Nancy Chang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 15
•16 January 2013
[2013] AATA 15
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4707
Re
Nancy Chang
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 16 January 2013 Place Hobart The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
SOCIAL SECURITY - overseas claimant - new start allowance - disability support pension - residing in Laos - applicant not residing in Australia at time of claims - no current plans to return to Australia - not an Australian resident - not entitled to new start allowance or disability support pension - decision under review affirmed
Social Security Act 1991, ss 7, 94, 1217(5), 1212, 1218(1)(a),(b),(c),(d),(e), 1218AAA(1)
Social Security (Administration) Act 1999, s 29
Joseph v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 728
Mouzaoui and Secretary, Department of Family and Community Services [2003] AATA 710
Younan and Secretary, Department of Education and Workplace Relations [2006] AATA 738
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
On 12 October 2012 the Social Security Appeals Tribunal (SSAT) determined that Ms Chang was not eligible for new start allowance (NSA) from 16 September 2012 and her two claims for disability support pension (DSP) respectively made on 16 September 2011 and 31 July 2012 are to be taken as not having been made. Ms Chang now seeks the review of the SSAT's decision by the Administrative Appeals Tribunal.
The hearing was conducted by telephone link to Ms Chang in Laos where she is currently residing. Ms Chang appeared on her own behalf and gave oral evidence. She also tendered two letters addressed to the Tribunal, dated 5 November 2012 and an e-mail dated 22 October 2012. Brian Sparkes appeared on behalf of the Secretary. The T Documents were tendered in evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Following the hearing Ms Chang continued to e-mail the Tribunal regarding her health problems and medical treatment and information regarding her attempts to obtain housing in Australia in 2012. At the conclusion of the hearing, leave was only granted to Ms Chang to submit further letters from Centrelink on the basis that the Tribunal would determine their relevance. The further information provided by Ms Chang has little relevance to the issues to be determined by the Tribunal.
BACKGROUND FACTS
The following background facts contained in the Secretary’s Statement of Facts and Contentions did not appear to be in dispute and were supported by the information contained in the T Documents.
Ms Chang is an Australian citizen and was in receipt of DSP between 21 May 2001 and 26 January 2005. On 4 February 2005 Ms Chang left Australia returning on 30 August 2011. She left Australia 16 days later on 16 September 2011, returning on 31 July 2012. Some 46 days later Ms Chang left Australia on 16 September 2012.
Copies of Ms Chang’s claims for DSP indicate that they were made soon after her return to Australia, namely on 31 August 2011 and 11 August 2012. (T4 and T11)
APPLICANTS EVIDENCE
Ms Chang claimed to have no fixed address in Laos and to have been chronically homeless for the past 10 years during which period she has also been unemployed.
In response to the respondent's findings that Ms Chang was not an Australian resident at the time of making her claims, she said that she had renewed her Queensland drivers licence, had applied for housing in Queensland and now has three operating bank accounts in Australia. She said that the reason she departed Australia on 16 September 2011 was because she was homeless. She claims to have been in significant pain, had no access to transport and was overwhelmed by her circumstances. She left Australia travelling via Taiwan to China.
When asked about her connections with Australia Ms Chang said that she loves the country which is very beautiful, and enjoys the animals. When asked about her plans to return to Australia she said that her number one priority is her health and that she is not currently well enough to travel although she would like to return to Australia. She said that as a result of her pension being discontinued in 2004, she had lost all her belongings in Australia and has nowhere to live in Australia or in any other country.
Ms Chang did not agree that the reason why her pension was cancelled in late 2004 or early 2005 was due to her failing to notify Centrelink of her departure from Australia. Ms Chang maintained that she received a letter from Centrelink stating that she should apply for a pension from an overseas country.
Ms Chang accepted that her only financial ties between 4 February 2005 and 30 August 2011 were the few hundred dollars she had in her ANZ bank account. She agreed that she has no family members in Australia and has not worked in Australia since 2005. When she returned to Australia in 2011 and again in mid-2012, she resided in crisis accommodation.
Ms Chang disputed the statement contained in paragraph 32 of the SSAT's decision which states that her decision to return to Australia was "in order to reclaim disability support pension". Ms Chang maintains that her sudden decision to depart Australia on 16 September 2012 was due to her health problems and significant pain. She said that when she departed Australia in September 2011 she left because she had no access to medical care and no transportation.
Ms Chang did not dispute that she had informed Centrelink that she had left Australia to obtain medical treatment in Taiwan. She said that it was her intention to leave Australia temporarily to obtain medical treatment in Taiwan but she became stranded in Cambodia and Laos because she lacked the funds to travel on to Taiwan. Ms Chang said that she continues to reside in southern Laos in a guesthouse and has no current plans to travel to Taiwan because she lacks the funds to do so. She hopes that reinstatement of her DSP will provide her with the necessary funds to travel to Taiwan to obtain medical treatment. She maintained that she had previously consulted an orthopaedic surgeon, urologist and psychiatrist in Taiwan and was told that she needed treatment every day for a period of six months. Due to family problems she was unable to continue with her treatment after three months.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The qualification provisions for DSP are set out in section 94 of the Act. This provision requires that either the person is an Australian resident or is absent from Australia and a determination has been made under subsection 1218AAA(1) or the person is absent from Australia and all of the circumstances described in paragraphs 1218AA(1) (a) (b) (c) (d) and (e) are satisfied. There was no evidence that any determination has been made by the Secretary.
Section 1218AAA(1) requires that (a) a person is receiving DSP, (b) the Secretary is satisfied that the person's impairment is a severe impairment, (c) severe impairment will continue for at least the next five years and (d) that if the person were in Australia the severe impairment would prevent the person from performing any work independently of a program of support.
Section 29 of the Administration Act states as follows:
“(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made”.
Section 7(1) of the Act provides:
“Australian resident has the meaning given by subsection (2)”.
Subsection (2) states:
“An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Note: For holder and permanent visa see subsection (1)”.
Subsection (3) states:
“In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(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”.
DISABILITY SUPPORT PENSION CLAIMS
The question for the Tribunal to determine is whether Ms Chang was an Australian resident at the time she lodged her claims for DSP in 2011 and 2012. Subsection 29(2) of the Administration Act states that if Ms Chang was not an Australian resident on the day her claims were lodged, then those claims are taken as not having been made unless she satisfies one of the provisions referred to in that section. None of those provisions however are relevant to Ms Chang’s circumstances.
The evidence was that during Ms Chang's visits to Australia during the relevant periods she was either homeless or lived in crisis accommodation. Ms Chang stated that she has no family residing in Australia and there was no evidence that she has any close friends in Australia. Ms Chang has not worked in Australia for the past 15 years and there was no evidence of any business or financial ties apart from the bank accounts into which DSP pension was paid. Ms Chang has no assets in Australia. It was clear from the evidence that Ms Chang's residence is currently in Laos. It was her evidence that she has no current plans to return to Australia.
Although it is evident that Ms Chang was present in Australia at the time that she lodged her two claims for DSP, on the basis of the above evidence, the Tribunal finds that Ms Chang was not an Australian resident at the time that she made her claims for DSP.
The basic qualification requirements for DSP under section 94 of the Act require that a claimant be an Australian resident. Section 29 of the Administration Act states that where the claimant is not an Australian resident the claim is taken as having not been made. As the Tribunal in Joseph v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 728 recognised, if either of the conjunctive requirements in section 29 are not satisfied, the claim is taken not to have been made.
NEW START ALLOWANCE
Ms Chang was granted new start allowance after lodging a claim in 2011. On 16 September 2012 she departed Australia without informing Centrelink. It was contended by Mr Sparkes on behalf of the respondent, that Ms Chang’s claim for new start allowance should not have been granted as she was not an Australian resident at the time of that claim. That issue however is not before the Tribunal and the question for determination is whether the decision to cancel Ms Chang’s new start allowance from 16 September 2012 was correct.
The issue that arises is whether Ms Chang had any entitlement to portability of new start allowance and in what circumstances. The portability provisions are contained in Chapter 4 Part 4.2 of the Act. The maximum portability period is 13 weeks where a person's absence from Australia is temporary for any of the following purposes:
(a)to seek eligible medical treatment;
(b)to attend an acute family crisis; or
(c)for a humanitarian purpose. (Section 1217 (5))
There was no evidence and it was not contended by Ms Chang that she left Australia for the purpose of either attending an acute family crisis or for a humanitarian purpose. It was her evidence that it was her intention to travel to Taiwan via Cambodia in order to obtain medical treatment. Ms Chang however had not informed Centrelink of her intention either to depart Australia or that the purpose of her departure was to obtain medical treatment. Ms Chang maintained that the reason that she did not eventually travel to Taiwan was because she lacked the funds to do so. She also said that she would have remained in Australia if she had somewhere to stay.
Whilst I have no reason to doubt the evidence regarding Ms Chang’s state of health and the significant pain and problems that she suffers as a consequence of her ill health, I am not satisfied on the evidence provided that she departed Australia on 16 September 2012 on a temporary basis for the purpose of seeking eligible medical treatment.
Although Ms Chang did not provide any evidence as to the precise nature of the treatment that she intended to seek in Taiwan, the authorised review officer examined the available medical records and considered Ms Chang’s statements as to the type of treatment previously received by her overseas and the future treatment she was contemplating. The authorised review officer found that the therapies that Ms Chang proposed to access in Taiwan would be available in Australia and could not be considered eligible medical treatment which would allow portability of Ms Chang’s new start allowance.
It is not simply a question of assessing Ms Chang’s desire for some alternative form of treatment in an overseas country for the provision states that the treatment must be "eligible medical treatment”. This term is defined in section 1212 as "medical treatment of a kind that is not available to the person in Australia".
In the Secretary’s Statement of Facts and Contentions a number of authorities were cited with respect to this issue. The Tribunal in Mouzaoui and Secretary, Department of Family and Community Services [2003] AATA 710 considered that the treatment should be part of a designated medical treatment program designed by the applicant's medical practitioner. In that case the applicant's absence from Australia was self-initiated and for personal purposes which although supported by the treating psychiatrist, was not found to be part of an ordained treatment program.
The Tribunal in Younan and Secretary, Department of Employment and Workplace Relations [2006] AATA 738 considered that although the dental work required by Mr Younan may have been more expensive and/or delayed if it had been undertaken in Australia, there was no evidence that treatment of that nature was not available in Australia. On this basis the Tribunal determined that the medical treatment sought by him in Thailand did not meet the narrow definition of the term in section 1212 of the Act.
It was Ms Chang's evidence that she departed Australia on 16 September 2012 because of a lack of suitable accommodation, transport and inability to access appropriate medical care. I am not satisfied on the evidence available to me that her primary reason for departing Australia on this date was to seek medical treatment that was not available in Australia.
FINDINGS
For the reasons stated above, I find that Ms Chang was not an Australian resident when she claimed disability support pension in 2011 and 2012, and in accordance with section 29 (2) of the Administration Act the claims are taken as not having been made.
I am not satisfied for the above stated reasons, that Ms Chang was entitled to new start allowance portability.
The decision made by the Social Security appeals Tribunal on 17 April 2012 is accordingly affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) .............[Sgd].................
Administrative Assistant
Dated : 16 January 2013
Date(s) of hearing 5 December 2012 Applicant In person Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
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