MY VAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2012] AATA 91
•16 February 2012
[2012] AATA 91
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2268
Re
MY VAN
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal Mr P Wulf, Member
Date 16 February 2012 Place Brisbane Decision: The Tribunal affirms the decision under review
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Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Overseas portability of social security payment – Applicant received newstart allowance – Applicant absent from Australia from 20 January 2011 to 25 February 2011 for purpose of visiting family in Vietnam – Applicant's grandfather not critically ill – Applicant's absence from Australia not for purpose of attending to acute family crisis – Newstart allowance not payable to applicant during absence from Australia – Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth), ss 5, 23, 1212A, s 1213, s 1215 and s 1217
CASES
Re Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ghafoor and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 159
Re Guziak and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 786
Re Patania and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 840Re Ramsay and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 278
SECONDARY MATERIALS
Guide to Social Security Law, version 1.183 (released 3 January 2012)
REASONS FOR DECISION
Mr P Wulf, Member
16 February 2012
My Van (“the applicant”)[1] seeks the review of a decision made by Centrelink on 15 December 2010 to not pay her newstart allowance under the Social Security Act 1991 (Cth) (“the Act”) while overseas.
[1] Exhibit A, T-Document 1/1 – 2.
On 15 December 2010, the applicant advised Centrelink that she intended to travel to Vietnam to visit her sick grandfather on 20 January 2011, returning to Australia on 25 February 2011.[2] Centrelink advised the applicant that she would not be entitled to newstart allowance as she was not travelling for an approved reason.[3]
[2] Exhibit A, T-Document 5/34.
[3] Exhibit A, T-Document 6/36-38.
The applicant provided additional information and sought review of the decision on 30 December 2010.[4] The original decision was re-affirmed on the same day.[5]
[4] Exhibit A, T-Document 10/42.
[5] Exhibit A, T-Document 12/44-45.
On 30 December 2010, the applicant requested the decision be further reviewed.[6] An Authorised Review Officer affirmed the decision on 9 February 2011[7] and the latter decision was, in turn, affirmed by the Social Security Appeals Tribunal (“SSAT”) on 18 May 2011.[8]
[6] Exhibit A, T-Document 11/43.
[7] Exhibit A, T-Document 14/49-53.
[8] Exhibit A, T-Document 2/3-7.
The applicant has applied to this Tribunal for review of the decision of the SSAT.
THE ISSUE AND THE TRIBUNAL'S DETERMINATION
The issue for the Tribunal's determination is whether newstart allowance should be payable to the applicant, in accordance with the relevant provisions in Part 4.2 of the Act relating to the overseas “portability” of social security payments, during the period from 20 January 2011 to 25 February 2011 when she was absent from Australia (“the relevant period”).
For the reasons which follow, the Tribunal has determined that newstart allowance is not payable to the applicant from the relevant period.
THE RELEVANT LEGISLATION
Pursuant to ss 1213, 1215 and 1217 of the Act, in the case of a person who is receiving newstart allowance in Australia, newstart allowance continues to be payable to that person, while that person is absent from Australia, for a maximum period of 13 weeks, provided that such absence is an “allowable absence” – that is as stated in column 4 of item 15 in the table at the end of s 1217:
A temporary absence for any of the following purposes:
a) to seek eligible medical treatment;
b) to attend to an acute family crisis;
c) for a humanitarian purpose.
A family member is defined in s 23(14) of the Act as being:
(14) …
a) the partner or a parent of the relevant person;
b) a sister, brother or child of the relevant person;
c) any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person's relations described in paragraph (a) or (b).
The meaning of the phrase “acute family crisis”, for the purposes of Part 4.2 of the Act, is explained in s 1212A which provides:
1212A …
For the purposes of this Part, a person's absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
a) for the purpose of visiting a family member who is critically ill; or
b) for the purpose of visiting a family member who is hospitalised with a serious illness; or
c) for a purpose relating to the death of a family member; or
d) for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
i.is facing a family member; and
ii.is beyond the control of the family member.
THE EVIDENCE
The evidence before the Tribunal comprised:
a)the "T Documents" (T1-18: pp 1-64) lodged by the Secretary, Department of Education, Employment and Workplace Relations in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
b)Exhibit 2 being the respondent's Statement of Facts and Contentions; and
c)the oral evidence of the applicant.
THE APPLICANT'S EVIDENCE
The applicant's oral evidence may be summarised as follows:
a)The applicant was raised by her grandparents while living in Vietnam until she was nine;
b)In 1998, the applicant migrated to Australia from Vietnam with her parents and has lived in Australia since that time except for numerous visits (about every second year) to her place of birth to see her extended family;
c)The applicant became aware that her grandfather had been in hospital in August 2010 and, subsequently, required periodical hospitalisation. He was admitted to hospital between 1 November 2010 and 9 November 2010;
d)The applicant visited Vietnam between 20 January 2011 and 25 February 2011 with her mother and brother. During this time, they stayed at her grandparent's house. The applicant would assist her grandfather by pushing him around in a wheelchair and would help her grandmother and mother in caring for her grandfather;
e)The applicant stated that she paid for some of his medical expenses although she was not able to provide any evidence of this;
f)When the applicant was not in Vietnam, her grandmother would care for her grandfather (e.g. the other 47 weeks in the year). Her extended family also provided assistance; and
g)The doctor would also make house calls to check on her grandfather.
THE MEDCICAL EVIDENCE
Hospital discharge papers for the applicant's grandfather were presented to the Tribunal and included:
a)Hospitalised from 15 August 2010 to 30 August 2010:
i.Diagnosis: septicaemia - diabetes type II - gall bladder stone - cirrhosis after infected by HBV (K pneumonia);
ii.Recommendation: “Taking medications according to the prescription + endocrinology examination at Cho Ray Hospital”.
b)Hospitalised from 29 January 2011 to 01 February 2011:
i.Diagnosis: “Myeloproliferative decrease - cirrhosis - viral hepatitis b - diabetes type 2”;
ii.Recommendation: “Re-examination at the Hematology [sic]-Endocrinology Examination Office after 2 weeks”.
c)Hospitalised from 17 February 2011 to 19 February 2011:
i.Diagnosis: ”Myeloproliferative decrease”;
ii.Recommendation: “Taking medications according to the prescription - Re-examination at the Hematology [sic] Examination Office after 2 weeks”.
There was also some discussion that the applicant's grandfather had been in hospital from 1 November 2010 to 9 November 2010;[9] however no hospital discharge papers were provided to the Tribunal.
[9] Exhibit A, T-Document 7/39.
Importantly, the applicant's grandfather was not hospitalised when she left Australia to visit him and other family members in Vietnam on 20 January 2011 and was only hospitalised for brief periods (up to four days per visit) during the applicant's absence from Australia.
ANALYSIS
The applicant's entitlement to continue to be paid newstart allowance during the period of her absence from Australia from 20 January 2011 to 25 February 2011 depends (relevantly) on whether that absence was for the purpose of attending to an “acute family crisis”, as defined in s 1212A of the Act, in regard to a person who can be considered a "family member" as defined in s 23(14) of the Act.
The applicant submitted that her absence from Australia during the relevant period was for the purpose of looking after her grandfather, who needed periodic hospitalisation, and it was therefore, in accordance with s 1212A(a) of the Act, for the purpose of attending to an “acute family crisis”.
There is dispute that the applicant's absence from Australia during the relevant period was for the purpose of visiting a “family member”, as defined within the meaning of s 1212A(a) (see the definition of "family member" in s 23(14) of the Act). There is also dispute as to whether the applicant's grandfather was “critically ill”, within the meaning of s 1212A(a) during the relevant period.
In answering the first question, the Tribunal notes that the applicant stated that she had a closer relationship with her grandfather than her own father and that she lived with her grandparents until she was nine. Clearly, the applicant's grandfather does not fall within the provisions of s 23(14)(a) or (b) as he is not the applicant's partner or a parent[10], nor is he a sister, brother or child of the applicant. However there is the potential for the applicant's grandfather to be a family member within the provisions of s 23(14)(c), this being any other person who, in the opinion of the Secretary (and therefore the Tribunal), should be treated as one of the relevant person's relations described in ss 23(14)(a) or (b).
[10] See s 5(1) of the Social Security Act 1991 (Cth).
The respondent submitted that the applicant could not have two sets of parents, these being her mother and father and then her grandparents. While the Tribunal notes the applicant's evidence that she lived with her grandparents until she was nine, it is clear she now lives with her parents in Australia and who are, therefore, her parents as would be construed from the definition defined in s 5(1) of the Act. Similar circumstances were discussed in Re Ghafoor and Secretary, Department of Education, Employment and Workplace Relations[11] where the applicant's aunt assisted in her upbringing and the applicant regarded her aunt as a “surrogate mother”.[12] In that matter, the Tribunal found that this was insufficient to conclude that the applicant's aunt constituted a family member pursuant to s 23(14).
[11] [2008] AATA 159.
[12] [2008] AATA 159 at [15].
The Tribunal should, in accordance with Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[13], comply with the Guide to Social Security Law (section 1.1.F.60 - Family Member) which indicates that a person is a family member of the relevant person if he or she is:
a)the partner of the relevant person, or
b)a sibling of the relevant person, or
c)a child of the relevant person, or
d)any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a partner, parent, sibling or child of the relevant person. This may cover situations such as stepchildren or foster children.
[13] (1979) 2 ALD 634.
Accordingly, the Tribunal finds that the applicant's grandparents are not any other person who could be considered as a family member and, as such, the applicant's appeal must fail.
While the applicant's case has failed on the first question, the Tribunal believes, for completeness, that it should also assess the aspects as to whether the applicant's grandfather was critically ill consistent with s 1212A(a) of the Act.
There is no statutory definition of the expression “critically ill” for the purposes of s 1212A(a) of the Act. In Re Patania and Secretary, Department of Education, Employment and Workplace Relations[14], the Tribunal used a definition of “critical illness” as defined in the Online Medical Dictionary, this being “A disease or state in which death is possible or imminent”.
[14] [2008] AATA 840.
The Tribunal in Re Guziak and Secretary, Department of Education, Employment and Workplace Relations[15] found that this was an inappropriate definition, in that it was from a source that was not one that would normally be used by Australian Courts. It is normal practice for Australian Courts to use definitions contained in the Macquarie Dictionary.
[15] [2010] AATA 786.
In Re Al Umari and Secretary, Department of Family and Community Services[16], the Tribunal used what this Tribunal finds as the most appropriate source for definitions to be used, by this Tribunal, that being the Macquarie Dictionary, and/or in the alternative, the Oxford Dictionary.
[16] [2003] AATA 431.
The definitions, as sourced from those two dictionaries in Re Al Umari and Secretary, Department of Family and Community Services[17], were, at [21], that:
… critically must be given its ordinary meaning. That meaning is that the person's condition must be severe or grave (Macquarie Dictionary: 2nd Ed) or that there must be a crisis in the disease (New Shorter Oxford Dictionary: 4th Ed).
[17] [2003] AATA 431.
A similar definition was used in Re Ramsay and Secretary, Department of Education, Employment and Workplace Relations[18] where the Senior Member stated, at [13]:
The Oxford Australian Dictionary defines "critically" as meaning, "of or at a crisis" and "crisis" as "a decisive moment; a time of danger or great difficulty; the turning point, especially of a disease." In the Macquarie Dictionary, "crisis" is "the point in the course of a disease at which a decisive change occurs, leading either to recovery or death, …
[18] [2010] AATA 278.
In the Tribunal's opinion, these meanings accord with the common understanding of the description of a person's state of health as “critically ill” and it is appropriate that the expression “critically ill” in para (a) of s 1212A of the Act be understood in that sense.
The Tribunal accepts that the applicant was aware that her grandfather was unwell and had asked her to come to see him. However, looking at all the evidence, the Tribunal is not satisfied that there was, in this case, an “acute family crisis” as that term is defined in the legislation. It is important to take a broad approach when interpreting beneficial legislation such as the Act; thus the Tribunal has to look to a broad interpretation that can benefit the applicant. The difficulty is that, although the Tribunal accepts completely that her grandfather has had a serious illness, he did not, however, have a serious illness at the relevant time as he only required hospitalisation for very short periods. Thus the Tribunal is not satisfied that the grandfather was critically ill.
There needs to be something more pressing, or more decisive, or more a sense that an illness has really reached a time of change. There is no question that the applicant's grandfather had an illness at the time and, indeed, he was admitted to hospital twice while the applicant was there; however there was no reason to think that he would not survive. The hospitalisation appears to be mainly for check-ups and on-going treatment.
Having regard to the whole of the evidence, the Tribunal is not satisfied that the nature and seriousness of the abovementioned medical conditions suffered by the applicant's grandfather during the relevant period were such that death was possible or imminent. Accordingly, the applicant's absence from Australia from 20 January 2010 to 25 January 2010 was not “for the purpose of visiting a family member who is critically ill”, within the meaning of s 1212A(a) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Mr P Wulf, Member.
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Associate
Dated 16 February 2012
Date(s) of hearing 21 December 2011 Applicant In Person
Advocate for the Respondent Mr R McQuinlan, Departmental Advocate
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