FYNZ and Secretary, Department of Social Services (Social services second review)

[2019] AATA 1628

FYNZ and Secretary, Department of Social Services (Social services second review) [2019] AATA 1628 (1 July 2019)

Division:GENERAL DIVISION

File Number:           2018/4223

Re:FYNZ  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:1 July 2019

Place:Sydney

The reviewable decision of the Social Security and Child Support Division of the Tribunal dated 21 June 2018 is varied as follows:

·The applicant was not entitled to be paid disability support pension for the period from 13 December 2016 to 27 February 2017.

·Any overpayment of disability support pension to the applicant from 13 December 2016 to 10 January 2017 is to be waived in accordance with section 1237A of the Social Security Act 1991 (Cth).

.........................[SGD]...............................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant entitled to be paid disability support pension while overseas – where applicant an Australian resident – whether applicant ceased to be an Australian resident – where applicant found to have ceased to be an Australian resident – where applicant again became an Australian resident – portability provisions – where pension not payable for two years to a person who becomes an Australian resident again – start date

LEGISLATION

Social Security Act 1991 (Cth) ss 7, 94, 1220, 1223, 1237A
Social Security Administration Act 1999 (Cth)

REASONS FOR DECISION

Dr L Bygrave, Member

1 July 2019

INTRODUCTION

1. The applicant was granted disability support pension from 23 February 2015.

2. The applicant departed Australia on 13 December 2016 and his disability support pension was suspended on 10 January 2017 because he remained overseas.

3. On 28 February 2017, the applicant returned to Australia and his disability support pension payments resumed.

4. The applicant submits that he was eligible to receive disability support pension payments for the period he was overseas from 10 January 2017 to 27 February 2017 in accordance with the requirements of the Social Security Act 1991 (Cth) (the Act).

5. The relevant issues for determination by the Tribunal are:

   ·whether the applicant was an Australian resident as defined by the Act for the period he was overseas from 13 January 2009 to 22 February 2015; and

   ·whether he was eligible for portability of his disability support pension; and

   ·whether he was eligible to be paid disability support pension for the period he was overseas from 13 December 2016 to 27 February 2017.

   RELEVANT LEGISLATION

6. The qualification criteria for disability support pension are set out in section 94 of the Act and includes the requirement at paragraph 94(1)(e) of the Act that a person is an Australian resident. Subsection 7(2) of the Act defines an Australian resident as a person who:

   (a) resides in Australia; and

   (b) is one of the following:

   (i) an Australian citizen;

   (ii) the holder of a permanent visa;…

7. Subsection 7(3) sets out the matters I must have regard to in deciding for the purposes of the Act whether or not a person is residing in Australia as follows:

   (a) the nature of the accommodation used by the person in Australia; and

   (b) the nature and extent of the family relationships the person has in Australia; and

   (c) the nature and extent of the person’s employment, business or financial ties with Australia; and

   (d) the nature and extent of the person’s assets located in Australia; and

   (e) the frequency and duration of the person’s travel outside Australia; and

   (f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

8. Subsection 1220(1) of the Act states that every person granted disability support pension is subject to the following portability provisions:

   If:

   (a) a person is an Australian resident; and

   (b) the person ceases to be an Australian resident; and

   (c) the person again becomes an Australian resident; and

   (d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

   …

   (ii) a disability support pension; or…

   (e) after the pension…is granted…but before the end of that period of 2 years, the person leaves Australia;…

   a pension…based on that claim is not payable to the person during any period during which the person is outside Australia.

   EVIDENCE

9. The applicant first arrived in Australia from Bangladesh in 2001. He studied at university and graduated with a masters degree. He was granted an Australian permanent visa in 2004 and Australian citizenship in 2007.

10. The applicant commenced employment and, unfortunately, experienced a workplace environment that led to him commencing workers’ compensation proceedings in 2007 (which still remain unresolved).[1] The applicant’s mental health subsequently deteriorated and on the recommendation of his treating psychiatrist, he returned to see his family in Bangladesh on 13 January 2009. The applicant told the Tribunal he only intended to visit his family in Bangladesh for two months: however, he did not return to Australia until 22 February 2015.

    [1] Exhibit A1.

11. Prior to departing Australia on 13 January 2009, the applicant was renting an apartment. As he intended to return to Australia, he left his possessions of clothes, books, cooking utensils and a computer in his apartment, and paid his landlord one month’s rent in advance. He left an amount of about $200 in his bank account. At that time, he had no family relationships in Australia.

12. The Tribunal was provided with medical reports by Dr “A”, a psychiatrist in Bangladesh that dated from 16 January 2009 until 29 January 2015. These reports recorded the applicant’s psychological conditions of depression, suicidal ideation, anxiety, nightmares and poor memory during this period. Hospital discharge certificates also show the applicant was hospitalised on two occasions (from March to May 2009 and from May to June 2014) for schizophrenia, post-traumatic stress disorder, anxiety with depression and bipolar affective disorder. On 29 January 2015, Dr “A” wrote the following:

    In January 2009, [FYNZ] came to Bangladesh and visited me with the help of his brother. He was not feeling well… He always needs someone to assist him. I started treating [him] in January 2009. After 6 (six) years of treatment, [FYNZ] is moderately feeling well. He got married in August 2014. He needs some medicines to continue. He is fit for travel now was someone’s assistance.[2] [emphasis in original]

    [2] Exhibit A2.

13. At the Tribunal hearing, the applicant confirmed that he remained in Bangladesh for six years because of his psychological health. He said that his symptoms became worse after he travelled to Bangladesh in January 2009 and he was not capable of returning to Australia. The applicant lived with his mother, brother and sister in their family home from January 2009 to August 2014 and was completely dependent on his family for financial and day-to-day living support. He married his wife in Bangladesh in August 2014 and they lived between his family home and the home of his parents-in-law in Bangladesh until the applicant returned to Australia on 22 February 2015.

14. When the applicant returned to Australia he was granted disability support pension with effect from 23 February 2015. As he wished to return to Bangladesh to see his wife, he applied for indefinite portability of his disability support pension on 26 September 2016.  The applicant’s wife came to Australia in 2017.

15. Centrelink records show that the applicant had discussions with Centrelink staff in October 2016, November 2016 and December 2016 about portability of his disability support pension while overseas.

16. On 12 December 2016, the applicant was informed by Centrelink that his disability support pension payments would stop on 10 January 2017, a period of four weeks after he departed Australia on 13 December 2016.[3] This information was also sent to the applicant in a Centrelink letter dated 12 December 2016.[4]

    [3] Exhibit T-T16, page 125.

    [4] Exhibit T-T17, pages 144-145.

17. The applicant departed Australia on 13 December 2016 and Centrelink decided on 10 January 2017 to suspend his disability support pension because he remained overseas. The applicant returned to Australia on 28 February 2017 and his payments of disability support pension resumed.

18. On 7 March 2017, Centrelink decided that the two years non-portability period in section 1220 of the Act applied to the applicant for the period from 22 February 2015 to 22 February 2017. Centrelink also wrote a letter to the applicant dated 7 March 2017, which stated that he would be granted indefinite portability “for future departure from Australia” as he was assessed as not having “any capacity to work”.[5]

    [5] Exhibit T-T17, page 156.

    CONSIDERATION

19. I now consider whether the applicant was an Australian resident as defined in the Act for the period he was overseas from 13 January 2009 to 21 February 2015; whether he was eligible for portability of his disability support pension during the two year period from 22 February 2015 to 22 February 2017; and whether he was eligible to be paid disability support pension while he was overseas from 13 December 2016 to 27 February 2017.

    Was the applicant an Australian resident from 13 January 2009 to 21 February 2015?

20. The applicant told the Tribunal that, in his view, he is an Australian resident and remained an Australian resident during the period he was in Bangladesh from 13 January 2009 to 21 February 2015. He said the only reason he did not return to Australia during this period was because he was unable to travel and he returned to Australia as soon as he was permitted to travel by his treating psychiatrist in Bangladesh.

21. I accept the applicant’s submissions that when he departed Australia on 13 January 2009, he intended to return to Australia sooner than February 2015. It is also not in dispute that the applicant was granted Australian citizenship in 2007 and therefore, he meets the requirement in paragraph 7(2)(b) of the Act.

22. However, in my consideration of whether the applicant was an Australian resident from 13 January 2009 to 21 February 2015, the Act requires that I must have regard to the matters set out in subsection 7(3) in deciding whether or not he was residing in Australia. I consider the applicant’s circumstances in relation to each of these matters as follows:

    (a) the nature of the accommodation used by the person in Australia

23. The applicant resided in rental accommodation prior to leaving Australia in January 2009. He paid one month’s rent in advance to his landlord and his landlord held a bond equivalent to one month’s rent. When the applicant did not return from overseas, his landlord terminated the applicant’s lease and removed his possessions from the premises.

24. I am satisfied that the applicant did not have any accommodation in Australia from mid-April 2009 until he returned to Australia on 22 February 2015.

    (b) the nature and extent of the family relationships the person has in Australia

25. The applicant had no family relationships in Australia between 13 January 2009 and 21 February 2015. During this period, the applicant resided with and was dependent on his family members in Bangladesh.

26. I am satisfied that the applicant did not have any family relationships in Australia from 13 January 2009 to 21 February 2015.

    (c) the nature and extent of the person’s employment, business or financial ties with Australia

27. The applicant was not employed in Australia and did not have any business or financial ties with Australia during the period from January 2009 to February 2015. The applicant submitted that he held a bank account with approximately $200 and had a compensation matter “on foot” with the Workers Compensation Commission, which amounted to financial ties with Australia.[6]

    [6] Exhibit A1.

28. I find the applicant had negligible employment and financial ties with Australia from 13 January 2009 to 21 February 2015 through an unresolved workers’ compensation matter and a bank account with minimal savings.

    (d) the nature and extent of the person’s assets located in Australia

29. When the applicant departed Australia, he left possessions of clothes, books, cooking utensils and a computer in his apartment, and about $200 in his bank account. He explained to the Tribunal that these possessions were extremely valuable to him and he would not have left them in Australia if he did not intend to return.

30. I am satisfied that the applicant had some personal assets located in Australia in the period from 13 January 2009 to 21 February 2015.

    (e) the frequency and duration of the person’s travel outside Australia

31. The applicant remained outside Australia for the whole of the period from January 2009 to February 2015.

    (f) any other matter relevant to determining whether the person intends to remain permanently in Australia

32. The applicant told the Tribunal he views Australia as his home and only remained in Bangladesh because he was unable to travel due to his health.

    Conclusion

33. Weighing the evidence in relation to each of these matters, I am satisfied that the applicant was not residing in Australia for the period from 13 January 2009 to 21 February 2015 in accordance with the criteria at subsection 7(3) of the Act. This is because he had no accommodation or family in Australia, his financial ties to Australia were negligible and limited to his personal possessions and minimal savings in his bank account, and he remained outside Australia during the whole of this period.

34. I find that the applicant was not an Australian resident for the purposes of the Act from 13 January 2009 to 21 February 2015.

    Was the applicant eligible for portability of his disability support pension during the two years period from 22 February 2015 to 22 February 2017?

35. The provisions of subsection 1220(1) of the Act apply where a person is an Australian resident and ceases to be an Australian resident and again becomes an Australian resident.

36. The applicant was an Australian resident until 12 January 2009. For the reasons I set out in paragraphs 22 to 34, the applicant then ceased to be an Australian resident when he departed Australia on 13 January 2009 and stayed overseas until 21 February 2015. The applicant again became an Australian resident when he returned to Australia on 22 February 2015. I am satisfied that the applicant meets the requirements of paragraphs 1220(1)(a)–(c) of the Act.

37. Paragraphs 1220(1)(d) and (e) of the Act state that where a person again becomes an Australian resident and is granted disability support pension, the pension is not payable to the person within the two year period after they again become an Australian resident if, after the pension is granted but before the end of the two year period, the person is outside Australia.

38. Applying the provisions of paragraphs 1220(1)(d) and (e) to the applicant’s circumstances, I find that he was granted disability support pension from 23 February 2015 and was not eligible to be paid disability support pension for any period he was outside Australia from the date he again became an Australian resident on 22 February 2015 and for the subsequent two year period that concluded on 22 February 2017.

39. I am satisfied that, pursuant to subsection 1220(1) of the Act, the applicant was not eligible to be paid disability support pension during any period he was overseas from 22 February 2015 to 22 February 2017.

    Was the applicant eligible to be paid disability support pension for the period he was overseas from 13 December 2016 to 27 February 2017?

40. The applicant was paid disability support pension for four weeks after he departed Australia on 13 December 2016. His disability support pension was suspended on 10 January 2017 because he remained overseas and his disability support pension payments resumed when he returned to Australia on 28 February 2017.

41. However, pursuant to subsection 1220(1) of the Act and as set out at paragraph 39 above, the applicant was not eligible to receive disability support pension for the period he was overseas from 13 December 2016 to 22 February 2017.

42. I note the decision by Centrelink on 7 March 2017 to grant the applicant indefinite portability of his disability support pension because he does not have any capacity to work applied only to a future departure from Australia.

43. Schedule 2, clause 3 of the Social Security Administration Act 1999 (Cth) sets out the general rule that where a person claims a payment and is qualified on the day the claim is made, that day is the start day.

44. The applicant applied for indefinite portability of his disability support pension on 26 September 2016. However, for the reasons I have set out at paragraphs 35 to 39, the applicant could not qualify for portability of his disability support pension on 26 September 2016 because this date was during the two year period (22 February 2015 to 15 February 2017) the applicant was not eligible for portability of his disability support pension pursuant to subsection 1220(1) of the Act.

45. I am satisfied that, on the basis of the decision by Centrelink on 7 March 2017, the applicant was only eligible for indefinite portability of his disability support pension for overseas travel he undertook after 7 March 2017.

46. I therefore find that the applicant was not eligible to be paid disability support pension for any of the period he was overseas: that is, from the date of his departure from Australia on 13 December 2016 until 27 February 2017, the day before he returned to Australia on 28 February 2017.

47. This decision means that the applicant was overpaid disability support pension for the period from 13 December 2016 to 10 January 2017 and has a debt for this period pursuant to section 1223 of the Act.

48. Section 1237A of the Act states that a debt may be waived if the overpayment arose solely due to sole administrative error by Centrelink and the applicant received the money believing it to be his correct entitlement. Having regard to the Centrelink records and correspondence summarised at paragraphs 15 to 17, I am satisfied that the overpayment of disability support pension to the applicant from 13 December 2016 to 10 January 2017 was due solely to an administrative error by Centrelink and the applicant received these payments in good faith.

49. I find that any overpayment of disability support pension to the applicant from 13 December 2016 to 10 January 2017 is to be waived in accordance with section 1237A of the Act.

    DECISION

50. The reviewable decision of the Social Security and Child Support Division of the Tribunal dated 21 June 2018 is varied as follows:

    ·The applicant was not entitled to be paid disability support pension for the period of 13 December 2016 to 27 February 2017.

    ·Any overpayment of disability support pension to the applicant from 13 December 2016 to 10 January 2017 is to be waived in accordance with section 1237A of the Social Security Act 1991 (Cth).

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[SGD]...........................................

Associate

Dated: 1 July 2019

Date(s) of hearing:	22 May 2019
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services