OZAKMAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 337
•20 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 337
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0368
GENERAL ADMINISTRATIVE DIVISION ) Re YASAR OZAKMAN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date20 May 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Disability support pension – Portability while outside of Australia – Amendments to legislation to limit portability – Mere advice of future entitlements does not constitute a reviewable decision to enable Tribunal to exercise jurisdiction – Applicant present in Australia on date of commencement of amending Act – Exceptions to limited portability not applicable – Decision under review affirmed
Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 25(4), 34J
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3
Social Security Act 1991 (Cth) ss 23, 1217, 1218AA, 1218, 1218C, 1218D, Sch 1A cl 135
Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 (Cth) Sch 6Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Katsidonis and Secretary, Department of Employment and Workplace Relations [2006] AATA 67
Martinsen v Department of Family and Community Services [2004] FCA 297; (2004) 80 ALD 598
Meschino v Secretary, Department of Family and Community Services (2001) 65 ALD 220Popov and Secretary, Department Of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 205
REASONS FOR DECISION
20 May 2011 Mr R G Kenny, Senior Member BACKGROUND
1. Centrelink records indicate that Yasar Ozakman has lived in Australia since 1983 and been in receipt of the disability support pension since 1995 under the terms of the Social Security Act 1991 (Cth) (“the Act”). Over the years, Mr Ozakman has travelled on several occasions to Turkey to visit family members. Prior to 2004, the disability support pension remained payable to him, regardless of the length of his absence from Australia, because he was considered to be severely disabled. On 20 August 2004, Mr Ozakman advised Centrelink that he intended to travel to Turkey on 30 August 2004 and then return to Australia on 29 November 2004. By letter dated 20 August 2004, Centrelink advised Mr Ozakman that, if he remained outside Australia beyond 29 November 2004, his disability support pension may be reduced or stopped.
2. That Centrelink advice reflected amendments to the Act which commenced operation on 1 July 2004. The amendments changed portability arrangements for various income support payments, including the disability support pension, while a recipient is absent from Australia.[1] Subject to a range of exceptions, indefinite portability no longer applies and payments are limited to a period of 13 weeks.[2]
[1] See Chapter 4 Part 4.2 of the Act, introduced by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act2003 (Cth), Schedule 6 (“the Amending Act”).
[2] See s 1217 of the Act.
3. Mr Ozakman contacted Centrelink by telephone on 26 May 2005 and was advised of the amended portability arrangements. He travelled to Turkey in July 2005, June 2006, June 2007, July 2008, September 2009 and March 2010, on each occasion returning to Australia within the 13 week portability period. On 15 June 2010, Mr Ozakman again advised Centrelink that he intended to travel to Turkey and that he would be there for more than 13 weeks but, again, he was advised of the 13 week portability limitation. On 13 September 2010, Mr Ozakman’s son advised Centrelink that Mr Ozakman was to travel to Turkey to care for his mother, who was in ill-health. Once again, Mr Ozakman was advised of the 13 week portability limitation.
4. On 16 September 2010, Mr Ozakman requested that the initial decision concerning limited portability be reviewed. This was taken to be an application to review the “decision” of 20 August 2004 and, on 3 November 2010, an authorised review officer reviewed and affirmed that decision. In turn, the Social Security Appeals Tribunal (“SSAT”) affirmed the decision on 13 January 2011.
5. The matter came before the Tribunal and was determined in the absence of the parties without a formal hearing.[3]
[3] See s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
CONTENTIONS
6. The respondent submitted that no operative decision was made in this case in relation to the limit to the portability period for Mr Ozakman’s disability support pension. Rather, it submitted that, in August 2004, Mr Ozakman advised that he intended to travel overseas and Centrelink merely provided information to him concerning the potential impact on his disability support pension if he proceeded with his intention. The respondent submitted that no advice was given concerning his then present entitlement to continuing payments and that, in any event, such advice does not constitute a ‘decision’ as provided for in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Accordingly, the respondent submitted that the Tribunal has no power to conduct a review. Alternatively, the respondent submitted that the portability of Mr Ozakman’s disability support pension while outside Australia was limited to 13 weeks, as provided for in the amendments to the Act in 2004.
7. In his application for review, Mr Ozakman wrote that he was granted unlimited portability for his travel in 2003 and that he was not informed about the changes to the legislation. He also referred to his own health problems and to those of his mother and the need to remain in Turkey for periods in excess of 13 weeks duration.
LEGISLATION AND ISSUES FOR DETERMINATION
8. Under s 25(4) of the AAT Act, “the Tribunal has power to review any decision in respect of which application is made to it under any enactment”. Clearly, there must be a decision and the term ‘decision’ is defined in s 3(3) of the AAT Act and s 23(1) of the Act as meaning:
(3)Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
9. The term ‘decision’ is provided for in virtually identical terms in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).[4] In Australian Broadcasting Tribunal v Bond[5], the High Court referred to the examples in the provision set out above. Mason CJ said that they were indicative of a decision having “the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute” or "a determination effectively resolving an actual substantive issue". His Honour continued[6]:
32.… a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
33.Another essential quality of a reviewable decision is that it be a substantive determination …
[4] See s 3(2) of the ADJR Act and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Toohey and Gaudron JJ at 374 – 375 and Meschino v Secretary, Department of Family and Community Services (2001) 65 ALD 220 at 227.
[5] Op cit per Mason CJ at 336.
[6] Op cit per Mason CJ at 337.
10. The first issue for determination is whether the Tribunal has jurisdiction, in accordance with s 25(4) of the AAT Act, to review a ‘decision’ in this matter. If such jurisdiction exists, consideration must be given to whether Mr Ozakman’s circumstances are embraced by the amendments to the Act which commenced operation on 1 July 2004[7] and, if so, whether any of the exceptions in the Act are applicable to him.
[7] See notes 1 and 2 above.
11. As noted above, the 2004 amendments to the Act changed portability arrangements for the disability support pension while a recipient is absent from Australia.[8] Subject to a range of exceptions, indefinite portability no longer applies and payments are limited to a period of 13 weeks.[9] One exception relates to a recipient of the disability support pension who was absent from Australia when the amending Act commenced operation.[10] Other exceptions which apply to the disability support pension are set out in:
[8] See note 1.
[9] See s 1217 of the Act.
[10] See Schedule 1A cl 135 of the Act.
· Section 1218AA – where the recipient is terminally ill and the absence from Australia is or will be permanent;
· Section 1218 – where the recipient is a full-time student outside Australia for purposes of an Australian course of education;
· Section 1218C – where the recipient is unable to return to Australia because of any of a range of specified events which occurred or began during the period of the recipient’s absence, viz:
o a serious accident, serious illness or hospitalisation involving the recipient or a member of the recipient’s family;
o the death of a member of the recipient’s family;
o involvement of the recipient in custody proceedings in the country in which the recipient is located;
o a legal requirement for the recipient to remain outside Australia in connection with criminal proceedings;
o robbery or serious crime committed against the recipient or a member of the recipient’s family; or
o a natural disaster, political or social unrest, industrial action or a war in the country in which the recipient is located.
· Section 1218D – where the recipient requires life-saving medical treatment overseas.
CONSIDERATION
12. The letter which was sent to Mr Ozakman on 20 August 2004 was presented as a “decision”. The letter described itself as such and advised Mr Ozakman that, if he did not agree with the “decision”, he could contact Centrelink for further explanation and that it could be reconsidered and changed if appropriate. The right to have any such reconsideration looked at by an authorised review officer was referred to. However, the letter dealt with other matters as well as the advice on portability limitation. For example, it indicated that payments would continue to be paid into Mr Ozakman’s Australian bank account while he was outside Australia; that he was obliged to tell Centrelink of changes in his income and assets; and what would happen if he stayed outside of Australia for more than 12 months. Some of those matters related to his then entitlement. In relation to portability, the letter advised Mr Ozakman that his disability support pension “may be reduced or stopped” if he remained outside of Australia for more than 13 weeks.
13. In Katsidonis and Secretary, Department of Employment and Workplace Relations[11], the Tribunal was concerned with a letter to Ms Katsidonis which stated that “for future absences from Australia ... the changed legislation ... combined to restrict portability ... to a period of 13 weeks”. That advice was found to be a declaration and not merely a step along the path to making a decision. The Tribunal held that this amounted to a decision[12] which was reviewable.
[11] [2006] AATA 67.
[12] Applying s 3(3)(e) of the AAT Act: [2006] AATA 67 at [4] – [6].
14. The letter sent to Mr Ozakman, unlike that sent to Ms Katsidonis, did not unequivocally declare that his disability support pension would be limited to 13 weeks when he was outside Australia. The advice was that his disability support pension “may be reduced or stopped” if he remained outside of Australia for more than 13 weeks. This had no impact on his then entitlements under the Act and was not definitive in relation to future entitlements. It was merely an advice on the potential impact on his disability support pension if he proceeded with his proposed stay abroad. Such an advice does not entail a decision which is “final or operative and determinative”. I am satisfied that, on 20 August 2004, a reviewable decision was not made in relation to the long-term portability of Mr Ozakman’s disability support pension.[13] For that reason, I would affirm the decision. However, to assist Mr Ozakman in understanding his position under the Act as it now reads, I provide the following.
[13] See also Martinsen v Department of Family and Community Services [2004] FCA 297; (2004) 80 ALD 598; Popov and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 205.
15. I have noted Mr Ozakman’s reference to the portability position in 2003 but, clearly, that situation was based on the terms of the Act before it was amended. It is common ground that Mr Ozakman was in Australia on 1 July 2004 when the Amending Act commenced operation and, subject to the exceptions below, the unlimited portability of his disability support pension while absent from Australia no longer applies to him.
16. It is not in dispute that, at any relevant time, Mr Ozakman was not a full-time student as provided for in s 1218 of the Act. Neither is it disputed that any of the events specified in s 1218C occurred or began during the period of his absence in 2004. In that regard, his own and his mother’s health problems pre-dated his travel. There is no evidence that he is terminally ill or that his absence from Australia in 2004 would be permanent as provided for in s 1218AA of the Act or that he required life-saving medical treatment overseas as provided for in s 1218D of the Act. Accordingly, none of the statutory exceptions are applicable to Mr Ozakman and it follows that the maximum period for payment of disability support pension while Mr Ozakman was absent from Australia in 2004 would be 13 weeks.
DECISION
17. The Tribunal affirms the decision under review.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: ..........................[Sgd]..................................................
Danielle Armstrong, Research AssociateHearing on the papers
Date of Decision 20 May 2011
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