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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Galvan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 998
Case: [2010] AATA 998
Decision Date: 13 December 2010

CaseChat Overview and Summary

The parties involved in this case were Galvan, the applicant, and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, the respondent. The dispute centered around the applicant's entitlement to a disability support pension during his absence from Australia. The case was heard in the Administrative Appeals Tribunal.

The central legal issues before the Tribunal were whether the applicant was eligible for the disability support pension while he was absent from Australia and, if so, whether the portability period could be extended beyond the statutory limit of 13 weeks. The Tribunal had to determine whether the applicant's absence from Australia qualified for the portability period and whether there were any circumstances that would warrant an extension of that period.

In its decision, the Tribunal held that the applicant was not entitled to the disability support pension while he was absent from Australia. The Tribunal found that the applicant was not terminally ill, which was a condition that could have warranted an extension of the portability period. Given the statutory limit of 13 weeks, and the absence of any qualifying circumstances, the Tribunal affirmed the decisions under review. The Tribunal concluded that the applicant's absence from Australia did not meet the criteria for an extension of the portability period and thus the pension could not be paid during this time.

The Tribunal's decision was upheld, and the orders affirmed the original decisions made by the Secretary. The applicant was not entitled to a disability support pension during his absence from Australia, and the portability period could not be extended beyond the statutory limit of 13 weeks.

Orders

Orders of the court

The Tribunal affirms the decisions under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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