Fitzgerald and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1308

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1308

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/263

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BARRY FITZGERALD

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date8 May 2007

PlaceCanberra

Decision The decision under review is affirmed.

.......(Signed).....................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - age pension – portability - returned Australian resident - departure from Australia within two years - no discretion - decision affirmed

Social Security Act 1991 ss 7, 1217, 1220

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

8 May 2007 Mr S. Webb, Member         

1.      Barry Fitzgerald lived overseas for many years.  He returned to Australia and applied for an age pension, which was granted.  Three months later he left Australia to attend upon his wife, who was unwell in the Philippines.  His age pension was cancelled.  Mr Fitzgerald has not been successful in his efforts to have his age pension reinstated.

2.      The issue for determination by the Tribunal is whether the decision to cancel Mr Fitzgerald’s age pension was the correct or preferable decision in the circumstances.  I note that there is a related issue concerning an age pension overpayment debt that has been raised against Mr Fitzgerald.  However, that matter is not before the Tribunal for determination.

3.      The essential background facts arising from the evidence are as follows.  Mr Fitzgerald was born in 1941 in Australia.  He was resident in Australia until 1992, when he left and took up residence in Indonesia.  In or about 1995 he left Indonesia and took up residence in the Philippines.  Subsequently he lived for a time in Papua New Guinea, but returned to the Philippines thereafter.  Mr Fitzgerald has a wife and two daughters, and a house that he owns in the Philippines.  He has family in Australia with whom he maintains contact, including children by a previous marriage.  He has no assets or business or financial interests in Australia.

4.      In Mr Fitzgerald’s submission his age pension should not have been cancelled and should be reinstated.  Mr Fitzgerald asserts that he left his home in the Philippines and returned to Australia on 14 February 2006 for family health reasons, and intended to remain in Australia at that time.  That was the basis of his claim for age pension on 16 February 2006.  He says that he made visa arrangements for his family in the Philippines to join him in Australia.  Mr Fitzgerald gave evidence that his wife was hospitalised before the planned migration and he returned to the Philippines in order to assist her situation.  He says that he did not realise that leaving Australia would result in cancellation of his age pension.  Mr Fitzgerald gave evidence that he is in dire financial circumstances, having mortgaged his house in the Philippines to pay his wife’s medical treatment costs.  He says that he has no income and cannot now afford to bring his wife to Australia.  In Mr Fitzgerald’s submission he is a person who has worked in Australia’s interest against crime, in positions of trust, and his age pension should be reinstated in the particular circumstances of his case.

5.      While feeling some sympathy for Mr Fitzgerald’s circumstances, I do not agree.

6. Generally, in order to be granted an age pension a person who is otherwise qualified must be an Australian resident and be in Australia. Once granted the pension may be portable in certain circumstances. The portability provisions in relation to pensions are set out at Part 4.2 of the Social Security Act 1991 (the SS Act). As there is no social security agreement between Australia and the Philippines under the Social Security (International Agreements) Act 1999, Part 4.2 of the SS Act applies in Mr Fitzgerald’s case. In circumstances in which a person who is an Australian resident leaves Australia and ceases to be a resident, and subsequently returns to Australia and resumes Australian residence and is granted an age pension, the pension is not portable (or payable) if the person then leaves Australia again within the period of 2 years after the resumption of Australian residence (s.1220). An Australian resident is, essentially, a person who resides in Australia (s.7). The matters that must be considered when deciding whether a person is residing in Australia are set out at subs 7(3).

7.      The facts I find, which are not controversial, are that Mr Fitzgerald returned to Australia on 14 February 2006 after a period of approximately 14 years residence in foreign states[1].  He was granted age pension from 16 February 2006 on the basis of a short period of Australian residence, having presumably been found to satisfy the Australian residence requirements at that time[2]. Mr Fitzgerald was an Australian resident prior to his departure for Indonesia in 1992. Thus, s.1220 of the SS Act applies an effective 2 year waiting period following his resumption of Australian residence during which Mr Fitzgerald’s pension is not portable[3].  It follows, that in the event that Mr Fitzgerald left Australia during this period the pension would not be payable to him while he remained overseas.  That is precisely what occurred.  Mr Fitzgerald left Australia on 1 May 2006[4]  in order to attend upon his wife in hospital in the Philippines.  I note that there is no evidence before me that Mr Fitzgerald is entitled to financial assistance under the Medical Treatment Overseas Program pursuant to the National Health Act 1953 to which subs 1220(1)(f) of the SS Act refers. Unfortunately for Mr Fitzgerald discretions concerning aspects of the portability provisions are not applicable and s.1220 does not confer any particular discretionary power to ameliorate or disapply the section’s effect in the case of special circumstances.

[1] Mr Fitzgerald’s oral evidence; T21 folio 76 refers

[2] T5 and T11 refer

[3] Pursuant to s.1217 for example

[4] T21, folio 79

8. Thus, by the operation of s.1220 of the SS Act, it can be seen that Mr Fitzgerald’s age pension was not portable or payable from the date of his departure from Australia on 1 May 2006. I so find. Even if Mr Fitzgerald adduced evidence to establish on-going Australian residence during the period of his absence, and there is no such evidence before me, it would not assist his case. Section 1220 has the effect of precluding payment of a pension to a person within its terms during any period that the person is outside Australia.

9.      It follows that the decision under review is affirmed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...........(Peter Strauch)...................
  Associate

Date of Hearing  30 April 2007
Date of Decision  8 May 2007
Representative for the Applicant             Self
Solicitor for the Respondent                   Jillian Furner
  Centrelink Legal Services Branch