Omar Fahmy and Secretary, Department of Social Services
[2014] AATA 164
[2014] AATA 164
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/1945; 2013/1992-1994
Re
Omar Fahmy
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms J L Redfern, Senior Member
Date 26 March 2014 Place Sydney The Tribunal affirms the decisions under review.
.....................[SGD]...................................................
Ms J L Redfern, Senior Member
CATCHWORDS
SOCIAL SECURITY – Age Pension – Australian resident for purposes of social security payment – extended periods living outside Australia – length of working life as Australian resident - failure to comply with notice – failure to provide details of change in circumstances – whereabouts of applicant unknown - suspension of payment warranted –subsequent cancellation and affect on portability of pension -– significant time lapse since original decision – matter to be determined as at the time decisions made - decisions to suspend and cancel affirmed.
PRACTICE AND PROCEDURE – jurisdiction to review ‘ruling’ of authorised review officer – whether ruling constituted a reviewable decision – statement made by authorised review officer considered to be advisory opinion – no final and operative decision – no jurisdiction to review decision
LEGISLATION
Social Security Act 1991 ss 29, 43, 1213, 1214, 1217, 1220, 1220A,
Social Security (Administration) Act 1999 ss 67, 68, 72, 81, 192, 196
Acts Interpretation Act 1901 s 28A
CASES
Re Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870
O’Connell and Secretary, Department of Social Security [1991] AATA 523
Re Sevel and Secretary, Department of Social Security [1991] AATA 135
Gidaro v Secretary, Department of Social Security [1998] FCA 400
Kavadas and anor and Secretary, Department of Families and Community Services [2004] AATA 74
Guerin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 201
Clancy v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 679Muir v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 720
REASONS FOR DECISION
Ms J L Redfern, Senior Member
BACKGROUND
Mr Fahmy is a 69-year-old man of Egyptian background who migrated to Australia in 1966. He became an Australian citizen in 1970 and he has lived and worked in Australia for over 30 years. Mr Fahmy was made redundant from full-time employment in 1996 but continued to work in casual employment until about 2004. Since his redundancy, Mr Fahmy has travelled overseas frequently and in recent years, has lived overseas for extended periods.
Mr Fahmy was granted a Newstart Allowance on 19 June 2009 and subsequently made a claim for the age pension in anticipation of turning 65 years old, which he did on 18 July 2009. His claim for the age pension was accepted effective from 18 July 2009 and he was notified of the grant by letter dated 17 July 2009. Mr Fahmy left Australia on 31 July 2009 and lived overseas in Egypt and Thailand until 6 July 2012, returning briefly for about a week in August 2010.
Mr Fahmy did not notify Centrelink about his departure or provide a forwarding postal address and correspondence sent to his last known address was returned to Centrelink as undeliverable. Mr Fahmy’s pension payments were suspended on 2 September 2009 and on 13 November 2009 his age pension was cancelled. Mr Fahmy did not make any claim for review of these decisions at that time.
When Mr Fahmy returned to Australia in 2012, he again made a claim for the age pension, which he was granted effective from 20 August 2012. Mr Fahmy requested that his previous pension be restored and his matter was referred to an authorised review officer for review. Mr Fahmy also advised that he was planning to leave Australia on 3 December 2012. By letter dated 7 November 2012, Mr Fahmy was advised by Centrelink that if he left Australia his age pension would cease because he was considered to be an Australian resident who once lived in Australia, immigrated to another country and then returned to live. He was advised he must remain in Australia two years before he could receive the age pension outside Australia.
The authorised review officer reviewed Mr Fahmy’s request that his age pension be restored which was taken to be, correctly in my view, a request for a review of the decisions to suspend then cancel Mr Fahmy’s pension in 2009. The authorised review officer affirmed both decisions and furthermore determined that the decision to pay his pension effective from 20 August 2012 was correct. The authorised review officer reviewed what was said to be a ‘decision’ made on 7 November 2012 that Mr Fahmy’s pension would cease from 3 December 2012 if he left Australia. This decision was also affirmed on the basis that the rules relating to ‘returning’ Australian residents applied to Mr Fahmy given the circumstances of his lengthy absences overseas from 2009.
Mr Fahmy left Australia again on 3 December 2012 and payment of his age pension was suspended from this date.
Mr Fahmy applied to the Social Security Appeals Tribunal (SSAT) to review the decisions of the authorised review officer. The SSAT affirmed the decisions to suspend and cancel Mr Fahmy’s age pension with effect from 28 August 2009, affirmed the decision to pay Mr Fahmy’s age pension from 20 August 2012 and ruled it had no jurisdiction to conduct a review of the decision to suspend payment of Mr Fahmy’s age pension when he left Australia on 3 December 2012. Mr Fahmy now seeks a review of the decision of the SSAT.
A threshold issue for determination was the scope of this review, namely whether the review extends to the ruling of the authorised review officer that payments of Mr Fahmy's age pension would cease if he left Australia on 3 December 2012. In my view, this statement made by the authorised review officer was in the nature of an advisory opinion and was not a final and operative decision. I agree with the SSAT that there is no jurisdiction to review this decision. While the decision to suspend payment of Mr Fahmy's pension on 3 December 2012 is a decision capable of being reviewed, Mr Fahmy did not seek reconsideration of this decision at the time. This is understandable given the confusingly definitive nature of the advisory statement made by the authorised review officer about Mr Fahmy’s future rights.
As such, I do not have jurisdiction, and do not propose, to review this aspect of the authorised review officer’s decision or the subsequent decision made on 3 December 2012 to suspend payment of Mr Fahmy’s age pension.
Even though the SSAT decided it did not have jurisdiction to review the advisory statement made by the authorised review officer, one of the issues raised by the SSAT was whether Mr Fahmy's age pension granted effective from 20 August 2012 was payable when he left Australia. In other words, was Mr Fahmy’s pension portable overseas? This issue would have been relevant to the question of whether Mr Fahmy’s pension should have been suspended on 3 December 2012. The SSAT ultimately found it did not have jurisdiction to determine this matter. It is the respondent's contention, with which I agree, that the question of whether Mr Fahmy’s pension was portable overseas is not the relevant issue for determination in these proceedings. The issue for determination is whether the decisions of the SSAT to affirm the decisions of the respondent, first to suspend Mr Fahmy's age pension on 2 September 2009 and secondly to cancel his age pension on 13 November 2009, were the correct and preferable decisions in the circumstances of the case. Each of these decisions should be considered separately.
If the decision to cancel Mr Fahmy’s age pension was appropriate in the circumstances of the case, it follows that the original grant cannot be ‘restored’ and Mr Fahmy’s entitlement to the age pension is effective from the date he made his second claim and qualified, namely 20 August 2012, and not before. The rules relating to the overseas portability of Mr Fahmy’s benefits would therefore be those rules applying to Mr Fahmy given his circumstances as at that date. If I find that the decisions to suspend, but more particularly, cancel, were not appropriate, Mr Fahmy’s rights would be ‘restored’ and the matter would need to be remitted to the respondent for further consideration of Mr Fahmy’s age pension in accordance with the terms of my findings.
The determination of this issue is complicated by the fact that the decisions which are the subject of review are over four years old. There have been changes in Mr Fahmy’s circumstances since this time and he has made application for, and has been granted, a further age pension, which has been suspended. Notwithstanding this, the task of the Tribunal is to determine the matter as at the time the relevant decisions were made and any decision will take effect from this time.
The decision to suspend Mr Fahmy’s pension was based on his failure to comply with a notice said to have been given to him within the relevant provisions of the social security legislation dated 17 July 2009. The cancellation is based on Mr Fahmy's failure to respond to the original notice and to notify Centrelink of his change in circumstances.
The key background facts are not in dispute. The respondent has discretion to suspend and/or cancel a pension if the person fails to comply with certain notices. The questions for consideration are whether, in the circumstances of this case, Mr Fahmy's age pension should have been suspended and whether it should have been subsequently cancelled.
LEGISLATIVE FRAMEWORK, BACKGROUND FACTS AND SUBMISSIONS
The relevant legislation is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 43 of the Act sets out the provisions covering qualification for the age pension. Relevantly, a person must have 10 years qualifying Australian residence and must have reached the pension age, which is 65 years old for a man. Under s 29 of the Administration Act a claim for a social security payment may only be made by an Australian resident who is in Australia.
Division 2 of Chapter 4 of the Act contains the provisions dealing with the portability of benefits, being the payment of benefits when a person is overseas. If a person was receiving the age pension immediately before an extended absence commences, the person will be entitled to receive the pension, notwithstanding their absence from Australia, for an unlimited period (ss 1213, 1214 and 1217 of the Act). In other words, the age pension is fully portable outside Australia. However this concept of portability is subject to a number of important limitations.
Under s 1220 of the Act, if a person is an Australian resident, ceases to be an Australian resident and then again becomes an Australian resident (referred to shortly as a ‘returning Australian resident’) and is granted the age pension, the pension will not be payable outside Australia within the two-year period of the person becoming a resident. As such there is a two-year qualification period of continued residency to have the benefit of portability. In addition, s 1220A provides that if a person has been continuously absent from Australia more than 26 weeks, the person's rate of pension is to be calculated using the Pension Portability Rate Calculator, which provides for proportionality in pension payments depending on the person’s working life and residence in Australia.
Section 81(1) of the Administration Act provides that the respondent may cancel or suspend a social security payment to a person if the person has been given a notice “embodying a requirement under Division 1 of Part 5” and “the person does not comply with requirement of the notice”. Section 81(3) relevantly provides as follows:
(3) If:
(a) a person who is receiving a social security payment has been given a notice under section 67 or 68 that requires the person to inform the Department of a proposal by the person to leave Australia; and
(b) the person does not comply with the requirement; and
(c) the person leaves Australia; and
(d) the person's portability period (see section 1217 of the 1991 Act) for the payment has not ended;
the Secretary may determine that the payment is to be cancelled or suspended.
Section 68 of the Administration Act provides that if a person is receiving a social security payment the respondent may give the person, among other things, a notice requiring the person to inform the Department about a specified event or change in circumstance (or whether it is likely to occur) where the event or change of circumstance may affect the payment of, or the person’s qualification for, the social security payment. Section 67 contains similar notice provisions where a person has made a claim for a social security payment. Section 192 of the Administration Act, which is in Division 1 of Part 5, provides that the respondent may require a person to provide information that may be relevant to, amongst other things, whether the person qualifies for the social security payment being received and the rate of social security payment that is, or was, applicable to the person. Any notice under sections 67 and 68 requiring notification of an event or change in circumstance that may affect qualification or payment of the pension is also a notice for the purposes of s 192 of the Administration Act.
A notice is “given” to a person if it is given personally or by post or in any other manner approved by the respondent (ss 72 and 196 of the Administration Act). Service by sending a document by prepaid post to the address of the place of residence of the person last known to the person serving the document is sufficient (s 28A of the Acts Interpretation Act1901). It is not necessary to establish that the person was aware of the notice or its contents (Re Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870).
On 17 July 2009, the Department sent a letter to Mr Fahmy notifying him that he had been granted the age pension. In addition, the letter provided as follows:
WHAT YOU HAVE TO TELL US ABOUT
You must tell us within 14 days (28 days if residing outside Australia) if any of the things listed below happen, or may happen. You can tell us by writing to us, or by calling, or you can come in and talk to us at any of our offices. This is an information notice given under social security law.
If your income changes (income means your gross income before you pay any tax, or if self-employed, your net profits after allowable deductions), that is if:
·your income, not including financial investments or maintenance, increases
·you start work or go back to work
·you start any form of profession, trade, business or self-employment
·you voluntarily salary sacrifice earnings into a super fund, or if self-employed, make personal contributions to a super fund for which you can claim an income tax deduction
·you receive any non-cash fringe benefits from your employer
·you buy or sell any share or managed investments
·you receive any bonus share
·you receive a lump sum amount of money or a one-off payment from any source.
If you receive compensation:
·you must tell us within 7 days if you become aware that you will receive or have received compensation.
If your assets change:
·if your assets other than financial investments are more than $140,702.00
·if your financial investments are more than $38,548.00 (this is $1000 more than the value of financial investments we have recorded for you)
·if you start any new accounts
·if you give away assets or sell them for less than their value
·if your assets change substantially
You must also tell us if:
·you marry; are in or commence a registered defacto relationship (either opposite or same-sex); reconcile with a former partner or start living with someone as their partner; separate from your partner or your partner dies
·you move into or out of a nursing home, hostel or retirement village
·you or any of your dependants are: charged with an offence and in custody on remand or in gaol after being convicted of an offence or in a psychiatric institution
·you sell, rent out or dispose of the home you live in
·you leave your home forever or for more than 12 months
·your Australian residence status changes
·you are involved in, or receive a benefit from, a private trust or private company
·the nature of your involvement in, or the benefit you derive from, a private trust or private company changes.
If you are planning to travel outside Australia:
·you must let us know within 14 days of making the decision to go so we can check whether you are still entitled to your pension, and any additional payments you may be receiving, while you are away. If you do not tell Centrelink about your departure, your payment may stop while you are outside Australia. Please note you must tell us if you go, or are planning to go to Norfolk Island.
If you change your address:
·let us know straight away. If your mail is returned to us because you are not at your address your payments may stop…
The letter was sent to the address notified by Mr Fahmy as his postal address in his claim form, being his residence at Quakers Hill. According to Mr Fahmy, he had rented out these premises from at least 2006 and was living with his daughter at the time of his claim for the age pension. It is common ground that Mr Fahmy did not receive this letter and it is likely the letter was returned to Centrelink by his tenants.
At the time Mr Fahmy applied for the age pension, he completed an application form dated 22 June 2009. He identified his postal address as the Quakers Hill property but did not identify this as his permanent address. He answered “no” to the question about whether he owned a home “but lived elsewhere” and did not disclose the income he was receiving from renting his Quakers Hill home, which was about $490 per week before expenses.
Mr Fahmy was interviewed by Centrelink staff about his application on 13 July 2009 and the file contains a summary of the matters discussed with Mr Fahmy during the interview. It was noted that Mr Fahmy was a “high residence risk” because he had been present in Australia for less than 20 per cent of the previous two years of his claim. The officer nonetheless recommended that Mr Fahmy be considered as a permanent resident for the purposes of his application. This recommendation was accepted and Mr Fahmy was notified his application for the age pension would be granted, first by telephone but also by the letter dated 17 July 2009.
Mr Fahmy did not disclose to Centrelink that he was proposing to travel overseas for an extended period, either in his application or during the interview. This is not in dispute. He did not advise about his impending departure on 31 July 2009, which he must have known at the time of the interview. Mr Fahmy said that when he was interviewed about his residency he was told by the Centrelink officer that he would not be entitled to the pension if he returned to Egypt. This is why he did not disclose his travel and why he was not surprised his pension was suspended when he left Australia on 3 December 2009. The respondent disputes that this is an accurate account of discussions with Centrelink staff. In any event, it is not in contest that Mr Fahmy failed to disclose his plans, did not respond to the letter of 17 July 2009 and, when he was overseas, did not contact Centrelink to advise of his change in circumstances until his return in July 2012.
Mr Fahmy gave evidence to the SSAT, much of which he repeated during the hearing before this Tribunal. Mr Fahmy lost money through a failed investment in 2007 and his only assets were the Quakers Hill property and some savings. He has a sick sister in Egypt, who he visits from time to time, two daughters and grandchildren, who reside in Australia, and he rents a townhouse in Chiang Mai, Thailand, from the son of a friend. Since 2009 Mr Fahmy has made three or four trips to Egypt, totalling about four months, but has spent the remaining time living in Thailand. He owns a dog in Thailand that is currently being cared for by a friend. He does not own property in Thailand and has a tourist visa. He does not have any bank accounts in Thailand but operates his Australian bank accounts and credit cards from there. Mr Fahmy spent Christmas 2012 with his sister in Egypt and a few weeks in Thailand before returning to Australia on 31 January 2013. He does not own property in Egypt but when he visits he stays with his sister in Cairo. He has familial responsibilities as the oldest surviving son and is close to his sister. Mr Fahmy said that he wanted to spend as much time as he can with his sister supporting her.
When Mr Fahmy is in Australia, he lives with his daughter and her three young children in Merrylands. He provides his daughter, who is divorced, with emotional and practical support from time to time. He has his own room and numerous personal belongings at his daughter's house. He has another daughter who lives in Sydney. Even though he has spent extensive periods overseas in the past few years, Mr Fahmy said that his intention has always been to come back to Australia to live. It was not his intention to leave Australia permanently and he retained ties here such as his home, his children and grandchildren and his various bank accounts. Mr Fahmy said he still identified with Australia, having lived and worked here for over 30 years and having family ties here. One of the difficulties he had encountered after he was made redundant was that it was expensive to live in Australia. This was one of the reasons he lived overseas and rented a house in Thailand.
Mr Fahmy contended he was an Australian citizen and had lived and worked in Australia for such a long period of time that he should be entitled to a fully portable age pension. He did not have an intention to leave Australia permanently, although he conceded he had lived overseas for extended periods. He contended that his pension should not have been suspended or cancelled in 2009 and he was being prejudiced because he is now treated as a ‘returning Australian resident’. As already noted, Mr Fahmy did not seek a review of the decision to suspend payment of his pension on 3 December 2012, probably because he had not understood he could make such a claim.
The respondent contended that the decision to suspend Mr Fahmy’s pension on 2 September 2009 was appropriate because he had not advised Centrelink officers of his departure from Australia nor had he advised about his income from renting out the Quakers Hill property. This was in breach of the notice of 17 July 2009. These matters were information which may have had an effect on Mr Fahmy's entitlement to receive the pension or the rate at which he was entitled to receive payments. This letter was returned to Centrelink, which subsequently became aware that Mr Fahmy was overseas through a review of immigration records. Mr Fahmy’s whereabouts were unknown because he had not notified Centrelink about his departure or any forwarding address. The failure of Mr Fahmy to advise of his departure and change of address prevented the Department from determining Mr Fahmy's entitlement to the pension and suspension of payments pending verification of his entitlement was appropriate in the circumstances. Cancellation of the pension 10 weeks later, given Mr Fahmy had not made contact with the Department about his changed circumstances, was also appropriate.
CONSIDERATION
The letter dated 17 July 2009 required Mr Fahmy to inform Centrelink about any changes in his income and assets, address and residence status, plans to travel outside Australia and the rental of his home. These are matters that may be relevant to Mr Fahmy’s qualification and/or rate of pension and, as such, I am satisfied the letter of 17 July 2009 was a notice for the purposes of s 192 of the Act. Furthermore, the letter specifically required Mr Fahmy to notify the Department about any plans to leave Australia, and therefore was a notice for the purposes of s 81(3)(a) of the Administration Act. I am also satisfied the letter was given to Mr Fahmy on or about 17 July 2009 because it was posted to him at his last known postal address. There is no dispute Mr Fahmy left Australia on 31 July 2009, did not notify Centrelink about this (or indeed about the rental of his property or change in residence) and therefore did not comply with the letter. By reason of this breach, the discretion to suspend and/or cancel Mr Fahmy’s aged pension under ss 81(1)(a)(ii) or 81(3) of the Administration Act was thereby enlivened by at least 31 July 2009.
When Mr Fahmy’s case was reviewed by Centrelink staff on 3 and 20 August 2009, it was noted that the letter of 17 July 2009 was returned and that Mr Fahmy was outside Australia. There is no record of the matters considered at the time but there is an electronic record of a decision apparently made on 2 September 2009 to suspend Mr Fahmy’s age pension. It was noted in the electronic record “whereabouts unknown”.
In written submissions, the respondent speculated that the initial decision to suspend was based on the fact the Department was prevented from determining whether Mr Fahmy was properly entitled to receive the age pension and, assuming he was entitled, the appropriate rate to which he was entitled. It was further noted that if Mr Fahmy had complied with the notice and disclosed his departure and the change in his principal place of residence and his income, these matters may not have affected his entitlement to unlimited portability of his pension but may have affected his rate of pension while living overseas. Alternatively, the Department may have reconsidered the original decision to grant the pension, which was based on Mr Fahmy’s residency in Australia. This latter is possible because it is clear from the file note of the officer’s interview and recommendation that the issue of residency was finely balanced.
As noted by this Tribunal in Re O’Connell and Secretary, Department of Social Security [1991] AATA 523 and Re Sevel and Secretary, Department of Social Security [1991] AATA 135, the remedy should be a “rational and proportionate response” to the failure to receive certain information. Suspension is “intended to be a genuine lesser thing than cancellation” and the discretion “extends to suspension for an appropriate period” (Gidaro v Secretary, Department of Social Security [1998] FCA 400).
Having regard to the largely undisputed facts in this case, I am satisfied it was rational and proportionate to suspend Mr Fahmy’s age pension on 2 September 2009 in circumstances where Mr Fahmy could not be contacted, had not contacted Centrelink for over a month, had left Australia (without making this disclosure in his application or interview), had a recent history of lengthy absences from Australia and was not living in his home but had not notified Centrelink about any rental income. These matters would have raised legitimate concerns about whether Mr Fahmy was, or would remain in the foreseeable future, qualified for the age pension at the rate being paid, or at all.
While Mr Fahmy may reasonably expect to be supported by the social security scheme as an Australian citizen and long standing resident, he also had an obligation to comply with any reasonable requirements of the Department, which included responding to notices and providing information that may affect his entitlements. Mr Fahmy must have known, or ought to reasonably have been aware, of these obligations and their relevance to his entitlement to the age pension. He was interviewed by Centrelink officers about his residency and Mr Fahmy must have known this was relevant to the decision to grant the age pension. This is consistent with the interview notes which record a summary of the matters discussed with Mr Fahmy prior to the grant.
Furthermore, the application form for the age pension signed by Mr Fahmy on 22 June 2009 contains a declaration just prior to the signing clause to the following effect:
I/We understand that:
·Giving false or misleading information is a serious offence.
·Centrelink can make relevant enquiries to ensure I/we receive the correct entitlement.
·I/we must notify Centrelink of any changes to this information within 14 days of the changes occurring.
This highlights the importance of the applicant providing accurate information and notifying Centrelink of any changes.
Taking these matters into account, I am satisfied the suspension of Mr Fahmy’s age pension was warranted until these issues could be clarified.
The question therefore arises as to whether Mr Fahmy’s pension should have thereafter been cancelled.
Mr Fahmy’s pension was cancelled on 13 November 2009. There is no record of the basis for the cancellation other than an electronic record which notes “whereabouts unknown”. The respondent submits that cancellation 10 weeks and 2 days after suspension was reasonable in these circumstances.
At the time of cancellation, Mr Fahmy’s pension was not being paid and Mr Fahmy was still overseas. He knew his pension was not being paid yet there is no evidence he contacted Centrelink about the non payment at this time, or indeed at any time until he returned to Australia in July 2012. He said this was because he had been told he would not be paid the age pension if he travelled overseas. There is no record of such advice being provided to Mr Fahmy. Mr Fahmy failed to provide important information to Centrelink regarding his entitlement to benefits both before and after his departure from Australia overseas for three years. According to the respondent, Mr Fahmy’s failure to disclose his rental income and the change in his principal residence would have had an effect on the rate of Mr Fahmy’s pension.
Notwithstanding this, in exercising the discretion under s 81 of the Administration Act to cancel a pension it is relevant to balance the public interest in ensuring a claimant complies with Department directives and notices to promote creditability and accountability in the social security scheme against the legitimate interests of the claimant to receive benefits. According to written submissions received from the respondent after the hearing, Mr Fahmy’s pension was fully portable at the time of cancellation. Mr Fahmy’s pension rate would not have been reduced by the proportionate rates provisions of the Act if he was continuously absent from Australia for more than 26 weeks because of the length of his working life as an Australian resident. This is a matter that was known to the decision-maker at the relevant time and is relevant to my consideration. Against this, Mr Fahmy did not comply with the notice of 17 July 2009 or contact the Department after he left Australia and prior to cancellation, nor indeed for about three years, and the information that he failed to disclose would have had an impact on his pension.
The respondent referred to a number of decisions of this Tribunal dealing with suspension and/or cancellation of benefits where the claimant had failed to comply with notices served under the Administration Act. In Guerin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 201 and Muir v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 720, the Tribunal accepted decisions to suspend then later cancel the age pension, in the first case, after nine months, and in the second, after three months, for failure to comply with notices requesting information. In contrast, the Tribunal set aside decisions to cancel the age pension in Clancy v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 679 and Kavadas and Anor v Secretary, Department of Families and Housing, Community Services [2004] AATA 74.
Each of these decisions turned on the particular facts in the case and it is conceded by the respondent that this case is unusual given the significant time that has passed since the original decision was made. It was also submitted by the respondent that the cases where the Tribunal has set aside the cancellation can be distinguished from this case. Having considered those cases, I accept this submission. In Clancy, it was accepted by the Tribunal that the applicant had failed to comply with notices because it was not in his power to do so and he had made his predicament clear to Centrelink. In Kavadas, the applicants had been receiving the pension for some 20 years, they had informed Centrelink about their departure and their pensions were fully portable. According to SM Carstairs “the applicants left the country with the innocently misguided belief that they had done all they had to do in regard to Centrelink.” This is not the case here.
It was submitted that to set aside the cancellation would leave the respondent with a lengthy almost indefinite suspension which is unreasonable given Mr Fahmy failed to make contact with the Department for some three years or to comply with notices. Mr Fahmy’s delay in making contact with the Department and in seeking a review of the decisions of 2009 has created a difficult situation, largely of his own making. There has been further delay as a result of the review process. Mr Fahmy has been adversely affected by the decision to cancel his age pension because, as events have happened, a decision was made by the respondent on 3 December 2012 that he was a ‘returning Australian resident’ at that time and therefore did not have unlimited portability. It was submitted by the respondent that, despite this, cancellation is not disproportionately harsh in the circumstances of this case. Mr Fahmy may still seek a review of the decision of 3 December 2012 on the basis that he did not intend to give up his Australian residency when he moved overseas. This argument is still open to Mr Fahmy. Moreover, he could return to Australia, remain living here for two years and thereby re-enliven the unlimited portability of his age pension. This right, and his right to argue he is not a ‘returning Australian resident’, has not been lost.
The effect of the decision to cancel Mr Fahmy’s pension on supervening events and circumstances is relevant to understand the context of the current dispute but my task is to assess whether it was appropriate to cancel Mr Fahmy’s age pension on 13 November 2009 having regard to the circumstances at that time. In this case Mr Fahmy’s pension was cancelled after 10 weeks because his whereabouts was unknown, he had not advised of his departure from Australia and had not contacted Centrelink, even though payment of his pension had been suspended since 2 September 2009. There was a history of Mr Fahmy living overseas for extended periods prior to his departure and Mr Fahmy did not disclose he was not residing in his Quaker Hill property and did not intend to continue to reside there, which he must have known at the time he completed the application and participated in the interview with Centrelink officers. If Mr Fahmy had contacted Centrelink before he left Australia or, at least at the time his pension was suspended, some of these issues may have been resolved. His pension may have been restored, albeit at a reduced rate. As already noted, the Department may also have decided to reconsider the original grant. Mr Fahmy did not contact the Department until some three years later.
Having regard to these matters, I am satisfied that the decision to cancel Mr Fahmy’s age pension on 13 November 2009 was the correct and preferable decision. It was not disproportionately harsh.
Under s 118 of the Administration Act, the cancellation is effective from the date of the suspension, which was 2 September 2009 but, given Mr Fahmy’s pension was last paid on 28 August 2009, with effect from this date. I therefore affirm the decisions of the SSAT in relation to the suspension and cancellation of Mr Fahmy’s pension. There is no dispute that Mr Fahmy again applied for the age pension on 20 August 2012 and was granted the pension effective from this date. The decision of the SSAT to affirm the decision to grant Mr Fahmy’s 2012 claim for age pension from 20 August 2012 and “not from an earlier date” is also affirmed, but essentially because I have found Mr Fahmy’s 2009 age pension could not be ‘restored’. His 2012 claim was therefore had effect from the date Mr Fahmy re-applied for the pension.
I affirm the decision of the SSAT that it did not have jurisdiction to conduct a review of the decision to suspend payment of the age pension granted in 2012 when Mr Fahmy left Australia on 3 December 2012. In my view, and the respondent does not dispute this matter, Mr Fahmy's right to seek a review of the decision to suspend his payments on the basis he was a returning Australian resident in July 2012 remains open, subject to any application for an extension of time to seek review of this decision by an authorised review officer.
In summary, I affirm the decisions of the SSAT.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member .........................[SGD]...............................................
Associate
Dated 26 March 2014
Date(s) of hearing 20 January 2014 Date final submissions received 7 March 2014 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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