Protonotarios and Secretary, Department of Employment and Workplace Relations

[2007] AATA 76

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2006/141

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DIMITRIS PROTONOTARIOS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date26 February 2007

PlaceCanberra

Decision The decision under review is affirmed.

...........(Signed)..........................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - Australian residence requirements - not an Australian resident at date of claim - pension granted in error - decision affirmed

Social Security Act 1991 ss 7, 94

Social Security (Administration) Act 1999 s 29

Hafza v Director-General of Social Security (1985) 60 ALR 674

Schlageter and Secretary, Department of Social Security (1985) 26 SSR 317)

REASONS FOR DECISION

26 February 2007 Mr S. Webb, Member         

1.      Dimitris Protonotarios suffers from Bipolar Affective Disorder.  He claimed and was granted a Disability Support Pension on his return to Australia from Greece in May 2003.  He returned to Greece soon thereafter and has remained there since.  His Disability Support Pension was cancelled in 2005.  Mr Protonotarios has not been successful in his efforts to have that decision reversed, and now seeks review by this Tribunal.

2.      A number of issues are not in dispute and, having considered the evidence, I make the following findings:

(a)Mr Protonotarios has suffered from Bipolar Affective Disorder for many years;

(b)he was born on 26 December 1966 and grew up in Australia from the age of 5;

(c)he was granted a Disability Support Pension on 28 May 1998;

(d)in 1999 Mr Protonotarios’ marriage broke down and he left Australia for Greece in the company of his parents on 10 October 1999[1];

(e)on 6 September 2000 his Pension was cancelled because he had been absent from Australia for more than 12 months[2];

(f)on 6 May 2003 Mr Protonotarios returned to Australia[3];

(g)on 7 May 2003 he contacted Centrelink in relation to applying for a Disability Support Pension and informed Centrelink that he intended returning to Greece[4];

(h)on 19 May 2003 he lodged a claim for a Disability Support Pension[5];

(i)a Disability Support Pension was granted on 29 May 2003[6] .  At the time Mr Protonotarios satisfied the all the qualifying criteria for a Disability Support Pension other than the Australian residence requirements;

(j)on 30 May 2003 Mr Protonotarios left Australia for Greece[7]; and

(k)on 7 April 2005 his Disability Support Pension was suspended and subsequently cancelled[8] .

[1] T31 folio 128

[2] T5 folio 16

[3] T31 folio 130

[4] Respondent’s Statement of Facts and Contentions, Annexure B

[5] T11 and T12

[6] T14

[7] T31 folio 129

[8] T18

3.      The issue to be determined is whether the decision to cancel Mr Protonotarios’ Disability Support Pension in April 2005 was correct.  For that purpose the only issue in dispute is whether Mr Protonotarios satisfied the Australian residence requirements at the time under the Social Security Act 1991 and the Social Security (Administration) Act 1999.

4.      Mr Protonotarios asserted that a Centrelink officer informed him in May 2005 that his stated intention of returning to Greece would not disentitle him to a Disability Support Pension. Mr Protonotarios says that he accepted what he was told by Centrelink concerning his intention to return to Greece, and did so.  Had he known that returning to Greece would render him ineligible for a Disability Support Pension, he would not have left Australia.  He asserts that it is manifestly unfair to penalise him by cancelling his Disability Support Pension when he acted in good faith on the information that he was provided by Centrelink.  He also asserts that he did not return to Australia merely to apply for a Disability Support Pension, but intended to initiate a reconciliation with his wife.  He says that he intended to remain in Australia if the reconciliation was successful and to return to Greece if it was not.

5. In order to claim a Disability Support Pension a person must be an Australian resident. Under subsection 29(2) of the Social Security (Administration) Act 1999 a claim made by a person who is not an Australian resident is taken not to have been made. Furthermore, in order to qualify for a Disability Support Pension a claimant must satisfy the criteria set out at section 94 of the Social Security Act 1991.  The Australian residence requirements are set out at paragraph 94(1)(e).  Thus, in order to claim a person must be an Australia resident and in order to qualify a claimant must, relevantly, be an Australian resident or must have 10 years’ qualifying Australian residence.  The term ‘Australian resident’ is defined at section 7 to mean, relevantly, a person who resides in Australia.  Subsection 7(3) stipulates that regard must be had to certain matters when deciding whether or not a person is residing in Australia.  Subsection 7(5) provides that a person has 10 years’ qualifying Australian residence if the person “has, at any time, been an Australian resident for a continuous period of not less than 10 years”.

6.      Mr Protonotarios was residing in Australia from the age of 5 until he left in October 1999.  He has more than 10 years’ qualifying Australian residence, but that does not resolve the matter.  In order to be eligible to claim a Disability Support Pension in May 2003 he must have been an Australian resident at that time, that is, he must be found to be residing in Australia at that time. 

7.      Mr Protonotarios gave evidence about his unfortunate circumstances as a result of his psychiatric disorder, much of which concerned his ex-wife and son who live in Canberra.  It is not necessary to repeat all that evidence here.  Essentially, Mr Protonotarios is divorced and estranged from his ex-wife, but maintains a close contact with his son.  He has cousins living in Canberra with whom he maintains contact.  While he maintains that he has property[9] stored at his ex-wife’s house, it is plain enough that that house was not his home in May 2003[10].  He has no interest or lien over that house having, in effect, gifted his share of the marital home to his ex-wife in lieu of child support payments.  He has a bank account with a nominal balance but has no other assets in Australia.  He has spent only three weeks in Australia since October 1999 and presently resides in Greece in the care of his mother and sister.

[9] Furniture and clothing

[10] See Hafza v Director-General of Social Security (1985) 60 ALR 674 and Re Schlageter and Secretary, Department of Social Security (1985) 26 SSR 317

8.      Mr Protonotarios asserts that his absence from Australia is temporary and that he intends to return as soon as he is able.  However, he needs care and there is presently no one able to care for him in Australia.  The evidence was that his son intends to bring Mr Protonotarois back to Australia and to care for him when he is older[11].  Considering the duration and circumstances of Mr Protonotarios’ absence from Australia I am satisfied that his absence is not one of a temporary nature.  It is not within the meaning of temporary absence articulated by the Federal Court in Hafza v Director-General of Social Security (1985) 60 ALR 674 at 679-680.

[11] He is presently 14

9. Thus, considering all the circumstances, I am compelled to conclude that Mr Protonotarios was not residing in Australia when he claimed a Disability Support Pension on 19 May 2003. It follows, pursuant to subsection 29(2) of the Social Security (Administration) Act 1999 that his claim is taken not to have been made.

10.     That being so, and a claim being essential for payment of a Disability Support Pension, Mr Protonotarios was not entitled to a Disability Support Pension in the period from May 2003 to April 2005.

11.     I understand that the Secretary has decided to waive the Commonwealth’s right to recover the resulting overpayment debt from Mr Protonotarios as the debt was solely attributable to the administrative error of Centrelink, Mr Protonotarios having acted in good faith.

12.     It is not necessary to consider the portability provisions of the Social Security Act 1991 as they can have no effect in the circumstances.

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ............[Peter Strauch]..................................
  Associate

Date of Hearing  15 February 2007
Date of Decision  26 February 2007
Representative for the Applicant             Zefi Protonotarios
Solicitor for the Respondent  Pankaj Sharma
  Centrelink Legal Services Branch