NANCY CHANG and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 625

[2013] AATA 625

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3334
Re	NANCY CHANG
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	30 August 2013
Place	Canberra

The decision under review is affirmed

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

Professor RM Creyke, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – disability support pension suspended after leaving Australia – whether an ‘Australian resident’ under the Social Security Act 1991 section 1220

Legislation

Social Security Act 1991 (Cth) sections 7, 1217, 1218AAA, 1218AA, 1218AB, 1220

REASONS FOR DECISION

Professor RM Creyke, Senior Member

30 August 2013

1. Ms Nancy Chang sought review of a decision which suspended her disability support pension (DSP).

2. The decision under review by the Tribunal is a decision of the Social Security Appeals Tribunal (SSAT) on 27 June 2013, which affirmed a decision of an authorised review officer within Centrelink, dated 12 June 2013, which had in turn affirmed a decision made by a delegate of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.

3. Ms Chang had been granted DSP on 10 February 2013. Ms Chang left Australia on 25 May 2013 and following her departure, her DSP was suspended from 31 May 2013.

4. Ms Chang, who is currently in Taiwan, and the representative of the Secretary, gave their evidence by conference telephone.

   Background and evidence

5. Ms Chang, born 1968, was granted Australian citizenship on 17 September 2002. Ms Chang claims also to be a citizen of the United States of America, and of Taiwan.

6. Ms Chang had previous short periods of being in Australia in 2003 and 2004. Ms Chang left Australia on 4 February 2005 and did not return until 30 August 2011. She then departed on 16 September 2011, returned on 31 July 2012, departed again on 16 September 2012, and returned again on 8 February 2013. On 25 May 2013, Ms Chang left Australia and has not since returned.

7. On 10 February 2013, Ms Chang applied for and was granted DSP. Ms Chang did not notify Centrelink of her departure from Australia prior to or after her departure on 25 May 2013.

8. On 21 March 2013, Ms Chang was advised by Centrelink that she could not be paid DSP if she went overseas. Ms Chang has disputed this advice and says she was told by a Centrelink officer that she could continue to be paid DSP for six weeks if she left Australia. The Secretary’s representative at the hearing offered to assist Ms Chang to apply for a discretionary payment under the Scheme for Compensation for Detriment caused by Defective Administration if she wished to pursue a claim that she had been given wrong advice.

9. Ms Chang says she is in indigent circumstances in her current country of residence, Taiwan. She has no money, is unable to work because of her disabilities, and has no family or other support. She advised at the hearing that her mother, from whom she says she is substantially estranged, lives in China, she has a sister in the United States of America, and a father in Taiwan. Her evidence is that she has no close family or friends in Australia and she is not in regular contact with any of her closest relatives.

10. Ms Chang has not worked in Australia since before 2005. She has been chronically homeless for the past 10 or so years since 2005 and she says this is the principal reason she left Australia on 16 September 2011. She has generally been residing in crisis accommodation or has been residing in dormitory or sub-standard accommodation over the last decade. She has a debt to Centrelink, and another to the Department of Foreign Affairs and Trade. Her Australian passport has expired. Ms Chang said that the Department of Foreign Affairs and Trade had told her they would not support an application for the Department to pay her air fare to return to Canberra to attend the hearing in this matter as she already has a sizeable debt to the Department.

11. Ms Chang has two bank accounts in Australia, but both have no more than $1.00 in them. A third account was cancelled because it contains no funds. She has no assets in Australia.

    Legislation

12. The legislation is the Social Security Act 1991 (Cth) (Act). Section 1220 of the Act provides that the DSP is not payable to a person who has been granted a DSP but leaves Australia without having two years of being resident in Australia during which period DSP becomes payable. Other relevant provisions are found in section 7 which defines who is an ‘Australian resident’ for the purposes of section 1220.

13. Other pertinent provisions include section 1218AAA of the Act, which permits an unlimited portability period for DSP in the case of a ‘severely impaired disability support pensioner’, section 1218AA of the Act which provides for an unlimited portability period for DSP in the case of a ‘terminally ill overseas disability support pensioner’, and section 1218AB which provides for an extended portability period for DSP.

    Issues

14. The issues for consideration under section 1220 of the Act are:

    ·Whether Ms Chang is an Australian resident, being a person:

    owho ceased to reside in Australia;

    oagain became an Australian resident;

    oduring her residence in Australia was granted the DSP; and

    oleft Australia within two years after the DSP was granted.

    ·Whether DSP is payable to Ms Chang.

    Consideration

15. The key provision involved in this matter is section 1220 of the Act. It states as relevant:

    No portability where claim based on short residence

    (1) If:

    (a) a person is an Australian resident; and

    (b) the person ceases to be an Australian resident; and

    (c) the person again becomes an Australian resident; and

    (d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:…

    (ii) a disability support pension;…

    and

    (e) after the pension or allowance is granted, or the person is transferred to the                 pension or allowance, as the case may be, but before the end of that period of 2                 years, the person leaves Australia;…

    a pension or allowance based on that claim is not payable to the person during                  any period during which the person is outside Australia.

16. Australian resident is defined in section 7(1), (2) of the Act. Section 7(2) states:

    (2) An Australian resident is a person who:

    (a) resides in Australia; and

    (b) is one of the following:

    (i) an Australian citizen;…

17. The Tribunal accepts that Ms Chang is an Australian citizen. The principal issue is whether she is an Australian resident as a person who ‘resides in Australia’.

18. Section 7(3) of the Act sets out the factors to be taken into account in deciding whether someone ‘resides in Australia’. They are:

    (a) the nature of the accommodation used by the person in Australia; and

    (b) the nature and extent of the family relationships the person has in Australia; and

    (c) the nature and extent of the person's employment, business or financial ties with Australia; and

    (d) the nature and extent of the person's assets located in Australia; and

    (e) the frequency and duration of the person's travel outside Australia; and  

    (f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

19. Ms Chang disputes that she has been found not to be an Australian resident. She did so at the hearing on the basis that she had never ‘emigrated’ to another country from Australia.  It was explained to Ms Chang that the test does not turn on whether a person in leaving Australia has emigrated.

20. Ms Chang made a number of submissions concerning whether she continued to ‘reside in Australia’. Her arguments, in summary, are that:

    ·Being in crisis accommodation in Australia when she has been resident here in the last ten years does not mean that she is not an Australian resident;

    ·Ms Chang said she had been in public housing while in Queensland, prior to being evicted, in particular in 2011 and 2012, and she also referred to payment of rent, apparently referring to her visit in 2013;

    ·That her need to leave Australia was due to her inability to survive financially while she was formally on Newstart Allowance. She said in evidence that due to her accepted disability she substantially lost the function of her arms and hands which meant she could not prepare meals and had to eat out on a regular basis;

    ·When she was overseas she became ‘stranded because of [her] physical condition and…limited mobility. [She] also lacked the funds to be able to sort [herself] out. [She] also lacked the mental capacity to be able to sort [herself] out’.

21. The Tribunal notes in relation to Ms Chang’s accommodation while in Australia that her evidence suggest she was in public and possibly private housing, as well as crisis accommodation, for periods while she was in Australia. Ms Chang’s submission was that when she initially left Australia in 2005, she had for a period maintained her public housing apartment in Brisbane, and her motor vehicle was parked in the associated locked garage. She had also at that time not closed any of her three Australian bank accounts. Subsequently, however, she ceased paying rent for the apartment and lost her entitlement to public housing, and has sold any of her remaining Australian assets.

22. Ms Chang confirmed that she has no family in Australia, she has not worked, due to her injuries, for at least the last 15 years, both her existing Australian bank accounts have less than $1.00 in them, she has no employment, financial or business ties with Australia, and she no longer has any assets here.

23. Ms Chang’s periods of residence in Australia since 2005 show that she was absent for over six years until her return in August 2011. She was then in Australia in 2011 for less than a fortnight, for two and a half months in 2012, and for almost four months in 2013.

24. Ms Chang gave no indication that she had an intention to remain permanently in Australia on these return visits between 2011 and 2013.[1] She said the medical treatment she is receiving in Taiwan for her injuries is superior to any she had in Australia. In addition, the fact that her Australian passport has expired, and her financial circumstances are difficult, suggest that it is unlikely that she will return in the short term.

    [1] Act s 7(3)(f).

25. In those circumstances, the Tribunal finds that on balance, Ms Chang ceased ‘to reside in Australia’ after she left in 2005. Although she returned to reside in Australia in 2011 and 2012, the periods were short and her circumstances during those visits, namely, the absence of close family or friends, business or financial ties, assets in Australia, and the short periods of her residence in 2011-2013 were insufficient to indicate that she had an intention to remain permanently in Australia on those visits. Hence she did not regain her Australian residency status for the purpose of section 1220 of the Act during those brief visits.

26. That means, as Ms Chang left Australia within two years of receiving the disability support pension in February 2013, and had not resided in Australia in the period in which she was granted DSP for at least two years, her disability support pension payments were properly suspended. That means the decision under review is affirmed.

27. The Tribunal notes that Ms Chang in her submission contended that her disability support pension should be portable. Her contentions were that, prior to the legislative amendments in 2011, she should have been on disability support pension rather than Newstart Allowance. In those circumstances she contended her disability support pension would have been portable for up to thirteen weeks.

28. The Tribunal is not able to decide entitlements retrospectively and since Ms Chang had not established her eligibility for DSP prior to the amendments in 2011, she cannot rely on those provisions. Ms Chang is subject to the portability provisions after the 2011 amendments and accordingly has to bring herself within the criteria set out in the relevant sections.

29. She also contended that under the current provisions she was either a ‘severely impaired disability support pensioner’ or a ‘terminally ill overseas disability support pensioner’ and as such would have been entitled to unlimited portability of her disability support pension.[2] The representative for the Secretary submitted that the decision under review did not advert to those provisions and accordingly the Tribunal had no jurisdiction to consider their applicability.

    [2] Act sections 1217, 1218AAA, 1218AA.

30. The Tribunal rejects the jurisdictional argument. The Tribunal, as a merit review body, is able to consider arguments not raised during consideration of the matter under review, provided there is new evidence to enable it to do so and provided there are no specific legislation provisions which prevent the Tribunal taking that information into account. These issues were not able to be explored in the hearing. In any event, Ms Chang did not explicitly provide evidence to show she can meet the limited circumstances in which the current unlimited portability provisions would apply. In those circumstances the Tribunal is not in a position to decide whether she would qualify under the provisions

31. The decision under review is accordingly affirmed.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

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

Associate

Dated 30 August 2013

Date of hearing	15 August 2013
Applicant	Self-represented
Advocate for the Respondent	Ms Brin Anniwell
Solicitors for the Respondent	Department of Human Services Program Litigation and Review Branch