Anna Leszczynska-Zimon and Secretary, Department of Social Services

[2014] AATA 338

[2014] AATA 338  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0210
Re	Anna Leszczynska-Zimon
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C. Ermert, Member
Date	29 May 2014
Place	Melbourne

The Tribunal affirms the decision under review.

....[sgd]....................................................................

Mr C. Ermert, Member

NEWSTART ALLOWANCE – absence from Australia – purpose of absence – humanitarian purpose – allowable absence – maximum portability period – decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1991

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

Mr C. Ermert, Member

29 May 2014

INTRODUCTION

1. Mrs Leszczynska-Zimon, the applicant, has been receiving Newstart Allowance since April 2002.  On 15 September 2013 Mrs Leszczynska-Zimon departed Australia  for Poland.  On 16 September 2013 Centrelink, the service provider for the Department of Social Security, the respondent, issued a notice to Mrs Leszcynska-Zimon advising her that her Newstart Allowance had been suspended from 15 September 2013 because she was not in Australia. 

2. Mrs Leszczynska-Zimon returned to Australia on 14 October 2013.  She sought review of the decision by a Centrelink authorised review officer (ARO). On 16 October 2013   an ARO decided that Mrs Leszczynska-Zimon did not meet the portability criteria for Newstart Allowance and that the allowance would not be paid for the period she was overseas.  Mrs Leszczynska-Zimon applied for a review of that decision  by the Social Security Appeals Tribunal (SSAT).

3. On 6 December 2013 the SSAT affirmed the decision of the ARO.  Mrs Leszczynska-Zimon then applied to this Tribunal for a review of the SSAT decision.

   THE HEARING

4. Mrs Leszczynska-Zimon represented herself at the hearing and gave evidence on oath.  Mr Hester represented the respondent. 

5. For the applicant, I had before me the Applicant’s Statement of Facts and Contentions dated 14 April 2014 (Exhibit A1).  Additionally, I took into evidence a bundle of documents provided by the applicant relating to her Polish Age Pension (Exhibit A2).  At the hearing Mrs Leszczynska-Zimon presented a letter she had  sent to the Tribunal dated 12 May 2014, which I took in as Exhibit A3.

6. For the respondent, I had before me the Secretary’s Statement of Facts and Contentions dated 16 April 2014 (Exhibit R1). In addition, I took into evidence the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (the T-documents). The Secretary’s Statement of Facts and Contentions had annexed to it Supplementary T-documents ST1 and ST2.

   LEGISLATION

7. The relevant legislation is contained in:

   ·Social Security Act 1991 (the Act),

   ·Social Security (Administration) Act 1991 (the Administration Act), and

   ·Social Security (International Agreements) Act 1999 (the International Agreements Act)

   ISSUES

8. Section 1217 of the Act provides for the continued payment of a benefit for the period of an allowable absence.  In the case of Newstart Allowance, an allowable absence is a temporary absence to seek eligible medical treatment, to attend to an acute family crisis or for a humanitarian purpose.   These provisions are defined in sections 1212, 1212A, 1212B and 1212C of the Act.  The substantive issue in this case is whether Mrs Leszczynska-Zimon’s absence was an allowable absence in accordance with the provisions of the Act.

9. Mrs Leszczynska-Zimon takes no issue with  the determination of the period of the suspension of her Newstart Allowance.

10. A preliminary issue is whether the provisions of the International Agreements Act apply in Mrs Leszczynska-Zimon’s circumstances.

    Preliminary Issue

11. Schedule 25 of the International Agreements Act contains the agreement with the Republic of Poland. Article 2(1) details the scope of the agreement and relevantly states:

    1This Agreement shall apply to the following laws:

    (1)   in relation to Australia,

    (a)the Acts forming the social security law in so far as the law provides for, applies to or affects age pension,

    …

12. In this case the issue in relation to the Australian law is Newstart Allowance, not the age pension as stipulated in subsection 1(1)(a). As a consequence, I find that the International Agreements Act does not apply.

    EVIDENCE FOR THE APPLICANT

13. Mrs Leszczynska-Zimon stated she has two bases for her application: the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the application of section 1212B of the Act as it relates to legal proceedings.

14. Starting with her second issue, Mrs Leszczynska-Zimon stated she went to Poland to establish her age pension entitlements.  She said the system for establishing an entitlement for age pension in Poland was different from that in Australia.  She said she had to provide proof that she had worked in Poland and the wages she had earned.  Mrs Leszczynska-Zimon stated she had to go to Poland personally to find the relevant documents which included searching archives.  She said it involved a lot of work, with many visits to officials in order to establish her pension at the highest level available for her circumstances.  She stated that if she had not gone personally to Poland she would have received only the minimum level of age pension.

15. Mrs Leszczynska-Zimon dealt only with the pension authorities in Poland. She said her application did not involve court proceedings.

16. Referring to the calculations in her letter (Exhibit A3), Mrs Leszczynska-Zimon said the Australian Government would save $1,500.48 per year as a result of the increased age pension payments she will receive owing to her visit to Poland.

17. Turning to the issue of the ICCPR, Mrs Leszczynska-Zimon said that the disputed decision restricts her liberty of movement in contravention of the provisions of Article 12.  She could provide no evidence of Australia’s position in regard to the provisions of the ICCPR.

    TRIBUNAL CONSIDERATIONS

    International Covenant on Civil and Political Rights

18. In her written Statement of Facts and Contentions and her oral evidence, Mrs Leszczynska-Zimon contended that the decision under review alters her rights of liberty of movement contrary to the provisions of Article 12 (3) of the ICCPR. Article 12 states:

    1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

    2. Everyone shall be free to leave any country, including his own.

    3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

    4. No one shall be arbitrarily deprived of the right to enter his own country.

19. Mr Hester submitted that there was no restriction on Mrs Leszczynska-Zimon’s liberty of movement.  He contended that the Australian Government is not required by the ICCPR to provide support to pension benefits.

20. I have no evidence before me on the status of the ICCPR in the Australian jurisdiction.  In any case, it is clear from Mrs Leszczynska-Zimon’s evidence that she is able to move freely anywhere within Australia, and that she was free to leave Australia and indeed travelled to Poland with no restrictions on her freedom to travel. 

21. I do not accept that a change to her eligibility for Newstart Allowance constitutes a restriction on her freedom and liberty to leave the country.  It is no more than a financial issue that a person may choose to consider when exercising their right to liberty of movement and their freedom to leave the country.

22. There is no evidence to suggest that her right to liberty of movement within Australia (section 1) or her freedom to leave Australia (section 2) are subject to any restrictions (section 3).  Mrs Leszczynska-Zimon’s submission regarding the application of the ICCPR is not supported by the evidence. Therefore I dismiss it.

    Humanitarian Purpose

23. Mrs Leszczynska-Zimon contends that the procedures to establish her Polish Age Pension are legal proceedings as set out in section 1212B of the Act. 

24. In the Secretary’s Statement of Facts and Contentions, Mr Hester submitted that the Department of Human Services publication Social Security Agreement between Australia and Poland provides that a person can claim a Polish pension by lodging a claim at Centrelink.  At the hearing he submitted that Mrs Leszczynska-Zimon’s application for a pension is more appropriately characterised as administrative action rather than legal proceedings.

25. It is clear from Mrs Leszczynska-Zimon’s evidence that her Polish application for age pension was no more than an administrative process.  She said she dealt only with officials and the process did not involve any court proceedings.  There is no evidence of any dispute in the process.  She said there was no objection from the authorities when she chose the age pension option that provided the greatest benefit.

26. From the evidence I do not accept that Mrs Leszczynska-Zimon’s application for a Polish age pension is a legal proceeding as provided for in section 1212B of the Act.

27. There are no other contentions related to an allowable absence for a humanitarian purpose.   Therefore, I find that Mrs Leszczynska-Zimon’s absence was not for a humanitarian purpose as provided for in the table in section 1217(4) of the Act. 

    Other Issues

28. Mr Hester contended that Mrs Leszczynska-Zimon did not assert that she departed Australia to seek medical treatment or to attend an acute family crisis.   He submitted that her reason for leaving Australia was for the purpose of establishing her Polish age pension.  Mr Hester noted that the reasons Mrs Leszczynska-Zimon’s application for a review of the SSAT decision are:

    ·She is exempt from looking for a job because she is 62 years old and working part time;

    ·Her employer was paying her during her trip to Poland; and

    ·She went to Poland to establish her Polish age pension and to visit her ill brother.

29. He submitted that none of these reasons are relevant considerations for the purposes of determining an allowable absence under section 1217(2) of the Act and as a consequence there is no maximum portability period for Mrs Leszczynska-Zimon’s Newstart Allowance.

30. I note that in her Statement of Facts and Contentions Mrs Leszczynska-Zimon does not assert that her visit to Poland was for the purpose of seeking eligible medical treatment or to attend an acute family crisis.  At the hearing she made no submissions on those issues and offered no evidence relevant to these purposes.  Accordingly, I find that Mrs Leszczynska-Zimon’s absence was not for the purposes of seeking eligible medical treatment, nor to attend an acute family crisis.

31. Mrs Leszczynska-Zimon contended in Exhibit A3 that her receipt of a higher level of age pension from Poland would save the Commonwealth of Australia an amount of $1,500.48 per year.  I commend Mrs Leszczynska-Zimon on her calculations. However, there are no provisions in section 1217 of the Act for such an offset to be taken into account in determining whether an absence from Australia is an allowable absence.  I find that Mrs Leszczynska-Zimon’s contention is not relevant to the decision. 

    Findings

32. I find that Mrs Leszczynska-Zimon’s absence from Australia was not for the purpose to seek eligible medical treatment (s 1217 Table Portability of social security payments, item 15(a)). Neither was it to attend to an acute family crisis (s 1217 Table Portability of social security payments, item 15(b)). Her absence was not for a humanitarian purpose (s 1217 Table Portability of social security payments, item 15(c)).  Accordingly, I find that a maximum portability period does not apply to Mrs Leszczynska-Zimon’s Newstart Allowance for the period of her absence from Australia. As a consequence, I find that the purpose of Mrs Leszczynska-Zimon’s absence from Australia was not allowable, as required by section 1217(2) of the Act.

33. As Mrs Leszczynska-Zimon’s absence from Australia was not allowable, I find that her Newstart Allowance was correctly suspended for the period of her absence from Australia. I affirm the decision under review.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mr C. Ermert, Member.

.........[sgd]...............................................................

Associate

Dated 29 May 2014

Date of hearing	12 May 2014
Applicant	In person
Advocate for the Respondent	Mr Mark Hester, Centrelink Program Litigation and Review Branch