Petrovic and Secretary, Department of Employment and Workplace Relations

[2006] AATA 513

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 513

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2006/406

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GORAN PETROVIC

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date13 June 2006

PlaceMelbourne

Decision The application to extend time to make this application is refused.

..............................................

Senior Member

Administrative Appeals Tribunal Act 1979 (Cth) s 29(7) and s 29(8)

Social Security (Administration) Act 1999 (Cth) s 179

Social Security Act 1991 (Cth) s 1212A

Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305
Comcare v A’hearn (1993) 18 AAR 366

REASONS FOR DECISION

13 June 2006   Mr John Handley, Senior Member

1.      Mr Petrovic has applied to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 22 March 2006. 

2.      A Memorandum from the Watergardens Office of Centrelink of 24 March 2006 indicates that at that date Mr Petrovic sought assistance in the interpretation of the Reasons for decision made by the SSAT.  For the purposes of this decision I am satisfied that at that date, Mr Petrovic had received a copy of the Reasons for decision made by the SSAT. 

3. His application to review that decision was lodged in this Tribunal on 16 May 2006. The combined operation of s 29 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and s 179 of the Social Security (Administration) Act 1999 (“the Administration Act”) dictates that the period of time for lodging an application in this Tribunal is 28 days after the making of the Decision. It follows by reference to the above legislative provisions and by reference also to the respective dates that the application was lodged in this Tribunal 55 days after the SSAT Decision was made and 53 days after it had been received. The application has therefore been lodged beyond the period of time permitted by the legislation. At the hearing on 9 June 2006, Mr Petrovic applied to extend the time to make his application pursuant to the discretion conferred under s 29(7) and (8) of the AAT Act.

4.      A Serbian interpreter did not arrive at the Tribunal to assist Mr Petrovic in his application.  He was assisted by a friend who, in my view, had an adequate command of the English language.  I notified Mr Petrovic and his friend that I would prepare these written reasons to assist him comprehending the decision that I have made, rather than give oral reasons for decision at the conclusion of the hearing which he may have found confusing or complicated.

5.      The application to extend time was opposed by Centrelink.  Ms Hume appeared on behalf of the Respondent.  A letter prepared by a departmental officer on 24 May 2006 setting out the basis for the objection was adopted and relied upon at the hearing.

6.      Assistance in the exercise of the discretion to extend time can be obtained from the decision of Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1985) 58 ALR 305. At 310 – 311 His Honour decided that there were six principles that should be considered in guiding the exercise of the discretion being:

(a)An acceptable explanation for delay should be given which should be fair and equitable in the circumstances.

(b)Whether any action other than the making of the application has been undertaken by the applicant putting the decision-maker on notice that the decision sought to be reviewed remains under contest.

(c)Whether there is any prejudice to the respondent by the delay.

(d)Whether any established practices or other persons will be unsettled by extending the time to lodge the application.

(e)Whether the application has merit.

(f)Considerations of fairness between applicants and other similar persons.

7.      In Comcare v A’hearn (1993) 18 AAR 366 the Full Federal Court decided that an acceptable explanation for delay was not a precondition in the exercise of the discretion to extend time, although it would be expected that an acceptable explanation for delay would normally be given.

8.      The circumstances giving rise to the review by the SSAT are not in dispute and were verified by Mr Petrovic on 9 June 2006 as follows.

9.      Prior to 14 July 2005, Mr Petrovic was in receipt of Newstart Allowance (“NSA”).  On that date he personally attended the Watergardens office of Centrelink and notified an officer that he intended to travel to Bosnia.  On 24 July 2005 he departed Australia and returned on 5 November 2005.  He returned to the Watergardens office of Centrelink on 7 November 2005 and applied for NSA which was not paid to him whilst he was absent from Australia.  Centrelink subsequently decided that he was not entitled to that benefit whilst he was absent.  It is that decision which Mr Petrovic appealed to the SSAT.  That Tribunal decided that the decision made by Centrelink should be affirmed.  It is against the decision of the SSAT that Mr Petrovic would wish to bring proceedings in this Tribunal.

10.     Mr Petrovic said that he understood from speaking with an officer at Watergardens prior to his departure that he would be paid for the whole or part of the period that he would be absent from Australia and that he should report to Centrelink upon his return.

11.     However, a letter from Centrelink addressed to him on 14 July 2005, that is before he left Australia, confirms that benefit would not be paid whilst he was absent from Australia.  It does record “If you return to Australia you may need to lodge a new claim for any payments that have been cancelled during your absence”.  Perhaps Mr Petrovic understood by that paragraph that he had an entitlement to have benefits paid to him which were denied whilst he was absent from Australia.

12.     Mr Petrovic said that he travelled to Bosnia to care for his mother who was ill.  The Social Security Act 1991 (“the Act”) does permit “overseas portability” in certain limited circumstances. The qualifying circumstances are summarised at s 1217(5). However the predominant circumstance in this application is found at s 1212A of the Act which is reproduced as follows:

1212A Meaning of acute family crisis 

For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time: 

(a)   for the purpose of visiting a family member who is critically ill; or 

(b)   for the purpose of visiting a family member who is hospitalised with a serious illness; or 

(c)   for a purpose relating to the death of a family member; or 

(d)   for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that: 

(i)    is facing a family member; and 

(ii)   is beyond the control of the family member. 

13.     Mr Petrovic confirmed that he had been asked by his mother to visit her and assist her because she “needed help”.  He said there were no other persons available to assist her.  He confirmed the contents of a translated medical report completed by Dr Simunovic in Bosnia who reported that Mrs Petrovic attended with Mr Petrovic on 26 July 2005 with restricted right knee movement.  The report thereafter confirms that there was ongoing treatment for what appears to be an arthritic condition affecting the knee.  On 12 September 2005, Mrs Petrovic attended with urinary tract symptoms.  Between 26 July and 2005 and 28 October 2005, Mrs Petrovic did attend for treatment with Dr Simunovic for treatment for a combination of the right knee and the urinary tract symptoms.  The report also records that Mr Petrovic “was taking care of her throughout the period of her illness and was helping her with daily living (shopping transport, medication, bills etc)”.

14. Having regard to the provisions of s 1212A, I cannot be satisfied on the description of his mother’s illness as given by Mr Petrovic or upon interpreting the report of Dr Simunovic that her illnesses would permit a finding that she was “critically ill”.  Mrs Petrovic was at all times residing in her home and accordingly she was not “hospitalised with a serious illness”.  Mr Petrovic did not attend Bosnia because of the death of a family member or for any life threatening situation facing or beyond the control of a family member.

15.     Accordingly, Mr Petrovic did not attend Bosnia because of a “acute family crisis” and portability of benefit in those circumstances is not permitted.

16. Under the Schedule summarising portability qualification in s 1217(5) of the Act, NSA would be payable for a “temporary absence” (refer s 1212C).  It would only be payable for the purposes of a temporary absence, however, if Mr Petrovic himself travelled to Bosnia “to seek eligible medical treatment” which is defined as s 1212 of the Act as “medical treatment of a kind that is not available to the person in Australia”.  That provision does not apply in the present circumstance.

17.     The remaining opportunity to have NSA paid whilst overseas would be if it were found as a fact that the absence from Australia was for a “humanitarian purpose” as defined under s 1212B of the Act, being either, involvement in custody, criminal or other legal proceedings, for the purposes of adopting a child or for other purposes specified in the Regulations (none of which are specified). By reason of the circumstances of Mr Petrovic travelling to Bosnia, it could not be found as a fact that he was absent from Australia because of a “humanitarian purpose”.

18. Finally, by reason of Mr Petrovic being 37 years of age, the qualification at Item 15A in column 1 of the Schedule at s 1217(5) of the Act does not apply.

19.     In all of the above circumstances I could not be satisfied that the proposed review sought by Mr Petrovic has merit (refer Hunter Valley).  In these circumstances, to extend time to bring these proceedings would be futile.

20.     Additionally, I could not be satisfied that there has been any departmental or administrative error on the part of Centrelink or its officers.  Mr Petrovic said that he had been advised that he would be entitled to have benefits recredited upon his return to Australia.  The letter (refer earlier) of 14 July 2005 confirms that “you cannot receive Newstart Allowance . . . while you are outside Australia”.  It then records that “you may need to lodge a new claim for any payments that have been cancelled during your absence”. Whilst that language may be ambiguous, it does not mean, nor does the Social Security Act permit it to mean, that benefits not paid whilst absent from Australia will be paid upon return to Australia. Such an entitlement will only exist by operation of the legislation and then only if the applicant for benefit qualifies under the legislation.

21.     Mr Petrovic does not qualify.

22.     In all of the circumstances the application to extend time to bring these proceedings is refused.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         .....................................................................................
  Personal Assistant

Date of Hearing  9 June 2006
Date of Decision  13 June 2006
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms J Hume