RODRIGUEZ And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS - [2010] AATA 448

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5823

GENERAL ADMINISTRATIVE DIVISION )

Re CRISTINA TERESA RODRIGUEZ

Applicant

And

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

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)
Date 16 June 2010
Place Hobart

Decision
The decision under review is affirmed.

.........................................
Senior Member

CATCHWORDS
SOCIAL SECURITY - disability support pension - applicant left Australia to reside overseas - portability limited to 13 weeks - applicant not considered to be severely disabled or terminally ill - decision under review affirmed
Social Security Act 1991, Chapter 4, ss 23(4B), 1217, 1218AA
Guide to Social Security Law (the Guide), ss 1.1.S.110, 3.6.2.20
Drake V Minister for Immigration and Ethnic Affairs (1979) 2 ALD 6
Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983
Trepic v Secretary Department of Family and Community Services [2005] AATA 710
Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983
REASONS FOR DECISION

16 June 2010

Ms A F Cunningham (Senior Member)

1.       The applicant, Christina Rodriguez seeks the review of a decision which limited payment of her disability support pension (DSP) to a period of thirteen weeks following her departure from Australia on 25 July 2009 to reside in Uruguay.
2.       The hearing was conducted by telephone to Mrs Rodriguez who resides in Uruguay. She was represented by her sister and the Tribunal had the assistance of an interpreter in the Spanish language. Christina Rodriguez gave oral evidence at the hearing. She was cross examined by Brian Sparkes who appeared on behalf of the respondent.
3.       Centrelink's decision to limit the payment of DSP was affirmed by the Social Security Appeals Tribunal (SSAT) on 30 October 2009. The reviewable decision found that the qualifying circumstances which would permit payment of DSP for an unlimited period did not exist in Ms Rodriguez's case.
background
4.       The following facts as set out in the Secretary's Statement of Facts and Contentions and evidenced in the Section 37 documents (T documents) were not in dispute.
·Mrs Rodriguez was born in Uruguay and arrived in Australia on 26 January 1980.
·Mrs Rodriguez was granted DSP on 31 January 2007.
·Mrs Rodriguez left Australia for Uruguay on 25 July 2009.
·Mrs Rodriguez suffers from a number of ailments and has been diagnosed with chronic severe depression.

5. In around May 2009 Mrs Rodriguez submitted a request to have her DSP continued for an unlimited period while she resided outside Australia on the basis that she is terminally ill. She described her terminal condition as "I want to kill myself". The accompanying Certificate of Medical Condition completed by Dr Alicia Meneghetti described her terminal condition as "major depression, she keeps intending to kill herself. The only moment that she is protected is when she is with her sisters. They live in Uruguay." The certificate was received by Centrelink on 10 June 2009.
6. On 28 July 2009 Centrelink advised…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: RODRIGUEZ And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2010] AATA 448
Case: [2010] AATA 448
Decision Date: 16 June 2010

CaseChat Overview and Summary

The applicant, Rodriguez, sought a review of a decision made by the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs, which determined that Rodriguez's eligibility for the disability support pension under the Social Security Act 1991 would cease following his departure from Australia. Rodriguez had left Australia to reside overseas and argued that his eligibility for the pension should continue uninterrupted. The primary issue before the court was whether the applicant was entitled to have his disability support pension paid while residing outside Australia, given the statutory limitations on pension portability.

The court examined the relevant sections of the Social Security Act 1991, specifically sections 23(4B), 1217, and 1218AA, and considered the pertinent sections of the Guide to Social Security Law, which outline the criteria for pension portability. The court also reviewed relevant case law, including Drake V Minister for Immigration and Ethnic Affairs, Foster and Secretary, Department of Employment and Workplace Relations, and Trepic v Secretary Department of Family and Community Services. The court held that the applicant did not meet the criteria for a severely disabled or terminally ill person, and thus his pension was not portable beyond the 13-week limit stipulated by the legislation. Consequently, the decision to cease the payment of the disability support pension upon Rodriguez's departure from Australia was upheld.

The court's reasoning was grounded in the statutory provisions and the established case law, which did not support an extension of pension portability beyond the prescribed period. The applicant's arguments regarding the impact of his departure on his financial stability and health conditions were considered but did not alter the legal framework within which the decision was made. The court concluded that the decision under review was correct and affirmed the Secretary's determination.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		CRISTINA TERESA RODRIGUEZ