Yeomans and Department of Family and Community Services - [2002] AATA 346

DECISION AND REASONS FOR DECISION [2002] AATA 346

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/799

GENERAL ADMINISTRATIVE DIVISION         )
           Re:     GALE YEOMANS
  Applicant
           And:   SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date15 May 2002
PlaceSydney

Decision The Administrative Appeals Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid age pension from and including 21 April 1995. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant age pension from that date.

[SGD] N Isenberg,
Member
CATCHWORDS
SOCIAL SECURITY – age pension – Applicant departs Australia – cancellation of age pension – whether Applicant's reasons for departure from Australia could not have been reasonably foreseen – whether the Applicant's pension was portable

LEGISLATION
Social Security Act 1991 – section 1220 (as at 11 January 1996 and 20 September 2000)
Social Security (Administration) Act 1999 – section 137

CASE LAW
Re Munna and Director-General of Social Security (1981) 4 ALN N120b
Re Fremder and Director-General of Social Security (1983) 5 ALN N258
Re Schroders and Secretary, Department of Social Security (1988) 54 SSR 725
Re Peponas and Secretary, Department of Social Security (1990) 21 ALD 432
Re Battaglia and Secretary, Department of Social Security (AAT 7278, 19 July 1991)
Re Petropoulos and Director-General of Social Security (1984) 6 ALN N137
Re Burnet and Director-General of Social Services (1982) 4 ALN N79b
Re Hasapis and Secretary, Department of Social Security (AAT 7227, 7 August 1991)
Re Pasini and Director-General of Social Services (1982) 4 ALN N228
Re Vaitoudis and Director-General of Social Security (1984) 6 ALN N343
Re Dracup and Secretary, Department of Social Security (1985) 9 ALN N45

REASONS FOR DECISION

15 May 2002 Ms N Isenberg, Member
DECISION UNDER REVIEW

The decision under review before the Administrative Appeals Tribunals ("the Tribunal") is the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 11 January 1996 (T17) to cancel the age pension of Mr Gale Yeomans ("the Applicant"), which was reviewed and affirmed by an authorised review officer on 26 March 1996 (T23) and by the Social Security Appeals Tribunal ("the SSAT") on 25 May 2001 (T2).
APPEARANCES
At the hearing, the Applicant was self-represented and provided evidence to the Tribunal by conference telephone from the United States. The Respondent was represented by Susan Fahey, an advocate from the Advocacy and Administrative Law Team at Centrelink.
DOCUMENTARY EVIDENCE
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence as Exhibit R1. In addition, further documentary evidence was tendered, as follows:
Exhibit           Description    Date
R2      Respondent's Statement of Facts and Contentions     21 March 2002
A1      E-mail from Applicant to Linda Forbes of the Welfare Rights Centre 9 September 2001
A2      Four e-mails between Applicant and Linda Forbes      Various
A3      E-mail from Applicant to Sandy Clarke of the Welfare Rights Centre 16 February 2002

BACKGROUND

The Applicant had left Australia in 1987 to live in the United States. On 20 April 1995 he returned to Australia. The following day he applied for age pension which was granted from that day. On 28 April 1995 the Applicant again left for the US. On 11 January 1996 his pension was cancelled. An authorised review officer concluded on 26 March 1996 that the circumstances which gave rise to the Applicant leaving Australia before the end of the 12 month period after his return could have been reasonably foreseen when he returned to, or arrived in, Australia.
ISSUES BEFORE THE TRIBUNAL
The issues in this application are:
(a) whether the Applicant's reasons for leaving Australia within twelve months could not have been "reasonably foreseen" by him upon his return to Australia on 20 April 1995, within the meaning of section 1220(3) of the Social Security Act 1991 as it then stood; and if so
(b) whether the Applicant's pension was thereby portable.

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular section 1220 (as at 11 January 1996). That section, so far as is relevant, provides as follows:
"Section 1220 No portability where claim based on short residence
1220(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)       the person lodges a claim for:
(i)        an age pension; or
… and
(e)       the claim is lodged within the period of 12 months after the person again became an Australian resident; and
(f)        the person leaves Australia before the end of that period of 12 months; and
(g)       there is no determination in respect of the person under subsection (3);
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
…
1220(3) The Secretary may determine that subsection (1) or (2) is not to apply to a person if the Secretary is satisfied that the person's reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to or arrived in Australia.
1220(4) For the purposes of the application of this section in relation to a particular social security payment, a person who has a qualifying residence exemption for that payment is taken:
(a)       to be an Australian resident; or
(b)       to reside in an area that is, at the time of residence, an external Territory;
as the context requires."
Section 1220(3) was repealed on 20 September 2000 by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (No 94/2000). Thus, as an alternative the advocate for the Respondent contended that the appropriate legislation to be applied is section 1220 of the Act as it applied from 20 September 2000, as follows:
"Section 1220 No portability where claim based on short residence
1220(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;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
1220(2) If:
(a) a person resides in an area that is, at the time of residence, an external Territory; and
(b) the person has never before resided in Australia; and
(c) the person then arrives in Australia; and
(d) within the period of 2 years after the person arrives in Australia, 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;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
1220(4) For the purposes of the application of this section in relation to a particular social security payment, a person who has a qualifying residence exemption for that payment is taken:
(a) to be an Australian resident; or
(b) to reside in an area that is, at the time of residence, an external Territory;
as the context requires."
That section, inter alia, removed the discretion provided in subsection 1220(3) of the Act which existed at 11 January 1996.
THE APPLICANT'S EVIDENCE
The Applicant gave evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.
The Applicant said that he had left Australia in 1987, married a Filipino woman and went to the United States to live near his wife's family. He had known her family since the 1950s and was particularly friendly with one of his brothers-in-law, Fortunato Guerrero ("Fortunato"). Although the Applicant and his wife separated, he remained close to members of his extended family, particularly Fortunato. He was a godfather to one of Fortunato's children.
Fortunato had had kidney cancer about seven years previously but had made a complete recovery. In late 1994/ early 1995 Fortunato had been found to have cancer of the hip and subsequently had a hip replacement. Fortunato was in hospital for several weeks and then at home for about a month. In that time the Applicant took him to physiotherapy several times a week and helped around the home because Fortunato's wife worked and could not care for him. By about April 1995 Fortunato was starting to get around using a stick or a walker.
Fortunato improved to the extent that he returned to his medical practice for limited hours, and the Applicant assisted him to get up the stairs to his rooms. However, Fortunato decided that it was not good for his patients to see him incapacitated and decided not to resume his practice and to wait until he had completely recovered.
When the Applicant had seen doctors while taking Fortunato to physiotherapy he had been told that Fortunato was doing very well and he understood his friend to have made a complete recovery. He did not think that this referred to Fortunato's mobility only. At that time Fortunato was not undergoing any chemotherapy or radiotherapy. Because Fortunato had made a complete recovery from the cancer operation seven years previously, the Applicant was "super-optimistic, or perhaps gullible" that his friend was cured after the hip operation as well. He had every reason to believe this to be the case, as he knew five other people who had made good recoveries from cancer operations. He had faith that Fortunato was cured. The Applicant does not have any medical training himself, although he had some basic first aid as part of his training with Qantas.
The Applicant, feeling homesick for Australia and believing his friend to have made a good recovery, returned to Australia in April 1995, with the intention to remain here permanently. (Because the Applicant has worked for Qantas for 30 years he receives a round-the-world trip every five years.)
On arrival in Sydney, the Applicant first stayed with his friend Mrs Vlachos in Croydon Park for about three days and looked for properties in that area. He then stayed with his friend Mr Treble at Killarney Heights and also looked for property there. He then returned to Mrs Vlachos' home. Whilst staying with Mrs Vlachos he received a phone call that Fortunato was seriously ill, although he could not recall if it was on the first or second occasion he was with Mrs Vlachos. There had been tests conducted and it appeared Fortunato's doctors 'had missed' cancer in one lung and 'a few other places in the chest cavity'. The Applicant said he did not know when these tests had been taken, whether before or after his departure for Australia. If they had been taken before, he had not been told about them. He did not know of the tests until he heard the results.
The Applicant was aware, however, that Fortunato had undergone tests on a six-monthly basis following his kidney operation. He thought that once Fortunato was well enough from the hip operation that testing would resume. He acknowledged that testing was the way to detect early changes and was normal practice in cancer monitoring.
Almost immediately after hearing the news of his friend's health, on 28 April 1995, he returned to the family in the United States. On his arrival he found a marked difference in Fortunato – "a dramatic change in the space of a week". Fortunato was unable to get around and had to be helped up and down stairs. His breathing was laboured, he did not look well and was not eating.
The Applicant told the Tribunal he felt very strongly for Fortunato who was well respected in the community. When he died, there was a very large funeral attended by people who were unknown to the family. Fortunato had undertaken a lot of charity work and, because he was a medical practitioner, provided free medical treatment to those who could not afford it. The Applicant considered that he had the time to help and attended to Fortunato's needs virtually daily, or at least every second day, before Fortunato died. He was Fortunato's constant companion and would have "felt lousy" if he had not helped.
Later, after the Applicant's return to the United States, Fortunato was going regularly to hospital and undergoing chemotherapy and losing his hair. He became weaker by the week, was in and out of hospital and then remained at home until he died.
After Fortunato's death the Applicant did not return to Australia, as he needed to provide moral support to the extended family as best he could. They all faced a difficult time, particularly as one of Fortunato's teenage sons had died suddenly shortly after Fortunato's death. A number of other family members have died since and he has not returned to Australia. The family members prevailed upon him to stay because he has no other family but them. He provides support to the family and they provide for him financially, although he finds this embarrassing. The Applicant lives with another brother-in-law, Virtulio, with whom he had rented prior to his return to Australia. When he returned to the Unites States he made a substantial contribution (about $US70,000) to Virtulio's house and he is now part owner of the house.
The Tribunal discussed with the Applicant a number of anomalies in the material before it. In respect of the letter written by Dr Alvir, Fortunato's treating urologist, on 7 February 1996 (T18), that is, some months after Fortunato's death, the Tribunal noted it was written as if Fortunato were still alive. Similarly, the Tribunal discussed with the Applicant his own letter of 20 February 1996 (T19) which is also written in the present tense. The Applicant said they were written in that manner 'to cover the previous year'.
The Applicant's application for pension dated 21 April 1995 (T5) (the day after his arrival in Australia), in which he had said that he had been living at Mrs Vlachos' home for a month, was also discussed. The Applicant conceded that that was 'a mistake'.
The Tribunal also discussed with the Applicant his letter of 27 November 1995 (T14) in which he had said that 'the situation here has not changed in the respect of my relatives (sic) illness'. It was noted that, by the time of the letter, Fortunato had died. The Applicant said that he did not know why he had said that, but added that he had stayed on to comfort the family.
On the Applicant's overseas verification form he stated that he had originally left Australia to look after a sick relative in Virginia, USA (T10).
SUBMISSIONS: Applicant
The Applicant submitted that he had applied for pension in good faith, and would not have returned to Australia had he known of his friend's condition. He would rather that his friend Fortunato were still alive. He considered he did the right thing by his friend and would do the same again.
He said he has been a taxpayer in Australia for many years and believed he was entitled to the pension. Even now, he would return to Australia as soon as he could afford to do so, given the rise in property prices here.
SUBMISSIONS: Respondent
In the Respondent's Statement of Facts and Contentions the advocate noted that the Applicant had returned to Australia after eight years' absence in the US. The next day he lodged a claim for age pension, in which he stated that he intended to reside in Australia permanently. Eight days later he returned to the US. Mr Yeomans had said that his departure was necessary because his brother in law was ill.
Mr Yeomans' brother-in-law, Fortunato, underwent an operation for right hip replacement due to a solitary metastasis to the right femur prior to Mr Yeomans' departure for Australia. Fortunato was later found to have lesions to the liver and lungs, and a tumour in the right hip, which had not been fully resected. The Respondent contended that hypernephroma (kidney cancer) and solitary metastasis of the femur is a common complication and progression of the disease. The Respondent relied on a Centrelink file note of a conversation with a CMO (T25) which stated:
"I spoke to the CMO concerning Dr Guerros' original medical condition. He stated that hypernephroma is cancer of the kidney and that solitary metastasis to the right femur is a well known complication and progression of the disease ie. Cancer/tumour of the kidney."
As such, it was submitted that the deterioration in Fortunato's health was reasonably foreseeable and the Applicant's belief that Fortunato would recover from the solitary metastasis to the right femur was unfounded and unreasonable. Prior experience and knowledge of Fortunato's condition should have served as an alert to the Applicant to the possibility or probability of worsening illness given the medical condition was cancer. The Respondent contended that there was always the probability of Fortunato's cancer recurring.
The Respondent contended that the likelihood of Fortunato's medical condition deteriorating to the degree that it would require the Applicant's immediate attendance in the US in the course of eight days was not high.
The Applicant has stated that he had to return to the US because he had to look after Fortunato as his other relatives were working. Fortunato was married and had immediate family and there is no evidence that the engagement of those relatives in employment was a new development that arose in the week after the Applicant had arrived in Australia. That is, the same employment situation of the relatives existed before the Applicant arrived in Australia.
As to the letter from Dr Alvir (T18) which indicates that the Applicant's presence in the US was warranted, the Respondent pointed out that Dr Alvir gave no reason as to why the Applicant was required, except to say "Mr Yeoman's presence is needed here… since his brother-in-law, Dr Guerrero, is gravely ill". Dr Alvir's letter indicates that Fortunato had a solitary metastasis to the right femur for which he underwent a right hip replacement and resection of the head of the femur.
The Respondent contended that given the nature of the illness, cancer, a condition that raises fears for a person's short term and long term health, it would be reasonably foreseeable that the condition could worsen. Given that Fortunato had suffered from kidney cancer seven years previously, and it had recurred, the expectation that his condition would worsen would be higher and reasonably foreseeable. Furthermore, the advocate for the Respondent said that the Applicant had agreed that Fortunato had undergone tests on a regular basis since his first operation, to check for cancer, and it was reasonably foreseeable that he would continue to have tests.
The Respondent cited the following cases where the discretion contained in section 1220(3) of the Act was not exercised, as it was found in each case that the circumstances that caused the departure from Australia were reasonably foreseeable.

In Re Munna and Director-General of Social Security (1981) 4 ALN N120b, where the applicant knew that she had either a malignancy or real possibility of a malignancy when she arrived in Australia, the Tribunal held it to have been reasonably foreseeable that she would require further medical treatment. Thus, her reason for leaving Australia - "her health" - arose from reasonably foreseeable circumstances.
In Re Fremder and Director-General of Social Security (1983) 5 ALN N258, the Tribunal found that where the applicants had a son who had recently married and lived in Israel, it was reasonably foreseeable that the son would be called up for military service and that his wife would have a child.
In Re Schroders and Secretary, Department of Social Security (1988) 54 SSR 725, the Tribunal found that the applicants returned to Australia to claim age pensions, not knowing that they would be required to reside in Australia for at least 12 months. They had not organised their affairs in the Netherlands to permit such an extended stay and returned after three months. The Tribunal rejected a number of other proffered circumstances including the remarriage of their daughter, so that they could not continue to live with her, and a call from the applicant's publisher asking him to return for consultations with the editor of his novel. This case also raised the issue as to whether the applicants were ever "residing in Australia" so as to allow them to claim the age pension.
In Re Peponas and Secretary, Department of Social Security (1990) 21 ALD 432, the applicant's husband was too ill to accompany her to Australia. Several months later he came to Australia, requiring the administration of oxygen on the flight. His health deteriorated further in Australia and he returned to Greece five months later because the climate there was better suited to his chronic obstructive airways disease. The Tribunal held that it was clearly foreseeable that a deterioration of health could occur, and also expressed doubts as to whether a further deterioration did in fact occur in Australia.
In Re Battaglia and Secretary, Department of Social Security (AAT 7278, 19 July 1991) the applicant's son suffered from downs syndrome and had lived in Italy for 13 years from the age of five. His parents brought him to Australia, with air tickets valid for only 12 months, to visit a grandfather who was dying of cancer and who died five months after arrival. The Tribunal considered that it was reasonably foreseeable that the son would become unsettled by removal "from a familiar environment to an unfamiliar environment in a country where he did not speak the language." The death of the grandfather, and its contribution to his becoming unsettled, was also reasonably foreseeable, given that the grandfather was suffering from cancer. The Tribunal discounted deterioration in an abdominal condition which was pre-existing.
In summary, as to the substantive issue, the Respondent contended that it cannot be said that the circumstances which gave rise to the Applicant's return to the US "could not reasonably be foreseen" when the Applicant returned to Australia. As such, the Respondent submitted that the decision of the SSAT is the correct and preferable decision and should be affirmed.
At the hearing the advocate for the Respondent put forward a further submission. She invited the Tribunal's attention to the repeal of section 1220(3) on 20 September 2000. From this date there has been no discretion available, that a pension need not be cancelled in the event a pensioner leaves Australia during the relevant period (which has also been amended to be two years). The Applicant had asked for a review after the introduction of the new legislation and, in the Respondent's submission, was therefore not entitled to the advantage of the old section 1220(3).
In addition, the advocate for the Respondent referred the Tribunal to section 137 of the Social Security (Administration) Act 1999, which limits the arrears payable in respect of age pension.
The advocate for the Respondent also noted, although not relevant to the matter before the Tribunal, that some reciprocal arrangements with the USA in respect of aged pension are expected to be made by about October of this year.
FINDINGS AND CONCLUSION
In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.
The first issue for the Tribunal to consider was whether the reasons for the Applicant leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when he returned to or arrived in Australia.
The test of whether circumstances could not be reasonably foreseen is a subjective, rather than objective one: Re Petropoulos and Director-General of Social Security (1984) 6 ALN N137. To that end the Tribunal needed to consider whether it was reasonably foreseeable to the Applicant that he might have to leave within 12 months of his arrival in Australia.
In addition to the cases referred to by the advocate for the Respondent, the Tribunal also reviewed the case Re Burnet and Director-General of Social Services (1982) 4 ALN N79b, where the Tribunal considered it necessary:
"to take into account such matters as the sufficiency or reasonableness of the reason claimed by the person concerned to be the reason for his leaving, or wishing to leave, Australia, in addition to whether the reason arose from circumstances that could not reasonably have been foreseen at the relevant time.
The evidence before the Tribunal was that the Applicant left Australia in 1987 with his wife to live in the US. He was very close to his in-laws, especially one brother-in-law, Fortunato, whom he had known for many years. Fortunato had had kidney cancer about seven years previously but the Applicant understood him to have made a complete recovery. A few months before the Applicant returned to Australia, Fortunato was found to have cancer of the hip and the cancerous bone had been cut away and the hip replaced. On his discharge from hospital the Applicant took him for regular physiotherapy and helped around the home because Fortunato's wife worked.
By the time the Applicant returned to Australia, Fortunato was starting to get around using a stick or a walker. With the assistance of the Applicant, Fortunato had returned to his medical practice on a very limited basis. However he did not persist because he felt it might distress his patients to see him incapacitated and he decided to wait until he had completely recovered before he resumed his practice.
On the basis of what he had been told by Fortunato's doctors while taking him to physiotherapy, the Applicant understood his friend to have made a complete recovery in all respects. At that time Fortunato was not undergoing any chemotherapy or radiotherapy. Because Fortunato had made a complete recovery from the previous cancer operation, and because others the Applicant knew had recovered after cancer operations, the Applicant believed that his friend was cured after the hip operation as well. His own medical knowledge is of a first-aid nature only.
Throughout his time in the USA the Applicant remained homesick for Australia and, believing his friend to have made a complete recovery, he returned in April 1995 and intended to remain here permanently and immediately set about looking at real estate.
During this time he received a phone call that Fortunato was seriously ill. As a result of tests it appeared Fortunato now had cancer in one lung and elsewhere. The Applicant said he did not know when these tests had been taken, and the first he knew of them was when he heard the results. He knew that Fortunato had undergone regular tests following his previous operation and knew that testing was normal practice in cancer monitoring. He understood that once Fortunato was well enough following the surgery that testing would resume.
Although he had only been away for a week, on his return to the USA he found a dramatic change in Fortunato: his breathing was laboured, he was "a funny colour", was not eating and his mobility was limited. Fortuanto continued to deteriorate and finally died a few months later.
The Applicant said that he had been Fortunato's constant companion and would have "felt lousy" if he had not helped him in his time of need.
The Applicant had been in a position of providing assistance to his friend on a very regular basis since the operation. He observed significant improvement in his friend's condition in the months following the operation.
The advocate for the Respondent noted (with precision) that Fortunato underwent an operation for right hip replacement due to a solitary metastasis to the right femur, and that later Fortunato was found to have lesions to the liver and lungs, and a tumour in the right hip which had not been fully resected. The Respondent contended that his kidney cancer and solitary metastasis of the femur is a common complication and progression of the disease.
However, the Applicant is not a person of medical training beyond basic first aid. His information about his friend's health was based on his own observation and the positive comments of doctors when he took his friend for physiotherapy. He also knew people who had made good recoveries after similar operations.
The Tribunal rejects the Respondent's contention that the deterioration in Fortunato's health was reasonably foreseeable to the Applicant.
The Respondent had contended that there was little likelihood of Fortunato's rapid deterioration in the course of eight days, such that it would require the Respondent's immediate attendance in the USA. There was no evidence before the Tribunal that Fortunato's deterioration was other than as described by the Applicant. The Applicant had spoken of his sense of duty to his friend.
The Respondent referred to the Applicant's return to the USA to care for Fortuanto because other relatives were working. It was contended that the relatives' employment was not a new development that arose in the week after the Applicant had arrived in Australia. The Applicant's evidence, however, is that he was the family member who had provided the bulk of support to Fortunato and the Tribunal accepts that with his friend's deterioration, he was again to bear the burden of the care. As to the letter from Dr Alvir (T18) which the advocate for the Respondent had noted gives no reason why the Applicant was required, the Tribunal accepted the Applicant's evidence of his provision of extensive care of Fortunato.
The Tribunal therefore finds, on the available evidence, that it was not reasonably foreseeable to the Applicant that he would have to leave Australia within 12 months of his return.
However, section 1220(3) provides that the Secretary may exercise the discretion. Merely finding that the circumstances were not reasonably foreseeable is not, of itself, sufficient.
In Re Dracup and Secretary, Department of Social Security (1985) 9 ALN N45, the Tribunal found that the circumstances causing the claimants to leave Australia could reasonably have been foreseen and were in fact foreseen. However, the Tribunal noted that, even had the precondition under the subsection been satisfied, it would not have been appropriate to exercise the discretion favourably:
"the legislative intention underlying it is to prevent people formerly residing in Australia and who would not qualify for the grant of age pension by reason of not being physically present in Australia [see s.21(1)] from making fleeting return visits to Australia in order to qualify for a grant, and then departing again for overseas...".
In Re Hasapis and Secretary, Department of Social Security (AAT 7227, 7 August 1991), the Tribunal decided to exercise the discretion in the applicant's favour, noting:
"(a)     Mr Hasapis has a long connection with Australia as a taxpayer.
(b)       There is no evidence of whether he is entitled to benefits in Greece.
(c)       His length of stay in Australia after his "return" in December is approximately nine months and there is no suggestion that he received any incorrect advice from the Department.
(d)       Both Mr and Mrs Hasapis are Australian citizens.
(e)       There is no direct evidence of any attempt "to exploit the system".
(f)        There is a dearth of direct evidence as to whether Mr Hasapis is in financial hardship."
In the present case the Applicant would appear to meet all the above indicia with the exception of (c), in that his stay was considerably shorter – a mere eight days.
The Tribunal in Re Pasini and Director-General of Social Services (1982) 4 ALN N228 considered matters of relevance to be:

the length of previous residence in Australia of the applicant and of his or her family;
whether the applicant is entitled to social security benefits in another country;
the length of stay in Australia following the "return" to Australia; and
inaccurate advice to the applicant from the Department or its officers:

In the Applicant's case, he has been an Australian citizen all his life, and only left Australia in 1987 at the age of 50, because his new wife had children in the USA. He was not in receipt of benefits there and his evidence was that he was, and continues to be, largely supported by his relatives, although he is not without some assets. Of the remaining factors, on the other hand, the Applicant was in Australia for only a few days, and there was no suggestion of inaccurate advice by Centrelink.
In Re Petropoulos and Director-General of Social Security (1984) [supra] the Tribunal suggested that the following matters would have been relevant to the exercise of this discretion:

the fact that the applicant and her children were Australian citizens;
inaccurate advice as to portability from Departmental officers;
the fact that the applicant was in no way trying to "exploit the system"; and
the financial hardship of the applicant and her family.

As noted above, in the Applicant's case, he is an Australian citizen and, again, there was no evidence of inaccurate advice being provided by Centrelink officers. There was some evidence of 'embarrassment' due to lack of ready cash, but the Tribunal did not consider that the Applicant was enduring financial hardship, having regard to his part-ownership of his home, his block of land in Hawaii, his credit union fund in Australia and some cash.
The Tribunal has already observed a number of anomalies in the Applicant's application forms but this did not, in the Tribunal's view amount to evidence that the Applicant was seeking to "exploit the system".
In Re Vaitoudis and Director-General of Social Security (1984) 6 ALN N343, the Tribunal characterised the issue raised by the discretion under s 1220(3) at paragraph 28 as:
"…whether the Applicant has such a connection with Australia as would impose a duty on the Australian tax-payer to support him…"
Given the Applicant's long-standing history as an Australian taxpayer, and that he generally met the criteria in the cases discussed above, the Tribunal formed the view that it was appropriate for the discretion under section 1220(3) to be exercised in the Applicant's favour.
The Tribunal turned to consider the submission by the advocate for the Respondent that the Tribunal should take into account the repeal of section 1220(3) on 20 September 2000, whereby the discretion is no longer available. The Applicant is entitled to have a decision applying the relevant legislation at the time of his application.
In addition, the advocate for the Respondent had referred the Tribunal to section 137 of the Social Security (Administration) Act 1999, however that section applies only where the original application for review is made more than 13 weeks after the decision under review. That is not the case here.
DECISION

The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid age pension from and including 21 April 1995. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant age pension from that date.

I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: O. Caragianni            .....................................................................................
  Associate
Date of Hearing  26 March 2002
Date of Decision  15 May 2002
Applicant  Self represented
Advocate for the Respondent Ms Susan Fahey