Falaniko and Secretary, Department of Social Services (Social services second review) - [2022] AATA 3093

Falaniko and Secretary, Department of Social Services (Social services second review) [2022] AATA 3093 (21 September 2022)
Division:GENERAL DIVISION
File Number(s): 2020/3955
Re:Sesilia Falaniko
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Deputy President Dr P McDermott RFD
Date:21 September 2022
Place:Brisbane

I affirm the decision under review.
...............................[SGD].........................................
Deputy President Dr P McDermott RFD
Catchwords
SOCIAL SECURITY – Disability support pension – Eligibility – Whether applicant entitled to disability support pension under Agreement on Social Security between Australia and New Zealand – Where applicant is untruthful with treatment providers – Where significant functional improvement a possibility – Where applicant is not compliant with treatment recommendations – Where decision under review affirmed
Legislation
Social Security Act 1999 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Pickering and Secretary, Department of Social Services [2018] AATA 4223
Pillai and Secretary, Department of Social Services [2019] AATA 1233
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75
Secretary, Department of Social Services and Stretch [2017] AATA 1429
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
21 September 2022
introduction

This application concerns an application for review of a decision of the respondent dated 18 March 2020, which refused the applicant’s claim for the Disability Support Pension (“DSP”) on the basis that she did not meet the requirements under section 94 of the Social Security Act 1991 (Cth) (‘the Act’), and that for the purposes of social security law, is not a permanent resident.
On 12 September 2019 the applicant lodged a claim for DSP in respect of her conditions of “hypertension, complete heart block, rheumatic heart disease, pacemaker in situ”.[1] A Job Capacity Assessor’s (‘JCA’) report awarded the applicant 10 points under Table 1 (which relates to the functional impact on physical exertion and stamina) when they assessed the applicant’s impairment on 6 January 2020.[2]
[1] Exhibit A, T-Documents, T10, page 36.
[2] Exhibit A, T-Documents, T13, page 150.
On 18 March 2020 an Authorised Review Officer (‘ARO’) affirmed the decision to refuse the applicant’s claim for DSP.[3]
[3] Exhibit A, T-Documents, T18, pages 235-331.
On 19 May 2020, the Social Services and Child Support Division (‘SSCSD’) of the Tribunal affirmed the decision of the ARO.[4]
[4] Exhibit A, T-Documents, T2, pages 3-9.
The applicant lodged their application for review of the decision of the SSCSD with this Tribunal on 29 June 2020.[5]
[5] Exhibit A, T-Documents, T1, pages 1-2.
A Telephone Hearing was held in this matter on 12 October 2021. The applicant was represented by a friend, church minister and community leader, Mrs Taulaga. The respondent was represented by Mr Jamie Watts of the Australian Government Solicitor.
A Telephone Directions Hearing was held on 22 February 2022 at the request of the applicant’s representative. The applicant sought leave to provide the Tribunal with additional submissions. The respondent consented to this request and Directions were issued to facilitate the filing of additional submissions.
BACKGROUND / ISSUES
Qualification under the Act
In order to qualify for the DSP under the Act, the applicant must meet the legislative requirements of section 94(1) of the Act, which states:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies

paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a

determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described

in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the

person.
Note1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
Note 3: A person receiving disability support pension, and who receives employment services from a remote engagement program provider, may also qualify for a remote engagement program payment: see Part 2.13.
The Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) provides that the applicant be assessed against the qualification requirements as at the date of their application. However, in cases where an applicant for DSP may not be eligible as at the date of their claim, they may become qualified within a period of 13 weeks from the date of their claim (“qualification period”).[6] The relevant qualification period for this application is therefore from 12 September 2019 until 12 December 2019. The qualification period is important insofar as it applies to medical evidence presented. There is a long and established history of authorities which require that medical reports that are written after the qualification period are only relevant insofar as they refer to the applicant’s condition during the qualification period.[7]
[6] Schedule 2, clause4(1) of the Administration Act.
[7] Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29]; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at [31]-[33].
Under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011 (Cth), (‘the Determination’) the impairment ratings required by s 94(1)(b) of the Act may only be assigned where an impairment under s94(1)(a) is considered “permanent”.[8] For a condition to be considered permanent for the purposes of DSP it must be fully diagnosed by an appropriately qualified medical practitioner, have been fully treated and stabilised, and on the balance of probabilities be likely to continue for more than two years.[9]
[8] Section 6(3) of the Determination.
[9] Section6(3) and (4) of the Determination.
In the present matter, the applicant’s impairment was assigned a rating of 10 points, as a result of the JCA’s assessment and the applicant’s self-reports that she:[10]
(a)Goes for regular slow walks on even ground as advised by her doctor;
(b)Was fully independent in self-care;
(c)Would go shopping with her husband;
(d)Attended the assessment alone and was not observed to have experienced shortness of breath as a result of the walk from waiting room to the interview room;
(e)Manages daily living with activity pacing;
(f)Becomes short of breath when walking up an incline or lifting;
(g)Manages her daily routine without any problem; and
(h)Has unrestricted effort tolerance on level ground.
[10] Exhibit A, T-Documents, T13, p 150.
For a condition to be considered to be fully stabilised, it must be considered:
(a)Whether reasonable treatment for the condition has been undertaken;
(b)Whether there exists any other reasonable treatment which would be likely to result in significant functional improvement which would enable the applicant to undertake work within the next two years.[11]
[11] Section 6(6) of the Determination.
A claim for DSP in which the applicant has not undertaken reasonable treatment for the condition is not necessarily doomed to fail. An applicant is not required to have undertaken reasonable treatment for their condition if it is unlikely to result in such an improvement as to allow the applicant to work within the next two years. Nor is an applicant required to have undergone reasonable treatments if there is a medical or other compelling reason as to why they should not undergo the treatment.[12]
[12] Section 6(6) of the Determination.
It is not in contention that the applicant has an impairment within the meaning of 94(1)(a).[13] The applicant accordingly satisfies the requirement of s94(1)(a).
[13] Respondent’s Closing Submissions, page 3.
The applicant moved to New Zealand in around 1990 and subsequently attained her New Zealand citizenship on 23 December 2009.[14] As a result a New Zealand citizen, the applicant may also qualify for the DSP under the Act and Schedule 3 of the Social Security (International Agreements) Act 1999 (the Agreement on Social Security between the Government of Australia and the Government of New Zealand) (the ‘New Zealand Agreement’).
[14] Exhibit A, T-Documents, T23.
Qualification under the New Zealand Agreement
The application of this legislation has been examined on numerous occasions by this Tribunal, as well as by the Federal Court of Australia.[15] Various Members of this Tribunal have come to varying conclusions when applying this legislation.[16] I have expressed my view as to the correct interpretation and application of the relevant pieces of legislation and caselaw in my decision of Secretary, Department of Social Services and Stretch[17] (Stretch). In Stretch (which has been adopted by a number of my colleagues at the Tribunal), I remarked:[18]
The AAT1 made the decision to grant DSP to the respondent in reliance on the decision of this Tribunalin Tamua and Secretary, Department of Social Services [2016] AATA 757. In that case the Tribunal decided (at [83]) that a person was entitled to DSP if they are ‘severely disabled’ for the purposes of Article 2(2)(a) of the Agreement on Social Security between the Government of Australia and the Government of New Zealand (“the Agreement”) in Schedule 3 of the International Agreements Act.
The Tribunal also decided that it was unnecessary for an applicant “to meet any additional requirement that might otherwise apply under s 94(1)(a) – (c) of the Act, as Article 2(2)(a) prevails over those provisions by operation of section 6 of the International Agreements Act.”
I respectfully do not adopt the reasoning in Tamua and Secretary, Department of Social Services [2016] AATA 757.
The Agreement does not displace the general operation of the social security law of Australia. Indeed, Article 2(1) of the Agreement confirms that the Agreement shall apply to the ‘social security law’ of Australia in relation to the benefit of DSP (Article 2(1)(a)(ii)). The only modification to the application of the social security law of Australia is found in paragraph 2 of Article 2(2) of the Agreement.
Article 2 of the Agreement is not a self-contained legislative regime relating to the entitlement of the respondent for DSP. That Article does not, for example, determine how an applicant would claim DSP or what the rate of payment of DSP is, such matters are governed by the application of the ‘social security law’ of Australia. That is why I have previously decided that the ‘start date’ of the payment of DSP to a New Zealand resident who is qualified to receive that benefit can only be determined by the application of sections 41 and 42 and Part 2 clause 3 of Schedule 2 of the Administration Act.
[15] Tamua and Secretary, Department of Social Services [2016] AATA 757; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous [2013] FCAFC 75; Pillai and Secretary, Department of Social Services [2019] AATA 1233; Pickering and Secretary, Department of Social Services [2018] AATA 4223.
[16] Tamua and Secretary, Department of Social Services [2016] AATA 757.
[17] [2017] AATA 1429, at [9]-[11].
[18] Secretary, Department of Social Services and Stretch [2017] AATA 1429, at [9]-[11].
The requirements of the New Zealand Agreement in terms of impairment require an applicant to be “severely disabled”. A definition for “severely disabled” is provided for in Article 1(m) of the New Zealand Agreement.
Therefore, in my respectful opinion, in order to qualify for the DSP, the applicant must satisfy s 94(1)(a), 94(1)(b) of the Act, in addition to Article 2(2) of the New Zealand Agreement.
Applicant’s contentions
The applicant contends that she is both medically and residentially qualified to receive the DSP. This necessitates that the applicant contends the correct assignment of impairment points is at least 20 points.[19]
[19] Exhibit H.
To support her contention that she is medically qualified for the DSP, the applicant has provided the Tribunal with a number of reports from her treating practitioners. These include:
·A report from Dr Sachin Nayyar, Senior Staff Specialist, Cardiology and Electrophysiology, dated 22 June 2020;
·A report from Dr Farhan Khalid, GP, dated 18 December 2020;
·A report from Dr Chee Yeong, dictated on 1 November 2021; and
·A report from Dr Calvin Phang, Consultant and Interventional Cardiologist, dated 26 February 2021.
The applicant filed a number of medical reports and other documentary evidence with the intention of showing that she is a resident of Australia, and that her treatment providers now consider her to be qualified for the DSP.[20]
[20] Exhibit C; Exhibit D; Exhibit E; Exhibit F; Exhibit G; Exhibit H; Exhibit I; Exhibit J.
At the Hearing held on 12 October 2021, the applicant appeared by telephone and gave evidence under affirmation.[21]
[21] Transcript, page 4.
At the Hearing on 12 October 2021, the applicant stated that she believes she should receive the DSP because:[22]
I know I deserve it because they don’t even know me, my situation, what I’m going through, you know. I – they might think that I’m (indistinct) but I don’t know, that’s why sometimes I give my (indistinct) doctor, because I don’t want to go through another operation because I’ve been through a lot. That’s why I have like give my answer to the cardiology because I don’t want to go through another operation because I’ve had enough. I don’t want to go through any pain again or, you know, suffer. I don’t want to suffer again going through another operation.
[22] Transcript, page 20.
Under cross-examination, the applicant:[23]
[23] Transcript, pages 5-18.
·Confirmed she first came to Australia on 23 December 2009 and that prior to that she had been living in New Zealand since 1990.
·Confirmed that since coming to Australia in December of 2009, she had left Australia on five separate occasions between May 2014 and February 2018.
·When taken to a progress note from a medical appointment on 17 June 2019 which stated that she could do housework with no problems, that she wasn’t telling the truth because she was supposed to go for an operation and another test that she did not want to undergo.
·Stated that she was untruthful to her doctors as she did not want to go through any pain and was scared of having an operation.
·When asked about her statement to her doctor on 17 June 2019 that she could climb the stairs at home, said that she “wasn’t telling the truth. That’s the truth”.[24]
[24] Transcript, page 8.
·Confirmed that she has a smoking history of more than 20 a pack.
·Confirmed she is aware smoking causes shortness of breath.
·Stated that she could not remember her symptoms in 2019.
·Confirmed that on 4 September 2019 she had been assessed by Dr Calvin Phang as presenting free of the claimed symptoms.
·Confirmed she had been assessed as class one under the New York Heart Association Functional Classification of heart failure.
·When asked whether she was aware that the class one classification means that there is no limitation of ordinary physical activity, stated she disagreed with the assessment as class one as she wasn’t telling the truth.
·When asked whether she was aware of the importance of being honest with the JCA in their assessment of 6 January 2020, stated that she was.
·When asked about the answers she gave to the JCA, stated “my English is not enough”.[25]
[25] Transcript, page 11.
·Denied telling the JCA that she was independent in self-care.
·Denied telling the JCA that she could manage her daily routine without problems.
·Denied telling the JCA that she was going on regular walks on even ground without difficulty.
·Confirmed that she goes on walks on even ground with her husband.
·Confirmed that she would go shopping with her husband.
·Confirmed that she could complete her required housework by pacing herself.
·Said that she did not tell the JCA that she is tired all the time and spends most of her time sleeping because she was tired.
·Denied sending any email correspondence to the Tribunal and said this is done by her daughter, who signs the emails off under her name.
·Confirmed that she can use a telephone without difficulty.
·Confirmed that she told the JCA she had quit smoking, because at the time she had stopped and then started again.
·Confirmed she had “smoked all [her] life”[26] but has since stopped.
·Confirmed that her Aunt attended an appointment with her and raised concerns that the applicant’s shortness of breath was getting worse.
·Confirmed that as a result of this comment from her Aunt, Dr Phang recommended that she undergo lung tests and stated her belief this was “because my heart”.[27]
·When asked whether she agreed with Dr Phang’s assessment that she was not experiencing symptoms of chest pain, orthopnoea or paroxysmal nocturnal dyspnoea simply said, “not true”.[28]
·Reiterated her belief that Dr Phang awarded her 20 impairment points.
·Confirmed that the report of Dr Phang dated February 2021 was based on the circumstances at the time he was assessing her.
·When asked about the report of Dr Nayyar dated 1 May 2020 which indicated that she could perform light duties, stated that she did not know whether he was eligible for the DSP if she can perform a job of light duties.
·When asked about the chronological medical evidence which indicates a deterioration between 1 May 2020 and 22 June 2020, stated ‘you attempt to reposition (indistinct) because interpretation or something I relieved’.[29]
·When asked whether she follows the recommendation of her treatment providers, stated:
Like I know myself because like I have blood test, I'm taking (indistinct) okay, and I went for my blood test, my - my - what do you call it, 30 my warfarin was too low and Dr [Phang] said for me to take four and a half every day. Then I took four and a half but then I started to get headache so I cut down. Sometimes I don't listen to what the doctor says because I know myself very well. I cut down the dose of my warfarin and now I don't have - when I went back to the doctor my blood test it's all like how it's supposed to 35 be, like it's on 2.1 because I'm on warfarin it takes - that's why I know myself, sometimes what the doctor says it's not right. I know myself and it changes.[30]
[26] Transcript, page 14.
[27] Transcript, page 14.
[28] Transcript, page 14.
[29] Transcript, page 16.
[30] Transcript, page 15.
Respondent’s contentions

The respondent contends, for a number of reasons, that the applicant was not qualified for DSP at the time of her application, or within the 13-week qualification period thereafter.[31]
[31] Respondent’s Closing Submissions at [2].
The respondent submits that the applicant did not satisfy the requirements as laid out by s 94(b), 94(e) of the Act. Namely, that the applicant does not meet the requirement of 20 impairment points, and that the applicant was not residentially qualified to receive DSP under the Act (either at the time of her application or within the 13-week qualification period thereafter).
The respondent contends that the applicant is not an ‘Australian resident’ as defined by the Act,[32] because:
·         She is not an Australian citizen;
·         She is not the holder of a permanent visa; and
·         She is not a protected special category visa holder.[33]
[32] Section 7(2) of the Act.
[33] Respondent’s closing submissions at [6].
The respondent further points out that the applicant’s subclass of visa (444) is not a ‘permanent visa’ for the purposes of the Act. The respondent points to the Social Security Guide, specifically instruction 9.2.6.280, which states that generally visa holders of the same subclass as the applicant (444) are generally not qualified for social security payments.[34]
[34] Respondent’s closing submissions at [7].
The respondent additionally identifies that the applicant is not considered to be within the “protected” special category of visa holders as she was not in Australia on 26 February 2001.[35]
[35] Respondent’s closing submissions at [8].
In relation to the qualifying residence, the respondent submits that the applicant does not have the requisite 10 years qualifying residence,[36] nor does she have an exemption for the purposes of s 94(2)(ii) of the Act. The respondent therefore contends that the applicant does not meet the qualification requirements for DSP under the Act.
[36] Section 7(5) of the Act.
The respondent submits that the applicant does not satisfy the requirements of s 94(1)(b) of the Act because her impairment was not 20 or more points under the relevant Impairment Tables.[37] The respondent further submits that the applicant must meet both the requirements as laid out by s 94(1)(b) of the Act, and Article 2(2) of the New Zealand Agreement.[38]
[37] Respondent’s closing submissions, [16].
[38] Respondent’s closing submissions, [11]-[15].
It is further contended by the respondent that if the Tribunal agrees with its contention that the applicant did not meet the requirements of 94(1)(b) during the qualification period, then the application fails and any further determination of the applicant’s qualification, either under the Act, or under the New Zealand Agreement is unnecessary.[39] I accept this submission from the respondent.
[39] Respondent’s closing submissions, [16].
The respondent concedes that by virtue of article 12(1) of the New Zealand Agreement, the residency requirements under s 94(1)(e)(ii) of the Act are overridden.[40] Therefore, the respondent quite properly concedes that the applicant meets the residency requirements as required by article 12(1) of the New Zealand Agreement[41] and satisfies section 94(1)(a) of the Act as she had a physical impairment during the qualification period.[42]
[40] Respondent’s closing submissions, [11]-[15].
[41] Respondent’s closing submissions, [16].
[42] Respondent’s closing submissions, [17].
The respondent contends that the applicant does not meet the requirements of s 94(1)(b) as she is unable to be awarded 20 or more points under the relevant Impairment Tables. The respondent argues that the only Impairment Table relevant to the applicant’s cardiac conditions is that of Table 1.[43]
[43] Respondent’s closing submissions, [25].
The respondent argues that when examining the applicant’s impairments against the Impairment Tables, this Tribunal should rely on the reports of the applicant’s treatment providers and the job capacity assessors (JCAs) which were completed during or around the qualification period.[44] The respondent further contends that this approach is supported by the introduction of Table 1 which provides that there must be corroborating medical evidence (of the impairment), and that a report from a person’s treating doctor or a medical specialist are examples of corroborating evidence for the purposes of the relevant Impairment Table.[45]
[44] Respondent’s closing submissions, [26].
[45] Respondent’s closing submissions, [25]-[27].
The respondent further contends that this Tribunal is unable to assign impairment ratings to the applicant’s impairments due to the requirement that the impairment be considered to be fully diagnosed, treated, and stabilised (see my discussion above at paragraphs 8-14). The respondent, in their closing submissions, has drawn the Tribunal’s attention to the applicant’s oral evidence in which she stated that she has minimised the impact of her impairment to avoid medical treatment.[46] The respondent contends that if this Tribunal accepts that evidence, then it cannot be said that the applicant’s condition is fully treated.[47] In particular, I note the following excerpt from the respondent’s closing submissions in this matter:[48]
If the Tribunal found the applicant’s doctors were basing their opinions on an unreliable self-report from the applicant, it would follow that the cardiac conditions were not fully diagnosed, treated or stabilised. In particular, the Tribunal could not be satisfied the applicant had undertaken all reasonable treatment if the applicant was lying about her functional capacity to avoid this treatment.
The applicant refused medical treatment that was available to [her] throughout the qualification period. For example, Dr Calvin Phang, cardiologist, reported on 16 April 2020 (T19, p.333; see also Exhibit E, p.3):
She refused to have a tricuspid repair for the past several years and remains unsure about it today.
If the applicant minimised her impairment to avoid this medical treatment, it follows that this treatment could be expected to substantially improve [her] functional capacity. For these reasons, the respondent submits that the Tribunal cannot assign an impairment rating if it finds that the applicant lied to her treatment providers about her level of impairment around the qualification period.
In any event, the respondent submits the Tribunal should accept the opinions of the applicant’s treatment providers and the JCAs who assessed her level of impairment around the qualification period. There is nothing to suggest in the medical reports that the opinions are provided in the absence of clinical judgement and based on the applicant’s self-report alone. Further the applicant’s memory of her impairment when these assessments occurred is unreliable given they were 2 years ago.
[46] Respondent’s closing submissions, [27].
[47] Respondent’s closing submissions, [27]-[28].
[48] Respondent’s closing submissions, [31]-[34].
In the event that the Tribunal decides it is appropriate to assign impairment ratings to the applicant’s impairments, the respondent contends that the correct rating is 5 to 10 points under Table 1.[49] The respondent submits this is the case because:[50]
[49] Respondent’s closing submissions, [35].
[50] Respondent’s closing submissions, [35]-[36].
On 17 June 2019, 3 months before the qualification period began, the applicant’s medical records show that she could (T16, p.233):
Complete housework with no problems
Climb stairs and
Undertake usual activities.
On 4 September 2019, a week before the qualification period began, Dr Phang reported (T8, p.121):
The applicant was well
The applicant was without symptoms of chest pain, shortness of breath, palpitations or syncope and
The applicant was classified as Class 1 using the New York Heart Association functional classification of heart failure which meant there was no limitation of ordinary physical activity from her cardiac condition (see attachment B to the respondent’s statement of facts, issues and contentions at Exhibit B).
The applicant did not obtain medical treatment from a cardiologist after 4 September 2019 until 16 April 2020, 4 months after the qualification period ended. On that occasion, Dr Phang reported the applicant had remained much the same symptomatically since he saw her in September 2019 (T19, p.332).
The respondent submits that the evidence before the Tribunal indicates that the applicant is able to use public transport without assistance.[51] The respondent argues that the fact that the applicant reports being able to walk up several steps in her home is indicative of her ability to catch a bus or a train.[52]
[51] Respondent’s closing submissions, [39].
[52] Respondent’s closing submissions, [39].
The respondent further contends that the Tribunal should not accept the report of Dr Phang dated 26 February 2021,[53] as the correspondence was outside of the qualification period and is representative of the applicant’s then-presentation, rather than that of her presentation during the qualification period.[54] The respondent argues that the Tribunal can be satisfied that the report of Dr Phang dated 26 February 2021 is not referrable to the qualification period as:
[53] Exhibit E.
[54] Respondent’s closing submissions, [47].
Dr Phang used present tense language throughout his letter
The applicant agreed when giving evidence that she did not ask Dr Phang to provide an opinion based on her circumstances during the qualification period…
Further she agreed her shortness of breath had worsened since the qualification period.
Second, Dr Phang was not referring to the impairment caused by her permanent cardiac condition. Relevantly, Dr Phang reported:
The applicant was experiencing shortness of breath;
The applicant was still smoking and he asked her to stop;
Lung function tests and referral to a respiratory physician were required because the applicant’s shortness of breath has not improved and she was a chronic smoker; and
The applicant did not have any other cardiac symptoms including chest pain, orthopnoea or paroxysmal nocturnal dyspnoea.
There is no medical evidence that the applicant’s lung conditions were permanent during the qualification period. Therefore, they cannot be assigned an impairment rating.[55]
[55] Respondent’s closing submissions, [47]-[48].
consideration
I take this opportunity to thank the applicant, respondent and their respective representatives for their assistance throughout this matter. I note the applicant’s representative is not legally trained and acknowledge the immense advocacy efforts she has undertaken to advance the interests of the applicant.
I consider that the medical reports which have been filed by the applicant refer to her condition at the time of presentation, rather than being referable to the qualification period. At this juncture, I note that it is open to the applicant to make a new application for DSP. The additional reports obtained by the applicant for the purposes of these proceedings may be useful in any further application for DSP.
I do not accept the contention of the applicant that the information that she provided to the JCA was tainted due to her poor English. I note there is a high degree of consistency between the applicant’s self-reported level of functioning to the JCA and her treatment providers. In particular, I note the consistency between the reports of the JCA and Dr Calvin Phang dated 4 September 2019.[56]
[56] Exhibit A, T-Documents, T8, pages 120-122.
I note that Dr Nayyar assessed the applicant in May 2020 as being a suitable candidate for a job with “light duties”.[57] This indicates that during the qualification period the applicant was not severely disabled in accordance with the definition provided for in Article 1(m) of the New Zealand Agreement. However, by 22 June 2020, Dr Nayyar reported that the applicant was “unable to manage her household duties and would not be functional in any job without being symptomatic”.[58] This assessment of Dr Nayyar dated 22 June 2020 indicates that the condition of the applicant may have deteriorated since the conclusion of the qualification period.
[57] Exhibit A, T-Documents, T20, page 336.
[58] Exhibit C, page 3.
Irrespective of the motivations to do so, the applicant has admitted that she was often untruthful with her treatment providers. Given these admissions of the applicant I am not satisfied that her impairment can be assigned an impairment rating because I do not consider the impairment to be fully treated and stabilised. Having regard to section 6(6) of the Determination and the JCA report dated 6 January 2020 and the recommendations of the applicant’s treatment providers, I consider that if the applicant were to follow the recommendations (eg quitting smoking) of her treatment providers, there exists a very real possibility of significant improvement in the applicant’s functional capacity, to such an extent that it may allow her to undertake work within the next 2 years.
I have found particular assistance in this regard from the report of Dr Calvin Phang dated 4 September 2019, which I note is quite close to the beginning of the qualification period. In this report, Dr Phang notes:
…
When I explained that to [the applicant], she was adamant that she does not want to have any more surgery at the moment. She also continues to refuse surgery for her severe tricuspid regurgitation.[59]
This report indicates that close to the qualification period the applicant did not follow specialist advice for the treatment of her condition.
[59] Exhibit A, T-Documents, T8, page 121.
There is no cogent evidence before the Tribunal which would allow me to be satisfied that the applicant was eligible to receive the DSP during the qualification period.
Given that I have determined the applicant’s impairment is unable to be assigned an impairment rating, it is unnecessary to for me to determine whether the applicant meets the residency requirements for DSP.
Accordingly, I affirm the decision under review.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD.

....................[SGD].................................
Associate
Dated: 21 September 2022

Date of Hearing:

Date of last submission:

12 October 2021

24 March 2022

Advocate for the Applicant:

Solicitors for the Respondent:

Mrs Tolorosa Taulaga

Mr Jamie Watts

Australian Government Solicitor