Ong and Secretary, Department of Social Services (Social services second review)

[2016] AATA 502

Ong and Secretary, Department of Social Services (Social services second review) [2016] AATA 502 (31 May 2016)

Division	GENERAL DIVISION
File Number	2015/5984
Re	Nhan Ong
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	31 May 2016
Date of written reasons	19 July 2016
Place	Adelaide

The Tribunal affirms the decision under review.

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Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – maximum portability period – illness overseas – suspension and cancellation of disability support pension – maximum portability period not extended and discretion not exercised – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 1217, 1218C

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634

REASONS FOR DECISION

Senior Member R W Dunne

19 July 2016

INTRODUCTION

1. On 20 June 2016, the applicant (Mr Nhan Ong) requested written reasons for my decision, which I delivered orally on 31 May 2016.

2. This matter involved the provisions of the Social Security Act 1991 (“Act”).  The issue was whether the applicant (Mr Nhan Ong) exceeded the maximum portability period for the payment of his disability support pension (“DSP”) overseas, and whether the applicant’s maximum portability period for the payment of his DSP could be extended.

3. At the hearing before me, the applicant represented himself, with the assistance of an interpreter. The respondent was represented by Ms L Daminato. I admitted into evidence the T-Documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).

   ISSUES FOR THE TRIBUNAL

4. The issues for the Tribunal are:

   (a)Whether the applicant exceeded his maximum portability period for the payment of his DSP; and if so

   (b)Whether the applicant’s maximum portability period for the payment of his DSP can be extended.

   LEGISLATION

   The legislation that is relevant in this case is largely contained in Part 4.2 of the Act. Part 4.2 provides for overseas portability. Portability refers to whether a social security payment can continue to be paid while a recipient is outside of Australia. Section 1217 of the Act sets out the maximum portability period for various payments, including DSP. Where portability is not unlimited the allowable period is usually six weeks. Section 1218C(1) of the Act provides some limited reasons which allow for the portability of a payment to be extended.

   BACKGROUND

5. The applicant was granted DSP from November 2005 for post-traumatic stress disorder.  He departed Australia for Vietnam on 11 February 2015.  It appears he did not advise Centrelink that he intended to travel overseas, prior to his departure.  He did not participate in a medical review under the current DSP Impairment Tables, prior to his departure.

6. On 11 March 2015, Centrelink made a decision to suspend the applicant’s DSP from 11 March 2015 until he returned to Australia on the basis that he exceeded his maximum portability period, which at that time was 28 days.

7. On 23 March 2015, the applicant contacted Centrelink via email to advise that he had gone to Vietnam to repatriate his father’s ashes.  His father had passed away on 17 January 2015.  After burying his father he decided to stay in Vietnam with his wife.  They had been married for over a year, but were yet to conceive a child and he was determined to do so before he turned 60.  They decided to take the opportunity of him being in Vietnam to undergo fertility testing.

8. The applicant returned to Australia on 11 May 2015 and his DSP was restored from this date.  On 22 April 2015, Centrelink decided that the portability period of the applicant’s DSP could not be extended.

9. On 23 June 2015, an authorised review officer (“ARO”) reviewed and affirmed the Centrelink decision.  The ARO concluded that the applicant was not prevented from returning to Australia prior to 11 March 2015 “due to an extreme event or emergency situation”.  The decision to suspend the applicant’s DSP was correct.

10. On 3 August 2015, the applicant sought a review of the ARO decision by the Administrative Appeals Tribunal (at first review) (“AAT1”).  On 15 October 2015, AAT1 made a decision affirming the ARO’s decision.

    SOCIAL SECURITY LAW

11. Under social security law a person receiving DSP, proceeding overseas, cannot receive the DSP for an unlimited period.  In the applicant’s case, the portability period was not unlimited – it was limited to 28 days.  DSP is portable for an unlimited period if the recipient is a severely impaired disability support pensioner or is a terminally ill overseas disability support pensioner.  The Secretary (through Centrelink) may make a written determination that a person’s maximum portability period for DSP is unlimited, in the main, if the person is unable to return to Australia because:

    (a)there is a serious accident involving the person; or

    (b)there is hospitalisation of the person

12. Under s 1218C of the Act, the portability period is unlimited where the DSP recipient is unable to return to Australia because:

    (a)there is a serious accident involving the recipient or a family member;

    (b)there is serious illness of the recipient;

    (c)there is hospitalisation of the recipient or a family member;

    (d)there is death of a family member;

    (e)there are custody proceedings involved;

    (f)there are legal requirements;

    (g)there is a robbery or a serious crime;

    (h)there is a natural disaster in the country;

    (i)there is political or social unrest in the country; or

    (j)there is Industrial action or a war.

13. Centrelink must not extend the portability period unless the event preventing the recipient returning to Australia is extreme or is of an emergency nature and occurred or began during the allowable portability period. 

14. Ms Daminato submitted that the decision to suspend the applicant’s DSP after his absence exceeded 28 days was the correct and preferable decision.  It was not contended by the applicant that he was terminally ill at the time of his departure, nor was there a written determination made prior to departure that he was suffering from a severe impairment.  Hence, it follows that the applicant is not entitled to unlimited portability and the DSP period of portability is restricted to 28 days.

    EVIDENCE

15. Although the applicant advised the Tribunal that he first noticed chest pain on 6 and 7 March 2015 and then went to hospital on 10 March 2015, there was no evidence in writing to support these assertions.  When the applicant emailed Centrelink on 23 March 2015, he advised that he would be undergoing sterility treatment.  He did not say he had suffered chest or heart pains in the week prior, which suggests his reason for remaining in Vietnam was to undergo sterility treatments.

16. In the T-Documents there is a translated medical document dated 11 March 2015.  This indicates that the applicant attended hospital in Da Nang for male sterility issues.  The examination at the hospital recorded normal body, normal heart and lungs.  Ms Daminato submitted that this suggests the applicant was not at that time suffering from chest or heart symptoms, or he didn’t tell the examining doctor that he was.

17. All the documents tell us is that there might have been issues with the applicant’s fertilisation ability.  And it is also recorded in the documents that the applicant was going to be treated as an outpatient with medication for those fertility issues.  Chest pain is not mentioned until there is a translated medical document from the Da Nang Hospital dated 13 April 2015.  It is recorded there that the applicant said to the doctor or someone who was treating him that he had “chest ache, hard to breathe about two weeks, now come see doctor”.

    CONSIDERATION

18. In giving his evidence, the applicant said he had chest ache and that it had been hard to breath for two weeks.  Ms Daminato submitted that this suggested that chest pain and or breathing difficulties started after the portability period ended on 10 March 2015.  The documents also indicated that an echocardiogram, an electrocardiogram and a lung X-ray all produced normal results, and the diagnosis is recorded of unstable chest pain.  There is no indication that the applicant was admitted to hospital.  I accept that his oral evidence might be to the contrary, but there is no medical evidence to support that fact.

19. Based on the medical evidence to hand, there were two medical issues while the applicant was in Vietnam.  The only issue occurring during the portability period was sterility testing and then there was also the issue of chest pain which arose in mid-April 2015.  Although I understand the applicant’s case to be that it was a serious illness and or hospitalisation that prevented his return to Australia, sterility testing was the only medical event which occurred during the portability period. 

20. Ms Daminato further submitted that there is simply insufficient evidence to say that there was a serious illness that prevented the applicant’s return to Australia.  I understand that not to be the applicant’s case in any event.  It was not the treatment that prevented him from returning to Australia.  It was the chest pain and or the tumour in the neck.

21. What is “serious illness”? It is not an expression that is defined in the Act. Ms Daminato suggested that the Tribunal should apply the ordinary meaning of “serious illness”. And in the context of the Act, that means a serious illness that prevents someone from returning to Australia. If further guidance is necessary, in the Act s1218C refers to grievous circumstances preventing someone from returning to Australia. The Social Security Guide (“Guide”) contains policy about the application of s1218C. In the Guide, dealing with the General Rules of Portability, the Tribunal must apply policy unless there is good reason for not doing so (Drake and Minister for Immigration and Ethnic Affairs (No 2)).[1]  Moreover, in the Guide “serious illness” refers to the fact that the medical condition involved needs to be an extreme or emergency situation.  In my view, that is what the provision intends and that an extreme or emergency situation prevents someone from returning to Australia.

    [1] (1979) 2 ALD 634.

22. Even if I considered the issue of chest pain, does the applicant’s chest pain fall within one of the exceptions set out in s 1218C? Ms Daminato submitted that there is very limited evidence about this issue and the only medical record available about the chest pain is one dated 13 April 2015. In my view, that fails to establish that the applicant’s heart condition was a serious illness for the purposes of exercising the discretion to extend the portability period.

23. As to the issue of the tumour that the applicant says was discovered whilst in Vietnam, it is not apparent from any of the medical documents in the T-Documents which refer to the treatment that he had while in Vietnam that the tumour was ever raised as an issue.  We do not have a document from the specialist who is said to have diagnosed this condition in Vietnam.  All we have about the issue of the lump that was eventually removed from Mr Ong’s neck are some documents which he has since provided to the Tribunal indicating that a procedure took place in November 2015.  Ms Daminato submitted that those documents are of very limited relevance and do not support any assertion that that lump, which apparently was discovered in Vietnam although there is no evidence to support that fact, prevented his return to Australia in the portability period or in the period of his absence more generally.

24. Although it was not an issue canvassed much in the applicant’s oral evidence, I note that he has listed being a victim of robbery or a serious crime in his statement of facts, issues and contentions.  It was also a matter he referred to in his opening.  Ms Daminato submitted that there was no evidence that any robbery occurred or was a factor that prevented the applicant’s return to Australia.  In these circumstances, I am not prepared to take the matter any further. 

25. I also note there is some mention of financial hardship in the applicant’s statement of facts, issues and contentions. Ms Daminato submitted that that is not a consideration which I should have regard to when deciding whether to exercise the discretion in s 1218C. I agree that it is not relevant to exercise of this discretion.

    SUMMARY

26. In summary, Ms Daminato submitted that there is simply a lack of cogent medical evidence capable of enlivening the discretion set out in s 1218C of the Act. For that reason, she submitted that the decision of the AAT1 should be affirmed. I agree with that submission.

27. Mr Ong asked that I consider his case humanely.  In my view, I did that on all the evidence available.

    DECISION

28. For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 19 July 2016

Date(s) of hearing	20 & 31 May 2016
Applicant	In person
Advocate for the Respondent	Ms L Daminato
Solicitors for the Respondent	Sparke Helmore