Wilfred Mentink and Secretary, Department of Social Services

[2015] AATA 316

[2015] AATA  316

Division

GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/5580;

2015/0929

Re

Wilfred Mentink

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	11 May 2015
Place	Brisbane

The decisions under review are affirmed.

.............................[Sgd]...........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Age pension  – cancellation decision – Australian residency requirement not satisfied -– decisions affirmed.

PRACTICE AND PROCEDURE – whether s 1220 constituted an operative or final decision.

LEGISLATION

Social Security (Administration) Act 1999 (Cth) s 80

Social Security Act 1991 (Cth) s 1220(1)

CASES

Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297

Popov and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 205

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

11 May 2015

INTRODUCTION

1. These two applications of Mr Mentink raise the issue of whether age pension was payable to him during the period from 17 June 2014 until 28 September 2014.

   BACKGROUND

2. In March 2012 Mr Mentink was granted age pension when he turned 65 years of age. On 27 April 2012 he departed Australia and his age pension was suspended whilst he was outside Australia. On 28 March 2013 this Tribunal affirmed the decision to suspend the age pension. Centrelink then reviewed his claim for age pension. On 14 June 2013, Centrelink decided to raise a debt on the basis that Mr Mentink was not entitled to any payments of age pension that had been made. On 29 April 2014 this Tribunal found that he had not been an Australian resident between 6 March 2012 and 19 February 2013.

3. Mr Mentink returned to Australia on 23 January 2014 and lodged a new claim for age pension. This claim was granted with effect from 23 January 2014. On 17 June 2014 Mr Mentink departed Australia and on that date a decision was made to suspend his age pension during his overseas absence. Mr Mentink sought internal review of that decision. On 21 July 2014 an Authorised Review Officer (“ARO”) affirmed the decision to suspend age pension. On 10 October 2014 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision to suspend age pension.

4. On 17 September 2014 Centrelink made a decision to cancel the payment of age pension to Mr Mentink after payment of the age pension had been suspended for 13 weeks. On 28 September 2014 Mr Mentink returned to Australia and was granted age pension with effect from 29 September 2014. Mr Mentink also sought internal review of the decision of 17 September 2014 to cancel the payment of age pension. On 25 November 2014 an ARO affirmed the decision to cancel the payment of age pension. On 27 January 2015 the SSAT affirmed the decision to cancel the payment of age pension.

5. On 15 October 2014 Mr Mentink made an application to this Tribunal to review the decision to suspend payment of age pension. On 12 February 2015 he made another application to this Tribunal to review the decision to cancel payment of age pension. At a telephone directions hearing before the Tribunal, the parties consented to the matters being heard together.

   LEGISLATION

6. Section 80 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) provides:

   Cancellation or suspension determination

   (1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

   (a)  who is not, or was not, qualified for the payment; or

   (b)  to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.

7. Section 1220 of the Social Security Act 1991 (Cth) (“Social Security Act”) provides:

   No portability where claim based on short residence

   (1)  If:

   (a)  a person is an Australian resident; and

   (b)  the person ceases to be an Australian resident; and

   (c)  the person again becomes an Australian resident; and

   (d)  within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

   (i)  an age pension; or

   (ii)  a disability support pension; or

   (iii)  a bereavement allowance; and

   (e)  after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and

   (f) financial assistance is not payable in respect of the person's absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;

   a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.

   CONSIDERATION

8. The tenor of Mr Mentink’s submission is that the reviewable decisions to suspend or cancel payment of age pension are decisions to which s 1220 of the Social Security Act applies. One submission of Mr Mentink was that he has always been an Australian resident. If that submission is accepted then s 1220 has no application; the operation of the section is confined to where a person is an Australian resident, ceases to be an Australian resident and subsequently becomes an Australian resident again: see s 1220(1). However, I do not accept that s 1220 has no application because this Tribunal has previously ruled that Mr Mentink was not an Australian resident from 6 March 2012 to 19 February 2013. When he returned to Australia on 28 September 2014 Centrelink accepted that he was an Australian resident and was granted age pension with effect from 29 September 2014.

9. It is fair to say that Mr Mentink disagrees with the view taken by Centrelink as to the proper interpretation of s 1220 of the Social Security Act. I would accept the submission of Mr Mentink that the “start date” of the two year period that is referred to in s 1220 of the Act does not commence from the time when an applicant has made a claim for a social security benefit.

10. I consider that both reviewable decisions have been made under s 80 of the Administration Act. Certainly while the decisions depend upon the application of s 1220 of the Social Security Act, the authority for making those decisions is s 80 of the Administration Act which provides that the Secretary is required to cancel or suspend a social security payment to a person if that person is not qualified for the payment or to whom the payment is not, or was not, payable. The Secretary and this Tribunal have no discretionary authority not to cancel or suspend payment in these circumstances.

11. I consider that s 1220 of the Social Security Act certainly has application to the circumstances of this case. At the time when Mr Mentink qualified for age pension he was an Australian resident. This Tribunal has previously ruled on 29 April 2014 that Mr Mentink was not an Australian resident for social security purposes from 6 March 2012 to 19 February 2013. There is no cogent evidence before this Tribunal that causes me to make a different ruling. Certainly at a telephone directions hearing provision was made for Mr Mentink to make a statement in support of both of his applications. However, at the hearing of these applications Mr Mentink elected not to give any evidence either on oath or affirmation in support of his applications or make himself available for cross-examination by the respondent.

12. What is in issue is whether age pension was payable to Mr Mentink from 17 June 2014 until 28 September 2014. Mr Mentink did not give any evidence either on oath or affirmation in support of his contention that he was an Australian resident during this period. Mr Mentink has provided a statement dated 31 January 2014 in which he asserts he has been “resident in Australia from the grant of a permanent visa in August 1952, through to my naturalization in 1956 and on until the present time”. As Mr Mentink did not consent to being cross-examined he could not be asked questions about this statement. The statement does not allege any facts which would support his claim that he was an Australian resident from 17 June 2014 until 28 September 2014. There is no cogent documentary evidence that would lead me to conclude that he was an Australian resident during this period.

13. The statement of Mr Mentink that he made on 31 January 2014 has referred to the “s1220 determination”. The substance of his submissions is that a decision has been made under s 1220 of the Social Security Act. To clarify the position I should mention that no determination under s 1220 of the Social Security Act has been made. Any observation by an officer as to the application of this provision is not a reviewable decision, only an operative decision will be a reviewable decision.[1]

    [1]Martinsen v Secretary, Department of Family & Community Services [2004] FCA 297; Popov and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 205.

    CONCLUSION

14. Mr Mentink was not entitled to payment of age pension from 17 June 2014 until 28 September 2014.

    DECISION

15. I affirm both decisions under review.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

.................................[Sgd].......................................

Associate

Dated 11 May 2015

Date(s) of hearing	23 March 2015
Applicant	In person
Solicitors for the Respondent	Mr J Guthrie, Department of Human Services