Feras El Mohammed and Secretary, Department of Social Services
[2013] AATA 819
[2013] AATA 819
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2661
Re
Feras El Mohammed
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 19 November 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY - Baby bonus – claim received outside 52-week period – whether discretion to extend the period be exercised – decision under review is affirmed
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 39(2), 39(3)
REASONS FOR DECISION
Ms N Bell, Senior Member
19 November 2013
Mr El Mohammed’s child was born in Syria in August 2010. In January 2012, after he had returned to Australia and his wife and child joined him here, he lodged a claim for, among other things, baby bonus. The couple’s second child was born in April 2012.
His claim was rejected because he had not lodged his claim within 52 weeks of his child’s birth (section 39(2) A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)). Mr El Mohammed contended that the claim could not be made earlier because his wife experienced severe illness associated with the birth of the child and the discretion to extend the period in those circumstances should be exercised (section 39(3) of the Act).
This is the only basis, in Mr El Mohammed’s circumstances, on which the 52 week lodgement period may be extended. It follows that the issue for me to consider is whether Mr El Mohammed was unable to make a claim for baby bonus in normal circumstances because of severe illness associated with the birth of the child.
WAS MR EL MOHAMMED UNABLE TO MAKE A CLAIM WITHIN 52 WEEKS BECAUSE OF SEVERE ILLNESS ASSOCIATED WITH THE BIRTH OF HIS CHILD?
Mr El Mohammed said that after his wife gave birth to their son in Syria in August 2010 there was surgical intervention and then bleeding and infection for which she was treated in Syria for one year.
This was at odds with the correspondence Mr El Mohammed had provided to Centrelink and to the Social Security Appeals Tribunal from his wife’s treating doctor in Syria. A report dated 11 May 2012 from Dr Khaled Rahil stated that on 17 November 2010 Mr El Mohammed’s wife was treated by Dr Rahil for an ectopic pregnancy. Dr Rahil also reported that on 27 May 2011 Mr El Mohammed’s wife was found to have a polyp which was surgically extracted on 28 June 2011 and received further treatment.
I note that Mr El Mohammed had also provided in February 2012 an undated letter, handwritten in English and apparently signed in Arabic script, and which he told me had been written by his wife’s doctor in Syria, Dr Feras Alaraksoosi, which said:
·She had had a normal delivery;
·She suffered from anovulatory cycles;
·She was given (unintelligible) from 1/1/2011 to promote ovulation;
·A gestation sac was discovered on 3/8/2011;
·Gestational age was 5 weeks and 5 days;
·She was advised to rest until gestational age was 14 weeks.
Mr El Mohammed said of this report and the report of Dr Rahil that the hospital was trying to avoid liability for the harm caused to his wife by its negligence. He said he had a dispute with the hospital over this and maintained there had been no ectopic pregnancy and no polyp and that he and his wife did not have intercourse during this period because his wife was still suffering the effects of the child’s birth and the hospital’s negligence.
Mr El Mohammed said he took his wife back to the hospital every week for the first four months after his child’s birth and thereafter she had to attend the hospital every 15 or 20 days until July 2011. He said she was treated with injections, oral medication and special baths.
Mr El Mohammed provided a further letter from Dr Rahil dated 18 August 2012 which he said was obtained by his brother and sister in Syria at Mr El Mohammed’s request. This report, written by hand and translated from the Arabic by an accredited translator, says that Mr El Mohammed’s wife was admitted to hospital on 13 August 2010 suffering from “complications of labour”. The report says that during a “complicated and prolonged delivery, it became clear that the size of the foetus was above normal limits.” The report goes on to say that this resulted in a vaginal tear “of the fourth degree, affecting vaginal tissue and the muscles between the vagina and the anus.” The report says the wound was sutured with thirteen stitches internally and externally and Mr El Mohammed’s wife stayed in hospital until 20 August 2010. The report concludes:
On 01/09/2010, the patient returned to hospital suffering from severe pain accompanied by intermittent hemorhage [sic], Clinical investigations revealed severe infections due to wound contamination.
The patient was referred to hospital where she underwent surgery to clean the wound, She was required to report every four days to continue treatment.
Summary: Because the patient had a fourth degree tear, accompanied by inflammations and complications after surgery, treatment lasted for several months during which the patient suffered from severe pain. She was asked not to leave Syria until 15/11/2011.
Mr El Mohammed said it would not be possible to contact his wife’s doctors because the area where they practice has been destroyed by fighting.
Mr El Mohammed also provided a copy of a letter from his wife’s current doctor in Australia. The letter, dated 19 August 2013 and written by Dr Abdelgayoom, says that she saw Mr El Mohammad’s wife “last year where she presents of Pelvic and perineal pain, mainly post-coital on top of previous surgical repair of her ? [sic] perineal tear as per patient that was overseas on 13/08/2010 when she gave birth to her first son. …”
Mr El Mohammed also said that while his wife was recovering from the effects of the birth he contacted the Australian Embassy in Beirut and advised that his wife had been sick. He said he was referred to the Child Support Agency direct by a Consular officer at the Embassy. He contacted the Child Support Agency and was advised to contact Centrelink. He was provided with a telephone number and the website address. He said he attempted to claim online but the Centrelink website was “closed” and he attempted to claim again before January 2012 after he returned to Australia on 10 September 2011 but was told he could not claim until his son was in Australia.
At my request, Centrelink examined its records of contacts made by Mr El Mohammed during the relevant period. According to Centrelink’s records there is no record of any claim for baby bonus lodged by Mr El Mohammed between September and December 2011. A record of an attendance by Mr El Mohammed at Bankstown Centrelink Office on 23 September 2011 notes lodgement of a newstart allowance claim. Other online records provide no support for Mr El Mohammed’s version of events.
The discrepancy between the two reports attributed to Dr Rahil is disturbing. In the absence of any other persuasive evidence I prefer the report that is dated closer to the time of the child’s birth, that is, Dr Rahil’s first report. I am mindful of the recent report of Dr Abdelgayoom noting a history given of a perineal tear from childbirth in 2010. However, I also note the implausibility of a person treated for post-surgery infection with oral medication being prevented on medical advice from travelling for a period of 15 months until November 2011. In this regard I also note that, according to a record of medical examination associated with Mr El Mohammed’s wife’s Australian visa, she was pregnant again in November 2011 and due to give birth in March 2012. This indicates a date of conception of July 2011 which would also indicate that by that time she was well enough to conceive.
On balance, I cannot be satisfied on the evidence before me that Mr El Mohammed or his partner were unable to claim baby bonus within 52 weeks of the child’s birth because of severe illness associated with that birth.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. ....[Sgd]....................................................................
Associate
Dated 19 November 2013
Date of hearing 22 March 2013 Date final submissions received 20 September 2013 Solicitors for the Respondent DHS Program and Litigation Review Branch
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