Drazetic and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 600

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 600

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1083

GENERAL ADMINISTRATIVE DIVISION		)
Re		KRESIMIR DRAZETIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGNEOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date27 June 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

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

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension –extended portability of DSP – severely disabled – not terminally ill – no International Social Security Agreement with Bosnia – decision affirmed

Social Security Act 1991 ss 23(4B), 1217, 1218AA

REASONS FOR DECISION

27 June 2008   Senior Member L Hastwell

introduction

1.      This is an application by Kresimir Drazetic (the applicant) to review a decision of the Social Security Appeals Tribunal (the SSAT) of 27 February 2008.  That decision affirmed an earlier decision by Centrelink that the applicant does not qualify for extended portability with respect to his Disability Support Pension (DSP). 

2.      The application was heard on 27 June 2008.  The applicant represented himself and gave oral evidence with the assistance of an interpreter in the Croatian language.  The respondent (the Department) was represented by Ms Kitto.

3. The Tribunal received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. 

background facts

4.      The applicant is 51 years of age and has lived in Australia since 1988.  He is originally from Croatia and he is now an Australian citizen.

5.      The applicant is a recipient of a DSP for a number of medical conditions, including paranoid schizophrenia, chronic lumbar back pain with sciatica, peptic ulcer disease and chronic tension headaches.

6.      In November 2007 the applicant contacted Centrelink to advise that he planned to leave Australia to travel to Bosnia on 15 March 2008 and that he intended to return to Australia on 14 March 2009.  The purpose of the journey was to visit his elderly mother whom he has not seen for many years.

7.       He was advised by Centrelink that he would only be entitled to receive his DSP for 13 weeks while overseas and that if he remained overseas after that 13 week period his DSP would be cancelled while he remained overseas. 

8.      The applicant has recently been through a difficult divorce and a property settlement.  He no longer has contact with his former wife or his 18 year old triplet children.  He has been depressed and despairing of his situation.   He had hoped to return to Bosnia to spend some time with his 83 year old mother.

9.      The applicant’s medical advisors are supportive of him travelling back to Bosnia to see his mother.  He has limited support systems in Australia.  He suffers from a serious mental illness in addition to other medical conditions.  He is isolated in the community, having few friends and being estranged from his former wife and their children.  It is likely to  be in the interest of his long-term health were he allowed to return to visit his mother whilst still retaining his pension.

10.     Since the SSAT decision the applicant has finalised his property settlement proceedings and he has purchased another home with the funds that he received from the property settlement.  He is currently focused on obtaining an advance on his superannuation to enable him to reduce his mortgage because he is experiencing financial difficulties caused by the extent of his  borrowings to purchase his new home.  He has put on hold any plans to visit his mother because of this purchase.

11.     The applicant confirmed to the Tribunal that he does not have a terminal illness. 

relevant legislation

12. The relevant legislation is contained in ss 1217 and 1218AA of the Social Security Act 1991 (the Act).

13. The maximum portability for recipients of DSP is 13 weeks. This is provided for in s 1217 of the Act. Nevertheless, s 1218AA provides for extended portability in a limited range of cases in the following terms:

“1218AA  Extended portability period for disability support pension

(1)The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

(a)      the person is severely disabled (see subsection 23(4B)); and

(b)      the person is receiving disability support pension; and

(c)      the person is terminally ill; and

(d)the person’s absence from Australia is or will be permanent; and

(e)      the purpose of the person’s absence is:

(i)to be with or near a family member of the person (see subsection 23(14)); or

(ii)        to return to the person’s country of origin.

(2)The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.

(3)If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person’s maximum portability period for the pension were 13 weeks starting at that time.”

14. Section 23(4B) of the Act provides:

“(4B)    For the purposes of this Act, a person is severely disabled if:

(a)a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factor, totally unable:

(i)        to work for at least the next 2 years; and

(ii)unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b)      the person is permanently blind.”

issues

15. The issue to be determined in this case is whether the applicant satisfies all the cumulative criteria set out in s 1218AA(1) of the Act

submissions

16.     The Department concedes that the applicant satisfies some, but not all of the criteria required to qualify for extended portability.  He is accepted to be severely disabled within the meaning of the Act and he is a DSP recipient who is intending to return to Bosnia to visit a close relative.  The Department also accepted that his intention was to travel permanently to Bosnia, although that was not the evidence given to the Tribunal by the applicant.  However, he is not  terminally ill.  Because every one of the criteria must be satisfied, he therefore fails to qualify for extended portability.  The applicant himself concedes that he does not satisfy the criteria of being terminally ill.

17.     In some instances the Australian Government has entered into International Social Security Agreements with other countries that can result in extended portability being available for certain citizens of those countries, who also hold Australian citizenship, if they are returning to their country of origin for an extended period.

18.     The Department submits that as there is no such International Agreement between Australia and Bosnia there is no other basis for extended portability in this case .

19.     Ironically, there is such an agreement between Australia and Croatia which can be applicable where a citizen who is severely disabled seeks to return to Croatia.  However, the applicant does not intend to return to Croatia.

20.     The applicant asks that the Tribunal look to any possible way of finding extended portability in his case because of his desire to eventually return to Bosnia to spend time with his mother and to stay for more than 13 weeks when he does so.

consideration and application of the law

21. To qualify for extended portability the applicant must satisfy all the requirements of s 1218AA(1)(a) to (e) of the Act.

22. The applicant concedes that he cannot satisfy the requirement of terminal illness as set out in s 1218AA(1)(c). It also appears that he is not considering a permanent move to Bosnia as he has purchased a home in Adelaide. Even his original application did not appear to contemplate a permanent move which is one of the cumulative requirements of the legislation (s 1218AA(1)(d)).

23.     In all the circumstances the applicant does not qualify for extended portability of his DSP under the law as it currently stands.

24.      It is therefore not possible for him to be granted extended portability with respect to his DSP if his intention is to visit and stay in Bosnia.  It may be that at some stage in the future the Government will negotiate an agreement with Bosnia similar to that which they have with Croatia, but currently there is no such International Agreement.

25.     If the applicant in the future planned to travel to Croatia then he may have an entitlement to extended portability depending on the state of International Agreements between Australia and Croatia.  In that event, he may be entitled to extended portability of his DSP .

26.     In the event of the applicant choosing to travel in the future he should make fresh enquiry  at that time.

27.     The Tribunal has no choice but to affirm the decision under review given the law as it currently stands.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell.

Signed:         .....................................................................................
  Associate

Date of Hearing  27 June 2008
Date of Decision  27 June 2008
Advocate for the Applicant       Self represented

Advocate for the Respondent   Ms J Kitto

Centrelink Legal Services Branch