severe congenital intellectual disability in Mr Akram Korkes but does not indicate why he has reached this diagnosis and despite being informed by Kosh Korkes that his brother had been normal until the time of his enlistment in the Iraqi army. No complete assessment of Mr Akram Korkes’ psychiatric status has been provided to the Tribunal.
The JCA contacted Dr Francis on 9 August 2012 to discuss Mr Akram Korkes and was informed that his MRI brain scan showed an acute stroke/cerebellar lesion and chronic small vessel ischemic changes (T-doc 15). The Northern Hospital medical discharge summary actually says no acute stroke/cerebellar lesion. The Tribunal assumes Dr Francis was not familiar with the resident medical officer’s use of a symbol to denote the negative. (T-doc 16). The JCA assigned an impairment rating of 20 points which was due to traumatic brain injury.
It is impossible on the medical data or lack thereof to assess whether the applicant’s epilepsy or depression is fully diagnosed, treated and stabilised. Nor is there any objective medical evidence supporting a neurological condition secondary to a traumatic brain injury.
Mr Korkes satisfies s 94(1A) of the Act in that he has documented epilepsy and possibly depression but does not satisfy s 94(1B) as no impairment rating points can be assigned in the above circumstances.
RESIDENCY QUALIFICATION
Mr Akram Korkes is neither a refugee nor a former refugee. He migrated to New Zealand in March 2000 under the sponsorship of his brother Kosh Korkes, who had himself migrated to New Zealand eight years earlier. Mr Akram Korkes became a New Zealand citizen in 2006 and entered Australia on a Category 444 Visa, this being a special category visa granted to New Zealand citizens but is not a permanent visa nor a protected visa. Mr Akram Korkes does not satisfy s 7(2)(b) definition of an Australian resident.
The International Agreements Act provides that its Social Security Agreement has effect despite anything in the social security law. Schedule 3 of the Agreement Act relates to New Zealand and paragraph 2 of Article 2, limits the payment of an Australian DSP to persons who are severely disabled. The definition of severely disabled is the same in the Agreement as that in the Social Security Act. In order to qualify the person seeking the DSP must have been resident in the territory of either New Zealand or Australia at the date of the severe disablement and have been residing in this territory for a period of not less than one year prior to the date of severe disablement.
The Australian and New Zealand authorities based on the information provided by Mr Akram Korkes have determined the date at which he became disabled as being 31 December 1980 at which time he was resident in neither country but living in Iraq. Mr Akram Korkes’ brother and sister state that this is incorrect and that while he was unwell on arrival in New Zealand in 2000, no diagnosis of a medical condition had been made. According to Mr Kosh Korkes, Mr Akram Korkes’ disability was diagnosed and his disablement confirmed six months after his arrival in New Zealand in March 2000. He therefore had not been residing in New Zealand for the required 12 months dictated by Schedule 3, Article 2 of the International Agreements Act.
Mr Akram Korkes does not satisfy the requirements of s 94(1B) or s 94(1E) of the Social Security Act nor does he satisfy the requirements of Schedule 3, Article 2 of the International Agreements Act.
The Tribunal affirms the decision under review.
Ms Bramley, who represented the Secretary, has undertaken to explore any avenues of benefit or allowance that might be open to Mr Akram Korkes in light of his impecunious state and inability to afford the necessary medication.
I certify that the preceding 59 (fifty‑nine) paragraphs are a true copy of the reasons for the decision herein of: Miss E A Shanahan, Member [sgd]........................................................................
Assistant
Dated 18 December 2013
Date of hearing 20 November2013 Date final submissions received 28 October 2013 Advocate for the Applicant Mr Kosh Korkes - Brother Advocate for the Respondent Ms Ailsa Bramley, Department of Human Services
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