HAIFA DAHI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 444

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No     2008/4625      )          No  2009/0067

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HAIFA DAHI

Applicant

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

Respondent

DECISION

Tribunal Dr Roderick McRae, Member 

Date15 May 2009  

PlaceMelbourne

Decision For the reasons given orally at hearing, the Tribunal affirms the decisions under review.

(sgd) Roderick McRae

Member

SOCIAL SECURITY – family tax benefit – eligibility ‑ child absent overseas indefinitely – disability support pension – whether unlimited portability

A New Tax System (Family Assistance) Act 1999 s 21 and s 22

Social Security Act 1991 s 7, s 1218AA(1)

REASONS FOR DECISION

15 May 2009  Dr Roderick McRae, Member       

1.      Ms Dahi, the Applicant, is a 58 year old Lebanese divorced woman who migrated to Australia.  Shortly after the birth of her only son, she separated from her husband, who returned to Lebanon and now allegedly resides in Syria.  Cultural demands are such that she cannot communicate with her husband, and relies on third party information.  It is alleged that her husband is dying, and upon a recent visit, her son has elected to remain with his father.  The Applicant is lonely and fearful of her loneliness.  She tendered a letter from her general practitioner, Dr Michael Levick, stating she has a severe personality disorder.  In her oral evidence she described an irrational risk of a common surgical procedure from which she is likely to benefit. 

BACKGROUND TO THE APPLICATIONS

2.      There are two issues before the Tribunal.  One relates to a decision to cancel the family tax benefit (FTB) (application Nº 2008/4625), on the basis that the Applicant’s son was absent from Australia.  The other matter is with respect to the Applicant’s qualification for permanent portability of her disability support pension (DSP) (application Nº 2009/0067). 

3.      The Applicant did not challenge the facts relating to the decision to cancel her FTB.  She was receiving FTB.  Her son left Australia in December 2007.  Centrelink was not informed of her son’s departure but detected it through a data match review.  A small FTB over payment occurred and a debt was raised.  That matter is settled to the mutual satisfaction of the parties.

4.      The facts arising from the second decision are not in dispute.  The Applicant continues to receive DSP.  She made enquiries as to the portability of her DSP should she leave Australia permanently. 

5.      These decisions were challenged and reviewed by an authorised review officer, and the Social Security Appeals Tribunal (SSAT).  The SSAT affirmed the decisions on 15 September 2008. 

FAMILY TAX BENEFIT

6. The requirements for FTB are set out in s 21 of the A New Tax System Family Assistance Act 1999 (the Family Assistance Act). Sections 21 and 22 of the Family Assistance Act require that, for a child to be an FTB child a number of criteria have to be met. The child has to be in the adult’s care, and the child has to be an Australian resident and living in Australia. Section 7 of the Social Security Act 1991 (the Act) defines the concept of Australian resident. 

7. Applying the facts to that legislative scheme shows that the Applicant’s son departed Australia in December 2007. He has been absent for 18 months. The evidence is that he intends to remain with his father in Syria, for as long as his father lives, however long that is. He does not intend to return to Australia in the near future. In her evidence, the Applicant conceded she was not entitled to FTB. The Tribunal finds that the Applicant’s son can no longer be regarded as an FTB child as required by the Family Assistance Act. The Applicant no longer had an FTB child, and therefore did not qualify for payment of FTB. The payment was properly cancelled.

8.      The decision in application Nº 2008/4625 is affirmed. 

PORTABILITY OF DISABILITY SUPPORT PENSION

9. The circumstances that permit an extension of DSP payment beyond 13 weeks are provided for in s 1218AA(1) of the Act. Section 1218AA(1) requires that the Applicant is severely disabled and terminally ill. There is no evidence that the Applicant is either severely disabled or terminally ill. The Tribunal finds that the Applicant is neither severely disabled, nor terminally ill. The Applicant does not satisfy the requirements of s 1218AA(1) of the Act. Therefore, the Applicant cannot receive DSP for an unlimited period while she is overseas. She remains entitled only to the 13 week period set out in the Act.

10.     The decision in application Nº 2009/0067 is affirmed.

DECISION

11.     The Tribunal affirms the decisions under review.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr Roderick McRae, Member

Signed: Olympia Sarrinikolaou
  Clerk

Dates of Hearing  15 May 2009
Date of Decision  15 May 2009
Advocate for the Applicant          Self-represented
Advocate for the Respondent       Mr Pat Carson, Centrelink Legal Services