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

[2023] AATA 3582

Girouard and Secretary, Department of Social Services (Social services second review) [2023] AATA 3582 (26 September 2023)

Division:GENERAL DIVISION

File Number(s):      2023/1226

Re:Vaughan   Girouard

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Lee Benjamin

Date of decision:               26 September 2023

Date of written reasons:         27 October 2023

Place:Brisbane

The decision under review is affirmed.

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

Member Lee Benjamin

Catchwords

SOCIAL SECURITY – Disability Support Pension portability – where Applicant residing in the Philippines – where numerous extensions of Disability Support Pension portability previously granted – where Applicant sought further extension of Disability Support Pension portability  – Applicant does not suffer serious illness for the purposes of relevant legislation – no other basis to exercise discretion to extend Disability Support Pension portability exists – decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal affirmed – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Member Lee Benjamin

27 October 2023

WHAT IS THIS DECISION ABOUT?

1. Mr Vaughan Girouard was granted Disability Support Pension in July 2002. In September 2019, Mr Girouard departed Australia for the Philippines. He returned to Australia on one occasion between October 2019 and December 2019, but has otherwise remained in the Philippines. Over the period since, Services Australia has extended the portability period of Mr Girouard’s Disability Support Pension on 12 occasions, the most recent extension expiring on 31 January 2023. In February 2023, Mr Girouard’s Disability Support Pension was suspended for lack of portability. Mr Girouard seeks an extension to the portability period of his Disability Support Pension beyond 31 January 2023.

2. The key question for the Tribunal is whether to exercise the discretion in section 1218C of the Social Security Act 1991 (Cth) (the Act) to extend the portability period. On the materials before me, I find that there is a lack of evidence around: (a) Mr Girouard’s medical conditions preventing him from attending to the process of departing the Philippines on his own; (b) reasonable efforts to facilitate Mr Girouard’s return to Australia since the last extension of his portability period until 31 January 2023; and (c) a member of Mr Girouard’s family suffering a serious illness, that makes Mr Girouard unable to return to Australia. Accordingly, I find there is no basis on which I am able to exercise the discretion in section 1218C of the Social Security Act 1991 (Cth) to extend the portability period.[1]

   [1] The hearing for this matter took place on 22 September 2023. The Tribunal delivered a brief oral decision on 26 September 2023. The Respondent subsequently requested written reasons, which are now provided. The evidentiary material with respect to the hearing had been consolidated into an agreed Exhibit Register, exhibited at the end of these reasons and marked “Annexure 1”.

   WHAT HAPPENED?

3. Mr Girouard seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 27 January 2023. In that decision, the AAT1 affirmed a decision of an Authorised Review Officer (ARO) dated 7 October 2022 that extended the portability period of Mr Girouard’s Disability Support Pension (DSP) until 31 January 2023 and found that Mr Girouard was not eligible for indefinite portability of his DSP.

4. Before the General Division of the Administrative Appeals Tribunal (AAT2), Mr Girouard[2] did not pursue qualification for indefinite portability for DSP. Rather, Mr Girouard sought an extension of portability until such time that he returns to Australia, or to a fixed end date of 31 October 2023, whichever is the earlier. The request includes a back payment of Mr Girouard’s DSP until 9 February 2023, when it was suspended.

   [2] Mr Girouard did not attend the hearing. Mr Girouard was represented by his approved nominee and mother, Ms Carla Smith.

   Background

5. On 31 July 2002, Mr Girouard was granted DSP.[3]

   [3] The Secretary’s Statement of Facts, Issues and Contentions helpfully sets out background matters, which do not appear to be materially contested by Mr Girouard, in this application. A modified version of the same has been reproduced at paragraphs 4 to 34 (see Exhibit Tr2, p 25-30, para 3-33). 

6. On 16 October 2014, a Job Capacity Assessor found that Mr Girouard had a severe impairment rating under Table 7 of the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 for the impairment arising from his Autism.[4] He was assessed as having a work capacity within two years with intervention of 8-14 hours per week.

   [4] Ms Smith told the Tribunal that Mr Girouard has “high functioning autism”.

7. On 27 June 2019, Mr Girouard contacted Services Australia (Agency) to advise of his intention to travel to the Philippines on an indefinite but not permanent basis. Mr Girouard requested that he be assessed to determine his eligibility for indefinite portability of his DSP. The assessment does not appear to have occurred.

8. On 14 September 2019, Mr Girouard departed Australia for the Philippines. He returned to Australia on one occasion between 1 October 2019 and 8 December 2019, but has otherwise remained in the Philippines.

9. On 6 January 2020, Mr Girouard was notified by the Agency that his DSP had been suspended on the basis that he had exceeded the portability period of his DSP.

10. On 21 February 2020, Mr Girouard requested an extension of his portability period on the basis that “he is not feeling well and does not know when he will book his ticket to come back to Australia”. The Agency denied the request, noting the lack of an unforeseen or extreme event preventing his return.

11. On 23 March 2020, the Agency extended the portability period of Mr Girouard’s DSP from 5 January 2020 to 1 July 2020. This was due to a Commonwealth Ministerial Determination in response to the COVID-19 pandemic.

12. On 1 July 2020, Mr Girouard’s DSP was suspended due to the end of the extension of his portability period.

13. On 20 July 2020, Mr Girouard’s approved nominee and mother, Ms Carla Smith, contacted the Agency to request a further extension of the portability period of Mr Girouard’s DSP due to COVID-19 restrictions preventing his return. Ms Smith noted that Mr Girouard was “1000km from Manilla and in an enhanced lockdown community and so is not able to easily leave”. On 3 August 2020, the Agency extended the portability period of Mr Girouard’s DSP until 14 September 2020.

14. On 1 September 2020, Ms Smith requested an extension of the portability period of Mr Girouard’s DSP on the basis that there were no return flights available to Australia. On 24 September 2020, the Agency extended the portability period of Mr Girouard’s DSP until 30 November 2020.

15. On 16 November 2020, Ms Smith requested an extension of the portability period of Mr Girouard’s DSP on the basis that there were no return flights available to Australia until January 2021. On 20 November 2020, the Agency extended the portability period of Mr Girouard’s DSP until 12 January 2021.

16. On 10 January 2021, Ms Smith emailed the Agency to advise that Mr Girouard had tried to board a flight from Tagbilaran to Manila so that he could then fly from Manila to Cairns. However, Mr Girouard was denied from doing so due to leg ulcers. Ms Smith also noted that COVID-19 testing was unavailable in Anda, Bohol where Mr Girouard was residing, which meant that he would be unable to board his onward flight to Australia as he would be without a COVID-19 negative test. On 19 January 2021, the Agency extended the portability period of Mr Girouard’s DSP until 31 March 2021.

17. On 21 March 2021, Ms Smith emailed the Agency to advise that she intended to travel to the Philippines on 3 July 2021 to assist Mr Girouard to return to Australia, noting that he was unable to do so by himself due to his medical conditions. Ms Smith also advised the Agency of a decline in Mr Girouard’s mental and physical health, noting that he had been involved in an accident on 6 February 2021 as a passenger in a “tricycle”. On 31 March 2021, the Agency extended the portability period of Mr Girouard’s DSP until 31 May 2021.

18. On 24 May 2021, Ms Smith emailed the Agency to advise that her flight to the Philippines on 3 July 2021 had been cancelled by the airline, and that the Philippine borders remained shut to foreigners due to COVID-19 restrictions. On 31 May 2021, the Agency extended the portability period of Mr Girouard’s DSP until 31 July 2021.

19. On 21 July 2021, Ms Smith emailed the Agency to advise that she was still unable to travel to the Philippines due to COVID-19 restrictions and that Mr Girouard had relocated from Mabini, Bohol to Tagbilaran, Bohol. On 28 July 2021, the Agency extended the portability period of Mr Girouard’s DSP until 30 September 2021.

20. On 17 September 2021, Ms Smith emailed the Agency to advise that she was still unable to travel to the Philippines due to COVID-19 restrictions, that Tagbilaran was in a COVID-19 lockdown, that return flights to Australia were unavailable until December 2021 and that she had hired the services of Ms Shawie De Guzman (Immigration Specialist) to assist in renewing Mr Girouard’s visa. On 4 October 2021, the Agency extended the portability period of Mr Girouard’s DSP until 10 January 2022.

21. On 17 January 2022, Ms Smith emailed the Agency to advise that she had booked Mr Girouard on a flight to Australia on 22 April 2022, that Mr Girouard needed to get a COVID-19 vaccine to travel to Manila for the flight, that vaccines were unavailable for Mr Girouard and that the island of Bohol was the subject of a natural disaster. On 27 January 2022, the Agency extended the portability period of Mr Girouard’s DSP until 23 April 2022.

22. On 6 April 2022, Ms Smith emailed the Agency to advise that Mr Girouard was unable to get the required COVID-19 vaccination to travel internally to Manila to board his flight scheduled for 22 April 2022, and that he was also unable to complete the necessary application for a visa renewal on his own, which could only be done in Manila. Ms Smith noted that she needed to travel to the Philippines to assist Mr Girouard with the process and hoped to do so soon. She had rebooked Mr Girouard’s flight for 31 August 2022 and organised her own return flight for the same day.

23. On 6 May 2022, the Agency rejected the request for an extension of the portability period of Mr Girouard’s DSP. This was on the basis that:

    …there is no evidence supplied showing why the flight booked for 2[2].04.22 was not boarded. There is no evidence that the flight was cancelled due to restrictions placed by airlines on ability to return to AU. There is no medical evidence to support why A/N is unable to return to AU. There is no evidence other than the new ticket that has been uploaded and the email. NOM indicates that she will need to support him on his return flight as he lacks capacity to return by himself. Again, there is no evidence to support this. NOM has been advised that for an extension to be considered, we will require evidence to support that A/N is unable to return to AU due to unforeseen circumstances…

24. On the same day, Ms Smith sought review of the Agency's decision to refuse a further extension of the portability period of Mr Girouard’s DSP. On 17 May 2022, an ARO set aside the Agency's decision and extended the portability period of Mr Girouard’s DSP until 1 September 2022.

25. On 5 July 2022, Ms Smith wrote to the Hon Minister Shorten (Minister) requesting that the Agency grant Mr Girouard indefinite portability of his DSP. On 11 July 2022, a Centrelink Service Officer (CSO) contacted Ms Smith to discuss the request. The CSO explained that an assessment for indefinite portability required medical reports completed by Mr Girouard’s treating health practitioners and a Job Capacity Assessment, which was not possible while Mr Girouard was overseas. Ms Smith therefore requested a further extension of the portability period of Mr Girouard’s DSP.

26. On 16 August 2022, Ms Smith wrote to the Minister in relation to her request to further extend the portability period of Mr Girouard’s DSP. On 19 August 2022, a CSO contacted Ms Smith to discuss the request, including to seek relevant independent evidence to corroborate Ms Smith's account as to Mr Girouard’s inability to depart the Philippines.

27. On 25 August 2022, the Agency rejected the request for an extension of the portability period of Mr Girouard’s DSP. On 28 August 2022, Ms Smith sought review of the decision via email. Ms Smith indicated that she still intended to travel to the Philippines to assist with Mr Girouard’s return to Australia, but first needed to seek medical clearance to travel and then “resign from my job so I have the funds from accrued leave, [and] give up my rental property because I can’t afford to pay rent while I'm in the Philippines for several months…”

28. On 2 September 2022, the Agency agreed to continue to pay Mr Girouard’s DSP pending review of the rejection decision.

29. On 19 and 27 September 2022, Ms Smith emailed the Agency to provide further evidence in support of her request to extend the portability period of Mr Girouard’s DSP. This included:

    ·a handwritten note on the back of a Medicine + Pharmacy Sales Invoice by Ms Kimberly Santos, who Ms Smith identified as a pharmacist in the Philippines. The note indicated that Mr Girouard was unable to travel due to the requirements to do so aggravating his condition and causing him to experience panic attacks, anxiety and pain. Ms Santos opined that travel would not be in Mr Girouard’s best interests until he had family support to assist; and

    ·an email from North Lakes Endocrinology dated 27 September 2022 confirming Ms Smith's appointment with Dr Swapna Devadula (Rheumatologist) on 20 October 2022.

30. On 7 October 2022, the ARO extended the portability period of Mr Girouard’s DSP until 31 January 2023 and affirmed a decision to reject his request for indefinite portability. The notes accompanying the ARO's decision document numerous telephone conversations with Ms Smith between 13 September 2022 and 6 October 2022, during which Ms Smith indicates, amongst other things, that:

    she expects to be clear to travel in mid-January 2023 after her specialist appointment and any recommended medical treatment she may require….she hopes to return from the Philippines by 01/02/2023…her lease on her current address also ends on 01/02/2023…

31. In relation to Mr Girouard, Ms Smith told the ARO that several Australian expatriates were looking out for him, that some local residents were assisting him by doing his washing, that he was assisting local children with their English language lessons while their school was closed, and that Mr Girouard was buying bags of rice which he was distributing to local families to assist after the typhoon. Ms Smith advised the ARO that Mr Girouard was high functioning autistic and “doing okay”, but with high levels of anxiety and occasional lapses of depression.

    Application to AAT1

32. On 18 November 2022, Ms Smith sought review of the ARO decision by the AAT1 and provided further evidence. Such evidence included a letter from Dr Toby Cohen (Vascular and Endovascular Surgeon) to Dr Madhu Lakshaiah (General Practitioner) dated 13 January 2023, in which Dr Cohen confirmed that he had reviewed Ms Smith, that she was “doing quite well [and had] had no medical issues over the last 12 months”. Dr Cohen opined that Ms Smith's imaging results were “fantastic” and that there was no need for intervention for her occluded left carotid artery as she was asymptomatic. Dr Cohen confirmed that he would review Ms Smith in 12 months’ time.

33. On 27 January 2023, the AAT1 affirmed the ARO's decision. The AAT1 decision confirmed, amongst other things, that:

    ·Mr Girouard was not in attendance at the hearing, which occurred via telephone with Ms Smith and her support person; and

    ·Ms Smith's evidence to the AAT1 included that there were numerous factors preventing Mr Girouard from independently returning to Australia, including the need to pay a fine for overstaying his visa, the need to obtain a new visa (involving medical and police clearances), the effect of his medical conditions and his inability to speak the local language. Ms Smith indicated that she had been awaiting medical clearance to travel to the Philippines, which had now been received. However, she was waiting for the outcome of the AAT1 review:

    …if the decision was to further extend the portability period, she would use that money to travel to the Philippines. If not, she would need to resign from work and find another source of money to fund her travel".

34. On 10 February 2023, Mr Girouard’s DSP was suspended for lack of portability.

    Application to AAT2

35. On 19 February 2023, Ms Smith, on behalf of Mr Girouard, submitted an Application to the AAT2 to review the AAT1 decision. Since then:

    ·the parties have dealt with a Request for Stay Order submitted by Ms Smith, seeking an order granting Mr Girouard indefinite portability of his DSP until he returns to Australia. The AAT2 refused the request via written reasons on 3 April 2023;

    ·Ms Smith provided further evidence and submissions in support of the Application, including in an email on 25 April 2023, in which she sought to narrow the scope of the proceedings:

    I am withdrawing the request for Indefinite Portability of [the Applicant's] DSP…I am seeking an Extension of Portability until such time that [the Applicant] returns to Australia, or to a fixed end date of 31 October 2023, whichever is the earliest. This request also includes a request for back payment of [the Applicant's] DSP until February 9 2023, when it was suspended; and

    ·on multiple occasions, including in a Hearing Certificate and via email to Ms Smith on 15 and 16 May 2023, the Secretary sought for Mr Girouard to be available to appear at the substantive hearing and give evidence in the hearing, noting his lack of involvement to date.

    WHAT QUESTION NEEDS TO BE ANSWERED?

36. The ultimate issue before the Tribunal is whether to exercise the discretion in section 1218C of the Act such that the portability period of the Applicant's DSP is extended beyond 31 January 2023. If the Tribunal finds there is no basis to exercise the discretion, that is the end of the matter. Alternatively, if the Tribunal finds there is a basis to exercise the discretion, the next issue will be until what date (i.e., when Mr Girouard returns to Australia, or to a fixed end date of 31 October 2023, whichever is the earlier).

37. Section 1218C of the Act provides:

    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.

    (2) The Secretary must not extend the person’s portability period under subsection (1) unless:

    (a) the event occurred or began during the period of absence; and

    (b) if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.

    (3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.

1. Mr Girouard does not appear to seriously propound that subsections 1218C(1)(a), (c), (d), (e), (f), (h), (j) and (k) apply in his case from January 2023 to September 2023 (eight-month window).

2. It follows that the Tribunal must answer the following questions for the eight-month window:

   (a)Did Mr Girouard or Ms Smith[5] have a serious illness that made Mr Girouard unable to return to Australia (subsection 1218C(1)(b))?

   (b)Was a robbery or serious crime committed against Mr Girouard that made Mr Girouard unable to return to Australia (subsection 1218C(1)(g))?

   (c)Was there political or social unrest in the Philippines that made Mr Girouard unable to return to Australia (subsection 1218C(1)(i))?

   [5] Ms Smith is Mr Girouard’s “family member” for the purpose of this application.

3. If any of the foregoing questions are answered in the affirmative, there will be a basis to exercise the discretion to extend Mr Girouard’s DSP portability.

4. The Guide to Social Security Law (Guide)[6] provides some guidance in respect of the discretion to extend the portability period:

   The discretion to extend the limited portability period applies to recipients who…

   - are overseas and cannot return to Australia before the allowed portability period ends because an extreme event or emergency situation as specified in SS Act section 1218C…

   A discretionary extension must be for a definite period, during which time the recipient's situation is expected to change and enable return to Australia (or to their usual country of residence in the case of pensioners saved under the pre-2000 and/or pre-2014 rules). Should a person be unable to return to Australia or their home country on expiry of the new allowable portability period, the case can be assessed and a further extension may be granted if appropriate…

   It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia (or their home country as the case may be). It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia or their home country at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately when their health allows this, extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia).[7]

   [6] Policy advice contained in the Guide is also relevant, and ought to be applied unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).

   [7] Section 7.1.2.10.

   WHAT ARE THE ANSWERS TO THOSE QUESTIONS?

5. In my view (and I find) that there is no basis on which I am able to exercise the discretion in section 1218C to extend the portability period because, after 31 January 2023:

   (a)Neither Mr Girouard nor Ms Smith had a serious illness that made Mr Girouard unable to return to Australia (subsection 1218C(1)(b));

   (b)Mr Girouard was not the subject of a robbery or serious crime that made Mr Girouard unable to return to Australia (subsection 1218C(1)(g)); and

   (c)There was no political or social unrest in the Philippines that made Mr Girouard unable to return to Australia (subsection 1218C(1)(i)).

   WHY ARE THESE THE ANSWERS TO THE QUESTIONS?

   Neither Mr Girouard nor Ms Smith has a serious illness that made Mr Girouard unable to return to Australia (subsection 1218C(1)(b)) over the eight-month window

6. Mr Girouard’s key submission is that he has a “lifelong severe disability” in the form of “high functioning autism”, together with other medical illnesses, including anxiety and Klinefelter conditions. He contends that these are serious illnesses that prevent him from travelling to Manila alone, to engage in the necessary process to exit the Philippines, and go on to Australia. Mr Girouard contends that the Agency is both aware of, and accepts that he has a disability.

7. Ms Smith’s evidence is that Mr Girouard’s Philippines visa expired on 19 April 2020 (i.e., he has overstayed in the Philippines), and this fact means that Mr Girouard’s exit procedure is not straightforward. Mr Smith says that Mr Girouard’s severe disability and illnesses prevent Mr Girouard from completing the Philippines exit procedure alone, and that he must be accompanied/supported by another person to successfully undertake the process.   

8. According to the Secretary, and confirmed by Ms Smith, in order to depart the Philippines, Mr Girouard will need:

   (a)to travel to Manila so as to enable him to go to the National Bureau of Investigation (NBI);

   (b)obtain a criminal record clearance from the NBI, which may take three days to process; then

   (c)go to a Bureau of Immigration office and pay a fine for overstaying his visa by more than three years; and

   (d)submit the form for an Emigration Clearance Certificate (this form requires 72 hours to process).[8]

   [8] Exhibit Tr2, p 32, para 40.

9. Ms Smith says that the process of getting Mr Girouard out of the Philippines, as described above, is complicated and expensive.

10. On this basis, the Secretary contends that subsection 1218C(1)(b) requires Mr Girouard to establish that:

    ·he is unable to travel to Manila and engage in the process to rectify overstaying his visa, as explained above;

    ·he is unable to engage in such a process due to a serious illness preventing him; and

    ·such serious illness occurred or began during his time overseas (subsection 1218C(2)).[9]

    [9] Exhibit Tr2, p 32, para 42.

11. The Secretary contends that:

    ·there is a lack of independent evidence before the Tribunal, including from doctors or other health professionals presently treating Mr Girouard, that offers probative material about Mr Girouard’s capacity to deal with his affairs;

    ·Mr Girouard’s refusal to participate in the Tribunal application process (i.e., not making himself available to give evidence or be cross-examined both before AAT1 and AAT2) means that Ms Smith’s account of his medical incapacity and steps taken to depart the Philippines, cannot be corroborated;

    ·there is evidence before the Tribunal contrary to Ms Smith's account of Mr Girouard’s medical conditions that she says prevent him from returning to Australia:

    oMr Girouard was well enough in 2019 to engage in multiple overseas trips, and he travelled from Mabini, Bohol to the Tagbilaran Airport so as to fly to Manila in January 2021;

    oMr Girouard was able to relocate from Mabini, Bohol to Tagbilaran, Bohol in the first half of 2021, and it appears as though he was successful in independently renewing his visa in the past; and

    oMr Girouard has resided independently in a foreign country for a number of years, appears to have made friends that look out for him, previously helped local children with their English language and bought and distributed large bags of rice to local families in his community after a typhoon;[10]

    ·Mr Girouard’s disability and illnesses existed prior to his arrival in the Philippines in 2019, and there is no independent evidence before the Tribunal that substantiates the proposition that there has been any worsening in the same, such that Mr Girouard is now “seriously ill”; and

    ·it appears that neither Mr Girouard nor Ms Smith have taken material steps to enable Mr Girouard’s departure from the Philippines over the eight-month window.

    [10] Exhibit Tr2, p 33, para 43.

12. In response to the Secretary’s contentions, Ms Smith says:

    ·Mr Girouard has been wholly financially dependent on Ms Smith to pay for accommodation and living expenses over the eight-month window. Ms Smith is struggling financially to maintain both herself and Mr Girouard. Accordingly, Mr Girouard does not have the financial resources to pay for doctors or other health professionals to write reports about Mr Girouard;

    ·her challenging financial position has impacted her ability to take meaningful steps to enable Mr Girouard to travel to Manila, to engage in the necessary process to exit the Philippines, and go on to Australia (Ms Smith says that either herself or someone else must travel with, and assist, Mr Girouard, but her precarious financial state over the eight-month window has made that impossible);

    ·she is Mr Girouard’s representative for the purposes of the Application, as Mr Girouard does not have the capacity or temperament to properly participate in Tribunal hearings;

    ·the foregoing point also applies in relation to Mr Girouard’s lack of capacity to deal, alone, with the complicated and expensive exit process from the Philippines;

    ·that Mr Girouard’s past travel was “highly orchestrated” by Ms Smith (although Ms Smith did need to accompany Mr Girouard on his overseas travel); and

    ·while Mr Girouard has had a “lifelong severe disability” in the form of “high functioning autism”, together with other medical illnesses, including anxiety and Klinefelter conditions, Mr Girouard’s overall mental health has substantially deteriorated since being held in “limbo” in the Philippines which, when all combined, mean that he is “seriously ill” and cannot travel alone.

13. There is no dispute between the parties that Mr Girouard has a disability and other illnesses. There is, however, a dearth of independent evidence in this case around how Mr Girouard’s health issues have impacted his capacity or otherwise prevented him from travelling within or departing the Philippines alone over the eight-month window. The same can be said more specifically about Mr Girouard’s capacity to deal with Philippines exit processes.

14. There is almost no independent evidence before me to substantiate that Mr Girouard’s health issues constitute a “serious illness”. Even if I was prepared to accept that Mr Girouard has a “serious illness” (and I do not):

    ·there is no independent material before me to suggest that the “serious illness” occurred or began during Mr Girouard’s time overseas;

    ·on Ms Smith’s evidence, Mr Girouard has engaged in regular overseas and Philippines domestic travel over recent years, and has lived abroad alone (in the Philippines) for extended periods; and

    ·Mr Girouard’s illness has not served as an impediment to independent international travel and residence, including his navigating the matrix of practical and logistical issues associated with the same;

    ·with this history, and on the evidence before me, I find that Mr Girouard is likely able to travel within the Philippines and address the Philippines exit processes alone.

15. In the alternative, if I was prepared to accept that Mr Girouard has a “serious illness” and unable to exit the Philippines alone (and I do not), the next question is whether Ms Smith had a “serious illness” over the eight-month window that prevented her from travelling to the Philippines to assist Mr Girouard to undertake local exit procedures and journey home to Australia.

16. Ms Smith says that she has had ongoing health issues, and that these have prevented her from travelling to the Philippines. While Ms Smith says she has not been hospitalised over the period over the eight-month window, she soon expects to be hospitalised for a routine operation, to remove her gallbladder. There is no evidence before me that Ms Smith’s ongoing health issues constitute a “serious illness” that prevented her from undertaking travel to the Philippines over the eight-month window.

17. Overall, I am not satisfied that subsection 1218C(1)(b) is enlivened in this case, either in relation to Mr Girouard or Ms Smith.  

18. As an aside, Ms Smith told the Tribunal that Mr Girouard is “always on the verge of wanting to come home [to Australia]”. It is not clear to me that Mr Girouard actually wants to return to Australia, or would return to Australia, if the portability period for his DSP was extended. Over the eight-month window, there does not appear to have been, and Ms Smith’s evidence did not suggest that, meaningful steps have been taken, either by Mr Girouard or Ms Smith, to facilitate Mr Girouard’s exit from the Philippines. The lack of action on this front is completely explainable by Ms Smith’s limited financial position.

19. It is apparent that Mr Girouard’s living arrangements in the Philippines and lack of independent income support are causing very significant financial strain on Ms Smith. Ms Smith presents as a sincere person who is doing her absolute best to support her son, even though providing such support is causing considerable emotional distress and financial hardship to her. Unfortunately, this situation does not enable me to exercise the discretion in section 1218C of the Act to extend the portability period for Mr Girouard’s DSP.

    Mr Girouard has not been the subject of a robbery or serious crime that made Mr Girouard unable to return to Australia (subsection 1218C(1)(g))

20. Ms Smith gave evidence to the Tribunal that Mr Girouard has been a victim of crime in Hagna, Philippines. Ms Smith told the Tribunal that Mr Girouard had been “mugged and mauled”, “robbed and beaten” by a local fisherman in June or July 2023. Ms Smith said that there are no official police reports evidencing the same. Ms Smith did not contend or explain how these crimes prevented Mr Girouard from returning to Australia before or after they were perpetrated against Mr Girouard. Accordingly, I am not satisfied that subsection 1218C(1)(g) is enlivened in this case.           

    There is no political or social unrest in the Philippines that made Mr Girouard unable to return to Australia (subsection 1218C(1)(i))

21. Ms Smith gave evidence to the Tribunal that the Department of Foreign Affairs & Trade’s Smart Traveller website issued a “do not travel” alert for the Philippines on the basis of “political and social unrest” in the “last couple of weeks”. Ms Smith conceded that such alert was not in place for most of the eight-month window. Ms Smith did not contend that political or social unrest in the Philippines prevented Mr Girouard from returning to Australia at any stage. Nor did Ms Smith suggest that political or social unrest in the Philippines was a bar on her own travel to the Philippines before or after the alert was issued. Accordingly, I am not satisfied that subsection 1218C(1)(i) applies in this case.

    DECISION

22. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 27 January 2023.

    I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.

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

    Associate

    Dated: 27 October 2023

    Date of Hearing:  22 September 2023

    Applicant:  Mr Vaughan Girouard

    Applicant Representative:                  Ms Carla Smith

    Respondent:  Secretary, Department of Social Services

    Respondent Representative:             Ms Claire Campbell of HWL Ebsworth Lawyers

    “Annexure 1”

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
TR1.	Section 37 T-Documents (T1-T38, pp 1-314)	-	-	22.03.2023
TR2.	Tribunal Book	-	-	14.09.2023