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

[2018] AATA 2302

Owens and Secretary, Department of Social Services (Social services second review) [2018] AATA 2302 (13 July 2018)

Division:GENERAL DIVISION

File Number:           2016/2155

Re:Kenneth Owens

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:13 July 2018

Place:Sydney

The decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 31 March 2016 is varied such that Mr Kenneth Owens is granted portability for the period of 24 March 2015 to 21 April 2015 in accordance with subsection 1217(2AA) of the Social Security Act 1991 (Cth).

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Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – payment suspended due to overseas absence – maximum portability period – extension of portability period where event occurred or begun during period of absence – whether applicant meets requirements for unlimited portability – whether temporary absence for a humanitarian purpose – cancellation of disability support pension – decision under review varied

LEGISLATION

Social Security Act 1991 (Cth) ss 1212B, 1215, 1217, 1218AAA, 1218AA, 1218AB, 1218C, 1218D

Social Security (Administration) Act 1999 (Cth) s 80

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Dr L Bygrave, Member

13 July 2018

INTRODUCTION

1. The applicant, Mr Kenneth Owens, was initially granted the disability support pension from 6 March 2008.

2. Mr Owens departed Australia on 20 January 2015 and, on 17 February 2015, the Department of Human Services (Centrelink) suspended his disability support pension because he remained overseas for more than 28 days.

3. On 3 March 2015, Mr Owens returned to Australia and resumed receiving payments of his disability support pension. He again departed Australia on 24 March 2015 and Centrelink advised him in writing that his disability support pension was suspended. As Mr Owens remained overseas, he was notified by Centrelink on 23 June 2015 that his disability support pension was cancelled. An authorised review officer of Centrelink affirmed this decision on 8 December 2015.

4. Mr Owens lodged an application for review to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) and, on 31 March 2016, the SSCSD varied the decision of Centrelink so that disability support pension was payable to Mr Owens for the period 24 March 2015 to 6 April 2015.

5. Mr Owens then applied to the General Division of the Tribunal for review.

6. The matter was heard on 14 June 2018. Mr Owens did not have legal representation; he attended the hearing in person and gave oral evidence.

   RELEVANT LEGISLATION AND ISSUES

7. The Social Security Act 1991 (Cth) (the Act) sets out portability provisions for the disability support pension. From 1 January 2015, the general portability provisions for disability support pension changed to specify that the maximum portability period for a person receiving the disability support pension is a total of 28 days in the last 12 months: see section 1217 of the Act.

8. Subsection 1217(2AA) permits the payment of disability support pension for four weeks under the following circumstances:

   Temporary absence for any of the following purposes:

   (a) to seek eligible medical treatment;

   (b) to attend an acute family crisis;

   (c) for a humanitarian purpose. [emphasis added]

9. The Guide to Social Security Law (the Guide) notes that this period of four weeks does not ‘count towards the DSP [disability support pension] recipient’s allowable 4 weeks portability in a 12-month period.’[1]

   [1] Section 7.1.2.20.

10. Relevant to this matter, the meaning of ‘humanitarian purpose’ is discussed in section 1212B of the Act, which states:

    For the purposes of this Part, a person’s absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:

    (a)  for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings; or …

11. For completeness, subsection 1217(2AA) also refers to sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D of the Act.

12. Section 1218AAA of the Act explains the circumstances where a person receiving the disability support pension can receive unlimited portability if they have a severe impairment that will exist for at least the next five years, and their severe impairment would prevent them from performing any work independently of a program of support within the next five years. The Guide notes that disability support pension recipients:

    …need to apply for indefinite portability…while in Australia and are required to undergo a portability assessment before departure.

    Generally, those recipients who are overseas and intend to apply for indefinite portability will need to return to Australia to undergo a portability assessment under these provisions.

    An exception to the requirement to return to Australia for an assessment will apply in limited circumstances where a…recipient is unable to return to Australia because they have had a serious accident, or been hospitalised, before the end of their current portability period.[2]

    [2] Section 7.1.2.10.

13. Sections 1218AA, 1218AB, 1218 and 1218D provide for unlimited portability for disability support pension in particular qualifying circumstances; these include when a person is overseas due to a terminal illness or life-saving medical treatment, or because of a family member’s employment.

14. Section 1218C of the Act allows the extension of a person’s portability period if they are unable to return to Australia because any of the following events have ‘occurred or begun’ during the allowable portability period:

    ·the person or their family member is involved in a serious accident, seriously ill, hospitalised, or the victim of a robbery or serious crime;

    ·the person is involved in custody proceedings, required to remain overseas in connection with criminal proceedings (other than in respect of a crime alleged to have been committed by the person), unable to return because of war, industrial action, or social or political unrest in which the recipient is not willingly participating, or is unable to return because of natural disaster; and/or

    ·a family member dies.

15. Section 1215 of the Act sets out that a person’s payment is not payable if they remain absent from Australia after their maximum portability period has ended. The Social Security (Administration) Act 1999 (Cth) (the Administration Act) stipulates at section 80 that a person’s social security payment is to be cancelled if they are no longer qualified to receive it.

16. The issues for determination by the Tribunal are whether:

    ·Mr Owens can be granted portability for disability support pension for the period of 24 March 2015 to 13 November 2015;

    ·Centrelink correctly cancelled Mr Owens’ disability support pension.

    EVIDENCE

17. Mr Owens’ travel records show he departed Australia to travel to Thailand on 24 March 2015 and returned on 13 November 2015. In brief, Mr Owens submitted to the Tribunal that his absence from Australia was due to attending court proceedings in Thailand following an incident in the late evening of 9 June 2014 and early morning of 10 June 2014, when Mr Owens was assaulted in the city of Pattaya, Thailand.

18. Mr Kem Kang, Mr Owens’ solicitor in Thailand, provided a letter dated 9 August 2016 explaining the assault/incident and subsequent legal proceedings as follows:

    …Mr Owens while attending a public drinking establishment in the city of Pattaya, was dancing to music being played at the bar…[and] brandishing the heavy metal hand sign to which the female proprietor of the opposite drinking establishment took offence to.

    By court witness accounts, on his next visit to the men’s toilets, the female proprietor and an accomplice followed Mr Owens into the men’s toilet and proceeded to attack him from behind… Photos of multiple facial and dental injuries and lacerations were presented to the court as evidence… The attackers did not have a single mark on them…

    The staff of the establishment at which Mr Owens was a patron immediately called the police to report the attack. The owner of this same establishment was also the same person who entered the men’s toilets and pulled the attackers off Mr Owens.

    Knowing the impending charges they were facing the attackers went [to] the Pattaya police station while Mr Owens was in hospital and filed a police report with a “co-operative” police officer stating that they were attacked by Mr Owens which the officer then submitted to the public prosecutor to file an assault charge against Mr Owens.

    Mr Owens had to attend hospital first and have his injuries attended to before he could go to the same police station and report the attack with the same police officer. Whilst filing the report the police officer confiscated Mr Owens’ passport (which is common practice) until the matter was settled or heard in court. As at this stage Mr Owens was unable to leave Thailand.

    The police officer took longer than usual to send the matter to the prosecutor as he was trying to extort a “payment” from Mr Owens…

    Eventually both criminal complaints were filed with the same district prosecutor. In other words the same prosecutor was in the unusual position of prosecuting both cases… Both Mr Owens and his attackers had present at the court to be charged and post bail.

    …

    Numerous court dates, adjournments and months later the two female attackers were found guilty and convicted of malicious assault and were given a two-year suspended sentence due to the fact that the main offender had just given birth to a baby.

    …

    At this stage Mr Owens’ passport was still being held by the police as the false charges against him had yet to be heard in court.

    Further delays and adjournments followed as the prosecutors’ witnesses for the assault charge against Mr Owens (the two convicted female attackers) did not present in court knowing that they could not prove assault charges against Mr Owens after they had already been convicted for assaulting him.

    The presiding Judge gave them numerous chances in the following months and summons’ to appear in court. Finally the case was heard without the two female witnesses/attackers and the Judge dropped the charges against Mr Owens.

    …

    After the charges were dropped against Mr Owens the court had to wait another mandatory 60 days to allow the prosecutor time to appeal the judgement before they could issue the final judgement. The prosecutor never filed an appeal.

    Mr Owens has been cleared of all charges and is free to travel and visit Thailand…[3]

    [3] Exhibit A5.

19. Mr Owens’ oral evidence was reasonably consistent with these details in Mr Kang’s letter. However, I note that both Mr Kang and Mr Owens were poor historians regarding specific dates and timeframes.

20. Mr Kang’s statement and Mr Owens’ evidence regarding the outcome of the legal proceedings is verified by a Judgement in the Pattaya Provincial Court dated 8 June 2015 that found the two female attackers guilty of jointly assaulting Mr Owens on 10 June 2014, with ‘punishment of imprisonment…suspended for a period of 2 years’.[4] A further Judgement in the Pattaya Provincial Court dated 8 October 2015 dismissed the public prosecutor’s case against Mr Owens.[5]

    [4] Exhibit A4.

    [5] Exhibit A3.

21. At the Tribunal hearing, Mr Owens provided evidence about his travel between Australia and Thailand. He acknowledged that he travelled regularly to Thailand between 2013 and 2015 to visit his (then) girlfriend. His travel records show he was in Thailand for more than eight months in 2013 and travelled to Thailand from Australia on six occasions in 2014. His travel to Thailand in 2015, which is relevant to this decision, is outlined in paragraphs 2 and 3 above.

22. At the Tribunal hearing, the Secretary’s representative asked Mr Owens why he travelled to Thailand in March 2015. Mr Owens was adamant that he wanted to resolve the legal proceedings in Thailand to clear his name as he was not guilty of the charges and so that he did not have a ban on his visa/passport to return to Thailand. I accept that Mr Owens felt he had no choice but to travel to Thailand on 24 March 2015 to deal with the legal proceedings relating to the assault/incident in Pattaya on 9-10 June 2014.

    CONSIDERATION

23. Based on the evidence, I make the following findings:

    ·Mr Owens departed Australia on 20 January 2015. In accordance with section 1217 of the Act, payment of his disability support pension was correctly suspended by Centrelink on 17 February 2015 because he was overseas.

    ·At the date of Mr Owens’ departure from Australia on 24 March 2015, he had used his maximum portability of 28 days.

    ·Mr Owens did not apply for indefinite portability of his disability support pension or undergo a portability assessment prior to his departure from Australia on 24 March 2015. This means the provisions in section 1218AAA of the Act cannot apply to Mr Owens.

    ·The event requiring Mr Owens to travel to Thailand on 24 March 2015, namely his involvement in legal proceedings due to his involvement in an assault on 9-10 June 2014, occurred prior to his departure from Australia. Therefore, his circumstances do not meet the requirements in section 1218C of the Act. 

    ·The qualifying circumstances set out in sections 1218AA, 1218AB, 1218 and 1218D of the Act are not relevant to Mr Owens’ situation.

    ·Mr Owens travelled to Thailand on 24 March 2015 to attend legal proceedings. Due to the nature of these legal proceedings and the removal of his passport, he remained in Thailand until 13 November 2015.

24. The question for the Tribunal is whether the legal proceedings that kept Mr Owens in Thailand were a ‘humanitarian purpose’ as defined in section 1212B of the Act.

25. The Judgements of the Pattaya Provincial Court on 8 June 2015 and 8 October 2015 show that Mr Owens was assaulted by two women and the prosecutors’ case was dismissed. I am satisfied that these legal proceedings are within the meaning of ‘humanitarian purpose’ and therefore, Mr Owens was eligible for portability for 28 days from 24 March 2015 to 21 April 2015 pursuant to section 1217(2AA) of the Act.

26. As Mr Owens departed Australia on 24 March 2015 and did not return until 13 November 2015, I find that the decision to cancel his disability support pension in accordance with section 80 of the Administration Act is correct.

    DECISION

27. The decision by the SSCSD on 31 March 2016 is varied such that Mr Owens is granted portability for the period of 24 March 2015 to 21 April 2015 in accordance with subsection 1217(2AA) of the Social Security Act 1991 (Cth).

I certify that the preceding 27 (twenty-seven)paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 13 July 2018

Date(s) of hearing:	14 June 2018
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services