Pantazi and Department of Family and Community Services - [2001] AATA 972

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 972

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/145

GENERAL ADMINISTRATIVE DIVISION       )
           Re      FLORIAN PANTAZI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date15 November 2001
PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to the continuation of Newstart Allowance payments during a temporary absence from Australia.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – temporary absence from Australia – whether the applicant is entitled to continuation of payments – whether absence is for humanitarian purpose
Social Security Act 1991 sections 1212B, 1212D, 1217

ORAL REASONS FOR DECISION

15 November 2001 Senior Member WJF Purcell

This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 12 April 2001, which affirmed the decision of an Authorised Review Officer of 21 February 2001, to refuse to grant the applicant Newstart Allowance during a temporary absence from Australia.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered at the Hearing. The applicant appeared on his own behalf and gave oral evidence, as did his wife. Mr Underwood represented the respondent (the Department).
The matter was heard on 19 October 2001. At the conclusion of that Hearing I reserved my decision. At the Hearing the applicant supplied the Department with correspondence in the Romanian language, which he maintained related to legal proceedings in Romania. Mr Underwood was to arrange for a translation of these documents to be forward to Registry as soon as possible. I was informed by Mr Underwood today, that because of the poor quality of the photocopy documents, the Department has been unable to obtain translation as yet. In the light of receipt by Registry of a recent letter sent to the applicant by the European Court of Human Rights, I consider that these earlier letters are no longer relevant to the decision I will make today.
On 29 October 2001 the Registry received from the applicant a facsimile attaching a letter in Romanian from the European Court of Human Rights. On my instructions, Registry forwarded the letter to the Interpreting and Translating Centre and on 13 November 2001 the Translating Centre forwarded, by facsimile, the translation of the letter. I listed the matter for resumption of the Hearing to enable both parties to put further submissions if they considered it appropriate, in the light of the letter from the European Court of Human Rights (Exhibit R1). The matter came on for further hearing this afternoon.
Part 4.2 of the Social Security Act 1991 (the Act) relates to overseas portability of pensions and allowances. Section 1217 of the Act was amended on 20 September 2000, and provides now, that Newstart Allowance may be paid to a recipient for a temporary absence for a maximum period of 26 weeks, for any of the following purposes:
(a)      to seek eligible medical treatment;
(b)      to attend to an acute family crisis; or
(c)       for a humanitarian purpose.
The applicant submits that his proposed temporary absence from Australia satisfies section 1212B of the Act which provides:
"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
(b) for purposes relating to the adoption of a child by the person; or
(c) for a purpose specified in the regulations for the purposes of this paragraph."
The applicant maintains that the absence would be for the purpose of involvement in "other legal proceedings" ie the four proceedings which are extant in Romania and need to be re-instated at the applicant's own request. This can only take place if he is present in Romania, and able to instruct a Romanian lawyer in that country. In addition he will pursue proceedings in the European Court of Human Rights, and has received acknowledgment now, from that Court of his provisional application forwarded by him on 29 March 2001.
The Department maintains that the applicant has not specified the date on which he intends to leave Australia; that there is significant difficulty in the Department providing an open-ended approval to receive Newstart Allowance while a person is outside Australia. The applicant has not been able to categorically state or provide evidence that he will return to Australia, or the date on which he intends returning. An indefinite stay outside Australia cannot readily be characterised as "temporary". The applicant has no real estate or other significant assets in Australia. He is unemployed, but has various contacts overseas. There is no indication that he holds any commitment to live in Australia, or return to Australia.
The Department argues also that the applicant's reason for leaving Australia may be characterised as being for a "humanitarian purpose" in that he seeks to be involved in "other legal proceedings". However, legal proceedings can be protracted, and much time may be spent between court appearances. It is possible that the actual time spent in court in substantive proceedings is very small in comparison with the total time spent in litigation. It is therefore appropriate to limit the circumstances in which approval for continued payment of Newstart Allowance could be provided. Further, the definition requires that the absence be for "involvement" in legal proceedings. This implies that the person is required to be personally present, the proceedings must already exist, the proceedings must be substantive, and preparatory actions and incidental proceedings are not covered by the provision.
The applicant, who was born on 1 January 1956 in Romania, is a historian. He lived in Australia with his wife from 1981 to 1991, and obtained Australian citizenship during that time. The couple returned to live in Romania where the applicant continued his work as a historian, and operated an import business with his wife. Their son, Victor, was born on 11 June 1991. The applicant wrote an article critical the Romanian Government on 4 May 1999, and was threatened with gaol by the Prosecutor's Office, unless he was prepared to sign a document saying that he was psychologically unsound; or alternatively, he could return to Australia with his family.
The applicant says that he was experiencing problems also with his cosmetics business, which imported product from overseas, including England. Iranian and Iraqi companies were in collusion with government officials, and not paying VAT and other taxes; and were selling products whose "use by date" had expired. The applicant, on the other hand, had to spend large sums of money carrying out all the required tests. The applicant's retailers were threatened by the Iranians and the Iraqis, and within one month had agreed not to deal with the applicant. When the applicant complained that these other products were not up to standard, he and his wife were sued for defamation, but could not get a fair trial. They lost the case and have appealed, and that appeal has not as yet proceeded further.
The applicant gave evidence that with the accusations that his article was undermining the State in the Kosovo War, he and his family were forced to leave the country, and were told that they would be pursued no matter where they went. The applicant says that, in addition, there are current legal proceedings in Romania against the bank, which forced the applicant's wife to sign documents, which enabled the bank to repossess the company car. The applicant and his wife sold whatever goods they could, before leaving Romania, but they were forced to abandon their partly built home, and are unaware of what has happened to the home and to the company motor vehicle.
The applicant gave evidence in relation to his proceedings in the European Court of Human Rights. He said that Romania has signed the 1994 Charter of Human Rights, and now must be brought to Court and made to understand that the past is the past, and they must move on from the old mentalities and techniques with people with whom they disagree. Romania is the only nation in the world built by historians. They actually built the university and gave the name to the country, which was a liberal country until 1947. Historians are very highly regarded by the Romanian citizenry. This is why the applicant's proposed legal action is so extremely important to himself, and to expose how criminal networks have pushed out legitimate businesses, and financed terrorism throughout the world. The European Court will not take his claim so seriously as an Australian citizen, which is why he and his wife surrendered their Australian citizenship in July 2000, to ensure their standing as Romanians before the European Court.
The applicant said that when he has reinstated the other proceedings in Romania, and has exposed what the authorities have done, he will not be able to stay in Romania. When they were forced to leave in 1999 they went first to England, where they sought asylum, on 18 May 1999. They travelled then to Switzerland, because the applicant says they were trying to be close to the United Nations in Geneva. In any event, they were deported to Australia. The applicant said in evidence that although he and his wife are no longer Australian citizens, they have permanent residency in Australia. He said also, in evidence, that he cannot give an ironclad guarantee, in effect, that whatever the outcome of the European Court case he will return to Australia in a fixed period of time. He said that he and his family are not going to have a living unless they solve these threats from the Romanian Government, and their legal predicament. He said also that, as a result of his court action, he might receive some money and be able to buy a place in Australia. He said in evidence:
"… If I can't get a job and I can't solve the matter there, how can I invest in property here. … Well, you're attached to a place, any place on earth, if you can make that place work for your family. Well allow to make this place and Australia work for me too, not only for some ." [Transcript p21-22]
In my view the dilemma in the minds of the applicant and his family will never be resolved unless he can reinstate his proceedings in Romania and take action in the European Court. The recently received letter from the European Court (Exhibit R1) is a significant document in my view. It supports the applicant's assertions at the earlier Hearing, as to these proceedings. The letter requires the applicant to provide relevant documents, in particular copies of decisions given by national jurisdictions and authorities, that he intends to contest before the Court. I accept his evidence that it will be necessary for him to travel to Romania to obtain some of this documentation, and to obtain legal advice.
At today's Resumed Hearing, the Department submitted that the letter (Exhibit R1) did not change its position in this matter. The legislation requires that there be substantive proceedings, not provisional, and that legal proceedings must already exist.
The applicant today advised the Tribunal that he forwarded on 25 October 2001 the formal application required by the European Court, and some two thirds of the documents upon which he will rely. The balance of the documents are in safe-keeping in Romania, and some other countries in Europe, and must be retrieved by the applicant as a matter of urgency, before he can proceed further and obtain the services of a lawyer.
I consider that, for the purposes of section 1212B of the Act, the proceedings in Romania, together with the forwarding of the formal application to the European Court, are sufficient involvement in "other legal proceedings" to satisfy the section.
I am satisfied on the evidence, that it is more likely than not that the applicant's absence will be temporary. I am satisfied on the evidence, that the applicant's proposed temporary absence is for a "humanitarian purpose" in accordance with section 1212B of the Act.
Section 1212D of the Act provides:
"For the avoidance of doubt nothing in this part confers a right on a person to continue to be paid Social Security payment if the person is not q2ualified for the payment (even if the person's failure to qualify is related to the absence)."

I consider that if the applicant continues to qualify for the payment of Newstart Allowance, the allowance should be paid to him during his temporary absence.

For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the applicant is entitled to the continuation of Newstart Allowance payments during a temporary absence from Australia.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  19 October 2001 and 15 November 2001
Date of Decision  15 November 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr J. Underwood
Solicitor for the Respondent    Centrelink