Clausen and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1213

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1213

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/92 &        

GENERAL ADMINISTRATIVE  DIVISION		)               T2005/93
Re		ADRIAN E A CLAUSEN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date9 December 2005

PlaceHobart

Decision The Tribunal affirms the decisions made by Centrelink on 20 November 2004 and 27 May 2005.

[Sgd.Mary Imlach]

Senior Member

CATCHWORDS

disability support pension - criminal proceedings - robbery and serious crime

Social Security Act 1991 s1217, s1218C (1) (2) and (3)

REASONS FOR DECISION

Miss Mary Imlach (Senior Member)         

1. Mr Adrian Clausen was the recipient of a disability support pension which was cancelled on 8 January 2005 and 6 June 2005. The reason for the cancellation of Mr Clausen’s pension was his absence overseas for a period in excess of 13 weeks which was not an allowable absence within the meaning of s1217 of the Social Security Act 1991.

Issues

2.      For what length of time is a disability support pension (DSP) payable to Mr Clausen following his departures from Australia.

Facts

3.      Mr Clausen has been in receipt of DSP since August 1999. 

4. On 21 August 2004 he departed Australia for South Africa. He was paid DSP until 19 November 2004 in accordance with the portability provisions of s1217 of the Social Security Act 1991. His DSP was suspended with effect from 20 November 2004.

5.      Mr Clausen advised Centrelink on 8 November 2004 that he had been robbed on 29 October 2004.  He provided on or about 11 November 2004 a statement and a copy of a court document relating to a matter between himself as plaintiff and the Minister for Justice as defendant.  He also said at this time that he had initiated a civil matter against the State and needed time to pursue this matter.  He claimed that he had insufficient funds to purchase a return ticket to Australia.

6.      Mr Clausen provided some evidence of a robbery to Centrelink on 7 December 2004.  The Social Security Appeal Tribunal (SSAT) found that this evidence was not relevant to the event which took place on 29 October 2004.

7.      In support of his request for extended portability Mr Clausen provided an affidavit dated 23 December 2004 in which he said:

“I was robbed of cash, intended for a return air-ticket to Australia.  I reported the incident to Caledon Square Police (Central) on Friday 29 October 2004 ...”

8.      Mr Clausen provided on or about 4 January 2005 a form from the South African police relating to a report of house-breaking and assault.  The person making the report was not identified and the document only related to a report and not to criminal proceedings.

9. Centrelink nevertheless decided on 24 December 2004 to extend payment of Mr Clausen’s DSP up to 7 January 2005 under s1218C of the Social Security Act 1991 on the grounds that he had suffered a robbery. The reference to the evidence of this decision (T6 p46) of the documents produced in evidence disclosed that the officer approving the decision to extend noted that Mr Clausen had provided some evidence “albeit weak” that he had been robbed.

10.     Mr Clausen asked for a review of this decision and on 10 February 2005 an Authorised Review Officer (ARO) determined it had been correctly decided.

11.     Mr Clausen then appealed to the SSAT who determined on 18 July 2005 that Centrelink had applied the correct law.

12.     Mr Clausen returned to Australia on 26 February 2005.  He returned to South Africa on 8 March 2005 and was advised by Centrelink that his DSP was portable until 6 June 2005.

13.     Mr Clausen advised Centrelink that he could not return to Australia as he had again been the victim of an alleged robbery on 10 May 2005.

14.     Centrelink did not accept that the alleged robbery prevented Mr Clausen from returning to Australia and on 27 May 2005 refused to grant a further extension of portability of his DSP.

15.     Mr Clausen requested a review by an ARO and on 9 June 2005 the ARO affirmed the decision not to pay further DSP.

16.     Mr Clausen then appealed to the SSAT which confirmed that Centrelink had applied the law correctly in both its decisions of 24 December 2004 and 27 May 2005.

Applicable Legislation

17.     Mr Clausen was in receipt of a DSP before he left Australia for South Africa on 21 August 2004 and 8 March 2005 and was entitled to this payment for 13 weeks whilst outside Australia from 21 August 2004 to 19 November 2004 and from 8 March 2005 to 6 June 2005 under the portability provisions contained in sections 1213 and 1217 of the Social Security Act 1991 (SSA). Section 1218C of the SSA provides discretion for extension of a person’s portability. The section provides:

“1218C.(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:

(a)       a serious accident involving the person or a family member of the person;

(b)       a serious illness of the person or a family member of the person;

(c)       the hospitalisation of the person or a family member of the person;

(d)       the death of a family member of the person;

(e)       the person’s involvement in custody proceedings in the country in which the person is located;

(f)        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);

(g)       robbery or serious crime committed against the person or a family member of the person;

(h)       a natural disaster in the country in which the person is located;

(i)        political or social unrest in the country in which the person is located;

(j)        industrial action in the country in which the person is located;

(k)       a war in the country in which the person is located.

1218C.(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)       if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.

1218C.(3)  If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period”.

Evidence and Submissions of Mr Clausen

18. Mr Clausen, who represented himself, contended that he met the requirements of sub-sections 1218C(1) (f) and (g) on the basis that he was unable to return to Australia because of the legal requirements to remain in South Africa in connection with criminal proceedings and because of robberies committed against him. He claimed that he met the requirements of section 1218C(2) as these events had occurred during the period of his overseas absences from 21 August 2004 to 26 February 2005 and his overseas absence after 8 March 2005.

19.     Mr Clausen provided copies of documents to Centrelink to support his contentions which were:

(a)      Part of a summons bearing a receipt stamp marked “Registrar High Court 2004-11-11” showing Mr Clausen as the plaintiff and the Minister for Justice as the defendant.  The copy did not disclose any other details.

(b)      Letter dated 11 November 2004 from Mr Clausen to the Minister of Safety and Security stating that it was his intention to initiate an action for damages in relation to a matter which had taken place in October 1990.

(c)       Letter dated 18 November 2004 from the Private Secretary to the President of South Africa, Mr Mbeki acknowledging a letter dated 14 October 2004 from Mr Clausen to the President stating the matter had been referred to the Ministers of Safety and Security and Health.

(d)      Letter from the Office of the South African Human Rights Commission dated 30 November 2004 stating they had received a complaint from Mr Clausen on 26 November 2004.

(e)      Affidavit dated 23 December 2004 by Mr Clausen lodged with Cape Town Police Station in which he stated that he “was robbed of cash, intended for a return ticket to Australia ...”.

(f)       Police reports dated 4 January 2005 bearing stamps of Cape Town Station Commissioner relating to housebreaking and assault.  The housebreaking bears the case number 302-1-2004 and the assault 300-1-2005.  They contain no names of the reporter or perpetrator of the offences.

(g)      Summons from the High Court of South Africa dated 28 January 2005 showing Mr Clausen as the plaintiff and the Minister for Safety and Security as the defendant and stating that on 25 January 2005 Mr Clausen had served the summons together with particulars of the claim.  No copy of the particulars of claim was produced.

(h)      Affidavit by Mr Clausen dated 1 February 2005 lodged with Cape Town Station Commissioner stating that he had laid a charge of assault at the Caledon Square Police Station (case number 300-1-2005 referred to above at (f)).  In the affidavit Mr Clausen stated “I will be required to give evidence in court in the matter and that prevents me from returning to Australia at this time”.

(i)        Affidavit of Mr Clausen dated 12 May 2005 lodged with Cape Town Police Station on 12 May 2005 stating “My wallet containing cash and a library card (now blocked) was stolen on the evening of 10 May 2005”.

Evidence and Submissions of the Secretary

20.     The Secretary contended that as Mr Clausen was on a DSP when he left Australia on 21 August 2004 and again when he left on 8 March 2005 the rules relating to portability of his pension contained in section 1213 to 1220 applied to Mr Clausen.  He was entitled only to 13 weeks of portability from each date on which he left Australia.

21. The only exception to that 13 week portability period the Secretary contended is in the very limited circumstances described in s1218C of the SSA. The Secretary has a discretion pursuant to section 1218C to extend a person’s period of portability if the Secretary is satisfied that the person is unable to return to Australia because of one of the prescribed events set out in the section. These events include a serious accident, a serious illness, hospitalisation, a legal requirement for the person to remain outside Australia in connection with criminal proceedings or robbery or serious crime committed against the person or a family member of the person.

22.     The Secretary contended that the mere fact that an event occurred is not sufficient reason to extend a person’s period of portability.  The section provides that the event must occur after the person has left Australia and during the period of portability.

23. The Secretary went on further to contend that there was no evidence before the Tribunal whatsoever of any of the events listed in section 1218C(1) preventing Mr Clausen from returning to Australia. The Secretary stated that the evidence provided by Mr Clausen of assault or robbery was in itself inconclusive.

24. It was also the contention of the Secretary that the provision in s1218C(1) is discretionary and that the discretion in this case should not be exercised, furthermore it was his contention that as Mr Clausen had failed to produce cogent evidence that events existed which prevented his return to Australia, it was not necessary to exercise the discretion.

25.     The Secretary stated that Mr Clausen had made many assertions but had provided no supporting evidence.  The evidence he had provided had gone largely to support civil actions he has initiated.

26.     It was the Secretary’s further contention that Mr Clausen had consistently placed himself in a position where he had not been able to return to Australia by not purchasing a return ticket to Australia and this despite having a propensity on his own evidence of being the victim of crime.

Consideration of Law and Findings

27. In order to determine whether any of the evidence produced by Mr Clausen supports his argument that he was unable to return to Australia before the expiration of his 13 week portability periods, it is necessary to clarify the meaning of expressions used in section 1218C(1) (f) and (g) of SSA. Osborn’s Concise Law Dictionary defines crime as: “Acts or defaults which tend to the prejudice of the community and forbidden by law on pain of punishment inflicted at the suit of the Crown”.  A criminal proceeding then is an action pursued by the Crown or the State.  “Robbery” is defined in the same dictionary as: “The taking and carrying away with violence or with threats of injury of a thing which is on the body or in the immediate presence of a person”.  The word “serious” is defined in Chambers English Dictionary as “grave”.

28.     The documentary evidence provided by Mr Clausen and referred to in clause 19(f) purport to the police reports dated 4 January 2005 relating to housebreaking and assault.  Mr Clausen was asked by the Tribunal during the hearing whether or not the police had taken action in relation to the complaint made by him of the robbery.  His reply to the question was:

“There is nothing they can do about the matter.  They won’t even – they have   refused to do anything.  There is nothing they can do in a matter like that”.

The Tribunal again asked him:

“So nothing has happened.  It is simply the complaint has been lodged?”

Mr Clausen :

“This is it and there is nothing that can be done, absolutely nothing”.

29.     It is unclear from the documentary evidence listed previously in paragraph 19 (a) and (c) to what the evidence refers.  The evidence in paragraph 19 (e) (f) and (h) (i) clearly relates to the complaints of robbery, housebreaking and assault made by Mr Clausen to the police but on his own verbal evidence he admits that the police have taken no steps to initiate criminal proceedings in relation to any of the matters raised by the complaints.

30. The matters raised by the evidence referred to in paragraph 19 (c) (d) and (g) relate to civil actions initiated by Mr Clausen and are not covered by the provisions of s1218C.

31.     The actions to which Mr Clausen refers which he is pursuing in the Equality Court relating  to homosexual discrimination are again civil matters and are irrelevant in this matter as they do not relate to criminal proceedings, robbery and serious crime.

32.     The Tribunal finds on the grounds of both the documentary and verbal evidence provided by Mr Clausen that no robbery or serious crime was committed against Mr Clausen during his overseas absences from 21 August 2004 to 26 February 2005 or from 8 March 2005 to the 6 June 2005 nor has there been any criminal proceedings for which he would be required to remain outside Australia.

33.     The Tribunal affirms the decisions made by Centrelink on 20 November 2004 and 27 May 2005.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of MISS MARY IMLACH (SENIOR MEMBER)

Signed:  R Hunt (Administrative Assistant)          

Date/s of Hearing  11 October 2005
Date of Decision  9 December 2005
Counsel for the Applicant
Solicitor for the Applicant          Applicant on his own behalf
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink