Re Ghafoor and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 159
•27 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 159
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4607
GENERAL ADMINISTRATIVE DIVISION ) Re RAWIA GHAFOOR Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr Steve Karas, Senior Member Date27 February 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – definition of ‘family acute crisis’ – attendance at a memorial service – definition of ‘family member’ – aunt of the applicant – whether an applicant is entitled to newstart allowance whilst attending an acute family crisis overseas – decision affirmed.
Social Security Act 1991 ss 23(14), 1212A
Re Lesic and Secretary, Department of Families and Community Services (2002)69 ALD 683
REASONS FOR DECISION
27 February 2008 Mr Steve Karas, Senior Member Introduction
1. Rawia Ghafoor (the applicant) applied to the Administrative Appeals Tribunal (the Tribunal) on 21 September 2007 for a review of the original decision that was reviewed and affirmed by the Social Security Appeals Tribunal (SSAT) on 7 September 2007. The original decision found that the applicant was not eligible to be paid the Newstart Allowance for the period 20 September 2006 to 31 January 2007.
2. The applicant was not represented at the hearing held on 14 February 2008 and appeared in person. Ms M Brazier appeared for the Secretary, Department of Education, Employment and Workplace Relations (the Respondent). The Tribunal had before it the T-documents lodged in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 together with other documents as follows
·The respondent’s Statement of Facts and Contentions enclosed under cover of its letter dated 17 January 2008 with attachments;
·The applicant’s letter “To Whom it May Concern” dated 5 December 2007;
·A letter from the respondent to the applicant dated 11 October 2007;and
·A copy of the applicant’s Australian Passport
Background
3. The SSAT in its decision dated 7 September 2007 found that the decision made by Centrelink on 19 September 2006 not to pay the Newstart Allowance to the applicant for the period 20 September 2006 to 31 January 2007 was correct. It found that in the circumstances of the case that the applicant’s Newstart allowance was not portable during her absence overseas from September 2006 to 31 January 2007 and it ceased to be payable under s 1215 of the Social Security Act 1991 (the Act).
4. The applicant an Australian citizen was in receipt of a Newstart Allowance from May 2006. On 19 September 2006 she advised Centrelink that she was to travel overseas. A Centrelink note of the contact on 19 September 2006 records that the allowance will not be paid as the “customer is travelling (overseas) for a reason that does not allow (an) overseas payment” as the applicant “left (the) country for a holiday to address (a) medical condition. She was not required to leave (the) country for medical treatment as the treatment was available in Australia. She was not required to leave (the) country for (an) acute family crisis – she decided to go back to Iraq; there was no request from family members for her to return and no acute family crisis as per the Social Security Law Guidelines Legislation/Policy Reference: 1212A Social Security Act.” Centrelink wrote to the applicant on 19 December 2006 advising her in part that she would not receive the Newstart Allowance.
5. On the applicant’s return to Australia, she sought a review of that decision in February 2007. On 23 May 2007 an authorized review officer affirmed the decision to refuse her Allowance from 20 September 2006 to 31 January 2007.
Issues
6. The issue for the Tribunal is to determine whether the applicant is entitled to payment of Newstart Allowance for all or any part of the period 20 September 2006 to 31 January 2007. The applicant at the hearing and in some correspondence requested payment for the period 27 May 2005 to 28 November 2005 while she was overseas in Iraq, however as explained to her at the hearing her application for review was only for the period 20 September 2006 to 31 January 2007 and it was that period and that decision that the Tribunal would be reviewing.
7.A hearing of this matter was held in Brisbane on 14 February 2008.
Evidence
8.The applicant gave evidence to the effect that:
·She went to Iraq in 2005 to care for her seriously ill aunt (her father’s sister). She returned to Australia in November 2005 and regretted doing so.
·Her aunt lived with a disabled adopted son some 14-15 years old in Iraq. She was informed in April 2006 that her aunt had died and was buried. She went to Iraq for her aunt’s memorial service in October 2006.
·The applicant was very close to her aunt who “had brought her up” as she had spent her childhood with her before coming to Australia in 1996. She wanted to care for her aunt.
·All of the applicant’s brothers and sisters live in Australia except for her half brother and 2 half sisters from her father’s earlier marriage in Iraq. However she is not close to her half siblings and has no relationship with them.
·In referring to her concern for family members in Iraq who had been bombed, she noted she was referring to friends of her father’s whom she regarded as “extended family members”. She states that at no time did she inform Centrelink that she was going to Iraq to care for her sister’s family of 6 children and that the references to this in Centrelink notes and the like were incorrect.
·She knew of her aunt’s death before she left for Iraq in September 2006. The applicant read Centrelink’s letter dated 19 September 2006. She recalls its contents but thought she read it on her return from Iraq in 2007, although she stated earlier she thought she had seen it before leaving for Iraq on 20 September 2006.
·While in Iraq she stayed with a number of family members.
·She suffers depression and is not in good health although she is not on medication. The applicant now works at the Islamic Women’s Association caring for disabled people.
9. In answer to a question from Ms Brazier, the applicant stated she had not departed earlier in 2006 to see her ill aunt as she was depressed – “deeply depressed”. When she arrived in Turkey in September 2006, her brother told her to return to Australia and not to go on to Iraq, but she refused his request. Although she had her ticket for Iraq a week before her departure she contacted Centrelink on the day before she left and was told to claim after she returned to Australia. Her first contact with Centrelink after her return, was on 14 February 2007. Ms Brazier referred to and directed the applicant’s attention to a number of contacts with Centrelink, when there was no reference to her aunt as the reason for going to Iraq. However, the applicant stated she was depressed and again stated she did not go to Iraq for her sister with 6 children in Iraq as she has none and that she has nothing to do with her half siblings there. The applicant stated she had not informed Centrelink properly of her reasons for going to Iraq. She was stressed “for many reasons including not finishing school” and that she did not want to mention all the reasons for her stress including that she did not want to return to Australia from Iraq in 2005.
10. The applicant reiterated that the main reason for her trip to Iraq in September 2006 was to attend her aunt’s memorial service.
Consideration
11. The Tribunal finds that the evidence of the applicant was confusing, in part contradictory, particularly when compared to earlier statements by her as recorded by Centrelink officers. As well, the Tribunal notes that reference to the aunt as her main reason for going to Iraq, was clearly raised only at the time of the application to the SSAT on 27 June 2007. The Tribunal has difficulty in accepting that the applicant had not raised her health and her sister’s plight in Iraq, as recorded by Centrelink officers in the file notes, as not being the reasons for her travel to Iraq in September 2006. The evidence by the applicant at the hearing is inconsistent with the Centrelink notes in this matter. Further, the Tribunal notes that the SSAT made a finding on the evidence before it that the applicant “went overseas for the purpose of caring for her aunt who she understood to be critically ill”. The evidence before the Tribunal clearly indicates that the aunt had however, died some months before the applicant left for Iraq in September 2006 and that the applicant had been informed of this by a telephone call in April 2006 by one of her cousins there.
12. Section 1217 of the Act provides that recipients of Newstart Allowance are permitted to be absent from Australia and will be entitled to receive benefits in certain limited circumstances listed in the table at the end of that section. For the purposes of the Newstart Allowance those circumstances are:
Portability of social security payments
Column 1
Item
Column 2
Payment
Column 3
Person
Column 4
Absence
Column 5
Maximum portabilityperiod
15
Newstart allowance
All persons
A temporary absence for any purposes:
(a) to seek eligible medical treatments;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpoase.
13 weeks
The terms in Column 4 of the Table above are defined in s 1212, 1212A and 1212B of the Act respectfully. The Tribunal finds that the applicant did not satisfy the requirement regarding “eligible medical treatment” as defined in s 1212 as she was suffering from stress and her treating doctor referred to her needing a “holiday”. Furthermore, any treatment required by the applicant in this regard was available in Australia. The applicant did not travel overseas for a “humanitarian purpose” as defined in s 1212B of the Act.
It was submitted that the applicant travelled to Iraq in September 2006 for an “acute family crisis”. This term is defined in s 1212A of the Act which provides as follows:
“MEANING OF ACUTE FAMILY CRISIS
1212A
For the purposes of this Part, a person’s absence if 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:
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”.
The term “family members” is referred to in ss23(14) of the Act as follows:
“…each of the following is a family member in relation to a person (the relevant person):
(a) the partner, father or mother of the relevant person:
(b) A sister, brother or child of the relevant person;
(c) any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b).”
15. It was submitted that the applicant’s aunt was regarded as her “surrogate mother”. The applicant, in a statement dated 5 December 2007 and one from her brother dated on the same day, referred in part to the strong relationship with the aunt who had assisted in the applicant’s upbringing. As well, the Tribunal notes that the applicant and her brother referred to the applicant wishing to be at their aunt’s funeral that had already taken place in April that year. The applicant stated she attended a “memorial service” for her in October 2006 even though her brother in Turkey at the time tried to prevent her from going to Iraq because of the difficulties there. In the circumstances and on the evidence and material before it, the Tribunal is unable to conclude that the aunt constituted a “family member” as referred to in s 23(14) of the Act given the inconsistencies in the applicant’s evidence and her motivations for presenting such material and statements.
16. Given the statements of the Centrelink officers as recorded in the file notes of their conversations with the applicant at the time, the Tribunal prefers that evidence to the inconsistent statements of the applicant who stated she was very stressed at the time. Consequently, the Tribunal does not accept and is not satisfied that the applicant went to Iraq for an “acute family crisis”, namely her aunt’s illness as referred to by the SSAT as the aunt had already died and her funeral had been held soon after her death in April 2006. However, even if the Tribunal was minded to give the applicant the benefit of the doubt in this regard, the Tribunal further finds that the circumstances of the applicant’s visit to Iraq on September 2006 was not for an “acute family crisis” as referred to in s 121A of the Act. In this regard the Tribunal finds that the applicant’s visit was not for the purpose of visiting a family member who was critically ill in that the aunt had died the previous April. As well, there was not a family member who was hospitalised with a serious illness in Iraq at the time that necessitated the applicant’s visit. Although the applicant stated she attended her aunt’s memorial service in October 2006 in Iraq, section 1212A of the Act refers to an acute family crisis as encapsulating “a purpose relating to the death of a family member” at that time. The aunt died in April 2006 and the funeral had taken place some six months before the applicant arrived in Iraq, noting that the Shorter Oxford English Dictionary meaning of “acute” refers to “coming sharply to a crisis”. The Tribunal refers also to Lesic v Secretary, Department of Families and Community Services (2002) 69 ALD 683 in this regard. Furthermore, the applicant has no relationships with her half siblings in Iraq and did not go there to assist a sister and her six children.
Conclusion
17. The Tribunal affirms the decision under review. This means that Ms Ghafoor’s application has been unsuccessful.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Steve Karas, Senior Member
Signed: .....................................................................................
E. Young, Research AssociateDate/s of Hearing 14 February 2008
Date of Decision 27 February 2008
Applicant Ms Ghafoor, unrepresented
Respondent Ms M Brazier, departmental advocate
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