Rocznik and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 172

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 172

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4926

GENERAL ADMINISTRATIVE DIVISION		)
Re		SIEGFRIED ROCZNIK

Applicant

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

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date29 February 2008

PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s Age Pension entitlement should be reinstated effective from the first pay day after 4 February 2008

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – notice to test eligibility for a comparable foreign payment – refusal to lodge a claim for a comparable foreign payment – some evidence provided to support refusal – suspension of entitlements –discretionary nature of powers under Act – Policy Guidelines as to the exercise of discretion to suspend or cancel considered – age and prior wartime experiences of applicant considered – health status – decision set aside

Social Security (Administration) Act 1999 ss 66, 82

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259

REASONS FOR DECISION

29 February 2008   Senior Member L Hastwell  

1.      Siegfried Rocznik (the applicant) was born in Germany and immigrated to Australia from Germany in 1970.  He has been a recipient of the Australian Age Pension (AP) since 16 August 1990. 

2.      There have been legislative changes since he first became an AP recipient and, as a result of a Social Security Agreement entered into between Germany and Australia, he was asked by Centrelink (the Department) in 2007 to take action to test his eligibility for a German age pension.  He has declined to do so, as a result of which the Department suspended his AP payments.

3.      The applicant provided some evidence to the Department to support his assertion that he had no entitlement to a German age pension, but that was not sufficient to satisfy them that he had no such entitlement and they continue to insist that he make application for the foreign payment and test his eligibility.

4.      An Authorised Review Officer affirmed the original decision to suspend AP on 26 June 2007.

5.      The applicant sought review of this decision to the Social Security Appeals Tribunal (the SSAT) which affirmed the decision on 6 September 2007.  The applicant seeks review of the SSAT decision to this Tribunal.

relevant legislation

6.      The relevant provisions are contained in the Social Security (Administration) Act 1999 (the Act).

7. Section 66 of the Act provides as follows:

“66      Notice to obtain foreign payment

(1)      This section applies to the following social security payments:

(a)      age pension;

…

(l)        wife pension.

(2)      If:

(a)a person claims, or is receiving, a social security payment to which this section applies; and

(b)the Secretary is satisfied that the person may be entitled to a comparable foreign payment from a foreign country if the person applied for the payment;

the Secretary may give the person a notice that requires the person to take reasonable action to obtain the payment at the highest rate applicable to the person.”

8. Section 82 of the Act provides as follows:

“82       Cancellation or suspension for failure to take action to obtain foreign payment

(1)      If:

(a)a person who is receiving a social security payment has been given a notice under subsection 66(2); and

(b)the Secretary is satisfied that the person has not complied with the requirement of the notice;

the Secretary may determine that the social security payment is to be cancelled or suspended.

(2)      If:

(a)a person who is receiving a social security payment has been given a notice under subsection 66(3); and

(b)the Secretary is satisfied that the person’s partner has not complied with the requirement of the notice;

the Secretary may determine that the social security payment is to be cancelled or suspended.”

issues

9.      The issues to be determined are:

·Was the Department within its rights to issue a notice to the applicant to take reasonable action to obtain a comparable foreign payment (CFP), in this case a German age pension?

·Did the applicant fail to comply with the requirement of that notice?

·Was the decision to cancel or suspend his AP entitlement the correct and preferable decision in this case?

background facts

10.     There is no dispute about a number of facts in this matter and the Tribunal sets them out as follows:

·The applicant is 82 years of age.  He was born in Germany on 9 August 1925.

·The applicant worked in Germany from at least 1958 until he came to Australia as a migrant in 1970.  He has resided in Australia since that time.

·His life in Germany was significantly disrupted by the second World War and he spent some time working in Turkey in the 1950s.

·The applicant worked in Australia between 1970 and his retirement at the age of 65 years in 1990.

·The applicant has been a recipient of AP from 1990 until 30 May 2007, the date it was suspended by the Department.  His wife's pension has also been suspended because of his refusal to make application for a CFP.

·The applicant owns his home where he resides with his wife.  He has some family left in Germany.

·The applicant last returned to Germany in 2003 to pay his respects to his deceased relatives.

·The applicant received a notice from the Department dated 15 January 2007 asking him about his AP and requesting that he complete a questionnaire about the countries he had lived and worked in since his birth.

·He completed that form as requested and returned it to the Department on 22 January 2007.

·On 23 January 2007, the Department forwarded a letter to him indicating that his response to the notice of 15 January 2007 raised the possibility that he may be entitled to a CFP. The letter required him to take action to make a claim for an old age/seniority pension from Germany. This was a notice under s 66(2) of the Act.

·The applicant responded by letter dated 20 February 2007 (T5/23) stating that he was not qualified for a CFP.  He briefly outlined why he had no such entitlement in that letter.

·On 7 March 2007 the Department responded to the applicant, requesting that he provide evidence as to whether he had ever received a lump sum payment of any contributions made to a German fund.

·On 26 March the applicant responded that he was not entitled to a CFP.  He said that he had never received any wages while in Germany and therefore had not accrued any pension entitlements.

·Despite subsequent ongoing correspondence with the Department and the suspension of his AP, the applicant continues to refuse to lodge an application for a CFP with the authorities.  He also refuses to sign an Authority to Release Information form which was sent to him under cover of a letter of 14 May 2007.  This would enable the Department to ascertain whether he is currently receiving any German pension entitlements.

·In a letter dated 30 May 2007 he provided the Department with the documentation that he said proved he had no entitlement to a German age pension.

·In a notice dated 5 June 2007 the applicant was advised that his AP payments had been suspended.  On the same date his wife's pension was also suspended.

the hearing

11.     The applicant represented himself at the hearing.  The Department was represented by Mr Goldsworthy.  The Tribunal received a number of exhibits into evidence which where relevant will be referred to.  These included the T documents, which included the text of the SSAT decision (T2/3-12).  The SSAT set out in some detail the applicant’s working history and the difficulties and hardship that he had experienced during the war years in Germany.

12.     The applicant gave evidence to the Tribunal.  He was adamant from the outset that he would not make an application to the German authorities for an age pension and that he would not authorise anyone else to make such application on his behalf.  In his view he has provided the Department with all the evidence that they need to establish that he has no entitlement.  In support of his position, he tendered his affidavit (Exhibit A3) with annexed correspondence with the Department and the evidence that he said proved that he had no CFP entitlement.

13.     The applicant is 82 years of age and when his AP was first suspended on 30 May 2007, he and his wife had to ask for help from the Salvation Army because of the sudden financial difficulty that the suspension created for them.  He wrote to the Minister for Human Services complaining about the suspension of his AP after working for 20 years in Australia and living in Australia for 37 years (T5/26).

14.     Since suspension of the applicant’s AP and his wife's pension, they have had to manage on his wife's income from part-time work as a carer.  Her income is modest.  She is currently aged 59 years.  She did not appear before the Tribunal.

15.     The applicant asserts that he was a self-employed person at all times between 1946 and 1970 when he came to Australia.  He was an engineer and he worked in construction in Germany and Turkey.  He confirmed the evidence that was set out in the SSAT decision.

16.     The applicant provided the Tribunal with an affidavit (Exhibit A3) and in an annexure to that affidavit he had copied what he claimed to be sufficient evidence to prove that he was not entitled to a CFP because he had been a self-employed person throughout the time that he lived in Germany.  After the War he was a refugee for six months and thereafter he never received a wage and was self-employed in Germany and in Turkey.  He explained that an age pension is not an automatic entitlement in Germany and he would only have such an entitlement if he had made contributions to a fund during his working life.

17.     When he left Germany to travel to Australia, he arranged to have his licence from the Department of Planning and Construction cancelled. 

18.     At one stage in his life he worked as a magician and gained some fame for his work in that area.  He is convinced that his name is still well known in Germany and one of his concerns about writing to the German government to ask for an age pension would be that he would become “a laughing stock” in Germany.  He believed that the fact of such an application will be made public in the local paper in the area where he resided.

19.     He was very concerned by what he considered to be an unreasonable intrusion into his privacy by Centrelink.  He told the Tribunal that they “control your life” and he was adamant that Centrelink employ people to spy on individuals who had reached the age of 65 years and were in receipt of benefits.  He claimed to have been harassed by phone by Centrelink and claimed to have been rung 28 times in one week.  He was convinced that a person by the name of Monika Henkler who had emailed Centrelink from Germany was an example of a Centrelink sponsored German spy (Exhibit R5).  The Tribunal had some difficulty following the applicant’s evidence on this point.

20.     When the Tribunal enquired about the applicant’s health, he said that he does not see a general medical practitioner on a regular basis.  He told the Tribunal that he is in excellent health and only sees a general practitioner when he needs to re-apply for his drivers licence once a year.

21.     The applicant provided a photograph that he said proved that Centrelink were in some way involved in spying on elderly pensioners.  This photograph was received as Exhibit A2.

22.     The applicant maintained the view that Centrelink were trying to “control” his life, and he was very concerned about Centrelink enquiring into his life.  His words were “They control your life and the lives of hundreds and hundreds of pensioners”. 

23.     In cross-examination, he remained absolutely adamant that he had never contributed to any sort of fund in Germany.  He pointed out that no such fund would have existed immediately after the Second World War and it was fanciful to suggest that as an apprentice in the early 1940s, he was contributing to such a fund.  Apprentices were supported by their parents.  He considered that he had provided ample evidence to the Department to satisfy them that he had no eligibility for a CFP.

the department’s submissions

24.     The Department says that the suspension is justified in that the applicant has steadfastly refused to apply for a CFP and will not even sign an authority that would enable the Department to obtain information from Germany as to whether he is currently receiving a CFP.

25.     The Department relies on the Policy Guidelines contained in the Guide to the Social Security Law (the Guidelines) and say that the applicant does not come within any of the categories of exemption contained in those Guidelines.

26.     They point to an e-mail exchange that took place between the Department's International Services Branch and the German pension authority which suggests that the applicant is known to the German pension authorities (Exhibit R5).

27.     The Department contends that he worked in Germany from at least 1958 to 1970 and they hypothesise that he would have contributed to a pension fund in that time and that it is reasonable for the Tribunal to be satisfied that he may be entitled to a CFP.

consideration of the evidence

28.     The Tribunal also had regard to all the information contained in the SSAT decision which was contained in the T documents.

29.     The applicant's correspondence with the Department (T5) had much the same tone as his evidence.  He saw the letters from the Department directing him to apply for a CFP as “threatening” (T5/24).  He expressed concern about the request that he sign a document that was “to take control of my life and privacy”.  He considered that he had earned his AP during his working years in Australia and was in some way being put under a threat by the Department.

30.     In his letter to the Minister for Human Services after the cancellation of his AP (T5 /26) the applicant expressed his situation in the following words:

“After 37 years in my beloved Australia and hard working for 20 years as Labourer with my high Qualification, the Federal Government forced my [sic] to sign a document to take control of my private life, I refused and my pension was suspendet [sic].  … “

31.     The applicant presented as a genuine witness.  He has a great deal of pride and considers that he has provided ample evidence to the Department to prove that he has no entitlement to a CFP.

32.     He is an elderly gentleman.  He experienced hardship and trauma during the Second World War.  He is a survivor of a very difficult period in history and a person who had to live on his wits to survive at various points in his early life.  He did have some unusual and somewhat paranoid views.  They may be the result of his wartime experiences or the ageing process or it may be they arise from a combination of both. 

33.     He would rather go without funds and put him and his wife in very difficult financial circumstances than be forced to make a claim that in his mind may expose him to a threat and to humiliation and ridicule back in Germany.  He appears to be genuinely concerned about a larger plot that he is convinced Centrelink is involved in, although it was difficult to discern from his evidence the nature of the plot.

34.     The applicant has lived and worked in this country for many years and takes great offence that after working hard and contributing taxes in this country, he now finds his AP suspended.  He asks the Tribunal to reinstate his AP.

35.     The statutory provision whereby his AP can be suspended or cancelled if he fails to apply for the CFP (s 82 of the Act) is a discretionary provision.  The Act contains no guidance as to the exercise of the discretion.

36. The applicant does not dispute that he has refused to comply with a notice issued under s 66 of the Act. The only issue for the Tribunal to consider is whether, in the circumstances, the Secretary has properly exercised his discretion under s 82 of the Act to suspend his AP.

37.     The public policy objective in requiring persons to apply for a CFP is to ensure that individuals in receipt of certain Australian benefit entitlements properly explore their entitlement to a pension from another country.  If they do have an eligibility for a CFP, it may impact upon and reduce their reliance on an Australian benefit.

38. The Guidelines have been issued to assist decision-makers with respect to such decisions under s 82 of the Act. They are contained in the Guide to the Social Security Law at Chapter 7.3.2.

39.     The Guidelines are not binding on this Tribunal.  Nevertheless the Tribunal must take policy into account and give appropriate weight to that policy.  In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 Davies J commented [at page 266]:

"I accept that, in the exercise of discretions under the Australian Citizenship Act, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister ….

But to say that, is not say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down."

40.     It is recognised in the Guidelines that there can be good reason for exempting a person from the requirement to make application for a CFP.  Those reasons are set out under Chapter 7.3.2 in the following terms:

“…

Reasons for an exemption

Once a notice has been issued the reasons for granting an exemption to claim a CFP are as follows:

·The delegate is satisfied that a customer is not entitled to claim a comparable foreign pension under the law of the claim country or that the pension cannot be paid in Australia due to foreign exchange restrictions or other economic or political restrictions.

·The delegate is satisfied that a customer would be entitled to a CFP but the customer's state of health is such that they could not reasonably be expected to provide the information needed to assess entitlement and there is no other person available to assist with the claim process.

…

Customer has a serious illness

Any request for an exemption from the requirement to claim a CFP, on the grounds of ill health should be supported by a certificate a statement or a letter from a health care professional.

…

Customer is elderly with a minimal CFP amount

If a customer is over 80 years of age, consideration should be given to exempting them from the requirement to claim but ONLY if the CFP entitlement arises from contributions of:

·5 years or less, AND the extra income needed to affect the rate of Australian pension is $500.00 a year or more, or

·between 5 and 10 years and the extra income needed to affect the rate of Australian pension is $1,000 a year or more. In this case the customer must be advised of the possibility of CFP entitlement and that Centrelink can help them claim it if they want to, or

…”

41.     Does the applicant come within any of the categories of exemption?  The Department argues that he does not and that the discretion has been properly exercised.

42.     The applicant does not have a serious illness.  However, after considering all available evidence the Tribunal does have concerns that his health status, his age, and his current mental capacity and beliefs are such that he could not be reasonably expected to do more than he has done to satisfy the Department’s request.  He has provided the Department with all the information that he has in his possession to prove that he has no entitlement to a CFP and he is highly suspicious and concerned about the Department’s insistence that he do more.

43.     The translation of the e-mail from a woman in Germany that is suggestive of a person in authority knowing of the applicant may relate to some other entitlement that the applicant has as a German citizen.  His response to this was that he was back in Germany in 2003, he is a German citizen, the Social Security system in Germany is very complex and there are numerous different authorities administering different entitlements.  He said that the authority referred to may have his details because of his entitlement to something such as healthcare while in Germany. 

44.     There is no evidence or submission by the Department that the applicant is currently receiving and failing to declare a CFP.

45.     The Tribunal has considered the claim form that the applicant would need to complete were he to make a claim for a CFP (Exhibit R3).  The application form requests detailed information about his earlier working life.  He would need to provide information and proof with respect to the following:

·periods of employment;

·periods of self-employment;

·voluntary contributions;

·periods that are known as substitute; 

·nonwork periods; and

·excused periods.

46.     All the above information must be listed “in chronological order from school release age 16 until the day of application”.  Periods of vocational training in Germany are to be indicated separately.  Proof is required to be submitted with respect to all the periods. 

47.     Given the applicant's presentation to the Tribunal, his age and his very fixed and irrational suspicion of inquiry into his private life, the Tribunal is satisfied that it would be extremely difficult, if not impossible, for him to complete that application, such that any sensible response could be expected from Germany. 

48.     The Tribunal is of the view that there is a basis for exemption in this case.  This man is now 82 years of age.  It is acknowledged that at the most he worked in Germany for 12 years and the Department does not dispute that he was a self-employed person for some or all of this time.  If he did have any periods of contributions to a fund, it appears likely that they would have been very short.   If quantum of entitlement is linked to contribution, then at the best his entitlement is likely to be minimal.

49.     His health and state of mind are such that it is not now reasonable to expect him to make the application for a CFP.  Specific medical evidence was not available to the Tribunal as the applicant believes he is in very good health and he rarely sees a doctor.  However, the Tribunal observed him to have some very unusual ideas and suspicions that appeared genuine and have lead to a situation where he has received no AP for a number of months and would rather live in hardship than attempt to fill out the forms that he is being requested to complete.

50.     It is the Tribunal's view that the discretion should be exercised favourably to the applicant in this case and his AP should be reinstated from the date of the hearing.  He has lost a number of months of AP as a result of his refusal to make application and he should not be further penalised.  Suspension of his AP to the date of the hearing is a significant penalty for his failure to fill in the claim form that the Department asked him to complete even though he has supplied in writing what he considers to be proof that he has no entitlement. 

51.     In the circumstances, the Tribunal sets aside the decision under review and substitutes the decision that the applicant’s Age Pension entitlement should be reinstated effective from the first pay day after 4 February 2008.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  4 February 2008
Date of Decision  29 February 2008
Advocate for the Applicant       In person

Advocate for the Respondent   Mr Christian Goldsworthy

Centelink Legal Services Branch