Alimi and Secretary, Department of Family and Community Services
[2004] AATA 621
•18 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 621
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/40
GENERAL ADMINISTRATIVE DIVISION ) Re SHECEREIJE ALIMI Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr Murray Allen, Member Date18 June 2004
PlacePerth
Decision The decision of the Social Security Appeals Tribunal made on 6 January 2004 to affirm a decision made on 7 May 2003 by a delegate of the respondent to not extend the applicant’s portability period for Carer Payment beyond 28 December 2002 is set aside. In substitution therefor the Tribunal decides that the applicant’s portability period is extended from 28 December 2002 until 27 January 2004. …............(sgd M Allen).............................
Member
CATCHWORDS
Social security – carer payment – portability period – whether applicant’s absence from Australia was temporary – finding that applicant had not ceased to reside in Australia and the absence from Australia was temporary – whether applicant’s inability to return to Australia was due to a serious illness of a family member – deterioration of medical condition of applicant’s husband – finding that applicant’s husband was unfit to travel because of the deterioration in his condition and that this deterioration had occurred or begun during the period of absence from Australia – applicant’s husband returned to Australia but applicant remained overseas – finding that applicant’s failure to return to Australia was because of her inability to pay the cost of travel and was no longer due to the serious illness of her husband – decision under review set aside and extension of portability period granted for the period from the date of deterioration of the applicant’s husband until the date of the husband’s return to Australia.
Social Security Act 1991 (CTH) ss 7, 1212 C, 1217, 1218 C
Re Hafza and Director General of Social Security (1985) 6 FCR 444
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241
REASONS FOR DECISION
18 June 2004 Mr Murray Allen, Member 1. On 6 January 2004 the Social Security Appeals Tribunal (“SSAT”) affirmed a decision made on 7 May 2003 by a delegate of the respondent to reject an application by the applicant for an extension beyond 28 December 2002 of the period within which the applicant could be paid a Carer Payment (“CP”) benefit whilst she was outside Australia. The applicant now applies for a review of that decision of the SSAT.
2. At the hearing of the matter the applicant, who is presently living in the Former Yugoslavian Republic of Macedonia (“Macedonia”), was represented by her husband, Mr Sami Alimi, and the respondent was represented by Mr Holt, a Centrelink officer. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act, 1975 and Exhibits A1 – A3 and R1 – R3. Oral evidence was given by Mr Alimi.
3. Most of the facts in the matter were not in dispute and the following findings of fact by way of background can be made. Mr Alimi applied for and was granted a Disability Support Pension (“DSP”) in approximately August of 2000, and in November 2000 Mrs Alimi was granted a CP benefit as the carer of Mr Alimi. The CP benefit was payable from 23 October 2000.
4. In early March 2001 Centrelink was provided with additional information about Mr Alimi’s medical problems, including problems that had not been taken into account when he was granted a DSP. On the basis of that information, on 15 March 2001, Mr Alimi was assessed as being “a severely disabled person” with the consequence that Mr Alimi became entitled, pursuant to s 1217(5) of the Social Security Act, 1991 (“the Act”) to receive his DSP during “any absence” from Australia for an “unlimited period”.
5. In the meantime, on about 7 March 2001, the applicant advised Centrelink that she and Mr Alimi were travelling to Macedonia on 12 March 2001. A record made by a Centrelink officer at the time (T11-page 84) records that the return date to Australia was “uncertain, but after 10 September 2001 (26 weeks)”. A letter dated 7 March was sent by Centrelink to the applicant advising that her benefits could be paid whilst she was outside Australia until 10 September 2001 but not thereafter (T12-page 85). The same letter advised the applicant that if there was a delay in returning to Australia she should contact Centrelink. Similar advice was given in a letter dated 9 March 2001 (T14-page 90).
6. In June 2001 there was telephone communication between Centrelink and the applicant’s daughter during which the daughter was advised that the applicant’s portability could only apply for 26 weeks. The daughter advised that she was obtaining medical evidence concerning Mr Alimi’s condition. At T23 page 101 is a Centrelink document dated 18 September 2001 that records receipt of a request from the applicant for an extension of the portability period beyond the then applicable 26 weeks. The document requesting the extension has not been located by Centrelink, but T23 notes that the applicant had left Australia on 12 March 2001 and was to return on 7 August 2001. Centrelink had available to it at that time a medical certificate from Mr Alimi’s doctor in Macedonia dated 27 August 2001 (R1) and, apparently on the strength of that report, an extension of portability of the applicant’s benefits was approved for 3 months until 12 December 2001.
7. When that extension expired in December 2001 no action was taken by Centrelink to terminate the applicant’s CP. However, in May 2002 Centrelink cancelled the payments and in June 2002 raised a debt for payments made to the applicant between 12 December 2001 and 22 May 2002. Those decisions were made on the basis of Centrelink’s understanding at the time that the applicant was still overseas. In fact, the applicant had returned to Australia on 15 April 2002 (without Mr Alimi) and remained here until 29 June 2002. During that period the applicant (or her daughter) contacted Centrelink to make further enquiries about the extension of the portability period for the applicant’s benefits, and Centrelink requested further medical evidence regarding Mr Alimi’s condition so that an extension could be considered.
8. Further medical evidence was provided during July 2002 but it was not until on or about 22 August 2002 that Centrelink became aware that the applicant had spent the period referred to above in Australia. At about that time Centrelink made a decision that it would waive the debt that had previously been raised (because there had been an administrative error in not notifying the applicant that the extension of the portability period was only for 3 months, and because the applicant had again become entitled to receive the CP benefit upon her return to Australia). A decision was also made that the applicant did not need an extension of the previous portability period because she became eligible for a further portability period from 29 June 2002 (i.e. the date of her departure from Australia) for a further 26 weeks.
9. Computer problems apparently prevented those decisions being implemented until mid December 2002, when the applicant’s benefits were restored with effect from 23 May 2002. On 20 December 2002 Centrelink decided that the second 26 week portability period would expire on 28 December 2002 and the applicant was advised of this by letter (T47-page 126). That letter also advised that if the applicant was still unable to return to Australia she would need to provide Centrelink with current medical information.
10. Further medical information was obtained from Macedonia in February and April 2003 but on 7 May 2003 a delegate of the respondent decided that the request for an extension beyond 28 December 2002 would be rejected. It is that decision (as affirmed by the SSAT) that is under review in the present proceedings.
11. On 27 January 2004 Mr Alimi returned to Australia but Mrs Alimi remained in Macedonia.
Statutory Framework
12. A person is qualified for a CP if the requirements of s 198 of the Act are satisfied. One of those requirements is that, under s 198 (4), the person must be an Australian resident. It was not in dispute that the applicant was qualified for CP when that benefit was granted.
13. Part 4.2 of the Act deals with the ability of persons in receipt of certain social security benefits to continue to receive payments whilst absent from Australia. In essence, a person can receive payments whilst outside Australia if the absence is an “allowable absence” and the length of the absence does not exceed the “maximum portability period”. In the case of a person receiving a CP the table at the end of s 1217 of the Act provides that the allowable absence is any “temporary absence” and the maximum portability period is specified as being 26 weeks. Section 1212C provides that a person’s absence from Australia is “…temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of subsection 7(3))”.
14. Section 1218C (1) confers upon the respondent (and hence this Tribunal) the discretion to extend a person’s portability period if “satisfied that the person is unable to return to Australia because of any of the following events: (a)…; (b) a serious illness of the person or a family member of the person; [or] (c) the hospitalisation of the person or a family member of the person;…”.
15. Section 1218C (2) relevantly provides that a person’s portability period must not be extended unless the event that prevented the person returning to Australia ”…occurred or began during the period of absence”.
16. The SSAT concluded that the applicant remained resident in Australia during the relevant period of absence and that her present absence from Australia is temporary, although for an indeterminate period. However, the SSAT also concluded that, although there was evidence of Mr Alimi’s condition deteriorating whilst in Macedonia, this deterioration “had not occurred or only begun during [the applicant’s] period of absence from Australia”. The respondent contends that the SSAT was correct in its determination regarding whether any events had occurred during the applicant’s absence from Australia regarding her husband’s health, but also contended that the SSAT was incorrect in its conclusion that the applicant remained a resident of Australia.
Did the applicant cease to reside in Australia?
17. Section 7(2) defines an Australian resident as a person who “resides in Australia” and is an Australian citizen. It is not in dispute that the applicant is an Australian citizen.
18. Section 7(3) provides that “in deciding for the purposes of this Act whether or not a person resides in Australia, regard must be had to:
a)the nature of the accommodation used by the person in Australia; and
b)the nature and extent of the family relationships the person has in Australia; and
c)the nature and extent of the person’s employment, business or financial ties in Australia; and
d)the nature and extent of the person’s assets located in Australia; and
e)the frequency and duration of the person’s travel outside Australia; and
f)any other matter relevant to determining whether the person intends to remain permanently in Australia.”
19. In Re Hafza and Director General of Social Security (1985) 6 FCR 444 at [13] and [14] Wilcox J. observed:
“[13] There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241 at p. 249, by Williams J.:
“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.”
[14] Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place – even involuntarily – a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that that place remains “home”. It is important to observe firstly, that a person may simultaneously be a resident is more than one place – see the reference to “a home or homes” and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.”
20. The applicant did not give evidence in the proceedings but Mr Alimi did, and the decision of the SSAT sets out information provided to that Tribunal by the applicant’s daughter, Mrs Isakoska. The evidence of Mr Alimi in relation to the various factors set out in s 7 (3) of the Act was as follows.
Accommodation
21. The applicant and Mr Alimi do not own any real estate in Australia at the present time. They owned a house in Perth that was sold in the year 2000 because they could not afford to meet the mortgage repayments after Mr Alimi ceased work because of his disabilities. Between the time of sale of the house and their departure for Macedonia in March 2001, the applicant and Mr Alimi had lived with one of their daughters in Perth. Mr Alimi said that the intention was that when they returned from Macedonia towards the end of 2001 they would stay with their daughter initially and thereafter find a house or flat to rent.
22. In Macedonia Mr Alimi is a part owner with his five siblings of a house that was initially owned by his father (now deceased). Mr Alimi said that this was a small property in not very good condition. When they had sold their house in Perth they realised an equity of approximately $30,000 that they had taken to Macedonia and had used $20, 000 of that amount to renovate one floor of the house (consisting of three rooms) in which they lived. The rest of the house is not occupied and Mr Alimi said that his siblings would need to renovate the rest of the house if they wished to live there.
Family Relationships
23. The applicant and Mr Alimi have two married daughters living in Perth with their families. The two other children of the marriage, sons aged 20 and 25, both live in Macedonia. The younger of the two is at university and the elder works. They have no other relatives in Australia but have many relatives in Macedonia.
Employment, business or financial ties
24. The applicant has never worked and Mr Alimi has not worked since 1999. Neither the applicant nor Mr Alimi has any employment, business or financial ties in Australia or Macedonia.
Assets
25. The applicant has no interest in real estate in Australia or Macedonia and Mr Alimi’s only ownership interest in real estate is, as noted above, a one-sixth share in the property formerly owned by his father in Macedonia. Mr Alimi owns an old, unregistered, car in Australia and he and the applicant have joint bank accounts in Australia and Macedonia. They own some items of household furniture, fixtures and fittings in Macedonia which were purchased as part of the renovation of the house in which they live. When they sold their house in Australia in 2000 they sold their furniture or gave what was left of it to their daughters.
Travel outside Australia
26. Mr Alimi said that he came to Australia in 1970 and the applicant first came to Australia in 1974, shortly after their marriage in Macedonia. They lived in Melbourne for about fourteen years and, after a short time in Sydney, they had moved to and have lived in Perth since 1988 apart from periods in Macedonia. Mr Alimi said that he had spent approximately four months in Macedonia in 1974 (during which time he married the applicant) and that the family had spent about four months in Macedonia in 1980 and a slightly longer period in 1988/89. Exhibits R2 and R3 are movement records relating to the applicant and Mr Alimi respectively provided by the Department of Immigration. They commence in 1988. For Mr Alimi, Exhibit R3 records that he returned to Australia in March 1989 and that he was absent from Australia between March 1990 and April 1991, between May 1992 and November 1995 and between March 2001 and January 2004. For the applicant, Exhibit R2 reveals that she was absent from Australia between May 1988 and June 1996, between March 2001 and April 2002 and from June 2002 until the present time. In other words, since 1988 the applicant has been absent from Australia for periods totalling approximately twelve years and Mr Alimi has been absent from Australia since 1990 for periods totalling approximately seven and a half years.
Any other matters
27. The applicant and Mr Alimi became Australian citizens in about 1987 and they, and all four of the children, are citizens of both Australia and Macedonia. Mr Alimi said that when he and his wife left Australia in March 2001 they intended to be away for only three or four months. This statement appears to be confirmed by T23 – see [6] above – which records that the applicant was to return to Australia on 7 August 2001 but to be somewhat at odds with T11 – see [5] above. It was not in dispute that when they left Australia in March 2001 they travelled on a return ticket valid for one year. For reasons that will be referred to below, the applicant and Mr Alimi were not able to return to Australia because of a deterioration in Mr Alimi’s health.
28. Mr Alimi said, and it was not in dispute, that the applicant returned to Australia for approximately ten weeks between May 2002 and June 2002 because one of her daughters was experiencing some difficulties with a pregnancy and the applicant returned to assist her daughter in the last stages of the pregnancy. Mr Alimi said that he had returned to Australia in January 2004 because he needed better medical attention that he was able to get in Macedonia. He had borrowed the money to pay for the fare back to Australia and the only reason his wife did not accompany him was that they could not afford the ticket for her. Had they been able to she would have returned with him. Mr Alimi said that the applicant did mean to return to Australia. He said that both he and the applicant regard both Australia and Macedonia as their homes and would find it very difficult to choose between the two countries if they ever had to do so. He said that he had no immediate plans to return to Macedonia but may do so at some future time because his mother-in-law (the applicant’s mother) is quite sick.
29. I note that the SSAT was told by Mrs Isakoska that she was confident that her parents would return to Australia if they could because their daughters and grandchildren are in this country. Mrs Isakoska also thought that her younger brother would also return to this country because of the greater employment opportunities here.
30. The history of the applicant’s residence in Australia is one of lengthy periods of absence, particularly since 1988. It is difficult to form definite conclusions about the applicant’s intentions regarding residence in Australia in the absence of direct evidence from her. Nevertheless, the evidence given by Mrs Isakoska to the SSAT and the evidence given by Mr Alimi to me was not seriously challenged by the respondent and is in some respects supported by documentary evidence – particularly in relation to the intention of the applicant and her husband to be absent from Australia for only three or four moths in 2001 and the fact that they left Australia with return tickets. It is apparent that at the present time the applicant and her husband do not actually have a physical home in Australia but I accept the explanation that they sold their home here because of Mr Alimi’s health problems and his inability to work, resulting in them being unable to maintain the mortgage payments. I accept Mr Alimi’s evidence relating to the factors referred to in s 7 (3) of the Act and on balance I am not persuaded that either the applicant or her husband have formed an intention to not return to Australia and to not regard Australia as their home. As Wilcox J. noted in Hafza in the passage quoted above, a person may simultaneously be a resident in more than one place. On balance I am satisfied that the applicant has retained a continuity of association with Australia. I find that the applicant has not ceased to be resident of Australia throughout the period commencing in March 2001. Accordingly, in the terms of s 1212C of the Act, her absence is a “temporary absence” from Australia for the purposes of portability of her CP.
31. I must therefore consider whether, for the purposes of s 1218 C (1), the applicant’s inability to return to Australia was because of the events specified in that subsection. The applicant claims that the inability to return was due to a deterioration in Mr Alimi’s medical condition resulting in him being unfit to travel.
32. A convenient summary of Mr Alimi’s disabilities at the time he left Australia is contained in a report dated 12 April 2004 provided by his treating general practitioner in Australia, Dr McCauley (T78). Dr McCauley saw Mr Alimi on 10 March 2001 shortly prior to his departure. At that time his disabilities consisted of non-insulin diabetes mellitus; pain in the right testicle; loss of memory; varicose veins; and arthritis in elbows, shoulders, knees and lower back. Mr Alimi was assessed as fit to travel at that time.
33. Mr Alimi said that in July 2001 he became sick in Macedonia and his condition became worse in August 2001. He could not control his diabetes and his memory became very bad. He would lose his balance and he had very bad pain in his right shoulder and back. He lost about 9kg of weight. He had obtained medical treatment regularly whilst in Macedonia and on a number of occasions he had received infusions at a medical clinic. These had only been day visits but the doctors concerned had recommended that he become an in-patient. In August 2001 he had been told that he could not travel and this remained the medical advice that he had received right up until the time of his eventual departure for Australia in January 2004. At that time his doctor in Macedonia told him that he should not travel for another two or three months – but he had decided to take the risk and return.
34. A number of medical reports by the Macedonian medical practitioners that treated Mr Alimi were provided to Centrelink commencing in August 2001. In summary those reports were as follows:
a)On 27 August 2001 (R1) a Dr Saraci referred to the conditions that Mr Alimi suffered from when leaving Australia and expressed the opinion that his symptoms were now more serious. It was noted that he often lost his memory and his balance and that he was sometimes depressive. The report stated that it is necessary for the applicant to be with Mr Alimi all the time and that travel to Australia was not possible until Mr Alimi’s condition improved.
b)On 5 October 2001 (A1) Dr Saraci reported that Mr Alimi’s condition was “very difficult and critical” and that he could not travel at all until his condition improved.
c)On 2 July 2002 (A3) a Dr Polisi reported that he was now treating Mr Alimi. He referred to the various conditions Mr Alimi had when he left Australia and stated that his symptoms were worse. Reference was also made to depression, loss of memory and balance, and that Mr Alimi was not allowed to travel until his health improved.
d)On 29 August 2002 Dr Polisi confirmed that Mr Alimi could not travel until his health improved and that the applicant needed to be with him at all times and to supervise him. Accordingly, she could not travel at that time. (A2)
e)On 3 February 2003 Dr Polisi reported that Mr Alimi’s condition had not improved from the time of previous reports (T48).
f)On 16 April 2003 Dr Polisi reported that Mr Alimi’s current condition was “difficult and critical” and had not changed from before. The opinion was expressed that he was not allowed to travel until his health improved. Dr Polisi could not predict whether his condition would improve or get worse (T51).
g)On 7 July 2003 Dr Polisi confirmed that Mr Alimi remained under his care and that his conditions were serious and critical (T63).
h)On 15 March 2004 Dr Polisi confirmed that Mr Alimi had received infusions for his diabetes on 3 February 2003, 14 March 2003 and 16, 17 and 18 December 2003.
35. In his report of 12 April 2004 Dr McCauley reported that he had seen Mr Alimi on 28 January 2004 shortly after his return form Macedonia. Dr McCauley said that Mr Alimi disabilities were essentially unchanged from when he had seen him in 2001 and expressed the view that the inability of Mr Alimi to control his diabetes in Macedonia was “probably due to change in diet”. Dr McCauley said that “normally a patient would be unfit to travel if his diabetes was uncontrolled”.
36. On the medical evidence I am satisfied that Mr Alimi suffered from a range of medical conditions prior to his departure from Australia in March 2001. However, I am satisfied that those conditions, particularly his diabetes, were under control at that time and he was fit to travel.
37. I am also satisfied that Mr Alimi and the applicant intended to be away from Australia for a period of three or four months when they left in March 2001. However, I find that Mr Alimi’s condition deteriorated considerably commencing in about July 2001, and that by August 20001 his symptoms were sufficiently serious that his Macedonian medical practitioners advised him that he must not travel – and that remained the situation until early 2004. I am satisfied that at that time his medical advice continued to be that he unfit to travel but that he chose to take the risk and to travel back to Australia.
38. For the purposes of s 1218C (1), it is not in dispute that Mr Alimi is a family member of the applicant. I am satisfied that none of the events specified in that subsection are applicable except (b) and possibly (c). In relation to (c), I am satisfied that, although Mr Alimi was treated as a day patient at a medical clinic, he was not hospitalised on any occasion and hence (c) does not apply.
39. However, in relation to s 1218C (1)(b) and (2)(a) I am satisfied on the medical evidence that Mr Alimi’s conditions did deteriorate during 2001 to such an extent that he went from being a person who had a number of medical conditions that were under control – and who was fit to travel – to a person whose conditions were not under control, whose doctors described his condition as “difficult” and “critical”, and who was no longer able to travel and to return to Australia.
40. It is clear, as the respondent contended, that Mr Alimi suffered from all the specific medical conditions prior to his departure from Australia. As noted at [4] above, as a “severely disabled person” Mr Alimi is entitled to receive his DSP for an unlimited period overseas – and so the provisions of s 1218C have no relevance to him in relation to his DSP portability period. The policy reasons why a person receiving CP by virtue of caring for such a person is limited to a portability period of 26 weeks are not immediately obvious to me. One might reasonably expect a “severely disabled person” to suffer from conditions that may fluctuate in intensity over time. If the requirement in s 1218C (2)(a) is to have any reasonable application to a carer of such a person (so as to enable an extension of the carer’s portability period) then, in my opinion, one must regard a deterioration of the disabled person’s condition whilst overseas to such an extent that the person cannot travel back to Australia as being the occurrence or beginning of a serious illness. I can only presume that the delegate who granted the applicant a 3-month extension of her portability period in September 2001 – see [6] above – did so on the basis of such an interpretation. Given the remedial nature of the Act I interpret the provision in that way – with the result being that I find that the deterioration of Mr Alimi’s condition that occurred did satisfy the requirements of s 1218C (1)(b) and s 1218C (2)(a) of the Act and was the reason why the applicant was not able to return to Australia.
41. In all the circumstances of the case I am prepared to exercise the discretion available to the Tribunal under s 1218 C (1) to extend the applicant’s portability period beyond 28 December 2002. However, I consider that it would not be appropriate to extend the portability period beyond 27 January 2004, that being the date on which Mr Alimi returned to Australia. I am satisfied that, on and from that date, the reason why the applicant could not return to Australia was the inability to pay the cost of returning. Although at that time Mr Alimi was still subject to medical advice that he not travel, he chose to take the risk and did travel back to Australia. The evidence, which I accept, is that the applicant would have accompanied him but for their lack of funds and it cannot be said that her inability to return to Australia continued to be because of the serious illness of her husband.
42. My decision is that the decision of the SSAT made on 6 January 2004 is set aside and in substitution therefor the Tribunal decides that the applicant’s portability period for the payment of CP is extended from 28 December 2002 until 27 January 2004.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Murray Allen, Member
Signed: .............(sgd V Wong).................................
AssociateDate/s of Hearing 21 May 2004
Date of Decision 18 June 2004
Counsel for the Applicant Mr S Alimi
Counsel for the Respondent Mr A Holt
Solicitor for the Respondent Service Recovery Team, Centrelink
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