Abayekoon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 859 (9 November 2009)

Last Updated: 9 November 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 859

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3234

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ROYDS ABAYEKOON

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Senior Member B H Pascoe

Date 9 November 2009

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) B H Pascoe
Senior Member

SOCIAL SECURITY - absence from Australia – benefit ceased after 13 weeks – absence for over four years – no entitlement to benefits until return to Australia

Social Security Act 1991

REASONS FOR DECISION

9 November 2009

Senior Member B H Pascoe

1. This is an application to review a decision of the Social Security Appeals Tribunal (SSAT) of 22 June 2009 which affirmed a decision of the respondent that the applicant was not entitled to mature age allowance from 30 September 2004 and entitled to age pension from 8 January 2009.
2. Pursuant to s 34J of the Administrative Appeals Tribunal Act 1975, as it appeared to the Tribunal that the issues for determination on review of the decision could be adequately determined in the absence of the parties who consented to the review being determined without a hearing, the decision has been reviewed by consideration of the documents lodged with the Tribunal and without holding a hearing.
3. The facts in this matter are not in dispute. The applicant, Mr R Abayekoon, was granted mature age allowance from 25 February 2003. He departed Australia on 1 July 2004 to travel to Sri Lanka to be married. By letter of 14 July 2004 from Centrelink, he was advised that his mature age allowance would continue to be paid for 13 weeks but would cease on 30 September 2004 if he had not returned by that date. As he had not returned by 30 September 2004, the allowance was cancelled from that date. Mr Abayekoon returned to Australia on 7 January 2009, contacted Centrelink on 8 January 2009 regarding a claim for age pension and lodged a formal claim on 14 January 2009.
4. The SSAT accepted Mr Abayekoon’s evidence that his intention in July 2004 was to be away from Australia for approximately one month. It was necessary for his wife to obtain a resident visa for Australia. Unfortunately for him the process for grant of the visa took some four years to complete with the result that he did not return until January 2009. He had the mistaken understanding that, on his return to Australia, he could lodge a new claim and entitlements since 30 September 2004 would be restored. Apparently, he based this understanding on a sentence in the letter of 14 July 2004 which stated:

If you return to Australia you may need to lodge a new claim for any payments that have been cancelled during your absence.

5. In October 2004, Mr Abayekom requested an extension of the mature age allowance beyond 30 September 2004 presumably on the basis of being unavoidably detained in Sri Lanka. By letter of 29 October 2004 he was advised that his reasons did not meet the requirements of s 1218C of the Social Security Act 1991 (the Act). While s 1217 restricts the period during which payment can be made while a recipient is overseas to 13 weeks, s 1218C allows an extension of the period if one of the following events occurred or began during the person’s absence overseas:

(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.

It is clear that the reasons for the delay in returning to Australia were not covered by this provision of the Act resulting in a clear cessation of the mature age allowance on 30 September 2004.

6. The legislation is clear that a person can claim a social security benefit if the person is a resident of Australia and present in Australia at the time of the claim. Consequently, Mr Abayekoon was not entitled to make any claim until 7 January 2009 when he returned to this country. The claim made on 14 January 2009 was properly accepted as providing an entitlement to age pension from 8 January 2009, being the date on which he contacted Centrelink.
7. It is clear from the facts of this case and the specific terms of the relevant legislation that the entitlement of Mr Abayekoon to mature age allowance ceased from 30 September 2004 and no further entitlement arose until he return to Australia, by which time he had reached the age to qualify for age pension.
8. The SSAT accepted that Mr Abayekoon had a genuine belief that he would be entitled to receive payments for the period after 30 September 2004 on his return to Australia. It would seem that he borrowed money to live in Sri Lanka and to meet the costs of the return airfare on the assumption that he could repay such borrowings from the expected retrospective benefit payments. Unfortunately his belief and expectation had no foundation in the provisions of the relevant legislation. While the sentence in the letter of 14 July 2004 may have been more clearly expressed it is difficult to accept that the interpretation adopted by Mr Abayekoon was a reasonable interpretation in the circumstances. In any event, the terms of the legislation are clear and unambiguous.
9. It follows from the foregoing that the decision under review should be affirmed.

I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision herein of

Senior Member B H Pascoe.

Signed: Dianne Eva

Clerk

Determination on Papers 9 November 2009

Date of Decision 9 November 2009