PRABHJYOT BHATIA and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 211

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 211

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2008/3801

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		PRABHJYOT BHATIA

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

  Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:6 March 2009

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.

…………………………………………………………………

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN

No. 2008/3801

BHATIA

and

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING,
COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

FRIDAY, 6 MARCH 2009

MR D. BHATIA appears in person
MR M. TODD appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   Well, in this matter, there’s no real dispute on the facts that Mr Bhatia’s daughter was born on 23 December 2005.  He was living in Bangalore with his wife, because that’s where his employment was, although he had no real connection to Bangalore and his family lived in New Delhi and his wife’s family lived in Gujarat.  Is that right?

MR TODD:   That’s right.

MR FRIEDMAN:   Gujarat.  Yes.  Mr Bhatia is an Australian citizen and I accept his evidence that he knew about the existence of the maternity allowance, because he lived in Sydney and had friends there and he was aware of the existence of the payment.  I also accept his evidence that after the child’s birth, there were some health issues with the child, not life threatening ones, and I also accept his evidence the he had had issues of his own, such as asthma and also personal issues of being away from family and friends and with health issues with his mother and also there appeared to have been unresolved issues from Mr Bhatia’s childhood that seemed to surface after the birth of the child.

Whether that’s a form of post-natal depression in a male or not, I don’t know;  I’m not qualified to say.  So I accept his evidence that there are a number of issues that arose for him during that period.  I also accept his evidence that he became aware in July 2006 or realised in July 2006 that he had not made his application for maternity allowance and contacted Centrelink only to be told that he was out of time.  Mr Bhatia has forwarded to the tribunal - and I will mark that as exhibit A1 - a letter – well, it’s from Wockhardt Hospital, W-o-c-k-h-a-r-d-t, in Bangalore - which appears to be a prescription from a consultant position at the hospital and the prescription is – I’m not sure what – here it is, 26 December 2006, which is some months after the due date for an application for maternity allowance and that refers to medication that Mr Bhatia told me is for his asthma condition.

EXHIBIT #A1 LETTER FROM WOCKHARDT HOSPITAL, A PRESCRIPTION DATED 26/12/2006

MR FRIEDMAN:   So I accept what Mr Bhatia has told me in general terms about the difficulties he and his wife faced after the birth of the child and Mr Bhatia and his wife and child are now back in Australia and appear to be doing well and Mr Bhatia is studying and looking for work.  The only issue I have to decide is whether section 39(3) of the Act applies here.  Section 39(3) of the Family Assistance Administration Act 1999 provides:

If the secretary is satisfied that the claimant is unable to make a claim for payment or paternity payment in normal circumstances, because of severe illness associated with the birth of the child concerned, the secretary may extend the period of 26 weeks mentioned in subsection (2), to such longer period as the secretary considers appropriate.

The Social Security Appeals Tribunal in its decision said, at paragraph 29:

The tribunal understands this subsection to be contemplating the situation where the claimant is so incapacitated by illness, for example post-natal depression, as to be rendered incapable of normal functioning, such that it would be unreasonable to expect that person to have made an application to Centrelink.

The section further contemplates, that:

The incapacitating illness will have been associated with the birth of the child.

In deciding whether that applies in this case, I don’t believe that Mr Bhatia is necessarily exaggerating any of the matters that he put to me.  The difficulty is, I don’t have any medical evidence and I accept what he says, that it’s difficult for him to provide medical evidence when he didn’t really seek formal treatment in Bangalore, for perfectly good reasons, that he wasn’t familiar with Bangalore and the language was not his own and he didn’t feel comfortable seeking treatment. 

The only difficulty that raises is – well, not the only difficulty, but one of the difficulties it raises, is that I can’t really be satisfied of a severe illness without any medical evidence and I’m sure Mr Bhatia would understand that, that any treatment that he has back in Australia may refer to a situation that he found himself in, in the first half of 2006, but without any medical evidence I can’t be satisfied that there was a severe illness associated with the birth of the child.  It may well be, as I have suggested, that there is a type of post-natal depression.  Whether that applied in this case, I don’t know.

I accept that Mr Bhatia had a combination of asthma and his depressive symptoms.  I’m not sure that asthma in itself, at that time, prevented him from making an application.  I doubt very much whether it did and as for the depressive illness or whatever it was, I am just not satisfied, without medical evidence, that that, in itself, prevented the lodging of the application.  Perhaps the combination of all the circumstances were the contributing factors, but because I can’t be satisfied on the evidence, I am going to affirm the decision.

Mr Bhatia, I’m sorry, I can’t help you today, because I just need medical evidence and all I can say to you is that I hope you get the treatment that you’re seeking in Australia and I hope that it works out for you and I hope that the gains you and your wife and child have made since coming back to Australia will continue, but in this application, you understand, I am bound by the legislation and that’s why I’m unable to help you today.

END OF EXTRACT