David Rodriguez and Secretary, Department of Social Services

[2015] AATA 211

[2015] AATA  211

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3437
Re	David Rodriguez
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin, QC, Deputy President
Date	10 April 2015
Place	Sydney

The Tribunal affirms the decision under review.

................................[sgd]........................................

The Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant overseas at time of claim – decision affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999 ss 11, 16, 29

Social Security (International Agreements) Act 1999 s 6

REASONS FOR DECISION

10 April 2015

The Hon. Brian Tamberlin, QC, Deputy President

1. This is an application for review of a decision by the Social Security Appeals Tribunal (SSAT) on 1 July 2014, affirming a decision by Centrelink to reject the Applicant’s claim for disability support pension (DSP) made on 3 March 2014. The issue in the case is whether the Applicant can make a claim for DSP from the Republic of Serbia.

   BACKGROUND

2. On 3 February 2014 the Applicant lodged the claim for the pension and listed his address as an address in Belgrade, Serbia. On 12 March 2014 Centrelink rejected the Applicant’s claim as he was found not to have been in Australia when he lodged his claim and he was not an Australian resident.

3. On 29 March 2014 the Applicant sought review of the decision and on the same day the original decision maker affirmed that decision.

4. On 30 April 2014 the Applicant applied for review by the SSAT which rejected the claim and affirmed the earlier decision.

5. On 3 July 2014 the Applicant applied for review by this Tribunal.

6. The relevant provisions are contained in the:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act); and

   ·Social Security (International Agreements) Act 1999 (the Agreements Act).

7. Section 11(1) of the Administration Act provides that a person who wants to be granted a social security payment must make a claim in accordance with the Division. Under s 16 a person must lodge a written claim for the payment and the claim must be in accordance with a form approved by the Secretary.

8. Pursuant to s 29(1) of the Administration Act, the claim for a social security payment or a concession card can only be made by a person who is an Australian resident or is in Australia. Pursuant to s 29(2) a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

9. The Applicant has advanced arguments in support of his claim in correspondence and has given oral evidence by telephone at the hearing before the Tribunal.

10. He pointed out that he was born in Spain in 1953 and at the age of nine migrated to Australia with his parents and some of his family. He is now 61 years old. He grew up in Wollongong and was educated in Australia, before getting married here. He presently has two children living in Australia.

11. The Applicant had a real estate practice which he managed successfully for 20 years, which grew to employ 12 people and was later developed into a national franchise. From 1984 to 2004 he worked, paid his taxes and reared his children in Australia. He was actively involved in community activities whilst in Australia. He continues to have a strong emotional attachment to Australia.

12. The Applicant had to return to Serbia because his parents had died.

13. He raised the following considerations on the review application:

    ·when he originally applied for DSP, he was granted the pension because he had clear and substantiated injuries;

    ·his injuries persisted and he presently has several other health conditions which are in themselves chronic and serious;

    ·he believed that when he was granted a pension there were no restrictions relating to his place of residence;

    ·he has lived with the assistance of family members in Serbia for a period of over eight years. His financial resources have been completely depleted, making it impossible for him to travel to Australia to lodge an application for DSP, which he believes he should receive like any other Australian; and

    ·his health has deteriorated over the past eight years and he needs to take more medications on a regular basis. If he could afford to travel it would be very difficult, if not life threating to travel to Australia.

    THE REASONING

14. Unfortunately for the Applicant, the consequence of s 29 is that a person who is not living in Australia is not permitted to make a claim for social security payment. The operation of the Administration Act is modified in certain circumstances by s 6 of the Agreements Act which provides for the overriding of social security law by international social security agreements.

15. However, there is no international social security agreement with Serbia, where Mr Rodriguez resides and from where he lodged his DSP claim. In this case, the law is quite clear and there is no discretion to take into account his difficult personal circumstances. Accordingly, the claim lodged by Mr Rodriguez must be rejected on the basis that he is not an Australian resident and was not in Australia when the claim for pension was made.

    CONCLUSION

16. For the above reasons the decision under review is affirmed.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President

..........................[sgd]..............................................

Associate

Dated   10 April 2015

Date(s) of hearing
Applicant	By phone
Solicitors for the Respondent	Department of Human Services