Brady and Secretary, Department of Social Services (Social services second review)

Brady and Secretary, Department of Social Services (Social services second review) [2016] AATA 848 (27 October 2016)

Division

GENERAL DIVISION

File Number(s)

2016/1320

Re

Duncan Brady

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Deputy President Dr P McDermott RFD

Date 27 October 2016

Place Brisbane
I affirm the decision under review.

...............................[sgd].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
SOCIAL SECURITY – portability – whether absence allowable – purpose relating to a death – applicant not found to be member of a couple – deceased not a family member of the applicant – inappropriate to exercise discretion in the circumstances – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 4, 23, 1212A, 1212B, 1215, 1217
Social Security Regulation 2012 (Cth) reg 4
Disability Discrimination Act 1992 (Cth) s 51
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
27 October 2016
INTRODUCTION

This is an application for a review of a decision to suspend the payment of Newstart allowance to Mr Duncan Brady (“the applicant”) during the period that he was absent from Australia commencing on 3 November 2015.
BACKGROUND
On 26 October 2011, the applicant was granted Newstart allowance. On 3 November 2015, the Department of Social Services suspended the applicant’s Newstart allowance because he was not in Australia.[1]
[1] Exhibit A, T-Documents, T4.
On 18 November 2015, the applicant sought review of the suspension decision. The reason for the request was recorded as:[2]
CUS department Australia to attend the funeral of the 5yo daughter of a close friend.
[2] Exhibit A, T-Documents, T9 at p. 53.
On 25 November 2015, an authorised review officer affirmed the decision under review.[3] On 8 December 2015, the applicant lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (“the SSCSD”).
[3] Exhibit A, T-Documents, T6.
On 15 February 2016, the SSCSD affirmed the decision under review. On 14 March 2016, the applicant sought review of the decision of the SSCSD with this Tribunal. The applicant stated that the reasons for the application were:[4]
A. MY RELATIONSHIP WITH THE DECEASED
B. THE STATUS OF MY DISABILITY AT THE TIME AND HOW THE LAW RELATES TO THE DISABILITY DISCRIMINATION ACT 1992
C. THE DECISION IS WRONG ENTIRELY
[4] Exhibit A, T-Documents, T1 at p. 2.
FACTS
In 2013, the applicant commenced communicating with Ms Cristina Gabon online. Ms Gabon is a resident of the Philippines and has resided there at all materials times.
The applicant identifies himself as being in a relationship with Ms Gabon. In a letter drafted by Ms Gabon she describes their relationship has being “bound with love”.[5]
[5] Exhibit D, Letter drafted by Ms Cristina Gabon (undated).
In October 2015, Ms Gabon’s daughter passed away. On 3 November 2015, the applicant travelled to the Philippines. The purpose of the trip was to attend the funeral of Ms Gabon’s daughter and to provide support to Ms Gabon. This was the first time that it appears that the applicant and Ms Gabon had been in the same physical location together.
On 6 December 2015, the applicant returned to Australia.
LEGISLATIVE FRAMEWORK
Section 1215 of the Social Security Act 1991 (Cth) (“the Act”) provides that the payment of social security pensions are generally portable within specified time limits. Section 1217 of the Act sets out the maximum portability period for social security pensions in a table (“the Table”).
The Table prescribes the prerequisites for portability that attach to the specified social security pensions. Table item 15 provides that a temporary absence of up to six weeks may be considered an allowable absence if the recipient of Newstart allowance is absent 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.
Section 1212A of the Act provides:
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.
Section 23(14) of the Act provides:
For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G, each of the following is a family member in relation to a person (the relevant person):
(a) the partner or a parent of the relevant person;
(b) a sister, brother or child of the relevant person;
(c) any other person who, in the opinion of the Secretary, should be
treated for the purposes of this definition as one of the relevant
person's relations described in paragraph (a) or (b).
Subsections 4(2) and (3) of the Act provide:
(2) Subject to subsection (3), a person is a member of a couple for the purposes
of this Act if:
(a) the person is legally married to another person and is not, in the
Secretary's opinion (formed as mentioned in subsection (3)),
living separately and apart from the other person on a permanent
or indefinite basis; or
(aa) both of the following conditions are met:
(i) a relationship between the person and another person
(whether of the same sex or a different sex) is registered
under a law of a State or Territory prescribed for the
purposes of section 2E of the Acts Interpretation Act 1901
as a kind of relationship prescribed for the purposes of that
section;
(ii) the person is not, in the Secretary's opinion (formed as
mentioned in subsection (3)), living separately and apart
from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether
of the same sex or a different sex (in this paragraph called
the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the
Secretary's opinion (formed as mentioned in subsections (3)
and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent
applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited
relationship.
(3) In forming an opinion about the relationship between 2 people for the
purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or
subparagraph (2)(b)(iii), the Secretary is to have regard to all the
circumstances of the relationship including, in particular, the following
matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and
any joint liabilities; and
(ii) any significant pooling of financial resources especially in
relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the
other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of
children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in
a de facto relationship with , each other; and
(ii) the assessment of friends and regular associates of the
people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in,
joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that
the people provide to each other; and
(iii) whether the people consider that the relationship is likely to
continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like
relationship or a de facto relationship.
Section 4(3A) of the Act provides:
The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
Section 1212B of the Act provides:
For the purposes of this Part, a person's absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of involvement in custody proceedings, criminal
proceedings (other than criminal proceedings in respect of a
crime alleged to have been committed by the person) or other
legal proceedings; or
(b) for purposes relating to the adoption of a child by the person; or
(c) for a purpose specified in the regulations for the purposes of this
paragraph.
Regulation 4 of the Social Security Regulation 2012 (Cth) (“the Regulation”) provides the following further humanitarian purposes:
(a) attendance, as a formally selected member of the Australian
Paralympic Team, for participation as a competitor, at the
international athletic competition known as the Paralympic
Games;
(aa) attendance, within the 12‑month period before the international
athletic competition known as the Paralympic Games, by a
person receiving a disability support pension for participation,
as an athlete at an athletic competition or other event, if:
(i) that attendance is necessary to qualify as a competitor at the
Paralympic Games; or
(ii) that attendance is necessary to prepare as a competitor for
the Paralympic Games (whether or not the person has
qualified as such a competitor);
(b) attendance, at a memorial service that has been approved by the
Australian Government to commemorate an event involving the
death or serious injury of an Australian resident, as one of the
following persons:
(i) an Australian resident who was seriously injured in the
event;
(ii) a family member of an Australian resident who died or was
seriously injured in the event.
CONTENTIONS
Applicant’s contentions
The applicant contends that he has a disability for which he should be in receipt of disability support pension. He also contends that the suspension of his Newstart allowance amounts to discrimination against him as a person with a disability.
The applicant contends that the Tribunal should take into account his complaint that he has received unsatisfactory service from staff members at Centrelink.
The applicant contends that his absence from Australia is allowable on the basis that he was in the Philippines for a humanitarian purpose.
The applicant contends that he is in a relationship with Ms Gabon. He contends that Ms Gabon’s daughter considered him to be her father although she is not his biological daughter.
Respondent’s contentions
The respondent contends that the applicant’s Newstart allowance was appropriately suspended because his absence was not for a purpose that would render it allowable under s 1217 of the Act. The respondent contends that there is no evidentiary basis for the Tribunal to find that the applicant is a member of a couple within the meaning of s 23(14) of the Act. The respondent contends that the discretion found in s 23(14)(c) of the Act should not be exercised because there is no evidentiary basis for the Tribunal to find that the applicant’s relationship with Ms Gabon’s child was akin to a father/daughter relationship.
ISSUES
The issue for consideration is whether the applicant’s temporary absence from Australia from 3 November 2015 was an allowable absence such that he was entitled to be paid a Newstart allowance for the maximum portability period. This involves a consideration of whether any of the three purposes listed under Table item 15 apply.
The applicant’s eligibility for disability support pension is not an issue for consideration as it does not form part of the decision dated 15 February 2016 that the applicant is seeking a review of. Moreover, the issue of discrimination under the Disability Discrimination Act 1992 (Cth) is not relevant to the issue for consideration.[6]
CONSIDERATION
[6] See, Disability Discrimination Act 1992 (Cth) s 51(1)(d).
Was the applicant absent because he was seeking medical treatment?
There is no evidence before me which suggests that the applicant was absent from Australia from 3 November 2015 because he was seeking medical treatment. I am satisfied that he was not absent from Australia for this purpose.
Was the applicant absent because he was attending an acute family crisis?
The applicant was absent from Australia because he was attending the funeral of Ms Gabon’s child to provide support to Ms Gabon. Section 1212A(c) provides that a person's absence is for the purpose of attending to an acute family crisis at a particular time if that absence was for a purpose relating to the death of a family member.
Section 23(14)(a) of the Act provides that a partner of the relevant person is a family member for the purpose of the Act. Section 4(1) provides that the relevant person is the partner of someone where they are both members of a couple.
Was the applicant a member of a couple?
Section 4(2)(b) of the Act provides that a person is a member of a couple for the purposes of the Act where the person has a relationship with another person that is a de facto relationship. In accordance with s 4(3) of the Act I have considered the evidence in relation to the matters set out in that provision.
The applicant and Ms Gabon began communicating online in 2013. Ms Gabon indicated that in August 2014 she and the applicant began communicating more frequently and “considered to be together in the future”.[7]
[7] Exhibit D, Letter drafted by Ms Cristina Gabon (undated).
The applicant and Ms Gabon provide each other with companionship online via the video chat and voice call application “Skype”. Ms Gabon stated that she provides emotional support to the applicant. The applicant demonstrated that he provides emotional support to Ms Gabon by attending the funeral of her daughter in November 2015.
In giving evidence the applicant stated that he and Ms Gabon were “together every day”. The respondent put to the applicant that although he was communicating with Ms Gabon online he was not “under the same roof” as her. The applicant was unwilling to accept the distinction between physical and virtual presence advanced by the respondent, replying that he and the respondent were not fit to identify what a roof was.
The applicant does not own any real estate or other major assets jointly with Ms Gabon. Nor do they share any joint liabilities. There is no evidence of the significant pooling of financial resources between the applicant and Ms Gabon. The applicant does not owe Ms Gabon any legal obligations and vice versa. The applicant and Ms Gabon do not share day-to-day household expenses. However, the applicant does provide Ms Gabon with financial assistance.
The applicant and Ms Gabon do not have joint responsibility for providing care and support of children. The applicant was not in the physical presence of Ms Gabon’s children prior to his absence from Australia on 3 November 2015. Ms Gabon has stated that her children have a picture of the applicant and refer to him as a father.
The applicant indicated at the hearing that he and Ms Gabon hold themselves out as being in a relationship. Ms Gabon stated that they have plans to marry. The applicant stated at the hearing that they were in a de facto relationship. However, on 21 December 2015 the applicant completed a claim for disability support pension on which he omitted to declare that he was in a de facto relationship with Ms Gabon.[8]
[8] Exhibit A, T-Documents, T7.
On balance it appears that at least some of the applicant’s friends and regular associates consider him to be in a relationship with Ms Gabon. The applicant lodged an unsigned statement of Mr Damian Boxsell who described the applicant and Ms Gabon as being in “a relationship” and referred to Ms Gabon as the applicant’s “lady friend”.[9] This statement did not of itself suggest that Mr Boxsell sees the relationship that the applicant has with Ms Gabon as either marriage-like or a de facto relationship. It is unlikely that the applicant and Ms Gabon have the same group of friends and regular associates given that they reside in different countries.
[9] Exhibit E, Statement of Mr Damian Boxsell (undated).
There was no evidence put forward as to the basis on which the applicant and Ms Gabon make plans for, or engage in, joint social activities. Presumably, the social activities that they would be able to complete together would be limited to what can be achieved on an online platform.
There was no evidence advanced about a sexual relationship between the applicant and Ms Gabon. The applicant would not comment on whether he and Ms Gabon had a sexual relationship when he was absent from Australia as he considered it to be an invasion of his privacy. I cannot therefore find that there was a sexual relationship between the applicant and Ms Gabon prior to 3 November 2015.
The list of matters set out in s 4(3) of the Act is a non-exhaustive list. The evidence did not raise consideration of any other matters.
I am unable to find that the applicant and Ms Gabon were in a de facto relationship on 3 November 2015 or at any other material time. I accept that the applicant and Ms Gabon consider themselves to be in a relationship. However, two people living in different countries on a permanent basis cannot be regarded as being in a de facto relationship for the purposes of the Act. This is reinforced in s 4(3A) of the Act.
Was Ms Gabon’s child a family member of the applicant?
Section 23(14)(b) of the Act provides that a child of the relevant person is a family member of that person for the purposes of the Act. There is no evidence that the applicant was the biological father of Ms Gabon’s child nor that had he adopted the child. Therefore, the applicant is not a family member of the child for the purposes of s 23(14)(b) of the Act.
Section 23(14)(c) provides a discretion to find that a person should be treated as a child of the relevant person for the purposes of the definition of “family member”. This discretion should only be exercised where the family relationship is sufficiently similar and it is appropriate to being treated as such.
In considering whether it is appropriate to exercise the discretion, I have given significant weight to the fact that the applicant had never actually met Ms Gabon’s child, at least not in person. I accept that Ms Gabon’s child has referred to the applicant as a father. However, in these circumstances it would be inappropriate to consider Ms Gabon’s child to be a family member of the applicant.
Was the applicant absent for a humanitarian purpose?
Section 1212B of the Act and reg 4 of the Regulation collectively list the humanitarian purposes which would amount to an allowable absence. The only humanitarian purpose that relates to attendance at a funeral is set out under reg 4(b)(ii). The scope of this humanitarian purpose does not extend to the funeral of Ms Gabon’s child as the funeral was not a memorial service that has been approved by the Australian Government to commemorate an event involving the death or serious injury of an Australian resident. Moreover, the applicant was not attending as someone who was seriously injured in the event. Nor was he attending as a family member of an Australian resident who died or was seriously injured in the event. I am satisfied that he was not absent from Australia for a humanitarian purpose.
CONCLUSION

From 3 November 2013 to 6 December 2016 the applicant was temporarily absent from Australia. The applicant’s Newstart allowance was to be suspended during this period unless the absence was an allowable absence within the meaning of s 1217 of the Act.
There is no evidence that the applicant was absent because he was seeking eligible medical treatment. Nor is there any evidence that he was absent for a humanitarian purpose.
I am satisfied that the applicant was absent for a purpose relating to a death, namely, that of Ms Gabon’s child. I am not satisfied that the applicant and Ms Gabon were members of a couple within the meaning of s 4 of the Act. They were not in a de facto relationship because they were living separately and apart on a permanent basis.
I am not satisfied that Ms Gabon’s child was a family member of the applicant. There is no evidence that the applicant was the biological father of Ms Gabon’s child nor that had he adopted the child. Moreover, the applicant never actually met Ms Gabon’s child in person. For this reason I cannot exercise the discretion set out under s 23(14)(c) of the Act to find that Ms Gabon’s child should be treated as a family member of the applicant.
DECISION
I affirm the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
...............................[sgd].........................................
Associate
Dated 27 October 2016

Date of hearing 23 August 2016

Date final submissions received 27 September 2016

Applicant In person

Solicitors for the Respondent Mr C Bishop, Department of Human Services

[2016] AATA 848

27 October 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Division	GENERAL DIVISION
File Number(s)	2016/1320
Re	Duncan Brady
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Deputy President Dr P McDermott RFD
Date	27 October 2016
Place	Brisbane

Date of hearing	23 August 2016
Date final submissions received	27 September 2016
Applicant	In person
Solicitors for the Respondent	Mr C Bishop, Department of Human Services