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

This matter concerned an appeal by Mr Cacoroski against the Secretary of the Department of Social Services regarding the suspension of his Disability Support Pension (DSP) payments. The core dispute revolved around whether Mr Cacoroski's portability period, which commenced on 4 June 2016, should have been extended under section 1218C of the Social Security Act 1991 (the Act), or alternatively, whether unlimited portability applied to him due to his vision impairment at the time he departed Australia on 4 June 2016. The Tribunal was required to determine if Mr Cacoroski was unable to return to Australia due to events listed in section 1218C(1) of the Act, and if such an event occurred or began during his absence as per section 1218C(2).

The Tribunal considered whether Mr Cacoroski was unable to return to Australia due to a legal requirement imposed on him in connection with criminal proceedings in Macedonia. While the Tribunal inferred that an interrogation on 31 August 2016 was part of criminal proceedings, it found insufficient documentary evidence to demonstrate that a legal requirement compelled Mr Cacoroski to remain in Macedonia. The Tribunal concluded that his initial reason for remaining was his election to do so, with a planned return on 15 July 2016, and subsequently, his desire to pursue a travel scam. The Tribunal also found that even if a legal requirement had been imposed, it did not begin or occur during his period of absence as required by section 1218C(2). Furthermore, the Tribunal noted that Mr Cacoroski was not involved in a serious accident or hospitalised, which are events that could trigger unlimited portability under section 1218AAA(2).

The Tribunal affirmed the decision to suspend Mr Cacoroski's DSP payments from 2 July 2016. This suspension was based on the expiry of his 28-day portability period on 1 July 2016. The Tribunal found that the conditions precedent for extending the portability period under section 1218C were not met, and therefore, the discretion to extend was not enlivened. Mr Cacoroski's request for unlimited portability due to his vision impairment, made on 12 August 2016, was considered too late and would not have operated retrospectively. Consequently, the Tribunal concluded that Mr Cacoroski's DSP was not payable between 2 July 2016 and 4 September 2016, and its suspension by the Secretary was appropriate.