Lufti Yaman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 418
•21 June 2013
[2013] AATA 418
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2208
Re
Lufti Yaman
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 21 June 2013 Place Sydney The Tribunal affirms the decision under review.
................................[sgd]........................................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – portability period - whether to extend portability period of pension while applicant overseas - whether to extend portability beyond 13 weeks - whether applicant was prevented from returning to Australia - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 1217, 1218C
REASONS FOR DECISION
Ms N Bell, Senior Member
21 June 2013
Mr Yaman was granted disability support pension in 1986. On 4 January 2011, he told Centrelink he would travel outside Australia on 18 January 2011.
Mr Yaman’s disability support pension was cancelled on 19 April 2011, 13 weeks after he departed Australia. Section 1217 of the Social Security Act 1991 provides that a pension can be paid to a person for a maximum period of 13 weeks while a person is overseas.
After he returned to Australia on 27 July 2011 Mr Yaman requested his disability support payment to be paid from the date of cancellation on 19 April 2011. On internal review the ARO affirmed the decision to cancel his pension. The Social Security Appeals Tribunal also affirmed the decision to cancel his pension.
ISSUES
Section 1218C of the Social Security Act 1991 provides:
1218C Extension of person’s portability period—general
(1) The Secretary may extend the person‘s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a) a serious accident involving the person or a family member of the person;
(b) a serious illness of the person or a family member of the person;
(c) the hospitalisation of the person or a family member of the person;
(d) the death of a family member of the person;
(e) the person‘s involvement in custody proceedings in the country in which the person is located;
(f) a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g) robbery or serious crime committed against the person or a family member of the person;
(h) a natural disaster in the country in which the person is located;
(i) political or social unrest in the country in which the person is located;
(j) industrial action in the country in which the person is located;
(k) a war in the country in which the person is located.
(2) The Secretary must not extend the person‘s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence; and
(b) if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(3) If the Secretary extends a person‘s portability period under subsection (1), the person‘s portability period for the payment, for the purposes of this Part, is the extended period.
The issue for me to consider is what prevented Mr Yaman from returning to Australia within 13 weeks. I may exercise the discretion to extend the portability of his pension if the reason was one of those listed in s 1218C.
WHAT PREVENTED MR YAMAN’S RETURN WITHIN 13 WEEKS?
On 13 December 2010, Mr Yaman informed Centrelink that he “is going o/s[sic] sometime between 1 and 11 January 2011 for 6 months… .” On 4 January 2011 Mr Yaman contacted Centrelink inquiring about the portability of his pension. He told an officer he planned to leave Australia on 18 January 2011 and will return between 19 April 2011 and 19 July 2011.
Centrelink wrote to Mr Yaman on 4 January 2011 under heading of “Your plans to travel”, advising him that after his departure from Australia his payments will continue for a portability period of 13 weeks and will stop on 19 April 2011. The letter noted his advice to Centrelink of his intention to return on 19 July 2011. The letter also provided a telephone number for Mr Yaman to contact Centrelink should his return to Australia be delayed.
On 17 January 2011, one day before his departure from Australia, Mr Yaman contacted Centrelink on two occasions seeking an extension of the portability period while outside Australia. The information provided by Mr Yaman indicated that he would leave the following day and return on 3 July 2011. Mr Yaman was advised that his payments will continued for a period of 13 weeks and will cease on 19 April 2011.
On return to Australia Mr Yaman provided a letter to Centrelink from his solicitors. The letter, dated 17 December 2010, refers to the Family Court order of 10 December 2010. The solicitor wrote, “I understand that my clients have booked a ticket to fly out on 18 January 2011 and expect to return within 6 months in accordance with these orders”. The Orders allow, but do not require, departure from Australia “to facilitate the husband’s and the husband’s mother travelling out of Australia to Turkey on one occasion for a period of no more than six (6) months.”
Mr Yaman said that he was given permission to go to Turkey for six months but never had the intention of going for the whole period. He said his mother wanted to stay in Turkey for the whole six months. He said that she became ill in Turkey and then he had to stay and take care of her and that he could not leave her there alone.
Mr Yaman stayed in a house that is normally vacant and looked after from time to time by his mother’s brother. He said that this brother offered to help with Mr Yaman’s mother but it was unnecessary because Mr Yaman was there.
A letter from Mr Yaman’s family law solicitor dated 1 October 2011 said that Mr Yaman visited Turkey to collect evidence to assist his family court matter. It also stated that Mr Yaman’s and his mother’s health concerns and the length of passage in visiting Turkey meant that he remained in Turkey from January to July 2011.
Mr Yaman agreed in cross examination that he had told Centrelink he would be going to Turkey for six months, notwithstanding his evidence now that he had no intention of staying that long. He also agreed he had requested an extension of portability of pension for six months. He also agreed he did not return to Australia earlier because his mother did not wish to return earlier.
Mr Yaman provided a medical certificate from his mother’s doctor at the hospital in Turkey. It is brief and non-explanatory. It states that his mother was treated from 10 March 2011 to 17 March 2011 and was diagnosed with “Asthma Bronchial Acute Attack”. It states that in July 2011 “outpatient controls” ended and she was told she can travel.
Mr Yaman said that prior to his mother’s hospitalisation for one week in March 2011, she had been given an injection by the doctor. After she left hospital she was treated with tablets and a puffer.
Only two of the events listed in s 1218C are relevant to Mr Yaman’s circumstances: hospitalisation (b) and illness (c). I consider that neither made Mr Yaman unable to return to Australian within 13 weeks. He has agreed that he had told Centrelink he would be away for six months and that his reason for staying that long was that his mother wished to do so. The medical certificate provided is unconvincing, particularly in view of the treatment his mother received on discharge from hospital. Tablets and a puffer are conservative treatment that could have been provided in Australia and en route back to Australia. There is no explanation of any medical reason why Mr Yaman’s mother could not travel, on this level of treatment, until the expiration of more than three months. In addition, Mr Yaman said his mother’s brother had offered to assist her, but Mr Yaman did not accept this offer.
For these reasons, I decline to extend the period of portability of Mr Yaman’s pension beyond 13 weeks.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ..................................[sgd]......................................
Associate
Dated 21 June 2013
Date of hearing 10 May 2013 Applicant In person Advocate for the Respondent G Lozynsky, DHS Program Litigation and Review Branch
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