Dagher and Secretary, Department of Family and Community Services

[2004] AATA 990

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 990

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/529

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTONIOS DAGHER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Senior Member Mrs Josephine Kelly

Date18 August 2004

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal dated 6 March 2003 is affirmed.

[sgd] Mrs Josephine Kelly, Senior Member

REASONS FOR DECISION

18 August 2004 Senior Member Mrs Josephine Kelly      

1.      This is my decision in the matter of Antonios Georges Dagher and The Secretary, Department of Family and Community Services, proceedings number N2003/529.  In these proceedings, Mr Bartley, solicitor, appeared for the applicant, Mr Dagher.  Mr Larcombe appeared for the respondent, the Secretary, Department of Family and Community Services.

BACKGROUND

2.        The decision under review is the decision of the Social Security Appeals Tribunal dated 6 March 2003, which affirms Centrelink's decision to reduce Mr Dagher's rate of aged pension during his absence from Australia by 167 three hundredths.  The facts in the case are not in dispute.

3.        Mr Dagher was born in Lebanon on 15 November, 1922.  He is now 82 years of age.  He first arrived in Australia on 28 December 1973.  He was granted the aged pension on 15 November 1987.

4.        On 30 March 1998, Mr Dagher left Australia for Lebanon. He returned to Australia on 11 February 2001.  On 7 March 2002, Mr Dagher left Australia again for Lebanon.  On 16 November 2002, Centrelink issued a letter advising Mr Dagher of reduction of the rate of aged pension after 5 September 2002.  On 18 November 2002, Centrelink issued another letter advising Mr Dagher of a reduction of the rate of aged pension after 5 September 2002.

5.        On 18 November 2002, Centrelink proportionalised the applicant's rate of aged pension by multiplying the rate payable by 176 three hundredths.  On this date an overpayment debt was also raised against him for the period 5 September 2002 to 17 November 2002 .  On 16 December 2002 the authorised review officer affirmed the decision, but waived the overpayment amount.

6.        The Social Security Appeals Tribunal reviewed the decision and gave its decision on 6 March 2003.  The current proceedings were commenced in this Tribunal on 31 March 2003.  I note there was also a claim for compensation for detriment due to defective administration lodged on 9 September 2003.

THE LAW

7. Under section 1211 of the Social Security Act 1991, (“the principal Act”), if the Social Security International Agreements Act 1999, (“the International Agreements Act”) applies to the payment of a pension overseas, the provisions of the principal Act do not apply

8. There is no agreement listed with Lebanon under the International Agreements Act. Therefore, it is agreed that, in this case, the International Agreements Act does not apply and the provisions of the principal Act apply to Mr Dagher.

9.        That raises the question whether Mr Dagher is subject to the amendments made to the principal Act which took effect on 20 September 2000, in relation to portability of pensions.  Those amendments came into force during Mr Dagher's absence from Australia during the period 30 March 1998 until 11 February 2001.

10.      The question is therefore whether the saving provision, clause 128 of schedule 1A of the principal Act, applies to Mr Dagher such that he is exempt from the operation of the 2000 amendments.  The relevant provision of the principal Act is section 1220A, which provides:

“Proportionality - age pension rate

A person's rate of age pension is to be calculated using the Pension         Portability Rate Calculator at the end of section 1221 if:

(a) the person has been continuously absent from Australia, throughout a           period (the period of absence) of more than 26 weeks; and

(b) either:

(i) immediately before the period of absence commenced, the person                  was receiving the age pension; or

(ii) during the period of absence, the person's claim for the age pension is granted under the Social Security (Administration) Act 1999.”

11.      Relevantly, if the provision applies to Mr Dagher, the effect is he receives the full age pension in Australia, but receives a lower rate determined in accordance with the pension portability rate calculator once he has been continuously absent from Australia, relevantly in Lebanon, for more than 26 weeks.   There is no dispute that he has been receiving the age pension since 15 November 1987.  There is also no dispute in this case about the actual calculation if section 1220A applies.

12.      Clause 128 of schedule 1A of the principal Act, a saving and transitional provision, provides:

“Saving Provision - Portability Rules Relating to Rules of Pension.

(1)  Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1220B        and 1221 of this Act made by the Social Security and Veterans’ Entitlements     Legislation Amendment and Veterans Entitlements Legislation Amendment        (Miscellaneous Matters) Act 2000, if:

(a)  a person was absent from Australia immediately before 20   September 2000; and

(b)  at a time (the post-start time) after 20 September 2000, the person                had not returned to Australia for a continuous period of 26 weeks or                more since 20 September 2000;

those provisions continue to apply to the person at the post start time as if           those amendments had not been made.”

13.      It is clear that Mr Dagher satisfied clause 128(1)(a) as he was absent from Australia immediately before 20 September 2002.

THE SUBMISSIONS

14.      The dispute in this case is about the meaning of clause 128(1)(b).  Mr Bartley, appearing for Mr Dagher, submitted that the 26 weeks in clause 128(1)(b) refers to the period 20 September 2000 to 20 March 2001.  That is, if a person returns to Australia within that period, the saving provision applies.  He distinguished clause 128 and 130 by the headings to the provisions, that is, that clause 128 addresses rates of pension, and clause 130 refers to other portability rules.

15.      Mr Bartley referred to section 1214 of the principal Act, which applies where the person's maximum portability period is an unlimited period, and section 8 of the Acts Interpretation Act 1901 (Cth), which protects specified rights and obligations when an Act repeals or amends an Act unless the contrary intention appears.  He emphasised that Mr Dagher had a right to a pension and the 2000 amendments had adversely affected that right.

16.      Mr Larcombe, for the department, submitted that clause 128(b) means that if a person returns to and stays in Australia at any time for a continuous period less than 26 weeks at any time after 20 September 2000, the person is protected by the saving provision.   However, if the person returns to Australia and stays for a continuous period of 26 weeks or more after 20 September 2000, the provision ceases to apply and the relevant provision of the principal Act applies.  That is, in Mr Dagher's case, section 1220A applies as described above.

CONSIDERATION

17.      As Mr Bartley submitted, Mr Dagher had an entitlement to an age pension. That is not in dispute.  The dispute relates to the rate of the pension he is entitled to receive.  In my opinion, the legislative scheme is clear.  Mr Dagher's entitlement was not affected, but the rate at which the pension is payable when he is overseas was.  I agree with Mr Larcombe that Mr Dagher, having returned to Australia after 20 September 2000, and having remained continuously for more than 26 weeks, is not entitled to the protection of the saving provision clause 128 of schedule 1A of the principal Act.

NOTE

18.      Mr Dagher was given an opportunity to speak to the Tribunal and provide copies of medical reports from Lebanon in support of the proposition that he is not well.  Apart from his bad health, he complained that no one he spoke to at Centrelink told him of the effect of the amendments to the principal Act.  However, that material was not admitted into evidence.  It was not relevant to the consideration of the matter before the Tribunal.

19.      I note that a claim for compensation for detriment due to defective administration has been lodged on 9 September 2003.  However, that was not a matter before the Tribunal.

DECISION

20.      The decision under review, that is, the decision of the Social Security Appeals Tribunal dated 6 March 2003, is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mrs Josephine Kelly

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  17 August 2004
Date of Decision  18 August 2004
Solicitor for the Applicant          R J Bartley
Advocate for the Respondent   J Larcombe