Al-Hammuri and Secretary, Department of Social Services (Social services second review)

Al-Hammuri and Secretary, Department of Social Services (Social services second review) [2022] AATA 3433 (20 October 2022)
Division:GENERAL DIVISION
File Number: 2022/2925
Re:Jareer Al-Hammuri
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Dr L Bygrave, Member
Date:20 October 2022
Place:Sydney

The decision under review is affirmed.
................................[SGD]........................................
Dr L Bygrave, Member
Catchwords
SOCIAL SECURITY – disability support pension – suspension of payment – maximum portability period of 28 days – whether portability period could be extended – general extension of a portability period – whether applicant was attending to an acute family crisis – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
REASONS FOR DECISION
Dr L Bygrave, Member
20 October 2022
background

Mr Jareer Al-Hammuri has been in receipt of disability support pension since 22 June 2009. On 14 July 2021, Mr Al-Hammuri departed Australia to visit his elderly mother in Jordan who was unwell. His disability support pension was suspended on 11 August 2021 because he was absent from Australia for more than the maximum portability period of 28 days. Mr Al-Hammuri returned to Australia on 3 November 2021 and his disability support pension payments resumed.
Services Australia, both initially and on review, decided that Mr Al-Hammuri was not eligible to receive disability support pension in the period he was overseas from 11 August 2021 to 2 November 2021.
Mr Al-Hammuri sought review and, on 30 March 2022, the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) affirmed this decision.
On 7 April 2022, Mr Al-Hammuri lodged an application for review in the General Division of the Tribunal.
The matter was heard by the Tribunal in Sydney on 26 September 2022; Mr Al-Hammuri attended the hearing in person and gave oral evidence.
consideration
The issue for determination by the Tribunal is whether Mr Al-Hammuri can be paid disability support pension in the period he was overseas from 11 August 2021 to 2 November 2021.
Statutory provisions relating to the overseas portability of social security payments are stipulated in Part 4.2 of the Social Security Act 1991 (Cth) (the Act). Relevantly, section 1217 of the Act states a person’s maximum portability period for disability support pension is:
A total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D).
Mr Al-Hammuri departed Australia on 14 July 2021 and, pursuant to the requirements in section 1217 of the Act, his disability support pension was suspended 28 days later on 11 August 2021. Mr Al-Hammuri’s travel records show he had previously departed Australia in July–August 2019 and consequently, I am satisfied that he was eligible to be paid the total 28 days maximum portability period when he departed Australia on 14 July 2021.
In relation to the references in section 1217 of the Act to sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D, I am satisfied that for the period between 11 August 2021 and 2 November 2021:
·the provisions in sections 1218AAA and 1218AA of the Act did not apply to the circumstances of Mr Al-Hammuri because there is no evidence before the Tribunal that he is either a ‘severely impaired disability support pensioner’ or a ‘terminally ill overseas disability support pensioner’; and
·the provision for an ‘extended portability period’ in section 1218AB of the Act did not apply to Mr Al-Hammuri because there is no evidence before the Tribunal that he meets all the qualifying circumstances in paragraphs 1218AB(1)(a)–(f); and
·the provision for an ‘exception’ in section 1218 of the Act did not apply as he was not a full-time student outside Australia for the purpose of an Australian course; and
·the provision to extend his portability period in section 1218D of the Act did not apply as there is no evidence before the Tribunal that he was overseas for life-saving medical treatment.
I now turn to considering whether the general extension of a portability period as set out in section 1218C of the Act can apply to Mr Al-Hammuri. Section 1218C states:
1218C Extension of person’s portability period—general
(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;
(d) the death of a family member of the person;
(e) the person’s involvement in custody proceedings in the country in which the person is located;
(f) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g) robbery or serious crime committed against the person or a family member of the person;
(h) a natural disaster in the country in which the person is located;
(i) political or social unrest in the country in which the person is located;
(j) industrial action in the country in which the person is located;
(k) a war in the country in which the person is located.
(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.
(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. [emphasis added]
The evidence before the Tribunal shows the following chronology of events:
·On 24 May 2021, Mr Al-Hammuri contacted Services Australia and records show Mr Al-Hammuri stated ‘his mother is ill because she is 83 years old’; he ‘has been given an exemption by DFAT [Department of Foreign Affairs and Trade] to travel’; he ‘understands he [currently] has 28 days’ general portability; and he ‘will contact [Services Australia] when he has booked flights’.[1]
[1] Exhibit R1.
·On 24 May 2021, Mr Al-Hammuri filed with Services Australia an ‘exemption from the travel restrictions on departing Australia’ approved by the Department of Home Affairs on ‘compassionate and compelling grounds’.[2] This exemption approval was valid for a single departure from Australia until 22 July 2021 and included the following information:
[2] Exhibit T-T5, 53.
Please note that anyone leaving Australia should be aware that a number of countries are implementing their own border restrictions in response to COVID-19 and the international air network is reducing in capacity. The ability to enter another country or return to Australia may be severely impacted. All travel restrictions are under constant review by the Australian Government and may be subject to change at short notice.[3] [emphasis added]
[3] Ibid.
·On 25 May 2021, Mr Al-Hammuri filed with Services Australia a brain MRI report by Dr Ahmad Halilah (Arab Medical Centre) dated 7 February 2021 regarding Ms Faryal [sic] Jamal Alhamoury. This report included the following conclusions: Ms Alhamoury had ‘moderate age-related brain atrophy’ and ‘moderate to severe microvascular disease involving the brain’.[4]
[4] Exhibit T-T6, 55.
·On 1 June 2021, Mr Al-Hammuri contacted Services Australia: records stated that he said he ‘needs to travel overseas to care for Mother long term and is looking to retrain [sic] his DSP payment whilst doing so’.[5]
[5] Exhibit T-T14, 80.
·Mr Al-Hammuri departed Australia on 14 July 2021 and he returned to Australia on 3 November 2021.[6]
[6] Exhibit T-T16, 108.
·On 7 January 2022, Mr Al-Hammuri filed medical reports written in Arabic with Services Australia.[7]
[7] Exhibit A9.
·On 30 June 2022, Services Australia provided English translations of the medical reports filed by Mr Al-Hammuri on 7 January 2022. These documents are regarding Ms Ferial Jamal Mokhlis Alhamoury and include:
oTranslation of medical report, Alhussein Medical City, Alhussein hospital dated 9 May 2021, which stated:
The patient has blocked arteries in the brain and suffers from transient frequent clots. She requires ongoing monitoring and treatment by Internal Medicine / Neurology and regular scans and blood vessels surgery.[8]
oTranslation of medical report, Islamic hospital, Amman Jordan dated 9 May 2021, which stated:
Ms FERIAL JAMAL MOKHLIS ALHAMOURY attended today the clinic of Dr … suffering from High blood pressure. The examination showed high cholesterol that needs treatment and monitoring.[9] [emphasis in original]
[8] Exhibit A1.
[9] Exhibit A7.
At the Tribunal hearing, Mr Al-Hammuri confirmed that Ms Ferial Jamal Mokhlis Alhamoury is his mother. He submitted that he should be paid disability support pension in the period from 11 August 2021 to 2 November 2021 for ‘compassionate reasons’ because he travelled to Jordan on 14 July 2021 to care for his mother who was elderly and unwell, and he had difficulty returning to Australia due to COVID-19 affecting the availability of flights to Australia.
Mr Al-Hammuri said he was aware when he left Australia that he was only eligible to be paid disability support pension for 28 days under general portability provisions. However, he said he was required to provide a ‘statutory declaration’ to the Department of Home Affairs that he would be outside Australia for three months in order to be exempted from the travel restrictions then in place for departing Australia.
Mr Al-Hammuri told the Tribunal that his mother used to live in Australia but returned to Jordan in 2016 to care for his sister who had been diagnosed with breast cancer. He said his mother continues to provide care to his sister and his mother lives on her own, although his brother brings her food and essential items. Mr Al-Hammuri said that, despite the presence of his sister and brother in Jordan, he needed to travel to Jordan in July 2021 to provide care for his mother. He said this care comprised of him taking his mother to regular medical and check-up appointments, including for her heart and teeth, and providing financial support. He confirmed that his mother was not hospitalised prior to or during the time he was in Jordan, but said she recently spent three days in hospital in July 2022.
Mr Al-Hammuri said he decided to leave Jordan after six weeks. However, he had not purchased a return airplane ticket and subsequently had difficulties purchasing a ticket for a flight from Jordan to Australia due to COVID-19 restrictions affecting international travel. He said he was eventually able to return to Australia via Thailand on 3 November 2021.
I note the provisions of section 1218C of the Act are discretionary: subsection 1218C(1) states a person’s portability period may be extended if they are unable to return to Australia because of a particular ‘event’ listed in paragraphs 1218C(1)(a) to (k); and subsection 1218C(2) requires the ‘event’ to have occurred or begun during the allowable portability period (that is, between 14 July 2021 and 11 August 2021).
I am satisfied that medical reports dated 7 February 2021 and 9 May 2021 show Mr Al-Hammuri’s mother, Ms Mokhlis Alhamoury, was unwell with ‘microvascular disease involving the brain’ and ‘high blood pressure’. However, there is no evidence that the ‘event’ of Ms Mokhlis Alhamoury’s health occurred after Mr Al-Hammuri departed Australia on 14 July 2021 as required by subsection 1218C(2) of the Act.
For this reason, I find the general extension provisions to extend the portability of Mr Al-Hammuri’s disability support pension under section 1218C of the Act cannot apply because the event – Mr Al-Hammuri’s mother being unwell – commenced prior to his travel to Jordan on 14 July 2021.
Section 1217 of the Act further states the following provisions in relation to the portability of disability support pension where a person is travelling overseas:
Any temporary absence, except for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.
There is no evidence before the Tribunal that Mr Al-Hammuri travelled overseas to Jordan on 14 July 2021 to either ‘seek eligible medical treatment’ or ‘for a humanitarian purpose’. I now consider whether Mr Al-Hammuri travelled overseas on 14 July 2021 to ‘attend to an acute family crisis’.
The meaning of ‘acute family crisis’ is defined in section 1212A of the Act as follows:
1212A Meaning of acute family crisis
For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c) for a purpose relating to the death of a family member; or
(d) for a purpose relating to a life‑threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member. [emphasis in original]
A ‘family member’ is defined in subsection 23(14) of the Act to include a person’s parent; for Mr Al-Hammuri, the relevant family member was his mother, Ms Mokhlis Alhamoury.
I am not satisfied the medical evidence shows Ms Mokhlis Alhamoury was ‘critically ill’ in the period prior to and during Mr Al-Hammuri’s travel to Jordan on 14 July 2021. As the term, ‘critically ill’, is not defined in the Act for the purpose of section 1212A(a) of the Act, I have considered the ordinary meaning of these words in the Macquarie Dictionary (online), which includes the definition of ‘critical’ as ‘(of an illness, condition, etc.) severe; grave’.[10]
[10] See Macquarie Dictionary (online), viewed 18 October 2022.
I find the medical reports on 7 February 2021 and 9 May 2021 stated Ms Mokhlis Alhamoury was diagnosed with ‘moderate to severe microvascular disease involving the brain’ and ‘high blood pressure’. However, there is no evidence in these reports to show Ms Mokhlis Alhamoury was ‘critically ill’, or her health was ‘severe’ or ‘grave’. In particular, I find that the circumstances of Ms Mokhlis Alhamoury in 2021, where she was able to live on her own and provide care to her daughter, is not consistent with her being ‘critically ill’.
For completeness, I also find no evidence before the Tribunal that any of the circumstances in section 1212A(b), (c) or (d) of the Act apply to Mr Al-Hammuri in the period prior to and during Mr Al-Hammuri’s travel to Jordan on 14 July 2021. There is no evidence to show Ms Mokhlis Alhamoury was ‘hospitalised with a serious illness’, or that Mr Al-Hammuri travelled to Jordan because there was a ‘death of a family member’ or there was ‘a life‑threatening situation’ facing a family member that was beyond their control.
For these reasons, I am satisfied the provisions in section 1217 of the Act that relate to an approved temporary absence to ‘attend to an acute family crisis’ did not apply to Mr Al-Hammuri’s travel overseas on 14 July 2021.
Finally, I make the following observations.
First, Mr Al-Hammuri has had his disability support pension suspended because he was overseas for more than the maximum portability period in 2015, 2016 (twice), 2017, 2018 (twice) and 2019 (as well as 2021).[11] He was notified by Services Australia on 24 May 2021 about general portability and knew he was eligible to be paid disability only for a total period of 28 days when he departed Australia on 14 July 2021. I am therefore satisfied that Mr Al-Hammuri was aware of the portability provisions for disability support pension and that his pension would be suspended after 28 days when he travelled overseas on 14 July 2021.
[11] Exhibit T-T15, 100.
Second, I have considered Mr Al-Hammuri’s evidence that he decided to leave Jordan after six weeks but was unable to return to Australia because he could not purchase a plane ticket and COVID-19 restrictions were affecting international travel. I am satisfied that, when Mr Al-Hammuri departed Australia on 14 July 2021, he had chosen not to purchase a return airplane ticket and had been informed by the Department of Home Affairs in his approved travel exemption that ‘the international air network is reducing in capacity’, the ‘ability to…return to Australia may be severely impacted’ and ‘all travel restrictions are under constant review…and may be subject to change at short notice’. Based on this evidence, I find that Mr Al-Hammuri was aware that he could have difficulties returning to Australia from Jordan when he travelled overseas on 14 July 2021. I further find that this is not a reason to extend the general portability of Mr Al-Hammuri’s disability support pension under the provisions in the Act.
For these reasons, I am satisfied Mr Al-Hammuri was not eligible to be paid disability support pension in the period he was overseas from 11 August 2021 to 2 November 2021.
Decision
The decision under review is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

................................[SGD]........................................
Associate
Dated: 20 October 2022

Date(s) of hearing: 26 September 2022

Applicant: In person

Counsel for the Respondent: Mr G Lozynsky, Services Australia

[2022] AATA 3433

20 October 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	26 September 2022
Applicant:	In person
Counsel for the Respondent:	Mr G Lozynsky, Services Australia