Al Abody and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1088
•27 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1088
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/812
GENERAL ADMINISTRATIVE DIVISION ) Re HAMID AL ABODY Applicant
And
SECRETARY,
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date27 February 2007
PlaceMelbourne
Decision The decision under review is set aside. The Tribunal decides in substitution that the Applicant is entitled to payment of the Disability Support Pension from 9 September 2005 to 4 January 2006 in accordance with the Social Security Act 1991 as his return to Australia within the 13 week portability period was prevented by his ill health and political and social unrest in the country he visited. (sgd) E.A. Sahanahan
Member
SOCIAL SECURITY – disability support pension – portability of disability support pension – delay in return to Australia – suspension of disability support pension payments – ill health – political or social unrest in Iraq – extension of portability period – sufficiency of evidence.
Social Security Act 1991
Casarotto v Australian Postal Commission (1989)17 ALD 321
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Manolev v Secretary, Department of Family Community Services [2005] AATA 398
REASONS FOR DECISION
27 February 2007 Miss E.A. Shanahan 1. Mr Al Abody seeks a review of a decision by the Social Security Appeals Tribunal (SSAT) dated 9 August 2006. The SSAT affirmed a decision of the Delegate of the Secretary of the Department of Employment and Workplace Relations (the Respondent) dated 8 February 2006 that Mr Al Abody should not be paid the Disability Support Pension (DSP) from 9 September 2005 to 4 January 2006 as he did not qualify for the extension of the 13 week pension portability period during this time. These decisions were based on the finding that there was insufficient medical evidence to support Mr Al Abody’s claim that he was too unwell to return to Australia from Iraq until 4 January 2006.
2. Mr Al Abody was self-represented. He spoke with the assistance of an Arabic interpreter. The Respondent was represented by Mr T. Noonan, Senior Advocate of Centrelink. Centrelink is the service delivery agency for the Respondent. Mr Al Abody gave evidence before the Tribunal.
3. The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T Documents, Exhibit R1). As part of its final written submission the Respondent also provided email correspondence between Mr Noonan and Mr Hey (Deputy Manager, Centrelink International Services (CIS)) and Mr Hey and Mr G. White, (Deputy Head of Mission, Australian Embassy, Baghdad). These emails constituted Exhibit R2.
BACKGROUND TO THE APPLICATION
4. Mr Al Abody defected from the Iraqi Army of Saddam Hussein (the Army) in 1991 and sought refuge in Saudi Arabia for four years. It appears he was conscripted into the Army from school. He came to Australia in 1995 having been granted refugee status. He was subsequently diagnosed as suffering from post traumatic stress disorder (PTSD) and depression, precipitated by severe stressors he experienced in the Army. He has undergone psychiatric treatment with regular review by Dr S Ibrahim, an Arabic-speaking psychiatrist in Melbourne, since mid‑2003. Mr Al Abody has never worked in Australia and requires the assistance of his friend, Mr T. Goro, in the management of his affairs such as banking, paying his rent and dealing with Centrelink matters. On 22 October 2003 Mr Al Abody was granted the DSP. Centrelink stated that Mr Al Abody travelled to Iraq twice, in 2003 and 2004. Mr Al Abody said that he had not been back to Iraq since 1991, until his visit of June 2005. Mr Goro gave evidence to the SSAT on 13 July 2005 that Mr Al Abody had travelled to Thailand twice in 2004, for periods of four months and one month respectively, Mr Goro having arranged for Mr Al Abody to meet his elderly mother in Thailand. Attempts to bring the mother to Australia as a migrant had been unsuccessful.
5. Mr Al Abody travelled to Iraq on 10 June 2005. He flew to Syria, then travelled by road to southern Iraq, to his home village where his mother resides. This village is close to Basrah. Mr Al Abody has a sister who lives in Baghdad. Mr Al Abody returned to Australia on 4 January 2006. Centrelink suspended his DSP payments on 9 September 2005 when the 13 week DSP portability period expired (s 1217 of the Social Security Act 1991 (the Act)).
6. Mr Al Abody claimed that his failure to return by 9 September 2005 was due to two factors: a deterioration of his psychiatric condition, following an incident on 1 August 2005, which necessitated a course of treatment over several months; and the impact of the activities of the Al-Mahdi militia in southern Iraq, which limited his ability to travel.
7. The Respondent argued that Mr Al Abody had always intended to stay in Iraq longer than 13 weeks; that his psychiatric status was stable or if temporary worsened, would have been better treated in Australia: and that the claimed effects on travel, of what was essentially a civil war or insurgency, did not prevent travel. The Respondent challenged the Applicant’s credit as a witness and queried the veracity of medical reports and certificates from Iraqi doctors.
8. Mr Al Abody seeks payment of his DSP from 9 September 2005 to 3 January 2006, as he believes he meets the requirements of s 1218C(1) of the Act and in particular subsections (b), (c), (i) and (k).
ISSUES BEFORE THE TRIBUNAL
9. The issues before the Tribunal are?
(a)What were Mr Al Abody’s intentions with respect to his length of stay in Iraq?
(b)Was his return within the required period prevented by deterioration in his psychiatric condition from 1 August 2005 and the treatment deemed necessary by his Iraqi psychiatrist?
(c)Was his return date affected by the civil unrest and activities of the Al‑Mahdi militia in southern Iraq ie was travel at that time unsafe?
10. The Tribunal found Mr Al Abody to be a witness of credit. The Tribunal also found that the combination of his ill health (namely the exacerbation of his previously diagnosed, relatively stabilised and treated PTSD and the course of treatment recommended by his psychiatrist in Iraq) and the civilian unrest and militia activities in Iraq at the time, prevented Mr Al Abody’s return to Australia within the 13 week portability period. As a result of these findings, the Tribunal decides to extend Mr Al Abody’s period of portability from 9 September 2005 to 4 January 2006, in accordance with s 1218C(1) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Mr Al Abody
11. Mr Noonan cross-examined Mr Al Abody regarding his intentions, prior to his departure, with respect to the time he planned to stay in Iraq. The Centrelink documentation indicated that he wished to visit his sick mother for a period of three to six months (T4, p24). Mr Al Abody said that, prior to his departure, he had been uncertain of the time he would stay in Iraq. Initially he thought it would be for one month. His uncertainty was due to the fact that he had not been in Iraq since 1991 and did not know what the country would be like in 2005. A Centrelink Officer had advised him to tick the three to six months box on the form as the maximum portability payment was 13 weeks and the alternative box was less than three months. Mr Al Abody confirmed that he knew the maximum portability period was 13 weeks or three months, and had been advised of this by letter from Centrelink on 10 May 2005. Mr Al Abody had enquired about conditions in Iraq before he left Australia and was told the area in the south, near Basrah was quiet. The purpose of this visit was to see his mother who was said to be ill with respiratory and cardiac problems, his sister who lived in Baghdad and other, more distant, relatives. When he arrived in Iraq he found the situation was such that it was difficult to leave his village and move around the country, primarily due to the activities of the Al‑Mahdi militia in the south in mid-2005.
12. Mr Noonan pointed out that at the SSAT hearing on 7 June 2006 (T2, p6) Mr Al Abody had stated that he would return to Iraq if he could raise the money to finance the visit. Mr Al Abody agreed that he had given such evidence but he would not go in light of the current situation and the increased incidence of kidnapping for ransom of persons from western countries. He said his mother’s respiratory condition had improved since she stopped smoking; but she still suffered from cardiac disease, attended the hospital out-patient clinic regularly and took tablets daily. To his knowledge the Al-Mahdi militia remained active in southern Iraq and actively recruited young Shiite Iraqis, by payment. Mr Al Abody said he had not told the SSAT of the Al-Mahdi activities and presence in southern Iraq as the SSAT Members had confined the questions to his state of health.
13. Mr Al Abody described the symptoms of his PTSD as poor sleep, nightmares, suicidal thoughts, purposelessness and a feeling he had no future. He was seeing his Australian psychiatrist regularly and taking his tablets, the name of which he could not recall. His symptoms had been stable until 1 August 2005 when he witnessed a terrorist car bomb explosion in Baghdad. He estimated he was 120 metres from the car and saw the bodies of the people killed in this explosion. He believed that had the distance been less than 120 metres he too would have been killed. On witnessing this incident he fainted and was subsequently taken by relatives and friends to the Al Kut General Hospital where he was admitted, investigated and treated for three days. Following this incident his psychiatric symptoms accelerated and he experienced reliving of the incident. He continues to experience palpitations, a tremor and violent behaviour not present previously.
14. Mr Al Abody told the Tribunal he saw Dr B Sadiq, a psychiatrist, in his out-patient clinic at the Al Kut Hospital on 4 August 2005; but he insisted that Dr Sadiq also saw him while he was an in-patient on 1 August to 3 August and that he was given an injection during his in-patient stay on Dr Sadiq’s orders. He had then seen Dr Sadiq on five more occasions on an out-patient basis and on two further occasions had been given intra-muscular injections. The Tribunal noted these injections were given on 1 August 2005, 21 September 2005 and 22 November 2005, although the Respondent interpreted the evidence as the injections had been given on 1 August 2005, 21 September 2005 and 4 October 2005.
15. Mr Al Abody says he was told the treatment he was receiving was new and necessitated a course of injections over three or more months. He was also told the injections could give him the shakes. This they did. After each injection he said he had uncontrollable shaking differing from his usual tremor. The shaking abated after a few days. Mr Al Abody could not provide the name of the injected medication. The Tribunal asked this question as it was aware of the extrapyramidal side-effects of many anti-psychotic drugs given parenterally.
16. Mr Al Abody corrected the evidence given at the SSAT hearing of 9 August 2006, which recorded that he had seen Dr Sadiq every three days. Mr Al Abody explained that the interpreter provided at the SSAT hearing was a Kurd, originally from the north of Iraq, who spoke a different dialect to Mr Al Abody. Mr Al Abody said he corrected the interpreter at the time and the interpreter had later apologised to him. The interval between appointments with Dr Sadiq, to Mr Al Abody’s recollection, was three weeks, not three days.
17. Mr Al Abody stated he saw Dr Mansour in an out-patient clinic on one occasion only, 1 September 2005. Centrelink had required him to provide a medical certificate. He had travelled to Al Hayy, the nearest medical facility to his village, to obtain a certificate. It had been too dangerous to travel to see Dr Sadiq in Al Kut.
18. Mr Al Abody agreed he felt better after the three injections and although Dr Sadiq wanted him to stay for further treatment after 22 November 2005, Mr Al Abody took the first opportunity to return to Australia.
19. Mr Al Abody described his mother’s health problems and informed the Tribunal that her lung problems had improved following cessation of smoking. While his mother was happier while he was there, her health had no impact on the duration of his stay in Iraq.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Centrelink Documentation
20. The T Documents contain printouts of relevant Centrelink computer records indicating that Mr Al Abody contacted Centrelink by telephone on 29 April 2005 regarding his DSP and its portability (T4, p23). It is recorded that he wished to stay overseas for longer than 13 weeks and was told to visit the Centrelink office to apply for more than 13 weeks portability. He was also advised that such an application will be rejected as this is the Legislation. Appeal procedures were explained.
21. On 10 May 2005 (T7, p27) a Centrelink Officer recorded that Mr Al Abody was leaving Australia on 30 May 2005 and would return between 29 August 2005 and 28 November 2005. This entry states that Mr Al Abody’s DSP entitlement would not be paid after 29 August 2005 if he had not returned to Australia by that date. Mr Al Abody was informed of this decision by letter dated 10 May 2005 (T8, p28). This letter outlined the available review processes including seeking review by the SSAT. It does not mention the legislative change to pension portability which became effective on 1 July 2004.
22. Mr Al Abody lodged an application for review of this decision on 13 May 2005, with a supporting letter from his psychiatrist Dr Ibrahim dated 21 April 2005. The SSAT heard the application on 13 July 2005. As Mr Al Abody had left for Iraq on 10 June 2005, he was represented at the hearing by a friend, Mr Thamer Goro. The SSAT affirmed the Centrelink decision. Mr Goro’s evidence however, does provide information that in 2004 Mr Al Abody travelled to Thailand twice and on the first occasion was re-united with his mother for a period of approximately four months and on the second occasion visited by himself for a period of one month. Mr Goro thought Mr Al Abody’s intended stay in Iraq was for six months but he had lost contact with Mr Al Abody since he had arrived in Iraq. Mr Goro confirmed that he looked after Mr Al Abody’s financial affairs and dealt with his mail.
23. Dr Ibrahim’s letter (T12, p34) stated he was the treating psychiatrist, treating Mr Al Abody for PTSD arising from atrocities witnessed in Iraq under Saddam Hussein’s regime. Dr Ibrahim supported Mr Al Abody’s application to travel to Iraq to see his mother as this visit may have a therapeutic effect.
24. On 29 August 2005 Centrelink informed Mr Al Abody by letter to his Melbourne address that his DSP payments would be suspended from 8 September 2005 as he had not returned to Australia.
25. On 8 September 2005 Mr Al Abody’s nominee (presumably Mr Goro) telephoned Centrelink to enquire as to why the DSP payment had been suspended and was informed that the 13 week portability period had expired (T20, p54). On 13 September 2005 the nominee informed Centrelink that Mr Al Abody was in hospital and not fit to return. The nominee was advised to obtain medical reports and send them to Centrelink International Services (CIS) (T21, p55).
26. A medical report dated 11 September 2005 (T23, p57) from a Dr Matheel Alwan Mansour was received by CIS on 23 September 2005. Dr Mansour’s address is given as Ministry of Health, Al Hayy General Hospital. The report states:
MR HAMID AL ABODY 40 years man. Admitted to AL Hayy General Hospital at 1st. September complaining from psychiatric upsets (obsessive symptoms and hypo chondriasis), he needs long period of time to still in hospital under direct supervision of his doctor (more than 6 months). (sic)
27. The CIS Delegate suspected that the report was concocted because of the border around the edge of the document, the absence of an address and telephone number and because the typing and spacing are not what you would expect from a real hospital (T24, p58). An internet search by the Delegate had failed to locate the Al Hayy General Hospital. On this basis Mr Al Abody’s request for an extension of his DSP payments for six months was rejected. A letter advising him of the decision was sent to his Melbourne address on 26 September 2005.
28. Mr Al Abody’s nominee (presumably Mr Goro) contacted Centrelink by telephone on 29 September 2005. (Tribunal Note: This entry is somewhat confusing as the Centrelink officer refers at times to the Nom (Nominee) and at times to the Cus (Customer) in recording the telephone conversation). The officer requested detailed medical evidence and said that Centrelink would need to speak to the doctor by telephone (T26, p62).
29. On 12 October 2005 CIS received a faxed certificate/report from Dr Sadiq, the psychiatrist. Dr Sadiq provided a telephone number, a fax number and an email address. The certificate dated 6 October 2005 states:
…
To Whom It My Concern
This is to certify that the above mentioned has attended my clinic the first time on 4th of August 2005. He presented with hyperarousal symptom clusters, voidance lnumbing and reexperiencing the stressful events and their temporal sequence relative to the trauma. My assessment-included functional components, determining the availability of basic case resources e.g. safe housing, social support network including family and parental status with companion care. Plus identifying previous traumatic experience and comorbid psychiatric disorder. He was found to be suffering from depression – Anxiety in addition to he P.T.S.D. and ASD he developed when he returned back to IRAQ- Kut and engaged in the tired aging mother.
I started him with one of the SSRI plus alprazolam in tolerable doses. Besides, and as part of the supportive therapy I suggest to postpone his return to AUSTRALIA for at least six month, to control other difficulties he is already sustaing.
This report was given to him upon his request… (sic)
30. The CIS considered that this certificate may or may not be real as there is a Kut Hospital in Iraq, but there was no evidence that Mr Al Abody had been hospitalised. (Tribunal Note: There is nothing in the T Documents to indicate CIS tried to contact Dr Sadiq despite the provision of his telephone number, fax number and email address.
31. Mr Al Abody’s nominee sought a review of the decision by an Authorised Review Officer (ARO) on 14 October 2005. Mr Goko (sic) is reported as saying that Mr Al Abody was still in hospital and that his mother had died in early October 2005. Centrelink requested further medical evidence and in the interim suspended review by the ARO (T30, p68).
32. As a result of the suspension of Mr Al Abody’s DSP, Mr Goro was unable to pay Mr Al Abody’s rent and an Eviction Order was issued and a claim made for unpaid rent on 3 January 2006. This matter was to be heard by the Victorian Civil and Administrative Tribunal on 24 January 2006. The hearing was adjourned to a later date due to Mr Al Abody’s non-appearance.
33. Mr Al Abody returned to Australia on 4 January 2006 and notified Centrelink of his return on 5 January 2006. His DSP payments were re-instituted from 4 January 2006. On 23 January 2006 Mr Al Abody formerly lodged a request for an ARO review of the decision to suspend his DSP (T33, p73) with an explanatory letter (T33, p74) and a further undated report from Dr Sadiq (T40, p91). Dr Sadiq’s letter states:
TO WHOM IT MAY CONCERN
Name: mr hamid al abody
Dob: …
This is to certify that the above mentioned was received from the medical department where he was admitted from 1st,2nd,3rd of augest 2005, being reffered from the casualty unit for having a fainingt attact after a sfressful scene (bombing), organic causes were ruled out at first, then he was seen for the first time by me on the 4th of augest. he was found to be originally suffuring from anxiety. depression which added to trauma. he was given antidepressant with a minor tranquillizer to suppress his severe anxiety. He was seen again for 6 times at these days 30\8\2005, 21\9\2005, 5\10\2005, 27\10\2005, 22\11\2005 and on the 17th of dec.2005 all for follow up and reassurance sessions. considerable improvement was achieved. the final conclusion for diagnosis was a clinical picture of post traumatic stress disorder.
finally his condition at the medical department was sever tachycardia sweating, tightness of chest, poor appetite with insomnia and poor concentration, episodic tremulousness and fear, because of continuous recollection of his extreme traumatic events.
he was given this certificate upon his request. … (sic)
SSAT HEARING AND DECISION OF 13 JULY 2005
34. Mr Al Abody’s first application for review to the SSAT, of the Centrelink decision of 10 May 2005 and the ARO decision of 6 June 2005, was heard on 13 July 2005. As Mr Al Abody had left Australia on 10 June 2005 he was represented by his nominee Mr Goro. Mr Goro thought Mr Al Abody had gone to Iraq for about six months but he had lost contact with him after his arrival in Iraq. The SSAT affirmed the decision, as Mr Al Abody did not satisfy all the criteria of s 1218AA(1) of the Act and found that Mr Al Abody was not excluded from the new legislation regarding portability of pensions as this was introduced on 1 July 2004 and he had returned from Thailand to Australia on 25 June 2004, that is five days before the legislation took effect.
SSAT DECISION OF 9 AUGUST 2006
35. Following a further application for review to the SSAT, on 9 August 2006 the SSAT affirmed the Centrelink decision of 29 August 2005 to cease payment of Mr Al Abody’s DSP and the decision of 26 September 2005 refusing an extension of payment during his absence overseas. The major points addressed at this hearing were:
·Mr Al Abody had on six occasions prior to his departure told Centrelink he wanted to go to Iraq to visit his sick mother.
·Mr Al Abody was told his mother was sick with disease in both lungs.
·Mr Al Abody’s doctor had told him he needed to stay six months because of her health. (Tribunal comment: the Tribunal queries if it was not Mr Al Abody’s mother’s doctor who said he needed to stay for six months)
·Mr Goro did not know of Mr Al Abody’s need to stay for six months prior to Mr Al Abody’s departure and only became aware of this after Mr Al Abody relayed the advice he received from his mother’s doctor.
·Mr Al Abody claimed Mr Goro’s Arabic was not good and he did not speak his dialect. For example, Mr Goro misunderstood the word incident for the word accident.
·The incident was the explosion of the car bomb that he witnessed while visiting his sister in Baghdad.
·Mr Al Abody was hospitalised for three days at Al Kut General Hospital after this incident and was seen by a psychiatrist. He continued to see the psychiatrist every three days for treatment and counselling until he returned to Australia.
·Mr Al Abody believed it impossible to obtain further medical information from Dr Sadiq or the hospital because of the situation in Iraq where there was no electricity, telephone or postal services.
·Mr Al Abody understood from the interpreter who assisted him in an interview with a Centrelink officer before he left Australia, that Centrelink would continue his pension portability beyond 13 weeks on humanitarian grounds.
·Mr Al Abody said he saw Dr Sadiq in his clinic on 4 August 2005 but had been seen by him a few days earlier when an in-patient in the Al Kut Hospital.
·Mr Al Abody had consulted Dr Mansour when asked to provide a medical certificate by Centrelink. He saw Dr Mansour on one occasion only to obtain the certificate. Dr Mansour (Al Hayy Hospital) was located closer to Mr Al Abody’s village than Dr Sadiq in Al Kut. It was too dangerous to travel on Iraqi roads to Al Kut.
·The last letter from Dr Sadiq had been obtained by Mr Al Abody’s sister, translated from Arabic to English and then signed by the doctor and the certificate sent directly to the SSAT.
36. The SSAT determined that Dr Mansour’s report was not reliable and therefore of no evidentiary value. In addition, all the medical certificates (addressed To Whom It May Concern) had been provided at Mr Al Abody’s request and none explained why Mr Al Abody’s medical condition prevented his return to Australia. The SSAT was not satisfied on the evidence that the accident (query incident) was serious or that Mr Al Abody suffered from a serious illness or required hospitalisation that prevented his return to Australia.
EMAIL COMMUNICATIONS WITH THE AUSTRALIAN EMBASSY IN BAGHDAD (EXHIBIT R2)
37. Prior to filing the Respondent’s submissions after the hearing, Mr Noonan, requested that CIS make enquires through the Australian Embassy in Baghdad as to the nature and extent of violence and the safety of travel in Southern Iraq in the period June 2005 to January 2006:
…
1.What was the nature and extent of violence?
2.Did that violence render it unsafe to travel in Southern Iraq and particularly depart in order to return to Australia or any and what periods of time? Were any travel restrictions in force?
3.Did the “Alamadi” (the spelling may be incorrect) troops occupy any part(s) of Southern Iraq. What role did they play? Did they contribute to the violence? … (sic)
38. The CIS conveyed this request to the Embassy on 8 January 2007. Mr Glenn White, Deputy Head of Mission, Australian Embassy in Baghdad replied:
…
Initially, you should be aware that southern Iraq is a large area with a variety of security profiles. For example the city of Basrah in the deep south has experienced serious violence, while the provinces of Al Muthanna and Al Najaf have been much more benign. However nowhere in Iraq could be considered safe.
I assume your client has indicated that a militia known as the Jaish Al-Mahdi (JAM), which is associated with radical Shi’ite cleric Moqtadr al-Sadr, made it too dangerous for him to depart Iraq at that time. The JAM have been implicated in ongoing attacks on Coalition interests as well as death squad activity in Baghdad and the predominately Shi’ite south, and other parts of Iraq. Recently, the JAM have been involved with clashes against Iraqi police and army units in the the (sic) southern town of Samawah (AL Muthanna province). The JAM is but one of several Shi’a militia operating in the country, in addition to Sunni insurgent groups and Al Qaida. Criminal activity such as kidnapping is also widespread.
You’ll appreciate it would be impossible for this embassy to be able to comment on the individual circumstances of a person’s ability to move around a particular area in southern Iraq, or indeed leave the country. All I can indicate in this regard is that commercial flights were operating out of Baghdad international airport before, during, and since the period in question, and the road border entry into Kuwait was also open. However you may want to note that Australian officials and ADF personnel do not use commercial air or road links given the potential for missile or other attack.
Clearly, air and road travel within Iraq could be considered dangerous or ill-advised. You may find the Department of Foreign Affairs and Trade’s Travel Advice (available at – follow the links to Iraq) useful in terms of forming a broader picture – the messages presented in that advice would not have altered much from late 2005/06.
Your specific questions (as best I’m able):
1) Violence has grown within Iraq since 2003, and is sectarian, political and/or criminal in nature. Some areas in the south could be considered safer than others, but no area is totally safe.
2) Australia does not impose restrictions on its citizens regarding travel in Iraq, but the clear advice is for Australians not to visit the country. Movement within areas could be affected by Coalition or Iraqi army/police road blocks, curfews and other activities, but this is unlikely to prevent travel by ordinary people for great lengths of time. Militia or insurgent infiltration into areas could have a longer term affect on personal safety.
3) JAM militia were active in Baghdad and parts of the south during the period in question. The organisation is widely regarded as contributing to the violence and instability in Iraq.
I hope this helps in deliberations about the case.
Regards…
39. As suggested by Mr White, the Tribunal Member accessed the Department of Foreign Affairs and Trades’ (DFAT) Travel Advice from the internet (correct as at 11 January 2007) which stated that the overall level of advice had not changed. The relevant entries in the DFAT advice are:
We strongly advise you not to travel to Iraq because of the extremely dangerous security situation and very high threat of terrorist attack. We continue to receive a stream of reporting indicating that terrorists and anti-government forces are in the advanced stages of planning attacks against a range of targets, including places frequented by foreigners. If you are in Iraq and are concerned for your safety you should consider leaving.
Terrorist attacks, including kidnappings and deadly attacks on civilians using roadside bombs, suicide vests and car bombs which are directed at destabilising the new Iraqi government and forcing the withdrawal of Coalition forces, are likely to continue.
On 15 December 2006, the US Embassy issued a warden message warning that “there is a threat against American Citizens at the Sheraton Hotel and vicinity in Baghdad, and that Americans should increase vigilance as a result.” Australians in Iraq, including journalists, should exercise extreme caution as all Westerners could be affected.
Kidnappings for ransom and hostage taking for political gain are common in Iraq and may be fatal. A significant number of foreign nationals have been kidnapped and killed in the past year. The kidnapping of an Australian in Iraq in April/May 2005 underlines the very high risk of kidnapping of foreigners.
Terrorists and anti-government forces have carried out numerous attacks against places frequented by foreigners such as hotels and restaurants outside the International Zone. Westerners and places frequented by westerners, including hotels and restaurants, have also been attacked inside the International Zone. Further such attacks can be expected.
Due to the risk of surface-to-air attacks against aircraft, we advise you not to travel over Iraq on aircraft without self-protection capabilities. Australian government employees do not travel to or depart from Baghdad International Airport on commercial flights.
Due to access limitations and the difficult security environment, the Australian Embassy's ability to provide consular services is limited, particularly outside Baghdad.
…
If a terrorist attack or civil disorder occurs, you are advised to maintain a low profile and, in the absence of other advice, remain indoors.
You are advised not to travel by road in Iraq as convoys of vehicles come under attack regularly. There is a risk to vehicles from bombs, landmines and unexploded ordnance.
Essential services in Iraq, including fuel, power and water, are not reliable. While some telephone services have been restored, these also generally remain unreliable. …
The Australian Embassy is located within the International Zone, Baghdad. Due to access limitations and the difficult security environment, the Embassy's ability to provide consular services is limited. Logistical and security issues may make it particularly difficult for the Embassy to provide services to consular clients outside of Baghdad…
RELEVANT LEGISLATION
40. The Act provides for the portability of pensions. The relevant sections are s 1217(1)(a) and s 1217(1)(b) s 1217(4)(a) and s 1217(4)(b).
41. The portability of DSP as of 1 July 2004 has been set at 13 weeks. There is provision to extend this portability period in accordance with s 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.
And in accordance with the following sections:
1218C(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) a serious accident involving the person or a family member of the person;
(b) a serious illness of the person or a family member of the person;
(c) the hospitalisation of the person or a family member of the person;
…
(i) political or social unrest in the country in which the person is located;
…
(k) a war in the country in which the person is located.
1218C(2) The Secretary must not extend the person’s portability period under subsection (1) unless:
(a)the event occurred or began during the period of absence; and
(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
1218C(3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.
The Guide to the Social Security Law (the Guide) addresses the above legislation.
SUBMISSIONS
42. Mr Al Abody relied on his evidence to the Tribunal and made no submissions.
43. As the interpreter had been booked for only two hours, kindly stayed for two and a half hours, and then had to leave because of other commitments. The Tribunal determined it would be unfair to Mr Al Abody to hear oral submissions that he could not understand. Therefore, the Tribunal asked the Respondent to provide written submissions. The Respondent’s written submissions were translated into Arabic and Mr Al Abody was invited to respond to those submissions. Mr Al Abody elected not to make a written submission and relied on the report from the Australian Embassy in Baghdad (Exhibit R2).
RESPONDENT’S WRITTEN SUBMISSIONS
44. The Respondent reminded the Tribunal of the decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 with respect to ministerial policy; namely that departure from that policy should be made cautiously and sparingly (p 635).
45. The Respondent addressed the requirements of s 1218C(1) (a), (b), (c), (d) and (i) but not subsection (k) which refers to the war in the country in which the person is located.
SECTION 1218C(1)(a)
46. The Respondent submitted that the car bomb explosion incident (termed accident by the Respondent) which occurred 120 meters from Mr Al Abody was insufficiently proximate or too remote to equate to involvement in an accident.
SECTION 1218C(1)(b)
47. The Respondent contended that Mr Al Abody’s mother’s illness was not of a severity to prevent his return to Australia. The Tribunal notes that Mr Al Abody’s evidence is to the same effect.
48. Having outlined the exacerbation of Mr Al Abody’s PTSD symptoms following the witnessing of the car bombing explosion, the Respondent submitted that Mr Al Abody had not advanced a sound reason as to why he could not have obtained similar treatment in Australia to that he received in Iraq. The Guide states extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia (paragraphs 4.15 and 4.19 of the Respondent’s Statement of Facts and Contentions).
49. The Respondent raised doubts as to the veracity and content of the Iraqi doctors’ medical reports and the conflicting evidence regarding the frequency of Mr Al Abody’s attendance on Dr Sadiq - that is three days or three-weekly intervals - all of which went to the Applicant’s credit. The Respondent said that overall Mr Al Abody had not produced sufficient or allowable evidence as to the seriousness of his illness to prevent his return to Australia.
SECTION 1218C(1)(c)
50. Given that Mr Al Abody was hospitalised for three days, the Respondent submitted that such a short period did not prevent his return to Australia.
SECTION 1218C(1)(i)
51. The Respondent submitted that although there was no specific reference in the SSAT decision regarding unsafe travel due to violence in Iraq, it was reasonable to assume that the SSAT had considered this question and the impact of such violence or unrest on Mr Al Abody’s return to Australia. In his application for a review of the primary decision Mr Al Abody’s major argument related to his psychiatric status and he had not produced sufficient evidence of political or social unrest in Iraq impacting on his return to Australia (Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 334‑335). The Respondent suggested that the problem of safe travel was a recent invention on Mr Al Abody’s part.
TRIBUNAL’S DELIBERATIONS
52. The Tribunal accepts that Mr Al Abody was granted refugee status in Australia in 1995 on the basis that he had been a member of the Iraqi Army from an early age, that he defected for political and personal reasons to Saudi Arabia in 1991 and he has suffered severe stresses during his service in the Iraqi Army. The Tribunal also accepts that he suffers from Depression, Anxiety and PTSD; although the former two conditions are often symptom complexes of PTSD. Mr Al Abody has undergone psychiatric treatment and medication since 2002. The Tribunal also accepts that his psychiatric condition impacts on his ability to conduct his daily affairs, his memory and his ability to concentrate. Mr Al Abody’s command of English is poor and he has always required interpreter services in his dealings with Centrelink, the SSAT and this Tribunal.
53. Mr Al Abody is a Shiite from Southern Iraq and speaks a local Arabic dialect. He states that the interpreters provided by Centrelink and at his second SSAT hearing on 7 June 2006 and 9 August 2006 was a Kurd from Northern Iraq. Mr Al Abody’s Nominee, Mr Goro, also has a poor command of the Arabic language.
54. The interpreter who assisted this Tribunal on 19 December 2006 appeared to converse with and interpret for Mr Al Abody with ease.
55. The Tribunal found Mr Al Abody to be a truthful witness, lacking the wiles and sophistication to concoct new issues and arguments, particularly in view of his psychiatric diagnoses.
56. Mr Al Abody stated he had ticked the box on the form and verbally advised Centrelink that he wished to visit Iraq for three to six months, on the advice of a Centrelink Officer. The only alternative box was for less than three months and his intention was initially to stay for the approved 13 weeks and hopefully more. He understood from an Arabic interpreter from Centrelink that a stay of greater than 13 weeks would be approved on humanitarian grounds.
57. Mr Al Abody travelled overseas (to Thailand on the evidence before the SSAT, but to Iraq according to Centrelink records) twice in 2003/2004, staying on the first occasion for four months and on the second for one month. He returned to Australia on 20 June 2004, five days before new legislation regarding portability took effect on 1 July 2004. The Tribunal has been unable to find in the T Documents any clear advice given to Mr Al Abody prior to his departure on 10 June 2005, informing him that the legislation had changed. Such advice would have explained Centrelink’s decision that the period of portability was 13 weeks. Obviously, if one intends to stay 13 weeks the ticking of the box for less than 3 months is not appropriate.
58. Mr Al Abody stated the reason for his visit to Iraq was his mother’s ill health. He had been advised that she suffered bilateral lung disease with a poor prognosis. His evidence is that he found his mother’s poor condition improved after she had been persuaded to cease smoking on medical advice. Her cardiac condition was stable and her health status in no way impacted on the duration of his stay in Iraq. This evidence seems to be in conflict with the evidence he provided to the SSAT on 7 June 2006. At that hearing Mr Al Abody indicated he would return to Iraq if he could raise the funds, to care for his mother. This was refuted in his evidence before this Tribunal as being impossible, given the current situation in Iraq.
59. Mr Al Abody personally contacted Centrelink on 6 June 2005 and then not again until 5 January 2006. The T Documents do show evidence of contact on 26 September 2005 and 14 October 2005 by a facsimile. Mr Goro had contacted Centrelink on each occasion. Centrelink wrote to Mr Al Abody’s Australian address and queried the effect of these letters. Mr Goro also represented Mr Al Abody at the SSAT hearing in 2005. It was Mr Al Abody’s evidence, to the SSAT in June 2006 and this Tribunal, that his sister and cousins sent the requested medical certificates to CIS by facsimile as he was not capable of performing these tasks. Thus the Tribunal doubts the Centrelink records stating Cus (Customer) contacted the office by fax on 26 September 2005 and 14 October 2005.
60. CIS had requested (at 2.30 pm on 21 October 2005) that Mr Al Abody provide contact telephone numbers for Dr Sadiq so that it could contact the doctor itself. Dr Sadiq’s medical report was received by CIS on 12 October 2005 and includes his telephone number and his email address. There is no evidence in the T Documents that CIS contacted or attempted to contact Dr Sadiq.
MEDICAL EVIDENCE BEFORE THE TRIBUNAL
61. Dr Ibrahim had diagnosed and treated Mr Al Abody for PTSD since 2002. Dr Sadiq also diagnosed PTSD with Anxiety. The Tribunal accepts their diagnoses. Dr Paulson of Health Services Australia Ltd, when assessing Mr Al Abody’s eligibility for the DSP (T46, p105), accepted Dr Ibrahim’s diagnoses. Dr Ibrahim supported Mr Al Abody’s desire to visit his mother in Iraq as he thought it might benefit Mr Al Abody’s psychological health (T12, p34).
62. Centrelink doubted the veracity of Dr Mansour’s letter of 11 September 2005, (T23, p57) as the letter/certificate did not bear a full address, stated Mr Al Abody was admitted to Al Hayy General Hospital on 1 September 2005 and had a border on the page that has never been on any other certificate before. The Centrelink Officer was unable to find the Al Hayy Hospital after performing an internet search. However, the Tribunal had no difficulty in finding numerous references to the Al Hayy Hospital on the internet. Al Hayy is a small town south of Al Kut; it does have a hospital and also a military airport. The United States Government has funded an ambulance service as part of its re-construction efforts and UNICEF has funded paediatric facilities at the hospital. Access to the Iraqi Ministry of Health website provided no help but similar sites indicated the Ministry of Health was in disarray. Mr Al Abody gave evidence that in response to Centrelink’s request for a medical certificate he went to Al Hayy Hospital, as it was much closer to his village than Al Kut where Dr Sadiq practices. The phrase admitted to the Al Hayy Hospital at 1st September may represent a translational error or alternatively indicate Iraqi hospitals adopt criteria similar to those in Australia where, for funding reasons, patient stays in emergency departments for more than 4 hours are frequently recorded as an admission.
63. Mr Al Abody denies that he was admitted to hospital and says he saw Dr Mansour in his clinic. Dr Mansour stated that Mr Al Abody’s psychiatric condition to be obsessive symptoms and hypochondriasis – a diagnosis unlikely to be concocted by a non-medically qualified person. The Tribunal notes that on 9 August 2006 the SSAT found Dr Mansour’s report to be unreliable and of no evidentiary value. With all due respect to the SSAT, this Tribunal disagrees.
64. Dr Sadiq provided two reports; one dated 6 October 2005 (received at CIS on 12 October 2005) and an undated report provided apparently by Mr Al Abody to the SSAT at the hearing in June 2006. Both are addressed to To Whom It May Concern.
65. The first report provides Dr Sadiq’s diagnoses, a brief description of the treatment given and states that Dr Sadiq first saw Mr Al Abody on 4 August 2005. The second, undated, report confirms Mr Al Abody’s evidence that he was hospitalised for three days from 1 August to 3 August 2005 inclusive in Al Kut General Hospital. While the construction of the report is somewhat disjointed, the Tribunal interprets it as saying that Mr Al Abody presented to the Casualty Department on 1 August 2005 having fainted after observing a car bomb explosion in Baghdad. He was admitted to hospital and assessed by the Medical Department, as in addition to his psychological symptoms he had severe tachycardia, sweating and chest pains. Once an organic cause had been ruled out , Mr Al Abody was referred to Dr Sadiq who saw him in his clinic on 4 August 2005 and on six further occasions approximately three to four weeks apart (26, 22, 14, 22, 26 and 25 days apart). The last six visits are described as follow-up and reassurance sessions. The term reassurance, which according to the Oxford Dictionary means to restore confidence to, dispel apprehension of, confirm in an opinion or impression, is not dissimilar to the term counselling more commonly used in Australia. The Tribunal therefore rejects the Respondent’s implication at the hearing that medical visits for reassurance is a lesser or unnecessary form of treatment.
66. The Respondent has highlighted and the Centrelink entries note that Dr Sadiq’s reports conclude with the phrase was given this certificate upon his request (T27, T40). While it is unusual for the Australian medical profession to include this phrase, the vast majority of medical certificates are provided at the patient’s request.
67. Mr Al Abody’s evidence before this Tribunal corroborates Dr Sadiq’s report, with the major exception that Mr Al Abody states he saw Dr Sadiq while an in‑patient under the care of the medical unit and was given an injection on Dr Sadiq’s orders. It was later explained to Mr Al Abody (presumably on 4 August 2005) that he was to have a new course of treatment over a period of months, involving injections which would possibly give him the shakes. Mr Al Abody believed he had three injections approximately six weeks apart, commencing on 1 August 2005. The Tribunal questioned Mr Al Abody regarding these injections. He did not know the name of the medication but did confirm that after each injection he developed the shakes which lasted for several days. The Tribunal’s questioning was based on its knowledge that the drugs modicate and haldbol (anti-psychotic agents) are used on a short term course of some months to obtain control of psychosis and are associated with considerable risk of extrapyramidal symptoms, manifested as involuntary shaking and dyskinesia. While the evidence is circumstantial it does suggest the possibility that Dr Sadiq embarked on a course of intra-muscular anti-psychotic treatment necessitating that Mr Al Abody prolong his stay in Iraq for a period of three to six months to complete this course of treatment.
68. Dr Sadiq provided three telephone numbers and his email address. CIS had requested these numbers so that it could speak to Dr Sadiq directly but despite its request there is no evidence that it did so. While awaiting this information, which had already been provided on 12 October 2005, CIS suspended the applicant’s request for review by an ARO and this review was never undertaken.
69. The Tribunal finds that Mr Al Abody suffered an exacerbation of his PTSD symptoms following the close observation of a car bomb explosion. A local hospital excluded any organic cause of his new symptomatology and instituted psychiatric treatment. The treatment reported by Mr Al Abody is highly suggestive that he received a three month course of intra-muscular anti-psychotic drugs complicated by the development of extrapyramidal symptoms. He accepted and undertook the treatment prescribed.
POLITICAL AND SOCIAL UNREST IN THE COUNTRY
70. Mr Al Abody believed at the time of his departure from Australia, that the southern areas of Iraq were relatively quiet and free of social unrest. After his arrival, the activities of the Al-Mahdi militia, quiescent since the general election in Iraq in late 2004, increased and restricted his movement within Iraq. The Al-Mahdi militia activities have been reported weekly in the Australian press for the last two years. The Australian Embassy in Baghdad has advised that nowhere in Iraq can be considered safe. The Tribunal notes that the Embassy advised in its email of January 2007 that Al Najaf was more benign. However, subsequent news indicates that Al Najaf has been the centre of fierce fighting with 200 deaths in the week commencing 29 January 2007. The Embassy also advised that criminal activity such as kidnapping was widespread, air and road travel within Iraq was ill-advised and DFAT pointed out that the Embassy in Baghdad is limited in its ability to provide services to Australian citizens outside of Baghdad. DFAT’s advice to Australians was that if a terrorist attack or civil disorder occurred they should maintain a low profile and remain indoors. The Tribunal is uncertain of the extent of Mr Al Abody’s knowledge of DFAT’s travel advice. The Tribunal has reached its decision on the basis of the evidence produced and, while acknowledging government policy in this area, finds no need to address the latter given its decision.
71. The Tribunal decides that by virtue of Mr Al Abody’s health status, the nature of his underlying condition of PTSD, his psychiatrist-directed treatment and the political and social unrest in Iraq in the second half of 2005, Mr Al Abody was prevented from returning to Australia within the 13 week portability period for the DSP. As he lodged an appeal against the suspension of his DSP payment, albeit via his nominee, on 13 September 2005 his pension payment is extended from that date until 4 January 2006.
I certify that the seventy‑one [71] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 19 December 2006
Date of Decision: 27 February 2007
Advocate for the applicant: Self‑represented
Advocate for the respondent: Mr T. Noonan, Legal Services Branch, Centrelink
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