Giastzi and Secretary, Department of Family and Community Services

[2004] AATA 415

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 415

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/29

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VASILIKI GIASTZI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM  (Part-time Member)

Date23 April 2004

PlaceHobart

Decision

(a)    The decision under review is affirmed.

(b)   The matter of pension reduction is remitted to Centrelink for further          consideration, with a view to redress or compensation under CDAA guidelines.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - resident of Greece - working life Australia - age pension - amendments to law - portability - reduction - saving provisions - SSAT

Social Security Act 1991 – clause 128, Schedule 1A

Social Security Administration Act 1999 No 74 of 2000

Social Security and Veterans’ Entitlement Legislation Amendment (Miscellaneous Matters) Act 2000

Australian Pension News, October 2000

Re Quinn and Secretary, Department of Family and Community Services (2002) AATA 81

Re Secretary, Department of Social Security and Kershaw (unreported decision No G190 of 1987), Sydney 28 march 1988

REASONS FOR DECISION

23 April 2004 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      The decision under review is a decision made by a delegate of Centrelink on 21 October 2002 to reduce the applicants’ rate of Australian age pension because the applicants (Irfan and Vasiliki Giastzi) were not subject to the saving provisions relating to portability of social security payments taking effect on 20 September 2002.

Issue

2. Did the applicants’ stay in Australia for a period in excess of 26 weeks preclude them from the saving provisions in Clause 128, Schedule 1 of the Social Security Act 1991 (“the Act”)?

Standard of Proof

3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

4.      The background, general circumstances and evidence in this case are precisely the same as for Irfan Giastzi, made in a determination by the Administrative Appeals Tribunal on 23 April 2004, in respect of Application No. T2003/28.

5. In respect of Vasiliki Giastzi the legal situation is clear. The law relating to portability of pensions is contained in s1220A and Schedule 1A of the Act, and in particular Clause 128 of the Schedule, which does contain a saving provision. Section 1220A says that the rate of pension must be calculated using a rate calculator, if a person has been absent from Australia for 26 weeks or more. The rate calculator has regard to a residency factor based on a person’s working life residence, using a period of 300 months or 25 years as baseline.

6.      Mr and Mrs Giastzi left Australia on 10 June 2000 and at the time they returned to Australia in 2002, had been in Greece for more than 26 weeks.    Their visit to Australia lasted 26 weeks and 10 days, therefore their period in the country exceeded the limit after which a reduction in pension applied, using the rate calculator.    As Mr Giastzi spent 220 months in Australia before qualifying for Australian age pension, his pension was reduced to 220 divided by 300 of the normal rate.   In the case of Mrs Giastzi, her period of residency was 106 months, resulting in 106 divided by 300 of the normal rate.

7. Clause 128 of Schedule 1A contains a saving provision, which is not applicable in this case. The SSAT and the Tribunal in Mr Irfan Giastzi’s case decided there had been some defective administration and considered Centrelink should consider some form of compensation payment to make up for losses the Giastzi’s faced as a result of reduction of pension. The same situation applies to the applicant, Vasiliki Giastzi.

Decision

8.      (a)       The decision under review is affirmed.

(b)The matter of pension reduction is remitted to Centrelink for further consideration, with a view to redress or compensation under CDAA guidelines.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  (K L Miller, Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  23 April 2004