Cacoroski and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1277
•13 July 2017
Cacoroski and Secretary, Department of Social Services (Social services second review) [2017] AATA 1277 (13 July 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6115
Re:Saso Cacoroski
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Member K Parker
Date:13 July 2017
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Member K. Parker
DISABILITY SUPPORT PENSION - portability – absence from Australia for a period exceeding maximum portability period – whether portability period should be extended –whether event began or occurred during the period of absence – whether period of absence was limited to portability period – unlimited portability request after the expiry of the portability period while person was absent from Australia
Legislation
Social Security Act 1991 (Cth) ss 94, 1213, 1215, 1217, 1218C, 1218AAA
Social Security (Administration) Act 1999 (Cth) s 80Cases
Farah and Secretary, Department of Social Services (Social services second review) [2015] AATA 675
Majidi and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 309
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29
Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989
Re Rainsford and Secretary, Department of Social Services [2014] AATA 735
Secondary Materials
The Guide to Social Security Law
REASONS FOR DECISION
Member K Parker
13 July 2017
On 27 January 2010 Centrelink granted Mr Saso Cacoroski the disability support pension (DSP) under s 94 of the Social Security Act 1991 (the Act) due to an impairment of his mental health function arising from Post-Traumatic Stress Disorder (PTSD). Centrelink is the service delivery agency for the Department of Social Services.
On 2 July 2016, Centrelink suspended Mr Cacoroski’s DSP[1] on the basis that he exceeded the maximum portability period for payment under s 1217 of the Act. Mr Cacoroski requested that the portability period be extended. On 12 August 2016 Centrelink decided not to extend the portability period. Mr Cacoroski sought a review of those decisions. A Centrelink Authorised Review Officer (ARO) reconsidered those decisions; and on 18 August 2016, decided to affirm them.
[1] Section 80 of the Social Security (Administration) Act 1999 empowers the Secretary to suspend the DSP where it is not payable under the Act.
On 12 August 2016, Mr Cacoroski applied for unlimited portability of his DSP because he claimed he was “legally blind”. On 29 August 2016, Centrelink made a decision that Mr Cacoroski did not qualify for unlimited portability of his DSP due to his vision impairment. An ARO reconsidered this decision and affirmed it on 1 October 2016.
Mr Cacoroski made an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the SSCSD) seeking a review. On 1 November 2016 the SSCSD affirmed the decision to suspend Mr Cacoroski’s DSP as from 2 July 2016. Mr Cacoroski then sought review of the SSCSD decision by the General and Other Division of the Tribunal (this Tribunal).
For the reasons set out below, this Tribunal affirms the decision to suspend Mr Cacoroski’s DSP as from 2 July 2016. Mr Cacoroski returned to Australia on 4 September 2016 and his DSP payments were reinstated as from that date.
THE ISSUES
For the Tribunal to determine whether Mr Cacoroski’s DSP payments were appropriately suspended from 2 July 2016 until 4 September 2016, it was necessary to determine whether his portability period commencing on 4 June 2016 should have been extended under s 1218C of the Act or alternatively; and secondly, whether unlimited portability applied to Mr Cacoroski at the time he departed Australia on 4 June 2016 due to his vision impairment. The first of these questions required consideration of whether Mr Cacoroski was unable to return to Australia due to any of the events listed in s 1218C(1) of the Act; and if so, whether that event occurred or began during the period of absence within the meaning of s 1218C(2) of the Act. These are the conditions precedent required to be met before any discretion to extend the portability period was enlivened under s 1218C of the Act.
FACTUAL BACKGROUND
Travel to Macedonia
Mr Cacoroski departed Australia on 4 June 2016 and travelled to Macedonia. He tendered no documentary evidence indicating when, where and from whom his tickets were purchased and how much they cost.
Mr Cacoroski gave evidence that the reason he travelled to Macedonia was that he was “struggling with sleep deprivation from my neighbour’s dogs and was on the verge of a breakdown”. He said his doctors had advised him to “get away”.
The flights were purchased through Astoria Travel, a travel agency based in Macedonia. Mr Cacoroski said he chose this particular travel agency because he was able to buy his flights at a “cheap rate”. Mr Cacoroski said he purchased the ticket “about three months prior to departure” and that they cost “around $2,000”. When asked whether he had retained a record or copy of the Western Union transaction that took place to transfer the money for the flights, he said “the international lawyer does”. He also explained that the recent death of his father had caused trouble in the family so he could not get access to those documents. He explained that the funds for the flights had been provided by his family (his sister). He said that Western Union would not provide him with a copy as he was “not the person who did the transaction”.
Ticket for the return flight not issued
When he arrived in Macedonia, Mr Cacoroski became aware that customers of Astoria Travel were being stranded at the airport or not provided with the accommodation they had purchased through this agency. Mr Cacoroski said this did not concern him because he said he had a return flight to Australia booked for 15 July 2016. However, he said he did try, albeit unsuccessfully, to contact the travel agency “a week or two” before 14 July 2016.
Mr Cacoroski gave evidence that he intended to return to Australia within the portability period as he thought he would be able to get earlier tickets home (i.e. by bringing forward the flight that was initially booked on 15 July 2016). However, his evidence became inconsistent as he also said he thought he “was on permanent portability” or “the blind DSP”. There was also no evidence that Mr Cacoroski attempted to bring his flight forward.
Instead, Mr Cacoroski went to the airport on 15 July 2016 expecting to fly back to Australia but he was not issued with a ticket. He said he was told to come back to the airport on 20 July 2016 and he would be issued with a ticket to fly on that day. Mr Cacoroski said he contacted the police in Macedonia “around the 14 or 15 July” but they said they could not help him until after 20 July 2016, as the agency may have provided him with a ticket by that date.
Participation in the criminal proceedings and class action in Macedonia related to the travel scam
Mr Cacoroski gave evidence that sometime in July 2016 he received a summons to attend a Macedonian court to give evidence. When asked whether he received the summons during the portability period, Mr Cacoroski said he did not. He said that while he was waiting for the hearing to take place, he stayed at two hotels in Skopje (Hotel Russia on 24 and 25 July 2017 and Hotel Booshi Fashion). Then he went to stay with a friend in Ohrid. He said he returned to Skopje to give evidence. When asked where he stayed when he first arrived in Macedonia on 4 June 2016, he said caught up with friends in Prilet.
Mr Cacoroski said that the Crown Prosecutor in Macedonia had taken action and there were about 80 other people from around the world who had been “defrauded”. He said there were two lawyers proceeding with the case. When asked whether he was signed up to the class action, Mr Cacoroski said that he believed he was, although he was not sure, and had not been following it up.
Mr Carcoroski did not tender the summons under which he said he was required to give evidence or any other related documents or correspondence.
A document entitled “Minutes of the Interrogation of a Witness – An Offended Party” was contained in the bundle of documents lodged by the Department under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). The document was a certified English translation. It was a record of an interrogation of Mr Cacoroski conducted by the Public Prosecutor on 31 August 2016 in Prilep, during which Mr Cacoroski stated:[2]
I live in Melbourne – Republic of Australia, but I am from Macedonian descent and at the moment I reside here. I did not know Jasmina Chebrenski before, whereas I met Elena Jovecheska while she was staying in Australia in March 2016. I met her on tour there because she is a singer. During a conversation with Elena I told her I wanted to travel to the Republic of Macedonia, and at the same time Elena was having a telephone conversation with Jasmina who at that moment heard what I was saying and she personally offered to sell a plane ticket to me for my trip and she also said that she would sell that ticket to me at a lower price. Later, I paid to Jasmina Chebrenski an amount of 1,250AUD for a return ticket for the relation(sic) Skopje – Melbourne – Skopje. Elena has no other relation to this case except that she connected me to Jasmina Chebrenski. After that I was in touch with Jasmina and I paid to her the money. The departure date on the plane ticket was 05.06.2016 from Melbourne, while the date of return was 20.06.2106 from Skopje. The problems started at the departure because the ticket had no reservation for the return trip although I paid for that too. At the departure itself, there appeared a serious problem because the ticket was not given to me by Jasmina until the last moment, there was also no reservation on the ticket for the return trip, and one more thing, Jasmina cheated me in relation to the way the trip was supposed to happen. She told me I was going to travel by one route and I travelled by a different route. After I arrived to Macedonia I talked to Jasmina and she told me that everything was going to be in order and that she would provide a return ticket. I called Jasmina on 17.06.2016 to ask her why she still had not given me my ticket and I told her to give me the ticket within a period of 24 hours because I had paid for it. When the 24-hour period past, Jasmina had still not given me the ticket and whenever I tried to contact her, she was hiding and I could not get in touch with her. Since that day to date I have not returned to Australia and I have not been able to leave.
I announce there will be a damage claim which I cannot state the specific basis or amount and I will submit it by a civil procedure.
I have nothing further to say.
[2] Refer Supplementary T-Documents ST3.
Stated reasons why Mr Cacoroski did not return to Australia until 4 September 2016
When Mr Cacoroski was asked whether he felt compelled to stay in Macedonia, he responded that he owed money, was left stranded, and had no money to return. He also said he was “injured” by what had happened with the flights so he had to “lodge an application” in Macedonia. When it was put to Mr Cacoroski that funds amounting to in excess of $9,000 had been sent to him while he was in Macedonia and he could have purchased a return flight with those funds, he said that “in that moment, at that time, I thought I would be best to be in Macedonia”.
Mr Cacoroski gave evidence that his sister, Jessica, sent him some funds. When questioned why he did not use those funds to purchase a return flight to Australia, he said that it would have cost over $3,000 for the flight as it was a “last minute” fare and it was peak season. He also said the funds were given to him for the purpose of paying back money he owed to some people, to pay for his living expenses and then, to buy his flights to return home. He said “the objective was to get the money or ticket back”. He also said he needed extra money ($500) to send his suitcases home to Australia.
When questioned about what impact the criminal proceedings had on his decision to stay in Macedonia, Mr Cacoroski said “it impacted on my finances, person and mental health. I require justice. I was told I was required to remain until I had provided the statement”.
When further questioned, Mr Cacoroski said he explained to the Police that he was not in a financial position to remain in Macedonia and he was told by them to contact the Australian Embassy. He said he contacted the Embassy.[3] The Embassy advised him to contact Centrelink.
LEGISLATIVE FRAMEWORK
[3] Refer Supplementary T-Documents ST5, which is an email from the Department of Foreign Affairs and Trade to Mr Carcoroski extracted the DFAT record dated 5 August 2017. This record indicates that Mr Carcoroski contacted the Honorary Consul in Skopje on 3 August 2017 seeking financial assistance. The Honorary Consul advised Mr Carcoroski to contact the Embassy.
Maximum portability period
Chapter 4 of Part 4.2 of Division 2 of the Act deals with the portability of social security payments.
Section 1213 of the Act provides:
This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:
(a)immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of s 1217; or
(b)during the period of absence, the person’s claim for such a payment is granted under the Social Security (Administration) Act 1999.
Section 1215 of the Act provides:
1) If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
a)throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
b)throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person…
The table at the end of s 1217 of the Act (Table) prescribes maximum portability periods for recipients of different types of social security payments for absences from Australia for different reasons. Relevant to this application, Items 2 and 2AA apply to Australian resident disability support pensioners. Item 2AA does not apply in this case as Mr Cacoroski was not absent for the purpose of seeking medical treatment, to attend to an acute family crisis or for a humanitarian purpose. Item 2 applied to Mr Cacoroski and it prescribed a maximum portability period applicable of 28 days (whether consecutive or not) for any temporary absence from Australia for any purpose in the last 12 months.
For the period 4 June 2016 to 1 July 2016, this meant that a recipient of the DSP, such as Mr Cacoroski, was allowed to remain overseas for a maximum of 28 days and during that time he would continue to receive DSP payments. Mr Cacoroski was required to apply for an extension of his portability period by the Secretary for those payments to continue beyond 2 July 2016. Alternatively, a determination must have been made before he departed Australia on 4 June 2016 to grant him unlimited portability.
Extension of a portability period
A discretion to extend a portability period arises under s 1218C of the Act if a person is unable to return to Australia on account of one of a number of prescribed events. Relevantly, s 1218C(1) provides:
(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:
…
(e) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(f) robbery or serious crime committed against the person or a family member of the person
…
There are a number of other listed events in s 1218C(1) but none of them appear to apply, nor did either party contend that they applied in Mr Cacoroski’s case.
Section 1218C(2) of the Act sets out additional requirements that must be met before the Secretary may extend the portability period. Relevantly:
(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) …
Unlimited portability
Section 1215 only applies “if the person’s maximum portability period for the payment is not an unlimited period”. Section 1218AAA of the Act provides that a person may be granted an unlimited portability period for the DSP if:[4]
(a)they are receiving the DSP;
(b)they are severely impaired;
(c)will be so for at least five years; and
(d)the impairment would prevent them from performing work independently of a program of support within the next five years.[5]
[4] Section 1218AA of the Act also allows for a determination to be made which, in effect, grants unlimited portability to a disability support pensioner, however, one of the mandatory qualifying criteria is that the person is terminally ill – this was not relevant in the present application.
[5] Refer s 1218AAA(1) of the Act.
Further, the Secretary must not grant unlimited portability if the DSP recipient is outside of Australia unless they are not able to return to Australia because of a serious accident involving the person, or hospitalisation of the person, and the person’s portability period had not ended at the time of either of those events.[6]
[6] Refer s 1218AAA(2) of the Act.
CONSIDERATION
Was Mr Cacoroski unable to return to Australia due to a legal requirement imposed on him to remain outside of Australia in connection with criminal proceedings?
The Tribunal is able to infer that the interrogation of Mr Cacoroski on 31 August 2016 took place as part of a criminal proceeding due to the reference in the Interrogation Minutes referred to in paragraph [16], that it took place in accordance with the Code of Criminal Procedure and was conducted by the Public Prosecutor.
The Tribunal notes that the Interrogation Minutes included a reference to Mr Cacoroski having been “summoned”. However, Mr Cacoroski tendered no summons documents or related correspondence. Nor did Mr Cacoroski make any contentions with respect to the operation of Macedonian laws in his situation (an Australian citizen visiting that country), which compelled him to remain in Macedonia until such time as he complied with the summons.
The Tribunal finds that there was insufficient documentary evidence tendered to demonstrate that a legal requirement was imposed upon Mr Cacoroski to remain in Macedonia in connection with criminal proceedings, or that he was unable to return to Australia due to this event. In coming to this conclusion, the Tribunal acknowledges that the event need not make it physically impossible for Mr Cacoroski to return to Australia; but instead that, “Practical inability to return, owing to the circumstances created by the event, will be sufficient.” – as Justice Gray held at [32] of the Full Court of Federal Court of Australia decision Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29 (Mouratidis).
Instead, the Tribunal finds, on the evidence before it, that the reasons Mr Cacoroski remained in Macedonia were:
(a)initially, from 2 July 2016 to 15 July 2016, simply because he elected to do so, noting his plan was always to return to Australia on 15 July 2016 as reflected by Mr Cacoroski’s oral evidence that this was the date of his return flight. While he may have had the option of bringing his flight forward from 15 July 2016, he did not, at any stage, seek to do so; and
(b)subsequently, from 16 July 2016 until 4 September 2016, due to his personal sense of wanting “justice to be done” in relation to the travel scam of which he was a victim, and wanting to get his money or ticket back. The Tribunal does not construe this as a legal requirement.
Did the imposition of any legal requirement begin or occur during the period of absence?
If the Tribunal is wrong about the existence of a legal requirement, it finds that the imposition of any such legal requirement through the service of a summons on Mr Cacoroski[7] did not begin or occur during the period of absence within the meaning of s 1218C(2) of the Act for the reasons given below.
[7] To be interrogated by the Public Prosecutor in Primary Public Prosecution No. 566/16.
Mr Cacoroski’s oral evidence was that he was summoned “sometime in July 2016”. Intuitively, it would seem that this took place at some point after 15 July 2016, which was first day that Mr Cacoroski attended at the airport expecting to be issued with a return ticket and found out that this was not to be the case. Mr Cacoroski gave evidence at the hearing that he went to the Police in Skopje. He was asked when this occurred and he answered, “I think it was on the 14th or 15th of July”. The Minutes do not otherwise provide any information about the precise date when he was notified of or served with the summons and as mentioned above. The Tribunal does not have the benefit of access to the primary summons documents addressed to Mr Cacoroski as they were not tendered into evidence.
Accordingly, the Tribunal finds on balance, that any legal requirement arising from the issue of the summons referred to above, arose at some point after 15 July 2016 (and before 31 August 2016). This is after the expiry of Mr Cacoroski’s portability period which commenced on 4 June 2016 and ended on 1 July 2016.
A question of interpretation arose as to whether the period of absence as referred to in s 1218C(2) of the Act was synonymous with or limited to the portability period from 4 June 2016 to 1 July 2016, or whether it constituted the entire period during which Mr Cacoroski was absent from Australia, being from 4 June 2016 to 4 September 2016. The Tribunal acknowledges the assistance provided by the parties in their detailed submissions on this issue.
On this question, Mr Cacoroski sought to gain support from the findings in Mouratidis. However, the Tribunal accepts the Respondent’s contention that Mouratidis is distinguishable from the facts in Mr Cacoroski’s application and consequently, that it dealt with different legal issues. Importantly, the Full Court in Mouratidis did not engage in any specific consideration of whether the reference to period of absence in s 1218C(2) of the Act was limited to the portability period only.
Senior Member Isenberg of this Tribunal in Majidi and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 309 (Majidi) made the following findings about this issue, at paragraph [72] (emphasis added):
In Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989, the Tribunal, in referring to s 1218C(2) observed that the event referred to in subs (1) must occur or begin during a period of absence. The Tribunal there found, and I agree, that it must follow that in order for the portability period to be extended beyond the 13 week period, the event must have occurred during the portability period. If account was to be taken of an event that occurred outside the portability period, the portability period could not be extended within the meaning of s 1218C(2) for it would have already expired.
The Tribunal also notes the approach of Senior Member Fice of this Tribunal more recently, in Farah and Secretary, Department of Social Services (Social services second review) [2015] AATA 675, at paragraph [26]:
…Mr Farah’s travel documents prepared before he left Australia to go to Lebanon plainly indicate he did not plan to return until almost one week after the six week portability period had concluded. On that basis alone, his DSP payments would have been cancelled on 19 July 2014. In those circumstances, his portability period could not have been extended in any event because he would not have satisfied s 1218C(2) of the Social Security Act.
Further, the Tribunal notes the observations of Member Hyman[8] about the limitations within s 1218C of the Act at [58] in the decision of Re Rainsford and Secretary, Department of Social Services [2104] AATA 735 (emphasis added):
Section 1218C of the SSA which parallels s 63A of the FA Act sheds some light on how the latter should be construed. Section 1218C contemplates that a person may qualify for a benefit in Australia, and then go overseas. The portability provisions limit the period the benefit may be received while the recipient stays overseas, but the discretion in s 1218C allows the period to be extended where there are circumstances beyond the person’s control — falling into the enumerated categories — that render the person unable to return. There are two main effects of the limitations to the time at which the relevant circumstances enliven the discretion: first, a person to whom the relevant circumstances apply before departing Australia may not claim the exercise of the discretion (for example if a person suffered from a serious illness before leaving Australia, that person could not claim the benefit of the discretion because the illness would not have arisen in the 13 weeks following departure); and a person who stays overseas for an extended period cannot claim the exercise of the discretion if the relevant circumstances arise after the first 13 weeks of their absence. In the latter case, it is plain that the circumstances in question could not have been the cause of extending the overseas absence beyond the 13 weeks provided for.
[8] The Tribunal acknowledges these observations were made in the context of determining an application regarding family tax benefits, not DSP.
The Tribunal agrees with the approach taken in Re Krouskos, and the reasons for which this approach was adopted in Majidi as emphasised in paragraph [40] above. The Tribunal concludes that the period of absence in s 1218C(2) is synonymous with or limited to the portability period and does not extend to the entire period during which the person is absent from Australia.
Applying this approach, and based on the Tribunal’s finding in paragraph [37], the Tribunal concludes that the imposition of any legal requirement on Mr Cacoroski upon being served with the summons (if there was any legal requirement) did not begin or occur during the portability period from 4 June 2016 to 1 July 2016. For this reason, the requirements of s 1218(C)(2) of the Act were not met and consequently, the Tribunal’s discretion under s 1218C(1) was not enlivened by reason of the summons.
Was Mr Cacoroski unable to return to Australia due to a robbery or a serious crime committed against him?
Mr Cacoroski contended that a serious crime was committed against him as he paid Astoria Travel for a return flight and although he received the ticket for the outgoing flight, he was not provided with a return ticket home on 15 July 2016, 20 July 2016, or at any later time. It appeared from the Interrogation Minutes[9] that the conduct of Astoria Travel related to this “travel scam” was prosecuted in Macedonia under the Code of Criminal Procedure. The Secretary did not contest the seriousness of the crime said to be committed against Mr Cacoroski. While acknowledging the evidence is scant, on balance, the Tribunal finds that a serious crime was committed against Mr Cacoroski.
[9] Refer Supplementary T-Documents ST3.
The Secretary contended that even if this event did occur and it began or occurred within the portability period, it did not render Mr Cacoroski unable to return to Australia. Detailed submissions were made about Mr Cacoroski’s access to significant funds in the order of $9,165 that were deposited into his bank account after his maximum portability period had expired, often in sums of $1,000 or more, which the Secretary contended could have been used to purchase an additional flight home. Instead, Mr Cacoroski spent approximately $2,900 in accommodation and other costs before returning to Australia.
The Tribunal accepts the Secretary’s contentions as set out in paragraph [46] and finds that Mr Cacoroski was not able to establish on the evidence that he had a practical inability to return to Australia owing to the circumstances created by the travel scam. The evidence revealed that he was provided with money to buy a replacement ticket. Paragraph [34] above sets out the Tribunal’s findings as to the reasons why Mr Cacoroski elected to remain in Macedonia after he realised that the return ticket would not be issued by Astoria Travel.
For these reasons, the Tribunal finds that the conditions precedent in s 1218C(1) are not met in Mr Cacoroski’s case in relation to the serious crime committed against him arising from the travel scam.
Mr Cacoroski contended that “a person without a severe mental illness may have made different choices in the circumstances but the Applicant had a severe mental illness and his practical inability to return must be considered in light of that fact”.[10] The Secretary disagreed and contended that the assessment of whether the event created a practical inability to return should not be assessed on a subjective basis. The Tribunal considers that an objective assessment is appropriate to determine whether Mr Cacoroski satisfied the conditions precedent in s 1218C(1) of the Act. Those requirements are established by Parliament and should apply equally and objectively to all DSP recipients to maintain parity.
[10] Refer page 4 of the Applicant’s Further Submissions lodged 4 April 2017.
However, once the Tribunal is satisfied that the conditions precedent are met, and thereafter is required to exercise its discretion as to whether to extend the portability period, the Tribunal considers that it would be appropriate to take into account all relevant factors. One factor may well be the personal circumstances and medical conditions of the person seeking the extension. This consideration does not assist Mr Cacoroski because in this application the discretion to extend the portability period was not enlivened.
Did the serious crime occur or begin during the period of absence?
It was not clear to the Tribunal from the evidence when this event began or occurred. It might be taken to have begun or occurred on the date of purchase of the flight before Mr Cacoroski left Australia if Astoria Travel at that time had no intention of providing the return flight. Alternatively, it might be taken to have begun or occurred at a much later point in time when Astoria Travel subsequently decided that it would not proceed, as agreed, to provide the return ticket to Mr Cacoroski.
The Tribunal does not have sufficient evidence before it to determine precisely when this event began or occurred. It can only be certain, based on the limited evidence before it, that by 15 July 2016, the serious crime began or occurred as Mr Cacoroski was not provided with his return flight ticket on that day when he arrived at the airport. However, this does not satisfy the requirements of s 1218C(2) of the Act, as the event had not begun or occurred during the portability period from 4 June 2016 to 1 July 2016.
For this reason, the requirements of s 1218(C)(2) of the Act were not met and consequently, the Tribunal’s discretion under s 1218C(1) was not enlivened by reason of the serious crime arising from the travel scam.
Did unlimited portability apply to Mr Cacoroski at the time he departed Australia?
Mr Cacoroski said that he had provided Centrelink with his “myki vision impaired travel card” to show that he was legally blind. It appears that Centrelink took a photocopy of this card.[11] It was date-stamped 7 December 2015, being many months before Mr Cacoroski purchased his flights for the trip to Macedonia and some six months before he departed Australia. Mr Cacoroski tendered no document as evidence that he had made a request on or shortly following 7 December 2015, for the Secretary to make a determination that he be granted unlimited portability, or any Ophthalmologist Report or Centrelink SA013 assessment form.
[11] Refer Supplementary T-Document ST1.
The Tribunal finds that the Secretary did not make any determination under s 1218AAA to grant Mr Cacoroski unlimited portability on or shortly after 7 December 2015. In a telephone call with Centrelink on 12 August 2016,[12] Mr Cacoroski claimed that “he would and should be entitled to extended portability based on the fact that he has a permanent disability; he is legally blind and has no work capacity”. It appears that Mr Cacoroski was prompted during this telephone conversation to supply a Centrelink SA013 form.[13]
[12] Refer note created by Centrelink of that telephone conversation at T-Documents T16/66.
[13] Refer T-Documents T16/66.
On 23 August 2016, Dr R Mehta, Ophthalmology Registrar at the Royal Victoria Eye & Ear Hospital in Melbourne, completed a Centrelink SA013 form entitled “Request for Ophthalmologist/Optometrist Report – Age Pension or Disability Support Pension – on the basis of blindness”.[14] However, s 1218AAA(2) of the Act, reproduced below, meant that irrespective of the findings in this report, it was too late for any determination to be made by Centrelink to grant Mr Cacoroski unlimited portability under s 1218AAA(1) with respect to payment of his pension between his departure from Australia on 4 June 2016 and return on 4 September 2016:
[14] Refer T-Documents T10.
(2)The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia because of either of the following events:
(a)the person is unable to return to Australia because of either of the following events:
i.a serious accident involving the person;
ii.the hospitalisation of the person; and
(b)the person’s portability period for disability support pension had not ended at the time the event occurred.
On the evidence, neither of the events set out in s 1218AAA(2)(a)(i) or (ii) of the Act took place. Mr Cacoroski was not involved in a serious accident nor was he hospitalised. On 29 August 2016, the Secretary made a decision that Mr Cacoroski was not entitled to unlimited portability. This meant that the 28-day portability period applied to Mr Cacoroski at the time he departed Australia and operated to preserve the payment of his DSP until 1 July 2016, but on 1 July 2016, the portability period expired.
CONCLUSION
The Tribunal concludes that Mr Cacoroski’s DSP payments were appropriately suspended on 2 July 2016 at which time the 28-day portability period, which applied to him as at that date, expired.
On 12 August 2016 Mr Cacoroski requested that a determination be made that he be granted unlimited portability on account of his vision impairment. However, this request was too late. The Secretary did not grant this request; but even if the Secretary had, this would not have prevented Mr Cacoroski DSP payments from being suspended on 2 July 2016 as any such grant does not operate retrospectively.
For the reasons set out in paragraphs [31] to [53], in relation to the travel scam impacting on Mr Cacoroski on 15 July 2016 and the subsequent issuing of the summons, the Tribunal concludes that the conditions under s 1218C(1) and the timing requirement under s 1218C(2) in relation to each of those two events, had not been met by Mr Cacoroski. Therefore, the discretion to extend the portability period commencing on 4 July 2016 and expiring on 1 July 2016 had not been enlivened and was not exercised to extend this portability period.
As at 2 July 2016, Mr Cacoroski’s DSP had expired and by operation of s 1215(1)(b) of the Act between 2 July 2016 and 4 September 2016, the DSP was not payable to Mr Cacoroski. Mr Cacoroski’s DSP was correctly suspended by the Secretary under s 80 of the Social Security (Administration) Act 1999 as from 2 July 2016 as it was not payable under the Act.
Accordingly, the Tribunal affirms the decision to suspend Mr Cacoroski’s DSP as from 2 July 2016.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
....................................[sgd]....................................
Associate
Dated: 13 July 2017
Date of hearing: 28 March 2017 Applicant: By phone Advocate for the Applicant: Mr D Meadows, Social Security Rights Victoria
Advocate for the Respondent: Mr J Henderson, Department of Human Services FOI & Litigation
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