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

[2016] AATA 372

Vidakovic and Secretary, Department of Social Services (Social services second review) [2016] AATA 372 (3 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6826
Re	Antun Vidakovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	3 June 2016
Place	Hobart

The order of the Tribunal is that the application for review be dismissed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Social Security – age pension – overseas applicant – application to dismiss application for review

LEGISLATION

Administrative Appeals Tribunal Act1975

Social Security (InternationalAgreements) Act1999

Social Security (Administration) Act1999

Social Security Act 1991

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

1. The Applicant, who resides in Serbia, has made an application for the review of a decision made by the Social Services and Child Support Division (first-tier review), which affirmed a decision of Centrelink rejecting his claim for age pension.

2. The first-tier review decision is dated 3 November 2015 and was posted on 12 November 2015. The Applicant’s application for second-tier review was received by the Administrative Appeals Tribunal on 24 December 2015. The Applicant subsequently lodged an application for an extension of time which was heard by telephone link to the Applicant in Serbia, with the assistance of an interpreter in the Serbian language. The application was opposed by the Secretary on the basis that the Applicant had not put forward any reasonable explanation for the delay in lodging his application for review and further, that there is no merit in the substantive application.

3. The Tribunal concluded that the application for second-tier review had been received within the requisite timeframe of 28 days, on the basis of the evidence provided of the usual delivery time for International airmail being between three and ten working days. The application for an extension of time was accordingly dismissed and the application for review directed to proceed in the usual course.

4. Mr Sparkes, on behalf of the Secretary, subsequently made an application that the application for second tier review should be dismissed by the Tribunal pursuant to s 42B of the Administrative Appeals Tribunal Act1975 as being frivolous and vexatious.

5. The provisions of subsection  42B (1) provide as follows: 

   “(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)       is frivolous, vexatious, misconceived or lacking in substance; or

   (b)       has no reasonable prospect of success; or

   (c)       is otherwise an abuse of the process of the Tribunal.”

6. Mr Sparkes submitted that “no legitimate purpose can be achieved in allowing the application to proceed and to do so would put the parties, and particular the Commonwealth, to unnecessary effort and cost. The application simply cannot succeed.”

7. Mr Sparkes referred to the fact that the Applicant purported to claim an Australian age pension whilst outside of Australia and residing in Serbia, a country that does not have an agreement with Australia under the terms of the Social Security (InternationalAgreements) Act1999. Mr Sparkes noted that in these circumstances a claim cannot be made and referred to the relevant provisions of the Social Security (Administration) Act1999 (Administration Act).

8. The Applicant’s response to the Secretary’s application was received by the Tribunal on 13 May 2016. The Applicant agrees that his application was made although he was not living in Australia at the time, but submits that the reason why he did not return to Australia was on account of his health which deteriorated after his arrival for a holiday in Serbia. He refers to “multiple injuries of the spine, venous disease worsening, high blood pressure, etc”.. He states that he was advised by his doctor not to return to Australia which would, he states: “directly jeopardise me my life – problems with the spine (possible real estate), threatening stroke.”

9. The Applicant submitted that the Tribunal should consider a “special benefit” on the basis of a significant change in circumstances which were beyond the Applicant’s control, namely his deteriorating health. The Applicant also submitted a series of questions for answer by the Respondent and the Tribunal, however they are not issues that the Tribunal can appropriately address.

   CONSIDERATION

10. The issue for determination in the application for second-tier review is whether the Applicant can be granted age pension on the basis of his claim made on 13 May 2014. This issue was comprehensively considered by the first-tier reviewer who referred to the provisions of section 29 of the Administration Act, which states that a claim for a Social Security payment may only be made by a person who is an Australian resident and is in Australia. As there is an International Agreement between Australia and Serbia which would exempt the Applicant from the requirements set out in section 29 of the Act, the Applicant must meet the two requirements of subsection 29 (1) which are conjunctive.

11. There is no dispute that the Applicant was not in Australia when he lodged his claim for age pension, and thus he fails to satisfy the first limb of s 29 of the Administration Act. The effect is that the claim is taken not to have been made, nor was the Applicant an Australian resident on the day he lodged his claim. The Applicant does not satisfy any of the exception provisions as set out in sections 30 to 32 of the Administration Act. One of these provisions refers to an agreement under the terms of the Social Security(International Agreements) Act1999 however Serbia is not listed in the schedule that sets out the countries that have a subsisting agreement.

12. Whilst it is accepted that the Applicant is an Australian citizen, the evidence was that he was not an Australian resident at the time of his claim and nor was he present in Australia on 13 May 2014. The Applicant has not disputed these findings but contends that he was unable to return to Australia due to his deteriorating health. He has submitted no further evidence in support of his claim apart from further submissions regarding his health.

13. There is no discretion in the Administration Act, or within the provisions of the Social Security Act 1991, or any other legislation that would permit the Tribunal to take account of the matters raised by the Applicant, namely his deteriorating health which he claims prevented him from returning to Australia. In the circumstances, the Tribunal accepts the submissions advanced by Mr Sparkes on behalf of the Secretary that the application for review has no reasonable prospect of success and should be dismissed in accordance with the provisions of s 42B of the Administrative Appeals Tribunal Act 1975.

14. The order of the Tribunal is that the application for review be dismissed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member

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Administrative Assistant

Dated  3 June 2016

Date of hearing	9 March 2016
Applicant’s Representative:	Self
Respondent’s Representative	Mr Brian Sparkes