Meilak and Department of Family and Community Services

[2000] AATA 721

DECISION AND REASONS FOR DECISION [2000] AATA 721

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/19

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JASON MEILAK    
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date18 August 2000

PlaceHobart

Decision      The decision under review is affirmed.             
  ..............................................
  Part-Time Member
CATCHWORDS
Social Security – disability support pension – applicant overseas – Australian working life residence.
Social Security Act 1991 – ss.9(1), 1210(1), 1210-A1, 1210-B1

REASONS FOR DECISION

18 August 2000      Ms A F Cunningham (Part-time Member)   

1. An application has been made for the review of a decision made by a Centrelink officer on 1 July 1999 which rejected the applicant's claim for a disability support pension.   The decision was affirmed by an authorised review officer on 19 January 1999 and by the Social Security Appeals Tribunal (SSAT) on 11 January 2000.

2. The Tribunal was asked to determine the application on the basis of the written material before it, the applicant currently being a resident of Malta.

3. The Tribunal had before it the 'T' documents which were submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.  

4. The request for appeal was lodged on behalf of the applicant's mother, Grace Meilak, by letter dated 25 January 2000.   The grounds for appeal as contained in that letter are; firstly that Mrs. Meilak does not believe that the respondent is fully aware of her son's condition; secondly that her son was born and raised in Australia and treasures his Australian citizenship and passport, and fails to understand why he is not afforded the protection by the Australian Commonwealth in the form of a pension; thirdly that the applicant is unable to work and live a full life and that his mother is concerned for his future wellbeing; and fourthly how a proper decision can be made in view of the fact that the applicant's file was culled by the respondent Department.   These grounds are essentially the same as those raised before the SSAT.

5. There appears to be no dispute as to the following facts that the applicant is currently an Australian citizen and was born in Australia on 6 June 1987; that he left Australia on 25 December 1989 and currently resides in Malta; that the applicant's claim for a disability support pension was made in May 1999. 

6. The decision to reject the applicant's claim for a disability support pension was made on the basis that he had not resided in Australia after turning 16 years of age.

7. The decision was made pursuant to the legislation contained in the Social Security Act 1991 ("the Act") and the provisions of the Reciprocal Agreement on Social Security between Australia and Malta.

8. Article 8 of the Reciprocal Agreement contained in Schedule 7 of the Act states that where an Australian benefit is payable by virtue of this agreement or otherwise to a person who is outside Australia, the rate of the benefit shall be determined according to the legislation of Australia.

9. The applicable legislation is that contained in the Act, s.1210(1) of which reads:

   "1210(1)  If:

   (a)a social security payment is payable to a person under a scheduled international social security agreement; and

   (b)the person is outside Australia; and

   (c)the agreement provides for the rate of the social security payment to be determined according to Australia's social security laws;

   the rate of the social security payment is to be worked out in accordance with the International Agreement Portability Rate Calculator at the end of this section."

1. The International Agreement Portability Rate Calculator is set out at s.1210-A1 and states that in calculating a person's international agreement portability rate "the person's Australian working life residence in Australia using Module B"  is to be calculated and the result is "the residence period".    Section 1210-B1 prescribes that the person's working "is the period beginning when the person turns 16 and ending when the person reaches pension age."

2. A person's working life residence as referred to in Module A is according to s.1210-B1 "the number of months in the period, or the aggregate of the period, during the person's working life during which the person has, up to that time, been an Australian resident".

3. The evidence before the Tribunal is that the applicant left Australia before reaching 16 years of age and thus could not have accumulated a period of working life residence in Australia in accordance with the applicable legislation.

4. Nothing in the legislation authorises this Tribunal to depart from applying the provisions of the above legislation. As the applicant has no working life residence in Australia in accordance with the applicable Modules, his rate of payment accordingly would be nil. Section 98(2) of the Act provides that a disability support pension is not payable to a person if the payment rate would be nil.

5. In the grounds of appeal the applicant's mother on her son's behalf, expressed her concern at learning that her son's file had been "culled".   The material in the 'T' documents suggests that the file contained details and information in relation to the applicant's medical condition which is not in issue in these proceedings.   This Tribunal has not been required to consider the applicant's level of disability which does not appear to be in dispute.

6. The Tribunal has determined that the applicant is not qualified to receive a disability support pension on the grounds that he does not meet the requirement of a working life residence in Australia in accordance with the legislative provisions.

7. This Tribunal accordingly affirms the decision under review and dismisses the appeal.

I certify that the 17  preceding paragraphs are a true copy of the reasons for the decision herein of  Ms A F Cunningham 

(Part-time Member)

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing     Overseas Application – matter decided on the papers.

Date of Decision           18 August 2000