Hussein and Secretary, Attorney-General’s Department (Social services second review)

[2016] AATA 501

Hussein and Secretary, Attorney-General’s Department (Social services second review) [2016] AATA 501 (30 June 2016)

Division	General Division
File Number	2015/6186
Re	Qurban Ali Hussein
APPLICANT
And	Secretary, Attorney-General's Department
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	30 June 2016
Date of written reasons	19 July 2016
Place	Sydney

The decision under review, being the decision of the Social Services and Child Support Division of this Tribunal made 23 October 2015, is affirmed.

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

J W Constance
Deputy President

CATCHWORDS

SOCIAL SECURITY - Australian Victim of Terrorism Overseas Payment - where the event is not a declared overseas terrorist act - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 23(1), 35B, 1061PAA(1)(a)

Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (Cth)

WRITTEN REASONS FOR DECISION

(DECISION GIVEN ORALLY ON 30 JUNE 2016)

Deputy President J W Constance

19 July 2016

BACKGROUND

1. The findings of fact set out in these reasons are taken from the Respondent’s Statement of Facts, Issues and Contentions, filed on 2 May 2016. There is no dispute as to the facts of this matter.

2. Mr Hussein is an Australian citizen and an Australian resident for the purposes of the Social Security Act 1991 (Cth).

3. In August 2011 Mr Hussein and his family travelled to Pakistan. On 31 August 2011, a suicide bombing took place close to Mr Hussein’s family’s home in Quetta, Pakistan. I do not propose to outline the details of the bombing attack other than to say it was clearly a horrific event for Mr Hussein, his family, and for the numerous other families affected by it. The circumstances are set out in more detail in the decision under review, being the decision of the Social Services and Child Support Division of this Tribunal made on 23 October 2015. 

4. On 9 June 2015, Mr Hussein made a claim for an Australian Victim of Terrorism Overseas Payment. On 12 June 2015, a delegate of the Secretary decided that Mr Hussein was not eligible for the payment and rejected his claim on the basis that the event which had affected Mr Hussein was not a ‘declared overseas terrorist act’ for the purposes of the social security legislation.

5. On 3 July 2015, a review officer affirmed the decision and Mr Hussein exercised his right to seek to have that decision reviewed by the Tribunal.

6. The matter came before the Social Services and Child Support Division and was affirmed on 23 October 2015. Mr Hussein applied to the General Division of the Tribunal, on 26 November 2015, to review this decision.

   LEGISLATION

7. The Australian Victims of Terrorism Overseas Payment scheme allows for a payment of up to $75,000 to be made to qualified victims of a declared overseas terrorist act. Importantly, that payment can only be made if there is a ‘declared overseas terrorist act’. It is not sufficient than an event is simply considered to be an overseas terrorist act.

8. The payment was enacted by the Social Security Amendment (Supporting Australian Victims of Terrorism Overseas) Act 2012 (Cth). Up until that enactment, there was no scheme such as that under which Mr Hussein now seeks payment. The legislation set up the framework for financial assistance for Australians who are directly affected either personally or through the death of a close family member by an overseas terrorist act.

9. The words ‘declared overseas terrorist act’ are defined in section 23(1) of the Social Security Act, as:

   a terrorist act in respect of which there is a declaration under subsection 35B(1).

10. Section 35B(1) provides that it is the Prime Minister who may declare that a terrorist act, that occurs outside of Australia, is a ‘declared overseas terrorist act’.

    CONSIDERATION

11. There have been a number of terrorist acts which have been declared under the legislation, and Mr Hussein was clearly disturbed by the fact that this event in which he and his family were involved has not been added to that list. While his concern is understandable, there may be good reason why a declaration has not been made.

12. However, for whatever reason, this event has not been so declared. Maybe it will be in the future, but it is completely beyond the power of this Tribunal to interfere in that process. The Tribunal must apply the law as it exists. The law clearly requires that for a payment to be made under the scheme, it must be a ‘declared overseas terrorist act’. It was put by Mr Hussein and I agree, that the event was almost certainly an overseas terrorist act, however it has not been declared as such under the legislation.

13. On that basis, Mr Hussein does not meet one of the strict requirements of section 1061PAA(1)(a) of the Social Security Act, as he was not a victim of a ‘declared overseas terrorist act’. 

    CONCLUSION

14. The decision under review, being the decision of the Social Services and Child Support Division of this Tribunal made 23 October 2015, will be affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 19 July 2016

Date of hearing	30 June 2016
Date final submissions received	30 June 2016
Applicant	In person
Solicitors for the Respondent	Ms H Schuster; Department of Human Services