Parmakli and Secretary, Department of Family and Community Services - [2000] AATA 1082

DECISION AND REASONS FOR DECISION [2000] AATA 1082

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D2000/25

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

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date8 December 2000
PlaceDarwin

Decision      The Tribunal sets aside the decisions under review and substitutes a decision that age pension was not payable to the applicant for the period September 1999 to December 1999 inclusive.
  ..............................................
  Senior Member

Decision No: 2000/1082
CATCHWORDS
SOCIAL SECURITY – applicant continued to receive age pension while absent from Australia – whether the applicant informed the Department of her absence – whether a departure certificate was issued – pension cancelled upon Department finding applicant was not resident in Australia – applicant reapplied upon return – question of date of resumption of payment
Social Security Act 1991 ss 43, 50, 51, 1218A, 1218B, 1218C, 1218C(1), 1218(1), 1218(2), 1219

REASONS FOR DECISION

8 December 2000 Mr K L Beddoe (Senior Member)

On 22 December 1999 the respondent decided to grant an age pension to the applicant with effect from 20 December 1999. The applicant says that the date of effect should be 2 September 1999. In the alternative the applicant says that the respondent was wrong to cancel payment of age pension from 2 September 1999.
On 29 May 2000 the Social Security Appeals Tribunal notified a decision to affirm both decisions.
Sections 50 and 51 of the Social Security Act 1991("the Act") have the effect of requiring that a claim for an age pension will not be a proper claim unless the claimant is an Australian resident, is in Australia at the time and the claim is made in Australia at an office etc approved by the respondent.
No issue arises in this case as to whether the applicant is an Australian Resident although the known facts do not seem to support that status. I have proceeded on the basis that section 43 of the Act has been satisfied because I was invited to do so by the respondent.
That section is, however, subject to the operation, inter alia, of section 1218 of the Act. That section applies to age pensions (s 1218(1)). The operative provision, which is a self executing provision, is section 1218(2) (sections 1218A and 1218B being of no effect in this case) which provides that a person who is absent from Australia for more than six months ceases to be qualified for a social security payment six months after the person's departure from Australia, unless the person has been given a departure certificate under section 1219 relating to the departure.
If a person ceases to be qualified for a social security payment because of the operation of section 1218(2) then:
(a)the person remains disqualified until the person becomes qualified again for the payment (either under sub-section 1218C(1) or by any other means); and
(b)the payment ceases to be payable to the person from the time the person ceases to be qualified until the person becomes qualified for the payment again.
Sections 1218A, 1218B and 1218C provide for continuation of qualification in particular circumstances. None of these provisions operate on the facts of this case.
Section 1219 provides for the issue of Departure Certificates. There is no dispute that a Departure Certificate did not issue in this case.
At the hearing the applicant conducted her own case and Mr Walsh represented the respondent. Documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were put into evidence as the T documents. (I rejected the tender of documents T23, T24 and T25). Oral evidence was given by the applicant, her son and her daughter. All required the assistance of an interpreter and the applicant conducted her case through the interpreter. Initially I was concerned that the applicant may be disadvantaged by her inability to understand English, however, I became satisfied that she well understood the issues.
All three witnesses were evasive in the answering of questions but I was not satisfied that they were deliberately evasive.
I make the following findings of fact.
The applicant was born in Turkey on 2 August 1909 but is of Greek heritage. She first arrived in Australia on 29 April 1976, her husband having died in 1951. Pension was first paid on 20 December 1990 when the applicant was 81 years of age.
The applicant had arrived in Australia on 4 December 1990 but I was unable to get a clear picture as to her movements in and out of Australia before that date.
She departed Australia on 9 June 1991 to live in Greece until 20 January 1995 when she again arrived in Australia. Throughout this period of absence from Australia she said that she was paid an Australia pension. That is corroborated by document T3 which records efforts by the respondent's predecessor to recover payments sent to Greece in February 1995 ie after the applicant had arrived in Australia.
At issue in these proceedings is the applicant's departure from Australia on 2 June 1995. She says she left as a matter of urgency because of the death of a grandson in Greece. There is confusion in the material before me as to whether she notified the respondent of her departure from Australia. I prefer her oral evidence before me which was to the effect that she did not notify the departure prior to leaving Australia.
The respondent seems to have been unaware of the fact of the applicant living overseas until mid 1999 unlike the previous period of absence from Australia. The applicant's pension payments continued to be paid into an Australia bank account. The applicant said that the funds were remitted to her from time to time by her family members living in Australia.
In September 1999 Centrelink correspondence addressed to the applicant was returned to Centrelink endorsed by the Post Office "Return to Sender – unknown at address". Previous correspondence to that address had been accepted but the applicant's son moved from that address in 1998.
Being unaware of the applicant's whereabouts the respondent suspended pension payments and subsequently cancelled those payments. The last payment being made on 2 September 1999. On 19 December 1999, the applicant returned to Australia and subsequently attended the Casuarina Centrelink office enquiring about her health care card. On 22 December 1999 the applicant made a signed statement to Centrelink in which she stated, inter alia, that she intended to reside in Australia permanently with a grand-daughter living at Larrakeyah.
In her oral evidence the applicant explained her absence from Australia from June 1995 to December 1999 as being caused by her commitment to her daughter who had suffered the loss of two sons (applicant's grandsons) and had not been well because of the tragedies. The daughter has subsequently died.
On 6 January 2000 the applicant made a claim for pension and that claim was granted with effect from 20 December 1999. It is not apparent on the material as to why the claim was paid from 20 December 1999.
There is no dispute that the respondent did not issue a departure certificate under section 1219 relating to the departure in June 1995 because, I am satisfied, the applicant did not advise the respondent either before or after her departure that she was living overseas.
The respondent drew my attention to a number of previous decisions. I allowed the applicant 21 days to make any written submissions she wished to make about these previous decisions. In the ultimate I found these decisions of little assistance in deciding this case. The applicant did not make any submission about these decisions.
Consideration
Because the applicant did not advise that she was living overseas at any relevant time the respondent did not issue a departure certificate and furthermore, none of the alleviating provisions of the Act could have any operation.
By the operation of section 1218(2) of the Act the applicant ceased to be qualified for the pension on 2 December 1995 being six months after her departure from Australia on 2 June 1995.
I accept that the applicant left Australia as a matter of urgency and in distressing circumstances. However, she did nothing thereafter to correct the failure to notify either by her own action or through members of her family in Australia. Rather her family arranged for the pension payment to be transferred from her Australian bank account to the applicant overseas, from time to time.
This is to be compared to the previous absence from Australia when arrangements were made for the Department of Social Security to make payments to the applicant overseas. Whether such an arrangement was available in 1995 is not the point. The applicant did nothing to seek to put such an arrangement in place. If she had the respondent would have been obliged to issue a departure certificate (S 1219).
I am satisfied that section 1218(2) of the Act operated to cancel the applicant's age pension on the basis that she was no longer qualified with effect from 2 December 1995.
I am also satisfied that the applicant became entitled to payment of age pension on 6 January 2000, but only if it is accepted that the applicant was an Australian resident on that day. The respondent has not put that question in issue. In that regard I note that the applicant intends to return to Greece later this year for family reasons. I also note in passing that the applicant has no regular place of abode in Australia.
I am satisfied that there was no entitlement to payment of age pension for the period September 1999 to December 1999.
The decision under review has two parts:-
(a) the decision to cancel payment from 2 September 1999; and
(b)the decision to grant pension from 20 December 1999 and not backdate payments to September 1999.

It will be apparent from these reasons that I do not consider either of those decisions is correct. The respondent seems to have overlooked the operation of section 1218(2) and should have raised an overpayment. As to the second decision I do not understand why the claim made on 6 January 2000 was deemed to have been made on 22 December 1999.
I will set aside the decisions under review and substitute a decision that age pension was not payable to the applicant for the period September 1999 to December 1999 inclusive.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  30 October 2000
Date of Decision  8 December 2000
Applicant  In person
Respondent  Mr J Walsh, Counsel