Hartigan and Secretary, Department of Social Services (Social services second review)

[2019] AATA 4083

Hartigan and Secretary, Department of Social Services (Social services second review) [2019] AATA 4083 (7 October 2019)

Division:GENERAL DIVISION       

File Number:           2019/1755

Re:Michael Hartigan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R. West 

Date:7 October 2019  

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Respondent pay to the Applicant the disability support pension for 12 September 2018.

...[sgd].....................................................................
Member

Catchwords

Disability Support Pension - maximum portability period – meaning of absence from Australia – decision set aside and substituted  

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Acts Interpretation Act 1901

Cases

Re Hartigan and Secretary, Chief Executive Centrelink, Member Halstead, 18 May 2016 in Matter 2016/S092556

REASONS FOR DECISION

Member R. West 

1. This matter concerns an application for review of the decision of the Social Services & Child Support Division of this Tribunal dated 13 March 2019 in Matter 2018/M130946 (Reviewable Decision) to affirm the decision of an officer of the Department of Human Services – Centrelink to suspend the Applicant’s disability support pension (DSP) on 12 September 2018.

2. The decision to suspend the Applicant’s DSP on 12 September 2018 was on the basis that the Applicant had exceeded the allowable portable period for DSP to be paid to him.

   Background

3. The background to this matter is set out in the Reviewable Decision as follows:

   4. Mr Hartigan is in receipt of disability support pension which is subject to restrictions regarding payment when a person travels overseas. This is referred to as overseas portability and is set out in Part 4.2 of the Act.

   5. Section 1213 of the Act provides that Division 2 of Part 4.2 applies to a person who was receiving a social security payment before the period of absence.

   6. Section 1215 of the Act provides that a person’s right to continue to be paid a social security payment is not affected merely by their absence from Australia. Section 1217 sets out the maximum portability period, allowable absence and portability period for various payment types including disability support pension.

   7. The table in section 1217 sets out the maximum portability period for disability support pension and provides a maximum portability period for 28 days absence from Australia for any purpose in the last 12 months ignoring days in which the person was not receiving disability support pension.

   8. Section 1217 therefore allows a person in receipt of disability support pension who is absent from Australia to continue to be paid disability support pension for 28 days in a 12 month period. After the 28 days is exhausted disability support pension ceases to be payable and payment is suspended.

   9. The Department of Immigration and Border Protection (the Department) advised that Mr Hartigan departed Australia from 28 November 2017 to 20 December 2017 (14 days). The Department advised that Mr Hartigan then travelled to Nepal from 29 August 2018 to 13 September 2018 (13 days). This meant that on 12 September 2018 Mr Hartigan’s disability support pension payment was suspended because he had exceeded 28 days absence from Australia in the previous 12 months; being absent for 29 days in a 12 month period.

   Agreed Facts

4. For the purpose of the review proceedings the following facts, related to the Applicant’s travel from Melbourne to Nepal in 2018, were agreed:

   a.the scheduled departure time for his flight from Melbourne was 11.30 pm on 29 August 2018;

   b.the Applicant cleared immigration control at Melbourne’s Tullamarine Airport sometime before 11.30 pm on 29 August 2018;

   c.the actual departure time for the Applicant’s flight was not earlier than 11.30 pm on 29 August 2018, although the exact time of departure is not known;

   d.the Applicant’s flight passed out of Australian territorial airspace at some time on 30 August 2018; and

   e.the Applicant returned to Australia on 13 September 2018.

   Analysis

5. Under section 1217(4)(a) of the Social Security Act 1991 (Act) the maximum portability period begins on the commencement of the period of absence. The Respondent submits that this means that the maximum portability period includes the date upon which the period of absence commences.  The Tribunal accepts this contention.[1]

   [1] See s 36 of the Acts Interpretation Act 1901.

6. The simple issue in this case is whether, for the purpose of the Act, the Applicant was absent from Australia for more than 28 days.  On the basis of the agreed facts this boils down to whether the Applicant was absent from Australia on 29 August 2018 (in which case he was absent for 29 days and not entitled to payment for DSP in respect of 12 September 2018) or was not absent until 30 August 2018 (in which case he was absent for 28 days and entitled to payment of DSP on 12 September 2018).

7. The Respondent submits that the most reliable evidence upon which to determine when a person departs Australia is the departure date provided by the Department of Home Affairs, namely the date at which the person passes through outbound immigration control. The Respondent asserts that relying on this information represents a reliable, workable, convenient and consistent approach to decision-making with regard to the ascertaining departure dates.

8. On the basis of the Respondent’s submission, the Applicant departed Australia on 29 August 2018, having cleared immigration at Tullamarine Airport before 11.30pm on that day.

9. The Applicant’s submission relies on the decision of the Social Services & Child Support Division of this Tribunal in Re Hartigan and Secretary, Chief Executive Centrelink.[2]  In that case the Applicant passed through immigration control at Tullamarine Airport at 11.30 pm on 3 October 2015 and his flight departed at 12.30 am on 4 October 2015.  The Tribunal found that the Applicant’s flight had remained in Australia en-route from Melbourne for several hours before it eventually left Australian airspace somewhere over the coastline of the Northern Territory or Western Australia.  The Tribunal concluded that the Applicant in that case departed Australia on 4 October 2015, the date his aircraft departed Australian airspace.

   [2] Decision of Member Halstead of 18 May 2016 in Matter 2016/S092556 [21].

10. In the Reviewable Decision the Tribunal stated that … the tribunal is not entirely happy with the way this question has been dealt with in the decision made on 18 May 2016, but the tribunal is also not entirely happy with the Centrelink determination that the person “departs Australia” when they “pass through immigration”.[3]   The Tribunal did not agree with the interpretation of departed from Australia as when the flight leaves Australian airspace, and in the absence of any definitions to the contrary, the Tribunal concluded that the normal usage of the term should apply; that is, the date Mr Hartigan’s flight departed Melbourne airport.[4] 

    [3] Decision of the Social Services & Child Support Division of this Tribunal in Re Hartigan and Secretary, Chief Executive Centrelink, per Member De Bono dated 13 March 2019 in Matter 2018/M130946.

    [4] Supra at [25].

11. The Tribunal notes that in each of the cases cited, and in the Respondent’s submissions in these proceedings, the focus is on the date of departure.  The expression date of departure is used in the Act.  Section 1259 provides that … the departure of a person from Australia for a foreign country is a reference to the departure of the person from Australia for a foreign country, whether or not the person intends to return to Australia. Section 1260 provides that, for the purposes of Part 5.5 (dealing with departure prohibition orders) Australia, when used in a geographical sense, includes the external Territories. 

12. Neither of these sections provide any real assistance in the interpretation of the expression absent from Australia in the context of the Applicant’s case.  The term absence from Australia is not defined in the Act.  The Member noted in the Reviewable Decision that:[5]

    There is no definition of “in Australia”, “absent from Australia” or “departed Australia” in the Act or the Administration Act. Similarly, the tribunal cannot find anywhere in the Social Security Guide’s Application of the Portability Rules that the date of departure is deemed to be the time the person clears immigration.

    [5] Supra at [17].

13. The Respondent’s contention that the date upon which a person is absent from Australia should be determined by the time the person passes through outbound immigration control is an argument of convenience for the Respondent.  It enables the Respondent to rely on information provided to it by the Department of Home Affairs and avoids the need to consider the actual travel circumstances of the person concerned.

14. This raises the question of whether the Tribunal should have regard to the administrative convenience of the Respondent in interpreting the meaning of the term absent from Australia. There are no stated objectives in the Act. However, section 8 of the Social Security (Administration) Act 1999 sets out the principles the Secretary is to have regard to in administering social security law under the Act. The results which are sought to be achieved under those principles are set out in section 8(1). They do not refer to administrative convenience or efficiency as an intended result of the principles.

15. While it is arguable that an interpretation which would result in the administration of the Act becoming too burdensome should not be adopted, this is not to say that primacy should be given to administrative convenience over the plain wording of the Act.

16. The task for the Tribunal is to give effect to the plain ordinary meaning of the term absent from Australia when considered in the context of the legislation read as a whole. The Oxford Dictionary relevantly defines absent as not present in a place or at an occasion; away.  Whilst a person remains within Australia’s territorial borders they cannot be said, having regard to the literal meaning of the term, to be physically absent from Australia.  Nor are such persons free from the jurisdiction of Australian law. In what sense then can it otherwise be said that they are absent from Australia? 

17. Neither the date a person passes through outbound immigration control nor the scheduled date of departure of their flight, necessarily reflects the person’s physical location or the application of Australian law at any particular time.  Each of these options seeks to apply an interpretation akin to the operation of a deeming provision.  While it is clearly open to the Parliament to deem a person to be absent from Australia at any arbitrary time, such as the time the person passes through immigration control, it has not done so in relation to section 1217.

18. The Tribunal accepts that the adoption of the plain ordinary meaning of the term absent from Australia may result in some administrative inconvenience for the Respondent, but it does not result in any absurdity or infringe on the purpose and objectives of the Act.  Accordingly the Tribunal is satisfied that the correct approach to ascertaining the day upon which a person is absent from Australia for the purpose of determining an allowable portable period, is to select the day upon which the person ceases to be physically present within Australia’s territorial borders.

19. Accordingly, the Tribunal finds that the Applicant was first absent from Australia on 30 August 2018 when his flight left Australian territorial airspace, and that upon his return to Australia on 13 September 2018 he had been absent from Australia for 28 days and had not exceeded the allowable portable period for DSP to be paid to him.

    DECISION

20. The Tribunal sets aside the decision of the Social Services & Child Support Division of this Tribunal dated 13 March 2019 in Matter 2018/M130946 and in substitution decides that the Respondent pay to the Applicant the disability support pension for 12 September 2018.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

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Associate

Dated: 7 October 2019

Date of hearing:	10 August 2019
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services Mr Tim de Uray