Msallam and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr Msallam against a decision to affirm the cancellation of his Disability Support Pension (DSP). Mr Msallam had been overseas in the State of Palestine and had exceeded the standard 28-day portability period for his DSP. He had previously had his DSP suspended or cancelled on multiple occasions due to extended absences from Australia. The dispute centred on whether the circumstances of his absence from Australia warranted an extension of the portability period.

The legal issues before the court were whether Mr Msallam qualified for an extension of the portability period for his DSP, and if so, on what grounds. Specifically, the court had to consider whether the events preventing his timely return to Australia, namely social unrest, war, and the death of his step-father, constituted valid reasons for an extension under the relevant provisions of the *Social Security (Administration) Act 1999* (Cth). The court also had to determine whether any such events needed to have occurred or commenced during the initial portability period.

The Senior Member found that Mr Msallam's intended return date of 1 August 2022 was already beyond the 28-day portability period, which ended on 27 July 2022. While acknowledging that Mr Msallam had informed Centrelink of potential difficulties in leaving Gaza, the court found no reliable contemporaneous evidence to support his claim that he was prevented from leaving Gaza after 7 August 2022 until his return on 13 October 2022. The court accepted that an Israeli military offensive and border closures between 2 and 7 August 2022 would have prevented his departure, but these events did not commence during his portability period. Furthermore, the court found the evidence regarding the death of his step-father to be inconsistent and lacking corroboration, and therefore not a basis for extending the portability period. The court applied the principle that the period of absence relevant to subsection 1218C(2) of the Act is limited to the portability period itself, not the entire duration of absence.

Consequently, the Senior Member was not satisfied that the portability period should be extended. The reviewable decision dated 18 July 2023 was affirmed.