MUSTAPHA ZREIKA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 385

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0388

GENERAL ADMINISTRATIVE DIVISION		)
Re		MUSTAPHA ZREIKA

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date24 May 2010

PlaceSydney

Decision The decision under review is affirmed.

....................[sgd].........................

S E Frost
  Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability period – whether applicant entitled to an unlimited portability period – whether applicant “terminally ill” – whether applicant would be absent from Australia permanently – decision affirmed

LEGISLATION

Social Security Act 1991 – ss 1217, 1218AA

REASONS FOR DECISION

24 May 2010 Mr S E Frost, Senior Member       

Introduction

1.      Mustapha Zreika is on the disability support pension (DSP).  He is 47 years old.  He has lost both his legs to Buerger’s disease, a vascular condition that is gradually eating away the extremities of his limbs.  He relies on a wheelchair to get around.  He suffers pain and swelling to various parts of his body.  One of his doctors says that an optimistic assessment is that Mr Zreika’s life expectancy is no more than 10 years.

2.      Sydney’s humid climate is not good for Mr Zreika.  He says it makes his pain worse and encourages infections.  He can bear the climate for a few months but then he needs relief.  He travels to Lebanon, where he was born, and where he says both the climate and the medical treatment he gets are better than in Australia.

3.      When he travels to Lebanon he continues to receive the DSP, but only for 13 weeks at a time.  He wants to be able to stay in Lebanon for more than 13 weeks and to continue to receive the DSP.  In July 2008 he asked Centrelink for an extension of what is called the “portability period”.  That request was refused.  Having been unsuccessful in his appeal to the Social Security Appeals Tribunal, he now asks this Tribunal to review the decision.

The issue

4.      The issue is whether, in July 2008, there were grounds to extend the DSP portability period beyond the normal period of 13 weeks.

5. The answer depends on s 1218AA of the Social Security Act 1991 (the Act).  That section allows the Secretary (or, on review, the Tribunal) to determine that a person’s DSP portability period is an unlimited period (rather than the 13 weeks specified by s 1217) if five circumstances exist.  The Secretary accepts that three of those circumstances existed at the relevant time – namely, that Mr Zreika was severely disabled, that he was receiving DSP, and that the purpose of Mr Zreika’s absence from Australia was to return to his country of origin.  But there are two additional circumstances that needed to exist but, according to the Secretary, did not exist in Mr Zreika’s case.  Those circumstances are:

·that Mr Zreika was terminally ill; and

·that Mr Zreika’s absence from Australia was or would be permanent.

The first issue – terminally ill?

6.      The Act does not contain a definition of the expression “terminally ill”.  The expression is generally understood to mean that an illness suffered by a person is likely to result in the person’s death.  There is no particular time limit within which death must be expected to occur.  The Centrelink publication Guide to Social Security Law suggests that a terminal illness is one where life expectancy is less than two years, although, as will become clear, I do not have to decide whether or not that is a reasonable policy statement.

7.      In response to Mr Zreika’s request for an unlimited portability period, Centrelink sent him a questionnaire (the July 2008 questionnaire).  In answer to a question “Do you suffer from a terminal illness and are expected to live for less than 2 years?” he answered “Do not know”.

8.      He also provided a “Medical Certificate” from Dr Wafik Latif dated 23 July 2008 which said:

Suffering from sever [sic] vascular disease with arterial blocking causing bilateral below knee amputation following gangrene.  His disease is progressive and can cause further amputations.  [H]e is wheelchair bound and on multiple medications.  He is not fit for work on a permanent basis.  His prognosis is guarded.

9.      The only other relevant medical opinion available to the Tribunal is expressed in a letter dated 20 April 2010.  It was prepared by Dr Ziad Koleilat, one of Mr Zreika’s doctors in Lebanon.  This letter says, among other things:

The life expectancy does not exceed ten years if we will be very optimistic.

10.     Neither Dr Latif nor Dr Koleilat expresses an opinion, either in July 2008 or now, that Mr Zreika is terminally ill.  On the material before me, I find that Mr Zreika was not terminally ill in July 2008.

The second issue – permanent absence from Australia?

11.     The question is whether Mr Zreika planned, in July 2008, to be absent from Australia permanently. 

12.     In the July 2008 questionnaire, Mr Zreika was asked the question “Are you leaving Australia to live overseas permanently?”  He ticked the box marked “No”.  To the follow-up question, “If NO, how long are you planning to be overseas?” he answered “2 years”.

13.     Those answers dispose of the second issue, and accordingly I find that it was not the case in July 2008 that Mr Zreika’s intended absence from Australia was or would be permanent.

14.     Mr Zreika also told me during the hearing that the reason why he wants to be paid the DSP for more than 13 weeks is that “I need time to be treated.  That’s all I need.”  That statement is not consistent with an intention, even now, to be absent from Australia permanently.

Conclusion

15. Two of the five required circumstances in s 1218AA of the Act did not exist in July 2008. It follows that Centrelink’s decision not to give Mr Zreika an unlimited DSP portability period was correct.

Decision

16.     The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member.

Signed:         ...............[sgd].................................................................
  Associate

Date of Hearing  17 May 2010
Date of Decision  24 May 2010
Applicant self-represented
Appearance for the Respondent       Ms P Lee, Centrelink Legal Services