Keroloss and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 659 (1 September 2010)

Last Updated: 2 September 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 659

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/5437

GENERAL ADMINISTRATIVE DIVISION		)
	Re		HESHMAT KEROLOSS

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Senior Member R W Dunne

Date 1 September 2010

Place Adelaide

Decision

The Tribunal affirms the decision under review.

..............................................
R W DUNNE
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – overseas portability of social security payment – applicant received Newstart Allowance – applicant absent from Australia for purpose of visiting mother in Egypt – whether applicant’s absence from Australia for purpose of attending to acute family crisis – whether Newstart Allowance payable to applicant during absence – decision under review affirmed.

Social Security Act 1991 (Cth) ss 1212A, 1212B, 1217
Re Ramsay and Secretary, Department of Education and Workplace Relations [2010] AATA 278
Re Wolff and Secretary, Department of Employment and Workplace Relations [2006] AATA 173
Re Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431
Re Haque and Secretary, Department of Family and Community Services [2005] AATA 153
Re Lesic and Secretary, Department of Family and Community Services [2002] AATA 651
Re Bitar and Secretary, Department of Family and Community Services [2003] AATA 64

REASONS FOR DECISION

1 September 2010

Senior Member R W Dunne

INTRODUCTION

1. This is an application by Mr Heshmat Keroloss (“applicant”) for review of a decision made by the Social Security Appeals Tribunal (“SSAT”) on 20 October 2009. The SSAT affirmed a decision of an Authorised Review Officer (“ARO”) and the original decision-maker of the respondent (“Centrelink”) to refuse to pay Mr Keroloss Newstart Allowance under the Social Security Act 1991 (“Act”), from 5 March 2009 to 29 April 2009, while he was in Egypt. Mr Keroloss appeared at the hearing and gave evidence. Ms L Giaretto (from Centrelink Advocacy Branch) appeared for the respondent. I had before me the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, which I received into evidence (Exhibit R1).

ISSUE BEFORE THE TRIBUNAL

2. The issue before the Tribunal is whether the applicant should be paid Newstart Allowance while he was absent from Australia during the period 5 March 2009 to 29 April 2009.

THE RELEVANT LEGISLATION

3. Part 4.2 of the Act provides for the circumstances in which social security payments may be portable overseas. Under s 1217 of the Act, where a person is receiving Newstart Allowance in Australia, the Allowance continues to be payable to that person, while he or she is absent from Australia, for a maximum period of 13 weeks, provided it is an “allowable absence”, that is (as stated in Column 4 in Item 15 in the table at the end of s 1217):

“A temporary absence for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.”

4. The meaning of the expression “acute family crisis”, for the purposes of Part 4.2 of the Act, is explained in s 1212A, which reads:

“1212A Meaning of acute family crisis
For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c) for a purpose relating to the death of a family member; or
(d) for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.”

5. The phrase “humanitarian purpose” is defined in s 1212B of the Act, which provides:

“1212B Meaning of humanitarian purpose
For the purposes of this Part, a person’s absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings; or
(b) for purposes relating to the adoption of a child by the person; or
(c) for a purpose specified in the regulations for the purposes of this paragraph.”

BACKGROUND AND EVIDENCE

6. There is no dispute about the background history and the facts which led to this matter. They were set out by the SSAT in its reasons for decision at paragraphs 2 to 13 (Exhibit R1, T2, pages 4-5), as follows:

“ ...

2. At all material times, Mr Keroloss was paid newstart allowance as a jobseeker.
3. On 26 February 2009 Mr Keroloss contacted Centrelink to advise that he had to travel to Egypt on 5 March 2009 to visit his mother who was recovering from surgery to treat breast canter. He stated he would return to Australia on 29 April 2009. He was advised that he would not be eligible to receive newstart allowance while he was overseas visiting his mother.
4. On 26 February 2009 Centrelink wrote to Mr Keroloss confirming that he was not eligible to receive newstart allowance while he was overseas.
5. Mr Keroloss left Australia on 5 March 2009 to travel to Egypt and he returned to Australia on 29 April 2009.
6. On 5 March 2009 Mr Keroloss was sent a letter by Centrelink which advised his newstart allowance had been cased from 5 March 2009 because he was no longer in Australia.
7. On 6 May 2009 Mr Keroloss contacted Centrelink to seek payment of newstart allowance while he was overseas. He provided Centrelink with a medical report from Egypt in relation to his mother’s illness and a copy of his birth certificate. Mr Keroloss asked that he be paid newstart allowance during the time he was overseas based on the ‘acute family crisis’ provision of the legislation.
8. On 22 May 2009 he again contacted Centrelink to enquire if he would be paid newstart allowance for the period of time he was overseas visiting his mother.
9. On 28 May 2009 a Centrelink officer made the decision that Mr Keroloss was not eligible to receive newstart allowance during the period 5 March 2009 to 30 April 2009 while he was overseas as the evidence provided was insufficient for portability of his payment as his mother ‘was not in a critical or life threatening condition when the cus was o/s with her’.
10. On 24 June 2009 Mr Keroloss contacted Centrelink and sought review of this decision. On 26 June 2009 the original decision maker reconsidered and affirmed the decision under review. In their letter to Mr Keroloss they stated:

‘I made this decision because under Social Security Law Newstart Allowance is not payable if the reason for travel is to provide care for an ill family member. Payment may only be made in situations where the family member is seriously ill in hospital or critically ill at the time of departure. The evidence you have provided states that your mother concluded treatment for Breast Cancer on 18.11.2008, four months prior to your departure date. As you have stated that your intentions of travel were to care for your mother and she was not hospitalised or critically ill at the time, Newstart is not able to be paid for your time outside of Australia.’

11. Mr Keroloss requested review of this decision and an authorised review officer concluded on 11 September 2009 that the decision should be affirmed after finding that the purpose of Mr Keraloss’ visit to Egypt was to care for his mother, and noting that newstart allowance cannot be paid if the purpose of the visit is to care for the critically ill family ember.
12. In reaching the finding concerning the purpose of the visit, the authorised review officer noted that Mr Keroloss had stated that he had to look after his mother, bring her to church, help her out of the bed to get to the bathroom and he brought her food and drinks. The authorised review officer stated that this was considered to be caring for the person and for this reason Mr Keroloss cannot be paid during his absence from Australia.
13. In the ARO NOTES it stated ‘I explained to Mr Keroloss that in that case we would not be able to pay him, that we could only pay him if the purpose was to visit. He could not understand. He said he was told if his mother had a serious illness and he brought in a medical certificate then he could be paid ...’.

...”

7. In giving his evidence, Mr Keroloss said that his mother, who was 85 years of age, had been seriously ill with breast cancer for a number of years. She had had three operations and chemotherapy treatment. He had travelled to Egypt because his mother needed his emotional and psychological support as a result of her illness. He had delayed travelling until he had become an Australian citizen and was able to obtain an Australian passport to travel to Egypt. His mother was living with his sister and the wife of his nephew. Along with those family members, he had cared for his mother. She had undergone an operation at the Aswan Cancer Institute in Cairo before his visit. The disease had recurred and the chemotherapy, which had not been successful, was stopped.
8. When asked by Ms Giaretto what activities he had performed for his mother, he said he helped her to get out of bed and to sit in the living room. He brought her food and they would sit together. It was important that she slept and relaxed as much as possible, but she was not in bed at all times. He took his mother to church once a week, which she desired for its spiritual and psychological benefits. His mother had not seen a doctor for a check-up while he was there, but his nephew was a doctor if advice was needed.
9. Mr Keroloss said that he had decided before 26 February 2009 to travel to Egypt to see his mother. However, the trigger that had prompted him to go had been the grant of citizenship. He was referred to the medical report from the Aswan Cancer Institute (Exhibit R1, T3, page 60) which read:

“This Pt named Phoebe Sewiha Tawadrus aged 85 years old has first presented to Aswan Cancer Institute (A.C.I.) on 26.9.08 suffering from local recurrence at the site of previous Rt MRM which was done on 2004 at Cairo, excision of the recurrent nodule was done in Cairo on 23.8.08 and histopathology proved to be recurrent infiltrating duct carcinoma grade II infiltrating skeletal muscle, free resection margins.
She was planned to receive radiotherapy and hormonal therapy, she received 4500 cGy/25 ttt/5 w started on 7.10.08 ended on 18.11.08.
...”

10. When asked about the report, Mr Keroloss explained that it was dated 11 March 2009. It had not occurred to him to obtain a more detailed report about the critical nature of his mother’s condition. He believed his mother was critically ill and this was her doctor’s view. However, she was not receiving treatment while he was in Egypt. Although his mother was living with his sister, she worked during the day and he needed to be with his mother to care for her during his sister’s absence. It was imperative for someone to be with his mother and to assist with her daily care.

CONSIDERATION

Should the applicant be paid Newstart Allowance while he was absent from Australia during the period 5 March 2009 to 29 April 2009?

11. Under the Act, in Column 4 of Item 15 appearing at the end of s 1217, a temporary absence from Australia can still result in payment of Newstart Allowance (for a maximum period of absence of 13 weeks), provided that it is for one of the following purposes:

“(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.”

12. I am satisfied (and Mr Keroloss accepts) that he did not travel to Egypt to seek eligible medical treatment or for a humanitarian purpose. The purpose that Mr Keroloss argues applies in his case is to attend an acute family crisis. Under s 1212A, his absence from Australia to travel to Egypt will be for the purpose of attending an acute family crisis if the Secretary (and the Tribunal, standing in the shoes of the Secretary) is satisfied that his absence was for the purpose of visiting a family member (his mother) who is (or was) critically ill. Mr Keroloss accepts that the purpose of his travel to Egypt was not to visit a family member who was hospitalised with a serious illness, for a purpose relating to the death of a family member or for a purpose relating to a life-threatening situation (see s 1212A(b), (c) and (d)).
13. In his outline of argument that he forwarded to the Tribunal, Mr Keroloss said his mother had been seriously ill for years. In the letter sent to him by Centrelink on 26 February 2009, he was advised that he could not receive Newstart Allowance while he was outside Australia (Exhibit R1, T3, page 50). However, he may have felt encouraged in his endeavours from the following paragraph that appeared in the letter:

“What to do when you return to Australia
If you return to Australia you may need to make a new claim for any payments that were cancelled while you were away.”

If there was any encouragement intended, it could only apply if he could provide clear evidence that his mother was critically ill when he visited her in Egypt.

14. Mr Keroloss would have also been disillusioned by the following comments that were made by the Authorised Review Officer in her decision statement (Exhibit R1, T3, page 24):

“The overseas absence must be to visit the family member who is ill or to attend a funeral or similar. If the purpose of the trip is to care for another person, these provisions do not apply.
... Newstart Allowance cannot be paid if the purpose of the visit is to care for the critically ill family member.”

Like the SSAT, I do not accept the Authorised Review Officer’s contention that Newstart Allowance cannot be paid if the purpose of the visit is to care for the critically ill family member. It is possible for a person to both visit a critically ill family member and to provide care for them in the course of their visit.

15. There have been a number of decisions of Tribunals which have considered the meaning of “acute family crisis” and “critically ill”. In Re Ramsay and Secretary, Department of Education and Workplace Relations [2010] AATA 278, the applicant went to New Zealand because his mother was seriously ill, had been admitted to hospital several times and was not expected to live. It was accepted that the applicant’s mother had a serious illness at the relevant time, but the Tribunal was not satisfied that she was critically ill. The Tribunal concluded that “[T]here needs to be something more pressing, or more decisive, or more a sense that an illness has really reached a time of change”. Earlier, in Re Wolff and Secretary, Department of Employment and Workplace Relations [2006] AATA 173, Dr EK Christie, Member, considered the following cases in his decision-making process:

(a) In Re Al Umari and Secretary, Department of Family and Community Services [2003] AATA 431, the applicant travelled to Syria to see his mother who was suffering from breast cancer. The Tribunal concluded that the “acute family crisis” test was not met because the applicant’s “mother was able to travel and appeared to him in good health. She was not hospitalised and was being treated by a general practitioner in a country other than her own [Iraq]. She was able to stay away from her home for a period of two months. These are not health circumstances that could be described as critically ill ...”.

(b) In Re Haque and Secretary, Department of Family and Community Services [2005] AATA 153, the Tribunal concluded that the applicant’s travel to Bangladesh to see his wife who was being treated for depression, but no longer hospitalised, was not a “critical illness”.

(c) In Re Lesic and Secretary, Department of Family and Community Services [2002] AATA 651 the Tribunal concluded that the applicant’s travel to the United Kingdom for the purpose of taking his father-in-law’s ashes to the United Kingdom did not constitute an “acute family crisis”. The Tribunal then made the observation that “the definition of acute family crisis relates to critical family events which are unexpected and are of such urgency that they require immediate action or attention”.

(d) In Re Bitar and Secretary, Department of Family and Community Services [2003] AATA 64, the Tribunal concluded that the applicant’s travel to Lebanon to attend to his seriously ill brother, who subsequently passed away, constituted an “allowance absence” as it was a temporary absence to attend an acute family crisis.

(e) In Re Wolff (supra), the applicant travelled to New Zealand to visit his 80 year old father-in-law who had broken his neck following a fall. The Tribunal concluded that the circumstances of the case were reasonably analogous to the fact situation in Re Bitar. The Tribunal found that the purpose of Mr Wolff for travelling to New Zealand was to visit his late father-in-law who was critically ill.

16. Whether Mr Keroloss had any entitlement to payments during the period he was absent from Australia depends on a favourable exercise of the discretion that is available under s 1212A(a), where Newstart Allowance may be payable for a limited period in the circumstances set out in s 1217 of the Act. The only relevant consideration arising on the present facts is whether Mr Keroloss’ mother was critically ill within the meaning of s 1212A. There is no statutory definition of the expression “critically ill” and it must be given its ordinary meaning. In this regard, I note that the word “critical” means “relating to the crisis or turning-point of a disease”, and the phrase “critically ill” means “at or in relation to the crisis of a disease” (The Oxford English Dictionary: Second Edition).
17. I also note that Mr Keroloss’ evidence was that his mother was able, with assistance, to move about and she attended church regularly. She was not hospitalised and, if medical advice was needed, the applicant’s nephew was able to provide that advice. In his outline of argument, he said that his mother had been seriously ill for years and I accept that this was the case. I also accept that he wanted to see his mother and that she wanted to see him, too. However, the language of the legislation is strict. I have reviewed the various decisions made by Tribunals in the cases referred to in paragraph 15 above. Having regard to these decisions, I am not satisfied on the evidence before me that Mr Keroloss went to visit his mother because she was critically ill at the time or was hospitalised with a serious illness. Her illness was serious, but it was not critical. It required something more pressing. As Ms Giaretto submitted, there had to be some “crisis point”, which in the present case was missing.
18. It follows that Mr Keroloss did not go overseas for an acute family crisis as that term is defined in the Act. I must, therefore, upon review, reach the same decision as Centrelink and the SSAT and affirm the decision not to pay the Newstart Allowance during the period 5 March 2009 to 29 April 2009.

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 Senior Member R W Dunne

Signed: .............J Coulthard.........................................

Associate

Date of Hearing 23 July 2010

Date of Decision 1 September 2010

Advocate for the Applicant Self-represented

Advocate for the Respondent Ms L Giaretto

Centrelink Advocacy Branch