Majidi and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 309 (10 May 2011)

Last Updated: 11 May 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 309

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. 2010/1365

GENERAL ADMINISTRATIVE DIVISION )

Re MELODY MAJIDI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date 10 May 2011

Place Sydney

Decision The decision under review is affirmed.

....................sgd........................
Ms N Isenberg
Senior Member

CATCHWORDS

Social Security - Disability Support Pension (DSP) - Portability period - Discretion to extend the limited portability period - Reasons for allowing a discretionary extension - Serious illness - Serious accident

Social Security Act 1991 ss 1217, 1218C, Sch 1B

Administrative Appeals Tribunal Act s 37

Guide to Social Security Law, 7.1.2.10

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259

Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82.

Atieh and Secretary, Department of Employment and Workplace Relations [2006] AATA 814

Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194

Re Manolev and Secretary, Department of Family and Community Services [2005] AATA 398; (2005) 88 ALD 794.

Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989

10 May 2011 REASONS FOR DECISION

Ms N Isenberg, Senior Member

1. Ms Melody Majidi’s disability support pension was cancelled when she remained out of Australia for more than 13 weeks. She seeks payment for the balance of her absence.

BACKGROUND

2. Ms Majidi was paid disability support pension from 2 October 1997 on the basis of her psychiatric condition.
3. On 9 March 2009 Ms Majidi advised Centrelink that she would be travelling to Iran on 12 March 2009 and expected to return to Australia by 11 June 2009, that is, within 13 weeks. On 12 March 2009 Ms Majidi left Australia. When she had not returned by 11 June 2009, her disability support pension was cancelled from that date. According to Centrelink records, it was not until 15 June 2009 that Ms Majidi began contacting Centrelink to seek an extension of the portability period beyond 11 June 2009. Following her return to Australia on 10 September 2009 Ms Majidi’s disability support pension was re-instated from that date.
4. On 6 October 2009 a Centrelink delegate refused to extend Ms Majidi's portability period beyond 11 June 2009. That decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT).

LEGISLATION

5. Section 1217 of the Social Security Act 1991 (the Act) outlines the maximum portability period for payments and their allowable absences. It provides that Ms Majidi’s maximum portability period for the payment of her disability support pension is 13 weeks for any absence.
6. Section 1218C of the Act outlines the circumstances a person's portability period can be extended, relevantly these include:
   • A serious accident involving the person or a family member of the person;
   • A serious illness of the person or a family member of the person;
   • The hospitalization of the person or a family member of the person;
   • Political or social unrest in the country in which the person is located.
7. Subsection (2) provides that the portability period can only be extended if the event occurred or began during the period of absence; and, if the event is political or social unrest, the person must not be willingly involved in, or willingly participate in the event.

ISSUES

8. Should Ms Majidi be paid disability support pension during the period she was absent from Australia exceeding 13 weeks?

THE HEARING

9. Ms Majidi was assisted (not represented) by Ms Kirsty MacDonald of Side by Side Advocacy. Ms Majidi did not require the assistance of an interpreter.
10. At the conclusion of her evidence-in-chief, during the luncheon adjournment, Ms Majidi noted she had suffered an anxiety attack for which she had self-medicated. I asked on resumption if she were able to proceed and she indicated that she was. I suggested she speak with her solicitor and Ms MacDonald confirmed that Ms Majidi wished to proceed.
11. Some days after the hearing Ms Majidi wrote to the Tribunal complaining that at the resumed hearing her medication had made her drowsy and unable to concentrate. Notwithstanding that she had answered questions put to her clearly and articulated her case well, I permitted her nonetheless to make written submissions. I have taken those submissions into account, although they did not greatly add to her earlier submissions and the evidence she had already given.
12. In making my decision I had before me documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 (“the T documents”). Ms Majidi also provided an extensive bundle of evidence. At the hearing I invited her to bring to my attention the documents therein that she relied on in support of her case.

CONSIDERATION

13. The legislation is clear: a recipient of disability support pension is only payable for 13 weeks while a person is overseas. Section 1218C, however, sets out limited circumstances where that portability may be extended.
14. I was referred to The Guide to Social Security Law (the Guide) at 7.1.2.10 which discusses the discretion to extend the limited portability period:

Discretion to extend the limited portability period

...

A discretionary extension must be for a definite period, during which time the recipient's situation is expected to change and enable return to Australia. Should a person be unable to return to Australia on expiry of the new allowable portability period, the case should be assessed and a further definite period may be allowed if appropriate.

...

It is necessary that matters affecting the recipient are so serious that they are prevented from returning to Australia. It is an expectation that where a recipient has their portability period extended, the person will make all reasonable efforts to return to Australia at the first available opportunity (e.g. where an extension is allowed due to illness, the recipient is required to return immediately their health allows this) -extensions are not intended for periods of treatment or recovery overseas that could reasonably be undertaken upon return to Australia.

Reasons for allowing a discretionary extension

...

The event preventing the person's return to Australia must be extreme or of an emergency nature and must have occurred or begun during the allowable portability period.

15. Whilst I am not bound to apply policy guidelines of the kind referred to in the Guide (see Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 635-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82 at 86.
16. The matters listed in subs 1218C (1) are meant to signify serious matters which cause the person to be "unable" to return to Australia within the 13 week portability period. In the decision of Atieh and Secretary, Department of Employment and Workplace Relations [2006] AATA 814, the Tribunal set out at [43] the terms of the discretion:

The intention that this provision be given limited effect is clear from the use of words such as 'serious, grievous, extreme or emergency'. It is intended to apply in a limited timeframe and permit the person involved to return to Australia. No such event is recorded during Mr Atieh's portability period in Jordan or upon arrival in the United States, thus limited extension is not triggered.

17. In the decision of Manolev and Secretary, Department of Family and Community Services [2005] AATA 398 at [28], [29] and [30], the Tribunal emphasised that the event in question must be specific, and cannot relate to any pre-existing condition or something which came on gradually:

In Mr Manolev's case the Tribunal has to take note of what is meant by "a serious illness of the person" and whether Mr Manolev's illnesses would qualify him under this category. The section speaks of "events" and the Tribunal believes this means a specific identifying incident and not something which came on gradually.
The Macquarie Dictionary gives some of the following definitions of "serious": 'of grave aspect', 'giving cause for apprehension', 'critical'. In the Explanatory Memorandum of changes to the Social Security Act it states under the new Section 1218C - Extension of a person's portability period: "This Section provides a discretion for the Secretary to extend a person's portability period where the person finds him or her self in any of the grievous circumstances listed in the Section ".
The Tribunal would, from the above, come to the conclusion that the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would, be over in a short period of time and the person involved would be able to return to Australia.
(Original emphasis.)

18. Portability of a person's payments can only be extended if an event occurs or began during the period of absence. The intention is to address serious circumstances which befall a social security beneficiary such that an individual is unable to return to Australia within the 13 week period stipulated.
19. Ms Majidi agreed that she was aware that she was due to return to Australia by 11 June 2009. Her contention though is that events beyond her control prevented that return.
20. Ms Majidi said she first went to Iran in 2003 to visit her mother with whom she had not been in contact since childhood. Ms Majidi noted that although it took some time for her mother to warm to her, following her visit, they did correspond consistently and spoke on the phone for up to half an hour every one to two weeks.
21. Ms Majidi visited her mother again in 2005 and found her to be lonely , unwell and was losing weight with no one to look after her. Her mother had some pain in her legs, had fallen down steps and needed glasses. Upon Ms Majidi’s return to Australia she resumed her pattern of contact with her mother.
22. In early 2009 Ms Majidi was contacted by her mother’s doctor, he informed her that her mother had been found wandering on the freeway and suggested that Ms Majidi come immediately to Iran to make plans in relation to the ongoing care of her mother.
23. Notwithstanding their ongoing contact, including regular and reasonably long phone conversations, Ms Majidi gave evidence that although she understood her mother to be lonely and isolated, she was unaware until that time that her mother was in poor health. This diverges from Centrelink records which document Ms Majidi as describing her mother as ‘elderly and unwell ([with] poor eyesight [and difficulty walking])’ following her visit to Iran in 2005.
24. Ms Majidi approached a travel agent and ascertained that as it was high season, if she were to buy a ticket for return in six months, it would be significantly cheaper and she could change it very inexpensively once she got there. She said she told Centrelink she needed to go to Iran to see her mother, and understood Centrelink to have ‘no objection’ to her purchase of a six month ticket. She referred many times in her evidence to Centrelink being aware of her ticketing arrangements. That is irrelevant. What is important is that her evidence was that she knew she had to return in three months to avoid jeopardising her pension.
25. Ms Majidi did not speak on the telephone to her mother again before travelling to Iran, Ms Majidi noted that she had too much to do in anticipation of her trip to contact her mother and as a result, told only her mother’s doctor and a neighbour that she was coming to visit.
26. On her arrival Ms Majidi was ‘devastated’ to see her mother, who, since 2005, had aged dramatically, was very frail and did not appear to recognize her. Ms Majidi, who had been seeing a psychiatrist fortnightly, said she ‘went to pieces’; she had an anxiety attack and needed to see a psychiatrist. During her time in Iran, Ms Majidi consulted primarily with two physicians: psychiatrist Dr Iravani and general practitioner Dr Koshniatniko. Both doctors have provided medical certificates and reports broadly in support of Ms Majidi’s application.
27. Dr Iravani provided an undated medical report in which he recorded that Ms Majidi first consulted him on 13 March 2009, which is very soon after the day she arrived. He recorded that Ms Majidi’s mother suffers from severe Alzheimer’s disease. He noted that Ms Majidi was ‘very surprised’ at the extent of her mother’s illness and was upset and confused by her mother’s condition. He increased her dose of Effexor and Xanax. Dr Iravani wrote that Ms Majidi was less able to cope with her mother’s condition because at the time she was suffering from a ‘swine flu’-like virus which later developed into pharyngitis.
28. Did her reaction to her mother’s condition bring about a ‘serious illness’ to which s 1218C(1)(b) might apply? While ‘serious illness’ is not defined, there is some authority that the expression implies some specific, unexpected event which has a limited timeframe, that its effect would be over in a short period of time and the person involved would then be able to return to Australia: see Re Djebarra and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 194; Re Manolev and Secretary, Department of Family and Community Services [2005] AATA 398; (2005) 88 ALD 794.
29. As to Ms Majidi’s psychological condition, the Respondent did not dispute that Ms Majidi was shocked by her mother’s condition, and I accept this to be the case. Having said that, I observe that Ms Majidi was in regular contact with her mother by telephone (albeit, not in the weeks immediately prior to her travel), and might have been somewhat forewarned about her condition. She had also observed her mother’s deterioration in health and increasing frailty some four years earlier.
30. Ms Majidi was already prescribed Effexor and Xanax prior to her departure for Iran. There was no evidence of a serious deterioration in Ms Majidi’s psychological condition during the 13 week period ending on 11 June 2009, although there was evidence that Dr Iravani increased her medication dosage.
31. Ms Majidi gave evidence (see [66]) that Dr Iravani had told her that she was unfit to travel because of her psychological condition, in that she would be unable to cope with airport transfers and the like. Dr Iravani’s report, however, only refers to her fitness to travel following the motor vehicle accident on 29 June 2009.
32. I therefore do not consider there to have been a sufficient deterioration in Ms Majidi’s psychological condition as a result of her shock at seeing her mother’s condition, such as to amount to a ‘serious illness’ and such that she was prevented from returning to Australia within the 13 week period ending on 11 June 2009.
33. A serious illness suffered by Ms Majidi’s mother would fall within the provisions of s 1218(C)(1) and s 23(14). I note that Ms Majidi reported to Centrelink on 5 December 2005 that her mother was, at that time, "elderly and unwell" and on 2 February 2009, before she left Australia, that her mother suffered from Alzheimer's and needed her assistance.
34. In Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989, the Tribunal, in referring to s 1218C(2), observed that the event referred to in subsection (1) must occur or begin during a period of absence. I accept that Ms Majidi’s mother may have been in poor health when Ms Majidi arrived in Iran, but there was no evidence that there was any serious deterioration during the 13 week period ending on 11 June 2009, such as to amount to a ‘serious illness’, and I was not reasonably satisfied that her condition amounted to a ‘serious illness’, such as to prevent Ms Majidi from returning to Australia within the 13 week period ending on 11 June 2009.
35. Ms Majidi had a number of other mishaps while in Iran:

‘Swine flu’

36. When she had first arrived in Iran she rested for some hours at the neighbour’s home. Unbeknownst to her, the neighbour’s son was suffering from a ‘swine flu’-like virus and that night, Ms Majidi became ill. She had a severe high fever and was unable to eat. Her mother was unable to care for her and the neighbours had then gone away. She lost 10kgs and only started to feel better after three to four weeks.
37. A medical report dated 3 September 2009 was provided by Dr Koshniatniko, detailing his treatment of Ms Majidi during her visit. He wrote to the effect that he had treated Ms Majidi on 17 March 2009 for acute pharyngitis and that she lost 10 kgs in 20 days. Ms Majidi denied that she was fully recovered in three weeks, and said it was more like four weeks.
38. Dr Iravani wrote that Ms Majidi lost 10 kgs in weight over three weeks because she had no one to look after her.
39. The Respondent did not dispute that this condition may have prevented Ms Majidi from travelling for the two or three week period while she recovered from pharyngitis.
40. I am not reasonably satisfied that this incident was a ‘serious illness’ or a ‘serious accident’, or that Ms Majidi required hospitalisation, such that she was prevented from returning to Australia within the 13 week period ending on 11 June 2009.

Head injury

41. The neighbours who lived upstairs had done some renovations which had damaged the ceiling of Ms Majidi’s mother’s kitchen, and the roof fell in and a beam fell on Ms Majidi’s head. She was in shock, was disoriented, and she fell to the floor. Her vision was affected and she had a ‘massive’ headache and she was disoriented. She also had a stomach ache and was vomiting. She went to the GP, Dr Koshniatniko, and was given an injection and some medication and told to go to the clinic or hospital for a CT scan of her head if she was still vomiting after four days. She also attended the psychiatrist again, because she had been used to seeing her psychiatrist in Australia fortnightly.
42. Dr Koshniatniko dates his treatment of Ms Majidi as 11 April 2009 and confirmed her complaints of severe headache, nausea and vomiting. Her head injury symptoms improved after two weeks. The SSAT recorded Ms Majidi saying: "After a couple of weeks she just had dizziness and headaches".
43. Dr Iravani wrote that he saw Ms Majidi on 14 April 2009 after the head injury of 11 April 2009. He wrote that this caused her a lot of pain and increased her psychological problems, but did not comment upon its effect, if any, on her ability to travel.
44. Apart from the treatment at the medical centre on the day of the accident, there is no record of Ms Majidi requiring hospitalisation as a result of her injuries. On her own evidence, her condition improved after a couple of weeks.
45. I am not reasonably satisfied that this incident was a ‘serious illness’ or a ‘serious accident’, or that Ms Majidi required hospitalisation, such that she was prevented from returning to Australia within the 13 week period ending on 11 June 2009.

‘Attack’ by mother

46. Ms Majidi described an event in which one night she awoke to find a ‘black form’ leaning over her and pressing a bunch of keys into her face. Then she was hit about the face and upper body with the keys. She then realised it was her mother dressed in a chador. Ms Majidi had minor cuts and was unable to move her left arm and her right leg. Ms Majidi gave evidence that the restricted movement in her arm resolved within about five days although her leg problem took another 10-12 days to resolve. She said she attended the GP who sent her back to the psychiatrist.
47. Dr Koshniatniko reported that on 17 April 2009 he treated Ms Majidi for Acute Stress Disorder: in the middle of the night she had experienced symptoms like muscular spasm in he left leg and arm and that he had referred her to the psychiatrist.
48. Dr Iravani reported that he had next seen Ms Majidi on 29 May 2009 after the attack by her mother and that this incident has also made Ms Majidi’s condition worse. He wrote that he saw her again on 6 June 2009 and prescribed additional and new medication.
49. Ms Majidi was recorded as having told the SSAT that this incident occurred in May 2009, whereas Dr Koshniatniko reported the incident occurred on 17 April 2009.
50. Dr Iravani reported seeing Ms Majidi on 29 May 2009 "after she had been attacked during her sleep by her mother who had been in a confused state." His report does not necessarily suggest he was consulted by Ms Majidi immediately after the incident.
51. Ms Majidi conceded that she had no independent recollection of dates and had reconstructed her recollection as to dates from the doctors’ notes. In my view, it is more likely than not that the incident occurred in April, as recorded by Dr Koshniatniko. In any event, I was not reasonably satisfied that this incident was a ‘serious illness’ or a ‘serious accident’, or that Ms Majidi required hospitalisation, such that she was prevented from returning to Australia within the 13 week period ending on 11 June 2009.

Food poisoning

52. Ms Majidi said that on 7 June 2009 the neighbours brought her some traditional food. That afternoon she had a severe stomach ache. She went to the GP who gave her several types of medication. She then had severe diarrhoea which continued to deteriorate over a couple of weeks. She went to another doctor and learned that the medication she had been given was to promote, rather than inhibit, bowel movements. She was given new medication and after two to three weeks her condition improved.
53. Dr Koshniatniko reported that on 7 June 2009 he had treated Ms Majidi for acute food poisoning.
54. Dr Iravani reported that on 7 June 2009 Ms Majidi suffered severe food poisoning which lasted for three weeks and resulted in further weight loss. It was unclear if Dr Iravani had in fact been consulted by Ms Majidi during that time.
55. Another medical report was produced, but was untranslated. Some of the information contained therein, including the date, was, in any event, indecipherable according to Ms Majidi. She said that she had seen the ‘first doctor’ (ie Dr Koshniatniko) on 7 June 2009 and the ‘second doctor’ two weeks later. It took another fortnight to feel better.
56. I was provided with information from the NSW Food Authority and Qantas, which did not assist in view of the fact that the Respondent did not dispute that Ms Majidi may have been unwell, and unable to travel by plane for a few days of the initial onset of food poisoning.
57. On the basis of the evidence of Dr Koshniatniko and Dr Iravani, I accept that Ms Majidi was ill with food poisoning from 7 June 2009 and that, for whatever reason, she remained unwell for about four weeks. While I accept that Ms Majidi suffered from food poisoning there was, in my view, no persuasive medical evidence that she was so unwell as to be unable to travel for more than a few days after its initial onset. I was therefore not reasonably satisfied that this incident was a ‘serious illness’, such that she was prevented from returning to Australia within the 13 week period ending on 11 June 2009.
58. In any event, and importantly, I observe that by the time Ms Majidi took ill she had made no plans to return to Australia. On her evidence, the advice she had received from the travel agent in Iran was to make contact about a fortnight before she wished to travel, and then attend the travel agent to pay the fee for changing her ticketing. As at 7 June 2009 when she took ill, Ms Majidi had not secured a return ticket, nor even commenced to make arrangements whatsoever in order to travel so as to arrive in Australia by 11 June 2009.
59. Even if this were to be regarded as a serious event, which I do not accept, it did not preclude Ms Majidi’s travel because, on her evidence, no travel was in fact planned.

Civil unrest

60. Ms Majidi said that Dr Iravani also advised her not to leave the house because of the ongoing civil unrest, but this does not appear in his report. Ms Majidi said there was ‘bloody fighting in the streets’. Ms MacDonald provided me with extracts from a United Kingdom news service dated 13 June 2009 in relation to violent street disturbances in Tehran following the election, which was held on 12 June 2009, according to Reuters. Ms Majidi said there was also rioting in the lead up to the election.
61. Civil unrest was only mentioned for the first time by Ms Majidi at the hearing before this Tribunal as having impacted upon Ms Majidi’s ability to return to Australia.
62. I observe that, by the date of the reported rioting, Ms Majidi should have already returned to Australia. Ms Majidi gave evidence that she was planning to have a driver take her to the travel agents – a distance of about 25 kms. There was no evidence that that travel was impeded by demonstrations or the like.
63. I was not reasonably satisfied that there was political or social unrest in Iran, such that Ms Majidi was prevented from returning to Australia within the 13 week period ending on 11 June 2009.

‘Cumulative effect’ of mishaps in 13 week period

64. I do not accept that Ms Majidi’s many mishaps can be added together, such that there cumulative effect amounted to a ‘serious accident’ or a ‘serious illness’. Section 1218C anticipates stand-alone events. Even if that were not the case, the evidence is that there was not a continuum of mishaps such that there was no time in the 13 week period that Ms Majidi was well enough to travel. That is to say, even if she were precluded from travel for some periods, on the evidence, she remained able to travel for several periods in those 13 weeks.
65. There was also a submission that the various events served to exacerbate Ms Majidi’s fragile mental state. I was informed by the Respondent’s representative that Ms Majidi’s psychiatric condition, which formed the basis on which she was granted disability support pension, attracted a rating of 20 impairment points under Table 6 at Sch 1B of the Act. I accept that her psychiatric condition, before her departure, was significant. She suffered some mishaps while overseas which may have exacerbated her condition. The medical evidence however, does not support a finding that while overseas she suffered an ongoing serious exacerbation of her already serious illness, such that she was prevented from returning to Australia within the 13 week period ending on 11 June 2009.
66. Ms Majidi said that sometime before 29 June 2009 Dr Iravani had told her she was not capable of managing travel because she would lose her luggage and miss connecting flights. Later in her evidence she said Dr Iravani advised her against travel some time before 1 June. She said that after the car accident Dr Iravani repeated his concerns about her ability to travel on 2 September 2009.
67. This, however, does not correspond with Dr Iravani’s report wherein he wrote that following her hospitalisation, he visited her at home on numerous occasions in July and August, at which stage he regarded her as unfit for travel. Dr Iravani wrote that when she consulted him at his office on 2 September 2009 he advised her against travel, but when she said she was returning to Australia for further treatment, it was at that time he recommended she contact the airline to request a wheelchair and assistance with her luggage.
68. Ms Majidi provided a medical certificate by Dr Chehelnabi dated 17 September 2009. Dr Chehelnabi recorded that Ms Majidi had travelled to Iran to visit her mother. He recorded that while there, Ms Majidi had ‘[a] few admissions to outpatient department of hospitals for panic attacks and severe depression and OCD, as well as in relation to the motor vehicle accident.

Car accident

69. Ms Majidi said that on 29 June 2009, because she felt better after her protracted bout of food poisoning, she arranged for a driver to take her to the travel agent’s with a view to arranging a return ticket – a distance of about 25 kms. En route she had a car accident and her head went through the windscreen. Her arms and legs were bandaged and she was hospitalised. The doctor at the hospital said she would receive superior treatment in Australia and recommended she return home.
70. Dr Koshniatniko reported that as a result of a car accident Ms Majidi had suffered trauma to the head, neck, arms and back. She was referred to an orthopaedic surgeon and after two weeks rest her symptoms improved.
71. Dr Iravani reported that Ms Majidi had been in a car accident and had suffered from severe head, neck, back, hand, arm and knee injuries and that she was admitted to hospital from 29 June 2009 until 11 July 2009.
72. In Re Krouskos and Secretary, Department of Employment and Workplace Relations [2006] AATA 989, the Tribunal, in referring to s 1218C(2) observed that the event referred to in subs (1) must occur or begin during a period of absence. The Tribunal there found, and I agree, that it must follow that in order for the portability period to be extended beyond the 13 week period, the event must have occurred during the portability period. If account was to be taken of an event that occurred outside the portability period, the portability period could not be extended within the meaning of s 1218C(2) for it would have already expired.
73. On the basis of the available evidence I am satisfied that the most serious incident which Ms Majidi faced while in Iran in 2009 was probably the car accident which occurred on 29 June 2009, and which caused her physical injuries which continued to require treatment after her return to Australia on 10 September 2009. However, the event which causes the person to be "unable to return to Australia" must occur within the initial 13 week portability period: per Krouskos. As Ms Majidi's car accident occurred after 11 June 2009, it cannot be considered when applying the discretion set out in s 1218C.

Contact with Centrelink and return travel plans

74. Ms Majidi agreed that she knew her pension would be cancelled if she did not return to Australia within 13 weeks. It was for that reason, she said, that she told Centrelink prior to her departure that she had a six month ticket, but that she intended to return within 13 weeks. She said her plan was to return to Australia a couple of weeks before 11 June 2009. She did not want to stay longer because her home (in Sydney) is prone to mildew if it is closed up for extended periods.
75. She said that she first contacted a travel agent in Iran on about 27 or 28 June 2009 with a view to arranging an earlier return ticket. She later said that it was only a couple of weeks after her arrival that she first enquired of the travel agent as to the procedure to be followed in changing the ticket. She said she was told that she needed to phone a couple of weeks before she wished to travel and then come into the travel agent’s to pay the transfer fee. Apart from that enquiry, there was no evidence whatsoever of her endeavouring to change her ticket at any time before 29 June 2009. She returned to Australia on 10 September 2009, the date of her original booked ticket.
76. She was recorded as having told the SSAT that she telephoned Centrelink on 1 June 2009. In her evidence before me she said that she attempted to contact Centrelink to seek an extension of the portability period on 4 June 2009. She said she had been really sick, and this was mainly a psychiatric problem. She recounted that she had only reached an answering machine and did not get to speak to someone until 7 or 9 June 2009, and advised she would not be back on 11 June. She said she did not realise the date because she had been sick for the entire period of her trip.
77. The sequence of events is broadly confirmed by Centrelink records, except the records show the first contact was on 15 June 2009, and the subsequent conversation was on 17 June 2009. In the Centrelink notes of that conversation there was no reference to food poisoning, and Ms Majidi said in her evidence that she did not know if she had discussed that. Her earlier evidence was that she had to terminate the call because of her diarrhoea. She was recorded as having said she had severe medical conditions and could not travel; she was unable to stand on her leg and was shortly to see a specialist. She also mentioned that her mother had Alzheimer’s and was very sick.
78. As previously noted, Ms Majidi does not have an independent recollection of events and has refreshed her memory from the doctors’ notes. For that reason I prefer the Centrelink records as to the dates of Ms Majidi’s contact. Having said that, I observe that it is not essential that a person whose circumstances change while overseas contacts Centrelink about those changed circumstances. The information provided at the time of contact may, however, assist in determining the events occurring to a social security beneficiary during their absence from Australia.
79. I find that there are no grounds for the exercise of the discretion in s 1218C of the Act in respect of Ms Majidi’s absence from Australia, as no event contemplated by that section occurred or began during her absence that prevented her from returning to Australia within 13 weeks.

DECISION

80. The decision under review is affirmed.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

Signed: ...............sgd........................................................

Casey Comans, Associate

Date of Hearing: 6 April 2011

Date of Decision: 10 May 2011

Appearance for the Applicant: Ms M Majidi (self-represented)

Representative for the Respondent: Mr B Slattery