JIN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 592
•28 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 592
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1060
GENERAL ADMINISTRATIVE DIVISION ) Re YIN CHENG JIN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Egon Fice, Senior Member Date28 June 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
........(sgd) Egon Fice.........................
Senior Member
SOCIAL SECURITY - Disability support pension – Centrelink – portability period – social security payments – decision under review affirmed.
Social Security Act 1991 (Cth) s 1213, s 1217(1), 1217(4), s 1218AA, s 1218C, s 1218C(1), 1218C(2)
REASONS FOR DECISION
11 August 2010 Egon Fice, Senior Member 1. Mr Yin Cheng Jin is receiving the disability support pension (DSP). On 6 October 2009 he contacted Centrelink requesting an extension of the portability period (13 weeks) because he said he needed to travel to China to assist his mother who lived in Shanghai. Mr Jin claimed the Government had demolished his mother’s house without notice or adequate compensation and he was undertaking a legal challenge to the Government’s actions.
2. On 5 November 2009 a delegate of Centrelink informed Mr Jin that an extension of the portability period could not be approved. On 28 January 2010 an Authorised Review Officer (ARO) re-examined the delegate’s decision and came to the conclusion that the decision was correct. Mr Jin sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 9 March 2010 the SSAT affirmed the ARO’s decision. Mr Jin then lodged an application for review of the SSAT decision by this Tribunal.
3. I heard this matter on 28 June 2010 and provided Mr Jin with an oral decision affirming the decision of the SSAT. Mr Jin contacted the Tribunal on 21 July 2010 requesting the Tribunal provide him with written reasons for its decision. These reasons are provided in response to that request.
4. The only issue which I was required to determine was whether Mr Jin’s circumstances fell within the statutory provisions allowing an extension of payment of DSP beyond 13 weeks continuous absence from Australia.
PORTABILITY OF SOCIAL SECURITY PAYMENTS
5. The portability of social security payments is dealt with under Chapter 4 Part 4.2 Division 2 of the Social Security Act 1991 (the Act). Section 1213 of the Act provides:
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.
6. The Secretary did not dispute the fact that immediately before Mr Jin travelled to Shanghai to assist his mother, he was receiving a social security payment (DSP).
7. The meaning of the expression maximum portability period is set out in s 1217(1) of the Act. It refers to the maximum period of time that a recipient of a social security payment may continue to receive that payment while absent from Australia. Section 1217(4) provides:
Meaning of portability period if maximum portability period limited
(4)If the person’s maximum portability period for the payment is a period of weeks, 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 of weeks that is the person’s maximum portability period for the payment.
8. A table following s 1217(4) of the Act indicates that the maximum portability period for a person receiving DSP is 13 weeks. However, this is subject to the specific provisions dealing with terminally ill persons set out in s 1218AA.
9. Section 1218AA extends the portability period for persons receiving DSP. It provides:
1218AA Extended portability period for disability support pension
(1)The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person’s country of origin.
10. Section 1218C of the Act applies to the extension of a person’s portability period in general. In other words, it applies to all social security payments which are portable, not merely DSP. It provides:
1218C Extension of person’s portability period—general
(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.
(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.
(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.
11. Section 1218AA of the Act cannot apply to this case. Mr Jin is not terminally ill and the purpose of his trip to China was not for the stated permissible purposes.
12. It is important to note the introductory words in s 1218C(1). That section applies to a person who has travelled outside of Australia, intending to return within the portability period, but where, for one or more of the reasons set out in that section, they are unable to return to Australia. The word unable, in the context in which it appears in that section of the Act, must be given its ordinary meaning, ie, not able to do something (The Shorter Oxford English Dictionary).
13. The file notes kept by the Centrelink Case Officers who dealt with Mr Jin clearly describe the fact that he understood there was a 13 week limit imposed on continuous absence from Australia. Mr Jin applied for an extension of the portability period before leaving Australia because he anticipated his task might take longer than the permissible 13 weeks.
14. Mr Jin explained to the Customer Service Officer that his mother’s house was demolished by the Government and that he had been in contact with the Chinese (and possibly Australian) Consulates for the purpose of undertaking a legal challenge to the Chinese Government’s actions. Mr Jin’s mother had already been removed from the family home which had been demolished. His purpose for going overseas was to seek compensation on behalf of his mother.
15. When Mr Jin returned from China, he explained to a Customer Service Officer that he had been held back in China for reasons outside of his control. He explained that he had been detained overseas due to unforseen circumstances, despite the fact that he did foresee that his attempts to gain compensation for his mother in China might cause him to overstay the 13 week maximum portability period.
16. In my opinion, Mr Jin cannot say that the circumstances were unforseen given that he had already anticipated such circumstances arising before his departure from Australia. Furthermore, Mr Jin’s evidence did not suggest that he was prevented from returning to Australia inside the maximum extension period. The exceptions stated in s 1218C(1) of the Act are all references to events which occur outside the control of the person seeking an extension of the portability period. Although it may have been inconvenient for Mr Jin to return at an earlier date, there was no evidence that he was prevented from doing so. His evidence was that he could not conclude the actions he had taken within the 13 week period. In the words of the Act, he was not a person who was unable to do so. He had a return air ticket and therefore all he needed to do was to catch his return flight.
17. There is a further reason why Mr Jin cannot rely on the extension provisions set out in s 1218C of the Act. Section 1218C(2) provides that the Secretary must not extend a person’s portability period unless the event occurred or began during the period the person was outside Australia and, if the event was political or social unrest, that the person was not willingly involved in or participating in the event. Mr Jin’s evidence was that he went to China for the purpose of defending his mother’s rights to compensation for her forced eviction from her house. He was involved in discussions with a number of officials and apparently also commenced legal proceedings.
18. Mr Jin submitted that the actions of the Chinese Government, in evicting home owners and demolishing their houses, were the cause for political or social unrest in that country. Even if I were to accept that to be the case, it would not assist Mr Jin’s claim. That is because, to come within the exceptions set out in s 1218C of the Act, the events must occur or begin during the period of absence. Clearly, they did not. His evidence was that he went to China for the very purpose of agitating for the payment of proper compensation for his mother following her eviction and the demolition of her house. The event or events he relied on did not occur or begin after Mr Jin left Australia. His mother’s dispossession occurred prior to his departure, and if there was political or social unrest as a consequence of the demolition of houses taken by the government, it arose well before Mr Jin departed Australia. Furthermore, Mr Jin was clearly a willing participant in the event. That was his purpose for going to China.
CONCLUSION
19. For the reasons I have set out above, the Secretary’s discretion to extend a person’s portability period under s 1218C(1) on the grounds of political or social unrest in China does not apply to Mr Jin’s case. Accordingly, I find that the decision made by the SSAT on 9 March 2010 rejecting Mr Jin’s application for an extension of his maximum portability period in respect of his DSP was correct. I affirm that decision.
I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior Member
Signed: ....(sgd Elise Montalto)...........
Elise Montalto, AssociateDate of Hearing 28 June 2010
Date of Decision 28 June 2010
Written Reasons 11 August 2010
Advocate for the Applicant Self Represented
Advocate for the Respondent Mr T de Uray
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