HALIME and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS - [2011] AATA 576

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 576

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2011/1650

GENERAL ADMINISTRATIVE DIVISION )
ReEMILE HALIME

Applicant

AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

TribunalMs N Isenberg, Senior Member
Date19 August 2011
PlaceSydney
DecisionThe decision under review is affirmed.

....................[sgd].......................
Ms N Isenberg
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability rules – 13 weeks in most circumstances – no portability agreement with Lebanon – portability if Applicant is terminally ill – whether Applicant is severely disabled – whether Applicant is terminally ill – decision under review affirmed.

Social Security Act 1991 ss 1211, 1217, 1218AA, 1218C

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 259

Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

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

Re Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Trepic and Secretary, Department of Family and Community Services [2005] AATA 710

Guide to Social Security Law s 3.6.2.20, 7.1.2.10

REASONS FOR DECISION

19 August 2011

Ms N Isenberg, Senior Member

Mr Halime has been paid disability support pension (DSP) for some years. In January 2011 he foreshadowed that he proposed to travel to Lebanon and requested Centrelink to continue his DSP indefinitely while he was outside Australia. Centrelink decided to limit payment of DSP to 13 weeks while he lives in Lebanon. That decision was affirmed on internal review and by the Social Security Appeals Tribunal. Mr Halime now seeks review of the decision.

LEGISLATION

The relevant law is contained in the Social Security Act 1991 ("the Act") and the Social Security (Administration) Act 1999 (“the Administration Act”). Unless Australia has an agreement under the Social Security (International Agreements) Act 1999 with the relevant country, the portability rules in the Act apply: s 1211. As Australia does not have such an agreement with Lebanon, the portability rules in the Act apply to Mr Halime. The portability periods of the various types of social security payments are detailed in the table at the end of s 1217 of the Act and, subject to the noted exceptions, the maximum portability period for DSP is 13 weeks.
Several provisions however allow for the extension of the portability period. Relevantly, s 1218AA allows for the portability period for DSP to be extended indefinitely, but only, as I explained to Mr Halime at the hearing, in very limited circumstances, such as when the person is severely disabled and the person is receiving disability support pension and the person is terminally ill; and the person's absence from Australia is or will be permanent; and the purpose of the person's absence is to be with or near a family…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HALIME and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS [2011] AATA 576
Case: [2011] AATA 576
Decision Date: 19 August 2011

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Halime and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs was heard. The Applicant, a resident of Australia, sought a review of a decision regarding her entitlement to a disability support pension under the portability rules, as she had previously been a resident of Lebanon. The primary issue was whether the Applicant was severely disabled and, if not, whether she was terminally ill, which would allow for the portability of her pension despite the lack of an agreement between Australia and Lebanon.

The court needed to determine whether the Applicant met the criteria for severe disability or terminal illness, which would allow for the portability of her pension. The court considered the evidence provided regarding the Applicant's medical condition and the effect it had on her ability to work. It was established that there was no portability agreement between Australia and Lebanon, but the court could still consider the Applicant's case under the exceptional circumstances of severe disability or terminal illness.

The court found that the Applicant did not meet the criteria for severe disability, as her condition did not significantly impair her ability to work. However, the court also found that the Applicant was not terminally ill. Based on the evidence presented, the court concluded that the Applicant did not fall within the exceptional circumstances that would allow for the portability of her pension. Consequently, the court affirmed the original decision denying the Applicant's entitlement to the disability support pension under the portability rules.

The court's decision was that the original decision denying the Applicant's entitlement to the disability support pension under the portability rules was affirmed. The Applicant's application for review was dismissed, and the original decision remained in place.

Orders