Mutemaringa and Secretary, Department of Social Services (Social services second review)
[2022] AATA 73
•21 January 2022
Mutemaringa and Secretary, Department of Social Services (Social services second review) [2022] AATA 73 (21 January 2022)
Division:GENERAL DIVISION
File Number(s): 2018/3133
2018/3136
Re:Lucia Mutemaringa
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member M East
Date:21 January 2022
Place:Perth
The Reviewable Decision, being the decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 17 May 2018, which affirmed a decision of a delegate of the Respondent, made on 13 October 2017, to cancel the Applicant’s Parenting Payment Single and Family Tax Benefit from 24 May 2017, is set aside and in substitution the portability period for the Applicant’s Parenting Payment Single be extended to 15 November 2018 and the portability period for the Family Tax Benefit be extended to 15 November 2018.
................[Sgd]........................................................
Member M East
CATCHWORDS
SOCIAL SECURITY – parenting payment single – family tax benefit – portability period – whether portability period be extended – where applicant was absent from Australia for approximately two years and five months – serious illness – hospitalisation – mental health issues – portability period extended – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) – ss 1215, 1217, 1217(1), 1217(2), 1218C
Social Security (Administration) Act1999 (Cth) – ss 80, 80(1)
A New Tax System (Family Assistance) Act 1999 (Cth) – ss 22(2), 24(1), 24(4), 24(7)
CASES
Manolev and Secretary, Department of Family and Community Services [2005] AATA 398
Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Mouratidis [2012] FCAFC 29
SECONDARY MATERIALS
Department of Social Services, Guide to Social Policy Law: Social Security Guide
Explanatory Memorandum, Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Bill 2000 (Cth)
REASONS FOR DECISION
Member M East
21 January 2022
THE APPLICATION
The decision under review is a decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 17 May 2018 (the Reviewable Decision), which affirmed a decision of Department of Human Services, now Services Australia (Centrelink), dated 13 October 2017, to cancel the Applicant’s Parenting Payment Single (PPS) and Family Tax Benefit (FTB) from 24 May 2017.
BACKGROUND
The Tribunal agrees with the facts as outlined in the Respondent’s Statement of Issues, Facts and Contentions dated 22 January 2019. These facts are as reproduced below:
4.In 2017, the Applicant was in receipt of PPS and FTB in respect of her two children...
5.On 12 April 2017, the Applicant and her two children departed Australia without notifying the Department of her travel plans (T13, p64).
6.On 22 May 2017, the Applicant's ex-partner reported to the Department that the Applicant had departed Australia and would not be returning to Australia until he had been deported (T17, p82).
7.On 24 May 2017, the Applicant's portability ended and as a result, a decision was made to cancel FTB since she had been absent from Australia for a period of more six weeks. A notice was issued advising the Applicant of the cancellation of her FTB (TS, p45-46). On the same day, a decision was made to suspend the Applicant's PPS for the same reason. A notice was issued regarding her PPS (T4, p43-44).
8.On 27 June 2017, the Applicant advised the Department that she was in Zimbabwe with her two children and residing with her family. She claimed to have left Australia, since her ex-partner had threatened her and her child with violence. She also claimed that she was suffering from depression and undergoing treatment in Zimbabwe with her family however, she was finding it difficult to care for her children as her income support payments had been cancelled (T17, p83).
9.On 23 August 2017, the Applicant's PPS was cancelled with a date of effect of 24 May 2017 under section 80 of the Social Security (Administration) Act 1999 because she had failed to return to Australia (T13, p64).
10.On 2 August 2017, the Applicant requested an extension of her portability on the basis of illness (T17, p85).
11.On 29 August 2017, a delegate of the Secretary decided to affirm the decision not to extend the Applicant's portability period. The reason being that the evidence from the Zimbabwe Hospital did not indicate that the Applicant's unforeseen illness had prevented her return to Australia (T17, p91).
12.On 28 September 2017, the Applicant requested a further review by a Departmental Authorised Review Officer (T17, p95).
13.On 13 October 2017, an Authorised Review Officer affirmed the decision under review (T17, p97-98).
14.On 15 January 2018, the Applicant lodged an appeal to the AAT1.
15.On 17 May 2018, the AAT1 affirmed the decision under review (T2).
16.On 7 June 2018, the Applicant lodged an application for review of decision with the Administrative Appeals Tribunal (AAT) (T1).
(Original emphasis.)
ISSUES
The issues before the Tribunal in this matter are:
(a)whether the maximum portability period for the Applicant’s PPS and FTB was six weeks;
(b)whether the maximum portability period may be extended to cover the period, whole or any part thereof, the Applicant was not in Australia, being from 12 April 2017 till September 2019; and
(c)whether Centrelink has the power to cancel the Applicant’s payments.
TRIBUNAL PROCEEDINGS
This matter originally came before the Tribunal on 8 March 2021. The hearing commenced; however, the Applicant tendered a substantial bundle of documents to the Tribunal. The Respondent was also provided with a copy of those documents. After a brief discussion the parties came to an agreement that it would be appropriate to adjourn the hearing in order to give the Respondent an adequate opportunity to review those documents.
The hearing was resumed on 21 October 2021. The Applicant was represented by her advocate Mr Shadreck Martin Kalongo, and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
The Applicant gave oral evidence at the hearing and was cross-examined by Mr Burgess. Mr Kalongo also gave oral evidence with the help of an interpreter and was cross-examined by Mr Burgess.
The Tribunal had the following material before it:
·Secretary’s Statement of Issues, Facts and Contentions dated 22 January 2019 (Exhibit R1);
·section 37 “T Documents” consisting of T1-T19, pages 1-113 (Exhibit R2);
·report of Dr Brendan Jansen, dated 7 June 2019 (Exhibit A1);
·report of Dr Makamure of Harare Central Hospital, dated 15 November 2018 (Exhibit A2);
·report of Dr Makamure, dated 6 September 2018 (Exhibit A3);
·the Applicant's Statement of Issues Facts and Contentions, dated 5 March 2021 (Exhibit A4);
·medical notes of Dr Khanna, Bentley Plaza Family Practice, recorded on 19 February 2017 (Exhibit A5);
·Initial Accident and Sickness Claim Form, dated 16 December 2020 (Exhibit A6);
·report of Dr Chiripanyanga, Chinhoyi Mall Medical Centre, dated 10 September 2019 (Exhibit A7);
·undated clinical notes from Chinhoyi Mall Medical Centre (Exhibit A8);
·clinical notes dated 21 April 2017, Chinhoyi Mall Medical Centre (Exhibit A9);
·clinical notes dated 14 October 2017, Chinhoyi Mall Medical Centre (Exhibit A10);
·report of Dr Chiripanyanga, Chinhoyi Mall Medical Centre, dated 30 June 2020 (Exhibit A11);
·clinical notes from 15 January 2018 to 15 August 2019, Chinhoyi Mall Medical Centre (Exhibit A12);
·report of Dr Mazhandu, dated 17 September 2019 (Exhibit A13);
·referral letter from Dr Khanna dated 8 October 2019 (Exhibit A14);
·clinical notes, West Care Medical Centre, from 8 October 2019 to 3 January 2020 (Exhibit A15);
·GP Mental Health Care Plan (Exhibit A16);
·Medical Certificate, dated 30 October 2019 (Exhibit A17);
·appointment notification with Dr Carrivick, dated 25 February 2020 (Exhibit A18);
·emails between Applicant and her employer, dated April 2019 (Exhibit A19);
·documents regarding Family Violence Restraining Order dated 16 June 2020 (Exhibit A20);
·marriage documents (Exhibit A21);
·letter from Australian Health Practitioner Regulation Agency (AHPRA), dated 30 August 2017 (Exhibit A22);
·letter of complaint to AHPRA, dated 25 June 2017 (Exhibit A23);
·visa grant notice for Applicant's ex-husband (Exhibit A24);
·flight tickets (Exhibit A25);
·police records (Exhibit A26);
·conduct agreement order, dated 12 August 2021(Exhibit A27);
·letter from Team Leader Child Protection, Department of Communities, dated 18 October 2021 (Exhibit A28);
LEGISLATIVE FRAMEWORK
The relevant legislation before the Tribunal is the:
(a)Social Security Act 1991 (Cth) (the Act);
(b)Social Security (Administration) Act 1999 (Cth) (the Administration Act); and
(c)A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act).
The Tribunal is also able to have regard to the relevant policy contained in the Guide to the Social Security Law (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, (644–5)).
Portability of PPS
Section 1215 of the Act states:
(1)If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
(a)throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
(b)throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.
(2)This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.
(Notes Omitted.)
Section 1217 of the Act defines “maximum portability period”, “allowable absence” and “portability period”. Relevantly, s 1217(1) provides that a person’s maximum portability period for PPS is six weeks for a temporary absence (item 11, column 5 of the table in s 1217 of the Act).
Section 1218C of the Act provides for circumstances where a person’s portability period may be extended:
(1)The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(a)a serious accident involving the person or a family member of the person;
(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;
(e)the person’s involvement in custody proceedings in the country in which the person is located;
(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)a natural disaster in the country in which the person is located;
(i)political or social unrest in the country in which the person is located;
(j)industrial action in the country in which the person is located;
(k)a war in the country in which the person is located.
(2)The Secretary must not extend the person’s portability period under subsection (1) unless:
(a)the event occurred or began during the period of absence; and
(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
Portability of FTB
Section 22(2) of the FA Act provides:
Individual aged under 16
(2)An individual is an FTB child of the adult if:
(a)the individual is aged under 16; and
(b)the individual is in the adult’s care; and
(c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
(Original emphasis.)
Section 24(1) of the FA Act states:
Absence from Australia of FTB or regular care child
(1)If:
(a)any of the following applies:
(i) an FTB child leaves Australia;
… and
(b)the child continues to be absent from Australia for more than 6 weeks;
during that absence from Australia, the child is neither an FTB child, nor a regular care child, at any time after the period of 6 weeks beginning on the first day of the child’s absence from Australia.
Section 24(4) of the FA Act states:
Maximum period of eligibility for family tax benefit while individual overseas
(4)If an individual leaves Australia, the maximum period for which the individual can be eligible for family tax benefit during that absence from Australia is the period of 6 weeks beginning on the first day of that absence.
Section 24(7) of the FA Act provides that the six-week period may be extended in certain circumstances:
(7)The Secretary may extend the 6‑week period (the initial period) referred to in subsection (1) or (4), to a period of no more than 3 years, if the Secretary is satisfied that the child mentioned in subsection (1), or the individual mentioned in subsection (4), (in each case, the person) is unable to return to Australia within the initial period because of any of the following events:
(a)a serious accident involving the person or a family member of the person;
(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;
(e)the person’s involvement in custody proceedings in the country in which the person is located;
(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);
(g)robbery or serious crime committed against the person or a family member of the person;
(h)a natural disaster in the country in which the person is located;
(i)political or social unrest in the country in which the person is located;
(j)industrial action in the country in which the person is located;
(k)a war in the country in which the person is located.
(Original emphasis.)
Suspension/cancellation of payment
Section 80(1) of the Administration Act states:
(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);
the Secretary is to determine that the payment is to be cancelled or suspended.
Mr Burgess, in his opening submission to the Tribunal, stated as follows:[1]
The important consideration for the tribunal therefore is firstly whether there was a serious illness of the applicant which meant that because of that serious illness she was unable to return to Australia, or a hospitalisation meant that she was unable to return to Australia. If the tribunal finds that that is the case, that’s not the end of the matter. That only enlivens a discretion to extend the portability period. And that comes out of the use of the word, ‘may’ in the section. If the tribunal is satisfied of those issues, there’s then a prohibition to extending time, which is contained in 1218C(2), and it notes the Secretary – or the tribunal, standing in the shoes of the Secretary – must not extend the portability period unless the event occurred or began during the period of absence.
[1] Transcript, 5.
In response to the Tribunal’s question, Mr Burgess confirmed that it is the Respondent’s contention that the discretion is not enlivened because the Applicant’s circumstances did not meet the criteria to extend the portability period, for either her PPS or FTB.
CONSIDERATION OF THE EVIDENCE
Serious illness or hospitalisation
Was the Applicant unable to return to Australia because of serious illness or hospitalisation? – the oral evidence
The Applicant was questioned by Mr Burgess and when asked if she left Australia on 12 April 2017 because of the abuse by her ex-husband, she responded as follows:[2]
Okay. The abuse was ongoing, right. So, I decided to leave – I went Zimbabwe. So because this man – he was unpredictable. I had to tell him I have to go to my sister’s wedding. So, on that day he was refusing for me to go, so we had to call police. I was supposed to leave on the 11th. He was refusing me to go, and he became so aggressive, and things like that. And the major position is like – because I had sponsored him. So everything was – if we reports to police, I’ll be deported[3] and things like that. That’s what he used to say. So I couldn’t talk, and was involved. So, yes, I left because it was – because police was not doing anything. And, you know, I knew I was going to be killed in that house. So the only place to be safe was home. So I had to go home.
[2] Ibid 10.
[3] The Tribunal notes that the Applicant meant her ex-husband would be deported and not her.
When asked if she was worried about her children, the Applicant said she had already sent one of her children back in 2016 to Zimbabwe because her ex-husband did not like the child as he was not the biological father. The Applicant and her other baby who was her ex-husband’s child went with her to Zimbabwe for protection.
The Applicant further told the Tribunal that she had spoken to her doctor about her mental health issues and depression because her Manager asked her to seek help as it was obvious to her colleagues that she was being abused. She explained that despite her troubled mental state she could not take time off work because she needed her income to support herself and her children. Mr Burgess enquired about her mental health before she left Australia and the Applicant responded as follows:[4]
You know, with stuff like this, being abused, you know, it’s emotionally it would be. So – but I could be able to take care of my children, take care of myself, go to work, do my work. And then that time in April I realised and he was not allowing me to engage with my sisters. You know, he was an ex-soldier. So I just thought if I go to my sisters, what if he follows there and do something. So I had to go home just to get away.
[4] Transcript, 11.
The Applicant told the Tribunal that while she was in Zimbabwe, she started receiving her ex-husband’s phone calls and during the conversations her ex-husband would pretend to be nice and caring, however, soon after he started to be abusive again. At this point, the Applicant’s heath started deteriorating and she got very sick. The Applicant states:[5]
And then my mum need to take me to hospital. And you know, like in Zimbabwe it’s different for me. Even they’ve got money but – and I was – I had Australian passport. So if you’ve got Australian passport, you are treated differently, and you have to pay – you know, they expect you pay a lot of money.
[5] Ibid 12.
The Applicant, in response to Mr Burgess’s question, said that while she was in Zimbabwe, she continued to communicate with the Department of Child Protection (Child Protection). Mr Burgess further enquired whether the Applicant informed Child Protection about her not being able to return to Australia as she was concerned that her ex-husband would recommence abusing her; and whether it was the sole reason, she was unable to return.[6] The Applicant responded that her ex-husband had threatened to kill her and went on to explain as follows:[7]
Because I didn’t feel safe, to be honest. And also – I was not working. I but I could eat, I could, you know, be taken care of. That’s the reason I couldn’t come – because this meant I was still scared of him. Because I didn’t attend any counselling and didn’t follow any, you know, seeing people who can support me. Yes, so I needed time to go home. But things became tougher. Plus he was not even paying child support. He was working, but nothing – even – nothing to support me and the baby.
[6] Ibid 13.
[7] Ibid 14.
Mr Kalongo, the Applicant’s partner and representative also gave evidence at the hearing. Mr Kalonga told the Tribunal that he first met the Applicant in a church in 2017, and at that time he was working for an organisation called “Help to Help” which, he explained, looked after the orphaned and underprivileged children. He further said:[8]
And that gave me cause to have – to pay extra attention when I saw Lucia’s state – looking at her mental state, her instability, wanting to – threaten – you know, suicidal thoughts and suicidal presentation very publicly – like throwing herself in front of cars on occasion, et cetera, out in public. And I really took pity on her, and that was the context of our original meeting and coming together. I was really interested in helping her out, even though I was really helpless to help because any time I tried to present services to her, or give her people that she can talk to, the minute her Australian passport comes up and they realise that she’s come from there, it just instantly became a blockade for us to do something substantive for her.
[8] Ibid 17.
Mr Kalongo further explained the Applicant’s experience from a cultural perspective in Zimbabwe. He said when staff in the hospital realised that she was from Australia, they would be condescending towards her and would hesitate to even help her.
Mr Kalongo said that they tried to get the Applicant to travel back to Australia with South African airlines which he claimed refused to let her travel because of her mental state, particularly with the minor children.[9]
[9] Ibid.
Mr Burgess, in his closing submissions, said that this was the first time this evidence had been given and was not supported by any contemporaneous medical evidence.[10] The Tribunal agrees with this submission.
[10] Ibid 21.
The Tribunal notes that if the Applicant had in fact tried to return to Australia and was denied by the South African airlines, it would be expected that she would have provided evidence of the same at some point during the proceedings.
The Tribunal may have even been persuaded to give greater weight to this evidence if it had come from the Applicant directly rather than during Mr Kalongo’s evidence who was present throughout the Applicant’s testimony.[11] In these circumstances, the Tribunal does not consider this evidence to have any probative value and places no weight on the evidence in its consideration.
Was the applicant unable to return to Australia because of serious illness or hospitalisation? – the medical evidence
[11] Mr Kalongo only advised the Tribunal of his desire to give evidence after the conclusion of the Applicant’s cross-examination.
A report from the Applicant’s general practitioner, Dr Khanna, recorded on 19 February 2017, notes under the psychiatric history “Poor sleep…Depressed mood. Anxious…Relationship problems”. The report also states that the Applicant’s “husband been abusive in the past”.[12] Further, in an “Initial Accident and Sickness Claim Form” dated 16 December 2020, the same general practitioner diagnoses the Applicant with depression and anxiety with a history of domestic abuse.[13]
[12] Exhibit A5.
[13] Exhibit A6.
The Applicant submitted the medical records from Chinhoyi Mall Medical Centre (CMMC) dated 21 April 2017. The records indicates that the Applicant was diagnosed with “Major Depressive Disorder” and states “[h]istory of a stressful marriage with husband being accused of physical and verbal abuse. She ran away from husband and came back to Zimbabwe. She is looking unkempt and visibly depressed and not keen to discuss her condition.” The Applicant was referred to a psychotherapist and family counselling and provided medication.[14] A further report dated 14 October 2017 notes the same diagnosis with minimal improvement.[15]
[14] Exhibit A9.
[15] Exhibit A10.
A treating doctor of CMMC, Dr Chiripanyanga, provided a report dated 30 June 2020. The report mentions that the Applicant was in care of the treating doctor between April 2017 and September 2019. The report further elaborates:[16]
she [the Applicant] presented with a history of depression and anxiety which led her to hopelessness, poor self-esteem, anhedonia and suicidal tendencies. The symptoms were quite severe to such an extent that she couldn’t take care of herself…Considering the extent of the depression and anxiety attacks there was no way [the Applicant] could have possibly returned to work during the period of treatment.
[16] Exhibit A11.
The medical certificates provided by the CMMC from 21 April 2017 to 10 September 2019 further confirm this history.[17]
[17] Exhibit A7; A8; A9; A10; A12.
On 24 April 2017, the Applicant was admitted in Harare Central Hospital, Harare Zimbabwe.[18] A report from the hospital, dated 15 November 2018, Dr Makamure notes that the Applicant had been in and out of the hospital with major depressive disorder for more than a year.[19]
[18] Exhibit A3.
[19] Exhibit A2.
In an earlier report, dated 6 September 2018, Dr Makamure, stated that the Applicant was brought into the hospital with a history of suicidal tendencies and was discharged after one month on 23 May 2017 after a fair improvement. The report indicated that the Applicant’s prognosis had improved significantly despite solitary incidences of relapses which had been triggered by violent triggers, such as post-election violence. He further stated “[w]ith that in mind we estimate that she will be fully fit for fend for herself and children in approximately three to four months”.[20]
[20] Exhibit A3.
A letter from Dr Mazhandu addressed to the Applicant’s superannuation fund, dated 17 September 2019, refers to her medical history and her non-compliance with her medication regime due to the costs involved.[21]
[21] Exhibit A13; presumably the Applicant was seeking a release of some of her superannuation fund in order to fund her medical expenses in Zimbabwe. However, the Tribunal notes that there was no evidence presented before the Tribunal which indicates that the Applicant did request an early release of her superannuation funds.
The Tribunal was also provided with an extract of the Applicant’s medical notes from Dr Khanna for the period 8 October 2019 to 3 January 2020, which indicates that the Applicant was suffering from depression and anxiety during that period.[22] The Applicant was also written up for a mental health care plan which was recorded as completed in October 2019.[23]
[22] Exhibit A15.
[23] Exhibit A16.
Further medical reports were included in Exhibit R2. In a report, dated 31 July 2017, Dr Makamure, the Applicant’s treating psychiatrist at the Harare Central hospital, states that the Applicant is currently ongoing treatment at the hospital and whilst she is making good progress, she has been advised not to travel.[24]
[24] Exhibit R2, 50.
In a report, dated 22 August 2017, Dr Makamure said that as at 22 August 2017, the Applicant was not fit to travel because she needed a “few more sessions of psychotherapy”.[25] In a further report, Dr Makamure stated that as at 11 October 2017, the Applicant had received news of a disturbing nature relating to her social affairs which caused a regression in her progress.[26]
[25] Ibid 53.
[26] Ibid 58.
In a submission, dated 15 January 2018, the Applicant’s previous representative stated that the Applicant’s health was not improving and therefore, the Applicant’s mother decided to consult a different doctor.[27] As a result, the Applicant started seeing Dr Manyuchi who also provided a report dated 6 March 2018 in support of the Applicant.[28] The report stated that she had been his patient at the Parirenyatwa Group of Hospitals for the past four months where they were managing her for major depressive disorder.
[27] Ibid 75.
[28] Ibid 81.
The Tribunal has considered the medical evidence provided by the Applicant. The evidence indicates that the Applicant was admitted into the hospital with a major depressive episode on 24 April 2017 and was discharged on 23 May 2017 after what was described as a “fair improvement”. She continued to attend the hospital for treatments which included medication and psychotherapy. She had several relapses over the subsequent months and was taken to a different hospital by her mother in November 2017.
Was the applicant unable to return to Australia because of serious illness or hospitalisation? – other documentary evidence
The Tribunal notes that the Applicant’s portability period ended on 24 May 2017, which is six weeks after her departure from Australia on 12 April 2017.
The Applicant’s FTB was cancelled, and her PPS was suspended. The Applicant’s payments were cancelled on 23 August 2017 with a date of effect of 24 May 2017 because of her failure to return to Australia.[29]
[29] Ibid 6.
Evidence provided in the form of a Conduct Agreement Order and Police Records[30] demonstrate quite clearly that the Applicant was the victim of domestic abuse. The Tribunal wishes to express its view that the Applicant was a credible witness, and it had no reason to doubt her evidence regarding her domestic circumstances. Comments were made at the beginning of the hearing by Mr Kalongo that the Applicant was viewed in a poor light by the Respondent, and they wanted to clear her reputation in that sense. The Tribunal advised that the way her case was handled was not within its jurisdiction. Having said that, there is nothing to indicate that she was dealt with unprofessionally in her dealings with the Department. Furthermore, the Tribunal wishes to repeat that the Applicant was respectful in her dealings with the Tribunal and presented as an honest, credible and forthright witness.
[30] Exhibits A26; A27.
A report from the Department of Communities (DOC) dated 18 October 2021 was admitted into evidence. The report stated that on 8 May 2017 the Applicant contacted the DOC advising that domestic violence was ongoing and expressing her concerns about returning to Australia. The Applicant advised the DOC that she would not be returning to Australia because her parents had concerns as she did not have enough family support in Australia.[31]
[31] Exhibit A28.
The Applicant contacted the DOC again on 6 June 2017 requesting the contact information for refuges because she was planning on returning to Australia. The report also contained the details of further contact made by the Applicant with the DOC in 2020 which are not relevant for the present purposes. The report further notes that the DOC had registered the Applicant’s ex-husband as being a person of interest in five out of six domestic violence triage incidents from 2016 involving the Applicant.[32]
Was the applicant unable to return to Australia because of serious illness or hospitalisation? – conclusions on the evidence
[32] Ibid.
The Applicant suffered a medical episode and was admitted into hospital on 24 April 2017 and was discharged on 23 May 2017.[33] The medical evidence indicates that the Applicant subsequently had periodic relapses with some further admissions into the hospital. The Applicant was provided with the psychotherapy sessions and adjustments were made to her medication. Having left Australia on 12 April 2017, the Applicant’s portability period ended on 24 May 2017.
[33] Exhibit A3.
In a report, dated 31 July 2017, Dr Makamure stated that the Applicant is making good progress but has been advised not to travel.[34] In a subsequent report, dated 22 August 2017, he further states that the Applicant has made good progress but required psychotherapy sessions and therefore, was unfit to travel.[35] In his later report, dated 6 September 2018, Dr Makamure stated that upon the Applicant’s discharge in May 2017 she had made fair improvement.[36]
[34] Exhibit R2, 50.
[35] Ibid 53.
[36] Exhibit A3.
The report of her treating general practitioner, Dr Khanna, in February 2017 notes a depressed mood with a history of domestic stress. The report stated that the Applicant is “looking for some time off to help her sort out things”.[37]
[37] Exhibit A5.
A report of Dr Jansen, psychologist, dated 7 June 2019 referred to the Applicant as being his patient from 11 September 2015 to 21 January 2016 due to her “recurrent depressive disorder with some co-morbid anxiety symptoms and suicidal ideation”.[38] Furthermore, a report of Dr Mazhandu dated 17 September 2019 stated that the Applicant was first diagnosed with a mental disorder in Australia[39], which suggests that the Applicant had some history of mental health issues prior to leaving for Zimbabwe on 12 April 2017.
[38] Exhibit A1.
[39] Exhibit A13.
The Applicant’s evidence was quite clear and precise that she left Australia to escape her ex-husband who she genuinely feared. The medical evidence also suggests that when she arrived in Zimbabwe, she required hospitalisation due to what seems to have been significant mental health issues including suicide attempts.
The Tribunal does not accept that because the Applicant had depressive symptoms prior to her departure that she was suffering from a serious illness at that time. The evidence indicates that the Applicant was working and caring for her child and left Australia because of domestic abuse and fear. Mental health conditions can bubble along and become significantly worse for a variety of reasons. In this case, the Applicant said she returned to Zimbabwe and the abuse was continuing from her ex-husband online leading to her requiring hospitalisation.
The Applicant was discharged from hospital on 23 May 2017 with her treating doctor Dr Makamure describing her mental health situation as being fairly improved. After this time, the medical evidence suggests that she had some relapses and was said to be triggered by violence unrelated to her (such as election related civil unrest).
In a report, dated 6 September 2018, Dr Makamure, noted that the Applicant had improved significantly from April 2017 to that date following her hospitalisation and described her having solitary incidences of relapses.[40]
[40] Exhibit A3.
In his subsequent report, dated 15 November 2018, Dr Makamure states that the Applicant has been in and out of hospital and was often discharged mainly due to her financial constraints.[41]
[41] Exhibit A2.
Dr Chiripanyanga, the Applicant’s treating doctor at CMMC, stated in his report dated 30 June 2020 that she was in his care from April 2017 to September 2019 and therefore, would have been unable to return to work during the period of her treatment. The clinical notes reflect ongoing symptoms which in the context of her condition is expected.[42] The Tribunal notes that this report appears to have been produced for the purposes of leave from work and not for travel.
[42] Exhibit A11.
The evidence of the Team Leader from DOC, referred in paragraphs [46] & [47] above reflects the Applicant’s state of mind at that time. In her report, dated 18 October 2021, she stated that the Applicant had contacted the DOC on 8 May 2017 and expressed her ongoing concerns about returning to Australia because of the domestic violence and stated that she is not going to return to Australia and will remain in Zimbabwe. On 6 June 2017 the Applicant again made contact to find details of refuges and financial assistance for her return to Australia. This report was produced for the Family Court Counselling Services and the Tribunal is, therefore, confident that it would accurately reflect the contemporaneous records to which it refers.[43]
[43] Exhibit A28.
During their oral evidence, the Applicant and Mr Kalongo stated that the Applicant was discriminated against within the hospital system in Zimbabwe because she had an Australian passport which required her to leave their care. In absence of any direct evidence, the Tribunal has no way of testing this evidence and is not satisfied that the Applicant was in fact discriminated against in Zimbabwe just because she is an Australian citizen. On the contrary, the medical evidence suggests that the Applicant continued to receive care and treatment in the form of psychotherapy and medication for a significant period of time from that same hospital as well as a different hospital at a later time in Zimbabwe.
The Tribunal finds the evidence overwhelmingly and consistently refers to the Applicant’s ongoing mental health issues and her inability to work and/or care for herself and her children. There are repeated references to her being unable to travel from a variety of medical practitioners. The fact that she contacted the DOC about returning to Australia and expressed fear regarding her ex-husband is not sufficiently persuasive of her medical capability to do so.
The Tribunal is cognisant of the fact that mental health conditions do not necessarily improve in a linear fashion. The reality is that the Applicant may have been progressing well prior to and after her discharge from hospital and then suffered further relapses. The submission from her previous representative stated that she was being reviewed weekly by the doctors at the hospital. This submission was dated 4 September 2017 and therefore represents relatively contemporaneous evidence of her conditions during 2017.[44]
[44] Exhibit R2, 54.
The Tribunal therefore finds that the Applicant was unable to travel during the relevant period because of her serious illness and hospitalisation and that the event occurred or began during her period of absence.
CONCLUSION
Serious illness or hospitalisation
The Applicant was discharged from hospital the day before her portability period ended. The question therefore is whether she was still suffering from a “serious illness” after her discharge.
Both s 1218C of the Act and s 24(7) of the FA Act refers to the inability to return because of certain specified “events” one being “serious illness”.
As noted by Dr Staer in the matter of Manolev and Secretary, Department of Family and Community Services[45], the Explanatory Memorandum to the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Bill 2000 (Cth) which introduced s 1218C explained that, ‘[t]his Section provides a discretion for the Secretary to extend a person’s portability period where the person finds him or herself in any of the grievous circumstances listed in the Section’.[46]
[45] [2005] AATA 398.
[46] Ibid [29].
“Serious illness” is not defined in the Act but there is some suggestion that it implies a specific unexpected event with a limited timeframe.[47]
[47] Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194.
The Tribunal finds, based on the medical evidence provided, that the Applicant continued to suffer from a serious illness after she was discharged from the hospital.
Was the Applicant unable to return to Australia?
In the Federal Court’s decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Mouratidis,[48] when considering whether the applicant is unable to return, Gray J stated that a “[p]ractical inability to return, owing to the circumstances created by the event, will be sufficient”.[49]
[48] [2012] FCAFC 29.
[49] Ibid [32].
In his reports, dated 15 January 2018, 8 March 2018, 28 July 2018 and 2 August 2018, Dr Chiripanyanga reports the Applicant as still being depressed and anxious with suicidal tendencies. However, in his later report dated 15 January 2019, he described the Applicant as being in a brighter mood.[50]
[50] Exhibit A12.
A report from Dr Makamure, dated 6 September 2018, notes the Applicant’s “general” improvement with sporadic episodes of relapsing. He stated that she had improved significantly from April 2017 and estimated her being fully fit and recover within three to four months.[51]
[51] Exhibit A3.
Further, in his later report, dated 15 November 2018, Dr Makamure stated it was his strong recommendation that the Applicant return to Australia.[52]
[52] Exhibit A2.
The Tribunal, therefore, in light of the medical evidence, finds that on and from 15 November 2018, the Applicant was medically fit for travel and practically able to return to Australia.
The Tribunal therefore finds that the Applicant’s situation does fall within the circumstances contained under s 24(7) of the FA Act and s 1218C of the Act.
The discretion to extend the Applicant’s portability period is therefore enlivened.
As found above, the Tribunal is satisfied that the Applicant’s serious illness arose after her departure from Australia, and it is appropriate to extend the portability period.
DECISION
The Reviewable Decision, being the decision of the Social Services & Child Support Division of Administrative Appeals Tribunal dated 17 May 2018, which affirmed a decision of a delegate of the Respondent, made on 13 October 2017, to cancel the Applicant’s PPS and FTB from 24 May 2017, is set aside and in substitution the portability period for the Applicant’s PPS be extended to 15 November 2018 and the portability period for the FTB be extended to 15 November 2018.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member M East
......................[Sgd]..................................................
Associate
Dated: 21 January 2022
Date of hearing: 21 October 2021 Advocate for the Applicant: Shadreck Martin Kalongo Solicitors for the Respondent: Ashley Burgess, Sparke Helmore Lawyers
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