Ladu and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 162

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 162

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/3905

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SUSAN LADU

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date27 February 2008

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

SOCIAL SECURITY – applicant in receipt of newstart allowance – notified Centrelink she was travelling overseas – payments suspended – on return to Australia payments resumed – applicant visited mother in Kenya having left Sudan to avoid conflict – gave mother $US500 for bus fare to return to Sudan – whether absence from Australia was allowable because of a life threatening situation facing her mother and beyond her control – decision affirmed

Social Security Act 1991 (Cth) s 603A, s 1212A, s 1217 and s 1217 (2)

REASONS FOR DECISION

27 February 2008   Mr John Handley, Senior Member

1.      Ms Ladu, the applicant in these proceedings, applied to review a decision made by Centrelink and subsequently affirmed by the Social Security Appeals Tribunal (SSAT) to suspend payments to her of Newstart Allowance (NA) between 17 December 2006 and 12 February 2007.

2.      When this matter was first listed for hearing on 5 December 2007, her legal representative indicated that his client would not appear and would not give evidence.  Apparently Ms Ladu had recently obtained employment and she perceived that attending the Tribunal would place her job in jeopardy.  I indicated that the complex and relatively unusual nature of this application did require the applicant to give evidence and submissions by her representative would not assist me in making findings of fact which were critical to this review.  I Directed that the matter be adjourned until 13 February 2008 during which time it was hoped that the applicant would be able to secure time away from her employment to attend the Tribunal.  I also Directed that a comprehensive statement be lodged by the applicant prior to the hearing resuming.  Shortly before the resumed date, the representative of the applicant indicated that his client would not appear and he was instructed to have this review conducted on the documents lodged.  The respondent did not object to that proposal.

3. Accordingly, these reasons have been prepared on the basis of a Statement of Facts and Contentions lodged by both representatives, a number of letters and other documents lodged in support and by regard to the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). There remains, in my view, a considerable absence of evidence. Clarification of a number of matters which have emerged from the documents have necessarily been denied. Reasonable inferences will need to be made. The documents lodged, and to which regard has been had, will be referred to in these reasons.

4.      Prior to 17 December 2006 the applicant was in receipt of NA.  On 15 December 2006, she attended a Centrelink office and advised that she intended to travel overseas.  When she returned to Australia on 13 February 2007 she reapplied for NA and payments were restored.  Whilst overseas payments of NA were suspended.  The applicant applied to review that decision.  The applicant advised Centrelink that she travelled overseas to visit her brother in Egypt who was unwell and to visit her mother in Kenya who was a refugee from Sudan.  A Centrelink decision‑maker decided that the period away from Australia was not an allowable absence and the decision to suspend payments was affirmed.  The SSAT agreed with that decision.

5. Section 1217 (2) of the Social Security Act 1991 (the Act) allows payments of some benefits to be made whilst a person is overseas, but in defined circumstances.  Payments, if made during such a period, occur because a decision is made that the absence from Australia is an allowable absence.  Portability of payment of NA for a maximum period of 13 weeks (the maximum portability period) is permitted if a person is temporarily absent for the purposes of seeking eligible medical treatment or attending to an acute family crisis or for a humanitarian purpose (refer Schedule at s 1217 of the Act).

6.      The applicant indicated to the SSAT that she was relying on the provisions with respect to attending to an acute family crisis and was not seeking review with respect to the provisions concerning seeking eligible medical treatment or for a humanitarian purpose (refer SSAT Reasons at paragraph 8).

7.      An acute family crisis is defined at s 1212A of the Act – and for the purposes of this application – at sub‑section (d) namely:

(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 facts

8.      The following summary is distilled from the evidence before the SSAT as recorded by it, a statement of the applicant lodged after the first day of hearing, letters from Oxfam Australia and the Department of Foreign Affairs and Trade (DFAT) and from submissions of the applicant's solicitor and respondent.

9.      It appears that the applicant and her mother and some other siblings lived in Ngangala, a small town in South Eastern Sudan.  By reference to the Times Comprehensive Atlas Of The World 11^th Edn (the Times Atlas) that town is approximately 200 kms north west of the border of Kenya.  The applicant left Sudan and travelled to Egypt and later travelled to Australia where she obtained entry as a refugee.  She understood that her mother remained in Ngangala but some years later learnt from another Sudanese person in Melbourne that her mother had travelled to Kakuma, a village in north western Kenya which, according to the Times Atlas is located approximately 100 kms east of the border of Sudan and approximately 50 kms east of the border with Uganda. 

10.     The applicant learnt that her mother had been unable to obtain employment and was without money.  She was unwell for reasons believed to be associated with poor sanitation.  She also had problems with her legs and could not afford to have treatment from a doctor.  She recorded that her father had been taken away by soldiers and he was killed.  Kakuma was seven days walking distance from Sudan.  She also understood that her mother had travelled to Kenya because Sudan was unsafe.  The applicant initially travelled to Cairo to visit her brother who had injuries to his eyes and later travelled to Kenya to visit her mother.  She recorded that another person was able to take her mother away from the village and she met with her at another place.  She gave her mother $US500 which was the cost of allowing her mother to return to Sudan by bus, which she did, approximately one month later.  At that time, Sudan had become relatively safe and her mother returned to Ngangala where she owned land and where she could grow her own vegetables.

11.     Apparently the applicant spent three days with her mother.  In her statement, (relevantly at paragraphs d) and g)) the applicant recorded the following:

d)        When I spoke to my mother I did not discuss with her whether she or my brother Andrew (born 1992) or my sister Grace (born 1991) were in a life threatening situation or whether she had been involved in any particular dangerous events but I confirmed that they were living in great poverty and that my mother was currently sick but that my brother and sister were not sick.

g)        I believe that my mother, brother and sister were in a life threatening situation when they were in Kenya and that they are no longer in a life threatening situation now they are in Sudan where they have money for medicine and are amongst people they know.

12.     In a letter from Oxfam Australia of 3 October 2007, Mr Richard Simpson, the Emergencies Program Co‑ordinator for Southern Africa, reported that he had recently returned from visiting a number of refugees in both camps and in settled areas in Kenyan towns and communities.  He found that the area around the Sudan Kenyan border was under resourced, access to medical treatment was difficult and there was a high prevalence of yellow fever, malaria and other water borne diseases.  He understood that Kenya was a host to over 200,000 refugees since 2006.  Refugees, in his experience, suffer discrimination and violence especially in the north west of Kenya where they are subject to rape, beatings, travel curfews and a lack of wage earning opportunity.  He also understood that the border area was rife with conflict between various pastoralist clans who have been known to kidnap persons, especially women.  He regarded the district as dangerous with life threatening situations constantly occurring, especially for refugees from southern Sudan.  In an email to the applicant's solicitor on 6 December 2007 Mr Simpson confirmed that the contents of his letter of 3 October 2007 covered the area around Kakuma which he had visited in July 2007.

13.     In a Statement of Facts and Contentions lodged by the applicant's solicitor it was submitted that the applicant's mother and siblings had left Sudan and travelled to Kenya because of conflict where two million people had been killed and four million people had been displaced.  Having arrived in Kenya, it was submitted that the applicant's mother and siblings could not leave and avoid the life threatening situation unless money was received from the applicant.  It was submitted that returning to Sudan by walking was extremely dangerous and repatriation of Sudanese persons from Kenya did not commence until May 2007 under the auspices of the United Nations.  It followed therefore that the applicant was required to travel to visit her mother and give her money to allow her to return to Sudan safely by bus.

14.     It was submitted that by reference to the letter from Mr Simpson of Oxfam and from a travel warning of the DFAT, the applicant's mother and siblings had been living in Kakuma which was a dangerous area having regard to border conflict with Sudan and the continuing risk of rape, violence and kidnapping.  Additionally, there was a risk of disease by reason of poor sanitation and poor quality water.  Those circumstance, it was submitted, amount to a life threatening situation.

15.     The respondent submitted in a Statement of Facts and Contentions that it did not dispute that the area surrounding the Kenya / Sudan border was dangerous.  It was understood that the applicant's mother had been living in that district for approximately four years without any report of incident.  There was no evidence therefore that the applicant's mother had faced a life threatening situation whilst residing in Kenya.

conclusion and reasons for decision

16.     I am very disappointed that the applicant did not attend to give evidence on each of the two days that were allocated for the hearing of the appeal that she initiated.  I am also disappointed that the Statement lodged by the applicant on 8 December 2007 is so brief and so deficient that it is of little value in assisting the merits of her application, despite a lengthy discussion with the applicant's solicitor on the first day of hearing, asking him to ensure that his client did adequately instruct him and provide a comprehensive proof of evidence in the event that she decided not to attend on the second day of hearing.

17.     It was understood that the applicant met with her mother over a period of three days and I would presume after an absence of three or four years they would have much to discuss.  Yet in the Statement lodged by her on 8 December 2007, the applicant recorded:

When I spoke to my mother I did not discuss with her whether she or my brother Andrew (born 1992) or my sister Grace (born 1991) were in a life threatening situation or whether she had been involved in any particular dangerous events . . . .

There is nothing recorded in the Statement about any matter that was discussed except the applicant recorded that she confirmed – by a process not explained – that her mother and siblings were living in great poverty and that my mother was currently sick but that my brother and sister were not sick.

18.     I do not doubt that Kakuma would have sanitation and hygiene standards below acceptable or safe levels.  But in the absence of evidence that her mother's evidence was associated with poor sanitation or water borne diseases, the relevance of the DFAT and Oxfam evidence on this issue is of little relevance, except to indicate or describe the risks persons faced.

19.     The evidence from Mr Simpson, and DFAT indicating the hostility in the Sudan / Kenya border region creating an atmosphere of danger is probably well founded and the concession on this issue made by the respondent is appropriate.  But the applicant's mother and siblings had been living in Kakuma for three or four years and not one reference is made in the applicant's Statement of her mother expressing any event or circumstance which had exposed her to threat or violence or risk.  If events of that type or nature had occurred, I would have thought they would have featured as part of the discussions between the applicant and her mother over the three days that they met and those discussions would have been recorded in the applicant's Statement.  They were not.

20.     In the absence of that evidence and the absence of evidence as to the nature and duration of the illness or sickness suffered by the applicant's mother, I am unable to find, as a fact, that the applicant travelled to visit her mother because of a life threatening situation.  The belief of the applicant expressed in paragraph (g) of her statement is unexplained, because she recorded in paragraph (d) that she did not discuss whether her mother and siblings were in a life threatening situation.  If the applicant formed such a belief by her own enquiries or by other means, it is disappointing that she did not record the basis for such belief.

21.     I have no doubt that the applicant was well motivated, that she cared for her mother and despite being a refugee in Australia and being a welfare recipient, she was able to save money.  She travelled to Kenya to visit her mother for the purpose of giving her money to allow her to return to Sudan by bus, thereby avoiding the risk of conflict in the border region.  The applicant is to be commended.  But I cannot find on the present evidence or by reasonable inference that the applicant travelled to Kenya by reason of an acute family crisis for a purpose which, by definition, was a life threatening situation that was facing her mother and which was beyond her control.  The absence of evidence of a more comprehensive account of the applicant's discussions with her mother and an expression of her own observations and of any reasonably held belief may have resulted in a different outcome in these proceedings.

22.     I am not satisfied therefore that the applicant was entitled to portability of her NA because she is unable to demonstrate that she was engaged in an allowable absence within the meaning of s 1217 (2) of the Act.

special circumstances

23. After the first day of hearing an additional submission was put by the solicitor for the applicant namely, that special circumstances beyond her control existed and it was unreasonable for her to comply with the activity test. It was submitted that the legislation contemplated circumstances where an absence would be allowable, for example, a circumstance regarded as serious but not unusual or the circumstances prescribed by s 1217 of the Act.

24. The respondent submitted that a person may be eligible for exemption from the NA activity test but they may not necessarily be eligible for payment of NA during absence overseas. It therefore followed that the applicant may have been exempt under s 603A of the Act, but she was also required to satisfy the criteria under s 1217 of the Act in order to receive a payment.

25. Section 603A (1) of the Act provides that a person is not required to satisfy the activity test if the Secretary is satisfied that there are special circumstances beyond the person's control and the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test.

26. It would appear that the Act distinguishes between satisfaction of the activity test and an entitlement to payment. Section 603A is concerned with exemption from satisfaction of the activity test. Section 1217 of the Act is concerned with an allowable absence in relation to a payment.

27. It seems to me that a person such as the applicant might not be required to satisfy the activity test under s 603A for a period in circumstances regarded as special, but she may not have been entitled to a payment during that same period because her absence was not an allowable absence within the meaning of s1217 of the Act.

28.     I have for the reasons expressed above decided that the applicant was not absent during a period which may be regarded as allowable in relation to the payment and in those circumstances she cannot obtain the relief under s 603A as submitted by her solicitor. Put in the alternative even if she did qualify under s 603A of the Act she would not necessarily be entitled to a payment because she cannot satisfy s 1217 of the Act.

29.     The decision under review will be affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing on the Papers 13 February 2008
Date of Decision   27 February 2008