Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 194
•7 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 194
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700026
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT AMER DJEBARRA Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date7 March 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – portability period – maximum portability period – illness overseas – extension of portability period – decision affirmed
Social Security Act 1991 ss 1215(1), 1217(1), 1217(4), 1218C(1)(b), 1218C(2), 1218C(3)
Re Manolev and Secretary, Department of Family and Community Services 88 ALD 794
Re Rosehart and Secretary, Department of Employment and Workplace Relations [2006] AATA 417REASONS FOR DECISION
7 March 2008 Senior Member R W Dunne 1. Mr Robert Djebarra, the applicant in this case, has applied to this Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 24 January 2007. The SSAT affirmed a decision made by a Centrelink officer on 11 April 2006, which was affirmed by that officer on 29 August 2006 and in turn by an Authorised Review Officer on 12 October 2006, who refused to extend the applicant’s portability period for the payment of his Disability Support Pension (“DSP”).
2. At the hearing, the applicant represented himself and Mr Christian Goldsworthy, a Centrelink advocate, represented the Secretary, Department of Employment and Workplace Relations (as it was at the time) (“respondent”). The Tribunal received into evidence the T documents (Exhibit R1), together with a website extract (“EuroWEATHER – Climate Averages”) for Algiers, Algeria (Exhibit R2), tendered under s 37 of the Administrative Appeals Tribunal Act 1975.
issues for the tribunal
3. The issues for the Tribunal’s consideration are:
(a)whether the applicant was unable to return to Australia within 13 weeks of leaving, due to “serious illness”; and
(b)whether the applicant’s portability period for the payment of DSP should be extended.
legislation
4. The following provisions of the Social Security Act 1991 (“Act”) relevantly apply to the issues for the Tribunal:
“1215 Some payments generally portable with time limit
(1)If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:
(a)throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;
(b)throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.
Note:Section 1217 defines the person’s maximum portability period and portability period for the payment.
…
1217Meaning of maximum portability period, allowable absence and portability period
Meaning of maximum portability period
(1)The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:
(a) the payment (as specified in column 2 of the table); and
(b)the class of persons to which the person belongs (as specified in column 3 of the table).
…
(4)If the person’s maximum portability period for the payment is a period of weeks, the person’s portability period for the payment, in relation to the period of absence, is the period:
(a) beginning at the commencement of the period of absence; and
(b) ending at the earlier of the following times:
(i)the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii)the end of the period of weeks that is the person’s maximum portability period for the payment.
…
1218CExtension of person’s portability period—general
(1)The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
…
(b)a serious illness of the person or a family member of the person;
…
(2)The Secretary must not extend the person’s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence; and
(b)if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(3)If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period.”
background and evidence
5. The factual background to this case is largely not in dispute and may be briefly stated from what appears in the decision of the SSAT. During 2005 the applicant was in receipt of DSP. On 4 December 2005, he left Australia to travel to Algeria to visit his family. It was also his intention to visit his brother in France, who was dying of cancer. On 26 October 2005, the applicant contacted Centrelink about his plans to travel overseas. According to Centrelink, he said his return date was uncertain, but would be between 5 March 2006 and 4 June 2006. In his evidence, the applicant denied that he told Centrelink that he would be returning within this period. He owned a rental property at Commercial Road, Port Adelaide, which was vacant. He needed the rental income and was to return to Australia before 5 March 2006 to arrange the rental of the property. Centrelink wrote to the applicant, in October 2005, advising him of his portability period and that his DSP would stop if he remained outside Australia after 5 March 2006. When he left Australia on 4 December 2005, he had a return ticket that allowed him to be away for a year. He (or his son) had booked his flight to return to Australia in March 2006, but then had to cancel it in February 2006 because of the applicant’s health. While he was in Algeria, a serious heatwave occurred. The applicant suffered from kidney trouble and diabetes. He lost weight and his skin was “hanging off him”. He took medication with him for his existing medical conditions, but did not take enough. He became sick in February 2006 and, on 2 March 2006 when he was suffering from diarrhoea, was sweating and had kidney problems, he went to see a Dr Salhi. He had been staying with his son and daughter-in-law and had to travel a considerable distance to see the doctor, who was known to his son and had been recommended by him. The doctor told him that he could not travel as he was too sick. He told him to drink plenty of water and prescribed antibiotics for his kidney and other problems. He was weak and was unable to move around very much. He could not return to Australia and he could not visit his brother in France. When his return booking to Australia was cancelled, he did not have in mind what effect it would have on his DSP. On 5 March 2006, the applicant saw a Dr Bourbia, who was a different doctor and closer to his son’s home. He went to see Dr Bourbia to get some repeat medication for his existing medical conditions.
6. The applicant sought a medical certificate from Dr Salhi in relation to his illness. A certificate, dated 2 March 2006, was provided, which the applicant said was all he was able to obtain. A translation of the certificate, in the French language, was obtained and read.
“I, the undersigned, certify that I examined Mr. [illegible], 63 years old, today and that he suffers a serious clinical disease requiring very frequent medical care with frequent biological and radiological analyses that rule out any travel for 04 months except for *complications* [… last two words illegible].”
The applicant also obtained a medical certificate from Dr Bourbia, dated 5 March 2006. Again, the certificate was in the French language and was translated into English to read:
“I, the undersigned, Dr BOURBIA, certify that Mr. Amer Djebarra, aged 63, is currently receiving medical treatment for:
- Non-insulin dependent diabetes
- Hyperlipidaemia
- Congestive heart failure, with surgery 4 years ago.
His state of health requires a strict diet and medical treatment with regular medical follow-up for life.
At present he is physically unable to undertake any long travel.”
7. The applicant left Algeria to return to Australia on 3 August 2006 and arrived back on 7 August 2006. About three days after his return, he went to see his general practitioner, Dr Khurana. He sent the applicant to have a blood and urine test and, because of his diabetes, told him to be careful with his kidney condition. In a telephone discussion with the SSAT, Dr Khurana said that the applicant had medical problems that pre-dated his trip to Algeria. He said he had seen the applicant on 22 November 2005, 22 August 2006 and 24 August 2006. However, he did not feel he was able to comment on the applicant’s illness overseas and whether it would have prevented him from returning to Australia for 5 months.
8. In cross-examination by Mr Goldsworthy, the applicant said he knew he had to return to Australia within three months and that his return date was flexible. When asked whether he had evidence of a booking to fly to Paris, the applicant said that he did not know whether he still had the evidence at home. When asked about the results of the “frequent biological and radiological analyses” referred to by Dr Salhi in his medical certificate, the applicant was unsure whether he still had the results. He said he thought he may have given them to his Australian doctor. Then, when he was asked about the “frequent medical care” that Dr Salhi had referred to, the applicant was vague in describing the number of times he had actually seen the doctor. He said that Dr Salhi’s certificate was all his family could obtain from him at the time. Mr Goldsworthy also questioned the applicant about the “heatwave” that he said occurred in Algeria at the time of his illness. The applicant acknowledged that the heatwave was unusual for Algeria, in winter, and at that time of the year. However, the weather had been changing and was unseasonal and the heatwave had been a freak occurrence.
consideration
9. Under s 1217(1) of the Act, where a person receiving DSP leaves Australia, the person may continue to receive DSP for a limited period of time, known as the “portability period”. The maximum portability period is set out in a table at the end of s 1217. Generally, pursuant to s 1217 of the Act, the maximum portability period for someone receiving DSP was 13 weeks. Section 1217(4) provides that a person’s portability period for DSP was the period beginning at the commencement of their absence from Australia and ended, either at the time when their absence was not an allowable absence in relation to the payment, or at the end of the period of weeks, which was the person’s maximum portability period (whichever first occurred). The applicant’s portability period commenced when he left Australia on 4 December 2005 and ended on 4 March 2006. In the circumstances, the respondent properly stopped payment of the applicant’s DSP on 5 March 2006.
10. Under s 1218C of the Act, the Secretary may extend a person’s portability period if satisfied that the person is unable to return to Australia because of various events. However, s 1218C(2) prevents the Secretary extending the person’s portability period unless the relevant event occurred or began during the period of absence from Australia. The only event that fits in the case of the applicant is s 1218C(1)(b), namely “a serious illness of the person or a family member of the person”. On the evidence, the applicant enquired of Centrelink concerning the portability of his DSP if he proceeded overseas. Mr Goldsworthy submitted that there was evidence that the applicant had informed Centrelink that he intended to return to Australia sometime between 5 March 2006 and 4 June 2006. The applicant denied that he had communicated this anticipated return date to Centrelink. Nevertheless, it appears he was aware that, if he remained outside Australia after 5 March 2006, his DSP would stop.
11. The expression “serious illness” is not defined in the Act. In Re Manolev and Secretary, Department of Family and Community Services 88 ALD 794, Dr P Staer, Member, made the following observation (at paragraphs 29-31):
“29. The Macquarie Dictionary gives some of the following definitions of "serious": ‘of grave aspect’, ‘giving cause for apprehension’, ‘critical’. In the Explanatory Memorandum of changes to the Social Security Act it states under the new Section 1218C - Extension of a person’s portability period: "This Section provides a discretion for the Secretary to extend a person’s portability period where the person finds him or her self in any of the grievous circumstances listed in the Section".
30. The Tribunal would, from the above, come to the conclusion that the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.
31. The Tribunal finds that Mr Manolev’s illnesses are rather vague without specific onset and without a specific end point.”
12. Then, in Re Rosehart and Secretary, Department of Employment and Workplace Relations [2006] AATA 417, Associate Professor B W Davis AM, Member, made the following further observation (at paragraph 30):
“30. Application of discretionary powers under s1218C are severely limited anyway. The explanatory memorandum to the legislation states it applies only to a person undergoing grievous circumstances; the Guide to Social Security Law says it applies only to an extreme or emergency situation; and in earlier AAT decisions such as Manolev and Secretary, Department of Family and Community Services (2005 AATA 398 it was ruled section 1218C should only be applied in cases of serious illness or emergency circumstances:
‘...the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.’”
13. The applicant’s evidence (which the Tribunal accepts) was that, whilst in Algeria, an unseasonal heatwave occurred. He suffered kidney failure, had diarrhoea and was sweating. He lost weight and his skin was “hanging off him”. He had blood in his urine, his eyes were swollen and his skin was dry. He provided two medical certificates in relation to his illness. The first certificate was from Dr Salhi dated 2 March 2006. Although the translator’s note indicated that part of the certificate was hardly legible and the translation was tentative, the rest of the certificate represented only a vague description of the applicant’s illness. It said that he suffered “… a serious clinical disease requiring very frequent medical care with frequent biological and radiological analyses …”. The Tribunal found this description to be of little assistance in determining whether the applicant’s illness was serious in nature. The second certificate from Dr Bourbia dated 5 March 2006 was similarly of little assistance. It described medical conditions from which the applicant suffered prior to leaving Australia. The applicant acknowledged that, notwithstanding three or four visits to Dr Salhi while he was in Algeria, his family had been unable to obtain a more detailed and accurate description of his illness. Like the SSAT, the Tribunal accepts that the applicant may have experienced ill health while he was in Algeria, but the Tribunal is not satisfied, on the evidence before it, what the illness was or that it was so serious that he was unable to return to Australia by 5 March 2006. It is also apparent from Dr Bourbia’s certificate that the illness from which the applicant suffered in Algeria may not have first occurred or began during his absence (see s 1218C(2) of the Act). Accordingly, the Tribunal is unable to extend the applicant’s portability period for his DSP during the period after 5 March 2006 whilst he remained outside Australia.
decision
14. For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 4 December 2007
Date of Decision 7 March 2008
Advocate for the Applicant In personAdvocate for the Respondent Mr C Goldsworthy
Centrelink Legal Services Branch
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