Msallam and Secretary, Department of Social Services (Social services second review)
[2024] AATA 2082
•27 June 2024
Msallam and Secretary, Department of Social Services (Social services second review) [2024] AATA 2082 (27 June 2024)
Division: GENERAL DIVISION
File Number: 2023/5545
Re:Mohammed Msallam
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:27 June 2024
Place:Sydney
The reviewable decision dated 18 July 2023 is affirmed.
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Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability period of 28 days – period of absence from Australia – whether an extension of the portability period in certain circumstances could be permitted due to applicant’s circumstances – reviewable decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Cacoroski and Secretary, Department of Social Services [2017] AATA 1277
SECONDARY MATERIALS
Department of Social Services, ‘Social Security Guide’ Guides to Social Policy Law
OCHA, Movement in and out of Gaza: update covering August 2022 (website, 26 September 2022) < FOR DECISION
Mrs J C Kelly, Senior Member
27 June 2024
Introduction
Mr Msallam left Australia on 30 June 2022. His disability support pension (DSP) was suspended from 28 July 2022 to 12 October 2022 because he was outside Australia longer than the DSP portability period of 28 days. He was in Gaza, one of the two Occupied Palestinian Territories. His evidence raised several circumstances that prevented him from leaving Gaza: a siege, border closures and military incidents with Israel, his step-father’s death and his own mental health.
The question to be decided is whether the portability period should be extended given the circumstances Mr Msallam faced. The reviewable decision was made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 18 July 2023.
Relevant legislation
The provisions in relation to the portability of social security payments are found in Division 2, Part 4.2 of the Social Security Act 1991 (Cth) (the Act).
Government policy set out in the Social Security Guide (the Guide) is also relevant and should be applied in the absence of cogent reasons to not follow such policy.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Subsection 1215(1) of the Act has the effect in this case that Mr Msallam has a right to continue to receive DSP throughout his maximum portability period. Section 1217 of the Act has the effect that his maximum portability period is a ‘total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving (DSP)’.
Section 1218C of the Act permits the extension of the portability period in certain circumstances:
…
(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;
…
(i) social or political unrest in the country in which the person is located;
…
(k) a war in the country in which the person is located.
The event must have occurred or begun during the period of absence (subsection 1218C(2) of the Act) (emphasis added).
Section 80 of the Social Security (Administration) Act 1999 (Cth) provides for the cancellation or suspension of DSP paid to a person who does not qualify.
Facts
Mr Msallam’s DSP has been previously suspended in 2008 and 2014 because he was overseas and exceeded the portability period. On one occasion in 2009 it was cancelled because he was overseas.
On 17 June 2022, Mr Msallam contacted Centrelink inquiring about portability. The Centrelink records show that he said that he was travelling to the State of Palestine on 30 June 2022 and will return on 1 August 2022. He was travelling to care for his seriously ill step father.
Mr Msallam departed Australia on 30 June 2022. He entered the Gaza strip from Egypt on 5 July 2022. He provided screenshots of visas with no translations. He stated that they showed his visa entry into Egypt at Cairo airport on 2 July 2022 and the entry date ‘Rafah border Palestine on 5 July 2022’. One stamp appears to relate to entry to Egypt at Cairo and the other has the words ‘Egypt’, ‘Rafah and ‘Departure’, and the number ‘28’.
He provided screenshots of text messages which he said were from the company he used to arrange transport from Cairo to Rafah and return, B. Travel. One dated Tuesday, 5 July 2022 includes a copy of another message from ‘eservice.moi.gov.ps’ addressed to Mr Msallam:
Your exit date will be on Tuesday the 02/08/2022 Ticket number 503370
The next message from the same sender was dated 2 August 2022. It included the following further information from ‘eservice.moi.gov.ps’ addressed to Mr Msallam:
Due to hard circumstances of ongoing clashes and the safety of human lives the estimated date for the exit to the Rafah border might be between 2/8/2022-1/11/2022.
It included the same ticket number.
Mr Msallam returned to Australia on 13 October 2022. He claims that the first day that he was able to leave Gaza was just before he returned to Australia, about 11 or 12 of October. He provided no corroborative evidence, such as text messages or emails advising him of the date he could leave.
He returned 15 weeks after he had departed Australia and 11 weeks after 28 July 2022. He contacted Centrelink on the same day he returned, requesting payment be restored, which it was. He said that his father had passed away during the trip. Another record states that he requested an extension because of political/social unrest, or war.
On 14 October 2022, Mr Msallam advised Centrelink that he wished to appeal and advised that the family member who had passed away was his father in law.
Mr Msallam provided Centrelink with written statements on 13 December 2022, 23 December 2022 and 10 January 2023.
The authorised review officer (ARO) rang Mr Msallam on 20 January 2023 to ask when his step-father passed away. In his first statement Mr Msallam claimed that his step-father had died before he left Australia. In his second he claimed that he passed away the same day his name was called to exit the border, 30 July 2022. Mr Msallam told the ARO that his step-father died on 30 July 2022 and that the first letter was a mistake. English is not his first language.
Mr Msallam’s evidence
Mr Msallam lives alone in Australia and suffers from anxiety and depression. He returns to Gaza to see his extended family for emotional reasons. His visit in 2022 was his first for several years.
Mr Msallam told AAT1 the following. He was aware that his DSP would be stopped if he was outside Australia for more than 28 days but he wanted to see his family. Centrelink told him that any delay could be dealt with on his return. The border crossing into Gaza is complicated and difficult to get through. There are three check points: Egyptian, Israeli and Palestinian. When he entered, he applied to leave on 30 July 2022 but because of military incidents with Israel, the first time he could leave was 13 October 2022. He has suffered financial loss and is having financial difficulties. He asked a friend to prepare the statements he had provided to Centrelink and had not checked them.
In his application for review of the AAT1 decision, Mr Msallam claimed that his documentation was translated incorrectly by a friend. There were border restrictions, war and siege. He experienced fear, death, traumatisation, anxiety, stress and depression.
Mr Msallam provided reports from his General Practitioner (GP) dated 27 July 2023 and his psychologist whom he consulted from 11 July 2023. He said that he had sent the GP’s letter in error. He only meant to send the psychologist’s report dated 12 August 2023 which stated that Mr Msallam had attended four sessions. He had reported symptoms of depression, stress, anxiety, grief and loss. He also suffers from complex Post Traumatic Stress Disorder.
He gave the following oral evidence in this proceeding, He knew Gaza was not stable. He missed his family all the time. He cannot live there all the time because it is so scary and he experiences psychological problems. He is lonely here. It was hard to go there but they are not allowed to come here. He had applied for 50 visas for family members without success. His mother cried when he called. She wanted to see him. He had to go. He blamed the war in Gaza for not departing from there.
During cross-examination he explained that he arrived in Egypt during a holiday period. It is a six hour journey by taxi from Cairo to Rafah but it took him three or four days to get through the checkpoints into Gaza. He had a one way ticket. Egypt limited the number of people leaving. You cannot say that you will leave when you want to. It is up to the Egyptian authority. It is a long wait. You have to register your name, with or without a war.
Mr Msallam said the following about when he had asked to leave Gaza. He said that he wanted to leave in three or four weeks; that he had planned to leave on 30 July; and that he had requested earlier dates from 25 July. He did not want to stay 15 days. He wanted to stay with his family as long as he could before his pension ceased. He took the date Centrelink told him. He meant to arrive in Australia on 1 August. He might have miscalculated. He was told one month, four weeks. His understanding was that was from 30 June to 30 July.
He agreed that he was experienced travelling to the Gaza Strip but said that he used to exit through the Israel border, which was easier. He used to choose the day he travelled. He said that the situation was changeable.
When asked about his step-father, Mr Msallam said that he had passed away before he arrived and he was not the reason he returned. He wanted to see his siblings and his mother. The reason he could not leave on 30 July 2022 was the war in Gaza. He described what happened. He said that the violence started on 5 July 2022. Later he said that he had not said that his step-father had passed away before he arrived. He seemed to say that he stayed because of his step-father’s death.
During his oral submission, Mr Msallam said that a lot of people were dying in Gaza every day, with or without being under siege. It is under occupation. You cannot go where you want to go.
Consideration
Mr Msallam’s intended return date
Mr Msallam’s portability period ended on 27 July 2022. Before he left Australia, Mr Msallam had told Centrelink that he was going to return on 1 August 2022, after the portability period had ended. I accept Mr Msallam’s evidence that he told the officer he spoke to that he could experience difficulties and delays exiting Gaza and that the officer said that would be dealt with on his return.
The text message dated 5 July 2022 shows that from that day when he entered the Gaza Strip, he was on notice that his exit date was 2 August 2022 and therefore he would not be able to comply with his maximum portability period of 28 days, even on his understanding of when he needed to return to Australia.
He claimed in his written statement dated 10 January 2023 and his oral evidence to AAT1 and to this Tribunal that when he entered Gaza he applied to leave on 30 July 2022, which was after his maximum portability period had ended. He provided no evidence, such as emails or text messages, to corroborate that claim.
Mr Msallam may have misunderstood his conversation with Centrelink on 17 June 2022 so that according to his calculation he needed to arrive in Australia on 1 August 2022. However, as he acknowledged, it was not up to him to decide the date he could leave Gaza. His allocated exit date was 2 August 2022. He could not leave on that date for the reasons set out in the text message of that date.
Social unrest/war in Gaza
Mr Msallam’s claim that political or social unrest or war in Gaza prevented his leaving Gaza pursuant to subsection 1218C(1)(i) and (k) of the Act is not supported by the evidence.
The report of the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) – Protection of Civilians occupied Palestinian territory¸ … Highlights from the reporting period 28 June – 18 July 2022 does not establish that there was a war in Gaza during that period.
The OCHA report Movement in and out of Gaza: update covering August 2022 was cited by the Respondent. It states:
On 2-7 August 2022, the Israeli authorities closed their border with Gaza, citing security concerns, blocking any movement of people or goods; an escalation of hostilities took place on 5-7 August.[2]
[2] OCHA, Movement in and out of Gaza: update covering August 2022 (website, 26 September 2022) < >
A report dated 25 October 2022 about Amnesty International’s ‘new research briefing’ is about Israel’s three day ‘pre-emptive’ military offensive launched on the Gaza strip on 5 August 2022 and ending on 7 August 2022.
I accept that from 2 to 7 August 2022 Mr Msallam would not have been able to leave Gaza because of the Israeli military offensive and closed borders.
The evidence does not reveal why Mr Msallam did not leave Gaza after 7 August 2022 until about 11 October 2022. It does not support his claim that about 11 October 2022 was the first opportunity he was able to leave Gaza. The text message of 2 August 2022 reflects the situation on that day. Circumstances changed after 7 August 2022. He provided no contemporaneous evidence about circumstances from 7 August 2022 to 11 October 2022.
I accept the Respondent’s contention that Mr Msallam had not made arrangements to leave Gaza before his portability period had ended. The events from 2 to 7 August 2022 did not commence during his portability period.
Quite properly, given the facts in this case, the Respondent comprehensively addressed the issue of whether the event preventing a person’s return to Australia is required to have occurred or begun during the person’s portability period. I agree with the conclusion of Member Parker in Cacoroski and Secretary, Department of Social Services [2017] AATA 1277 that ‘the period of absence in subsection 1218C(2) is synonymous with or limited to the portability period and does not extend to the entire period during which the person is absent from Australia’.
Therefore a discretionary extension of portability cannot be given in this case.
If that conclusion were wrong and it was open to me to grant the extension of portability because of events from 2 to 7 August 2022, I would not do so because there is no reliable contemporaneous evidence that Mr Msallam was prevented from leaving Gaza after 7 August 2022 until about 11 October 2022.
His step-father’s death/illness
Mr Msallam distanced himself from the written statements that he had provided to the Tribunal, saying that they had been poorly translated by a friend. The contradictory references to his ill relative as stepfather, father and father-in-law may be the result of poor translating or that English is his second language. I give no weight to those inconsistencies.
It was only at the end of his oral evidence that he seemed to claim that his step-father’s death was a reason for him not departing Gaza on 30 July 2022.
It was clear from 5 July 2022 that the earliest date he could exit Gaza was 2 August 2022. He was never going to leave Gaza on 30 July. He would not have received the call to leave Gaza on that day as one version of the written evidence claims. Given the inconsistent evidence about when his step-father died and the lack of reliable corroborative evidence, I am not satisfied that his step-father died on 30 July 2022. I give no further consideration to this claim.
Mr Msallam’s mental health
A further matter was faintly raised by the evidence. That is, that Mr Msallam’s mental health was a reason he could not leave Gaza. This was related to his reaction to the death of his step-father.
I am not persuaded that Mr Msallam’s mental health prevented him from departing Gaza as a consequence of his step-father’s death or for any other reason. For the reasons I have given I am not satisfied that his step-father died on 30 July 2022, which is the factual basis for the claim that Mr Msallam’s mental health prevented him leaving Gaza on 30 July 2022. Importantly, there is no contemporaneous psychological or medical evidence about Mr Msallam’s mental health condition at the end of July 2022.
Conclusion
I am not satisfied that the portability period should be extended given the circumstances Mr Msallam faced.
Decision
The reviewable decision dated 18 July 2023 is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 27 June 2024
Date of hearing:
18 April 2024
Applicant:
By Telephone
Solicitors for the Respondent:
Mr B Hearnden, Hunt & Hunt Lawyers
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