Liang and Secretary, Department of Social Services (Social services second review)

[2021] AATA 4076

Liang and Secretary, Department of Social Services (Social services second review) [2021] AATA 4076 (8 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1981

Re:Jing Liang

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:8 November 2021

Place:Adelaide

The Tribunal sets aside the decision to cancel Ms Liang’s family tax benefit and suspend her parenting payment and remits the matter for reconsideration in accordance with the direction that her portability period for family tax benefit and parenting payment is extended to 2 February 2021. 

......................[Sgnd]...........................

Senior Member K Millar

Catchwords

SOCIAL SECURITY – family tax benefit – parenting payment – cancellation – suspension – portability – portability period – unlimited portability – overseas – unable to return to Australia – COVID-19 – decision set aside and remitted

Legislation

A New Tax System (Family Assistance) Act 1999
Social Security Act 1991
Social Security (Administration) Act 1999

Cases

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2012] FCAFC 29

REASONS FOR DECISION

Senior Member K Millar

8 November 2021

INTRODUCTION

1. Ms Liang is in China, and says she is unable to return to Australia due to the COVID-19 pandemic. Ms Liang’s parenting payment has been suspended and her family tax benefit cancelled because she has been out of Australia longer than the time allowed, and subsequent extensions to this time. 

2. Ms Liang left Australia with her daughter on 18 January 2020, travelling to the People’s Republic of China.  On 17 February 2020, she advised she was unable to return to Australia due to the COVID-19 pandemic and was granted an extension to the time she can be out of Australia and still receive parenting payment and family tax benefit.  This extension was granted until 30 June 2020.  Two further extensions were granted until 31 August 2020 and then 15 November 2020. 

3. Ms Liang’s request for a fourth extension was refused as a delegate of the Secretary found Ms Liang was no longer unable to return to Australia. 

4. Ms Liang states she does not want to place her young daughter at risk by travelling, that she is unable to afford the cost of travel and hotel quarantine, with flights costing more than $15,000AUD.  She stated she will need to travel within China to access a flight to Australia and will be at risk.  As a result, she claimed she is unable to return to Australia.

5. The decision to suspend her parenting payment and cancel her family tax benefit was affirmed by an authorised review officer who found that flights were available at a cost to Ms Liang of less than $5,000AUD.[1] The Social Security and Child Support Division of this Tribunal affirmed the decision.  Ms Liang has applied for a further review of the decisions.

   [1] Exhibit T, T3 pages 10-21.

6. As Ms Liang remains in China the hearing was conducted by Microsoft Teams.  The Tribunal was assisted by an interpreter in the Mandarin and English languages.

7. The issue to be resolved in this matter is whether there are circumstances in which the time Ms Liang can be overseas and still receive parenting payment and family tax benefit can be extended.     

   LEGISLATION

8. The time in which a person can be out of Australia and still receive parenting payment and family tax benefit is referred to as the portability period of the payment.

9. Under s 21 of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act), a person is eligible for Family Tax Benefit (FBT) if he or she has at least one FTB child.

10. According to section 24 of the Family Assistance Act, if the child leaves Australia and is absent for more than 6 weeks, the child is not an FTB child at any time after the period of 6 weeks. 

11. Under s 24(7) of the Family Assistance Act, the Secretary may extend the 6 week period to a period of no more than 3 years “ … if the Secretary is satisfied that the child … is unable to return to Australia because of any of the following events”. Of the events listed, the only event that applies to Ms Liang is that in s 24(7)(h) of the Family Assistance Act, which is a natural disaster in the country in which the person is located.  The circumstances in which the portability period must not be extended are set out in s 24(8) of the Family Assistance Act, and the period must not be extended unless the event occurred or began in the initial period of absence.

12. Section 1215 of the Social Security Act 1991 (the Act) states that throughout a period of absence after the end of the person’s portability period the payment is not payable to the person. Under s 80 of the Social Security (Administration) Act 1999 (the Administration Act) if the Secretary is satisfied that a social security payment is being or has been made to a person to whom the payment is not payable, the Secretary is to determine the payment is to be cancelled or suspended.

13. The person’s maximum portability period is set out in the table at the end of s 1217 of the Act, and for parenting payment the maximum portability period is 6 weeks.

14. The Secretary may grant an extension of the person’s portability period “if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events”. Of the events that are described, only that in s 1218C(1)(h) of the Act can apply, which is a natural disaster in the country in which the person is located. The circumstances in which a person’s portability must not be extended are set out in s 1218C(2) of the Act and include that the person’s portability period must not be extended unless the event occurred or began in the period of absence.

15. As the test in the Family Assistance Act and the Act both state that the person or child is unable to return due to a natural disaster in the country in which the person or child is located, and this must have occurred or began in the period of absence, both have been addressed together.

    CONSIDERATION

16. The issues that arise are whether Ms Liang and her daughter are unable to return to Australia, and, if so, whether this is because of a natural disaster in China, and whether an extension should be granted.  The Tribunal must also consider if any of the circumstances in which a person’s portability must not be extended exist. 

17. The Tribunal considered the point in time at which it must be satisfied Ms Liang was unable to return. This is of some importance in this matter, due to the changing circumstances in both China and Australia, and the financial resources Ms Liang had at the time she requested a further extension have been depleted. The circumstances in a country can change quickly in response to reported cases of COVID-19, and particular areas may become difficult to access or to leave. 

18. The Secretary submits the relevant time is the time that the last extension to her portability ended, which is 15 November 2020.  As this is the time her social security payments ceased being payable unless a further extension is to be granted, the Tribunal agrees that this is the date to assess whether she was unable to return to Australia because of a natural disaster.  

    Was Ms Liang unable to return to Australia?

19. Both the Act and the Family Assistance Act require that the person is unable to return to Australia because of the event.

20. In the Full Federal Court decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis,[2] Justice Gray states that “unable to return” does not require that it is impossible that the person returns to Australia, it is sufficient that the person has a practical inability to return, which is a question of fact.[3]  Justice Flick agreed that a practical inability to return can suffice, and can arise from a myriad of circumstances extending from financial circumstances to the need to provide emotional comfort to a family member who has a serious illness.  Justice Flick states that the matters to be considered will depend on the event.[4] 

    [2] [2012] FCAFC 29, 200 FCR 264.

    [3] Ibid [32].

    [4] Above n 2 [100].

21. It is therefore necessary for the Tribunal to decide on the information available to it, whether as a question of fact Ms Liang and her daughter had a practical inability to return to Australia. 

22. The legislation specifies that the Secretary, and on review the Tribunal in the place of the Secretary, must be satisfied that she is unable to return to Australia.  This means there must be sufficient information before the Tribunal for it to find she was unable to return.  As Ms Liang is seeking the exercise of a discretion, it is for Ms Liang to provide sufficient information to establish that she is unable to return to Australia. 

23. If the Tribunal decides that Ms Liang was unable to return on 15 November 2020, it must then consider, in light of any subsequent events, if there is a point in time where she was able return to Australia to the date of its decision. 

24. Ms Liang has raised several factors which she states resulted in her being unable to return to Australia.  These factors were raised both in her responses to Centrelink and at the hearing.  These are:

    ·     The risk that her child will contract COVID-19 while travelling to Australia.

    ·     She does not want to travel through a third country.

    ·     She is unable to afford the cost of quarantine when she arrives back in Australia.

    ·     The prevalence of COVID-19 in Nanjing province, where she is currently located, and the difficulty of travelling to another city for a flight.

    ·     She has been advised by the Australian consulate not to travel.

    ·     She is unable financially to afford the cost of the airfare.

    ·     She does not want to enter Australia at a port other than Adelaide.

25. Ms Liang stated that neither she nor her daughter have any health concerns.  The Tribunal appreciates she is concerned for the health of her daughter and does not want to expose her daughter to travel due to the risk of contracting COVID-19.  The Secretary appropriately submitted that no criticism can be made of Ms Liang for her desire to protect her daughter, however in the circumstances of this case the Tribunal does not accept her concern for her child results in them being unable to travel to Australia. 

26. Similarly, while the Tribunal accepts this is inconvenient to transit through Singapore or another third country, or to arrive in Australia in a city other than Adelaide, this does not of itself mean she is unable to return to Australia.

27. The Tribunal does not consider the cost of quarantine or the need to quarantine results in Ms Liang having a practical inability to return.  She is not required to pay the cost of the quarantine on arrival.[5]  She states she is a nurse, and can work on return to Australia and cited this as a reason she wants to return to Australia rather than remain in China.  It also means she will have an income from which to repay any quarantine expenses.

    [5] Exhibit R3.

28. Ms Liang stated at the hearing that in November 2020, COVID-19 cases were reported in Jiangsu Province and in Nanjing, and these cities were shut down.  She said this meant that everyone could not go out, and there were heavy restrictions.  The Tribunal considers this supports that she had an inability to travel at the time.

29. Ms Liang claims she was advised by the consulate not to travel.  The Tribunal found this claim vague as to the date and to the details of the advice from the consulate and does not place significant weight on this claim to show she was unable to travel. 

30. In looking at the availability of flights and the cost of these flights, the relevant time at which it must be established she was unable to return was 15 November 2020, and the Tribunal considered the information Ms Liang provided about the availability and cost of travel at this time. 

31. Attached to an email dated 11 November 2020, Ms Liang provided a screenshot of flights dated 29 September at a cost of over $15,000AUD.  She provided screenshots for 16 December, 6 January and 10 February, albeit with no year showing, that no flights were available.[6] 

    [6] Exhibit T, T7 page 83 and T11 pages 89-92.

32. In a further email on 17 November 2020, Ms Liang states that all flights to Adelaide have been stopped due to a COVID-19 case in Adelaide. She included news reports about a shut down in South Australia from 16 November 2020.[7]  

    [7] Exhibit T, T11 pages 93-95.

33. In a third email dated 20 November 2020, Ms Liang states she tried to book a ticket to Adelaide but there are no available flights, and that she has called the flight company but was told there were no available flights.[8] 

    [8] Exhibit T, T 11 page 96.

34. An email dated 24 November 2020, Ms Liang states she called the flight company again on that date and was told the earliest flight was 28 March 2021, that she would need to travel to Guangzhou which is 1358 km from her city, and the flight is to Sydney and not to Adelaide.  She states one flight was quoted at a cost of over $10,000 and another over $15,000.  She attached screenshots of flights from Guangzhou to Brisbane, then on to Sydney, and Guangzhou to Sydney on 28 March 2021.  These do not include the cost.  Ms Liang also attached a letter from her bank showing an account balance at close of business on 10 November 2020 of $5,561.  

35. The Secretary submits Ms Liang could have sought financial assistance from the Department of Foreign Affairs and Trade (DFAT), which states Australian citizens and permanent residents may be eligible for Australian government’s partly subsidised flights to Australia under a loan or grant. The loan covers the cost of a standard one-way economy flight with the remaining cost paid by the Government.  This was first brought to Ms Liang’s attention when she applied for review at second tier and was not raised at the time under consideration. 

36. A perusal of the eligibility criteria for DFAT assistance shows that, to be eligible for assistance she must  demonstrate  the need to return to Australia urgently for medical or other reasons, that she is in financial distress as a result of the travel disruptions, or  that she requires financial assistance to shelter in place until a flight can be secured or are in a location with no commercial flights operating.[9] 

    [9] Department of Foreign Affairs and Trade, Government of Australia, COVID-19: Overseas financial assistance, Smartraveller < >

    As Ms Liang is living with her parents, it is difficult to see how she would meet these requirements.  She says she has contacted the embassy and received verbal advice that she would not be eligible for this assistance.  She said she was unable to obtain this advice in writing, however her evidence is supported by the eligibility criteria provided by the Secretary.  The Tribunal finds this assistance was not known to her at the relevant time, and that there is information to support her oral evidence that she was told she is not eligible. 

37. The Secretary further submits Ms Liang owns a house in Australia and could either rent her house or borrow money against the house to fund her return to Australia.  Ms Liang provided photographs and information from a friend stating that work would be required in the house before she could rent it, and Ms Liang’s belongings would need to be removed and stored.  She states she does not have anyone who could assist her with this task.  If her house were to be rented, she would not have anywhere to live on her return. 

38. Ms Liang states she is unable to borrow money because she does not have an income.  She provided an email from her bank stating she cannot further increase her mortgage or access other lending options because she is not currently employed.[10]  The Tribunal is not satisfied Ms Liang could obtain funds through renting her house or increasing her mortgage.

    [10] Exhibit A6.

39. The Tribunal considers Ms Liang has a practical inability to return if flights cost in the vicinity of $15,000AUD.  It considers she does not have a practical inability to return if flights are in the vicinity of $5,000AUD.  This was the amount she had in her bank account at the time.  It is also the amount she said she could borrow from her family to return to Australia at the time of the hearing as she no longer has this money in her account. 

40. While arriving at a port other than Adelaide may affect the overall cost of returning home, the Tribunal does not consider arriving in a place other than Adelaide, such as Sydney or Brisbane results in Ms Liang having an inability to return to Australia. In coming to this conclusion, the Tribunal is mindful that return to Australia is specified in s 1218C of the Act and 24(7) of the Family Assistance Act, and not return to a specific location within Australia.

41. Ms Liang provided screenshots and advice that at the relevant time, or shortly after, she contacted the airlines and was advised flights were unavailable at a cost of less than approximately $15,000.  While the decision makers expressed doubt this was the case, and stated flights were available, the Secretary was unable to point to direct information that on or around 15 November 2020 a flight was available to Ms Liang, or the cost of the flight.  There is a reference in the record of 17 November 2020 that the original decision maker searched for flights and stated there are flights available,[11] however this is not supported by copies of the search for the flight, or the information on the cost of any such flights.

    [11] Exhibit T13, 141.

42. A record dated 24 November 2020 states an officer told Ms Liang a Google search showed flights available from Guangzhou to Sydney in December but does not disclose the cost of these flights.[12]  This record states previous decision makers have documented flights from China, and that the prices were not what Ms Liang stated. The Tribunal could not locate evidence of these flights in the information before it, and places less weight on a report from an officer of the Department that the flights were available, than on screenshots and copies of documents provide by Ms Liang, and later by the authorised review officer that show the flights that were available and the cost of those flights.

    [12] Exhibit T13, 146.

43. The Tribunal notes that Ms Liang would not be able to provide evidence of booked and cancelled flights if the cost is in the vicinity of $15,000 as Ms Liang does not have the funds to book these flights before they were cancelled. 

44. Ms Liang provided samples of unavailability of flights, and advised she was unable to obtain flights. Ms Liang provided direct information to show that at that time the cost of a flight was in the vicinity of $15,000.  It is stated other flights could be located, however there is nothing to indicate information on available and affordable flights was put to Ms Liang, or any explanation sought on why she could not access these flights, before a decision was made. 

45. Ms Liang’s credit has not been impugned to the point where the Tribunal would not accept her evidence that she had attempted to access a flight at a practicable cost and was unable to do so, and the Tribunal accepts she was unable to obtain a flight at a cost that would make it practical for her to book a flight.  It follows that at this time she was unable to return to Australia.

46. The authorised review officer has provided a screenshot of flights available from Nanjing to Sydney at a cost of under $5,000AUD on 2 February 2021 in the notes attached to the decision record.[13]  The Tribunal considers this demonstrates that Ms Liang no longer had an inability to return to Australia from this date as it shows that a flight was available at a cost that was practical for Ms Liang to access.  Ms Laing’s inability to return to Australia therefore ended on 2 February 2021.

    [13] Exhibit T3, 20.

47. The Tribunal finds that Ms Liang was unable to return to Australia in the period 15 November 2020 to 1 February 2021.

    Is her inability to return due to a natural disaster?

1. The Secretary has accepted that the COVID-19 pandemic is a natural disaster which occurred or began in the initial period Ms Laing was out of Australia.  For the purposes of this decision, which looks to a particular point in time, the Tribunal finds it is a natural disaster. 

   Should the extension be granted?

2. Decision makers refer to previous extensions being granted and Ms Liang’s failure to advise Centrelink of her travel before she left Australia.  There is some information to show she was advised of the requirement to provide evidence of her attempts to return to Australia, which she has done.  The inference invited is that she is not trying hard enough to return to Australia. 

3. That previous extensions were granted does not preclude a further extension being granted, as this will depend on the circumstances and whether she is unable to return due to a natural disaster at the relevant point in time.

4. Ms Liang failed to notify Centrelink of her departure, and it is inferred she may have been advised not to travel at that time.  This is not supported by information to show that travel restrictions were in place at the time she travelled.  The Tribunal does not consider this precludes the exercise of the discretion to extend the portability period. 

5. Ms Liang’s commitment to returning to Australia is also raised.  She and her daughter are living with Ms Liang’s parents.  She asserts she wants to return to Australia so that she can return to her work.  The Tribunal accepts there may be reasons that she would like to remain in China, but as it has found she was unable to return to Australia in the period 15 November 2020 to 2 February 2021, does not consider any mixed motivation to re-enter Australia precludes an extension being granted. 

   Is there any reason the extension cannot be granted?

6. Section 1218C(2) of the Act and s 24(8) of the Family Assistance Act specify that an extension must not be granted unless the event occurred or began while the person was out of Australia. Ms Liang travelled on 18 January 2020. The Secretary has accepted, and the Tribunal concurs, that the advent of the COVID-19 pandemic began or occurred while she was out of Australia. The other exception that is specified does not apply on the facts of this case.

   CONCLUSION

7. The Tribunal has found Ms Liang was unable to return to Australia due to a natural disaster in the period between 15 November 2020 to 1 February 2021, and that her portability period should be extended for this period.  It has found that from 2 February 2021 she was able to return to Australia.

   DECISION

8. The Tribunal sets aside the decision to cancel Ms Liang’s family tax benefit and suspend her parenting payment and remits the matter for reconsideration in accordance with the direction that her portability period for family tax benefit and parenting payment is extended to 2 February 2021. 

57.     I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

..................[sgnd]............................

Associate

Dated:   8 November 2021

Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Riley Calaby, Services Australia