Jacob and Secretary, Department of Social Services (Social services second review) - [2023] AATA 158

Jacob and Secretary, Department of Social Services (Social services second review) [2023] AATA 158 (14 February 2023)
Division:GENERAL DIVISION
File Number: 2020/5815
Re:Aryeh Jacob
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:14 February 2023
Place:Perth

The Reviewable Decision, being the decision of an authorised review officer of Centrelink dated 3 June 2020 as affirmed by the AAT1 on 11 September 2020, is affirmed.
..........[Sgd]..............................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – decision to cancel Applicant’s Newstart Allowance – absence from Australia found not to be an allowable absence for the purpose of portability – whether an allowable absence – whether a temporary absence for: the purpose of seeking eligible medical treatment overseas; attending to an acute family crisis; or for a humanitarian purpose – freedom of religion – Reviewable Decision affirmed
FEDERAL COURT REMITTAL – original AAT2 dismissed application after the hearing because Applicant did not lodge written closing submissions as directed – by consent Federal Court remitted the application for reconsideration to a differently constituted Tribunal on the basis of denial of procedural fairness – application reconsidered without a hearing
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 15AA
Administrative Appeals Tribunal Act 1975 (Cth) – ss 34J(1)
Social Security Act 1991 (Cth) – ss 1212, 1212A, 1212B, 1212C, 1215(1), 1215(1)(a), 1217, 1217(1), 1217(2), 1217(4)
Social Security (Administration Act) 1999 (Cth) – s 80
Victims Support and Rehabilitation Act 1996 (NSW)
CASES
Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116
Jacob v Secretary Department of Social Services (No 2) [2022] FCA 907
Lesic and Secretary, Department of Family and Community Services [2002] AATA 651
Quenin and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 893
Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; (2003) 77 ALJR 1797
Wolff and Secretary, Department of Employment and Workplace Relations [2006] AATA 173
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide version 1.303 – para [7.1.2.20]
Macquarie Dictionary (online at 14 February 2023) ‘acute’
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
14 February 2023
overview

According to the Services Australia website, the Jobseeker Payment is a social security payment for unemployed persons looking for work or for persons who are sick or injured and cannot do their usual work or study. It was previously called the Newstart Allowance but was replaced by the Jobseeker Payment on 20 March 2020 (
Given this purpose, it is unsurprising that the legislation imposes restrictions on the circumstances in which these payments can continue to be made and for how long for, if a person travels overseas.
Certain absences are “allowable absences” whereby social security payments can be paid for specified periods of time while a person is overseas.
Mr Jacob travelled to Italy, from 18 November 2019 to approximately 12 January 2020. He travelled to Israel where he stayed for eight days, and then returned to Italy on approximately 21 January 2020. He did not return to Australia until 16 June 2020.
When he departed Australia on 18 November 2019, Centrelink suspended his Newstart Allowance.
Then on 17 February 2020, Services Australia decided to cancel Mr Jacob’s Newstart Allowance from 18 November 2019 because he was not in Australia (Cancellation Decision).
Mr Jacob sought an internal departmental review of the Cancellation Decision. However, Mr Jacob was not successful, with an authorised review officer finding, on 3 June 2020, that the Cancellation Decision was correct (ARO Decision).
Mr Jacob appealed to this Tribunal. On 11 September 2020 a Member of the Social Services & Child Support Division of this Tribunal (AAT1) affirmed the ARO Decision.
Thus, the Reviewable Decision is the ARO Decision dated 3 June 2020, as affirmed by the AAT1 on 11 September 2020.
On 23 September 2020, Mr Jacob appealed the Reviewable Decision to the General Division of this Tribunal (AAT2).
As I explain in more detail below, after holding a hearing, the AAT2, constituted by a different Member, dismissed Mr Jacob’s application on 6 January 2022 when he did not lodge written closing submissions and after the Registry of the Tribunal could not contact him.
Mr Jacob successfully appealed to the Federal Court in Jacob v Secretary Department of Social Services (No 2) [2022] FCA 907. The Federal Court set aside the 6 January 2022 decision and remitted the matter to the Tribunal for reconsideration in accordance with the law, by a differently constituted Tribunal. The President constituted me to determine the remittal application.
Following the consent of the parties, I determined this application without a hearing, pursuant to s 34J(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
issue
The issue before me is whether Mr Jacob’s absence from Australia, which commenced on 18 November 2019, was an allowable absence under s 1217 of the Social Security Act 1991 (Cth) (the Act).
This will include a consideration of whether Mr Jacob’s overseas absence could be characterised as a temporary absence for: the purpose of seeking eligible medical treatment overseas; attending to an acute family crisis; or for a humanitarian purpose.
If his absence was an allowable absence, the Newstart Allowance would have been payable to him when he was outside of Australia for a six-week period.
Factual background
Mr Jacob was in receipt of a Newstart Allowance but travelled to Milan, Italy on 18 November 2019 to visit a close friend whom he describes as his “second mother”. His father had passed away in Israel on 22 June 2018 and was buried within a few days of his death. Mr Jacob claims that he was receiving emotional support from his friend in Italy following the death of his father.
Mr Jacob claims that, neither he nor his siblings who live in Australia were immediately notified of his father’s death by his father’s partner, and by the time he was notified, he could not afford to travel to Israel. He also developed a medical condition in his eye which caused blurred vision and required treatment in Australia, as well as having other medical issues.
Mr Jacob contacted Centrelink when he became aware of his father’s death and asked about travelling to Israel. He was told he needed a death certificate but had trouble obtaining a copy of it because the authorities in Israel kept sending it to his old address there.
After being in Italy for one month and 25 days, Mr Jacob travelled to Israel for approximately eight days, from approximately 12 January 2020, during which time he had a Kaddish graveside prayer ceremony for his father to meet his obligations in accordance with Hebrew custom. Mr Jacob received advice from a rabbi that the ceremony could be delayed by 12 to 24 months. He also managed to obtain a copy of his father’s death certificate (untranslated) on 15 January 2020 when he was in Israel.
Mr Jacob also attended an Israeli Court hearing on 20 January 2020 concerning a family property dispute involving Mr Jacob and his siblings. Mr Jacob’s mother had passed away 40 years ago, leaving her property to her five children with her four sons owning 10% each and her daughter owning 60%. One of Mr Jacob’s brothers, who lives in Israel, had been living in the property, had not been paying land rates (resulting in the siblings owing a debt of $50,000 as joint owners) and was refusing to agree to sell the property. Mr Jacob had initiated the Court action in the Israeli Courts on behalf of himself and his siblings who are living in Australia. Apparently, Mr Jacob was told by his lawyer that he did not need to attend Court in person, but after he failed to do so the Court awarded the whole of the property to his Israeli based brother who was living in the property.
He returned to Italy after spending the eight days in Israel and did not return to Australia until 16 June 2020 which was in part due to travel restrictions associated with COVID-19. I have given Mr Jacob the benefit of the doubt here and when considering the time spent in Italy when compared to Israel, I have instead focussed on his initial travel to Italy, followed by the eight days in Israel.
Mr Jacob decided to appeal the Israeli Court decision to award the property to his brother. He claimed that he needed to travel to Italy to lodge the appeal documents with the Israeli Embassy. He claimed that he could not afford to travel to Canberra to lodge them, and that he could not go directly to Israel to lodge the documents because accommodation was expensive there, so he lodged the appeal documents at the Israeli Embassy in Italy. He was able to stay with his friend in Italy free of charge.
At the AAT2 hearing, Mr Jacob also claimed for the first time that one of the reasons why he had travelled to Italy was to obtain medical treatment and or/ medical opinions regarding two infected teeth and an eye condition.
the original AAT2 proceedings and federal court appeal
As I mentioned above, the application was originally constituted to a different Member.
The timeline was as follows:
(a)The Secretary lodged s 37 documents, numbered T1 to T12, pages 1 to 90 (T-Documents) on 21 October 2020.
(b)The Secretary filed a Statement of Facts and Contentions dated 12 January 2021.
(c)Day one of the hearing was on 16 August 2021. The hearing was adjourned because Mr Jacob sought to make submissions concerning the Constitution and religious privileges that had not previously been advanced. The Member made directions giving Mr Jacob leave to file further submissions and giving the Respondent leave to make submissions in reply. Mr Jacob also raised concerns that he could not see the Respondent’s legal representative who appeared by telephone and about obtaining legal representation.
(d)Mr Jacob made email submissions on 24 August 2021 specifying the documents he would be relying upon at the hearing. These were stated to include:
(i)the 10 Commandments;
(ii)Proverbs;
(iii)s 116 of the Commonwealth Constitution;
(iv)Article 18 of the Universal Declaration of Human Rights (Human Rights Convention);
(v)Black and white images that were indecipherable;
(vi)the Social Security Guides;
(vii)internet sources on freedom of religion and a speech by Middleton J;
(viii)travel documentation concerning his trip to Israel;
(ix)information on COVID-19;
(x)a journal article from the Social Security Reporter concerning the decision in Quenin and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 893 (Quenin);
(xi)a case claim Mr Jacob filed in the Magistrate’s Court of Western Australia against the Israeli Embassy in Canberra and a letter from the Magistrate’s Court refusing to accept the claim document because it appeared to be an abuse of the Court’s process or frivolous or vexations;
(xii)a sleep study report; and
(xiii)a hospital discharge summary.
(e)The Respondent lodged submissions in reply on 30 August 2021.
(f)The hearing resumed on 30 September 2021. The Applicant appeared in person and the Respondent appeared via Microsoft Teams, due to being located in Canberra.
On 4 October 2021, the Member made a direction seeking further submissions from the parties regarding s 1217 of the Act. The direction was amended on 28 October 2021 to extend the timeframe for lodging the submissions. The Respondent lodged written submissions on 4 November 2011 which was within the time directed (Secretary’s Closing Submissions).
Mr Jacob contacted the Registry of the Tribunal on 17 November 2021 to advise that he would be unable to comply with the direction within the time directed, which was 26 November 2021. The Registry agreed to contact him in four weeks’ time. The Registry unsuccessfully attempted to contact Mr Jacob on numerous occasions, with the last attempt being on 23 December 2021.
On 6 January 2022, the original Member dismissed the application on the basis that Mr Jacob had failed to comply with a direction.
Mr Jacob appealed to the Federal Court. By consent, the Court set aside the Member’s decision of 6 January 2022 and remitted the matter to the Tribunal to decide in accordance with the law before a differently constituted Tribunal. Although the orders were made by consent, the Federal Court gave reasons for judgment.
In those reasons, the Court explained how the Tribunal had erred, at [14]:
… the Tribunal erred in law and failed to afford Mr Jacob procedural fairness in that he was not given any opportunity to explain, or advance reasons why the matter should proceed notwithstanding that he had not complied with the direction to file responsive submissions by 26 November 2021 or within four weeks thereafter. The appeal should succeed and the Tribunal’s order should be set aside on that ground.
Having been remitted to the Tribunal, the President constituted the matter to me in September 2022
On 13 October 2022 I held a directions hearing by telephone. Mr Jacob expressed frustration with the outcome of the Federal Court proceedings notwithstanding that he was legally represented by Legal Aid and was successful in those proceedings.
As I understood it, Mr Jacob had lost confidence with the Tribunal after the matter was dismissed on 6 January 2022. He did not want the matter being remitted back to the Tribunal and wanted the Federal Court to finally decide the matter. He expressed frustration that Legal Aid had agreed to the consent orders on his behalf.
However, having found there was jurisdictional error, there was no other course of action available to the Federal Court. The judiciary can only undertake judicial review concerning the legalities of a decision. It is for the Tribunal, as part of the executive, to undertake a review on the merits. That is why the Federal Court, by consent, set aside the decision having found there was a legal error, and remitted the matter back to the Tribunal.
Mr Jacob’s frustration was expressed in the telephone directions hearing to such an extent as to be obstructive including shouting, making offensive remarks, and talking over me. It was not possible to proceed in those circumstances, I muted Mr Jacob so he could not continue to shout over me, however he disconnected the telephone call before I could return to him.
To progress the application in the manner ordered by the Federal Court, I made directions on 13 October 2022 for the parties to advise me as to how they would like to proceed and whether they would like to make further submissions. The Respondent consented to the matter being determined without a hearing (sometimes referred to as a “hearing on the papers”) on 20 October 2022.
After correspondence with Mr Jacob between 2 November 2022 and 12 January 2023 and my Associate, Mr Jacob confirmed that he consented to the matter being determined on the papers. Accordingly, I made an order under s 34J(1) of the AAT Act that the matter would be determined in the absence of a hearing.
Mr Jacob’s consent was somewhat qualified in that he requested that I exclude “everything that occurred after that final hearing” (email dated 12 January 2023). This was a reference to the Secretary’s Closing Submissions. I take it that this was because he had not submitted any closing submissions himself.
Having reviewed all the materials and the transcripts of the 16 August 2021 and the 30 September 2021 proceedings, I am of the view that I can agree to Mr Jacob’s request and that I do not need to consider the Secretary’s Closing Submissions. Given the outcome of this application, and the fact that these submissions state the applicable law and sum up the submissions and evidence that are already before me, including in the transcripts of the AAT2 hearing, there is no prejudice to the Respondent in my not referring to them. However, I cannot be precluded from a proper consideration of the law, and so I will refer to legislative provisions and the Social Security Guide that are referred to in those submissions (and again, these are also referred to in the other submissions before me in any event).
legislative framework
Section 1215(1) of the Act provides that some social security payments are generally portable with specified time limits. The relevant subsection is s 1215(1)(a) of the Act which states:
(1) If the person's maximum portability period for the payment is not an unlimited period, the following rules apply:
(a) throughout the person's portability period for the payment, the person's right to continue to be paid the payment is not affected merely by the absence; …
A “portability period” is defined in s 1217 of the Act. For the Newstart Allowance (now called the Jobseeker Payment), the period of absence is six weeks for an allowable absence (s 1217(1) and (2) of the Act, item 15 of the Table of Portability of Social Security Payments).
The beginning and end of the portability period is defined in s 1217(4) of the Act as follows:
(4) If the person’s maximum portability period for the payment is not an unlimited period, the person's portability period for the payment, in relation to the period of absence, is the period:
(a) beginning at the commencement of the period of absence; and
(b) ending at the earlier of the following times:
(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii) the end of the period that is the person's maximum portability period for the payment.
For example, for a Newstart Allowance, the period of absence for the purpose of portability starts when the person leaves Australia and ends when the absence is no longer an “allowable absence” or at the expiry of six weeks.
Item 15 of the Table of Portability of Social Security Payments states that an absence is an “allowable absence” if it is:
A temporary absence for any of the following purposes:
(a)         to seek eligible medical treatment;
(b)         to attend to an acute family crisis;
(c)         for a humanitarian purpose.
A “temporary absence” is defined in s 1212C of the Act as follows:
For the purposes of this Part, a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia …
Pursuant to s 80 of the Social Security Administration Act 1999 (Cth), if the Secretary is satisfied that a social security payment is being paid to a person who is not, or was not, qualified for a payment, or to whom the payment is not, or was not payable, the Secretary is to determine that the payment is cancelled or suspended.
Was Mr Jacob’s absence to seek eligible medical treatment?
Section 1212 of the Act defines terms including the following:
“eligible medical treatment”, in relation to a person, means medical treatment of a kind that is not available to the person in Australia.
The Social Security Guide provides the following guidance about the circumstances that may constitute “eligible medical treatment”, at [7.1.2.20]:
Eligible medical treatment, in relation to a recipient, means medical treatment of a kind that is not available to the recipient in Australia. It could include specialised or new types of surgery such as transplants or other kinds of treatment. Such a determination would be guided by the opinions of registered Australian medical practitioners. However, treatment does not necessarily satisfy the definition of eligible medical treatment just because a doctor approves or recommends the treatment. For example, iridology, herbal treatment, faith healing and similar treatments are not considered to be eligible medical treatment.

Mr Jacob told the AAT2 that medical practitioners in Australia would not clean his infected teeth properly and wanted to pull them out. Mr Jacob submitted photographs which he told the AAT2 were of teeth, however those photos were indecipherable. There is no evidence he obtained any treatment for his teeth in Italy. There is no evidence, and I do not accept that, his teeth could not be treated in Australia. Instead, it seems that Mr Jacob did not like the advice he received in Australia that the teeth should be removed. The evidence also suggests he obtained treatment in Australia. A letter dated 4 December 2019 from the Lions Eye Institute states that Mr Jacob “described having dental surgery due to a dental abscess and has been prescribed antibiotics”.
Mr Jacob also told the AAT2 that he wanted a “second opinion” from a “different professional” in Italy about his eye condition. Mr Jacob did not proceed with any medical treatment for his eyes in Italy, although he referred to obtaining strong vitamin B12 tablets in Italy that were not available over the counter and that he thought were not available in Australia. I also find that treatment for his eye condition was available in Australia, as shown by the 4 December 2019 letter from the Lions Eye Institute which shows his eye condition was being monitored.
At the AAT2, Mr Jacob expressed concerns about the cost of the medical treatment in Australia not being completely covered by Medicare. However, “eligible medical treatment” concerns treatment that is not available in Australia. Cost is not a factor.
I find that Mr Jacob did not travel overseas to obtain any “eligible medical treatment”.
Was mr jacob’s absence to attend to an acute family crisis?
Section 1212A of the Act concerns the meaning of an “acute family crisis”. The relevant part of the definition is as follows:
For the purposes of this Part, a person's absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
…
(a)for the purpose of visiting a family member who is critically ill; or
(b)for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c)for a purpose relating to the death of a family member; or
(d)for a purpose relating to a life‑threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.
The Social Security Guide provides guidance about an overseas absence to attend to an acute family crisis at [7.1.2.20]. The relevant parts provide:
A recipient’s overseas absence for the purpose of attending to an acute family crisis can be for a limited and specified period of time. The delegate must be satisfied that the absence is:
·     for a purpose relating to the death of a family member, …
If the recipient’s circumstances satisfy the acute family crisis criteria then payments may continue only for a reasonable amount of time (up to the allowed portability period for the qualifying payment) for the recipient to visit an ill family member, deal with a family member's death or to deal with a life threatening situation.
…
The criteria for an acute family crisis (as provided by the legislation) indicates that, in most cases, the circumstances under which payment can be made while a recipient is overseas will be due to an immediate or emergency family situation. …
…
Example 4: The recipient’s family member has recently died.
Where the circumstances relate to the death of a family member, however, and subject to decision maker’s satisfaction that the main reason for the travel relates to the death of a family member, consideration can be given to paying the recipient while overseas at any time after the family member's death, even when the travel is not in the period immediately following the death of the family member.
Applicable situations where overseas travel might relate to the death of a family member and where the circumstances are not immediate or an emergency, could include the following scenarios:
·     where a funeral or memorial service for the recipient's deceased family member is delayed due to factors outside the recipient’s control
…
·     where the recipient was unfit for travel immediately after the family member’s death (the recipient must have sufficient medical evidence to demonstrate that they were unfit for travel at the earlier time).
…
If the recipient’s circumstances satisfy the criteria for an acute family crisis, then they may be paid while overseas for a specific negotiated period of no longer than the allowed portability period for the qualifying payment. The length of payment will be restricted to the period of time required for the recipient to deal with the particular acute family crisis.
(My emphasis.)
The Secretary referred to Lesic and Secretary, Department of Family and Community Services [2002] AATA 651 (Lesic). In Lesic, Member Cowdroy considered whether Mr Lesic returning to the United Kingdom to deliver ashes was an acute family crisis. The learned Member stated, at [9]:
… it is clear that the definition of acute family crisis relates to critical family events which are unexpected and are of such urgency that they require immediate action or attention. Although the Tribunal accepts that the taking of the ashes to the United Kingdom was a significant family event, it cannot constitute an acute family crisis when one reads section 1212A of the Act in its entirety.
Although it was observed in the subsequent Tribunal decision of Wolff and Secretary, Department of Employment and Workplace Relations [2006] AATA 173, at [28] that Lesic did not refer to any “authorities or principles of statutory interpretation to support this observation”. I agree with the Secretary’s submission that the words “for a purpose relating to the death of a family member” should be considered in the context of the surrounding language of s 1212A of the Act. I agree with the Secretary that the events referred to in sub-paragraphs (a), (b) and (d) have a sense of urgency that require immediate action or attention. A consideration of the plain and ordinary meaning of “acute” supports this interpretation. The Macquarie Dictionary online defines “acute” to include “severe; crucial” and “brief and severe”.
This interpretation is supported by relevant provisions of the Acts Interpretation Act 1901 (Cth) (the AIA), and in the High Court decision of Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; (2003) 77 ALJR 1797 (Brown).
Section 15AA of the AIA provides that:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Brown concerned the interpretation of the Victims Support and Rehabilitation Act 1996 (NSW). The principles set out in the following passage in the judgment of Heydon J (with whom the other Justices agreed), at [33] of Brown, is relevant:
Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sched 1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sched 1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl 5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: “The issue before the Court is the determination of the circumstances in which compensation is payable.” The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence “[t]he Court is not required to give the most expansive possible interpretation of such circumstances”.
(Footnotes omitted.)
Similar observations can be made with respect to the Act in this application. Although the Act is beneficial in nature, it contains specifically worded provisions that indicate that the legislative purpose is to provide benefits in accordance with the Act and not otherwise. I therefore agree with the interpretation of the Tribunal in Lesic.
Turning to the current application, I am not satisfied that Mr Jacob’s travel was for a purpose relating to the death of his father. Mr Jacob’s father passed away on 22 June 2018. He did not travel overseas until 18 November 2019, approximately 17 months later. There does not appear to have been sufficient urgency associated with his father’s death for his travel. I note that the Social Security Guide contemplates that travel could occur sometime after the family member has died, for example, because a memorial service was delayed. However, Mr Jacob’s father was buried within several days and there seemed to be some flexibility, based on the rabbi’s advice, as to when the Kaddish graveside ceremony could occur. Thus, when the ceremony took place was not outside the control of Mr Jacob.
In Quenin, Member Britton decided that Mr Quenin’s absence from Australia between 14 March 2012 to 15 May 2012 was an “allowable absence” within the meaning of s 1217 of the Act. The Tribunal was satisfied that the sole reason that Mr Quenin visited France was to attend a memorial service for his father who had died 10 months earlier and to comfort his distressed mother who had lost her husband of 40 years. The Tribunal accepted medical evidence that Mr Quenin had been hospitalised and was seriously ill at the time of his father’s death and was unfit to travel until March 2012.
Mr Jacob’s case is different from that of Mr Quenin. Even if I accept that Mr Jacob’s travel was delayed for various reasons including his receiving delayed notification of his father’s death, and possibly due to Mr Jacob having health and financial issues (although there is no medical evidence before me certifying him unfit to travel), the sole purpose of his overseas travel was not to travel directly to Israel for his father’s graveside ceremony. Unlike Mr Quenin, Mr Jacob did not travel straight to Israel as soon as he was able to (assuming 18 November 2019 was the first opportunity for him to do so). Instead, he travelled to Italy for one month and 25 days to visit a friend who he regards as his “second mother”, whom he had previously lost contact with for a 30-year period.
Given the substantial amount of time Mr Jacob spent in Italy before travelling to Israel, when compared with the eight days he spent in Israel, together with his return to Italy after he left Israel, suggests that the primary purpose of his travel was to visit his friend in Italy. Even if he found some comfort visiting his friend after his father’s death, that is not a circumstance sufficient to meet the definition of an acute family crisis because it is not sufficiently connected to being for “a purpose relating to the death of a family member”. Such a purpose, as contemplated in the legislation and Social Security Guide, is intended to include travel for a reasonable amount of time to, for example, organise and/or attend a funeral or memorial event, and not to seek comfort from a friend for a lengthy period (in this case approximately six weeks) before travelling to Israel.
I find that Mr Jacob did not travel overseas for “an acute family crisis”.
Was Mr Jacob’s absence for a humanitarian purpose?
Section 1212B of the Act concerns the meaning of a “humanitarian purpose”. The relevant part of the definition is as follows:
For the purposes of this Part, a person's absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:
(a)for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings …
(My emphasis.)
The Social Security Guide provides guidance about an overseas absence for a humanitarian purpose at [7.1.2.20]. The relevant parts provide:
A recipient’s overseas absence for a humanitarian purpose can be for a limited and specified period of time if the recipient is:
…
· involved in legal proceedings other than those in respect of a crime allegedly committed by the recipient
…
Other legal proceedings include circumstances such as where a recipient is required to appear as a witness.
…
I accept that Mr Jacob was needed to attend the Court proceedings in Israel in person. However, he did not fly directly to Israel for the purpose of these Court proceedings. Instead, he travelled to Italy where he spent six weeks with his friend.
Mr Jacob’s evidence was that he needed to file documents related to his Israeli Court appeal in person at the Israeli Embassy but that he could not afford to travel to Canberra to do so and could not afford accommodation in Canberra or Israel. One of his stated reasons for travelling to Italy was to lodge these documents at the Israeli Embassy in Italy where he had free accommodation with his friend.
With respect to Mr Jacob, I do not accept this explanation as being plausible. It seems implausible that he could fly to Italy and then Israel but could not afford to fly to Canberra. Even if that were plausible, Mr Jacob spent approximately six weeks in Italy staying with his “second mother” when the legal proceedings were listed for one day in Israel, being 20 January 2020. The time he spent in Italy is not proportionate to the amount of time it would have taken to file documents with the Israeli Embassy in Italy. It does not take six weeks to do so.
I find that Mr Jacob did not travel overseas for a “humanitarian purpose”.
Freedom of religion
Mr Jacob sought to rely upon materials concerning freedom of religion, including s 116 of the Commonwealth Constitution. He has also referred to article 18 of the Human Rights Convention which provides for a personal right to freedom of religion or belief. I am not of the view that those materials are relevant to this application. However, to assist Mr Jacob I will make two brief observations.
Firstly, as my analysis above of the facts and circumstances of Mr Jacob’s situation indicates, neither the legislation itself, nor any decisions made under it with respect to Mr Jacob appear to me to have contravened any right to freedom of religion or belief guaranteed by article 18.
Secondly, s 116 is a limitation on the legislative power of the Commonwealth Parliament. It, amongst other things, prevents Parliament from legislating “for prohibiting the free exercise of any religion”, that is, for the purpose of prohibiting religious freedom (Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116, Latham CJ at 132). Although the constitutional validity of a law is a question for a Court to determine, I observe that the purpose of the Act (and the provisions of the Act that I have applied above) is to regulate eligibility and entitlements to social security and is not for the purpose of imposing any prohibitions on the free exercise of religion.
Conclusion
In conclusion, I have found that Mr Jacob’s overseas absence was not for the purpose of seeking eligible medical treatment; attending to an acute family crisis; or for a humanitarian purpose. Consequently, his absence was not an allowable absence, and his Newstart Allowance was correctly suspended and cancelled.
Decision
The Reviewable Decision, being the decision of an authorised review officer of Centrelink dated 3 June 2020 as affirmed by the AAT1 on 11 September 2020, is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...............[Sgd]......................................................
Associate
Dated: 14 February 2023

Date of original hearing:

Date of determination on the papers:

16 August 2021 and 30 September 2021

27 January 2023

Representative for the Applicant: Self-represented

Representative for the Respondent at the original hearing:

Ms A Simpson, Services Australia

Representative for the Respondent in these proceedings:

Mr H McLaurin and Mr T Galvin, Minter Ellison

Date of original hearing: Date of determination on the papers:	16 August 2021 and 30 September 2021 27 January 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent at the original hearing:	Ms A Simpson, Services Australia
Representative for the Respondent in these proceedings:	Mr H McLaurin and Mr T Galvin, Minter Ellison