Karydakis and Department of Family and Community Services - [2001] AATA 223

DECISION AND REASONS FOR DECISION [2001] AATA 223

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/143

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IRENE KARYDAKIS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date19 March 2001
PlaceHobart

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent Department for assessment of the applicant's pension entitlement in accordance with this decision.
  ..............................................
  Part-Time Member
CATCHWORDS
Social Security – Disability support pension payable outside Australia – applicant left Australia within 12 month period – were the reasons for leaving Australia 'reasonably foreseeable' – exercise of discretion.

Social Security Act 1991 – s.1220(1),(3)

REASONS FOR DECISION

19 March 2001 Ms A F Cunningham (Part-time Member)

This was the hearing of an application to review a decision made by a Centrelink officer on 7 April 2000 cancelling the applicant's Disability Support Pension (DSP). The decision was subsequently affirmed by an authorised review officer on 8 June 2000 and by the Social Security Appeals Tribunal (SSAT) on 19 October 2000.
The applicant was represented Mr. Brian Sparks and gave evidence by telephone link from her residence in Crete. The respondent was represented by Ms L Miller who called no evidence. The Tribunal had before it the 'T' documents submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.
The history leading up to this appeal is evident from the material contained in the 'T' documents and the evidence given by the applicant at the hearing and is outlined below.
The applicant migrated from Greece to reside in Australia in 1966 and became an Australian citizen in 1969. The applicant and her husband resided in Australia for a period of 30 years until 1995 when the applicant returned to Greece with her unwell husband. The applicant's husband desired to return to his country of birth to be with his family during the last years of his life.
The applicant continued to receive a wife pension until the death of her husband on 2 September 1998.
The applicant returned to Australia on 2 January 2000 and lodged a claim for a DSP on 18 January 2000. A decision was made to grant the applicant a DSP in March 2000.
On 28 March 2000 the applicant advised Centrelink that she intended to travel overseas and left Australia on 1 April 2000. On 7 April 2000 a decision was made to cancel her DSP as she had left Australia within 12 months of her return and the pension was not portable to Greece.
The decision to cancel the applicant's DSP was made pursuant to s.1220(1) of the Social Security Act 1991 ("the Act") which reads:
"(1) If:
(a)       a person is an Australian resident; and
(b)       the person ceases to be an Australian resident; and
(c)       the person again becomes an Australian resident; and
(d)within the period of 12 months after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i)an age pension; or
(ii)a disability support pension; or
(iii)a bereavement allowance; and
(e)after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 12 months the person leaves Australia; and
(f)…
(g)there is no determination in respect of the person under subsection (3);
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia."
It was submitted at the hearing that it was questionable whether the applicant should have been assessed as qualifying as an Australian resident at the time that her pension was granted. Ms Miller submitted that there was no proper consideration of the applicant's expressed intention to remain in Australia. Ms Miller conceded that this Tribunal had no jurisdiction to review the validity of the grant of pension on the grounds of residence as this issue was not before the Tribunal for review.
Ms Miller submitted that the Tribunal could take into account the applicant's intentions in relation to her residence in Australia in assessing whether the reasons for her return to Greece in April 2000 were reasonably foreseeable. Section 1220(3) of the Act states that:
"The Secretary may determine that subsection (1) or (2) is not to apply to a person if the Secretary is satisfied that the person's reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to or arrived in Australia."
The Tribunal was referred to the decision Re Burnett and Director-General of Social Security (1982) 4 ALN, N79 where it was accepted that the applicant had come to Australia for a 12 month period for the purpose of applying for an Australian pension to be paid to her on her return to the United Kingdom. The Tribunal in that case found that the validity of the grant of pension in respect of the period of the applicant's stay in Australia was not before the Tribunal. The Tribunal rejected the submission that the erroneous advice that the applicant received from officers of the Department of Social Security that her return to the United Kingdom to be with her ill husband would not prejudice her pension entitlement should be taken into account in exercising the Tribunal's discretion pursuant to the relevant legislative provision, which is in similar terms to s.1220(3).
The Tribunal in Re Burnett did not regard the applicant's intentions regarding her stay in Australia to be relevant in its determination of whether her return to the United Kingdom was reasonably foreseeable. Similarly in the present case the Tribunal is not persuaded that the applicant's intentions regarding her residence in Australia assist with its determination as to whether her reasons for returning to Greece at the time she came to Australia in January 2000 were reasonably foreseeable.
The applicant gave evidence that prior to returning to Australia she was the victim of a home invasion and assault. She said that she had been hit on the head and was subsequently hospitalised. Her evidence was that she wanted to come to Australia to live because she was afraid to stay in her home country. She said that her children had suggested that she come back to Australia for a holiday. The applicant's daughter purchased a return ticket for her. When questioned as to why she had a return ticket she responded that her daughter had "found it very cheap". She said that her return ticket was for a period of one year and that she intended to return to Greece at the end of the year but would later come back to Australia.
When the applicant was asked why she came back to Australia she said that it was because she liked the place and used to live here. She said that she would like to stay forever, but this would not be possible because her children resided in Greece. The applicant said that she has no property in Tasmania and that no members of her family reside in Australia. She said that she regarded two Tasmanian families as her close friends.
On 8 March 2000 a witness subpoena was issued by a Greek court and subsequently served on the applicant. The subpoena required the applicant to attend on 14 April 2000 as a witness at the trial of the alleged offenders to the home invasion and assault.
The applicant said in evidence that she was scared to return for the court hearing but felt obliged to do so and left Australia on 1 April 2000.
The applicant said in evidence that prior to her departure she had informed the Greek police that she was departing for Australia and that they had not said anything to her about attending the court hearing. When asked whether she had thought prior to her departure that she may be required to return, she said that she did not know what was going on and said that she thought there would be a court hearing without her. She said that she had not had any experience with the Greek courts and that she had come to Australia when she was 19 years of age. She had had received little, if any, schooling during her childhood, stating that she had only attended school for one year when she was six years of age.
The applicant stated that she intended and desired to return to Australia and that she was waiting for her daughter to marry in Greece before returning. She said that she has no independent source of income and currently cannot afford to return to Australia.
The applicant was asked about her responses in her disability support claim form, in particular question 5 (T3). The applicant was asked by Ms Miller why she had answered "no" to the question, "do you plan to leave Australia?" and then ticked the box "more than 12 months" in response to the question "how long will you be out of Australia?". The applicant's response was that at that time she did not know about the court hearing. She said that whilst she had a return ticket to Greece she did intend to return to Australia. The applicant stated that she intended to stay for an initial period of 12 months and then would return to Greece to visit her children, but subsequently return to Australia. The applicant stated that she would like, if possible, to stay forever in Australia, but because her children reside in Greece this would not be possible.
The applicant was asked by Ms Miller how long she had intended to be out of Australia and she responded "only to attend the court in Greece" and then she wanted to come back again. It was not clear from the applicant's answer whether this was her intention at the time of arriving in Australia or her intention when she received the subpoena to return to Greece. Given the applicant's previous response as outlined in paragraph 19, that she did not know about the court hearing, the Tribunal accepts that the applicant was not aware of her obligation to attend the court hearing until she received the subpoena.
The Tribunal concludes that there is insufficient evidence to persuade it that at the time when the applicant arrived in Australia her return to Greece to return the court hearing was reasonably foreseeable by her. The evidence before the Tribunal is that the applicant is a woman with little if no education, no prior knowledge of the Greek court system, she had not been informed by the Greek police prior to her travelling to Australia that her attendance at a hearing would be required and that she thought there would be a court case in Greece without her. The fact that the applicant did intend to return to Greece at the end of the 12 months, and had in fact purchased a return ticket is not determinative of the issue as to whether or not her return within the twelve months was reasonably foreseeable.
The SSAT in its decision dated 20 October 2000 concluded that as the applicant had not intended to remain permanently in Australia when she returned in January 2000 and that her stay was expected to be short term, therefore her reason for departure on 1 April 2000 was foreseeable. The applicant's intention as to the permanence of her residence when she arrived in January 2000 is not an issue before this Tribunal. The evidence before this Tribunal was that whilst the applicant intended to return to Greece to visit family members at the expiration of her 12 months stay in Australia she had hoped to return, and that the only reason for her not having done so was financial. As the applicant had stated, she had lived in Australia for some 30-years, she liked living in Australia and wished to return.
The Tribunal accepts Mr. Sparks' submission that the Social Security Act is beneficial legislation and that the evidence before the Tribunal should be interpreted where possible to give a favourable decision to the applicant. The Tribunal is not persuaded on the evidence presented that the applicant could have reasonably foreseen that she may be required to return to Greece within the 12 month period. The Tribunal accepts that upon receipt of the subpoena the applicant felt obliged to return to Greece for the court hearing. Her evidence was that whilst she hoped to live in Australia, she did intend to return to Greece from time to time to visit her family and it would obviously have created enormous difficulties for her if she had failed to respond to the court subpoena.
Ms Miller submitted that it was unlikely that the applicant intended to reside permanently in Australia because she had little connection with the place not owning any property, having no family members resident in Australia, being of ill health and intending to go back to Greece to see her children. As stated above however, the Tribunal is not being asked to review the applicant's residency status but solely determine the issue as to whether her return to Greece to attend the court hearing was reasonably foreseeable at the time when she arrived in Australia.
The Tribunal is prepared to exercise the discretion afford by the provisions of sub-section (3) of s. 1220 on the basis that the applicant; had been granted Australian citizenship, resided in Australia for 30 years, had received inaccurate advice from departmental officers concerning her pension entitlement prior to her departure from Australia, had returned reluctantly to Greece to give evidence at a court hearing in respect of an alleged assault against her, has no other current source of income and wishes to return to Australia when finances permit.
The Tribunal having so found, in accordance with the provisions of s.1220(3) of the Act sets aside the decision under review and remits the matter to the respondent department for assessment of the applicant's pension entitlement in accordance with this decision.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  15 February 2001
Date of Decision  19 March 2001
Counsel for the Applicant        Mr Brian Sparks (Hobart Community Legal Service Inc)
Counsel for the Respondent    Ms L Miller (Centrelink)