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

This matter concerned an application for review of a decision by the Social Security Appeals Tribunal, which affirmed an earlier decision. The applicant sought to have his absence from Australia between 3 November 2015 and 6 December 2015 considered an allowable absence for the purposes of social security portability. The applicant had travelled to the Philippines to attend the funeral of his online acquaintance Ms Cristina Gabon's daughter and to provide her with support. The applicant contended that this absence was for a purpose relating to the death of a family member, thereby qualifying for portability under the Social Security Act 1991 (Cth).

The Tribunal was required to determine whether the applicant's absence from Australia was for an allowable purpose under the Act, specifically whether it constituted attending to an acute family crisis. This involved assessing whether Ms Gabon's deceased daughter was a "family member" of the applicant for the purposes of the Act, and whether the applicant and Ms Gabon were members of a couple. The applicant also raised issues concerning his disability and potential discrimination under the Disability Discrimination Act 1992 (Cth), but these were not relevant to the portability decision under review.

The Tribunal found that the applicant's absence was not for the purpose of seeking medical treatment. Regarding the acute family crisis provision, the Tribunal considered the definition of "family member" under section 23(14) of the Act. While section 1212A(c) allows for absences relating to the death of a family member, and section 23(14)(a) includes a partner as a family member, the Tribunal was not satisfied that Ms Gabon's deceased daughter was a family member of the applicant. The applicant and Ms Gabon had only communicated online and had not met in person until the applicant's trip for the funeral. There was no evidence of a de facto relationship, joint assets, liabilities, or significant pooling of financial resources. Consequently, the Tribunal concluded that Ms Gabon's child was not a family member of the applicant, and it was inappropriate to exercise discretion to treat the child as such.

The Tribunal affirmed the decision under review, finding that the applicant's absence from Australia was not an allowable absence for the purposes of social security portability.