Ali Mahmood and Secretary, Department of Social Services
[2014] AATA 784
•24 October 2014
[2014] AATA 784
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/5257 & 2013/5259
Re
Ali Mahmood
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member D Letcher QC
Date 24 October 2014 Place Adelaide The decision under review is affirmed.
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Senior Member D Letcher QC
CATCHWORDS
SOCIAL SECURITY - Disability support pension - Extension of portability period - Whether applicant unable to return to Australia because of an event that occurred or began during period of absence - Applicant alleged he received threats to his life while in Iraq in 2013 - Family Tax Benefit - Estimate of income not provided to Centrelink as requested - Decision under review affirmed.
LEGISLATION
Social Security Act 1991, ss 1215 and 1218C
Social Security (Administration) Act 1999, s 80
A New Tax System (Family Assistance) (Administration) Act 1999, ss 29 and 154
REASONS FOR DECISION
Senior Member D Letcher QC
24 October 2014
INTRODUCTION
The applicant, Mr Mahmood, has applied for review of a decision of the Social Security Appeals Tribunal (“SSAT”), which affirmed Centrelink’s decisions to cancel Mr Mahmood’s Disability Support Pension (“DSP”) because he remained absent from Australia after the end of his portability period, and to cancel his Family Tax Benefit (“FTB”) instalments because he failed to provide an estimate of his income as requested by Centrelink.
The applicant has a significant permanent physical disability, namely spinal scoliosis. He was born in 1960 in Iraq of a Sunni Muslim family, completed his education with a degree in chemical engineering at Baghdad University, but has never worked. In April 2003 he entered Australia on a humanitarian visa, was granted DSP two months later, and has remained in receipt of DSP ever since (with gaps which will be explained).
On 30 November 2012, Mr Mahmood and his teenage daughter left Australia. Mr Mahmood had not notified Centrelink of his intention to go overseas. Centrelink wrote to his Western Australia address pointing out this breach. On 5 March 2013, from Baghdad, the applicant emailed Centrelink requesting an extension of the 13-week portability period of his DSP, which had expired on 28 February 2013. Centrelink refused the request and decided that the DSP should be cancelled as at 1 March 2013 and that FTB instalment entitlements should be cancelled as at 22 March 2013. The SSAT affirmed those decisions.
The applicant returned to Australia on 1 March 2014 (a year and one day after the expiry of the portability period). He contends that he was precluded from leaving Baghdad to return to Australia by threats made by insurgents to his life.
LEGAL BACKGROUND
Disability Support Pension
Residence in Australia is a pre-condition for receipt of a DSP. If recipients go overseas they are required to notify Centrelink in advance. At the time of Mr Mahmood’s travel in November 2012, DSP recipients were entitled to continue receiving DSP while away and on return only if they returned to Australia within 13 weeks. This period was termed “the portability period”. Under section 1218C of the Social Security Act 1991 (“the Act”) there is a discretion to extend the portability period only in several defined circumstances. Relevantly, where an event first occurred during the period of absence, and by reason of that event the applicant was prevented from returning at the planned time, there is a discretion to extend the period. If the portability period is not extended and the person remains absent from Australia, DSP is not payable to that person after the end of that portability period and the DSP may be suspended or cancelled (section 1215 of the Act and section 80 of the Social Security (Administration) Act 1999).
Section 1218C of the Act provides relevantly:
(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:
…
(g)robbery or serious crime committed against the person or a family member of the person;
…
(i)political or social unrest 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.
It can be seen that the respondent (and the Tribunal standing in the respondent’s shoes) has a discretion to extend the period because of a particular event occurring only after the person left Australia and for a definite period of time.
Family Tax Benefit
It is a condition of receipt of FTB instalments that the recipients notify Centrelink of their income (see sections 154 and 29 of the A New Tax System (Family Assistance) (Administration) Act 1999). If FTB recipients are in receipt of a government income support payment then an income statement is not required. However, if the income support payment is cancelled then an estimate of income is required or the FTB instalments will be cancelled. It is not in dispute that Mr Mahmood did not provide an estimate of income as requested by Centrelink.
APPLICANT’S TRAVEL HISTORY
Since his first arrival in Australia in 2003 the applicant has made the following overseas journeys:
·2005 30/11/05–16/12/05 2.5 weeks
·2007 31/3/07–25/7/07 15 weeks (Iraq)
·2008 27/11/08–27/3/09 16 weeks (Iraq)
·2009 18/11/09–10/11/10 51 weeks (Iraq)
·2012 30/11/12–1/3/14 78 weeks (Iraq)
All but the first included travel to Iraq, and were the subject of extensions sought to the portability period. The circumstances surrounding those extensions are outlined below.
In 2007, without prior notice to Centrelink, the applicant left Australia claiming it was for urgent family reasons because his father was very ill, and died two days after he arrived. At the hearing, the applicant (having given evidence that his father was alive in 2012) said that the deceased in 2007 was his wife’s father. I note that the applicant and his wife separated in 2006, were divorced on 23 January 2007, and the applicant professed to know nothing of his wife’s whereabouts or activities “for the last 8 years”. During that 2007 trip the applicant also claimed he fell and required extra time for rest. An extension was granted.
During the 2008 trip, he again claimed that he had fallen and hurt himself, and was granted another extension.
In September 2009, the applicant contacted Centrelink to ask whether his DSP would still be payable if he moved overseas permanently to receive care which he said he could not obtain in Australia after separating from his wife. On the day he left, he advised Centrelink of his departure but could not supply a return date. He was still overseas on 23 February 2010, when he advised that he had been diagnosed with cancer and was receiving chemotherapy. Extensions to his portability period were granted until April, and then June and, finally, August 2010. His further application for an extension on 30 August 2010 was refused because he did not provide any current treatment information. He appealed that decision to the SSAT but was unsuccessful. In evidence to this Tribunal, the applicant said that his abdominal cancer had been diagnosed on biopsy in Damascus and chemotherapy commenced. Later, he consulted doctors in Jordan and was told that it had all been a mistake and he had no cancer. He did not bring back to Australia any hospital or medical reports, x-rays or pathology results.
EVIDENCE BEFORE THE TRIBUNAL
The applicant denied that the extensions he had obtained in the past (in 2007, 2009 and 2010) had been for spurious reasons. He agreed that before he left on 30 November 2012 he had been told that he should notify Centrelink, but he said that in 2008 or 2009 someone at Centrelink had told him that it didn’t matter whether he did or not. He agreed that he knew that if he overstayed the 13-week period his DSP could be cancelled.
The applicant gave evidence that he left Australia on 30 November 2012 and travelled to Jordan with his daughter intending to meet his Iraqi family in Amman. His father was ill, so he and his daughter travelled overland to his parents’ house in a suburb of Baghdad. (Later evidence showed the suburb to be within several minutes’ drive of Baghdad International Airport). He said that they travelled in a shared taxi to Baghdad and “the situation was very good … on the road and in Baghdad there was nothing going on”. However, within two days of arrival a letter was thrown into his parents’ property threatening death and/or kidnapping. The applicant said he was thus trapped in Baghdad in fear of his life (and his daughter’s) for a year, until friends assisted him with funds and he was able to return to Australia via Amman.
The respondent indicated at an early directions hearing that it sought face-to-face cross-examination of the applicant and that his credit was an issue. The applicant maintained repeatedly that he was too incapacitated to leave his home in an Adelaide suburb and travel to a hearing in the city and that his evidence must be by telephone only. When medical evidence as to his condition was required, he forwarded a medical report. Enquiries by the respondent then revealed that:
(a)the report had been composed and printed by a non-medical friend of the applicant;
(b)the applicant had driven himself in his car to the doctor’s rooms;
(c)the doctor had signed the ‘report’ that he did not write; and
(d)the doctor believed that the applicant could and should attend the hearing in person.
The applicant continued to refuse to attend and sought to rely on a further report of an after-hours “radio doctor’ (name unknown) which noted only attendance and prescription of an analgesic. The applicant was informed repeatedly that if he did not make himself available at a hearing location for cross-examination the Tribunal could draw inferences adverse to his credibility. The applicant flatly refused to attend a hearing in person and, rather than deny him any hearing, the Tribunal did allow the applicant to give his evidence and address by telephone. This was hardly ideal, but did allow the issues to be ventilated. As the hearing proceeded it became clear that the applicant’s credit was a major issue.
The respondent produced material showing that there was considerable civil disturbance in the period before the applicant went to Iraq in November 2012. This was relevant to the question of whether an event first occurred after his departure from Australia which prevented him returning within the portability period. The applicant was shown the Department of Foreign Affairs and Trade’s “Warnings to Travellers” advising of incidents of murder, kidnapping and bombs before November 2012. The applicant rejected these documents saying that when he went to Baghdad all was quiet and he did not believe the official publications. He said: “This media … not real. The Australian embassy is in the Green Zone and they take news from the media. They lie, they all lie … they collect information in the villages outside Baghdad and say it happened in Baghdad … No one knows Iraq better than the people of Iraq”.
The respondent received from the Department of Foreign Affairs and Trade very detailed descriptions of events in Baghdad and information about the particular suburb where the applicant was staying, together with information about access to the International Airport. This was made available to the applicant because it showed that the suburb was relatively peaceful, the airport was a few minutes away by car, and both the embassy and the airport were open during his stay. He was provided in advance of the hearing, and then asked questions about, pictures and news reporting from the BBC website of violence and kidnapping in Baghdad in the second half of 2012 as well as in 2013 when he was in that city, but he denied the veracity of the articles.
The respondent also questioned whether the applicant was in fact trapped and unable to leave Baghdad for a year. The applicant alleged fears that his telephone and emails would be intercepted by those who threatened him, but he maintained almost continuous email contact with Centrelink in Australia. At the same time he refused to contact the Australian embassy in Baghdad and in fact never contacted the embassy despite being urged to do so by Centrelink, which supplied telephone and email contacts. He agreed that he made no attempt to contact the embassy during the whole year. He allegedly believed that because he entered Iraq using his Iraqi passport, the embassy would not be able to identify him and give assistance in leaving. He denied knowing that one important job for consular officials was providing substitute travel documents if a passport was lost or not available. He denied knowing that the embassy could have helped him leave Baghdad if indeed there was a need for him to do so. He said that if his DSP and FTB had not been cut off he could have bought an air ticket to Amman. When it was put to him that his DSP payments were not stopped until March 2013, he said that it was “not just money, also the risk of just going outside the house”.
The applicant was also questioned about his description of the alleged extremists. On 5 March 2013, his email to Centrelink seeking an extension alleged that:
While were (sic) in Baghdad weve (sic) threatened by Islamic sheaat (sic) militants that we will be killed if we dont (sic) pay an enormous amount of dollars. They warned us by a paper thrown into the garden of my parents (sic) house that we will be killed once we leave the house (my emphasis added).
In a later application for extension on 24 March 2013, he alleged being threatened by “Islamic Sunni extremists that we will be killed if we don’t pay an enormous amount of dollars to allow us to leave” (my emphasis added) (T9/37). When challenged as to this radical change in description, the applicant alleged, for the first time, that there were several similar such threats from different groups.
The respondent put to the applicant that while he was in Baghdad his ex-wife and another child of the marriage had also been there. Government records showed that she had travelled to Baghdad and then left from Baghdad International Airport with the child at a time that the applicant said it was too dangerous to travel. He denied knowing of his ex-wife’s presence and denied that he or his daughter had met her there. There was evidence that the International Airport was accessible and functioning throughout the time the applicant was in Iraq.
The applicant said that he had seen no reason to take additional money nor to plan alternative means of leaving Iraq in the event of civil violence. He said that “everything the [respondent’s counsel] said was a lie … no kidnap, no killing and no explosions … it’s not correct”.
The Tribunal had made directions for the provision of statements by the applicant and any witnesses he wished to rely upon, but the applicant did nothing to comply with those directions. At the hearing, he denied the possible importance of documents such as the alleged threat letter, his passport showing entry and exit from Jordan, air tickets to verify dates booked in advance, and photos of family or housing. He said: “I didn’t know what evidence, I didn’t know how a passport could tell from the stamps …” The applicant’s account of events was entirely lacking in corroboration and contradicted by the objective evidence produced by the respondent.
DISCUSSION
The applicant’s case is that after leaving Australia with his daughter on 30 November 2012 an event occurred which prevented him from returning to Australia within the 13-week portability period. He identified the event as a threat of killing and/or kidnapping and/or extortion made shortly after he arrived in Baghdad in February 2013. Such a threat could constitute a “serious crime” (subsection 1218C(1)(g) of the Act), an incident of “political or social unrest” (subsection 1218C(1)(i)) or an incident of “war” (subsection 1218C(1)(k)). He says that as a result of the incident he was unable to leave Baghdad for a year and the portability period should be extended to 1 March 2014. It follows that, if his DSP is restored, the FTB instalments should be reinstated retrospectively because the obligation to advise income details does not apply where the parent is in receipt of government income support.
The respondent submitted that the Tribunal should not be satisfied that there was such an event with any such consequences. Further, it submitted that the unrest and violence in Baghdad was in existence well before the applicant left Australia, with incidents of murder and kidnapping, so that it cannot be said that any relevant event “occurred or began during the period of absence” (subsection 1218C(2)(a) of the Act).
I do not accept the applicant’s account for a number of reasons:
(i)During a whole year in Baghdad the applicant made no contact with the Australian embassy in Baghdad and resisted all efforts to have him contact it. I infer that this was because he knew that any embassy enquiry would show he was not under any threat.
(ii)The applicant has a history of overstaying his absences and seeking extensions of the portability period for dubious reasons and, having regard to all the evidence before me, I consider that this is what occurred on this occasion.
(iii)The applicant’s story has no independent corroboration, and the respondent has provided much objective, contradictory material. The applicant could have produced travel documents, witness statements and oral evidence from other witnesses, but did not do so. Embassy material, travel warnings, and BBC news stories all point to a longstanding state of unrest in Iraq generally, and Baghdad particularly, contradicting the applicant’s version that things were ‘very good’ and ‘quiet’ when he arrived there. Similarly, the embassy material showed that access to the airport and the embassy was available from the suburb where the applicant stayed. An exit from Baghdad was available as shown by the entry and departure of his ex-wife.
(iv)The applicant was a very unsatisfactory witness, being evasive, contradictory and inconsistent in his demeanour and responses to questions. When the inconsistency as to whether the threat came from Sheaat or Sunni persons was pointed out, the applicant for the first time then said that there had been a number of these threats. The applicant’s failure to contact the embassy was in marked contrast to his numerous contacts with Centrelink in Australia, attempting to have his DSP reinstated, despite expressed fears of interception of his communications. Further, I note that the applicant had previously applied for an extension of the portability period for a cancer later proved not to exist despite an alleged positive biopsy, but returned to Australia without any of the medical records, and ostensibly had no follow-up consultations here.
(v)I consider that the applicant’s obdurate refusal to attend the hearing in person for cross-examination was unreasonable in all the circumstances and because he thought there was less chance of an effective attack on his credit if his evidence was given by telephone. He had been able to drive himself to his doctor’s rooms to obtain a signature on a ‘report’ but said he was entirely unable to attend a hearing. I did not and do not accept that there was proper medical evidence as to his inability to attend a hearing.
(vi)Although the respondent was hampered in its ability to conduct a rigorous cross-examination because the applicant was not visible to the Tribunal or to the respondent, the applicant nevertheless showed himself to be a witness of little credibility or reliability, and where his evidence was not supported by other evidence, I would have the greatest difficulty in accepting it. In particular, I do not accept that he received any threat to his life or well-being in Baghdad.
CONCLUSION
I am not satisfied that any event as alleged occurred in Baghdad in February 2013 which made the applicant unable to return to Australia within the 13-week portability period in question.
Accordingly, I am satisfied that the decision to cancel Mr Mahmood’s DSP from 1 March 2013 was correct. If follows that, as he was not in receipt of an income support payment at the relevant time and did not provide Centrelink with an estimate of his income as requested, the decision to cancel his FTB payments from 22 March 2013 was also correct.
DECISION
The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Letcher QC .......................[Sgd]..............................
Associate
Dated 24 October 2014
Date of hearing 2 September 2014 Applicant In person Advocate for the Respondent Mr A Schatz Solicitors for the Respondent Australian Government Solicitor
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