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

[2010] AATA 998

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 998

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3152

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANA GALVAN

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date13 December 2010

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

..................[Sgd]............................

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – portability period – can only be paid while a person is absent from Australia for a maximum 13 weeks – applicant not terminally ill – no extension of portability period – decision under review affirmed.

Social Security Act 1991 (Cth) ss 1217, 1218AA, 1218C

Re Ian Foster and Secretary Department of Employment and Workplace Relations [2006] AATA 983   

REASONS FOR DECISION

13 December 2010 Dr M Denovan, Member    

INTRODUCTION

1.      Ms Galvan, the applicant, was granted disability support pension (“DSP”) with effect from 28 August 2009.  Less than one month later, on or about 24 September 2009, she left Australia and returned to her country of origin, Argentina.  She has not returned to Australia.

2.      On 15 December 2009, Ms Galvan sought an extension of time for payment of DSP whilst outside of Australia.

3.      On 24 December 2009, Centrelink cancelled Ms Galvan’s DSP from 23 December 2009, because the 13 week payment period whilst outside Australia ended.  On 28 January 2010, Centrelink decided to reject Ms Galvan’s request for an extension of time.

4.      Both these decisions were affirmed by an authorised review officer on 29 March 2010 and by the Social Security Appeals Tribunal (“SSAT”) on 6 July 2010.

5.      On 29 July 2010, Ms Galvan applied to this Tribunal for review of these previous decisions.

ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

6.      The relevant legislation is contained in the Social Security Act 1991 (“the Act”). Portability provisions are contained in s 1217 and definitions in Part 4.2 of the Act.

7. Section 1217 of the Act provides that DSP can only be paid while a person is absent from Australia for a maximum of 13 weeks.

8. There are some specific and limited circumstances in which a person’s maximum portability period can be extended. Section 1218AA of the Act provides for extended portability period in certain circumstances, when the recipient of DSP is terminally ill.

9. Section 1218C provides for extended portability when a person is unable to return to Australia because they are affected by one of the specific events stated in that section.

1218C Extension of person's portability period—general

(1)The Secretary may extend the person's portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

(a)a serious accident involving the person or a family member of the person;

(b)       a serious illness of the person or a family member of the person;

(c)       the hospitalisation of the person or a family member of the person;

(d)       the death of a family member of the person;

(e)the person's involvement in custody proceedings in the country in which the person is located;

(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

(g)robbery or serious crime committed against the person or a family member of the person;

(h)       a natural disaster in the country in which the person is located;

(i)        political or social unrest in the country in which the person is located;

(j)        industrial action in the country in which the person is located;

(k)       a war in the country in which the person is located.

10.      In order to resolve this matter, I have to decide the period, if any, for which DSP was payable to Ms Galvan whilst she was overseas after her maximum portability period concluded on 23 December 2009.

CONSIDERATION

11. Although Ms Galvan does not claim to be terminally ill, because she has previously been diagnosed with cancer, I considered whether there was any possibility that she satisfied s 1218AA. The term “terminally ill” is not defined in the Act. The Secretary has published a Guide to Social Security Law (“The Guide”)[1] that assists decision makers to reach consistent and principled decisions.  It is well settled that this Tribunal may rely upon such policy statements provided that they are not inconsistent with the legislation.

[1] Department of Families, Housing, Community Services and Indigenous Affairs, The Guide to Social Security Law (Commonwealth of Australia 2010) version 1.171 released 1 November 2010

12.     The Guide indicates that the correct interpretation of the term “terminally ill” requires a finding that the person has a life expectancy of less than two years[2].  In Foster[3], the Tribunal considered that terminally ill means that a person is in the last stages of a fatal disease.

[2] Instruction 3.6.2.20 of The Guide to Social security Law last reviewed 6 September 2010

[3] Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983 (21 Nov 2006).

13.     Ms Galvan was diagnosed with a brain cancer in 2001.  The tumour was excised and she received radiotherapy.  The medical evidence points to Ms Galvan’s brain tumour being in remission, although she continues to suffer from the residual effects of the brain tumour removed in 2001.  There is, however, no medical evidence which suggests that she is in the last stages of a fatal disease or that she has a life expectancy of less than two years.  At the hearing Ms Galvan confirmed that her condition continues to be in remission.

14.     Ms Galvan, through an interpreter, told me that she cannot return to Australia because of three reasons: firstly, that she is disabled; secondly, that she is being delayed because of delays in having her Argentinean passport processed; and thirdly, because her children do not want to return to Australia and she cannot leave them alone in Argentina.

15.     The only time that a disability can be a reason for extending the portability period is when a serious accident or illness is the reason a person is unable to return to Australia.

16.     Ms Galvan suffers from residual effects of having had a brain tumour, including a loss of strength, mobility and coordination, and also difficulties with receptive and expressive language competency.  Her marriage ended in 2009 and as a result she suffers from depression.  None of these medical conditions prevented Ms Galvan travelling to Argentina, and presumably would not prevent her from returning to Australia.  She does not claim to have suffered any new illness or accident.

17.     Ms Galvan believes that her rehabilitation will be faster in Argentina.  She told me that that when she left Australia she intended to stay in Argentina for about a year, or for however long it takes for her to recover from her illness.  She feels her progress is assisted by being in Argentina, where she has more social support than she does in Australia.  Ms Galvan believes that the therapy she is receiving in Argentina is more comprehensive than that which she was previously receiving in Australia.  She is getting assistance with balance therapy that she was not receiving in Australia.  In evidence was a letter from Spanish psychiatrist, Dr Norma E Damiano[4].  Dr Damiano stated that Ms Galvan’s treatment was assisted by her staying in Argentina where she has a network of affection and no language barrier.

[4] Exhibit 6

18.     Whilst it is understandable that Ms Galvan is more comfortable in a country where she speaks the local dialect, with the support of friends and family and that this might facilitate her treatment, I do not consider that this is a reason that renders her unable to return to Australia.  Ms Galvan was receiving physiotherapy and psychiatric treatment in Australia prior to her return to Argentina.  She has been receiving therapy in Australia for eight years following the removal of the brain tumour.  The medical evidence indicates that her tumour is in remission and she currently suffers from residual effects only.  Whilst she certainly qualifies for DSP, I conclude that she currently does not suffer from a serious illness.  There is no medical evidence which suggests that she is prevented from continuing therapy that she requires in Australia or that her health would be significantly compromised, should she return.  It appears that Ms Galvan’s return to Argentina had more to do with her husband’s departure, than her need to be around family in order to facilitate her medical recovery.

19.     Ms Galvan has three children, currently aged 11, 13 and 17.  Ms Galvan, her three children and her estranged husband all returned to Argentina at the same time on the same flight.  Her husband assisted with the airfares and practical logistics of the move.  Ms Galvan enrolled her children at local schools as soon as she arrived in Argentina.  The youngest child lives with Ms Galvan’s husband, the other two with her.  Ms Galvan told the Tribunal there were no custody proceedings underfoot in relation to any of the children.  Whilst I understand her reluctance to return to Australia without her children, this is not a reason recognised in the legislation that would allow extension of her portability period beyond 13 weeks.

20.     Ms Galvan told me that she lost her Argentinean passport, and is waiting for the government to issue a new one.  She has an Australian passport but she believes that if she attempted to leave Argentina on that passport, she would be detained and possibly imprisoned, because she has overstayed the maximum allowable time for foreign citizens to remain in that country.  A legal requirement to remain in another country is only a ground to extend the portability period when it is in connection with criminal proceedings.  There are no criminal proceedings in relation to Ms Galvan’s lost passport.  Even if Ms Galvan was detained for overstaying her time in Argentina, that in itself would not allow the discretion to extend the portability period, because criminal proceedings must be in respect to a crime not committed by the person who the extension of time relates to.

21. Ms Galvan told me that when she returned to Argentina, she was told that she would not be able to leave on her Australian passport if she stayed more than three months. She has had more than a year now to organise an Argentinean passport, and her failure to do so is consistent with her evidence that when she returned to Argentina in September 2009, she intended to remain there at least a year, or until she was rehabilitated from her medical conditions. On her own evidence, the reason she did not return to Australia prior to the end of the portability period was simply because she never had any intention to. It is not because of any of the events set out in s 1218C (1) that she has failed to return to Australia.

22. Ms Galvan does not satisfy the requirements of s 1218AA, and she was not prevented from returning to Australia for any of the reasons provided in s 1218C. She was therefore not entitled to DSP after she was absent from Australia for more than 13 weeks.

FINDINGS OF THE TRIBUNAL

23.     The Tribunal affirms the decisions under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ........................[Sgd].....................................................
  Alex Seagar, Associate

Date/s of Hearing  16 November 2010
Date of Decision  13 December 2010
The applicant was self-represented
Solicitor for the Respondent     Bob Hamilton, departmental advocate