Doncovska and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2050

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2050

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T 2007/32

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GORDANA DONCOVSKA

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date13 December 2007

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

SOCIAL SECURITY - disability support pension (DSP) - overseas travel - portability period - cancellation of pension - medical evidence - ability to travel - SSAT decision - review by AAT

Social Security Act 1991 and Amendments, sections 23(4B), 1213, 1217, 1218

Schedules to the Social Security (International Agreements) Act 1999

Guide to Social Security Law, Part 7.1.5.51 and Part 1.1.5.110

Manolev and SDFCS (2005) AATA 398

Krouskos and SDEWR (2006) AATA 989

Alimi and SDFCS (2004) AATA 621

REASONS FOR DECISION

13 December 2007 Associate Professor B W Davis AM (Part-Time Member)   

Decision under Review:

1.      The decision under review is a decision made by Centrelink on 26 June 2006, subsequently affirmed by the SSAT on 11 January 2007, not to extend the applicant's portability of Disability Support Pension (DSP) beyond 15 June 2006.

The Issue:

2.      The issue before the Tribunal is for what length of time is DSP payable to the applicant following her departure from Australia on 10 November 2005.

Legislation:

3.      The relevant legislation is the Social Security Act 1991, sections 23(4B), 1213, 1217 and 1218 and Guide to Social Security Law, especially section 7.1.5.51.  This is an international case, but there is no formal agreement between the Macedonian and Australian governments under the Social Security (International Agreements) Act 1999, hence the case must be determined according to Australian law.

Standard of Proof:

4.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background:

5.      Ms Gordana Doncovska was granted DSP on 8 September 2005, departing soon after for Macedonia on 10 November 2005 and has not returned since.  Her pension portability period expired on 9 February 2006.  A medical report by Dr Kathleen Ong of Health Services Australia (HSA) on 5 October 2005 indicated that near the time of departure from Australia Ms Doncovska suffered from depression and anxiety, epigastric pain, headaches, diabetes, back pain and bilateral knee pain. 

6.      On 17 February 2006 the applicant phoned Centrelink to advise that she had been in hospital in Macedonia between 1 February 2006 and 10 February 2006 and must remain overseas for three months in order to recover and be able to travel.  She then posted a medical report from a Dr Necevska dated 7 February 2006, confirming that the applicant's reason for hospitalisation was diabetes mellitus.  In a further medical report dated 13 February 2006, Dr Necevska reported that the applicant's son, Dean Jovanovski, would not be able to return to Australia, as he had to care for the applicant.  In reality Ms Doncovska's parents were looking after her. 

7.      On 24 February 2006 a Centrelink officer decided that Ms Doncovska was temporarily prevented from returning to Australia and extended her pension portability period by 4 weeks, ending 9 March 2006.  Dr Necevska wrote again on 8 March 2006, stating the applicant was in a "bad, unstable physical and psychological condition" and she (the doctor) would not agree to travel.  This letter was accompanied by a medical certificate from Dr Peter Talevski, neuropsychiatrist, dated 6 March 2006, who stated that the applicant was in a "panic situation of fear, sleeplessness, anxiety, depression, losing the appetite and without will for life".  On 15 March 2006 a Centrelink officer decided to grant a further extension of the applicant's portability period until 2 May 2006.

8.      Between 26 April 2006 and 1 May 2006 the applicant was undergoing treatment at the clinical hospital at Bitola, Macedonia.  She was not well when discharged and further tests were undertaken when she re-entered hospital between 10 May 2006 and 24 May 2006 for allergic reactions.  On 2 June 2006 Centrelink extended her portability period to 30 May 2006 and on 26 June 2006 decided to cancel her DSP on the basis she had been outside Australia for more than 13 weeks and there were no further grounds to extend payment to her.

9.      Ms Doncovska sought a review of Centrelink's decision.  On 17 August 2006 an Authorised Review Officer (ARO) decided the decision not to continue the portability period beyond 16 June 2006 was correct.  The Act provides for discretionary extension of portability, but only for a limited period in extreme and temporary circumstances.  Ms Doncovska was not severely disabled or terminally ill and had been granted considerable assistance at taxpayer expense.  The applicant then appealed to the Social Security Appeals Tribunal (SSAT) which on 11 January 2007 affirmed the decision under review ie the appeal was not successful and cancellation of DSP from 16 June 2006 was deemed appropriate.

10.     Ms Doncovska then applied for de-novo review by the Administrative Appeals Tribunal (AAT) on 26 February 2007.

The AAT Hearing:

11.     A teleconference hearing of the case between Hobart and Macedonia was conducted on 18 October and 14 November 2007.  Considerable communication difficulties were encountered, given the number of individuals involved at several locations, the need for an interpreter (although Ms Doncovska spoke good English) and queries about the availability of doctors at particular times, even though comprehensive medical reports were available.

12.     The applicant was represented by Mr Stancevski of counsel, assisted by Mr Benjamin Bartl of the Hobart Community Legal Service.  The respondent was represented by Mr Brian Sparkes. 

13.     During opening submissions counsel for the respondent (Mr Sparkes) drew attention to the lack of proofs of evidence for the two doctors the applicant intended to call as witnesses.  The Tribunal ruled that the hearing would continue with the applicant giving evidence, then the situation regarding medical evidence would be considered.  Medical reports were already available from all practitioners involved in the case.

14.     Ms Doncovska was affirmed and said she had left Australia in November 2005, in company with her mother and son, to visit her father who was ill in Macedonia.  It was her intention to return to Australia, but personal sickness intervened on a number of occasions between 1 February 2006 and 24 May 2006.  She said she remained severely depressed and considered her condition was worsening.  She was unable to return to Australia at present.  She spent most of the day in bed and rarely left the house.  Her mother cared for her, but she had considered suicide on more than one occasion.

15.     During cross-examination she was asked why she used a one-way ticket to Macedonia.  She replied it was because a single return ticket was cheaper there.  She was asked whether she had any assets in Australia and whether she had retained rented accommodation during the 13 week pension portability period.  She said she had no assets in Australia and no contacts other than a few distant relatives.  She then said she was too stressed to continue giving evidence, even if a brief intermission was granted.  Her lawyer Mr Stancevski confirmed this.  The Tribunal then adjourned the hearing to a date to be fixed, but warned the applicant she must accept further cross-examination was likely.

16.     The hearing was resumed on 14 November 2007 and after being reaffirmed the applicant responded to further questioning.  She continued to claim she would return to Australia when fit to do so, but could not give any estimate when that might be, saying she was severely depressed and had considered suicide on more than one occasion.  She was being treated by Dr Talevski, but her situation had not improved and she thought it was worsening.  She had not been in hospital, however, since May 2006.

17.     The witness stood down and Mr Stancevski (the applicant's counsel) then asked when Dr Talevski would be called.  The Tribunal said that it had understood the doctor would be available to give evidence;  it was up to the applicant to arrange witnesses, not a task for the Tribunal.  Mr Stancevski said a misunderstanding of procedures had occurred and the doctor had not been called.  Mr Sparkes, for the respondent, said the doctor did not have to appear, as all relevant medical reports were already lodged with the Tribunal and he would object if any new evidence was proposed at this stage.  Given the need for the parties to summarise their evidence and identify claims the Tribunal said three weeks would be allowed for each side to make final written submissions and Mr Stancevski could also make written comment if he wished, but no new evidence would be considered.

18.     Mr Bartl's final written submission focussed on the considerable medical evidence that Ms Doncovska remains in a distressed psychiatric condition, unable to return to Australia despite a wish to do so.  In such a situation she was entitled to have her portability period extended beyond 16 June 2006. 

19. Mr Sparkes for the respondent said she did not have the funds to return to Australia and had not made any plans to do so at the end of her pension portability period. It was clear she intended to remain in Macedonia, thinking the Australian taxpayer would fund the operation. Her medical problems were quite apparent prior to leaving Australia and although she claims these have now worsened, she showed little sign of this during cross-examination. Her current situation simply did not meet provisions of section 1218 of the Act and guidelines in section 7.1.5.51 of the Guide to Social Security Law, where discretion to extend the pension portability period was only for very limited time in extreme circumstances. The decision under review should be affirmed.

Analysis

20.     The Tribunal is required to conduct a de-novo review of all available evidence, noting policy and statutory provisions and relevant prior case determinations in order to identify the correct and preferable decision in the circumstances of the case.

21. Statutory provisions governing overseas portability of pensions are specified in sections 1213, 1217, 1218 and 1218AA of the Social Security Act 1991 and Amendments. It is important to note from 1 July 2004 the pension portability period was reduced from 26 weeks to 13 weeks, except in very special circumstances where unlimited portability applies (section 1218AA). Section 1218C sets out criteria whereby the Secretary can exercise discretion and extend the portability period of 13 weeks, but only in grievous circumstances, for a short period of time until the person involved returns to Australia. Ms Donkovska has now been outside Australia for two years and there is no indication when, if at all, she might return.

22.     The Tribunal accepts that the applicant suffers from a number of disabilities, in particular anxiety and depression as well as diabetes mellitus, but these conditions existed prior to her departure for Macedonia (see Dr Ong's report of 5 October 2005) and did not prevent her travelling.  The question must be posed as to why she claims to be unable to return, when her last hospitalisation in May 2006 was about allergies, rather than diabetes or anxiety.  In a report dated 30 August 2007 by her treating specialist neurophysicist, Dr Peter Talevski, he stated she was not able to return to Australia because of the seriousness of her condition and it was uncertain whether she would ever return.  If that is the case there are no grounds for further extending the pension portability period, because Ms Doncovska's situation does not meet the criteria of section 1218A of the Act and guidelines outlined in section 7.1.5.51 of the Guide to Social Security Law.

23.     During cross-examination Ms Doncovska denied having made a decision to remain in Macedonia as her son desired before she departed Australia.  The respondent argued there were clear intimations of this, given her one way ticket and failure to leave any assets in Australia, but she said she still hoped to return.  She was asked whether she had purchased a return ticket immediately prior to the end of the pension portability period on 9 February 2006 and after some procrastination admitted she had not, claiming her diabetes mellitus necessitated hospitalisation at the time.  The respondent queried this version of events, noting that international air tickets are usually booked and paid for well in advance of travel, but Ms Doncovska had failed to take any action, even a few days before her portability period expired and has not taken any action since.

24.     The SSAT was not convinced her situation had necessarily worsened since departure from Australia.  She claims it has, but there is no reliable medical evidence to prove this point as Dr Talevski's comments are about inability to travel as at August 2007, merely noting her condition varies from time to time.  She has not suffered any serious illness which required hospitalisation beyond May 2006, so the SSAT found the evidence insufficient to satisfy it that the applicant was too ill to return to Australia by 16 June 2006.

25.     Having conducted a de-novo review of all available evidence the Tribunal is of a view that on the balance of probabilities DEWR's decision to cancel her disability support pension on 15 March 2006 was correct and that subsequent extension of her pension portability period to 16 June 2006 was perhaps too generous, with no grounds for further extension.  The decision under review is therefore affirmed. 

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  18 October, 14 November 2007
Date of Decision  13 December 2007
Counsel for the Applicant         Mr Ljupco Stancevski, Mr Ben Bartl
Solicitor for the Applicant          Hobart Community Legal Service
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink Legal Services