Thai and Department of Family and Community Services
[2002] AATA 322
•8 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 322
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1789
GENERAL ADMINISTRATIVE DIVISION )
Re THI NHU THAI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell
Date8 May 2002
PlaceSydney
Decision The Tribunal determines that the decision under review be affirmed.
[SGD] Dr J D Campbell Member
CATCHWORDS
SOCIAL SECURITY - age pension - travel overseas - deterioration in Applicant's pre-existing health condition - portability of age pension - pension portability rate calculation - working life residence - issue of discretion
Social Security Act 1991 - sections 44, 80, 1214, 1217, 1218C 1220A, 1220B, Schedule 1A
Social Security and Veterans' Entitlements (Miscellaneous Matters) Act 2000
REASONS FOR DECISION
Dr J D Campbell, Member
In this matter, Mrs Thi Nhu Thai ("the Applicant") requests a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 26 October 2001 which affirmed the decision of the authorised review officer dated 18 September 2001. This latter decision had affirmed a decision, dated 9 August 2001, of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") to suspend payment of age pension to the Applicant after a period of 12 months absence from Australia.
A hearing was held before the Tribunal on 7 March 2002 at which the Applicant was represented by her son, Mr Van Phu Huynh. The Respondent was represented by Mr Bernard Slattery, an advocate from the Advocacy and Administrative Law Section at Centrelink. The Tribunal was assisted by an interpreter, fluent in the Vietnamese language.
The following material was placed into evidence before the Tribunal:
Exhibit Description Date
T1-T27 pp1-101 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-documents")
R1 Respondent's Statement of Facts and Contentions 28 February 2002
issues
The relevant issues in this matter are whether the age pension is payable to the Applicant, not withstanding her absence from Australia, and, If so, what the appropriate rate of payment of age pension is.
legislationThe relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 44, 80, 1214, 1217, 1218C, 1220A, 1220B, and Schedule 1A, clauses 128, 130.
backgroundThe Applicant was granted a widow's pension with date of effect being 3 October 1996 (T3). The Applicant was granted an age pension with date of effect being 20 March 1997 (T4). The Applicant's date of arrival and permanent residency in Australia was 25 July 1990, with the Applicant's date of birth being recorded as 1 January 1929 (T6). The Applicant's date of departure from Australia is recorded as 3 September 2000 (T6, p21).
Prior to departure, Dr MacKenzie, a consultant neurologist, detailed that the Applicant would require wheelchair access on and off the plane and to be seated near the toilets to allow accompanying relatives to assist (T10). During her stay in Vietnam the Applicant has been hospitalised on numerous occasions because of exacerbation of chronic rheumatoid arthritis, diabetes mellitus and Parkinson's disease, with her condition having deteriorated (T10, T22C). A note from IMAN Assistance dated 24 September 2001 indicates that the Applicant is unfit to travel to Australia, as she is seriously ill in hospital (T22B).
The Applicant did advise the Respondent of her intention to travel outside Australia and a section 1219 certificate was issued, with advice rendered to the Applicant that pharmaceutical allowance, rent assistance and telephone allowance would cease on her departure on 21 August 2000 (T11). The Applicant also completed an authority for Mr Van Phu Huynh to act as a nominated person in her absence (T12).
By 26 February 2001, Mr Huynh advised the Respondent that his mother's health has deteriorated, that she is immobile and that it is intended she stay in Vietnam and be cared for in that country (T15). Mr Huynh and Ms Huynh, the son and daughter of the Applicant requested that the Applicant's age pension payment continue to be paid (T16).
On 9 August 2001 the Respondent advised Mr Huynh that the Applicant's age pension payments would not be extended beyond 12 months pursuant to section 1218(1) of the Act (T17). The matter was further reconsidered and affirmed on 31 August 2001 (T20). On 18 September 2001 an authorised review officer considered that payment of the age pension had been correctly suspended (T24), and this was affirmed by the SSAT in a decision dated 26 October 2001.
evidenceMr Huynh told the Tribunal that he was born in Vietnam in 1963 and came to Australia in 1982, and had worked as a mail sorter for 15 years until some nine months ago. Mr Huynh said that he was one of 10 brothers and sisters, with four brothers and one sister living in Sydney, and the remainder living in Vietnam.
Mr Huynh told the Tribunal that his mother came to Australia in 1990 within the family reunion category, his father having died in 1985. In Australia, his mother used to live with his sister and her other children. The Applicant was fit and healthy when she came to Australia until she started getting sick with Parkinson's disease. The Applicant has travelled to Vietnam on four occasions, and when she left on 3 September, Mr Huynh stated that it was her intention to return within six months. However, because of increasing deterioration in her condition, her numerous admissions to hospitals and the letter from the insurance company that she was unfit to travel, Mr Huynh stated that his mother by virtue of these circumstances, continued to reside with his sister in Vietnam. Mr Huynh stated that difficulties have arisen in financing the Applicant's continued care and treatment in Vietnam, and continuance of payment of the age pension would be of much assistance to his mother's submissions.
Mr Huynh, on behalf of the Applicant contends that in all the circumstances of this matter, there should exist discretion to continue to pay the age pension to the Applicant beyond the period of 12 months from her date of departure on 3 September 2000.
The Respondent contends that the Applicant's payment of age pension has been correctly suspended in accordance with the provisions of the Act. In so contending the Respondent points to the following matters:
(a) the Applicant departed Australia on 3 September 2000;
(b) relevant portability provisions' of the Act were amended by the Social Security and Veterans' Entitlement (Miscellaneous Matters) Act 2000 (Act No 94 of 2000) and the changes nominated took effect from 20 September 2000, with relevant savings and transitional provisions entrenched within Schedule 1A of the Act to deal with departures prior to 20 September 2000;
(c) as a consequence of these savings and transitional provisions the age pension was portable and able to be paid for a period of 12 months and thereafter at a rate which was determined by a statutory formula, which has regard to a person's working life residence in Australia (see sections 1220A and 1220B of the Act); and
(d) as a consequence of the Applicant arriving in Australia at age 61, the Applicant's working life residence in Australia is nil. Applying the Pension Portability Rate Calculator detailed at the end of section 1221 of the Act results in the rate of pension payable to the Applicant after 12 months non resident in Australia being nil.
consideration and findings
The Tribunal, in noting that there is no disagreement between the parties on essential facts, makes the following finding of facts:
(a) the Applicant was born on 1 January 1929;
(b) the Applicant was sixty years of age on 1 January 1989;
(c) the Applicant commenced residence in Australia on 25 July 1990;
(d) the Applicant suffered from Parkinson's disease and other conditions after her arrival in Australia;
(e) the Applicant notified the Respondent of her intention to travel to Vietnam for a period of six months and a section 1219 departure certificate was issued on 21 August 2000;
(f) the Applicant required wheelchair access to the plane at the time of the departure;
(g) the Applicant departed Australia on 3 September 2000;
(h) the Applicant's various medical conditions deteriorated after her arrival in Vietnam and hospitalisation occurred on several occasions during the ensuring 12 months; and
(i) the Applicant remains in Vietnam because of increasing invalidity and her pension payments were suspended after a period of 12 months had elapsed since her departure from Australia.
statutory framework
The relevant statutory framework is nominated, and in so doing reflects the effects of the relevant savings and transitional provisions contained within schedule 1A of the Act and which have occurred as a consequence of the Social Security and Veterans' Entitlement Legislation Amendment (Miscellaneous Matters) Act 2000.
(a) The savings and transitional provisions in Schedule 1A of the Act provide:"128 Despite the amendments of sections 1213A, 1215, 1216, 1220A, 1221 of this Act made by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, if:
(a) a person was absent from Australia immediately before 20 September 2000; and
(b) at a time (the post-start time) after 20 September 2000, the person had not returned to Australia for a continuous period of 26 weeks or more since 20 September 2000;those provisions continue to apply to the person at the post-start time as if those amendments had not been made.
…130 Despite the amendments of this Act made by Part 1 of Schedule 1 to the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, other than:
(a) the amendment mentioned in clauses 128 and 129 of this Schedule; and
(b) the amendment of sections 1216B, 1218, 1218A, 1218B, 1218C and 1219; and
(c) the amendments of Module A of the rate Calculator at the end of section 1221; if
(d) a person was absent from Australia immediately before 20 September 2000; and
(e) at a time (the post-start time) after 20 September 2000, the person had not returned to Australia since 20 September 2000;this Act continues to apply to the person at the post-start time as if the amendments (other than those mentioned in paragraphs (a) to (c)) had not been made."
(b) Definitional issues:
"Meaning of 'maximum portability period', 'allowable absence' and 'portability period'
Meaning of maximum portability period
1217(1) The person's maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:(a) the payment (as specified in column 2 of the table); and
(b) the class of persons to which the person belongs (as specified in column 3 of the table).
Meaning of allowable absence
1217(2) The person's absence is an allowable absence in relation to the payment at a particular time if, at that time, it is an absence specified in column 5 of the table that is applicable to:(a) the payment (as specified in column 2 of the table); and
(b) the class of persons to which the person belongs (as specified in column 3 of the table).
Meaning of portability period if unlimited maximum portability period
1217(3) If the person's maximum portability period for the payment is an unlimited period, the person's portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.Meaning of portability period if maximum portability period limited
1217(4) If the person's maximum portability period for the payment is a period of weeks, the person's portability period for the payment, in relation to the period of absence, is the period:(a) beginning at the commencement of the period of absence; and
(b) ending at the earlier of the following times:(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;
(ii) the end of the period of weeks that is person's maximum portability period for the payment.
Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.
Persons who cease to be severely disabled
1217(5) However, if:(a) the person was severely disabled person at the commencement of the period of absence; and
(b) during the period of absence, the person ceased to be a severely disabled person:
the person's portability period for disability support pension, in relation to the period of absence, is taken to have begun when the person ceased to be a severely disabled person.
Portability of social security payments
Column 1 Column 2 Column 3 Column 4 Column 5
Item Payment Person Absence Maximum portability period1 Age pension All persons Any absence Unlimited
period2 Disability support Severely disabled Any absence Unlimited
pension person period3 Disability support Person other Any absence 26 weeks
pension than severely
disabled person4 Wife pension Entitled person Any absence Unlimited
period
(c) The Relevant sections of the Act in relation to the calculation of age pension rate provide as follows:
Before its amendment by the Social Security and Veterans' Entitlements (Miscellaneous Matters) Act 2000, section 1220A of the act stated that:
"1220A If section 1220B or 1221 applies to a person, the person's pension or allowance rate is to be the portability rate calculated using the Pension Portability Rate Calculator at the end of section 1221.
Further, sections 1220B and 1221 of the Act relevantly provided that:
"1220B(1) Subject to subsections (1A), (2), (3) (4) and (5), this section applies to a person if:
(a) the person commenced or commences to receive:
(i) an age pension;….
after 1 July 1986; and
(b) the person left or leaves Australia after commencing to receive the pension or allowance; and
(c) the person continues to be absent from Australia for more than 12 months; and
(d) section 1221 (certain wife pensioners and widow B pensioners) does not apply to the person.
…
PENSION PORTABILITY RATE CALCULATOR
MODULE A - OVERALL RATE CALCULATION PROCESSOverall rate calculation process
1221-A1 This is how to calculate a person's portability rate:
Method statement
Step 1 Work out the period of the person's Australian working life residence using Module B: the result is called the residence period.
Step 2 Use the person's residence period to work out the person's residence factor using Module C below.
Step 3 Work out the rate that would be the person's pension or allowance rate if this Rate Calculator did not apply to the person: the result is called the person's notional domestic rate.
Step 4 Multiply the person's notional domestic rate by the person's residence factor: the result is the person's portability rate.MODULE B - AUSTRALIAN WORKING LIFE RESIDENCE
Working life
1221-B1 For the purposes of this Module, a person's working life is the period beginning when the person turns 16 and ending when the person reaches pension age.
Note: For 'pension age' see subsections 23(5A), (5B), (5C) and (5D).
Australian working life residence (general)
1221-B2 Subject to points 1221-B3 and 1221-B4, a person's period of Australian working life residence as at a particular time is the number of months in the period, or the aggregate of the periods, during the person's working life during which the person has, up to that time, been an Australian resident.
Note: for the method of calculating the number of months in the period see points 1221-B3 and 1221-B4 below.MODULE C - RESIDENCE FACTOR
Residence factor (period of Australian working life residence(25 years or more)
1221-C1 If a person's period of Australian working life residence is 300 months (25 years) or more, the person's residence factor is 1.
Note: If a person's residence factor is 1, the person's pension will be payable outside Australia at the full domestic rate.
Residence factor (period of Australian working life residence under 25 years).
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
(d) Section 1218C of the Act provided for the extension of a person's portability period as follows:
"1218-C(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.
1218C(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.
1218C(3) If the Secretary extends a person's portability period under subsection (1), the person's portability period for the period for the payment, for the purposes of this Part, is the extended period."
In addressing the statutory framework as outlined above, it is evident that the Applicant's departing date, namely 3 September 2000, activates the relevant savings and transactional provisions contained within Schedule 1A of the Act, namely clauses 128 and 130, this being a consequence of amending legislation, namely the Social Security and Veterans' Entitlement (Miscellaneous Matters) Act 2000. As a consequence pre-amendment provisions contained within sections 1220A, 1220B and 1221 are relevant as well as the amended provisions contained within sections 1217, 1218 and changes to Module A of the Pension Portability Rate Calculator. Unamended provisions contained within section 44 of the Act continue to apply.
Having considered the statutory framework, the Tribunal makes the following observations:
Section 1217 is particular in defining an individual's maximum portability period, and the meaning of portability period if there is an unlimited maximum portability period.
Column 5 of the table at the end of section 1217(5) defines the maximum portability period for age pension as an unlimited period.
Section 1220A defines that a person's pension rate is to be calculated using the Pension Portability Rate Calculator at the end of sections 1221, provided that sections 1220 and 1220B apply to that person.
Section 1220B(1)(c) stipulates that this section applies to a person where the person continues to be absent from Australia for more then 12 months. (Note the post 20 September 2000 persons can only be absent for six months - amended section 1220A).
Section 1221 details the methodology to be used in calculating the rate of pension, having established the person's Australian Working Life Residence and the Residence Factor.
Section 1218C is concerned with the extension of a person's portability period.
In applying the facts to the statutory framework as outlined, the Tribunal makes the following conclusions:
(a) the Applicant's maximum portability period for age pension is unlimited, that is, an entitlement exists to age pension, as opposed to the rate of such payment, during an absence from Australia for an indefinite period (section 1217 of the Act);
(b) the Applicant's rate of pension payment continues unaltered for a period of 12 months after departure, pursuant to sections 1220A and 1220B(1)(c) of the Act;
(c) after the period of 12 months has elapsed, the Applicant's rate of pension payment is to be calculated in accordance with the Pension Portability Rate Calculator pursuant to section 1221 of the Act;
(d) the Applicant's working life residence in Australia is nil, as the Applicant did not arrive in Australia until 1990, at the aged of 61 (section 1221-B1 and 1221-B2);
(e) the Applicant's residence factor is nil pursuant to sections 1221-C1 and 1221-C2;
(f) the Applicant's portability rate is nil pursuant to section 1221-A1 of the Act; and
(g) pursuant to section 44(2) of the Act an age pension is not payable to the Applicant in circumstances where the age pension rate is nil.The Tribunal notes that there has been argument raised in the past that there might be a discretion existing under section 1218C of the Act. The Tribunal notes that this is a discretion to extend an individual's portability period upon the occurrence of a list of nominated events. However, in the Tribunal's view the discretion relates to an extension of a person's portability period, and accordingly would be of no consequence in situations such as age pension where the portability period is already defined as being unlimited. It is important in the Tribunal's reasoning to distinguish between portability period and the time period allowed before the Pension Portability Rate Calculator pursuant to section 1221 of the Act becomes operable. The relevant time period in this matter was defined pursuant to section 1220B(1)(c) of the Act.
In summary, the Tribunal, while mindful of the adverse circumstances experienced by the Applicant since her return to Vietnam in September 1990, concludes that the Applicant's age pension has been correctly suspended after a period of 12 months since departure from Australia, as the Applicant's rate of pension payment is nil from that point in time.
determinationThe Tribunal determines that the decision under review be affirmed.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate of Hearing 7 March 2002
Date of Decision 8 May 2002
Representative for the Applicant Mr Van Phu Huynh (Applicant's son)
Advocate for the Respondent Mr Bernard Slattery
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