Pobrica and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 238
•27 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 238
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W200600162
)No W200600163
) No W200700007 )
GENERAL ADMINISTRATIVE DIVISION ) Re Ivo Pobrica
Milan PobricaApplicants
And
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Dr D Weerasooriya, MemberDate27 March 2008
PlacePerth
Decision The Tribunal:
(a) Affirms the decision of the Social Security Appeals Tribunal dated 2 May 2006, the subject of application No. W 2006/162.
(b) Affirms the decisions of the Social Security Appeals Tribunal dated 2 May 2006 the subject of Application No W2006/163.
(c) Sets aside the decision of the Social Security Appeals Tribunal dated 4 October 2006 the subject of application No W2007/00007 and remits the matter with a direction to find that the rate of disability support pension of the applicant Milan Pobrica be 6/300th of the basic pension rate with effect from 3 March 2005 and for so long as he is resident in Croatia.
.............[sgd Mr A Sweidan]..............
Senior Member
CATCHWORDS
Social Security – carer allowance – carer payment – disability support pension – residence
LEGISLATION
Social Security Act 1991
Social Security (International/Agreements) Act 1999
Social Security (Administration) Act 1999
CASES
Clifopoulos and SDSS (1994) AATA 9745
Hafza v Director General of Social Security (1985) 6 FCR 444
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation[1941] HCA 13; (1941) 64 C.L.R. 24
8321
Mihai and Secretary Department of Employment and Workplace Relations (2007) AATA 1894
Wybrow and SDSS (1992) AATA
REASONS FOR DECISION
27 March 2008 Mr A Sweidan, Senior Member
Dr D Weerasooriya, MemberDECISIONS UNDER REVIEW
1. The Social Security Appeals Tribunal (SSAT) decisions dated 2 May 2006 which:
Ÿaffirmed the decision made by a Centrelink officer on 22 February 2005 to reject Mr Ivo Pobrica’s claim for carer allowance (CA), and
Ÿaffirmed the decision made by a Centrelink officer on 23 February 2005 to reject Mr Ivo Pobrica’s claim for carer payment (CP).
2. The SSAT decision dated 2 May 2006 which affirmed the decision to reduce Milan Pobrica’s rate of disability support pension to 6/300 of the base rate of pension when he returned to Croatia on 3 March 2005; and
3. The SSAT decision dated 24 October 2006 which increased Milan’s rate of disability support pension to 10/300 when he returned to Croatia on 7 March 2006.
Issues
4. The first issue is whether Mr Ivo Pobrica qualified under the relevant provisions of the Social Security Act 1991 (“the Act”) for payment of carer payment (CP) and carer allowance (CA) in respect of Milan Pobrica (W2006/163). More specifically these reasons address the following:
4.1Whether Milan Pobrica, the care receiver, attains a qualifying score under the Adult Disability Assessment Tool (ADAT), as required by s 198(2)(a) of the Act in respect of carer payment and s 954(1)(c).
4.2The differences between two Health Professional Assessment reports provided by Dr Zaninovich in relation to Milan.
4.3Whether Ivo Pobrica was an Australian resident or otherwise meets residence requirements at the relevant times; and
4.4Whether Milan Pobrica, the care receiver, was an Australian resident or otherwise meets residence requirements at the relevant times.
5. The second issue is Milan’s rate of disability support pension when he returned to Croatia on 3 March 2005 (W2006/162) and 7 March 2006 (W2007/7).
EVIDENCE
6. The evidence and the relevant facts will emerge from the Tribunal’s Reasons for Decision.
TRIBUNAL’S FINDINGS
Does Milan attain a qualifying rating under the Adult Disability Assessment Table (ADAT)
7. It is not in dispute that Milan has significant medical conditions that will always restrict his ability to carry out certain activities in his daily life, or that he receives a lot of loving care from both of his parents. However ss 198 and 954 of the Act require that before CP and/or CA can be paid to a carer, the required rating in regard to the care receiver has to be attained under the Adult Disability Assessment Table or ADAT.
The ADAT.
8. The ADAT is contained in the “Adult Disability Assessment Determination 1999” (the Determination) which was developed after extensive consultation with medical and carer groups such as the Red Cross, Diabetes Australia and general medical practitioners across Australia
9. The Determination sets out the method for assessing and rating a care receiver's circumstances in order to arrive at a rating for the purpose of s 198 and 954 of the Act. It also prescribes the minimum qualifying scores for CA (adult) and CP.
10. Part 2 of the Determination provides for two questionnaires to be obtained in relation to the care receiver: a “claimant questionnaire”, and a “professional questionnaire”.
11. S 2.1 provides, among other things, that the claimant questionnaire is to be completed by the carer allowance claimant and the professional questionnaire must be completed by a treating health professional.
12. The questions in each questionnaire are not about specific disabilities, rather they are designed to objectively assess the disability, emotional state, behaviour and special care needs of the adult care receiver.
13. The Secretary has approved various classes of people as treating health professionals who can complete the Health Professional Assessment (HPA) for adult care receivers including, relevantly for the present purposes a medical practitioner as defined in s 23(1) of the Social Security Act 1991 as a person registered and licensed as a medical practitioner under a state or territory law that provides for the registration or licensing of medical practitioners,
14. S 2.2 provides that the test for assessing a person’s disability, emotional state, behaviour and special care needs is the assessment of the answers given in relation to the person in the two questionnaires.
15. Paragraph 2.2(2)(a) provides that the Secretary must be satisfied that the completed professional questionnaire is an accurate reflection of the functional ability etc of the care receiver. Part 2.2(3) states:
“(3)If the Secretary is not satisfied that the professional questionnaire is an accurate reflection of the person’s disability, emotional state, behaviour and special care needs, the Secretary must ask for a replacement professional questionnaire to be completed by another treating health professional.”
16. To arrive at an ADAT score, each question in the questionnaires has a series of possible answers, each with a different rating. These questions are set out in Part 1 (Claimant) and Part 2 (Professional) of Schedule 1 of the Determination.
17. The ratings for each response are set out in Schedule 2 of the Determination. That schedule also sets out mechanisms for determining which rating to use if a health professional gives multiple answers and sets out the minimum qualifying scores. A professional score is calculated by adding the ratings of all responses of the health professional. A claimant score is calculated by adding together the ratings of all responses of the claimant. The total ADAT score is the sum of the claimant and health professional ratings (Step 3 & 4 in Schedule 2).
18. The answers from each questionnaire are entered into Centrelink's computer system which summarises and calculates the scores to each question electronically.
ADAT scores in relation to Milan
19. The applicants have provided two professional questionnaires, also known as Health Professional Assessments or HPA, from Dr Zaninovich. The first is dated 17 February 2005 ( "HPA 1") and the second dated 30 June 2005 ( "HPA 2").
20. At the hearing it was established that Dr Zaninovich knew Milan and the family and had taken a full history of Milan’s medical conditions from his date of birth, and in Croatian so Milan and Mr Pobrica could properly understand. Dr Zaninovich completed the HPA 1 while Milan and his father were present, physically examined Milan and questioned both of them prior to completing the questions. Mr Pobrica estimated that this took longer than half an hour. HPA 2 was completed without either Milan or Mr Pobrica being present as they were in Croatia at that time.
21. When Milan is living in Croatia he is under the care of a Dr Marovic who has provided medical reports in support of Milan. Dr Marovic is unable to complete a HPA as he is not registered and licensed as a medical practitioner under an Australian State or Territory law. Mr Pobrica could take Dr Marovic’s report to an Australian doctor who can use them to help him complete an HPA, however Mr Pobrica has declined to do so.
22. Mr Pobrica confirmed that Dr Zaninovich did not have the benefit of Dr Marovic’s report for either HPA 1 or HPA 2, because his report was completed 2 years later.
23. The rating result for HPA 1 was 8.0, and the rating result for HPA 2 was 5.5
The differences between Dr Zaninovich’s two HPA reports
24. The Tribunal finds that the discrepancies between Dr Zaninovich’s two reports clearly arise from the fact that Milan and his father were not present when HPA 2 was completed. The answers in HPA 1 were confirmed by Mr Pobrica’s testimony at the SSAT hearing on 2 May 2006 and also at the hearing in this Tribunal.
25. Milan told the SSAT on 2 May 2006 that:
ŸHe is able to go and about with his cousin but always needs the assurance that his father is available for him at home if needed;
ŸBecause of his speech problem, particularly when trying to speak English, he would appreciate it if his father could be paid to look after him; and
ŸHe would be less anxious if he did not have to focus on getting financial assistance from Centrelink.
26. The Tribunal finds that Milan does need some help from his father, but that on the evidence before the Tribunal it is not the sort of help that qualifies Mr Pobrica to payment of CP and CA.
27. In addition to the information in the HPA and the information given to the SSAT, Mr Pobrica gave new evidence at the Tribunal hearing that:
ŸMilan sometimes needs help getting out of bed;
ŸMilan has fallen outside of the home on 2 occasions (the Tribunal notes that the question is in regard to mobility within the home);
ŸMilan needs supervision when showering because on 4/5 occasions over the recent years Milan has had a fit and fallen in the shower.
ŸMilan gets depressed and takes medication for his depression.
28. Mr Pobrica has provided some medical reports dated 25 July 2006 in connection with Milan’s epilepsy which list his medications as being Lamictal, Tegretol and Neurontin.
29. These reports do not mention that he is being treated for depression and neither does Dr Marovic’s report dated 22 March 2007. Dr Marovic confirms Milan’s fall outside of the home but does not mention him falling in the shower or needing help to get out of bed.
30. Mr Pobrica provided further medical reports dated 4 November 2007 which list the same medications plus Normabel. Again there is no mention of him being treated for depression.
31. The Tribunal finds that given the circumstances under which it was completed, HPA 1 is an accurate reflection of Milan Pobrica’s disability, emotional state, behaviour and special care needs at the time Mr Pobrica lodged his claim for CP and CA and must be preferred over Mr Pobrica’s later evidence, particularly as Mr Pobrica has not provided an amended HPA completed by Dr Zaninovich or an approved health professional.
32. The Tribunal notes that the Secretary does not dispute the SSAT decision that the correct professional ADAT score is 8.0 and is satisfied that the score was correctly calculated.
33. Mr Pobrica could only qualify for CP if Milan's total combined ADAT score was at least 25, including a professional score of at least 10. [s 198(2)(a)(i) of the Act].
34. Similarly, to be qualified for CA, Milan's total combined ADAT score is required to be at least 30, with a professional score of at least 12 [s 954(1)(c) of the Act].
35. It is clear that with a HPA rating of 8, Mr Pobrica cannot qualify for either CA or CP.
36. This does not mean that Milan does not require care from his father because obviously he does. Dr Marovic’s report dated 22 March 2007 provides relevant information in regard as to how epilepsy affects Milan’s daily living activities. It affects the way he walks and has resulted in serious speech disorders. Mr Pobrica told the Tribunal that Milan was 14 years old before he could clearly speak Croatian and has learning difficulties which prevent him, amongst other things, from learning other languages such as English, emotional instability, immature social skills and the need to be accompanied to medical appointments.
37. However the Tribunal is of the view that the ADAT illustrates that Milan is on the whole independent enough to manage his own personal daily living needs with minimal help from his father and therefore the sort of care he needs, is not the sort of care that qualifies Mr Pobrica for payment of CP or CA.
38. The Tribunal finds that Milan’s HPA 1 rating of 8 is correct and that Mr Pobrica does not qualify for payment of CP or CA.
Were Mr Pobrica and Milan Australian residents at the relevant time?
39. S 198 of the Act contains the CP qualification criteria and specifies at subsections (4) and (5) that the carer and care receiver should both be Australian residents, unless an international social security agreement applies. Schedule 16 to the Agreement between Australia and the Republic of Croatia on Social Security came into force on 1 July 2004 and therefore is not applicable in this matter.
40. S 198 (5) of the Act provides that the care receiver or care receivers must be residents of Australia unless they have been assessed as having a higher adult score i.e., having an overall ADAT rating of at least 80, including a HPA score of at least 32.
41. Milan’s HPA score was less than 32 therefore he must be assessed as if he were a resident of Australia.
42. As already noted, s 954 (1) subsections (a) and (f) require that the carer and care receiver must be Australian residents in order to qualify for payment of CA.
43. The Tribunal finds on the evidence before it that neither Mr Pobrica nor Milan were Australian residents at the time Mr Pobrica lodged his claim for CP and CA.
44. S 7(2) of the Act defines an Australian resident as a person who is, as in the Pobricas’ case, the holder of a permanent visa and in addition, someone who resides in Australia.
45. There have been several cases in the Federal Court and at the AAT in regard to the issue of residence.
46. Justice Wilcox discussed the concept of residence in the matter of Hafza v Director General of Social Security (1985) 6 FCR 444 and said that there are two elements to residence. The first is the person’s physical presence in a place and the second is in treating that place as being home. He said that it is possible for a person to be resident in more than one place at the same time. He said that a person does not necessarily cease to be a resident because they are physically absent. The test is whether the person has retained a continuity of association with the place and has an intention to return and treat that place as “home”.
47. This concept was explained as follows in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation[1941] HCA 13; (1941) 64 C.L.R. 241 at p.249, by Williams J:
“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situated, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place -- even involuntarily : see Commissioners of Inland Revenue v. Lysaght (1928) AC 234 a p 248 and Keil v Keil (1947) VR 383 -- a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place -- Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 at p 225 and Judd v. Judd (1957) 75 WN (N.S.W.) 147 at p 149 – together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (1969) 16 F.L.R. 231 at p.236
It is important to observe firstly, that a person may simultaneously be a resident in more than one place -- see the facts of Lysaght and the reference by Williams J. to "a home or homes" -- and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.”
48. S 7(3) of the Act lists various factors that must be taken into account when deciding whether or not a person is an Australian resident.
49. In the matters of Wybrow and SDSS (1992) AATA 8321 and Clifopoulos and SDSS (1994) AATA 9745 the Tribunal found that it is also relevant to consider the converse of these factors.
Nature of accommodation
50. Neither Mr Pobrica nor Milan own residential property in Australia or Croatia and have not owned any property here since 1986. Since then, when in Australia, they have stayed either with Mr Pobrica’s sister, Milan’s older brother Antoni, or in short term rental accommodation owned by family friends.
51. Their living accommodation in Croatia with Mrs Pobrica’s mother has been of a permanent nature, as they lived there when they returned to Croatia in 1986 and continued to live there after her mother’s death.
52. The Tribunal finds that it is significant that at no time have they attempted to find permanent accommodation in Australia, not even when Mrs Pobrica and Milan first rejoined Mr Pobrica in Perth on 30 January 1999.
Family relationships
53. Antoni lives in Perth, as does Mr Pobrica’s sister and her family. Mr Pobrica also has relatives in Carnarvon and Melbourne.
54. Mrs Pobrica’s relatives are all in Croatia. Mrs Pobrica said at the hearing on 29 November 2007 that Mr Pobrica’s family in Perth and Carnarvon were very kind to her and Milan when they were in Australia, but that her extended family in Croatia give her a lot of support in helping look after Milan.
55. While there is family in both Australia and Croatia, the Tribunal finds that the Pobrica’s family connection in Croatia is stronger, as they have given long-standing help to Milan and his parents.
Business and financial ties
56. Mr Pobrica has had several periods of work in Australia since 1982, but has not worked in Australia since 24 July 2004.
57. He stated that he has been employed during the summers in Croatia, but that they mainly live off their savings (the proceeds of the sale of their home and land prior to leaving Australia in 1986) and from help from Mrs Pobrica’s family.
58. Milan has never worked in Australia. He did a tailoring apprenticeship in Croatia and works as a casual kitchen hand at times, but is not well enough to work full time in either country.
59. In the Tribunal’s view it is clear that the Pobricas have no business or financial ties to either Australia or Croatia, but that Milan would be financially better off permanently living in Australia as he would receive the full rate of pension.
Nature and extent of assets in Australia
60. As noted above the Pobricas no longer own substantial assets in Australia as their home and block of land in Perth were sold prior to them leaving Australia in 1986.
61. Mrs Pobrica’s mother intended to will her home in Croatia to the Pobricas on her death, however it appears that local laws do not permit this and in addition, the will is being contested by other family members.
62. At 17 February 2005 Mr Pobrica estimated the value of his household and personal effects as being $5,000 and owned a 1989 Ford Fairlane valued at $3,000.
63. It is clear that the Pobricas have minimal assets in Australia.
Frequency and duration of travel outside Australia
64. Mr Pobrica’s departures and arrivals in Australia are listed below.
Departures from Australia Arrivals 1967/8 1969 1974 1975 1980 February 1982 1986 11 July 1995 5 December 1997 25 April 1998 24 July 2004 8 December 2004 3 March 2005 6 December 2005 7 March 2006 18 January 2007 12 July 2007 Between 11 July 1995 and 12 July 2007 Mr Pobrica had spent 8 years and 9 months in Australia. Between 8 December 2004 and 17 April 2007 he had spent only a total of 9 months in Australia.
65. Milan’s departures and arrivals are as listed below.
Departures from Australia Arrivals 1980 May 1982 1986 30 January 1999 4 May 1999 8 December 2004 3 march 2005 6 December 2005 7 March 2006 18 January 2007 17 April 2007 Between 8 December 2004 and 17 April 2007 Milan too had only spent a total of 9 months in Australia and in fact has only spent a total of approximately 12 months in Australia since his first revisited Australia on 30 January 1999.
66. Since 8 December 2004 both Mr Pobrica and Milan have spent significantly more time in Croatia than they have in Australia.
67. At the hearing on 29 November 2007 Mr Pobrica stated that they do not intend to return to Australia in the foreseeable future.
68. The Tribunal finds that these regular lengthy absences from Australia, their temporary accommodation in Australia and reliance on family members in Croatia for financial support and support for Milan, clearly shows that Milan and Mr Pobrica have not been residents of Australia since 8 December 2004.
Other relevant matters
69. The Secretary accepts that in 1999 Mrs Pobrica and Milan intended to return permanently to Australia to rejoin Mr Pobrica and to live as a family. This attempt to settle in Australia was unsuccessful although Mr Pobrica and Milan tried again on 8 December 2004.
70. In the Tribunal’s view in retrospect it is clear that this second attempt was never going to be successful either, because his continuing communication difficulties meant that Milan would never have settled down in Australia. For example Mrs Pobrica told the Tribunal on 29 November 2007 that his lack of English and inability to learn English meant that Milan could not go out on his own or watch and understand television when in Australia. In addition it was more difficult for him this time because his mother was in Croatia awaiting an operation.
71. Mrs Pobrica told the Tribunal that she is also unable to understand the television in Australia, but that this was not important as she didn’t watch much television anyway. However her lack of English makes it difficult for her as she isn’t able to go out shopping on her own. A friend and her child have go with her to translate, which can be inconvenient as the friend is not always available. Mrs Pobrica has no English speaking friends. All of Mrs Pobrica’s medical treatment has taken place in Croatia.
72. It is clear that Mrs Pobrica prefers to live in Croatia, which is also unsettling for Milan.
73. The Tribunal is of the view that when Mr Pobrica contacted Centrelink on 17 February 2005, prior to him lodging his claim for CP and CA on 18 February 2005 he had already decided to return permanently to Croatia with Milan because Milan was depressed and missing his mother.
74. This contention is supported by the letter the Pobricas wrote to Centrelink on 17 May 2005 requesting a review of Milan’s rate of pension because he was unable to live in Australia. It is also supported by Dr Marovic’s letter dated 22 March 2007 which states, in part, that Milan should not remain in Australia for more than three months at a time.
75. The Tribunal notes that although Dr Zaninovich provided medical reports in relation to Mr Pobrica’s claim for CP and CA, it appears that Milan’s medical treatment has always taken place in Croatia.
76. On the evidence before the Tribunal there is no doubt that Milan has a better quality of life in Croatia, he can socialise more easily as his communication problems are less and he has the support of his close extended family.
77. The Tribunal finds that when Mr Pobrica and Milan returned to Australia on 6 December 2005 and 18 January 2007, accompanied by Mrs Pobrica on the latter trip, their intention was not to look for a permanent residence or to stay permanently, but to visit Antoni and Mr Pobrica’s relatives and for Mr and Mrs Pobrica to lodge claims for DSP.
78. In the recent case of Mihai and Secretary Department of Employment and Workplace Relations (2007) AATA 1894 the Tribunal commented at paragraph 52 that ‘ a statement that a person intends to stay in Australia is not of itself conclusive of residence and must be viewed against the totality of the evidence’.
79. The Tribunal finds that this case is similar to that of the Mihais’, in that although each time the Pobricas have returned to Australia they have stated that it is their intention to remain permanently, when the whole of their circumstances are examined it can be seen that after 17 February 2005, this was clearly not the case.
80. The Tribunal is further of the view that after 17 February 2005 the Pobricas did not intend to make Australia their home. Rather, their actions show a strong affiliation with their country of origin, Croatia, which is best illustrated by the substantial amount of time they have spent in Croatia since 2004 and their lack of any real ties to Australia.
81. The evidence shows that Mr Pobrica and Milan have minimal connections to Australia. They have virtually no assets in Australia, no Australian business connections, no financial ties in Australia, no Australian employment, no permanent accommodation and only limited family ties in Australia.
DECISION
82. Mr Pobrica cannot be paid CP or CA because Milan’s ADAT rating of 8 is less than the required rating of 10 to enable Mr Pobrica to be paid CP and less than the required rating of 12 to be paid CA.
83. The Tribunal also finds that even if the required ADAT ratings been met, Mr Pobrica did not qualify for payment of CP or CA because neither he nor Milan were residents of Australia when he lodged his claim on 18 February 2005.
84. The SSAT decision of 2 May 2006 to reject Mr Pobrica’s claims for CP and CA, is therefore affirmed by the Tribunal.
Milan’s rate of DSP after he left Australia for Croatia on 3 March 2005
85. It is not in dispute that Milan is severely disabled and that he intended to reside permanently in Australia when he arrived on 30 January 1999 and 8 December 2004
86. Milan was granted DSP in December 2004, after he had returned to Australia with the intention of remaining permanently.
87. S 1220(1) of the Act explains that if a person who was previously an Australian resident is granted DSP after returning to Australia after a significant absence and then leaves Australia within 2 years of their arrival, their payments will be cancelled from the date they leave Australia.
88. In Milan’s case, there is an agreement between Australia and Croatia which allows DSP to be paid to a person in Croatia who is severely disabled, if they are or have been an Australian resident in receipt of DSP.
89. Milan was an Australian resident during the periods 30 January 1999 to 4 May 1999 and 8 December 2004 to 3 March 2005 and was being paid DSP as being severely disabled, therefore the agreement applies to him when he is living in Croatia.
90. The rate of DSP paid to Milan under Article 13 of this agreement, is dependent on his Australian working life residence. Ss 15 and 16 of the Social Security (International Agreements) Act 1999 (International Agreements Act) defines working life residence as being the number of months a person has been an Australian resident between the ages of 16 and age pension age.
91. A person’s DSP rate is not reduced if they have a working life residence of at least 300 months.
92. At 3 March 2005, Milan had a working life residence of 6 months (30 January 1999 to 4 May 1999 and 8 December 2004 to 3 March 2005), therefore his rate of DSP is calculated as being 6/300 of the basic rate of DSP as per s 24 of the International Agreements Act.
93. Mr Pobrica contends that Milan’s rate of DSP should not be reduced when he leaves Australia because:
ŸMilan’s illness occurred in Australia at the time of his birth;
ŸMilan can’t live in Australia because he cannot speak or understand English and becomes depressed and withdrawn;
ŸHe is unable to work and earn his own living; and
ŸThe reduced amount paid to him in Croatia is not enough to meet his living expenses.
94. While the Tribunal is sympathetic towards Milan’s plight, there is no discretion in the legislation to allow for a rate of payment other than that prescribed in s 24 of the International Agreements Act.
95. The Tribunal finds that the SSAT decision of 2 May 2006 was correct in deciding that Milan’s rate of payment should be 6/300 of the DSP basic rate and should be affirmed.
Milan’s rate of DSP after he left Australia for Croatia on 7 March 2006
96. Milan returned to Australia on 6 December 2005 and left again for Croatia on 7 March 2006.
97. On 24 October 2006 the SSAT decided that Milan should have been paid DSP at 10/300 of the basic rate from 7 March 2006, not 6/300, because they considered him to be a returned resident at 6 December 2005 and therefore those extra 4 months of Australian residence should be added to his previous residence of 6 months.
98. However the Tribunal, consistent with its findings as set out above, is of the view that Milan was not a resident of Australia after 17 February 2005 when Mr Pobrica and Milan decided that they were returning to live permanently in Croatia and therefore does not agree that the 4 months Milan spent in Australia between 6 December 2005 and 7 March 2006, should have been added to his working life residence.
99. The Tribunal finds that Milan’s rate of pension should have been maintained at 6/300 of the basic pension rate when he left Australia on 7 March 2006 and that his working life residence should not be increased by the length of his temporary visit to Australia during the period 6 December 2005 and 7 March 2006.
100. The Tribunal therefore sets aside the SSAT decision of 24 October 2006 and remits the matter to the decision maker with a direction to find that Milan Pobrica should be paid 6/300 of his basic rate of DSP when he is resident in Croatia and that this should apply from 3 March 2005.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Dr D Weerasooriya, Member
Signed: .................[sgd Mr J Lim]........................
AssociateDate of Hearing 1 & 29 November 2007
Date of Final Submissions 25 January 2008
Date of Decision 27 March 2008
Applicants’ representative Mr Ivo Pobrica
Counsel for the Respondent Ms M Conlon, Centrelink Legal Services Branch
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