Khosrow Ahordan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 304

[2013] AATA 304

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4064
Re	Khosrow Ahordan
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	15 May 2013
Place	Sydney

The Tribunal affirms the decision under review.

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

Ms G Ettinger, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – disability support pension – Applicant has a form of severe dementia – residency requirement – did Applicant’s inability to work commence before he became resident in Australia – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 7 and 94

REASONS FOR DECISION

Ms G Ettinger, Senior Member

15 May 2013

SUMMARY

1. Mr Khosrow Ahordan seeks review of the decision of the Social Security Appeals Tribunal (“SSAT”) dated 24 August 2012. The SSAT affirmed the decision of an Authorised Review Officer of Centrelink who had decided that the original determination by Centrelink that Mr Ahordan was not entitled to Disability Support Pension (DSP) was correct. The reason was due to the finding that he was unable to meet the tests for section 94(1) of the Social Security Act 1991 (the Act), and residency requirements.

2. Mr Ahordan, via his nominee, his wife from whom he has been separated since 2010, Mrs Sedigheh Moarefvand, has exercised his rights to apply to this Tribunal. I have been informed that Mr Ahordan could not attend the Tribunal because he is cognitively impaired, and currently in psychogeriatric care.

3. The Tribunal was assisted by an interpreter, in the Farsi language, Mr Mansour Golchin.

4. The Respondent was represented by Mr Cameron Hutchins.

   ISSUES BEFORE THE TRIBUNAL

5. The issues before the Tribunal were whether Mr Ahordan was qualified for DSP on the day he applied, being 30 January 2012 or within the following 13 weeks.

6. In order to decide that I had to consider whether Mr Ahordan met the tests in section 94(1)(a), (b), and (c) of the Act on the date of his application, and also take into account section 94(1)(e) of the Act.

7. There is no dispute that at the relevant dates, Mr Ahordan suffered an intellectual or psychiatric impairment within the meaning of section 94(1)(a) of the Act, and that this impairment attracted at least 20 impairment points under the Impairment Tables (section 94(1)(b) of the Act).

8. The Respondent conceded that the Applicant had a continuing inability to work at the time the claim was lodged (section 94(1)(c)), 94(2)) on his behalf on 30 January 2012.

9. What is important in regard to whether Mr Ahordan is qualified for DSP, is a consideration of when Mr Ahordan’s continuing inability to work commenced, and the status of his residency.

   EVIDENCE BEFORE THE TRIBUNAL

10. The Applicant was born in Iran in 1957, and first arrived in Australia on 23 June 1995.

11. He was granted a skilled workers visa (class 805) with permanent residence on 27 March 1996. He has since travelled to Iran on many occasions, returning to Australia for short periods only.

12. There are documents at T19 of the section 37 documents which give an indication of Mr Ahordan’s travel movements. These were summarised by the Respondent in his Statement of Facts and Contentions at paragraphs 6 and 7. The SSAT also summarised Mr Ahordan’s travel movements at paragraphs 16(e) and 17 of its decision. The Respondent stated as follows:

    6.… The period between 23 June 1995 and 2 August 2012 (the latest record available to the SSAT) totalled 17 years 8 weeks and 6 days. During that period the Applicant returned to Iran a total of ten times, totalling 14 years 41 weeks and 4 days, meaning he was in Australia for 2 years 19 weeks and 2 days.

    7.The longest period that the Applicant was in Australia during the period 23 June 1995 and his most recent return to Australia on 22 December 2011 was 22 weeks and 5 days in 2006. For seven of his returns to Australia he was here less than 10 weeks and in some of those cases only for a few weeks. His most recent departure was in May 2007 and he was away for four and a half years (T2, p6 and T19, p113 - 122).

13. After the above passage had been read and explained to Mrs Moarefvand by the interpreter, I asked if she agreed with the above statements. She agreed that the above reflected her husband’s travel.

14. Mrs Moarefvand was very upset during the hearing because she recounted how her husband had wanted to make money to support her and the children, so he set up a factory in Iran, and set up a company structure in Australia. His main work was in Iran. Mrs Moarefvand said that he was, however, unable to make things work out, and the business had to be sold, and he was broke in 2000.

15. I noted that Mr Ahordan most recently returned from Iran on 22 December 2011, and that his wife said he had been planning to travel back, but that his health prevented him from doing so. Mrs Moarefvand said that she prevented him from further travel against his wishes because he was not fit to undertake it. There is medical evidence before me that corroborates that, as noted below. There was, however, conflicting evidence regarding when Mr Ahordan’s inability to work commenced, and which is important in determining whether he is qualified for DSP, which I shall discuss below.

16. Mr Ahordan has not left Australia since arriving on 22 December 2011, and he can be said to have commenced living here permanently since that date.

17. The evidence is that Mr Ahordan has been in receipt of Newstart Allowance. Mrs Moarefvand told me that she filled in an application for DSP dated 30 January 2012 on behalf of her husband. There were some inconsistencies in the completion of the form, and I am mindful that English is not Mrs Moarefvand’s first language.

18. At question 132, of the claim form, Mrs Moarefvand replied on behalf of her husband that he was unemployed, whereas in her oral evidence she said that he had been working doing painting jobs with his son for four months after returning to Australia on 22 December 2011. Her explanation for the answer she gave was that he was earning very little while working with his son.

19. On 15 February 2012, Mrs Moarefvand completed a form regarding her relationship with her husband, and indicated they were separated, but that he was very sick, suffering Dementia (Pik [sic] Disease).

20. In her oral evidence, Mrs Moarefvand said that her husband was functioning well until approximately mid-2012. In support of her argument that Mr Ahordan had been working for an employer in Iran after selling his business, and up to the day he left for Australia (21 December 2011), she pointed to a document at T14, which purported to be a translation of a statement from a firm in Iran. The translation named Mr Ahordan as having a family name spelled AHOORDAN, with a birth date which was not the Applicant’s. Further, the document does not specify what type of work Mr Ahordan was supposed to have done for the company. Mrs Moarefvand said at the hearing, she may have the original of the document, and was provided with the opportunity of lodging it, she lodged a document in Farsi soon afterwards. A copy was made available to the Respondent.

21. Mrs Moarefvand said that following Mr Ahordan’s return from Iran on 22 December 2011, he had been working four days or so per week for a period of four months with their son, who is a painter. She said that she did not tell anyone about it, because Mr Ahordan was embarrassed to be doing such menial work. There was no evidence to corroborate that information, but convincing medical evidence indicated that Mr Ahordan has been suffering a mental condition which has been progressing for some years, and culminated in his hospitalisation in Sydney in July 2012. I understand he has now been relocated to an aged care dementia facility.

    MEDICAL EVIDENCE

22. Dr K Hamid, general practitioner, who stated that Mr Ahordan had been a patient at his practice since February 2005, provided a report dated 23 January 2012 with the DSP claim. Dr Hamid diagnosed severe dementia, depression and … Pick’s disease and stated that the Applicant’s mental state had deteriorated in the last two years. He added that: A brain CT scan shows brain atrophy.

23. Under current symptoms, Dr Hamid stated:

    He has poor memory, can’t remember simple events, sometimes he [sic] confused with time, place and date, can’t remember his address, phone [number], can’t go anywhere alone, can’t manage money, can’t go by public transport, most of the times he [is] confused. His wife has to be with him, otherwise he will [get] lost.

24. In commenting on the impact of Mr Ahordan’s condition to function, Dr Hamid stated:

    He is totally unfit to work, he needs supervision, he can’t go alone, anywhere he may [become] lost or in danger.

25. Mrs Moarefvand said that she disagreed with Dr Hamid’s findings on 23 January 2012, and indicated that Mr Ahordan travelled to Canberra on his own to obtain a visa because she had hidden his passport.

26. Later on, after admitting that she had filled in forms incorrectly, she said that her one wish was that Mr Ahordan stay in Australia, and that her application for DSP was framed with her one wish which was that they could obtain further financial assistance.

27. In an MRI Brain Scan report dated 20 April 2009 Dr Beng Tan, to whom the Applicant was referred for a history of decrease in memory and poor recall, concluded that:

    Appearances of the left temporal lobe suggest localised insult in this location and are most likely long-standing. They most likely represent old PCA [posterior cerebral artery] territory infarction. No acute infarction seen. It is doubtful that this would cause the patient’s symptoms.

    There is no preferential lobar atrophy to suggest a specific dementia syndrome. No cerebral mass lesion or other significant abnormalities.

28. A report of an MRI scan conducted in Iran at the Army Hospital Imaging Centre when the Applicant was 52 years old (sometime after 7 February 2009) concluded that the scans were indicative of post infarct atrophy, Alzheimer dementia, fronto temporal dementia and empty sella syndrome.

29. Mr Ahordan underwent a Job Capacity Assessment (JCA) on 16 February 2012. The assessor noted Mrs Moarefvand’s comment at the assessment that Mr Ahordan’s symptoms had been deteriorating for the past four years. She noted that the Applicant had seen Dr Walker, neurosurgeon, on one occasion in January 2012, and had a referral to Dr Chaudry, a psychiatrist on 21 February 2012.

30. Mrs Moraefvand reported to the assessor that the Applicant’s concentration was poor, he was unable to concentrate on tasks for more than 10 minutes, and required repetitive explanation, which resulted in him becoming frustrated. She also indicated that the Applicant required daily reminders for self-care tasks, and to take his medication, and was unable to catch public transport on his own, complete daily household tasks or handle financial transactions.

31. Mrs Moraefvand reported that the Applicant had been diagnosed with ischaemic heart disease a few years previously. This condition was considered by the assessor to be undocumented. The Applicant was assessed with a rating of 20 points on impairment table 7 for neurodegenerative disorder. The JCA considered that the Applicant had a continuing inability to work. In relation to the Applicant’s work history, Mrs Moarefvand indicated that her husband owned a factory for 20 years which had gone broke and closed down 12 years previously, (2000), and that the Applicant had not been employed since. It was noted that the Applicant had less than 10 years residency in Australia.

32. In an undated submission Ms Moarefvand stated that following his declaration of bankruptcy in 2000, the Applicant developed anxiety and depression and became disconnected from everything and everyone. Ms Moarefvand stated that Applicant kept insisting that he should go to Iran and try to fix things and make things better, however the Applicant was not able to revive and rebuild his business due to his health.

33. Dr J Burrell, neurologist, concluded in his report dated 5 April 2012 that the Applicant’s presentation was consistent with frontotemporal dementia, which was previously known as Pick’s Disease. Dr Burrell disputed the conclusion stated in the 20 April 2009 scan report that the localised insult of the front temporal lobe was most likely representing old PCA territory infarction. He stated that the scan was typical of some forms of frontotemporal dementia (FTD). Dr Burrell stated that unfortunately no treatment was available to slow or reverse the degenerative process encountered in FTD.

34. In a submission dated 7 August 2012 on behalf of the Applicant, Ms Sciortino, social worker, noted that the Applicant was admitted to Westmead Hospital’s Psychogeriatric Unit on 26 July 2012. She stated that the Applicant’s continuing inability to work and function in the community became clear following the crisis that led to his admission to Cumberland Hospital on 10 July 2012 whereby the Applicant had been confused and agitated and aggressive towards his family. Ms Sciortino stated that the treating team determined that it was no longer safe for the Applicant to return to his home, or to return to Iran.

35. I am satisfied that Mr Ahordan has been suffering symptoms of dementia at least since he was referred for brain investigations in 2009, (Dr Tan conducted an MRI Brain Scan dated 20 April 2009 on referral because Mr Ahordan was exhibiting decrease in memory and poor recall), and an MRI in Iran in 2009. Mrs Moarefvand told me that Mr Ahordan had been selling real estate and working for a company after his own business of fibreglassing ceased in 2000. The document at T14-96 purporting to be from an employer in Iran does not specify what work Mr Ahordan might have been doing, and does not satisfy me that he worked until the day before his arrival back in Australia on 22 December 2011.

36. I did not have any corroboration of the Mrs Moarefvand’s oral evidence that her husband worked as a painter with his son in the first four months of 2012. That evidence was also in direct contradiction of what she wrote at question 132, at T5-47, (30 January 2012), where she replied on behalf of her husband that he was unemployed. Further, Mrs Moarefvand told me that she would rely on untruths if they would help her keep her husband here and obtain money from Centrelink to assist.

    CONCLUSIONS

37. On the basis of the medical evidence, I am satisfied that at the time of lodging his claim for DSP on 30 January 2012, and well before his return to Australia on 22 December 2011, Mr Ahordan had a continuing inability to work pursuant to section 94(1)(c) of the Act. Evidence in support of this includes:

    ·Job Capacity Assessment dated 16 February 2012 - Ms Moarefvand indicated that the Applicant’s symptoms had been deteriorating for the past four years. Ms Moarefvand further indicated that the Applicant had been unemployed since 2000 and in her undated statement she indicated that the Applicant was unable to rebuild his business in Iran due to his health;

    ·MRI Brain Scan report by Dr Beng Tan dated 20 April 2009 which noted a history of decrease in memory and poor recall.

    ·Dr Burrell, neurologist, in his report dated 5 April 2012 where he noted that the 20 April 2009 MRI scan was typical of some forms of frontotemporal dementia. According to Ms Moarefvand, there had been progressive change in the Applicant’s personality and behaviour for three or four years, although on further reflection she indicated that the changes may have begun as long as six years previously.

    ·MRI scan conducted in Iran at the Army Hospital Imaging Centre in 2009 which concluded that the scans were indicative of post infarct atrophy, Alzheimer dementia, fronto temporal dementia and empty sella syndrome.

    ·Report completed by Dr Hamid on 23 January 2012 which noted that the Applicant’s mental state had deteriorated in the last two years.

    RESIDENCY

38. However, in order for Mr Ahordan to be eligible for DSP, I needed to also consider the residency requirements of section 94, in particular, whether the Applicant satisfies section 94(1)(e)(i) or (ii) of the Act.

39. I have considered section 7(3) of the Act in order to determine when Mr Ahordan resided in Australia. The extent of Mr Ahordan’s travel to Iran has been noted above. In Australia he owns no other real property apart from his share of the matrimonial home which he owns with Mrs Moarefvand and where she and their children have lived since arriving in Australia. It has been accepted that the couple have been separated since 2010, and that they have continued to live in the same home until Mr Ahordan’s hospitalisation, and recent transfer to residential care. Mr Ahordan has no business ties in Australia, although it was said that he owned a shelf company related to his fibreglass activities. Apart from his part ownership of the home the Applicant has no other assets in Australia.

40. Whilst the Applicant was the holder of a permanent visa (section 7(2)(b)(ii)) at the time he lodged his DSP claim, he was not residing in Australia, within the meaning of section 7(3) of the Act, until he returned to Australia from Iran on 22 December 2011. I am satisfied, as the SSAT was, that he has been a permanent resident of Australia from the day of his return here on 22 December 2011. Accordingly, the Applicant was not an Australian resident within the meaning of section 7(2) of the Act until 22 December 2011. Mr Ahordan’s record of travel and residence in Iran which is discussed above, means he cannot meet the 10 year qualifying residence rule pursuant to section 7(5) of the Act.

41. On the basis of the above, Mr Ahordan does not meet the requirements of sections 94(1)(e)(i) or 94(e)(ii) of the Act because he was not an Australian resident when he first had a continuing inability to work and nor does he have 10 years qualifying Australian residence or a qualifying residence exemption.

    DECISION

42. The Tribunal affirms the decision under review.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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

Associate

Dated 15 May 2013

Date of hearing	16 April 2013
Advocate for the Applicant	Ms S Moarefvand
Advocate for the Respondent	Mr C Hutchins