Marincic and Secretary, Department of Family and Comminity Servic Es

[2004] AATA 157

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 157

ADMINISTRATIVE APPEALS TRIBUNAL                )

)        No  N2003/362

GENERAL ADMINISTRATIVE DIVISION		)
Re		MRS JELENA MARINCIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date18 February 2004

PlaceSydney

Decision

The decision of the Secretary, Department of Family and Community Services, the Respondent, to cancel Mrs Marincic’s partner allowance effective 7 December 2001 because she had been out of Australia for 26 weeks was the correct and preferable decision, and is affirmed.

The decision of the Respondent dated 29 April 2002 which held that the discretion to extend portability provisions for partner allowance pursuant to section 1218C of the Social Security Act1991 would not be exercised in Mrs Marincic’s favour was the correct and preferable decision, and is affirmed.

I find that Mrs Marincic was, pursuant to section 7(2) and (3) of the Social Security Act 1991, not an Australian resident at the relevant time, and that the refusal of grant of partner allowance and age pension to Mrs Marincic on 5 June 2002 as affirmed by the decisions of the ARO of 8 July 2002, and 30 August 2002, and the SSAT, were accordingly the correct and preferable decisions, and I affirm them.

Mrs Marincic did not qualify for age pension or partner allowance at the relevant time pursuant to the legislation, and it is not payable.

[Sgd] Ms G Ettinger
  Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension – partner allowance -  qualification – Australian resident – place of residence – decision affirmed

LEGISLATION

Social Security Act 1991 ss 7(2), 7(3), 43(1), 51, 1218C, 771HA(1)

Social Security (Administration) Act 1999 ss 29(1),

CASE LAW

Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177
Smolic v Secretary, Department of Family and Community Services [2000] AATA 921

REASONS FOR DECISION

18 February 2004   Ms G Ettinger, Senior Member

1.      The application for review before the Administrative Appeals Tribunal (“the Tribunal”) was by Mrs Jelena Marincic concerning a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 3 February 2003.  The decision of the SSAT was that Mrs Marincic was not qualified for age pension or partner allowance and that neither was payable to her pursuant to the relevant legislation.

2.      The SSAT affirmed the decision of an Authorised Review Officer (“ARO”) of the Department of Family and Community Services (“the Department”), the Respondent in these proceedings, made on 8 July 2002 (T20), which held that Mrs Marincic did not qualify for age pension (section 29(1) of the Social Security (Administration) Act 1999, (“the Administration Act”)) or partner allowance, (section 771HA(1) of the Social Security Act 1991 (“the Social Security Act”)), and that they were not payable. The ARO based her decision on the fact that pursuant to those sections of the Acts above mentioned, to qualify, the Applicant must be an Australian resident, and held that pursuant to section 7(2) of the Social Security Act, Mrs Marincic was not an Australian resident at the relevant time. The ARO had also undertaken a review of the decision not to extend the period of payment of Mrs Marincic’s partner allowance for longer than the usual 26 week period (section 1218C(1) of the Social Security Act).

3.      There was a second decision of an ARO at T26, dated 30 August 2002, dealing with the same issues, and with the same outcome.

4.      The Tribunal commenced hearing Mrs Marincic’s application for review of the previous decisions in Sydney on 23 July 2003. She was in Croatia, and was represented by her son, Mr John Marincic. The matter was adjourned, and then followed up with a number of telephone directions hearings in order to give the Applicant’s son the opportunity of obtaining legal advice, and his mother’s instructions, and for them to consider his mother’s position in relation to the claim. The Hearing was resumed on 22 January 2004.  Mr Marincic attended the Hearing to represent his mother who was still in Croatia. She gave oral evidence by telephone link. Ms M Buckley, of the Centrelink Advocacy and Administrative Law Team, represented the Department. Mr B Petrusev, interpreter in the Croatian language assisted the Tribunal by interpreting for Mrs Marincic.

ISSUES BEFORE THE TRIBUNAL

5.      The issues to be decided were whether Mrs Jelena Marincic was eligible for, and whether age pension and partner allowance were payable.

6.      In doing so, I had to decide:

· Whether the discretion to extend portability provisions for partner allowance pursuant to section 1218C of the Social Security Act after 26 weeks, which ended on 7 December 2001, should be exercised in Mrs Marincic’s situation;

· Whether, in the context of the refusal of grant to Mrs Marincic of partner allowance and age pension, Mrs Marincic was, pursuant to section 7(2) and (3) of the Social Security Act, an  Australian resident;

·     Whether Mrs Marincic was eligible for, and whether age pension and partner allowance were payable at the relevant date 5 June 2002.

EVIDENCE

7. The Tribunal admitted into evidence documents originally lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as Exhibit R1, and supplementary documents including the Respondent’s Additional Statement of Facts and Contentions provided at the resumed hearing, as Exhibit R2. The supplementary documents were required because the documents in Exhibit R1 were incomplete.

EVIDENCE AND SUBMISSIONS OF THE APPLICANT

8.      Mrs Marincic who was in Croatia at the time of the initial hearing on 23 July 2003, did not attend that Hearing, and was represented by her son, Mr John Marincic. At the time of the resumed hearing on 22 January 2004, the Applicant had not returned to Australia, and was still represented by her son, but gave oral evidence by telephone link from Croatia. The Tribunal was assisted by interpreter Mr Petrusev in the Croatian language.  Mr Marincic also gave evidence and made submissions which understandably are hard to distinguish in the case of an unrepresented applicant.

9.      Notwithstanding the excellent assistance of Mr Petrusev, Mrs Marincic found it difficult to give evidence in the beginning. I had some sympathy for that as it was late at night for her, and she is no doubt unaccustomed to giving evidence, particularly on the telephone.

10.     Mrs Marincic, whose date of birth is 23 June 1940, said that both she and her husband had received the age pension when they were in Australia. Mrs Marincic told the Hearing that after the sale of their house in Sydney, in 1997, she and her husband moved to Croatia, and bought a house there in 1998. She said that they live there, and spend Christmas with her sister and friends.

11.     She said that on her return to Australia from Croatia in April 2000, she had been granted partner allowance. Mrs Marincic said that she had intended to come back sooner, but had been unable because her husband was incapacitated.  She said that he had suffered a stroke on 11 December 2001 and almost died. Mrs Marincic told me that although the incident of the stroke was sudden, her husband had been ill for some time during the early months of 2001. She said that she had had plans to return to Australia that year. I did not however accept that there was a fixed date on which the Applicant had planned to travel.

12.     Mrs Marincic said that when she returns to Australia, she stays with Mr John Marincic and his family, or another family member. Mrs Marincic told me that she has two sons in Australia, and that they and their children are everything to her, but that she has been married for 45 years and must stay with her husband.  However, in the event of her husband’s death, she would move back to Australia, she said.

13.     Mrs Marincic told me that she contributed $40,000 to the purchase of Mr John Marincic’s home, to which she has no title.  I noted from her evidence that she has no assets in Australia, no motor vehicle, house or furniture, no investment or business interests. By way of contrast however, Mrs and Mrs Marincic own a home and furniture in Croatia. Mr Marincic is the recipient of a Croatian pension, and they shipped a container of their goods from Australia to Croatia when they moved. They operate a joint bank account in Croatia. Mrs Marincic said she has two bank accounts in Australia.

14.     Mr Marincic corroborated his mother’s evidence that she was in Croatia because of her husband, and submitted that she had not left Australia on a permanent basis. He corroborated her other evidence regarding the payment of $40,000 towards his home, the fact his parents lived with him after selling the house, and the fact that his mother stays with him when she is in Australia. He also submitted that notwithstanding his mother’s absences during the last few years, she had been present in Australia for many years from 1970 to the move in the late 1990s.

15.     Mr Marincic drew to my attention delays which had occurred with regard to the processing of his mother’s applications by Centrelink, and the fact that although ARO Mr A Jagota had stated that he had had no prior involvement in the Marincic case, (T26/83), this was incorrect.

SUBMISSIONS OF THE RESPONDENT

16.     Ms Buckley opened her submissions by acknowledging there had been procedural difficulties in the handling of Mrs Marincic’s claim. She acknowledged there had been some delays and confusion in the ARO reviews, partly due to a delay in the translating of documents, but agreed that the reviews should have been more straight forward.

17. As to the 26 week portability of the partner allowance; Ms Buckley submitted that the original grant was on 4 May 1999, and that the partner allowance had again been granted to Mrs Marincic on 3 April 2000 (T3). She had departed Australia on 1 June 2000 returning 31 March 2001, and departed again, so that by 7 December 2001, Mrs Marincic was not qualified for partner allowance. A further claim was then lodged on 31 May 2002, and pursuant to section 12 of the Administration Act, that was the date from which the payment could be considered, and it could not be deemed to be transferred to another pension allowance pursuant to section 13 of the Administration Act she submitted.

18.     As to the discretion to extend portability; Ms Buckley submitted that Mrs Marincic was not unable to return to Australia (T4), noting that the portability before the amendment in the legislation at September 2000, was 13 weeks.  In submitting that Mr Marincic’s stroke could not be the reason why the discretion to extend portability (section 1218C of the Social Security Act), should be exercised in Mrs Marincic’s favour, Ms Buckley submitted that the qualification and payability for Mrs Marincic ceased on 7 December 2001. Ms Buckley submitted that Mr Marincic did not suffer a stroke until 11 December 2001, after the end of the period of Mrs Marincic’s eligibility for partner allowance on 7 December 2001, and accordingly, the discretion to extend portability did not apply. 

19.     Ms Buckley also submitted that when Mrs Marincic applied for the age pension and partner allowance in May 2002, it was not granted, because she was held to not be a resident of Australia, (section 29 of the Administration Act, and section 771HA(1) of the Social Security Act, and sections 7(2) and (3) of the Social Security Act). Ms Buckley submitted that section 7(3) of the Social Security Act sets out the factors to be taken into account in deciding whether a person is residing in Australia. In making her submissions, Ms Buckley relied on Smolic v Secretary Department of Family and Community Services [2000] AATA 921.

20.     In that regard Ms Buckley submitted that Mrs Marincic was not a resident of Australia in that she did not own a home in Australia, and that the couple had sold their home in Australia in the late 1990s, and bought a home in Croatia. She acknowledged that Mrs Marincic stayed with her sons when she visited Australia, and that she had contributed $40,000 to the purchase of her son’s house, but submitted that she had in recent years, spent more time in Croatia. She referred to Mrs Marincic’s evidence that she had relatives and friends in Croatia, and notwithstanding having two bank accounts in Australia, Mr and Mrs Marincic operated a joint account in Croatia. Ms Buckley referred to Mrs Marincic’s evidence regarding her possessions being in Croatia, and referred me to T13/27, an application for the age pension dated May 2002 in which Mrs Marincic had had replied “No” to Question 12 “Are you living permanently in Australia?” and ticked “Yes ASAP” in reply to Question 14 which was “Do you plan to leave Australia?”

21.     Ms Buckley submitted that the weight of evidence was that Mrs Marincic was a resident of Croatia and not Australia, and referred to Mrs Marincic’s evidence that if her husband died she would return, submitting that a reapplication at such time would be in order.

LEGISLATION

22.     A determination of this matter requires consideration of the provisions of the Social Security Act and the Social Security Administration Act relating to qualification and payability for age pension and partner allowance. 

23. I noted that section 43(1) of the Social Security Act deals with qualification for age pension which includes a 10 year qualifying Australian residence which there is not dispute Mrs Marincic has. 

24. Section 48 of the Social Security Act deals with making a proper claim for pension and “proper claim” is defined within section 49 of the Social Security Act. Section 50 of the Social Security Act relates to the manner of lodgment and section 51 deals with the claimant’s residence or presence in Australia. As relevant, section 51 of the Act states:

“51      A claim by a person is not a proper claim unless the person is:

(a)       an Australian resident; and

(b)       in Australia;

on the day on which the claim is lodged.”

25. Subsection 7(2) of the Social Security Act defines an Australian resident and, as relevant, states:

“7(2)    An Australian resident is a person who:

(a)resides in Australia; and

(b)is one of the following:

(i)     an Australian citizen;

(ii)     the holder of a permanent visa;

(iii)     the holder of a special category visa who is likely to remain permanently in Australia;

(iv)    the holder of a special purpose visa who is likely to remain permanently in Australia.”

26.     To determine whether a claimant “resides in Australia”, the Social Security Act provides criteria for consideration pursuant to subsection 7(3) of the Social Security Act. As relevant, subsection 7(3) states:

“7(3)    In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

(a)the nature of the accommodation used by the person in Australia; and

(b)the nature and extent of the family relationships the person has in Australia; and

(c)the nature and extent of the person’s employment, business or financial ties with Australia; and

(d)the nature and extent of the person’s assets located in Australia; and

(e)the frequency and duration of the person’s travel outside Australia; and

(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.”

27. Section 29 of the Administration Act deals with age pension.

28. Qualification for partner allowance is pursuant to the provisions of section 7771HA of the Social Security Act.

29.     Section 1217 deals with the portability period and section 1218 of the Social Security Act provides for a discretion to extend portability provisions for partner allowance in certain circumstances.

THE TRIBUNAL

30.     In coming to a decision regarding whether Mrs Marincic was eligible for age pension and partner allowance at the relevant date, I have taken into account the evidence, submissions, relevant legislation and case law. I was mindful that there were inefficiencies in the processing of the Marincic application as acknowledged by Ms Buckley. However I accepted that all relevant issues were dealt with by the internal decision makers and the SSAT in regard to the  application before the Tribunal, and that accordingly, I can review all the issues raised.

background

31.     It was not in dispute that Mr and Mrs Marincic had been in Australia since 1970, sold their house in 1997, and travelled overseas to Croatia, at first on extended leave. They purchased a house there in 1998, and shipped their goods to Croatia in a container.  It was also undisputed that the couple contributed $40,000 to the purchase of the home of Mr John Marincic, one of their two sons in Australia, and that Mrs Marincic, the Applicant in this matter has spent more time in Croatia than in Australia since 1998. She gave evidence by telephone link at the Hearing, and said that she missed her children and grandchildren but could not contemplate leaving her husband of 45 years, who is ill, having suffered a stroke on 11 December 2001. She also told me that if her husband died, she might move back to Australia.

32.     Mrs Marincic who had been receiving age pension and partner allowance, was held not to be an Australian resident at the time of her most recent application in May 2002, and it is for that reason that her claim was refused. I moved first to consider the cancellation of Mrs Marincic’s partner allowance on and from 7 December 2001, six months after it was granted. 

whether mrs marincic was eligible for partner allowance after it was cancelled on and from 7 december 2001

33.     I was mindful that Mrs Marincic left Australia for Croatia with her husband in 1998, and was first paid partner allowance on and from 4 May 1999. This ceased after the statutory period, and on Mrs Marincic’s return to Australia, partner allowance was again paid on and from 3 April 2000 (T3). Mrs Marincic subsequently returned to Croatia, and after partner allowance was ceased again, she returned to Australia, and partner allowance was again applied for, and paid from 31 March 2001. This was again paid from June 20001 when Mrs Marincic left for Croatia where her husband is resident, and receives both an Australian and Croatian pension.

34.     On the last occasion which is the one relevant to this claim, Mrs Marincic was notified when it was granted, that her partner allowance would cease on 7 December 2001, if she was still out of Australia, and it was, accordingly cancelled. The relevant sections of the Social Security Act in that regard are sections 1213 with regard to periods of absence from Australia, and section 1217 of the Social Security Act which stipulates that the limit of portability is six months. Therefore, unless the discretion to extend portability of partner allowance is exercised in Mrs Marincic’s favour, pursuant to section 1218C of the Social Security Act, she remains ineligible, and partner allowance is no longer payable from 7 December 2001 unless circumstances change. Such circumstances may include return to being a resident of Australia. Another way may be if the possibility of a transfer to another payment is available (sections 12 and 13 of the Social Security Administration Act). I was satisfied with the submissions of the Respondent that this “deemed” transfer could not take place.

35.     Accordingly I moved to consider whether the discretion to extend portability of partner allowance should be exercised in Mrs Marincic’s favour.

whether the discretion to extend the portability of partner allowance pursuant to section 1218C of the social security act should be exercised in the case of mrs marincic

36. In that regard I have considered section 1218C of the Social Security Act, pursuant to which the Secretary of the Department of Family and Community Services, and therefore the Tribunal standing in the Secretary’s shoes, may extend Mrs Marincic’s portability provided the Secretary or the Tribunal in this case, is satisfied that extreme circumstances such as serious illness exist. I accepted from the evidence and documentation before me that Mr Marincic suffered such illness. It was not in dispute that he suddenly suffered a stroke on 11 December 2001, but Mrs Marincic’s eligibility for partner allowance had ceased before that date, on 7 December 2001, because she was not in Australia. I was satisfied that she had been correctly notified about it, and that she knew the conditions surrounding the eligibility for, and payability of partner allowance.

37.     I noted also that Mrs Marincic was asked what her intentions were with regard to returning to Australia.  I was not satisfied to the requisite standard from her written answers, at T13, and her oral evidence, that she had an intention to do so, at least not unless her husband predeceased her.

38. Therefore as Mr Marincic’s health crisis was suffered after the end of the portability period, the discretion to extend the portability of Mrs Marincic’s partner allowance pursuant section 1218C of the Social Security Act cannot be exercised.

39.     I moved then to consider whether Mrs Marincic was a resident of Australia at the relevant period, as claimed.

whether mrs marincic is a resident of australia pursuant to sections 7(2) and 7(3) of the social security act

40. I was mindful that the issue in Mrs Marincic’s re-application for age pension and partner allowance in May 2002 was whether, taking into account section 29 of the Administration Act in regard to age pension, and section 7771HA of the Social Security Act with regard to partner allowance, she was a resident of Australia at the relevant time. In considering this, I had to apply sections 7(2) and (3) of the Social Security Act.

41.     The concept of “residence” was discussed by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444, who observed that (at 449-450):

“…As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever.  …

Physical presence and intention will co-incide for most of the time.  But few people are always at home.  Once a person has established a home in a particular place …It is important to observe firstly, that a person may simultaneously be a resident in more than one place … and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises.  But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat the place as ‘home’, a change of intention may be decisive of the question whether residence in a particular place has been maintained.

…”

42.     Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177 dealt with temporary absence from home which could, in fact, extend over some length of time, even years.  In that decision, the Tribunal noted the importance of a claimant’s intentions in determining his or her residence. At N184 the Tribunal commented:

“As has been pointed out on a number of occasions (see for example recently Smith’s case (1985) 7 ALN N371) subjective considerations are the golden threads that consistently run through the fabric of social security situations.  Having regard to the nature of the questions that have to be answered, this is not surprising.  Subjective considerations (like pain) are real and tangible and can be proved like any other fact.  Where they depend upon the word of the person most closely affected, satisfactory proof usually involves corroboration by objective facts.  The absence of those facts, however, does not necessarily mean that the subjective consideration has not been proved.  …”

43. In order to determine whether Mrs Marincic was an Australian resident, as defined in paragraph 7(2)(a) of the Social Security Act, at May 2002, I addressed the criteria in paragraphs 7(3)(a)-(f).

“(a)     the nature of the accommodation used by the person in Australia”

44.     There was no dispute between the parties, and I accepted that Mr and Mrs Marincic sold their house in Australia in 1997, and subsequently purchased a house in Croatia. Mr and Mrs Marincic sent a significant number of items of household furniture over to Croatia in a shipping container, evincing the intention of a long term stay. I accepted the evidence that the couple contributed $40,000 to the costs of their son’s home, and that they lived with him while they at first took an extended holiday in  Croatia, and then moved there. I noted however that the contribution was in a the nature of a gift, and that neither Mr and Mrs Marincic have title to the home.

45.     The couple had already travelled to and from Croatia a number of times from 1997, and Mrs Marincic returned to Australia again in May 2002.

46.     I accepted the evidence that Mrs Marincic stays with her sons and other relatives on her return to Australia, and that notwithstanding her statement that should her husband die, she would return to Australia, Mrs Marincic had no plans regarding any other housing arrangements.

47.     I was satisfied that Mrs Marincic is a welcome visitor in her son’s home, but there was no indication this was a permanent arrangement or that she had any medium to long term intention of returning to Australia. Indeed she gave evidence that she had been married to Mr Marincic for 45 years, and needed to be with him.

“(b)     the nature and extent of the family relationships the person has in Australia”

48.     I accepted Mrs Marincic has two sons, grandchildren whom she loves and misses, and another relative in Australia. She gave evidence of friends who visit at Christmas in Croatia, but there was no mention of other friends or people with whom she visits in Australia.

“(c)     the nature and extent of the person’s employment, business or financial ties within Australia”

49.     I accepted that Mrs Marincic has two bank accounts in Australia, and a joint bank account with her husband in Croatia.  I accepted that she does not have any business or employment ties within Australia. 

“(d)     the nature and extent of the person’s assets located in Australia”

50.     I accepted that Mrs Marincic had contributed $40,000 to the purchase of her son’s house which is not in her name. She has no assets in Australia, and I find from the evidence before me that the couple’s assets are in Croatia where they have bought a home, and where they sent a container of goods when they left Australia in 1998.

“(e)     the frequency and duration of the person’s travel outside Australia”

51.     Mr Marincic submitted that notwithstanding his mother had recently spent more time out of Australia and in Croatia, the Tribunal should take into account, the couple had spent from 1970 until their departure in 1997/8 living and working here. I accepted that submission, noting however the intention of Mr Marincic in a statement to Centrelink:

“I Ivan Marincic … wish to state that I will be going overseas to Croatia indefinitely. I understand that I will not have my payment affected for six months. … I will leave Australia on the 8^th of June 2001. I wish to advise that my wife Jelena will be accompanying me but she is only staying overseas temporarily. We understand that she can only paid for six months.”

52.     I was mindful also that Mrs Marincic had spent a great deal of time in Croatia since their relocation from Australia.

53.     I noted also at T13/27, an application for age pension dated May 2002 in which Mrs Marincic had had replied “No” to Question 12 “Are you living permanently in Australia?” and ticked “Yes ASAP” in reply to Question 14 which was “Do you plan to leave Australia?”  This was the clear expression of an intention to depart Australia and live elsewhere.

“(f)      Any other matter relevant to determining whether the person intends to remain permanently in Australia”

54. I was satisfied of Mrs Marincic’s intentions to live in Croatia with her husband, and noted that after selling their house, they shipped their belongings there. Mr Marincic has been ill and there is no question from the above points I have noted in relation to sections 7(2) and (3) of the Social Security Act, that the couple intend to continue to make their home in Croatia, and that Mrs Marincic is accordingly not a resident of Australia. Therefore I was satisfied to the requisite standard that Mrs Marincic was, at the relevant date, not eligible for age pension or partner allowance and it was not payable.

DECISION

55.     The decision of the Respondent to cancel Mrs Marincic’s partner allowance effective 7 December 2001 because she had been out of Australia for 26 weeks was the correct and preferable decision, and I affirm it.

56. The decision of the Respondent dated 29 April 2002 (T12) which held that the discretion to extend portability provisions for partner allowance pursuant to section 1218C of the Social Security Act would not be exercised in Mrs Marincic’s favour was the correct and preferable decision, and I affirm it.

57. I find that Mrs Marincic was, pursuant to section 7(2) and (3) of the Social Security Act, not an Australian resident at the relevant time, and that the refusal of grant of partner allowance and age pension to Mrs Marincic on 5 June 2002 (T16) as affirmed by the decisions of the ARO of 8 July 2002 (T20), and 30 August 2002 (T26), and the SSAT (T2), were accordingly the correct and preferable decisions, and I affirm them.

58.     Mrs Marincic did not qualify for age pension or partner allowance at the relevant time pursuant to the legislation, and it is not payable.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of

Senior Member G Ettinger 

Signed:         .......................................................................................
  Associate

Date/s of Hearing23 July 2003 & 22 January 2004

Date of Decision  18 February 2004

Applicant  Self Represented    
Advocate for the RespondentMs M Buckley