GOTTFRIED DORWEILER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 324

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 324

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4122

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GOTTFRIED DORWEILER

Applicant

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

Respondent

DECISION

Tribunal The Hon C R Wright QC (Deputy President)

Date8 May 2009

PlaceHobart

Decision The decision under review is affirmed.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

SOCIAL SECURITY - claim for age pension by former Australian resident now living in Germany - no entitlement to such a pension before commencement of Agreement on Social Security between Australia and Germany on 1 January 2003 - Applicant's failure to make a claim until 25 July 2007 - Applicant claimed pension retrospectively to January 2003 - Departments refusal to recognise entitlement for any period prior to 25 July 2007 - decision affirmed

Social Security (International Agreements) Act 1999

Social Security (Administration) Act 1999

REASONS FOR DECISION

8 May 2009 The Hon C R Wright QC (Deputy President)     

1.      In my opinion the decision under review must be affirmed.  My reasons for coming to this conclusion may be stated very concisely.  I have read the reasons in writing provided by Ms Christine Ball, the Authorised Review Officer with Centrelink dated 14 February 2008, and the reasons of the Social Security Appeals Tribunal dated 15 July 2008.  I have also read the submissions contained in the Secretary's Statement of Facts and Contentions dated 19 January 2009, signed by Mr Sparkes.  In my opinion Mr Sparkes has compendiously and accurately identified the relevant facts and issues and has correctly identified the applicable law.  He has contended that under the law, the applicant cannot be paid an Australian age pension prior to the date of his written claim on 25 July 2007.  In my opinion this contention is correct for the reasons advanced in the Secretary's Statement of Facts and Contentions.

2.      A hearing of the applicant's application for review took place in Hobart on 4 March 2009.  The applicant, who lives in Germany, participated by telephone with the aid of an interpreter.  The respondent was represented by Mr Brian Sparkes.  Notwithstanding the presence of an interpreter the applicant appeared to have some difficulty understanding my questions, but eventually his responses clearly indicated that he understood both the case that was being made against his claim by the respondent and my desire to find out the nature and content of two written communications which he claimed to have been made to the Department in 1997 and 2002 respectively.   I was led to believe that he could make copies of these documents available to the Tribunal.  For that purpose the hearing was adjourned.  It was emphasised to Mr Dorweiler that it was very important that he include a copy of the 'application' which he claimed was made by him to the Department in February 2002. 

3.      By letter dated 11 March 2009, the applicant supplied a number of documents to the Tribunal.  Insofar as necessary those documents have been translated from the original German into English.  Some of these documents had previously been provided in the "T" Documents and had been available for consideration by the Tribunal.  Two of the documents are of particular significance for present purposes.  They are:

A.       A letter from the applicant to the Department of Social Security        regarding the anticipated intergovernmental agreement between Australia and      Germany.  This letter was dated 28 May 1997.  It constituted a request for          information but in no sense could it be interpreted as an application for     payment of an age pension.  At most it confirms an awareness by the            applicant of the possibility of his becoming entitled to a pension at some time       in the future.  The respondent has no record of having received this document     but does not dispute that the applicant contacted the Department in this way.     By this concession I infer that the Department received the letter but that it         has been mislaid or lost since that time.  It is not claimed that any reply or          acknowledgement of receipt was sent to Mr Dorweiler.  However as already            mentioned, this was not a claim and in any event the applicant had no       entitlement to a pension at the relevant time.

B.       A certificate or receipt for payment of 10.55 Euros to Deutsche Post on      25 February 2002.  This document provides additional support of the delivery            docket addressed to The Manager, International Operations Branch at the         Department of Social Security Hobart in Tasmania, which was among the documents previously provided to the Tribunal at the hearing on 4 March            2009.  Once again it must be observed that the respondent has no record of            having received the document referred to in the delivery docket but does not        dispute the applicant's claim to have sent a document to the Department on      the relevant date.  Again it must be inferred that the document was a letter of     enquiry as to the applicant's entitlement to an age pension under the    prospective intergovernmental agreement.  However I do not think that it can            be inferred that the document was a formal or even an informal application for      pension which was capable of being processed by the Department.

4.      Furthermore, even if such an inference as this could, or should, be drawn, it must be observed that at that time there was no legal entitlement which the applicant could have invoked to support such a claim.  As pointed out in the decision of the Social Security Appeals Tribunal dated 3 July 2008 at paragraph 35, a social security payment may be granted retrospectively if the criteria established by section 42 of the Social Security (Administration) Act 1999 are met viz:

(i)        A claim for a social security payment has been made;  and  (ii)       The applicant was qualified for payment on the date the claim was   made.

Mr Dorweiler was not qualified for the pension he seeks on 25 February 2002, as the International Agreement did not become operative as part of Australian domestic law until 1 January 2003.  The only realistic conclusion is that he did not make a claim for a payment for which he was qualified until 25 July 2007. 

5.      Accordingly his application for review must fail.  The decision under review is affirmed.  It is fair to observe, however, that if the Department had responded appropriately to either or both of Mr Dorweiler's enquiries in 1997 and 2002, he may well have been alerted to the prospect of making a successful claim much earlier than he did.

I certify that the 5 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  4 March 2009 and Further Submissions filed 3         April 2009
Date of Decision  8 May 2009
Solicitor for the Applicant          Applicant on his own behalf
Solicitor for the Respondent     Mr B Sparkes, Centrelink Legal Services