Magoulias and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 40 (21 January 2010)

Last Updated: 21 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 40

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3303

GENERAL ADMINISTRATIVE DIVISION		)
	Re		IRENE MAGOULIAS

Applicant

And

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

Respondent

DECISION

Tribunal

Mr S Karas, AO, Senior Member

Date 21 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

...................[Sgd].................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Overseas portability – Applicant in Australia at commencement of amending legislation – No unlimited maximum portability period – Applicant’s circumstances do not enable exercise of discretion to extend portability period – Maximum portability period of 13 weeks – Decision under review affirmed.

Administrative Appeals Tribunal Act 1975 (Cth), s 34J

Social Security Act 1991 (Cth), ss 1217, 1218AA, 1218C, cl 135 of Sch 1A

Social Security (International Agreements) Act 1999 (Cth), Sch 22

Re Aguilar-Trejo and Anor and Secretary, Department of Family and Community Services [2005] AATA 734; (2005) 88 ALD 249

Re Foster and Secretary, Department of Employment and Workplace Relations (2006) AATA 983

REASONS FOR DECISION

21 January 2010

Mr S Karas, AO, Senior Member

1. Ms Irene Magoulias (the applicant) was in receipt of a Disability Support Pension (“DSP”). She suffers from a number of medical conditions. She advised Centrelink by letter dated 12 March 2009 that she would be travelling to Greece on 5 April 2009. By a further letter dated 17 March 2009, the applicant advised Centrelink that she and her husband would be going to Greece for “maybe a year” on 22 March 2009.
2. Centrelink wrote to the applicant on 17 March 2009 to advise her that her DSP could only be paid to her for 13 weeks from the date of her departure overseas, that is, up until 21 June 2009. The applicant sought review of that decision.
3. On 7 April 2009, an Authorised Review Officer from Centrelink affirmed the earlier decision to limit the portability of the applicant’s DSP to 13 weeks, noting there was no basis on which to extend the 13 week period according to the relevant legislation.
4. The applicant applied for review to the Social Security Appeals Tribunal (“the SSAT”). On 24 June 2009, the SSAT affirmed the decision to limit the portability period of the applicant’s DSP to 13 weeks. On 16 July 2009, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for further review.

ISSUES

5. The issue the Tribunal must determine is whether the applicant is entitled to DSP for more than 13 weeks from the date of her overseas absence that commenced on 22 March 2009.

LEGISLATION

6. The relevant and applicable legislation in this matter is contained in the Social Security Act 1991 (“the Act”). Chapter 4 of the Act provides the statutory framework within which income support payments, like DSP, can be paid during an absence overseas. DSP is payable for no more than 13 weeks while a person is overseas: s 1217 of the Act. Section 1218AA of the Act allows the portability period to be unlimited for certain severely disabled pensioners who are terminally ill and whose absence from Australia will be permanent. As well, s 1218C of the Act provides a discretion to extend a person’s portability period if that person is unable to return to Australia because of certain events, including a serious illness (subs (1)(b)) or the hospitalisation (subs (1)(c)) of the person or their family member. Clause 135 of Schedule 1A of the Act provides for transitional arrangements in respect of unlimited maximum portability periods for DSP as at 1 July 2004. Also, Schedule 22 of the Social Security (International Agreements) Act 1999 provides an agreement between Australia and Greece.

EVIDENCE AND SUBMISSIONS

7. The applicant and respondent consented to this matter being determined without a hearing in accordance with s 34J of the Administrative Appeals Tribunal Act 1975.
8. The applicant suffers from a number of medical conditions and her entitlement to DSP is not in dispute. Indeed, she has been in receipt of DSP for a number of years now and a number of medical reports attending to her medical conditions have been produced. The medical evidence does not, however, indicate that the applicant has a terminal illness.
9. The applicant has submitted the following:
   • Section 1218AA of the Act should not apply to her.
   • She had previously been granted unlimited portability.
   • She came to Australia as a very young girl, aged three. She grew up in “harsh conditions” in Darwin and was a “pioneering” Australian.
   • Her husband’s age pension is portable indefinitely.
   • She requires care provided by her husband.
   • She will return to Australia definitely at some further date “for good”.
     
10. The Tribunal notes that the applicant has had a number of absences overseas from Australia since being granted DSP a number of years ago—the immigration records (T17) indicate the periods during which the applicant was in Australia. These periods include 21 October 1998 to 30 July 2001 and 26 June 2004 to 6 October 2005.
11. As the applicant was in receipt of her DSP prior to July 2004, she submitted that she should not now be dealt with under s 1218AA of the Act. However, the transitional arrangements in clause 135 of Schedule 1A of the Act only apply to certain persons absent from Australia on 1 July 2004. Consequently, this clause does not assist the applicant as she was present in Australia on 1 July 2004: see Re Aguilar-Trejo and Anor and Secretary, Department of Family and Community Services [2005] AATA 734; (2005) 88 ALD 249.
12. Section 1218AA of the Act provides a discretion to determine that a person’s DSP is portable for an unlimited period only if all of the listed criteria apply. However, it appears all of those listed criteria do not apply in this matter given, for example, that s 1218AA(1)(c) of the Act requires that a person be terminally ill. While it is accepted that the applicant suffers from a number of medical ailments, she is not “terminally ill” as required by the legislation: see Re Foster and Secretary, Department of Employment and Workplace Relations (2006) AATA 983. Consequently, the applicant is unable to satisfy s 1218AA(1)(c) of the Act and so the discretion conferred by that section cannot be exercised in her case. Furthermore, the applicant when going overseas in March 2009 indicated she would be away “maybe for a year”. Therefore, as her absence from Australia that commenced on 22 March 2009 was not intended to be permanent, she cannot satisfy s 1218AA(1)(d) of the Act. In the circumstances, the Tribunal finds that as the applicant is not able to satisfy all of the mandatory requirements of s 1218AA of the Act, the discretion to determine that her DSP is portable for an unlimited period cannot be exercised.
13. In submissions received by the Tribunal on 24 December 2009, the applicant submitted that her portability period should be extended by virtue of s 1218C(1)(b) and (c) of the Act. She stated that her daughter was suffering from a serious illness and had been hospitalised. Those submissions included her daughter’s discharge notice from an Athens hospital and a “brain MRI” report.
14. According to the discharge notice, her daughter was admitted on 8 November 2009 and discharged 19 November 2009. The MRI report is dated 9 December 2009. Given these dates, the illness and hospitalisation of the applicant’s daughter could not have been the reason why the applicant was unable to return to Australia within the 13 week portability period ending 21 June 2009.
15. In any event, the Tribunal prefers the applicant’s evidence as provided in her written application to the Tribunal as a more accurate reflection of the reasons why she remained in Greece. The applicant stated as follows (see T1):

My Husband is of Age Pension and has portability. My daughter has been in Greece 8 yrs. I have no one else to care for me. My quality of care and life has drastically been reduced on ½ partner pension.

...

Please look at this favourable. My daughter last year was very ill and so am I. She is on her way to recovery but I am not. I would like to be here as long as I can. My husband did not see her at the condition I saw her last yr that is why he wants to be here as long as we can.

The next step for me if I get very sick will be seperation [sic] and return Home for me. We have been married for 40 yrs this yr.

16. On that account, it appears evident that the applicant desires to live in Greece with her husband and daughter because she would otherwise have no-one to care for her and she wishes to be where her husband is. She acknowledges in her written account that her daughter was “on her way to recovery”. Her reasons are eminently understandable from a human perspective. However, as set out above, the discretion in s 1218C of the Act is limited to a few circumstances, none of which the applicant can demonstrate on the facts here.
17. The Tribunal notes that there is nothing in the social security agreement between Australia and Greece that would enable the applicant to be paid DSP for longer than 13 weeks while overseas. Therefore, that agreement can have no impact on the maximum portability period of the applicant’s DSP as defined in s 1217 of the Act.
18. While the Tribunal notes the difficulties and traumas the applicant has faced and although it has a degree of empathy for her position, the relevant legislation has to be applied. No discretion exists for her DSP to be paid beyond 13 weeks. The Tribunal can only direct that payments be made as permitted by the Act. Therefore, the Tribunal finds that it must affirm the decision under review.

DECISION

19. The Tribunal affirms the decision under review.
    

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member.

Signed: .....................[Sgd]........................................................

Mátyás Kochárdy, Research Associate

Hearing on the papers 14 January 2010

Date of Decision 21 January 2010