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

This matter concerned an appeal by Ms Liang against a decision by the Secretary of the Department of Social Services to cancel her family tax benefit and suspend her parenting payment. The appeal was heard by a Senior Member of the Administrative Appeals Tribunal. The core of the dispute revolved around Ms Liang's eligibility for continued payments while she was overseas, specifically whether her inability to return to Australia was due to a natural disaster and whether an extension of her portability period was warranted.

The Administrative Appeals Tribunal was required to determine whether Ms Liang and her daughter were unable to return to Australia, and if so, whether this inability was caused by a natural disaster in China. Furthermore, the Tribunal had to consider if any circumstances existed that would preclude an extension of her portability period. A key aspect of the determination was identifying the relevant point in time at which Ms Liang's inability to return was to be assessed, which the Tribunal agreed was 15 November 2020, the date her social security payments ceased to be payable unless a further extension was granted.

The Tribunal applied the legal principle that "unable to return" does not necessitate an absolute impossibility of return, but rather a practical inability, which is a question of fact. This practical inability can arise from a variety of circumstances. The Tribunal found that Ms Liang was indeed unable to return to Australia due to a natural disaster in China during the period of 15 November 2020 to 2 February 2021. Consequently, the Tribunal set aside the decision to cancel Ms Liang's family tax benefit and suspend her parenting payment, remitting the matter for reconsideration with a direction that her portability period be extended until 2 February 2021.