Kwon and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 93 (13 February 2009)

Last Updated: 13 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 93

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3400

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KI BUN KWON

Applicant

And

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

Respondent

DECISION

Tribunal

Dr I Alexander, Member

Date 13 February 2009

Place Sydney

Decision

The decision under review is affirmed.

.....................[sgd]....................
Dr I Alexander
Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – portability period - allowable absence -unable to return to Australia - decision under review affirmed

Social Security Act 1991 – s 94

REASONS FOR DECISION

13 February 2009

Dr I Alexander, Member

INTRODUCTION

1. Ms Ki Bun Kwon was granted a Disability Support Pension (“DSP”) on 26 October 1989.
2. On 22 August 2007, she left Australia to travel to the Republic of Korea.
3. There is no record of notification to Centrelink of her departure although Miss Kwon claims that she did speak to someone on the telephone.
4. In October 2007, Centrelink apparently learned of her departure following a data match with records maintained by the Department of Immigration and Citizenship.
5. On 21 November 2007, Centrelink suspended payment of Ms Kwon’s DSP pursuant to s 1217 of the Social Security Act 1991 (Cth) (“the Act”) because she had been overseas for more than 13 weeks .
6. Centrelink restored her DSP on 25 February 2008 when Ms Kwon returned to Australia.
7. The decision to suspend her DSP was affirmed by a Centrelink authorised review officer (“ARO”) on 7 April 2008.
8. The current proceeding is an application for review of the Social Security Appeals Tribunal (“SSAT”) decision dated 2 July 2008 affirming the decision of the ARO.
9. At the hearing on 8 October 2008, Ms Kwon was not represented, but gave oral evidence with the assistance of a Korean interpreter.
10. After having considered the evidence and for the reasons set out below, I find that Ms Kwon was not entitled to be paid DSP while she was overseas between 21 November 2007 and 24 February 2008, which means that her application for review has not been successful.

ISSUES - LEGISLATION

11. Section 1217 of the Act states that the maximum portability period for DSP payments is 13 weeks, which is therefore the maximum time a person receiving DSP can be absent from Australia without affecting their eligibility for payment.
12. Section 1218AA of the Act provides for circumstances in which the Secretary may determine that the maximum portability period for DSP is extended to an unlimited period.
13. All the circumstances must be satisfied including a requirement that the person receiving DSP is terminally ill and their absence from Australia is or will be permanent.
14. Section 1218C of the Act lists a number of prescribed events in which the Secretary may extend the portability period for payment of DSP if the Secretary is satisfied that the person is unable to return to Australia because of one of these events.
15. The events include, inter alia, “a serious accident involving the person or a family member of the person” [s 1218C(1)(a)] and “the hospitalisation of the person or a family member of the person” [s 1218C(1)(c)].
16. Section 1218C(2)(a) stipulates that the Secretary must not extend the portability period unless the event occurred or began during the period of absence.
17. The only other situation in which DSP may be continued for greater than 13 weeks is if the destination country has an agreement with Australia under the Social Security (International Agreements) Act 1999 (Cth). As no such agreement exists between Australia and the Republic of Korea, this issue is not relevant in this case.
18. Therefore, the issue that I must decide is whether any of the circumstances in s1218AA or any of the events in section 1218C apply to Ms Kwon and, if so, whether her DSP payments should have been continued between 21 November 2007 and 24 February 2008.

MS KWON’S EVIDENCE

19. Ms Kwon’s oral evidence was generally not very helpful. Her speech was pressured. She was difficult to understand and, despite encouragement, was reluctant to use the interpreter.
20. Ms Kwon was frequently unresponsive to questions from the Tribunal and tended to talk persistently about matters of little relevance to the specific issues before the Tribunal.
21. Ms Kwon agreed that the main reason for her going to Korea was to pursue civil litigation in a longstanding matter with regard to monies that her late father had entrusted to a third party prior to his death.
22. She also claimed to have gone to Korea for health reasons, but was unable to provide a meaningful explanation or any supporting documents. In particular, there was no evidence of a terminal illness.
23. At the hearing, Ms Kwon also claimed that while she was in the Republic of Korea, her younger brother, aged approximately 50 years, fractured his ankle in a hiking accident and was admitted to hospital. She indicated that her brother was married and had three children.
24. She was unable to remember specific details of the event and did not provide any meaningful explanation for having to stay in the Republic of Korea as a result of her brother’s hospitalisation
25. In a subsequent Statutory Declaration dated 10 October 2008, Miss Kwon stated that the accident suffered by her brother occurred on “7 August 2006” and that he was hospitalised for 40 days and needed outpatient treatment “till the end of February.”
26. She claimed that she had visited her brother in hospital and cooked for him when he was an outpatient, but provided no supportive documentation.
27. Shortly after the hearing, Ms Kwon returned to the Republic of Korea and on 11 November 2008, the Tribunal received copies of three Korean documents regarding the hospitalisation and treatment of a Mr Ki Teuk Kwon who she claimed was her brother.
28. An English translation of the documents confirmed that Mr Kwon had been admitted to hospital on the 24 August 2007 for operative treatment of a significant right ankle injury. He was discharged after 40 days on 2 October 2007.
29. A medical certificate dated 1 October 2007 indicated that he would need orthopaedic treatment for about 12 weeks after the operation, i.e. until the end of November 2007.
30. In a letter to Centrelink dated 9 November 2007, Ms Kwon wrote that she was still in the Republic of Korea because of continuing court proceedings and stated that “I have to stay until solution of this case”. She also wrote that she had not reported to Centrelink before she left Australia because she had thought that the matter would be finished in October 2007.
    31. In a subsequent letter to Centrelink dated 13 December 2007, Ms Kwon confirmed that she was still waiting for the outcome of her court proceedings.
32. I note that Ms Kwon made no mention of her brother or his accident in either letter.
33. I also note that Ms Kwon has not made any claim to be terminally ill.

CONSIDERATION

34. As already noted above, the discretion provided to the Secretary by s 1218AA to extend the portability period for DSP to an unlimited period applies only if the person receiving DSP is terminally ill.
35. As there is no evidence that Ms Kwon is terminally ill s 1218AA is not relevant in this case.
36. The discretion provided to the Secretary by s 1218C to extend the portability period of a person receiving DSP in certain circumstances has two distinct elements.
37. Firstly, the Secretary, and therefore the AAT (the Tribunal), must be satisfied that one of the events listed in s 1218C(1) had occurred or began during the period of absence from Australia [s 1218C(2)].
38. In this case, notwithstanding some reservations expressed by the respondent in written submissions, I am satisfied that Ms Kwon’s brother was admitted to hospital while Ms Kwon was in the Republic of Korea during her absence from Australia.
39. The second element requires the Tribunal to be satisfied that Ms Kwon was unable to return to Australia because of her brother’s accident and hospitalisation.
40. I accept that Ms Kwon visited and may have assisted her brother during his convalescence, but there is no convincing evidence before me that she was unable to return to Australia because of her brother’s accident.
41. Ms Kwon did not mention her brother until the current proceeding and all her correspondence and her evidence to the SSAT clearly indicated that she had stayed in Korea because of the ongoing court proceedings.
42. I note that the SSAT members stated that they were satisfied that at the conclusion of the hearing Ms Kwon had been given adequate opportunity to present any additional relevant evidence and, despite being directly questioned about the provisions of s 1218C, did not mention anything about her brother.
43. Furthermore, the medical documents from the Republic of Korea would suggest that her brother’s treatment would have been completed at the end of November 2007.
44. It follows that I am not satisfied that Ms Kwon was unable to return to Australia because of her brother’s accident and hospitalisation.
45. Therefore, Ms Kwon was not entitled to have her portability period for DSP extended, which means that she was not entitled to be paid DSP while she was overseas between 21 November 2007 and 24 February 2008.

DECISION

46. For reasons set out above, the decision under review is affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed: .............................[sgd]...................................................

Associate

Date of Hearing 8 October 2008

Date of Decision 13 February 2009

Appearance for the Applicant Self-represented

Appearance for the Respondent Ms P Lee, Centrelink Legal Services and Procurement Branch