Tunc and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 8 (13 January 2011)

Last Updated: 13 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4488

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SERKAN TUNC

Applicant

And

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

Respondent

DECISION

Tribunal

G. D. Friedman, Senior Member

Date 13 January 2011

Place Melbourne

Decision

The Tribunal affirms the decision under review.

.................[signed]...................
Senior Member

SOCIAL SECURITY - portability of disability support pension - applicant remains overseas - whether applicant satisfies qualifying circumstances for extension beyond 13-week period

Social Security Act 1991 ss 1217, 1218AA, 1218, 1218A, 1218B, 1218C, 1218D

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

13 January 2011

G. D. Friedman, Senior Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 21 September 2010 to affirm the decision of a Centrelink authorised review officer (ARO) dated 12 July 2010 to cancel Mr Tunc’s disability support pension (DSP) from 12 June 2010 because he remained outside Australia beyond the allowable period of 13 weeks.
2. With the consent of the parties, the Tribunal decided to review the application without holding a hearing.

BACKGROUND

3. Mr Tunc was in receipt of DSP for drug dependence, Hepatitis C, (and psychological conditions) until 11 June 2010 when, after having travelled to Turkey on 13 March 2010, he reached the maximum portability period and his pension was cancelled.

ISSUE

4. The issue before the Tribunal is whether the maximum portability period can be extended beyond 13 weeks to allow Mr Tunc to remain in receipt of DSP while residing in Turkey.
   

EVIDENCE

5. It was claimed on behalf of Mr Tunc that there were exceptional circumstances for him not returning to Australia, and that it was important that he continue to receive DSP while residing in Turkey.
6. Mr Tunc’s sister, Ms Gunay, provided a letter to the Tribunal on 14 December 2010 outlining her brother’s special circumstances, namely that his life “...is at risk...”, that “...other innocent people are also at risk...”, and that “... [i]f he comes back ... he will use the money for drugs, but overseas he needs the money to support him and his family.” In that letter, she also indicated that Mr Tunc has an outstanding issue with the police and will be arrested upon his return to Australia. She states that he was unaware of this before he left the country. She says that he is not confident that he will “...stay away from drugs and be clean...” if he returns to Australia and this, and not the concern regarding the police, is the”...only reason why he doesn’t want to come back...”
7. Prior to leaving Australia on 13 March 2010, Mr Tunc did not inform Centrelink of his planned absence or possible return date. He has travelled before while in receipt of the DSP and has been made aware of the limitations on the portability of the payment on several occasions, most recently in August 2009.

CAN THE MAXIMUM PORTABILITY PERIOD BE EXTENDED?

8. The maximum portability period is determined under s 1217 of the Social Security Act 1991 (the Act) which states:
   1217. Meaning of maximum portability period, allowable absence and portability period

Meaning of maximum portability period

(1) The person’s maximum portability period for the payment is the period referred to in column 5 of the table at the end of this section (the table) that is applicable to:

(a) the payment (as specified in column 2 of the table); and

(b) the class of persons to which the person belongs (as specified in column 3 of the table).

...
Meaning of portability period if maximum portability period limited

(4) If the person’s maximum portability period for the payment is a period of weeks, the person’s portability period for the payment, in relation to the period of absence, is the period:

(a) beginning at the commencement of the period of absence; and

(b) ending at the earlier of the following times:

(i) the first time during the period of absence at which the absence is not an allowable absence in relation to the payment;

(ii) the end of the period of weeks that is the person’s maximum portability period for the payment.

Note: People will be required (under the Social Security (Administration) Act 1999) to notify changes in circumstance.

Portability of social security payments

Column 1	Column 2	Column 3	Column 4	Column 5
Item	Payment	Person	Absence	Maximum portability period
1	Age pension	All persons	Any absence	Unlimited period
3	Disability Support Pension	All persons	Any absence	13 weeks (but see also ss 1218AA and 1218)
122" valign="top"> 4 - 23	...	...	...	...

9. As a recipient of DSP, Mr Tunc’s maximum portability period, under s 1217 of the Act, is 13 weeks. However, that period is able to be extended, subject to the qualifications in sections 1218AA to 1218D of the Act.
10. Section 1218C is the only section relevant to Mr Tunc’s circumstances and provides for a number of events that would generally allow for extension of the portability period.

1218C 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.

11. Those events are qualified by s 1218C(2) which states:

(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.

12. In respect of s 1218(C)(2), as the condition or event Mr Tunc claims prevents him from returning to Australia (his drug use) did not occur or begin during his period of absence, he is unable to satisfy the requirements of s 1218C. This means that, as sections 1218AA, 1218A, 1218B and 1218D do not apply to his circumstances, there are no exception provisions in the Act that apply to Mr Tunc.
13. The Social Security (International Agreements) Act 1999 provides for portability of some payments to countries with which Australia has an agreement. Turkey is not currently among those countries.
14. As Mr Tunc does not meet the qualifying circumstances or exceptions in the Act, and the Act provides no discretion to extend the portability period in other circumstances, Mr Tunc’s DSP payments are subject to the normal portability period of 13 weeks as provided in s 1217 of the Act.
    

DECISION

15. The Tribunal affirms the decision under review.

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision of G.D. Friedman, Senior Member.

Signed: ........................ [signed]..........................................

Kate Conners Associate

Date of hearing: Not applicable: decision on the papers

Date of decision: 13 January 2011