Sabat Aftab and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 643
•24 September 2012
[2012] AATA 643
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0734
Re
Sabat Aftab
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 24 September 2012 Place Sydney Decision The decision under review is affirmed
......................[SGD]..................................................
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability period – discretionary power to determine portability period is unlimited –requirement to be terminally ill – no reliable or objective evidence
SOCIAL SECURITY – disability support pension – portability period – discretionary power to extend portability period– whether the event began or occurred during the portability period
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 33(1)(c))
Social Security Act 1991 (Cth), ss 121C(1), 1218, 1218A, 1218B, 1218AA, 1218AB, 1218D
CASES
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouaratidis [2012] FCAFC 29
Jin v Centrelink [2011] FCA 337
SECONDARY MATERIALS
The Guide to Social Security Law (Version 1.189, Department of Families, Housing, Community Services and Indigenous Affairs, 10 August 2012)
The Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009
REASONS FOR DECISION
Senior Member A K Britton
Australian citizen, Mr Sabat Aftab, challenges the decision made by the respondent Secretary and affirmed by the Social Security Appeals Tribunal, to cease paying him Disability Support Pension (DSP) from 6 December 2010, on the grounds that he had been continuously absent from Australia for 13 weeks. Mr Aftab travelled to Pakistan in September 2010 and remains there to this day.
Under the Social Security Act 1991 (Cth), DSP is generally not payable if the recipient has been continuously absent from Australia for 13 weeks or more. The Act confers a discretion to extend the 13 week “portability” period in certain circumstances. Mr Aftab contends that this discretionary power should be exercised in his case because he was terminally ill at the time his DSP payments were ceased, and in addition, he was unable to return to Australia because of the illness of his mother. The issue in dispute is whether the preconditions to the exercise of the power to extend the portability period for DSP have been satisfied. Central to that determination is whether :
Mr Aftab was terminally ill as at 6 December 2010 when his DSP portability was terminated (s 1218AA of the Act).
Mr Aftab was unable to return to Australia because of the death or illness of his mother (s 121C(1) of the Act).
Can the power conferred by s 1218AA, to determine that Mr Aftab’s portability period is unlimited, be exercised?
Section 1218AA of the Act provides:
Unlimited portability period for disability support pension
(1) The Secretary may determine that a particular person's maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person's absence from Australia is or will be permanent; and
(e) the purpose of the person's absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person's country of origin.
There is no dispute that Mr Aftab satisfies paragraph (a), (b) and (e). The Secretary contends that Mr Aftab does not satisfy paragraphs (c) and (d) because he was not terminally ill at any point throughout the portability period, that is 6 September 2010 to 6 December 2010, and his absence from Australia was never intended to be permanent.
Was Mr Aftab terminally ill?
The Act does not contain a definition of the term “terminally ill”. The Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009) defines “terminal” as:
occurring at or causing the end of life: terminal cancer;…
(of a person) having reached the point in the course of a disease where death from the disease is certain
The Oxford English Dictionary provides a similar definition: “…the final stage of a fatal disease…”.
The Guide to Social Security Law (Version 1.189, Department of Families, Housing, Community Services and Indigenous Affairs, 10 August 2012) at 7.1.2.20 states in relation to s 1218AA of the Act:
Severely disabled DSP recipients who are in the terminal phase of a terminal illness can have unlimited portability if they are departing permanently to their country of origin, or to be with, or near, a family member. Terminal phase of a terminal illness means a life expectancy of less than 2 years.
The meaning given by the Guide to the term “terminally ill” is arguably narrower than the dictionary definitions set out above. For present purposes I will apply the latter. Therefore the question is whether Mr Aftab was in the final stages of a fatal disease or, whether death from any of the diseases he was suffering was certain, during the portability period.
Mr Aftab’s health prior to departure to Pakistan
There is no argument that Mr Aftab was suffering from a number of serious medical conditions when he departed Australia for Pakistan in September 2010. These include:
insulin dependent diabetes (type 2) with major complications, including recurrent foot ulcers, polyuria and polydipsia;
hepatitis C;
depression, anxiety, psychosis and bipolar disorder;
a perforated right ear drum.
While the consensus of medical opinion was that he was unwell, none of the medical practitioners who treated Mr Aftab prior to his departure from Australia suggested that death from any one or more of his conditions was certain, or that he was in the last stages of a fatal disease. In a report dated 27 July 2010, Mr Aftab’s GP, Dr Nguyen, answered “no” to the question “Does [Mr Aftab] have a terminal illness with a prognosis of less than 24 months?” None of the subsequent reports prepared by Dr Nguyen suggest that he revised that opinion (see for example reports dated 17 January 2011, 12 February 2011 and the care plan developed by Dr Nguyen dated 19 July 2010).
Mr Aftab asserts that the doctors who treated him at the Campbelltown Community Mental Health Service were of the opinion that he was terminally ill on account of his psychiatric illnesses. Mr Aftab’s medical records were produced to the Tribunal by the Health Service in answer to a summons. They confirm as claimed by Mr Aftab that he had been under the care of the Service and had been diagnosed with a bipolar disorder. While they indicate that, on occasion, Mr Aftab reported suicidal thoughts, they do not suggest that any of the practitioners who treated or assessed him believed that he suffered from a terminal illness.
In a report prepared at the request of the Secretary, Dr Catherine Moore of the Health Professional Advisory Unit of the Department of Human Services concluded that Mr Aftab was not in the last stages of a fatal disease when he departed Australia, nor had his health declined appreciably by the end of the portability period. Dr Moore based her opinion on reports prepared by Mr Aftab’s treating doctors, medical certificates and correspondence between Mr Aftab and Centrelink.
Mr Aftab testified that, had it not been for sheer determination, he would have been unable to travel to Pakistan in 2009 to visit his mother. He claimed that his health was so poor that he arrived at Sydney airport in a wheel chair and required assistance throughout the flight. He claimed that had it not been for analgesic medication, he would not have survived the flight.
Mr Aftab’s health while in Pakistan
Mr Aftab provided Centrelink with a number of reports purportedly prepared by his treating doctors in Pakistan. These include reports said to be prepared by Dr Jamal Zafar (3) and Dr Ashraf Mahmood (3). In addition Mr Aftab provided Centrelink with a report relating to his father’s health said to have been prepared by the Family Health Hospital, Islamabad.
In these proceedings the Secretary tendered affidavits prepared by officers of the Department of Human Services (Centrelink) concerning investigations into the authenticity of these reports. Drs Zafar and Mahmood told the investigating officers that they had not treated Mr Aftab, and denied authoring any of the reports said to have been prepared by them. A manager of the Family Health Hospital told the investigating officers that not only was the letterhead contained in the report relating to Mr Aftab’s father different to that used by the Hospital, the Hospital had no record of having treated Mr Aftab’s father.
Mr Aftab submitted that the evidence relied upon by Centrleink was unreliable and emphasised that Pakistan was a country at war and it was not possible to trust anything said by its doctors. He pointed out that he had extended an invitation to the Australian embassy in Pakistan and the Tribunal to visit him at home to verify the veracity of his claim that he is terminally ill.
The affidavits relied upon by the Secretary detail the enquiries undertaken by Centrelink raise doubts about the authenticity of the disputed reports. Despite being given an opportunity to respond to this prejudicial material, Mr Aftab failed to provide any evidence to support his contention that the disputed reports were authentic. Even if, as Mr Aftab suggests, care should be taken in accepting information provided by a medical practitioner based in Pakistan, this does not assist in deciding whether the information contained in the disputed reports should be preferred over that provided to the Centrelink investigative officers.
While not bound by the rules of evidence, the Tribunal is required to have regard to them in assessing the weight to be given to any evidence (s 33(1)(c)) of the Administrative Appeals Tribunal Act 1975 and Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41–2 ; per Brennan J; and on appeal Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 156 and 158–9 ; per Deane J). On the material before me, I am unable to be satisfied that the disputed reports are authentic and have decided to give them no weight.
The Tribunal is empowered to inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c) of the Administrative Appeals Tribunal Act 1975). In circumstances where, as in this case, the applicant suffers from the disadvantage of a mental illness, it may be appropriate, consistent with the Tribunal’s role in making the correct or preferable decision, to make enquiries of the type suggested by Mr Aftab. Leaving to one side the practical difficulties in accepting Mr Aftab’s invitation to visit him at home in Pakistan, if undertaken such inquiry would not assist in deciding the issue in dispute, namely whether Mr Aftab was terminally ill, close to two years ago:
Findings and conclusions
Before the discretionary power to determine that Mr Aftab’s 13 week portability period be extended for an unlimited period can be exercised, all of the qualifying circumstances listed in s 1218AA of the Act must “exist”. These include Mr Aftab being terminally ill during, or no later than, the end of the portability period, that is 6 December 2010.
For the reasons outlined I conclude that it would be unsafe to give any weight to the reports purportedly provided by Drs Zafar and Mahmood. Even if their authenticity was not in issue, they are of limited relevance as they do not expressly address whether Mr Aftab was terminally ill during the portability period.
None of the Australian-based practitioners whose opinions are before me have suggested that Mr Aftab was, or is, terminally ill. It may be that Mr Aftab genuinely believes that he was terminally ill. A person’s subjective belief, however genuinely held, is insufficient to support a finding that they are or were terminally ill. While there can be no argument that throughout the portability period Mr Aftab suffered from a number of significant medical conditions, absent some reliable and objective evidence, I am unable to conclude that he was terminally ill. It follows that as one of the pre-conditions to s 1218AA is not met, the power to determine that Mr Aftab’s maximum portability period is unlimited, cannot be exercised.
Can the power conferred by s 1218C to extend Mr Aftab’s portability period be exercised?
Section 1218C of the Act confers a power to extend the portability period and provides:
Extension 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;
….
(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.
It is not altogether clear which of the events listed in s 1218C(1) Mr Aftab now claims resulted in him being unable to return to Australia. At various times he has asserted that he could not return because of:
His own serious illness
His mother’s serious illness
His father’s serious illness
His mother’s death
His mother’s hospitalisation
It would appear from the submissions made at hearing that Mr Aftab has abandoned his earlier claim that his father’s ill health prevented his return to Australia. Given the nature of Mr Aftab’s disability, I have not confined myself to the case he has articulated and will consider whether any of the listed events might apply.
Was Mr Aftab unable to return to Australia because of his own serious illness?
Mr Aftab testified that despite his own ill health he travelled to Pakistan to visit his mother and cared for her after her discharge from hospital. The effect of his evidence was that in or around January 2011 his health deteriorated.
To rely on s 1218C the subject event, in this case Mr Aftab’s illness, must have “occurred or beg[u]n” during the “period of absence” or “portability period”: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouaratidis [2012] FCAFC 29 (at [65]) and Jin v Centrelink [2011] FCA 337 (at [12]). In deciding whether Mr Aftab “was unable to return to Australia” because of the subject event it is not necessary that the event made it impossible for him to return, practical inability is sufficient: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouaratidis [2012] FCAFC 29 (at [32]).
Consistent with the remedial character of the Act, in my opinion, a “serious illness” within the meaning of s 1218C(1)(a) extends to a pre-existing illness which has appreciably deteriorated, during the portability period. That approach however does not assist Mr Aftab because there is no reliable evidence that his health deteriorated throughout the portability period. By his own admission his health did not decline until more than a month after it ended.
Was Mr Aftab unable to return to Australia because of his mother’s serious illness?
Mr Aftab testified that the reason he travelled to Pakistan was to see his mother who was then seriously unwell. That claim is consistent with the information he provided to Centrelink prior to, and shortly after, his arrival in Pakistan.
It is plain that his mother’s illness did not occur or begin while he was absent from Australia and therefore it cannot be relied upon as an “event” for the purposes of s 1218C(1)(a).
Was Mr Aftab unable to return to Australia because of his father’s serious illness?
The only medical evidence to support this claim is the report purportedly provided by the Family Health Hospital in Islamabad. For the reasons given I am unable to give any weight to that document. In any event, it does not expressly state, and nor could it be inferred form that report, that Mr Aftab’s father’s “serious illness” occurred or began during the portability period.
Was Mr Aftab unable to return to Australia because of his mother’s death?
According to Mr Aftab, his mother died on 29 November 2010. While that “event” occurred during the portability period there is no material to indicate that because ofit, Mr Aftab was unable to return to Australia.
Was Mr Aftab unable to return to Australia because of his mother’s hospitalisation?
Mr Aftab claimed that his mother was hospitalised after his arrival in Pakistan. Given that she died prior to the end of the portability period it could not reasonably be argued that her hospitalisation meant he was unable to return to Australia during the portability period.
Findings and conclusions
Not being satisfied that Mr Aftab’s “serious illness” or that of either parent occurred or began during the portability period, those “events” cannot be relied upon to exercise the power to extend that period. While Mr Aftab’s mother was hospitalised and died during that period, the evidence does not support a finding that Mr Aftab was unable to return to Australia because of either event.
There is no evidence, nor is it suggested, that any of events listed in paragraphs (e) to (k) of s 1218C(1) “occurred or began” during the portability period or made Mr Aftab practically unable to return to Australia. It follows that the power to extend the portability period conferred by s 1218C cannot be exercised.
Can the portability period be extended because Mr Aftab was dependent on his sister?
Section 1218AB provides that a person’s portability period for disability support pension can be extended if, among other things:
(c)the person is wholly or substantially dependent on a family member of the person (see subsection 23(14));
(d)the Secretary is satisfied that the person will be living with the family member of the person throughout the period of absence;
(e)the family member of the person is engaged in employment in Australia for an employer immediately before the start of the period of absence;
(f)the Secretary is satisfied that the family member of the person will be engaged in employment outside Australia for that employer throughout the period of absence.
Mr Aftab argued that the portability period can be extended because he was dependent on his sister prior to leaving for Pakistan. This argument is misconceived. The pre-conditions to the exercise of the power conferred by s 1218AB are not met because among other things Mr Aftab did not live with his sister throughout the portability period (she remained in Australia).
Can the portability period be extended on some other ground?
Division 2 to Part 4.2 of the Act provides that in addition to the grounds discussed above, portability can be extended on other grounds namely where the person is:
·a full-time student outside Australia for the purpose of an Australian course (s 1218),
·a member of the Reserve service (s 1218A);
·in receipt of parenting payment (s 1218B);
·absent from Australia for the purpose of life-saving medical treatment (s 1218D).
None of the above circumstances apply to Mr Aftab and nor has this been suggested.
Can the portability period be extended on compassionate grounds?
I understand that Mr Aftab urges me to extend the portability period on compassionate grounds. I accept that he is in poor health, without an income and in a difficult position in Pakistan. Having carefully examined the Act I am unable to identify any provision which confers a general power to extend a portability period for those reasons or on “compassionate grounds”.
Summary
While I have considerable sympathy for the position now Mr Aftab finds himself in, for the reasons given, it is not open to me to extend the portability period. It follows I must affirm the decision under review.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of ....................[SGD]....................................................
Associate to Senior Member A K Britton
Dated 24 September 2012
Date(s) of hearing 29 August 2012 Applicant In person Advocate for the Respondent Andras Markus Solicitors for the Respondent Australian Government Solicitor