Kostomlatsky and Department of Family and Community Services

[2001] AATA 400

DECISION AND REASONS FOR DECISION [2001] AATA 400

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N1999/1405

GENERAL ADMINISTRATIVE DIVISION          )      
           Re      LADISLAV  KOSTOMLATSKY
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Senior Member M D Allen

Date14 May 2001

PlaceSydney

Decision      The decision under review is affirmed.             

(Sgd)               M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
SOCIAL SECURITY  -  Disability Support Pension cancelled as Applicant did not obtain a Departure Certificate.  Failure to obtain Departure Certificate due to Respondent not complying with the law.  Decision to cancel the Disability Support Pension did not encompass decision not to grant Departure Certificate.  Inability of Respondent to grant Departure Certificate having retrospective effect.

Social Security Act 1991 - s1218 and s1219
Social Security (Administration) Act 1999 - s179
Administrative Appeals Tribunal Act 1975 - s3 and s43

Civil Aviation Safety Authority v Coburn 24 AAR 389
Re Secretary, Department of Social Security and Glover 31 ALD 223
Re Moe and Secretary, Department of Social Security 34 ALD 288 followed
Re Secretary, Department of Social Security and Smargdis 34 ALD 621 disapproved

REASONS FOR DECISION

14 May 2001           Senior Member M D Allen

1. By application made 14 September 1999 the Applicant sought review of a decision by a Social Security Appeals Tribunal, which decision affirmed a prior determination by a delegate of the Respondent on 21 April 1992, cancelling his Disability Support Pension.

2. The reason given for the cancellation of the Applicant's Disability Support Pension was set out in a letter by that delegate addressed to the Applicant at his address for service in Australia and dated 21 April 1992.  See Document T3.  The relevant part of that letter reads:

   "Your Disability Support Pension is no longer payable as you did not obtain a pre-departure certificate before leaving Australia and you have been away for more than six months."

1. At all relevant times sections 1218 and 1219 of the Social Security Act 1991 read:

   "Qualification for pension ceases after 6 months unless person has a departure certificate

   1218.   (1)   If a person:

   (a)   leaves Australia; and
   (b)   has not received a departure certificate under section 1219; and
   (c)   remains absent from Australia for more than 6 months;

   the person ceases, at the end of the period of 6 months, to be qualified for:

   (d)   an age pension; or
   (e)   a disability support pension; or
   (f)    a wife pension; or
   (g)   a sole parent pension; or
   (h)   a widowed person allowance; or
   (j)    a widow B pension.

   (2)     If a person ceases to be qualified for a pension or allowance under subsection (1), the person remains disqualified for the pension or allowance until the person returns to Australia.

   (3)     A temporary return to Australia is sufficient for the purposes of subsection (2).

   Note:a woman who is receiving widowed person allowance will not have to obtain a departure certificate unless she is pregnant (see section 315).

   Departure certificates
   Recipients

   1219.   (1)   If:

   (a)   a person is receiving:

   (i)  an age pension; or
                  (ii) a disability support pension; or

   (iii)       a wife pension; or

   (iv)      a sole parent pension; or
                  (v) a widowed person allowance; or

   (vi)      a widow B pension; and

   (b)   the person proposes to leave Australia; and

   (c)   the person notifies the Department of the proposed departure as required by a recipient notification notice; and

   (d)   the Secretary is satisfied that the person is in Australia and is qualified for the pension or allowance;

   the Secretary must give the person a certificate that:

   (e)   acknowledges that the person has notified the proposed departure under this section; and

   (f)    states that the Secretary is satisfied that the person is qualified for the pension or allowance.

   Note:    for 'recipient notification notice' see subsection 23(1).

   Claimants

   (2)   If:
         (a)   a person claims:
     (i)  an age pension; or
     (ii) a disability support pension; or

   (iii)       a wife pension; or

   (iv)      a sole parent pension; or
     (v) a widowed person allowance; or

   (vi)      a widow B pension; and

   (b)   the person proposes to leave Australia; and

   (c)   the person notifies the Department of the proposed departure before the claim is determined;

   the Secretary must give the person a certificate that acknowledges that the person has notified the proposed departure under this section."

1. The matter came on for hearing for hearing before me at Sydney on 23 April 2001.  At that hearing the Applicant was not present but was represented by Ms Koller of the Welfare Rights Centre NSW.  At that hearing the following documents were taken in as exhibits and marked as follows, namely:

   T1 – T19: Documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975

   Exhibit A1:    Applicant's Statement of Facts and Contentions dated 1 March 2000

   Exhibit A2:    Applicant's outline of submissions

   Exhibit A3:    Statement by the Applicant dated 11 April 2000

   Exhibit R1:    Respondent's Statement of Facts and Contentions dated 18 January 2001

   Exhibit R2:    Respondent's amended Statement of Facts and Contentions dated 23 April 2001.

1. In his statement the Applicant said inter alia:

   "Before leaving Australia I advised the Department of Social Security of my intention to go overseas.  I was asked whether I would be away for more than six months.  I advised that I was to go for less than six months, as was my intention at the time.
   When I left Australia I felt reasonably well, but after I had been in Prague for only a few weeks I felt very bad and I went to the doctor.  I have several severe medical conditions …  My doctor in Australia had told me that the long flight to the Czech Republic was not a good idea for me, but I wanted to see my mother before she died."

The Applicant went on to state that he is not entitled to any pension from the Czech Republic and is now impecunious and living on his family's charity.

1. I was also informed from the bar table, by the Respondent's representative, that at the time the Applicant left Australia the practice of the Respondent department was such that as the Applicant's departure was temporary and he was not expected to remain outside Australia for more than six months, then a Departure Certificate would not necessarily be issued.

2. Further, in Exhibit R2, the Respondent stated:

   "It will not be disputed that the applicant notified of his departure overseas as the contemporaneous evidence supports this view."

1. Whatever the then practice of the Respondent department may have been, the fact in this matter is that the Applicant, in conformity with s1219 of the Social Security Act 1991, did advise the Respondent of his intended departure but the Respondent, in breach of its duties under the Act, failed to issue to the Applicant a Departure Certificate.

2. The situation before me in these proceedings was that the Respondent acknowledges that the Applicant had complied with his duties under the law and that he had failed to carry out his mandatory duty under the same Act but notwithstanding that, now seeks to uphold the cancellation of the Applicant's Disability Support Pension because of the legal position, namely the lack of a Departure Certificate brought about by the Respondent's own breach of the law.

3. Whatever the decision on the law might be in this matter, a decision that depends upon points of statutory interpretation, it is clear that the Respondent's position can only be described as unconscionable. 

4. At the outset, let me say that I do not understand the Respondent's submissions that s1218 of the Social Security Act 1991 is to be read independently of s1219. Clearly the two sections are interdependent and subs1218(b) specifically refers to s1219.

5. I do, however, agree that s1218 is mandatory and self-executing. I also agree with Deputy President Thompson in ReSecretary, Department of Social Security and Glover 31 ALD 223 and Deputy President McMahon in Re Moe and Secretary, Department of Social Security 34 ALD 288 that s1218 is absolute in its terms and that s1219 of itself does not permit the issuing of a Departure Certificate retrospectively.

6. If the decision in Re Secretary, Department of Social Security and Smargdis 34 ALD 621 suggest the contrary, then that decision is misconceived.

7. Apart from the inability under s1219 to issue a Departure Certificate having a retrospective effect, I believe the order made in Re Secretary, Department of Social Security and Smargdis supra to be ultra vires the Tribunal. Subsection 43(1) of the Administrative Appeals Tribunal Act (the AAT Act) 1975 reads:

   "For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

   (a)   affirming the decision under review;
   (b)   varying the decision under review; or
   (c)   setting aside the decision under review and:

   (i)    making a decision in substitution for the decision so set aside; or

   (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

To my mind the power in the Tribunal to give directions is a power to be exercised when remitting a matter for further reconsideration by the original decision-maker.  The Administrative Appeals Tribunal (AAT) is an Administrative Tribunal and has no power or authority to give a "direction" in the nature of a mandamus requiring a public official to do a particular act.  

1. The Tribunal does, however, stand in the shoes of the original decision-maker.  It seems therefore that the Tribunal could have issued a Departure Certificate but that certificate could only have operated from the date of the Tribunal's decision. 

2. Ms Koller, for the Applicant, sought to circumvent the limitation on the granting of Departure Certificates by referring to subs179(4) of the Social Security (Administration) Act 1999. That subsection reads:

   "If:

   (a)the AAT sets aside a decision of the SSAT; and

   (b)the Secretary is satisfied that an event that did not occur would have occurred if the decision had not been made;

   the Secretary may, if satisfied that it is reasonable to do so, direct that the event is to be taken, for the purposes of the social security law, to have occurred."

Cf subs149(4) which in similar terms and refers to the powers of the Social Security Appeals Tribunal upon review by that body.

1. To my mind subs179(4) cannot be used to achieve a retrospective effect. The subsection to "an event that did not occur" in circumstances where the non occurrence was as the result of a decision that subsequently was set aside by the AAT.

2. In other words, it is the opposite of the situation in this matter.  Subsection 179(4) deems an event to have occurred if it would have occurred but for to now set aside decision.  In this matter, the decision under review is the decision to cancel the Applicant's Disability Support Pension.  That decision was made because of an event that should have occurred but did not.  Even if the decision to cancel the Applicant's Disability Support Pension was set aside, the failure to grant the Departure Certificate pre-dated that decision and the subsection refers only to events post the decision that was set aside by the AAT.

3. I appreciate that the Applicant has submitted that the term "decision" is wide enough to encompass the failure to grant the Departure Certificate. In my opinion, however, notwithstanding the broad definitions of the word "decision" in subs3(3) of the AAT Act, which definition is picked up in the Social Security Act 1991 s3, and which reads:

   "A reference in this Act to a decision includes a reference to:

   (a)making, suspending, revoking or refusing to make an order or determination;

   (b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

   (c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

   (d)imposing a condition or restriction;

   (e)making a declaration, demand or requirement;

   (f)retaining, or refusing to deliver up, an article; or

   (g)doing or refusing to do any other act or thing."

It is stretching the language of the statute too far to hold that the failure to issue a Departure Certificate under s1219 is part of the decision to cancel Disability Support Pension pursuant to s1218. As pointed out by Branson J in Civil Aviation Safety Authority v Coburn 24 AAR 389 at 397-8:

"… Nor was it open to the AAT under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), or otherwise, to seek to exercise a discretion vested in the respondent at a time earlier than the time of the making of the decision in fact under review before the AAT …"

1. Of course it is still open for the Applicant, subject to an application to extend time, to seek review of the decision not to grant him a Departure Certificate.  Unfortunately that is not an application that can be entertained by this Tribunal as the application has not run the gamut of internal appeals required by the Social Security Act 1991 and the Social Security (Administration) Act 1999.

2. If the decision not to grant a Departure Certificate is then set aside then the Applicant can be regarded as having had at all relevant times the Departure Certificate required by subs1218(b) and the provisions of subs179(4) or subs149(4) of the Social Security Act 1991 will apply.

3. However, for the reasons outlined above, the decision under review will be affirmed. 

   I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Senior Member M D Allen

   Signed:        Kwai-Ling Wong           .....................................................................................
     Associate

   Date of Hearing  23 April 2001 
   Date of Decision  14 May 2001
   Solicitor for the Applicant         Ms S Koller, Welfare Rights Centre
   Solicitor for the Respondent    Ms S Fahey,
     Department of Family and Community Services