Saad and Secretary, Department of Social Services (Social services second review)

[2015] AATA 530

Saad and Secretary, Department of Social Services (Social services second review) [2015] AATA 530 (21 July 2015) 

Division	General Division
File Number(s)	2014/0800
Re	Nezar Saad
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	21 July 2015
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr Ion Alexander, Member

CATCHWORDS - SOCIAL SECURITY - disability support pension - portability period - DSP cancelled - whether portability period should have been extended - no grounds for extending portability period - decision affirmed

Legislation

Social Security Act 1991 (Cth) ss 1217, 1218C

Cases

re Jin v Centrelink [2011] FCA 337

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Guide to Social Security Law

Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Bill 2000 Explanatory Memorandum

REASONS FOR DECISION

Dr Ion Alexander

BACKGROUND

1. On 1 November 2012 Centrelink cancelled Mr Saad’s disability support pension (DSP) while he was overseas.

2. On 26 August 2013, on internal review, an authorised review officer (ARO) affirmed Centrelink’s decision.

3. On 6 December 2013 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision on the basis that grounds to extend the portability period pursuant to sections 1218C(1) of the Social Security Act 1999 (the Act) were not made out.

4. Mr Saad seeks review of the decision of the SSAT.

5. Mr Saad was unable to attend the entire hearing but was represented by his son, Mr Mohssin Saad, who is also his Centrelink nominee.

6. During the hearing Mr Saad gave evidence by telephone with the assistance of an Arabic language interpreter.

   ISSUES

7. At the time Mr Saad departed Australia section 1217 of the Act provided that the maximum period a person could be paid DSP while overseas was 13 weeks (“the portability period”).

8. It is accepted that on 3 February 2011 Mr Saad departed Australia and travelled to Syria and that, pursuant to section 1217 of the Act, DSP was payable until 5 May 2011.

9. Section 1218C of the Act provides for the extension of a person’s portability period as follows:

   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:

   (a)a serious accident involving the person or a family member of the person;

   (b)a serious illness of the person or a family member of the person;

   (c)the hospitalisation of the person or a family member of the person;

   (d)the death of a family member of the person;

   (e)the person’s involvement in custody proceedings in the country in which the person is located;

   (f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

   (g)robbery or serious crime committed against the person or a family member of the person;

   (h)a natural disaster in the country in which the person is located;

   (i)political or social unrest in the country in which the person is located;

   (j)industrial action in the country in which the person is located;

   (k)a war in the country in which the person is located.

   (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

10. On 25 April 2011, whilst in Syria, Mr Saad was injured in a motor vehicle accident (MVA) and Centrelink agreed to extend the portability period until 5 August 2011.

11. On 24 September 2012, in accordance with an agreement reached by the parties, the Administrative Appeals Tribunal (AAT) decided the portability period was extended to 30 October 2012.

12. Mr Saad did not return to Australia during the extended portability period.

13. By letters dated 1 November 2012, Centrelink notified Mr Saad and his son that Mr Saad’s DSP had been cancelled because Mr Saad’s overseas payment extension had ended.

14. On 7 February 2013 Mr Saad’s son requested a further extension of the portability period which was not granted.

15. Mr Saad returned to Australia on 23 December 2014.  He qualified for the Age Pension on 1 February 2015 and was subsequently granted the Age Pension.

16. It is submitted on behalf of Mr Saad that, as result of injuries suffered in the MVA on the 25 April 2011, he was prevented from returning to Australia until 23 December 2014 and therefore his portability period should have been extended.

17. The respondent submits that there are no grounds to warrant an extension of the portability period from 1 November 2012 to 23 December 2014. In particular, the respondent submits that there is insufficient medical evidence before the Tribunal to support Mr Saad’s contention that he was prevented from returning to Australia because of injuries suffered as a result of the MVA.

18. Therefore, the definitive issue in this matter is whether, pursuant to section 1218C of the Act, there are grounds for Mr Saad’s portability period to have been extended from 1 November 2012 to 23 December 2014.

    Medical Evidence

19. On 9 May 2007 Mr Saad travelled to Syria and did not return to Australia until 21 October 2010.

20. Mr Saad was granted DSP as of 22 October 2010. In a Centrelink medical report provided in support of Mr Saad’s application, Dr Chwah, general practitioner, listed “anxiety, depression” and “IHD”, which I take to mean “Ischaemic Heart Disease”, as conditions causing most functional impact.  In relation to Mr Saad’s psychiatric condition, Dr Chwah described the history of the condition as “insomnia, [illegible], social phobia” and the current symptoms as “insomnia, unhappy”.  He wrote Mr Saad was treated with medication and had seen a psychologist and future treatment was “follow up”; the condition was expected to last for more than 24 months and fluctuate.  In answer to the question as to the impact on his ability to function, Dr Chwah circled the words on the form “endurance”, “communication”, “cognitive function” and “ability for self care” indicating the condition affects these aspects of Mr Saad’s ability to function without providing further detail. 

21. In relation to Mr Saad’s IHD, Dr Chwah  noted “angioplasty” as past treatment and that Mr Saad was “to be operated on soon (angioplasty)”; that the condition was likely to persist for more than 24 months and somewhat improve.  The impact on Mr Saad’s ability to function were the same as for his psychiatric condition in addition to impacting his “ability to sit/stand/move” and “need for support in activities of daily living”.

22. In my view the information in this report could best be described as incomplete and provided no meaningful assessment of either of the medical conditions.

23. In the report of a Job Capacity Assessment (JCA) performed on 3 November 2010 the assessor recommended an impairment rating of 20 points for “anxiety”. The assessor also noted Mr Saad suffered symptoms of chest pain and shortness of breath which were expected to improve with angioplasty in the following week.

24. The assessor further noted:

    Functionally, the client reports long-term and extreme difficulty due to anxiety. He states that he is emotional every day and had panic attacks which are sudden and debilitating. He does not leave the house and is reliant on his wife and family for support. He also reports difficulty sleeping and spends his days watching TV or sleeping. He reports minimal social interaction, does not drive and is fearful of public transport. As a result he not worked since 1985 and has been living of the money of his children (sic).

25. At the hearing Mr Saad’s son confirmed that Mr Saad did have a successful angioplasty and was cleared by his cardiologist to travel to Syria on 3 February 2011.

26. On 25 April 2011 Mr Saad was involved in a MVA in Syria.  The reports that follow appear to have been sent to Centrelink from Syria after the accident.  Several of these letters have been identified as being from the “Syrian Doctors Union” however the name of the doctor and the doctors’ specialty have not been translated.  It is therefore not clear from many of these records the nature of the relationship between Mr Saad and the author of the various reports.

27. Three letters from Dr Samir Nadeem Hassan, orthopaedist, which appear to have been received by Centrelink between July and August 2011 are translated as follows :

    ·Mr Nezar Mohammad Saad consulted us in relation to a car accident resulting in a bone breakage or the right leg along with general bruises as well as head bruise and injury to the head of 5 cm. close to the right temple and bruise to the spine and a bruise to the left knee… and swelling and coloration indicating (4 illegible words). He complains of headache and severe dizziness. The patient needs rest for a period of two months. Consultation after 25.4.2011

    ·On the second consultation by Mr Nezar Saad in relation to a car accident, he conducted surgery to enforce a bone breakage to his right leg and after observing the pictures (we) observed that reinforcement with sheets and screws were done and that the break is still under treatment. The patient is still unable to walk and needs assistance of walking sticks. The period of treatment is continuing and he needs a second rest period as from 22.6.2011 for two months.  22.6.2011

    ·Mr Nezar Saad had visited me after a traffic accident that caused a fracture in his leg. I conducted a surgical operation on him to fix the fracture. He is still undergoing treatment. Upon viewing his recent [X-ray] image, a [illegible] calcification was found at the fracture site, associated with pain during walking and activity.  He needs to complete rehabilitation treatment and physiotherapy, and rest for two months,… starting from 31/07/2011.

28. A letter addressed “To whom it may concern” by an unknown author and stamped with the seal of The Syrian Medical Association and the Ministry of Health was translated on 19 October 2011 as follows :

    Mr Nezar Mohammad Saad suffers from angina pectoris after a (unclear) transplant. He is currently under treatment. It is advisable he avoids air travel, strenuous work and psychological stress.

29. Centrelink received a letter from the Syrian Doctors Union dated 7 January 2011 which was translated as follows:

    Mr Nazar (sic) Mohammad Saad was admitted to hospital on 10.12.2011 for examination of chest… he was given the appropriate treatment and was released on 11.12.2011… he is not to fly in an airplane during this period. 

30. Clearly there must be an error in the dates.

31. An undated letter stamped by the Syrian Doctors Union from an unknown author is translated as follows:

    Mr Nezar Mohammad Svavad (sic) 60 years previously (illegible) heart muscle since about two years. Heart operation was conducted along with implant of net… He is under treatment and follow-up along with (4 illegible words) and dizziness (3 illegible words) travel long distances or ride on airplane because of the existence of great danger to his life.

32. A letter stamped by the “Doctors Union – Tarsus – Syria” dated 7 August 2012 was translated on 21 August 2012 as follows:

    (illegible words) heart along with implant of…  His situation is that he complains about chest pain…  He is receiving treatment and is not able to travel because of his current situation but after a period of time he might be able to travel within the period of the following three months”.

33. Dr Mohammad Ahmad Saleh provided an undated letter stamped by the Syrian Doctors Union which appears to have been translated on 21 August 2012 as follows:

    (illegible words)… car accident… on 25.4.2011… He is receiving treatment… 29.7.2011 and need a period of rest for a period of two months from this date. He should not walk or move or do hard work or travel until the completion of the physical therapy treatment and until his health condition is reassessed. 

34. A letter addressed “To whom it may concern” from Dr Ghassan al-Khawajah, Doctorate in Cardiology and Surgery, translated on 25 July 2013 states the following:

    Mr Nazar Mohammed SAID (sic) is suffering from deficient perfusion… for many years… old infarction and (illegible) medicinal in the coronary arteries. Currently, the patient is suffering from unstable angina pectoris with repeated anginal episodes… associated with decreased arterial pressure... vertigo that increase with changing the body posture,… and nausea. Currently, he cannot travel and move. Therefore, he is currently not allowed to travel, and he needs (illegible) days for full rest due to the above–mentioned reasons  

35. Two handwritten translations by unknown authors and of uncertain dates, possibly July 2012 and August 2013 respectively note the following :

    ·… Customer has deficiency has been treated for a very long time. Had some previous transplant of some nets (medical) veins & arteries. At the moment he suffers from dizziness he is (sic) condition fluctuates where he can vomit for no reason dizziness uncontrolled.  It has nothing to do with tinnitus - vertigo is condition. He is unable to move.  He is not allowed to travel.  He is under treatment @ the moment unable to leave the house prevented from travel conditions.  Frequent occurrence of vomiting.

    ·…This is related to heart condition. Not enough blood circulation. There was a procedure on a few occasions transplant of nets. Fatigue & dizziness. Unable to stand long periods & move around. Prevented from travelling because of the condition with change of atmosphere. Not allowed travel at moment… 

36. Dr Emad Akram Bashour, Otolaryngologist, Plastic Surgery provided an undated letter which is translated as follows :

    Mr Nazar Saad, who had a traffic accident on 25/04/2011 that caused fractured (illegible) of (illegible) bone, has visited us. [The accident] caused episodes of severe dizziness with frequent (illegible) that sometimes reach the level of fainting. Accordingly, he has been prohibited from travel, (illegible), or doing heavy duty works. [He needs] treatment and continuous monitoring. His condition has improved partially, and been allowed to travel on 23/12/2014.  

37. Mr Saad’s son told the Tribunal that Dr Bashour’s report had more recently been obtained at the suggestion of an AAT conference registrar and was filed with the AAT on 3 June 2015.

38. In a medical assessment for Housing NSW dated 29 May 2015, Dr Chwah noted that Mr Saad suffers from ischaemic heart disease, hypertension and hyperlipidaemia.

39. Mr Saad’s son provided the Tribunal with a pharmacy receipt which lists the various drugs that had been purchased by Mr Saad between 20 March 2015 and 3 June 2015.  The drugs included aspirin, three drugs for the treatment of hypertension, one anticoagulant, one antidepressant, one statin and one drug for the prevention of gout.

    Mr Saad’s Evidence

40. Mr Saad gave evidence by telephone through an interpreter.  He told the Tribunal that he suffers from frequent dizziness, vomiting and occasional fainting and that these symptoms started after the MVA in April 2011 and have persisted for more than four years. He claims that the symptoms are so frequent and severe that he is unable to leave the house unless accompanied by his wife or daughter for fear of falling.

41. Mr Saad explained that he was able to travel to Australia in December 2014 because he was given oral medication and injections before he left Syria. The medication calmed him down and allowed him to sleep for the duration of the flight to Australia.

42. Mr Saad told the Tribunal that during his time in Syria he suffered intermittent chest pain and shortness of breath and needed to be taken to hospital on a number of occasions.

    Other Evidence 

43. It was submitted to the SSAT in November 2013 that, of the listed events contained in section 1218C(1) of the Act, subsections (b) and (i) were relevant.  The relevant extract of the SSAT decision is as follows:

    21. … Mr Mohssin Saad submitted that his father’s health had worsened since the last extension to his portability period. He claimed that his father’s heart condition had deteriorated. More importantly he had developed an inner ear problem following his car accident and this affected his balance and ability to move around. Mr Saad suffered from persistent dizziness and could not leave the house. His doctors had prescribed total bed rest, he was not fit to fly, let alone travel the four hours to Damascus International Airport.

    22. Furthermore even if his father could travel, Syria was currently engaged in a civil war. His father was staying with his uncle in the coastal town of Tartous. It was roughly 350 kilometres from Tartous to the International Airport in Damascus. The airport in Damascus was further currently closed to commercial aircraft. In addition, travel on the roads was dangerous particularly through major cities, such as Damascus and Homs. Finally, due to his father’s depression and anxiety, he would not cope with the stressful journey, for four or more hours by car.  

44. At the hearing before this Tribunal Mr Saad’s son said his father returned to Australia via the airport in Lebanon which was a two hour drive from where he was living.

45. Immigration data reveals that Mrs Saad returned to Australia on 17 August 2012, 28 December 2013 and 20 November 2014.  She was in fact already in Australia when Mr Saad returned in December 2014. Mr Saad’s son explained that his father was accompanied by friends of the family on the flight to Australia when he returned in December 2014.

46. In an undated statement Mohssin Saad writes as follows:

    I am writing this statement to let you know that my mother Mrs Hanan Saad has returned to Australia on the 17/8/2012. The reason my mother has returned to Australia is because my father’s doctor overseas has given my parents the hope of my father chance of returning to Australia in the end of October and mid of November as my father is in the process of recovering and hopefully he would be returning to Australia as soon as he gets the ok to board an airplane to return to Australia.

47. In an undated statement received by the AAT in November 2014 Mrs Saad notes that “[m]y husband is in a good state now, he is much better than before. He is able to move on his own”  and that “[w]hen the doctor came over three months ago, he told us that my husband’s health is noticeably improving and that if he continues to improve, he will allow him to travel, at the earliest opportunity.”  She states the doctor usually visited every month and that a nurse examines Mr Saad weekly and checks his “pressure and diabetes”.

48. Mrs Saad also provided a list of Mr Saad’s medication which included aspirin, two drugs for the treatment of hypertension, two antihistamines, one anticoagulant and medication for the prevention of gout.

    Consideration

49. Section 1218C of the Act provides for a discretion to extend a person’s portability period if the Secretary, therefore the Tribunal, is satisfied that the person is unable to return to Australia because of certain specified events.

50. In this matter the relevant events include :

    ·a serious accident involving the person: s 1218C(1)(a)

    ·a serious illness involving the person: s 1218C(1)(b)

    ·political or social unrest in the country in which the person is located: s 1218C(1)(i)

    ·a war in the country in which the person is located: s 1218C(1)(k).

1. The MVA that occurred in April 2011 was accepted by Centrelink as a serious accident and an extension of Mr Saad’s portability period was granted. In the course of AAT proceedings, for reasons that are not entirely clear, the portability period was again extended by agreement, until 30 October 2012, that is, almost 18 months after the accident.   

2. Mr Saad did not return to Australia during the extended portability period and consequently his DSP payments were cancelled on 1 November 2012.  He remained in Syria for about another two years until his return to Australia on 23 December 2014.

3. On the evidence before the Tribunal it is not clear why Mr Saad was unable to return to Australia within the 18 month extended portability period.  The answer to this question is, in my view, somewhat problematic and is not assisted by the fact that between 9 May 2007 and 23 December 2014, more than seven years, Mr Saad was resident in Australia for a single period of only 15 weeks.  In these circumstances it is not surprising the medical evidence of his condition prior to leaving for Syria is extremely limited and a further difficulty which arises is that Mr Saad relies on medical evidence purported to be from doctors in Syria which is, in my view, incomplete and does not provide a coherent account of Mr Saad’s various medical conditions.   

4. The self-reported evidence provided by Mr Saad and his family is not very helpful as it is not entirely supported by the documentary medical evidence before the Tribunal.

5. As this matter has progressed various “reasons” have been raised to explain why Mr Saad was unable to return to Australia for more than three and half years after the MVA. The reasons include: health has worsened, heart condition has deteriorated, angina, persistent dizziness and vomiting, fatigue and vertigo, fainting, cannot leave the house, needs total bed rest, unable to fly, depression and anxiety, unable to cope with journey. However, in my view, there is no coherent explanation for what is essentially a list of symptoms and observations.

   Was Mr Saad unable to travel due to a serious accident?

6. I accept Mr Saad was unable to travel due to the MVA up to at least September 2011 due to the fracture in his leg.  For reasons which are not clear, Mr Saad’s portability period was extended to 30 October 2012.  In relation to the period following the expiry of this extension, Mr Saad’s son submitted that following the MVA his father had developed an inner ear problem which caused dizziness as well as problems with balance and mobility.   He suggested that the inner ear problem was caused by the MVA and was the main reason Mr Saad was unable to return to Australia.   

7. Mr Saad relies on the medical certificate provided by Dr Bashour, a doctor in  Syria, which was filed with the AAT on 3 June 2015, six months after Mr Saad had returned to Australia.  Dr Bashour’s certificate does not assist.   It does not specify an actual diagnosis or provide any information as to the time of the first onset of the episodes, the frequency of the episodes or how long they last.  He makes no mention of an inner ear problem and there is no indication as to prognosis or treatment.  There are no other medical reports before the Tribunal which diagnose an inner ear problem causing dizziness as a result of the MVA. 

8. In his letter of 25 April 2011, the day of the accident, Dr Hassan notes that Mr Saad complained of a headache and severe dizziness. This would not be unusual when one considers the nature of Mr Saad’s injuries at that time as described by Dr Hassan.

9. The two further medical reports issued by Dr Hassan following the MVA certify Mr Saad unfit for travel up to the end of September 2011 due to the difficulties he had walking as a result of a fracture to his leg.  He does not mention dizziness in these reports.

10. The medical reports which, on the basis they seem to be translated at later dates and therefor appear to have been issued after Dr Hassan’s reports, mostly refer to Mr Saad’s heart condition.  The first mention of Mr Saad’s dizziness following the MVA is in a certificate which purported to be written in July 2012, although again the date is uncertain, the author is unknown and it is not even entirely clear whether this report was issued by a doctor. The certificate states that “at the moment he suffers from dizziness his condition fluctuates …when he then vomit for no reason … dizziness uncontrolled.” 

11. Dr al-Khawajah’s undated letter which was translated on 25 July 2013 notes “vertigo that increase with change in body posture,… and nausea”.  Dr al-Khawajah appears to attribute the “vertigo” to “unstable angina pectoris… with decreased arterial pressure”. 

12. The unknown author of the letter purported to be written in August 2013 appears to relate Mr Saad’s “fatigue and dizziness” to his heart condition and ”not enough blood circulation”. 

13. I note that in his report of 29 May 2015, Dr Chwah makes no mention of “dizziness” as a medical condition.

14. On consideration of the evidence before the Tribunal I accept that in the three years following the MVA Mr Saad suffered episodes of severe dizziness. However, in my view, there is insufficient medical evidence to support a conclusion that these episodes were causally related to the MVA and he was therefore unable to return to Australia.  In other words, I cannot be satisfied on the evidence before me that Mr Saad was unable to return to Australia as a result of a serious accident in accordance with s 1218C(1)(a).

    Was Mr Saad unable to travel due to a serious illness?

15. It is necessary to consider whether the “episodes of dizziness” or any of Mr Saad’s other medical conditions could be considered a “serious illness” within the meaning of section 1218C(1)(b) of the Act.

16. The term “serious illness” is not defined in the Act and although it has been the subject of consideration by the AAT on a number of occasions, a precise definition has not been settled. The Explanatory Memorandum to the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Bill 2000 states that the new section 1218 relating to extensions of a person’s portability period ”provides a discretion for the Secretary to extend a person’s portability period, where the person finds him or herself in any of the grievous circumstances listed in that section”.  It is suggested that the use of the word “grievous” suggests that the relevant event must have considerable impact on the person.

17. The respondent contends there is insufficient evidence to establish Mr Saad’s heart condition was a “serious illness” for the purposes of exercising the discretion to extend the portability period, and, even if it were, Mr Saad would not satisfy s 1218C(2) of the Act which “… prohibits the Secretary from extending the portability period unless the particular event which caused the need for the extension occurred or began during the period of absence”: see re Jin v Centrelink [2011] FCA 337 at [12] per Marshall J. Further, the respondent contends Mr Saad’s heart condition and associated symptoms have not prevented him from travelling in the past.

18. The respondent directed the attention of the Tribunal to instruction 7.1.2.10 of the Guide to Social Security  which provides as follows:

    A discretionary extension must be for a definite period, during which time the recipient’s situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.

    …

    It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately when their health allows this) - extensions are not intended for period of treatment or recovery overseas that could reasonably undertaken upon return to Australia.

19. The guidelines further state:

    …The event preventing the person’s return to Australia must be extreme or of an emergency nature and must have occurred or begun during the allowable portability period.

20. Whilst I am not bound to apply policy guidelines I do so unless there are cogent reasons not to in a particular case: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

21. In this matter the difficulty for Mr Saad is that there is insufficient reliable documentary medical evidence which would allow the Tribunal to conclude that the “episodes of dizziness” constitute “a serious illness” within the meaning of section s 1218C(1)(b) of the Act.

22. Whether the episodes are related to his heart condition or some other condition is unclear. Mr Saad’s self-report of symptoms implied that the “severe dizziness” has been constant for two years. This is not supported by the documentary evidence which, at best, suggests intermittent episodes but does not provide any account of when the episodes started, how often they occurred or how long they lasted.

23. The documentary evidence suggests Mr Saad may have had intermittent symptoms attributable to his pre-existing ischaemic heart disease and was admitted to hospital overnight on one occasion. However, in my view, there is insufficient evidence to support a conclusion that the episodes of dizziness are symptoms of a significant deterioration in his heart condition during his period of absence which could be considered a “serious illness” that caused Mr Saad to be unable to travel.

24. I accept that Mr Saad would not have been able to travel during an acute episode of “dizziness” but I am not satisfied that this would be sufficient to explain his inability to    travel for a period of two years.  In the end Mr Saad travelled to Australia, with the assistance of medication and friends, notwithstanding his continued symptoms of dizziness.

25. Further, there are inconsistencies in the history of Mr Saad’s illness and his ability to travel which contribute to the general inadequacy of the information before the Tribunal and to the conclusion Mr Saad was not unable to travel to Australia due to serious illness. 

26. On 28 October 2010, seven days after returning to Australia after a three year absence, Mr Saad was diagnosed as suffering from “anxiety and depression”.  Mr Saad’s functional impairment at that time was assessed by Centrelink as severe and he was assigned an impairment rating of 20 points and granted DSP.

27. The JCA report of 3 November 2011 noted that Mr Saad reported “long term and extreme difficulty due to anxiety… panic attacks which are sudden and debilitating. He does not leave the house and is reliant on his wife and family support”. 

28. During the same period Mr Saad was assessed for symptoms related to his heart disease which required treatment with angioplasty. Notwithstanding an apparently severe mental health condition and recovery from angioplasty Mr Saad was able to travel to Syria on 3 February 2011.

29. At the hearing before the SSAT, Mr Saad’s son mentioned his father’s “depression and anxiety” as a reason for not being able to cope with the four hour car journey he said his father would have had to have undertaken in order to travel to the airport to return to Australia. There has been no other reference to this condition in any of the documents before the Tribunal, including Dr Chwah’s recent assessment for Housing NSW.

30. In my view, the fact that a mental health condition, that was diagnosed shortly before Mr Saad’s travel to Syria, and assessed as severe enough to qualify him for DSP, was not part of any consideration of his apparent inability to return to Australia challenges the reliability of the other evidence.

31. In his report of 29 May 2015, Dr Chwah lists increased blood pressure as a medical condition. This condition was not mentioned in his report of 28 October 2010 and presumably was diagnosed when Mr Saad was in Syria. There is no reference to hypertension in any of the medical certificates from Syria, however, the list of Mr Saad’s medications provided by Mrs Saad in her written statement includes two drugs generally used for the treatment of hypertension.

32. I find there is no satisfactory medical explanation as to why Mr Saad was unable to travel to Australia until December 2014.

    Was Mr Saad unable to travel due to political or civil unrest or war?

33. In respect of subsections 1218C(1)(i) and (k) of the Act, I am not persuaded Mr Saad was unable to return to Australia because of the political or social unrest, or war in Syria. The evidence in respect of access to the airport was inconsistent as Mr Saad was not required to undertake a four hour car journey to get to an airport to travel to Australia but could in fact travel two hours to an airport in Lebanon to fly to Australia.  The fact that Mrs Saad was able to travel from Syria on 17 August 2102, 28 December 2013 and 20 November 2014 and that Mr Saad travelled to Australia on 23 December 2014 also indicates Mr Saad was not unable to travel to Australia during the relevant period due to political and civil unrest, or war.   

    Conclusion

34. For the reasons set out above I am unable to determine the precise reason why Mr Saad did not return to Australia between 1 November 2012 and 23 December 2014. In my view, the evidence suggests a composite of reasons including his pre-existing medical conditions.

35. I am satisfied, however, that the evidence before the Tribunal does not support a conclusion that, during the relevant time, Mr Saad was unable to return to Australia because of a serious accident, serious illness, political or civil unrest, or war.

36. It follows that the preferable decision in this proceeding is that Mr Saad’s portability period for DSP should not be extended for the period 1 November 2012 to 23 December 2014.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 87 (eighty – seven) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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Associate

Dated 21 July 2015

Date of hearing	15 June 2015
Representative for the Applicant	Self-represented
Representative for the Respondent	Ms Rayment, Australian Government Solicitor