Sabi and Secretary, Department of Family and Community Services
[2004] AATA 1377
•9 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1377
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/756
GENERAL ADMINISTRATIVE DIVISION
Re: SLIWA SABI
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 9 December 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
SOCIAL SECURITY – age pension – cancellation of pension payment – prolonged absence overseas – portability of age pension – claimed failure of Centrelink to advise – illness while overseas – inability to obtain return air flight – exercise of discretion.
Social Security Act 1991
Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000
Social Security (Administration) Act 1999
REASONS FOR DECISION
9 December 2004 Miss E.A. Shanahan, Member
1. This is an application by Mr Sliwa Sabi for review of a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) on 8 December 2002 to cancel Mr Sabi’s age pension due to an overseas absence exceeding the 26 weeks. On 12 April 2003, an authorised review officer affirmed the delegate’s decision. Mr Sabi appealed to the Social Security Appeals Tribunal (SSAT) on 22 April 2003 and on 16 June 2003, the SSAT affirmed the decision under review on the basis that Mr Sabi’s age pension had been correctly cancelled with effect from 8 December 2002 and that there was no discretion to backdate his age pension payment to 8 December 2002.
2. Mr Sabi was self‑represented but assisted by his daughter‑in‑law Mrs Samel with the services of an Arabic interpreter Mrs Iman Riman. The respondent was represented by Ms Kayren Paul, an advocate with Centrelink.
3. The Tribunal had before it the documents filed pursuant to s 37 Administrative Appeals Tribunal Act 1975 (T‑documents) and in addition a translated medical report dated 21 December 2002 from Dr George M. Khouri, a General Practitioner in Syria. Mr Sabi also provided a report of a cardiac catheterization investigation performed on 25 August 2003 by Associate Professor Ian Meredith and an operation report dated 3 February 2004 from Mr Aubrey Almeida. Both of these reports originated from the Southern Health Campus at Monash Medical Centre. The Tribunal also had before it copies of complaints lodged with Centrelink by Mr Muneer Shengola, Mr Sabi’s son, relating to Mr Sabi’s attendance at Centrelink on 21 March 2003 and Mr Shengola’s complaint regarding Centrelink’s attitude with respect to his Newstart Allowance dated 16 April 2003.
Background to the Application
4. Mr Sabi was born on 1 July 1932 and arrived in Australia on 2 July 1998 on a refugee visa. On 6 August 1998 he was granted the age pension as his visa class 866 entitled him to a qualifying residence exemption. As Mr Sabi was 66 years of age when he arrived in Australia, he has no working life residence in Australia. The working life residence in Australia is a calculation based on the years of work for a male between the ages of 16 and 65 and this figure is used to calculate a person’s rate of pension. Since his arrival in Australia he has resided with either his son or his daughter and son‑in‑law and has advised Centrelink at all times of his current address.
5. Since his arrival in Australia in July 1998, Mr Sabi has travelled overseas on what appears to be five occasions. The first of these was in September 1999 and the last was sometime in June until November 2004. With the exception of his travel between 9 June 2002 and 20 March 2003 all of his overseas visits have been of six months or less duration. Mr Sabi has children living in Denmark and Syria and these have been the main destinations that he has visited during these periods of travel. He also frequently visits Lebanon. He does not visit Iraq, his country of birth.
6. Mr Sabi advised Centrelink he was leaving Australia on 9 June 2002 and intended to return on 6 December 2002. He did not return until 20 March 2003 and this exceeded the 26‑week portability period prescribed by the Social Security Act 1991 (the Act). Consequently, Centrelink was required to re‑assess Mr Sabi’s rate of age pension based on his working life residence in Australia, which was zero. On 8 December 2002 Mr Sabi’s age pension was cancelled rather than reduced in accordance with someone who has a working life residence.
7. Upon his return to Australia on 20 March 2003, Mr Sabi applied for the age pension which was granted effectively from that date. Mr Sabi also sought payment of arrears for the period 8 December 2002 to 19 March 2003 on the basis that he had been unexpectedly delayed overseas due to an illness. The reasons for his delay were subsequently expanded to include the difficulties in obtaining a return flight from Syria to Australia. Mr Sabi also stated that he had never been advised by Centrelink of the fact that after 26 weeks overseas his age pension may be reduced or cancelled. He claimed he had never received any mail from Centrelink until 20 March 2003 or shortly thereafter.
8. The hearing of this application was first listed on 16 December 2003 but was adjourned when the Tribunal was advised that Mr Sabi was very ill. At the re‑listed hearing on 8 June 2004 Mr Sabi was not present and was represented by his son, Mr Munwer Sabi who stated he was authorised to give evidence on his father’s behalf. This was unacceptable to the Tribunal as the applicant must give sworn evidence in person. The hearing was adjourned. The reason Mr Sabi could not appear was stated to be that his son, who lives in Denmark was seriously ill, having suffered a myocardial infarct (heart attack) and his father had urgently gone to his bed side. The Tribunal subsequently contacted Mr Sabi (junior), at regular intervals to ascertain the health status of his brother and when Mr Sabi would be available for a resumed hearing. The Tribunal was informed that a definite date of return could not be provided as it was dependant on Mr Sabi’s son’s state of health. As Mr Sabi’s absence from Australia was approaching the six month deadline, it was recommended that Mr Sabi return to Australia within the six month period and that the hearing be listed for December. The hearing took place on 9 December 2004 with Mr Sabi present and assisted by his daughter‑in‑law.
EVIDENCE BEFORE THE TRIBUNAL
9. In his evidence before the Tribunal, Mr Sabi stated that he had never received a letter from Centrelink on any matter let alone the portability of his age pension. The only letter he had received was one week after his return to Australia on 20 March 2003 and this he believed had been backdated rather than being the letter sent on 7 June 2002. He had in the past attended Centrelink in person to advise when he was going overseas and had usually been accompanied by a family member to act as an interpreter. Mr Sabi was of the opinion that Centrelink had written letters but kept them in their computer base and not forwarded them to him. In addition he stated that he was ill while overseas in 2002 and this had delayed his departure from Denmark to Syria. He had seen a doctor in Syria and a certificate had been issued dated 21 December 2002 in which Dr Khouri had diagnosed a flu spell but as a result of investigations he had also noted a high level of what has been translated as Lipema which the Tribunal takes to mean hyperlipemia. Dr Khouri had recommended rest for two days from 21 December 2002.
10. Mr Sabi also told the Tribunal about his cardiac problems which have been documented in the reports of Associate Professor Meredith and Mr Almeida. He agreed with the Tribunal that this condition had been chronic and had taken many years to reach a level where surgery was required.
11. Mr Sabi agreed that the two addresses on the Centrelink file were the correct postal addresses and that he spent several months living with either his son or his daughter. He believed that had he received any mail in his name they would have forwarded it to him or informed him of its contents.
12. The Tribunal attempted to explain to Mr Sabi that the Social Security legislation did not provide for a discretion on the part of the respondent, Centrelink or the Tribunal to overrule the decision of the primary decision maker or the SSAT in order to compensate him for the loss of approximately $3000 consequent upon the cancellation of his age pension from 8 December 2002 until 20 March 2003. Unfortunately, Mr Sabi did not appear to understand the Tribunal’s decision as he asked why he had been forced to come before the Tribunal on 9 December 2004. The Tribunal explained that he had applied for review of the original decision and his attendance had not been mandated by the Tribunal.
13. The Tribunal asked Mr Sabi several questions regarding his latest overseas trip which apparently commenced in early June 2004 and involved visits to Denmark to see his sick son and subsequently to Syria. Mr Sabi stated he had returned early ie mid November 2004 although his original booking had been for early December 2004. He had informed the Tribunal that this trip had been planned and that given his knowledge of the 26 week requirement he had made his bookings in accordance. However, the Tribunal had been told that his visit overseas had been an emergency visit necessitated by his son’s ill‑health. In answer to the question posed by the Tribunal, Mr Sabi stated that he had left Denmark in early September 2004 and had then spent 2.5 months in Syria. He also informed the Tribunal he had no relatives in Syria which seems to be at odds with the previous advice that he has at least one child resident in Syria.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
14. The Tribunal received reports from Southern Health, Monash Medical Centre regarding Mr Sabi’s cardiac catheterization performed on 21 August 2003 which showed severe triple vessel disease with good ventricular function and as a result of this investigation coronary artery bypass surgery was recommended. The latter was performed on 3 February 2004 at Monash Medical Centre and the operation appears to have been uneventful, the clinical notes stating that Mr Sabi suffered from stable angina pectoris. The Tribunal understands Mr Sabi is attending the Monash Medical Centre on a regular basis for review and is continuing to receive treatment in the form of anti‑hypertensive agents and cholesterol lowering agents.
15. The T‑documents contain details of Mr Sabi’s overseas trips starting in 1999 and copies of letters sent regarding notification of obligations while overseas, a request for a nominee form from a third party (T15, p39‑40), the rates notice sent for housing authority (T17, p42), contact with Mr Sabi’s son dated 20 September 2002 (T18, p 43‑44), the decision to cancel payment due to a proportional rate being zero dollars (T19, p45‑46), Mr Sabi’s claim for age pension on 20 March 2003 (T20, p47‑48) and the various requests for review of decisions before an authorised review officer, the appeal to the SSAT and the appeal to the Tribunal.
16. Mr Sabi’s appeal to the SSAT was heard on 16 June 2003 (T2, p3‑13). Mr Sabi had attended the SSAT hearing accompanied by his son Mr Muneer Shengola and it is probable that Mr Shengola provided most of the data. The SSAT noted that there were errors in the Centrelink documentation in that they had initially stated that he was going to Iraq (his country of birth) whereas he was intending to visit Syria, Lebanon and Denmark. The SSAT was told that Mr Sabi had children in Denmark and Syria as well as two children in Australia. He had advised that he had gone to Centrelink on 7 June 2002 to inform Centrelink of his impending trip overseas. His passport and airline ticket were provided and copied. The SSAT confirmed that Mr Sabi left Australia on 9 June 2002. It was his intention to return to Australia on 6 December 2002. However he had become un‑well in Denmark and left that country on 22 December 2002 for Syria. He did not fly with his major airline Emirates as they did not provide a service between Denmark and Syria. Following his stay in Syria, Mr Sabi had difficulty obtaining a flight with Emirates airlines to return to Australia. His son had eventually organised to pay an extra fee in order to get his father back to Australia in March 2003. It was stated that March 2003 was the earliest booking that could be obtained.
17. While Mr Sabi was overseas his son, Mr Shengola had contacted Centrelink on two occasions, the first occasion regarding a housing authority request and an enquiry regarding Mr Sabi’s rate of pension, and on the second occasion to obtain a nominee form.
18. Before the SSAT Mr Sabi was unable to provide any medical reports to substantiate his illness while overseas. He also stated that he had never been told about the six month limit and that any mail that would have been sent to his registered addresses should have been dealt with by his family who then would have informed him. Mr Sabi stated that had he known in advance about the six month limit on his travel he would have returned to Australia much earlier as he did not wish to loose approximately $3000.
RELEVANT LEGISLATION
19. The Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (Act N° 94 of 2000) amended the portability provisions of the Act with effect from 20 September 2000. Sections 1214 and 1220A of the Act now provide:
1214.(1) If the person’s maximum portability period for the payment is an unlimited period, the person’s right to continue to be paid the payment throughout the period of absence is not affected merely by the absence.
Note 1: Section 1217 defines the person’s maximum portability period for the payment.
Note 2: However, the person’s rate of payment may be affected after 26 weeks—see Division 3.
1214.(2) This section is subject to section 1220.
…
1220A. A person’s rate of age pension is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 if:
(a)the person has been continuously absent from Australia, throughout a period (the period of absence) of more than 26 weeks; and
(b) either:
(i)immediately before the period of absence commenced, the person was receiving the age pension; or
(ii)during the period of absence, the person’s claim for the age pension is granted under the Social Security (Administration) Act 1999.
The rate of pension calculated using the Pension Portability Rate Calculator is based on a person’s Australian working life residence. Section 1221‑C2 of the Act provides:
1221-C2. If a person's period of Australian working life residence is less than 300 months (25 years), the person's residence factor is:
person's Australian working life residence
300
On this basis, Mr Sabi’s working life residence is zero.
20. The age pension attracts an unlimited period of portability (s 1217(3) of the Act) however s 1220A provides that a person continuously absent from Australia for a period of more than 26 weeks would be re‑assessed in accordance with their working life residence in Australia and s 1221‑C2 of the Act provides the method of calculation of the person’s residence factor.
21. Section 237(1) of the Social Security (Administration ) Act 1999 (the Administration Act)relates to notice of decisions under the social security law and provides:
237.(1) If notice of a decision under the social security law is:
…
(c)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
22. The decision to extend the time of portability of various social security payments is provided for in the Act but this relates to payments which have a definite time. The age pension portability is indefinite. There is no discretion within the Act to reverse or compensate an applicant for the reduction in or loss of payment of the age pension due to a period of absence overseas that is greater than 26 weeks.
APPLICATION OF THE FACTS BEFORE THE TRIBUNAL TO THE RELEVANT LEGISLATION
23. Since his arrival in Australia on 28 July 1998 on a refugee protection visa, Mr Sabi has travelled overseas for periods of three to six months or more, on five occasions. The purpose of these visits has been to see family members and friends who reside in Denmark, Syria and Lebanon. He left Australia on 8 September 1999 and returned on 1 March 2000. His next overseas travel was from 9 June 2001 to 7 December 2001 followed by a further trip from 28 December 2001 until 28 March 2002. He left Australia again on 9 June 2002 with an intended return date of 6 December 2002. Throughout these periods he continued to receive the age pension as provided by the portability provisions of the Act. He did not return to Australia on the planned date on 6 December 2002 and did not return until 20 March 2003.
24. On 8 December 2002 Mr Sabi’s age pension was re‑assessed in accordance with the s 1220A of the Act and in terms of his working age residence in Australia. As the latter was zero his pension payment was cancelled. On his return to Australia on 20 March 2003 Mr Sabi re‑applied for the age pension and was granted that payment from 20 March 2003. In late May 2004 or early June 2004 the he again travelled overseas to Denmark and then to Syria and the Tribunal was advised that this trip was a matter of urgency as his son who lives in Denmark had become acutely ill due to a cardiac condition. Mr Sabi’s absence during this latest overseas visit resulted in the ajournment of the hearing of this application on 8 June 2004.
25. Mr Sabi has sought back payment of his age pension from the period 8 December 2002 until 19 March 2003 as he claims his late return to Australia was due to matters beyond his control. The Tribunal accepts that Mr Sabi became ill after his arrival in Denmark on 7 October 2002 and while he saw doctors in Denmark he did not have any certification of his illness until he arrived in Syria. The SSAT was told that Mr Sabi left Denmark for Syria on 22 December 2002. The certificate supplied by Dr Khouri diagnosing a flu spell was provided in Syria on 21 December 2002. Dr Khouri incidently diagnosed hyperlipidemia after performing blood tests on Mr Sabi.
26. In Syria, Mr Sabi was advised that he could not get a flight back to Australia on Emirates Airlines until March 2003. At no time did Mr Sabi advise Centrelink of his delayed return or his ill‑health in either Denmark or Syria. In evidence he stated that his reason for not advising Centrelink was that he had not been informed of the legislation relating to absence greater than 26 weeks overseas and the impact that would have on his pension.
27. The T‑documents contain several copies of letters sent to Mr Sabi by Centrelink over a period of seven months between 26 November 2001 and 7 June 2002 and numerous file entries dating from 1999. All of the letters sent to Mr Sabi’s nominated addresses contained information regarding overseas travel and that such travel might affect the payment of his age pension. Mr Sabi denies receiving any of these letters except for the one generated on 7 June 2002 which he sais he received one week after he returned to Australia on 20 March 2003.
28. The Tribunal was under the impression that Mr Sabi’s visit to Denmark in approximately early June 2004 was an emergency visit necessitated by his son’s ill‑health. In his evidence before the Tribunal, Mr Sabi advised that this trip had always been planned and that he had booked to travel electively and had intended to return in early December 2004. The Tribunal’s enquiries directed to family members in Australia had resulted in an advice that his return date was unknown because of his son’s state of health. In evidence before the Tribunal Mr Sabi said that he left Denmark early in September and spent two and a half months in Syria before his return to Australia in November 2004. Mr Sabi confirmed that this overseas visit in 2004 had always been planned.
29. The Tribunal notes that while Mr Sabi denies ever receiving a letter from Centrelink until late March of 2003 with respect to the 26 week period, s 237(1)(c) of the Administration Act provides that a notice sent by prepaid post to the postal address of a person’s last known to the Secretary; notice of the decision is taken, for the purposes of Social Security law, to have been given to the person. The Tribunal notes that while Mr Sabi attended a Centrelink office prior to each overseas trip, he was not able to provide a forwarding address overseas. Centrelink has at all times on the evidence before the Tribunal executed its obligations with respect to notice.
30. The Tribunal also notes that prior to 20 September 2000 the proportional rate payments of the age pension for persons overseas was for a period of 12 months or 52 weeks but was thereafter reduced to 26 weeks.
31. The legislation does not provide for any exercise of discretion with respect the proportional rates of age pension if a person is overseas beyond the 26 weeks. Thus the respondent’s decision to cancel Mr Sabi’s age pension on 8 December 2003 was correct.
32. The Tribunal affirms the decision under review.
I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd): Olympia Sarrinikolaou
ClerkDates of Hearing: 8 June 2004 and 9 December 2004
Date of Decision: 9 December 2004
Advocate for the applicant: Self‑representedAdvocate for the respondent: Ms K. Paul, Centrelink
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