HALIME and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
[2011] AATA 576
•19 August 2011
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 member of the person or to return to the person's country of origin. All criteria must be met.
ISSUES
Does Mr Halime meet all the extended portability criteria so that he can continue to receive DSP while living in Lebanon after being absent from Australia for more than 13 weeks? In particular, is Mr Halime terminally ill?
CONSIDERATION OF THE EVIDENCE AND FINDINGS
I had before me documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 (“the T documents”), which I took into evidence. Mr Halime also gave evidence, and provided me with a medical history statement.
Mr Halime told me that he has been in Australia for 40 years. For the first 20 years in Australia he was happy, although it was difficult at first to learn English. He was prepared to work hard at a variety of fairly menial jobs in the country, notwithstanding his family in Lebanon had been very wealthy. He established two hairdressing salons and was apparently well regarded in the Lebanese community.
In about 1992 he was involved in an airline accident which appears to have traumatised him. He sought compensation of $1 million, without success, and this, in itself, continues to be a cause of much despair. In the course of expressing his frustration he was apparently accused of making serious threats, as the result of which he was subjected to police interrogation. He also had a business proposal which he had submitted to Austrade which was unable to proceed.
As a result of the airline accident the bones in his feet have been damaged. This was the only physical condition of which he complained associated with the incident. Shortly after the accident he consulted two psychiatrists over more than six months, but has not consulted any psychiatrist since. He takes no medication for his psychiatric condition, notwithstanding he continues to experience anger and panic attacks. He considers his condition to be ‘so severe that medication would not help’. The burden of his unresolved complaints, the false accusations and his loss of business opportunities remains with him daily, and he wants to leave it all behind him by going to Lebanon.
He said he has poor hearing. Also, in 2006 he had surgery for oesophageal cancer. He said he has had no reviews of the condition but there has been no re-occurrence. Recently he has experienced reflux which, while disturbing his sleep, is controlled by medication.
Overall Mr Halime said he is no longer happy in Australia. He has not been happy for 20 years. Last year he returned to Lebanon for seven weeks. Notwithstanding the distress of the air travel, he found he was happy and relaxed once there. He now has no family in Lebanon, but met a nice woman with whom he proposes to resume a relationship when he returns there. He would only return to Australia if a proposal he has put to the Australian government for the welfare of the Lebanese community in Australia comes to fruition. To date the proposal has not been taken up.
As I discussed at the hearing, the legislation is clear: DSP is only payable for 13 weeks while a person is in a non–agreement country, unless an applicant meets all criteria in s 1218AA.
Mr Halime clearly meets some of the criteria in that he is receiving disability support pension, and the purpose of his absence is to return to his country of origin. It is also reasonable to conclude, from his evidence, that his absence from Australia will be permanent.
The two remaining criteria are whether Mr Halime is terminally ill and whether he is severely disabled.
Is Mr Halime terminally ill?
Although the Act does not define 'terminally ill', the Guide to Social Security Law at 3.6.2.20 does offer guidance to a decision-maker:
Terminal Illness
Manifest inability to work is accepted if medical evidence indicates the claimant's current medical condition is chronic and debilitating with a prognosis that the condition is terminal, AND life expectancy is 24 months or less.
Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
Mr Halime suffers from a number of ailments; most significantly a psychiatric condition. He agreed that he was not terminally ill, but thought he was ‘brain dead’. On 6 January 2011 his general practitioner, Dr Small, completed a Certificate of Medical Condition and recorded that Mr Halime is suffering from depression. He specifically wrote that Mr Halime is not terminally ill. The Tribunal in Trepic and Secretary, Department of Family and Community Services [2005] AATA 710 at 21 did not consider depression a terminal illness.
In Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983 SM Handley, adopted the interpretation of “terminally ill” of the Shorter Oxford English Dictionary as "last stages of a fatal disease". There was no evidence, nor indeed any contention, that Mr Halime suffers a fatal disease that is in its last stages.
I do not accept Mr Halime to be terminally ill. Having come to that view it was unnecessary for me to decide if Mr Halime meets the statutory definition of severely disabled.
In these circumstances, where Mr Halime fails to meet all the criteria detailed in s 1218AA, I do not have any discretion; Mr Halime’s DSP cannot be extended beyond the 13 weeks.
DECISION
The decision under review is affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: .......[sgd].............................................................
C. Taylor, Associate
Date of Hearing: 12 August 2011
Date of Decision: 19 August 2011
Appearance for the Applicant: Self-representedSolicitor for the Respondent: Ms B Salaji, Centrelink Program Litigation and Review Branch
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