Hasan and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1945
•13 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1945
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0825
GENERAL ADMINISTRATIVE DIVISION ) Re MOHAMAD ANIS HASAN Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date13 November 2007
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
SOCIAL SECURITY - partner allowance - extension of portability period - wife living in Indonesia - frequent extended visits by applicant to Indonesia - wife's illness present prior to applicant's departure - no intention of returning to Australia within portability period - no unexpected event preventing applicant's return to Australia - decision under review affirmed
Social Security Act 199, s.1213, 1217, 1218C(1),(2),(3)
The amendments to the Act inserted by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures Act) 2003 (122, 2003) (the Amending Act).
Guide to the Social Security Law
Manolev and SDFaCS (2005) AATA 398
Re Drake and Minister for Immigration and Ethnic Affairs No. 2 (1979) 2 ALD 634
REASONS FOR DECISION
13 November 2007 Ms A F Cunningham (Senior Member) 1. The decision which is the subject of this application for review was made by Centrelink on 2 November 2006 being a refusal to extend the applicant, Mohamad Hasan's portability of partner allowance beyond 3 November 2006.
2. The hearing was conducted by way of telephone link to Mr Hasan in New South Wales. An interpreter in the Indonesian language was present in person at the appeal hearing which was conducted in Hobart.
Issue
3. The issue for determination is for what length of time partner allowance should be payable to Mr Hasan following his departure from Australia on 5 August 2006. This determination requires a consideration of the portability rules for a person departing Australia and whether a discretion should be exercised to extend the portability period in the circumstances of Mr Hasan's case.
Background Facts
4. The following factual material was not in dispute and the Tribunal finds as follows:
(i) Mr Hasan's wife was granted disability support pension (DSP) in August 1996. Mr Hasan was granted partner allowance on 7 May 1998.
(ii) Mr Hasan's wife left Australia on 7 November 1999 to live in Indonesia on a permanent basis.
(iii) Between 28 November 1999 and 5 August 2006 Mr Hasan has departed from and returned to Australia on no less than ten occasions.
(iv) On 14 July 2006 Mr Hasan contacted Centrelink to enquire as to the possibility of being granted a temporary extension of portability as his wife was sick overseas. He was advised to contact Centrelink International Services in Hobart.
(v) On 31 July 2006, Mr Hasan contacted Centrelink and advised that he planned to leave Australia on 5 August 2006 and would return between 4 November 2006 and 3 February 2007. He was advised that due to the portability provisions of his partner allowance, payment could only be made for thirteen weeks until 4 November 2006.
(vi) On 5 August 2006 Mr Hasan departed Australia for Indonesia. He was paid partner allowance until 3 November 2006.
5. On 24 October 2006 Centrelink received a letter from Mr Hasan dated 18 October 2006, asking that consideration be given to his wife's situation. He stated inter alia:
"One of the reasons as to why I left Australia, was that I was having a problem and with her health. She was and still suffering from acute rheumatism and arthritis, she also suffer from swallow knees, and she cannot stand or walk properly. She stayed alone in Batu - Indonesia, not families at all.
I cannot return to Australia on the 4 October 2006 because my wife still sick. I also enclosed doctor certificate about my wife condition".
6. The "Recommendation Letter" received from Dr Putra Suryana (Internist Rheumatologist) dated 12 October 2006 stated that Sukainah, 60 years old, was diagnosed with bilateral knee osteoarthritis with various deformities and drug induced gastropathy.
7. On 2 November 2006 Centrelink advised Mr Hasan in writing that his request for a portability extension had not been approved.
8. On 6 November 2006 Centrelink advised Mr Hasan that his partner allowance had been suspended from 4 November 2006.
9. On 22 November 2006 Mr Hasan sent a letter to Centrelink which stated inter alia:
"It was true that a the time my wife was suffering illness and several times she stayed Sydney at the same time she had a medication there. After going back to Indonesia and staying here, her illness was getting worsen accompanied by complications, at last I was recommended by a hospital doctor who treated my wife that I should not go overseas (or back to Australia)".
10. The decision not to extend Mr Hasan's portability period was affirmed on 24 November 2006 and similarly affirmed by an authorised review officer on 30 November 2006.
11. The SSAT affirmed the decision under review on 7 February 2007..
Evidence
12. Mr Hasan gave oral evidence at the hearing by telephone. He confirmed that he departed Australia for Indonesia because his wife was sick and that her health had worsened since his arrival. Mr Hasan further stated that he was also not well when he went to Indonesia. Mr Hasan said that he returned to Australia because he was unable to afford medication in Indonesia.
13. Mr Hasan confirmed that when he left Australia in August 2006 he had no intention of returning to Australia within thirteen weeks. He confirmed that he had visited Indonesia on many occasions between 1998 and 2006 for periods up to twelve months. The last occasion he visited Indonesia was for a period of one year.
14. When Mr Hasan returned to Australia his wife remained in Indonesia. He confirmed that she was left to care for herself and stated that his daughter's child aged 5 years, is being cared for by his wife in Indonesia. Mr and Mrs Hasan's daughter and her husband live and work in Australia. Mr Hasan advised that on his return to Australia he lodged applications for New Start and DSP Allowance. In answer to a question from Mr Sparkes that he wanted to live in Indonesia and receive an Australian pension, Mr Hasan responded 'yes'.
Legislation
15. The applicable legislation is the Social Security Act 1991 (the Act) and in particular the amendments to the Act inserted by the Family and Community Services and Veterans' Affairs Legislation Amendment (2003 Budget and Other Measures Act) 2003 (122, 2003) (the Amending Act).
16. As there is no international agreement between Australia and Indonesia, the issue of portability of Mr Hasan's allowance is determined under the Act.
17. Section 1213 of the Act states as follows:
"1213 Persons to whom Division applies
This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:
(a) immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or
(b) during the period of absence, the person’s claim for such a payment is granted under the Social Security (Administration) Act 1999".
Section (a) applies as Mr Hasan was receiving a partner allowance prior to his departure from Australia on 5 August 2006.
18. Section 1217 provides that a person in receipt of partner allowance has a maximum portability period of thirteen weeks.
19. The amendments referred to above which came into effect 1 July 2004 reduced the portability period for Social Security payments from twenty six weeks to thirteen weeks.
20. An extension of a persons portability period is provided for in section 1218C of the Act which states as follows:
"1218C(1)The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a)a serious accident involving the person or a family member of the person;
(b)a serious illness of the person or a family member of the person;
(c)the hospitalisation of the person or a family member of the person;
(d)the death of a family member of the person;
(e)the person’s involvement in custody proceedings in the country in which the person is located;
(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)a natural disaster in the country in which the person is located;
(i)political or social unrest in the country in which the person is located;
(j)industrial action in the country in which the person is located;
(k)a war in the country in which the person is located.
1218C(2)The Secretary must not extend the person’s portability period under subsection (1) unless:
(a)the event occurred or began during the period of absence; and
(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
1218C(3)If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period".
21. The Explanatory Memorandum to the Bill which introduced sections 1218C(1) says in part:
"New section 1218C - Extension of Persons Portability Period - this section provides a discretion for the Secretary to extend a persons portability period, where the person finds him or herself in any of the grievous circumstances listed in that section".
22. The Tribunal is assisted as to the nature of the "event" contemplated in s.1218C by the guidelines published by Centrelink which refer to an extreme or emergency situation. Whilst the Tribunal is not bound to apply departmental guidelines as was stated by Brennan J in Re Drake and Minister for Immigration and Ethnic AffairsNo. 2 (1979) 2 ALD 634 at 640 provided the policy as consistent with statute:
"Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy".
This is particularly so where a discretion is afforded. The Guide to the Social Security Law states that the discretion may be exercised where, inter alia, the person is:
"Not able to return because of an extreme event or emergency situation as specified (in SS Act section 1218C) prevents their return".
23. Mr Hasan has alleged that his wife's ill-health caused him to travel to Indonesia and the deterioration in her health prevented him from returning within the portability period of thirteen weeks. Whilst the Tribunal can accept that Mr Hasan's wife suffers from medical conditions as outlined in the doctor's report tendered in evidence, they do not appear to be serious enough to prevent her from caring for her five year old grandchild. Nor were the conditions serious enough to prevent Mr Hasan returning to Australia and leaving his wife to care for herself and their grandchild. In the Tribunal's view these circumstance do not constitute an extreme event or emergency situation within the meaning of the legislative provision as discussed above.
24. Section 1218C(2) states that the portability period is not to be extended unless "the event occurred or began during a period of absence". The evidence was that Mrs Hasan's ill-health was prevalent prior to and was the reason that Mr Hasan left Australia. It was also his evidence that when he left Australia he had no intention of returning within portability period. Whilst he contends that his wife's health deteriorated during his absence, there is no supporting medical evidence and the circumstances as outlined above do not support this evidence.
25. The Tribunal in the decision Manolev and SDFaCS (2005) AATA 398 found that the applicant was excluded from an extension of the portability period on the basis of section1218C(2)(a) because her illness was present before she left Australia. Further the Tribunal noted at paragraph 28:
"In Mr Manolev's case the Tribunal has to take note of what is meant by "a serious illness of the person" and whether Mr Manolev's illnesses would qualify him under this category. The section speaks of "events" and the Tribunal believes this means a specific identifying incident and not something which came on gradually".
And at paragraph 29:
"The Macquarie Dictionary gives some of the following definitions of “serious”: ‘of grave aspect’, ‘giving cause for apprehension’, ‘critical’. In the Explanatory Memorandum of changes to the Social Security Act it states under the new Section 1218C - Extension of a person’s portability period: “This Section provides a discretion for the Secretary to extend a person’s portability period where the person finds him or her self in any of the grievous circumstances listed in the Section”.
The Tribunal would, from the above, come to the conclusion that the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.
The Tribunal finds that Mr Manolev’s illnesses are rather vague without specific onset and without a specific end point".
26. In the present case there is very little supporting evidence relating to Mrs Hasan's medical conditions, particularly regarding the gravity and seriousness of the illnesses. In the absence of such evidence the Tribunal is unable to make any findings as to the seriousness of the illness as required by the provisions of section 1218C(1)(b).
27. In any case as required per the provisions of section 1218C(2), the "event" must occur during the initial portability period. Mr Hasan has failed to satisfy the Tribunal in relation to this requirement. It was his own evidence that at the time of departure he had no intention of returning to Australia within the thirteen week portability period. He could not therefore contend that it was his wife's illness that prevented him from returning within this period. There can be no suggestion that his wife's illness was an unexpected event preventing his return. Mr Hasan's letter of 18 October 2006 in which he stated that his wife was and still suffering from acute rheumatism and arthritis confirms this situation.
28. The fact that Mr Hasan returned to Australia on 5 August 2007 leaving his wife alone to care for their five year old granddaughter suggests that her state of health was not so grave as to require constant care.
29. Mr Hasan did not dispute the applicability of the Social Security Legislation as outlined above. He asked the Tribunal to assess and determine his case on humanitarian grounds. The Tribunal must however determine the appeal in accordance with the applicable legislation and has no discretion to depart from the requirements of the Act and consider Mr Hasan's case on the grounds suggested.
30. It is the Tribunal's finding that there is no evidence to substantiate a finding that Mr Hasan was unable to return to Australia due to an event listed in section 1218C(1) during the portability period and accordingly there can be no basis upon which the portability period should be extended.
31. For these reasons the Tribunal determines to dismiss the appeal and affirm the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 10 September 2007
Date of Decision 13 November 2007
Counsel for the Applicant Applicant on his own behalf
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink Legal Services
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