Guler and Secretary, Department of Family and Community Services
[2004] AATA 515
•6 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 515
ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/191
GENERAL ADMINISTRATIVE DIVISION
Re: GALSUM GULER
Applicant
And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 6 May 2004
Place: Melbourne
Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review
(sgd) E. Fice
Member
WIFE PENSION ‑ pension cancelled ‑ absence from Australia for more than 12 months
Social Security Act 1991 s1216, 1217
Social Security Act 1947 s60C
REASONS FOR DECISION
6 May 2004 Mr E. Fice, Member
This is an application by Mrs G. Guler to review a decision of the Secretary to the Department of Family and Community Services (the respondent) made on 4 July 1991 to cancel her wife's pension with effect from 1 July 1991.
At the hearing of this matter, Mrs Guler represented herself, with the aid of her husband, Mr H. Guler and a Turkish interpreter. Mr S. Meehan, a Centrelink advocate, represented the respondent.
Background
Mrs Guler arrived in Australia on 29 June 1980. She commenced receiving wife pension on 25 March 1982. Mrs Guler returned to Turkey with her husband on 24 August 1983. Her wife pension continued to be paid to her while she was overseas. On 4 July 1991 a delegate of the respondent made a decision to cancel Mrs Guler’s wife pension because she had been overseas for more than 12 months. Mrs Guler returned to Australia on 7 February 2003. She has since made an application for a carer allowance and a carer payment, both of which were granted, and she has been in receipt of those pensions since 7 March 2003.
Consideration of Issues
At the time Mrs Guler left Australia the relevant legislation was the Social Security Act 1947 (the 1947 Act). The 1947 Act dealt with the entitlement of persons outside of Australia to pensions awarded in Australia. This Act was first altered by the Social Security and Veterans' Affairs Legislation Amendment Act 1990. A new section 60C was inserted in the 1947 Act, which provided that:
60C. (1) Where:
(a)a person left, or leaves, Australia on or after 1 July 1990; and
(b)before leaving the person was in receipt of a wife's pension or a class B widow's pension; and
(c)and the person continues to be absent from Australia for more than 12 months;
the person is not qualified to receive that pension after the first 12 months' absence while the person remains absent from Australia.
Sub‑section 60C(3) of the 1947 Act provided:
(3) subsection (1) applies in relation to a person who was outside Australia on 1 July 1990 as if the person had left Australia on that day.
It seems quite clear that sub‑section 60C(3) of the 1947 Act was intended to have retrospective effect, and that it applied to persons who had left Australia prior to July 1990, thereby removing or disqualifying them from the right to receive a pension to which they were previously entitled..
The 1947 Act was repealed on 1 July 1991. It was replaced by the Social Security Act of 1991 (the Act). At the relevant time, which is the time when Mrs Guler's pension was cancelled, section 1216 of the Act provided:
1216. Subject to section 1216B, if:
(a)a woman has been an Australian resident; and
(b)she has been outside Australia continuously for a period of 12 months; and
(c)on the day after the 12 month period ends, she is not in Australia or a specified foreign country;
she is disqualified for:
(d) the wife pension…
That section is wide‑reaching, and it does have a note attached to it which provides:
Note 2: because this section commences on 1 July 1991, a woman who has been outside Australia since 1 July 1990 and is not in Australia or a specified foreign country on 1 July 1991 becomes disqualified for the pension referred to in this section from 1 July 1991 unless section 1216B applies to her.
Mr Meehan submitted that the exception regarding specified foreign country does not apply to Mrs Guler, as the Minister has not specified any countries under that provision. Section 1216B of the Act provides that a woman's qualification for a wife's pension, among other pensions, is not affected by her being outside Australia while an entitled person. An entitled person is a person who has been an Australian resident for at least 10 years. Mrs Guler arrived in Australia in 1980 and left in August 1983. Therefore, she does not qualify as an entitled person.
It follows that the exemptions provided under section 1216B of the Act do not apply to Mrs Guler. Mr Meehan has also submitted that there are no other exemptions or exclusions which might apply to Mrs Guler. The Tribunal accepts this submission. Section 1216 of the Act is reasonably clear. Mrs Guler had been outside Australia continuously for a period of 12 months, prior to the cancellation of her pension. On the day after the 12‑month period ended, she was not in Australia. Accordingly, it follows that section 1216 of the Act does apply to Mrs Guler, and she is disqualified from receiving the wife pension from 1 July 1991.
In relation to Centrelink notifying Mrs Guler of the cancellation of the wife pension, and advising Mrs Guler of the legislative changes, it appears that she did not receive such notification and was not aware that the changes would be unfavourable towards her. It has been submitted on behalf of the respondent that it was policy to send those notices to persons who may be affected, but there are no records of the notices having been sent.
Mrs Guler's pension was correctly cancelled on 4 July 1991 with effect from 1 July 1991. For the reasons above, the Tribunal affirms the decision under review.
I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision of:
Mr E. Fice, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 6 May 2004
Date of decision: 6 May 2004
Advocate for applicant: Self‑represented
Advocate for respondent: Mr S. Meehan, Centrelink
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