Malian and Secretary, Department of Social Services (Social services second review)
[2016] AATA 208
•5 April 2016
Malian and Secretary, Department of Social Services (Social services second review) [2016] AATA 208 (5 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5620
Re
Sergio Malian
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member Taglieri
Date 5 April 2016 Place Hobart The decision under review is affirmed.
........................................................................
Ms S Taglieri, Member
CATCHWORDS
Age Pension - Portability rate payable when applicant left Australia - amendment to Social Security Act 1991 commencing 1 July 2014 applies - Decision under review affirmed.
LEGISLATION
Social Security Act 1991
CASES
Scott and SDSS (1999) 57 ALD 627;
Scott and SDSS (2000) FCA 1241;
Re: Evans and SDFaCS (2002) AATA 914;
Croker and SDFaCS (2000) FCA 1304;
Kobayashi and SDSS (2016) AATA 19;
Young and SDSS (2015) AATA528;
Re: Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) AATA 451
REASONS FOR DECISION
Member Taglieri
5 April 2016
INTRODUCTION
Mr Malian is a 69 year old gentleman, born in Romania and now residing in Turkey.
He came to Australia in 1974 and resided here until 1997, becoming an Australian Citizen in 1977.
In May 1997 he went to Turkey and resided there until returning to Australia on 16 August 2012. When back in Australia, he applied for and was granted an age pension.
In January 2015, Mr Malian returned to Turkey and has continued to reside there since. Following his departure from Australia, the Respondent determined to pay age pension at a reduced rate, based on the portability provisions in the social security law[1].
[1] Sections 1217 and 1221 of the Social Security Act 1991
Mr Malian had prior written notice from the Respondent about the fact that his pension rate would reduce after 26 weeks of leaving Australia, should he leave and remain absent.[2]
[2] Letter to Mr Malian from the Respondent dated 25.11.14, T 6 at page 22 of T documents
By letter of 2 February 2015[3], the Respondent advised of its decision to reduce the rate of pension payable to Mr Malian given his departure and absence from Australia (“reviewable decision”).
[3] T9 at page 27 of T documents
Mr Malian is aggrieved by the reviewable decision and has asked this Tribunal to review it. A hearing for this purpose was conducted on 25 February 2016. Mr Malian had advised that he would participate in the hearing by phone, but multiple attempts to phone him were unsuccessful at the commencement of the appointed hearing.
The Tribunal proceeded to determine the application for review on the T documents filed, Mr Malian’s letter of 21 February 2016 and its enclosures. The Tribunal also heard submissions from Counsel for the Respondent.
The only issue on this review is whether the decision to reduce the rate of age pension paid to Mr Malian after departure from Australia was the correct or preferable decision.
PORTABILITY PROVISIONS OF SOCIAL SECURITY LAW
Mr Malian accepts that the portability provisions in section 1217 and 1221 of the Social Security Act 1991 apply. However, he argues that the provisions as they were prior to 1 July 2014 ought to apply to him.
Prior to 1 July 2014, pursuant to section 1221-C2, the residence factor used for calculating the portability rate of pension was:
Person’s period of working life residence
300 months
By Act no. 14 of 2014 (“the Amending Act”), the Commonwealth Parliament amended section 1221 – C2 by substituting 420 months for 300 months (“the amendment”)[4].
[4] Item 4 of the Amending Act
The effect of the amendment was to proportionally reduce the portability pension rate for persons receiving age pension and being absent from Australia for more than 26 weeks.
The Respondent submitted that the amendment did apply and referred to the terms of item 6(1) of the Amending Act which states:
“Subject to this item, the amendments made by items 1 to 5 apply in relation to periods of absence from Australia starting on or after 1 July 2014.”
Item 6(1) of the Amending Act expressly provided for the operative effect of the amendment, by providing that it was to apply to absences from Australia on or after 1 July 2014. It is to be noted that the application of the amendment was tied to the fact of absence after that date and not merely claims for pension after that date.
The Amending Act also made exceptions to the operative effect stated in item 6(1), but on the evidence before the Tribunal, they do not apply.
Mr Malian suggests that if he had left Australia within 26 weeks of 1 July 2014, the amendment would not apply to him to reduce the rate of pension.[5]
[5] Letter dated 21 February 2016
This suggestion appears to be based upon item 6(2) of the Amending Act, but ignores subparagraph 6(2)(b) which also requires presence in Australia before 1 July 2014 as a non-resident.
On the evidence, Mr Malian was in Australia and apparently as a resident before he departed on 15 January 2015. Accordingly item 6(2) cannot operate to avoid the operation of the less favourable portability rate calculation on the facts of his case, even if he had left Australia within 26 weeks of 1 July 2014.
In his letter of 21 February 2016, Mr Malian also claims that the Respondent (Centrelink) was remiss in a legal duty to advise him that if he departed at an earlier time, he could have avoided the operation of the amendment so his pension would have been calculated at a higher rate.
The Tribunal rejects his submission as the settled law is that the Respondent owes no legal duty (either pursuant to statute or at common law) to give advice to claimants.[6]
[6] Scott and SDSS (1999) 57 ALD 627; Scott and SDSS (2000) FCA 1241; Re: Evans and SDFaCS (2002) AATA 914; Croker and SDFaCS (2000) FCA 1304; Kobayashi and SDSS (2016) AATA 19; Young and SDSS (2015) AATA528; Member Wulf at (21) in Re: Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) AATA 451
Mr Malian appears to be a man of integrity and good repute.[7] However, his portability rate of pension is not in any way affected by character attributes. Rather, it is a matter of strict application of legislation and the Respondent or this Tribunal are not empowered to depart from it.
[7] Letters from Criminal Justice Commission and Migrant Services Unit of Department of Social Security, annexed to letter of 21 February 2016
Unfortunately for Mr Malian, because he left Australia after 1 July 2014, the amendment applies and this has led to a less favourable portability rate. The reviewable decision is correct.
The application is dismissed and the decision under review is affirmed.
I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member) ........................................................................
Administrative Assistant
Dated
Date of hearing 25 February 2016 Applicant Self-represented (no appearance) Solicitor for the Respondent Mr Brian Sparkes, Department of Social Services
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
0
0