NEHAD MOUSSA And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS - [2011] AATA 459

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 459
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1514

GENERAL ADMINISTRATIVE DIVISION )

Re NEHAD MOUSSA

Applicant

And

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

Respondent

DECISION ON THE PAPERS

Tribunal Ms A F Cunningham (Senior Member)
Date30 June 2011
PlaceHobart

Decision
The decision under review is affirmed.

[Sgd Ms A F Cunningham]
Senior Member

CATCHWORDS
SOCIAL SECURITY – disability support pension – applicant left Australia to reside overseas – portability limited to 13 weeks – applicant suffering from depression - not considered to be terminally ill – decision under review affirmed
Social Security Act 1991, ss 1213, 1217(4), 1218AA, 1218C, Chapter 4
Explanatory Memorandum introduced 1 July 2004
Trepic v Secretary, Department of Family and Community Services [2005] AATA 710
Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983
Rodriguez and Secretary, Department of Families, Housing and Community Services [2010] AATA 448.
REASONS FOR DECISION

30 June 2011 Ms A F Cunningham (Senior Member)

1.      A decision was made to suspend Mr Moussa’s disability support pension (DSP) from 18 October 2010 following his departure from Australia to travel to Egypt and the expiration of the 13 week portability period. The decision was affirmed by an authorised review officer and subsequently by the Social Security Appeals Tribunal on 4 March 2011. Mr Moussa seeks the review of that decision by the Administrative Appeals Tribunal.
2.      An application for a stay of the respondent’s decision was refused by the Tribunal following a hearing on 24 May 2011. Directions were made that any further submissions or evidence be received by 14 June 2011 and that a decision of the application for review would be made on the basis of the material before the Tribunal without the need for a further hearing. No further submissions or evidence have been received.
THE ISSUES
3.      The issues for the Tribunal to determine are:
(i) For what period DSP is portable following Mr Moussa’s departure from Australia on 19 July 2010;
(ii) Does Mr Moussa meet the criteria for extending the portability period?

BACKGROUND FACTS
4.      The following facts are not in dispute:
1.        Mr Moussa was granted DSP in June 2008.
2.        Mr Moussa departed Australia on 19 July 2010 for Egypt with the intention of staying for at least six months. Mr Moussa has continued to reside in Egypt since that time.
3. Mr Moussa’s DSP was paid for a period of 13 weeks in accordance with the portability provisions in section 1217 of the Social Security Act 1991 (the Act) and suspended from 18 October 2010.

LEGISLATION
5. DSP is paid in accordance with the provisions of the Act. Any international agreement with the country of destination may modify the portability rules and may permit indefinite portability, otherwise not available under the Act. There is no international agreement in place with Egypt which means that the portability of Mr Moussa’s DSP is determined in accordance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NEHAD MOUSSA And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2011] AATA 459
Case: [2011] AATA 459
Decision Date: 30 June 2011

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of Nehad Moussa against the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs was heard. The central issue was whether the applicant, Nehad Moussa, was eligible for a disability support pension after leaving Australia to reside overseas. The Federal Circuit Court was tasked with reviewing a decision made by the Department that limited the portability of the pension to 13 weeks.

The court had to determine whether the applicant's condition, depression, qualified for a longer period of pension portability. Given that the applicant was not considered terminally ill, the court needed to assess if the existing legislation provided for any extended portability under the circumstances. Furthermore, the court examined the relevant provisions of the Social Security Act and the administrative guidelines issued by the Department.

The court concluded that the decision made by the Department was in accordance with the legislative framework and the relevant administrative guidelines. The court found that the 13-week portability limit was appropriate given the applicant's condition and the absence of a terminal illness. Therefore, the court affirmed the decision under review, upholding the Department's determination that the applicant was not entitled to a disability support pension for a period exceeding 13 weeks after leaving Australia.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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