Moussa and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 459 (30 June 2011)

Last Updated: 22 July 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1514

GENERAL ADMINISTRATIVE DIVISION		)
	Re		NEHAD MOUSSA

Applicant

And

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

Respondent

DECISION ON THE PAPERS

Tribunal

Ms A F Cunningham (Senior Member)

Date 30 June 2011

Place Hobart

Decision

The decision under review is affirmed.

[Sgd Ms A F Cunningham]
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant left Australia to reside overseas – portability limited to 13 weeks – applicant suffering from depression - not considered to be terminally ill – decision under review affirmed

Social Security Act 1991, ss 1213, 1217(4), 1218AA, 1218C, Chapter 4

Explanatory Memorandum introduced 1 July 2004

Trepic v Secretary, Department of Family and Community Services [2005] AATA 710

Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983

Rodriguez and Secretary, Department of Families, Housing and Community Services [2010] AATA 448.

REASONS FOR DECISION

30 June 2011

Ms A F Cunningham (Senior Member)

1. A decision was made to suspend Mr Moussa’s disability support pension (DSP) from 18 October 2010 following his departure from Australia to travel to Egypt and the expiration of the 13 week portability period. The decision was affirmed by an authorised review officer and subsequently by the Social Security Appeals Tribunal on 4 March 2011. Mr Moussa seeks the review of that decision by the Administrative Appeals Tribunal.
2. An application for a stay of the respondent’s decision was refused by the Tribunal following a hearing on 24 May 2011. Directions were made that any further submissions or evidence be received by 14 June 2011 and that a decision of the application for review would be made on the basis of the material before the Tribunal without the need for a further hearing. No further submissions or evidence have been received.

THE ISSUES

3. The issues for the Tribunal to determine are:

(i) For what period DSP is portable following Mr Moussa’s departure from Australia on 19 July 2010;

(ii) Does Mr Moussa meet the criteria for extending the portability period?

BACKGROUND FACTS

4. The following facts are not in dispute:

1. Mr Moussa was granted DSP in June 2008.

2. Mr Moussa departed Australia on 19 July 2010 for Egypt with the intention of staying for at least six months. Mr Moussa has continued to reside in Egypt since that time.

3. Mr Moussa’s DSP was paid for a period of 13 weeks in accordance with the portability provisions in section 1217 of the Social Security Act 1991 (the Act) and suspended from 18 October 2010.

LEGISLATION

5. DSP is paid in accordance with the provisions of the Act. Any international agreement with the country of destination may modify the portability rules and may permit indefinite portability, otherwise not available under the Act. There is no international agreement in place with Egypt which means that the portability of Mr Moussa’s DSP is determined in accordance with the provisions of the Act.
6. The portability provisions for social security payments are contained in Chapter 4 of the Act and in particular Division 2 of Part 4.2 – Overseas Portabilities.
7. The portability rules were amended with effect from 1 July 2004. Section 1218AA introduced restrictions to the previously indefinite portability DSP payments for the severely disabled. The savings provision in Schedule 6, Clause 19 of the amending Act only applies to those people who were overseas on 1 July 2004, who had indefinite portability and who satisfied other requirements. This provision does not apply to the applicant’s circumstances.
8. The applicant satisfies the provisions of section 1213 in that he was receiving a social security payment immediately before his departure for Egypt.
9. The maximum portability periods for the types of social security payments are set out in a table contained within section 1217(4). The maximum portability period for a DSP is 13 weeks subject to the provisions of section 1218AA and section 1218, which does not apply in this case as the applicant was not undertaking full-time study.
10. Section 1218AA reads as follows:

“Extended portability period for disability support pension
(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection 23(14)); or
(ii) to return to the person’s country of origin.
(2) The Secretary may revoke the determination if any of the qualifying circumstances ceases to exist.
(3) If the Secretary revokes the determination, this Part has effect after the first time at which one of the qualifying circumstances does not exist as if the person’s maximum portability period for the pension were 13 weeks starting at that time”.

11. Section 1218C sets out the circumstances in which a person’s portability period may be extended and reads as follows:

“Extension of person’s portability period—general
(1) The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:
(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.
(2) The Secretary must not extend the person’s portability period under subsection (1) unless:
(a) the event occurred or began during the period of absence; and
(b) if the event is political or social unrest, industrial action or war—the person is not willingly involved in, or willingly participating in the event.
(3) If the Secretary extends a person’s portability period under subsection (1), the person’s portability period for the payment, for the purposes of this Part, is the extended period”.

EVIDENCE

12. It was Mr Moussa’s evidence that he understood that his DSP would continue to be paid for a period of 13 weeks following his departure from Australia. Mr Moussa explained that at the time of his departure he was severely depressed, suffering the effects of a recent divorce, the loss of his job and the death of his mother. Mr Moussa explained that he had lived in Australia for 25 years and regarded Australia as his home but decided to go to Egypt to spend time with his family.
13. In an email addressed to the Minister for Health, a copy of which Mr Moussa forwarded to the Tribunal, he states that he had been advised by his psychologist to see his family in Egypt and that he had been suffering from depression. In a letter from Dr David Morrell, Clinical and Forensic Psychologist dated 7 July 2010, it is stated Mr Moussa:

“... is extremely isolated and is suffering from significant psychological distress. Nehad reports that he has family in Egypt who he has not seen for some time, but they are available to support him if he was to travel to Egypt.
I recommend that Nehad be supported in his plans to return to Egypt for a period of approximately 6 months. This may allow him to develop a sense of connection that he has lost and it may have a benefit on his psychological state.
Nehad is aware that he is able to travel overseas for a three month period but an extension to this time may be of more value ...”

14. This letter was addressed to Mr Moussa’s general practitioner, Dr George Harris, who wrote on 19 July 2010 to Centrelink:

“Mr Nehad Moussa has significant personality disorder with feelings of isolation no connection. His plan to go to Egypt for six months to be with family is a recommended treatmentg. (sic) Request he is able to obtain his support pension for 6 months while he is overseas”.

15. In his evidence to the Tribunal Mr Moussa confirmed that it was his intention to travel to Egypt for at least six months and that he also understood that his DSP payments would continue for a period of 13 weeks but was hopeful that the period could be extended because of his circumstances. He explained that it is intention to return to Australia but that he does not have the funds at this stage to do so.

CONSIDERATION

16. The Explanatory Memorandum to the amending legislation introduced on 1 July 2004 states in part:

“Reducing portability period
This Bill reduces the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks. The new portability period will also apply to disability support pension although there will be capacity to grant an unlimited portability period to a severely disabled disability support pensioner in defined circumstances”.

17. The maximum portability period for DSP is 13 weeks as provided in section 1217 of the Act. The period may be extended if an applicant satisfies the qualifying circumstances of section 1218AA (sub-section 1). Each of those circumstances must be met in order for the discretion to extend the period to be exercised.
18. Mr Moussa contended that his depression constitutes a terminal illness because he has thought of suicide. The Tribunal however has rejected this contention on several occasions. (See Trepic v Secretary, Department of Family and Community Services [2005] AATA 710 where the Tribunal stated at paragraph 21 that significant depression was not a terminal illness). In Foster and Secretary, Department of Employment and Workplace Relations [2006] AATA 983 Senior Member Handley considered the term and said

"11.

The words "terminally ill" are not defined by the Act. The Social Security Guide refers to a life expectancy of 24 months or less as an aid to interpreting these words. Professor J H Maynard, a former member of this Tribunal – being a medical practitioner and pathologist – adopted the Shorter Oxford English Dictionary meaning of these words as "last stages of a fatal disease", (refer Re Toseska and Secretary, Department of Family and community Services [2005] AATA 386 at paragraph 20).

12.

I think that is an appropriate definition. The words "last stages" are referable to the word "terminal". The "fatal disease" is the "illness". Fortunately, these words do not apply to Mr Foster. It would appear that he has made a good recovery from his cerebral haemorrhage, although being left with limitations".

This passage was adopted by the Tribunal in Rodriguez and Secretary, Department of Families, Housing and Community Services [2010] AATA 448.

19. There is no medical evidence that suggests or indicates that Mr Moussa suffers from a terminal illness. It is accordingly my finding that he does not therefore satisfy one of the mandatory provisions of section 1218AA in order to qualify for an unlimited portability period for DSP. Nor does Mr Moussa satisfy sub-section 1218AA that his absence from Australia is permanent. When he departed Australia his intention was to stay in Egypt for six months and he has expressed a desire to return to Australia when his finances permit.
20. There was no evidence that any of the events listed in section 1218C are satisfied which would enable an extension of the portability period. Apart from his financial circumstances, there is no evidence that Mr Moussa is prevented from returning to Australia. There being no other provisions in the Act that permit the Tribunal to extend portability of Mr Moussa’s DSP after 13 weeks, the Tribunal accordingly affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed: R Hunt - Associate

Date/s of Hearing Hearing on the papers

Date of Decision 30 June 2011

Solicitor for the Respondent Mr B Sparkes, Program Litigation & Review

Branch, Centrelink