Post by Banjo on Nov 1, 2013 7:03:48 GMT 7
Chang and Secretary, Department of Social Services [2013] AATA 772 (30 October 2013)
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Nancy Chang is an Australian citizen. She currently resides in Taiwan. Ms Chang is seeking recognition of her entitlement to indefinite portability of her disability support pension (DSP).
The Tribunal is satisfied that it has jurisdiction in this matter. That is, there is a decision concerning the claim for unlimited portability of Ms Chang’s DSP, and that claim was reconsidered by an authorised review officer on 12 September 2013, and further reviewed by the Social Security Appeals Tribunal on 27 September 2013.
The matter was heard by conference telephone on 21 October 2013.
Background
Ms Chang acquired Australian citizenship on 17 September 2002. She subsequently left Australia on 4 February 2005 and was away for the next six years, returning again on 30 August 2011.
Over the next two years, Ms Chang moved in and out of Australia. She left again on 16 September 2011, returning some nine and a half months later on 31 July 2012, leaving three months later on 16 September 2012, and returning again after five months on 8 February 2013.
While in Australia in the latter part of 2012 and early 2013, Ms Chang applied for and, on 10 February 2013, was granted a disability support pension (DSP). On 25 May 2013, Ms Chang again left Australia.
On 9 May 2013, Ms Chang had a DSP portability medical review to assess whether she might be eligible for portability of her DSP based on the criteria in the Act.[1]
Legislation
The relevant legislation is the Social Security Act 1991 (Cth) (Act). Chapter 4 deals with international agreements and portability. Division 1 of that chapter is a preliminary provision and includes section 1211 which provides that where it applies the Social Security (International Agreements) Act 1999 (Cth) (International Agreements Act). overrides inconsistent provisions in chapter 4.[2] Division 2 deals with portability.
Issues
The issues are:
Whether Ms Chang is a ‘severely impaired disability support pensioner’ (Act section 1218AAA).
Whether Ms Chang continues to be eligible to receive DSP.
Consideration
Section 94 of the Act sets out the eligibility criteria for DSP. Since 1 July 2011, one of those criteria is that to qualify for DSP a person must be an Australian resident, except under the limited scope of the exceptions to this requirement in section 94 of the Act[3], the provisions of which do not apply to Ms Chang. On 16 January 2013, the Tribunal in a separate decision found that due to Ms Chang’s chequered residency history in Australia since 2005 she was no longer an ‘Australian resident’. [4]
Ms Chang had been injured as a result of a physical assault in Brisbane in 1997. The assault left her with chronic neck and low back injuries and related abdominal pain and migraines. She claimed that meant she could not work, and had led to her being effectively homeless for a considerable number of years.
Ms Chang submitted in the present application for review that in light of her severe level of disability and her long periods of homelessness, the Tribunal decision of 16 January 2013 should be overturned. For two reasons the Tribunal cannot accede to her request. In the first instance, that is not a matter for decision in this application for review. Second, the Tribunal is not able to reverse one of its own decisions. Overturning a Tribunal decision can only be achieved by an appeal or review by the Federal Court. Ms Chang has not appealed or sought review by the Federal Court of the January 2013 decision.
The current claim is whether Ms Chang, having been granted DSP on 10 February 2013, was entitled to continue to receive DSP even though she had left Australia. The provisions covering this possibility are found in Chapter 4 of the Act.
Section 1218AAA
From 1 July 2012, the Act provides that ‘recipients with a severe impairment and no future capacity to work are eligible for indefinite portability of their pension’. This statement is based on section 1218AAA of the Act which is headed: ‘Unlimited portability period for disability support pension – severely impaired disability support pensioner’. The Social Security Guide states: ‘DSP recipients applying for portability under the ‘severely impaired’ provisions are required to undergo an assessment of their impairment and their future work capacity’.
On 17 April 2013 Ms Chang underwent a review for deciding whether her DSP was to qualify for portability under s 1218AAA. The DSP Portability Medical Review report, dated 10 May 2013, found that Ms Chang was ‘severely impaired’, and that her symptoms attracted 20 points and were likely to continue beyond the next 5 years either unchanged or would deteriorate. Accordingly, she would have been eligible for portability of her DSP provided she met the other criteria in the relevant provisions of the Act.
In the meantime, on 25 May 2013 Ms Chang had left Australia for Taiwan and has not returned. On 3 June 2013, Ms Chang was advised by Centrelink that her payment of DSP had been suspended because she had left Australia within two years of her most recent return. Support for that advice is found in section 1220 of the Act also located in Chapter 4 of the Act.
That section provides among other things, that portability of a DSP ceases if ‘within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to ...(ii) a disability support pension’.[5] That provision applied to Ms Chang because she had again become an Australian resident when she returned to Australia on 8 February 2013 but because she had departed again on 25 May 2013, she had left Australia within two years of being granted the DSP. The decision not to pay Ms Chang DSP in accordance with section 1220 was reviewed and then affirmed by the Tribunal on 30 August 2013.[6] Ms Chang has not appealed or sought review of this decision by the Federal Court.
In a further letter from Centrelink on 21 June 2013, Ms Chang was advised that following the medical review for indefinite portability, she had qualified for indefinite portability as a person who is ‘severely disabled’ in terms of section 23(4B) of the Act. The letter went on to say, however, that as she had been assessed as a former resident under section 1220 of the Act, and she had departed Australia within two years of her most recent return, and she had not departed to ‘a country with which Australia has a Social Security Agreement’,[7] namely, Taiwan, she was no longer entitled to receive the DSP.
Ms Chang objected to that outcome because she said that if she had remained in Australia until 21 June 2013 she would have been granted indefinite portability and it is harsh to have denied her that benefit when her reasons for leaving related in part to her disabilities and her difficult living arrangements in Sydney at the time.
Ms Chang also claimed that she had not been advised that if she left the country her indefinite portability entitlement could be denied. In addition she said she was not advised that there were certain countries with Social Security Agreements with Australia where she could go without loss of her entitlement.
Ms Chang’s recollections on some of these issues are doubted. On 21 March 2013 Ms Chang had contacted Centrelink concerning portability, her entitlement to DSP, and to advise of change of address and accommodation. The record of interview noted that Ms Chang had an intention to leave Australia on 1 July 2013, and was planning to return between 30 September 2013 – 30 December 2013. At that stage Ms Chang is recorded as saying she did not know where she was going.
Information about the options available to Ms Chang appear in a Centrelink record dated 21 March 2013 The record noted that ‘CUS may not be trav 02/07/2103, the above was done to give CUS paperwork to consider options’. The advice was that as she had not spent 2 years in Australia, she would lose her entitlement to DSP and any other related entitlements.
Ms Chang made several telephone calls to Centrelink prior to her departure indicating her disagreement with the decision that she was no longer an Australian resident and that as she was permanently and severely disabled, she should be entitled to portability. She also said that she disagreed with the legislation and the policy behind the provisions supporting the decision.
On 22 May 2013, Ms Chang phoned Centrelink again to advise that she was intending to leave Australia, but on this occasions she said she was leaving in June 2013. She also asked when the decision about her indefinite portability would be granted. On that occasion she spoke with the Team Leader, Complex Portability Team, International Services, Centrelink. She claimed he had told her that if she left Australia she would still be entitled to DSP for six weeks and then a decision about her entitlement to indefinite portability would be made. In giving evidence before the Tribunal, the team leader denied that he said this to her.
Ms Chang’s reason for advising she needed to leave was that it was too cold in Sydney. In his evidence, the team leader noted that the conversation was a long one and canvassed warmer places Ms Chang might consider including Cairns and New Caledonia. The team leader’s evidence on file was: ‘CUS is planning on departing Australia in June. CUS advised she had been repatriated twice due to non-return tickets. I advised CUS strongly not to depart without a decision [on indefinite portability] in that case. Reached compromise with CUS that we would give a decision in the week commencing 17th June. CUS may depart overseas before then but will advise and provide contact details’. As it was a decision was first notified to Ms Chang on 3 June 2013.
Ms Chang’s evidence was that she had left Australia on a one way ticket because she had learned not to book return tickets since she had missed aeroplanes on numerous occasions. At the same time, she also indicated that as she had twice been repatriated to Australia by the Department of Foreign Affairs and Trade (DFAT), and still owed DFAT monies for those tickets, DFAT will not provide her with another return ticket. So she must have known that if she had insufficient funds for a return ticket, the Australian government was not going to repatriate her once again. This explained the team leader’s concern about her leaving on a one-way ticket.
Ms Chang had also agreed in that phone call that once she knew where she would be located she would advise of her change of address. Had she done so, she would have been advised as to whether her choice of destination was to a country with which Australia had a Social Security Agreement. As it transpired, Ms Chang said that on 24 May 2013 she had found on the internet a cheap ticket to Taiwan and had departed next day without notifying of her departure or her change of address.
Ms Chang argued that her disability meant she was incapable of organising her life and that this meant leniency should be extended to her for her precipitous action. The Tribunal does not accept this submission. Although Ms Chang has been found to be ‘severely disabled’, the evidence shows that she has a remarkable facility to navigate the internet, to obtain information by telephone and to make cogent submissions. She is also capable of contacting services such as Centrelink or legal aid even from overseas.
For these reasons the Tribunal finds that Ms Chang is capable of using the internet to check her social security entitlements and obligations, to read and understand letters and emails she receives from Centrelink, and to heed warnings and advice she received from time to time prior to her departure in May 2013. The Tribunal is satisfied that Ms Chang was strongly advised not to leave Australia prior to the decision on portability. She chose to ignore that advice.
At the hearing, the representative for the Secretary submitted that Ms Chang’s entitlement to DSP was barred by the terms of section 1218AAA of the Act. That provision states:
1218AAA(1) The Secretary may make a written determination 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 receiving disability support pension;
(b) (b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) The Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) The Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) ) within the next 5 years.
The representative for the Secretary said that there was no question that Ms Chang met the criteria in section 1218AAA(1)(b)-(d). However, because she had left Australia prematurely and her DSP has been suspended, she did not meet the terms of section 1218AAA(1)(a), that is, she is not a person ‘receiving disability support pension’.
Section 1218AAA(2) also provides that the Secretary may not grant unlimited portability under section 1218AAA(1) in relation to someone who is outside Australia unless the reason the person is not in Australia is either ‘a serious accident’ or the ‘hospitalisation’ of the person. The Tribunal is satisfied that Ms Chang does not come within either exception. Section 1218AAA(2) is an example of the limited scope of this provision. These two circumstances are the only exceptions to the strict conditions in section 1218AAA(1). The Secretary has no discretion to permit unlimited portability for other reasons.
The legislative restrictions on claiming unlimited portability is reinforced by section 1218AAA(3). This section provides that the Secretary may revoke a decision relating to unlimited portability if ‘any of the qualifying circumstances ceases to exist’ (emphasis added). This provision does give the Secretary discretion, but that discretion may only be applied to a person who has at some point qualified for unlimited portability but has since ceased to meet one or more of the qualifying criteria. It is only in those circumstances that the eligibility could be ‘revoked’.
As Ms Chang is ‘not receiving disability support pension’ she is not eligible for unlimited portability of her DSP under section 1218AAA. Ms Chang submitted that the Secretary should have discretion to waive this requirement in a case such as hers. The Tribunal cannot accede to this submission. Ms Chang has not been found to be entitled to unlimited portability at any time, the criteria for this entitlement are strict, and there is no discretion in relation to the initial finding of eligibility.
Section 1218AA
Unlimited portability is also provided for in section 1218AA which states:
1218AA(1) The Secretary may determine that a particular parson’s maximum portability period for disability support pension is an unlimited period, if all the 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.
Apart from the fact that Ms Chang cannot at present meet the criterion in section 1218AA(1)(b) as she is not ‘receiving disability support pension’, Ms Chang is also not able to show that although severely disabled, she is also ‘terminally ill’. Nor has she provided any evidence that her presence in Taiwan is ‘to be with or near a family member’ or to return to her country of origin. Ms Chang said her father lives in Taiwan, but her evidence was that they are not close. This means she is not able to satisfy the tests in that provision. Accordingly, she is not eligible for unlimited portability under section 1218AA.
Summary
The consequence of these findings is that until Ms Chang returns to Australia she is not entitled to DSP, and that unless, following her return, she returns to Australia for at least 2 years, she is not entitled to portability of her DSP, nor to unlimited portability. That means the decision under review is affirmed.
Ms Chang’s circumstances are unfortunate in that she cannot meet the statutory tests which would permit her to continue to receive DSP while living outside Australia. She has been advised that she can complain to the Ombudsman or appeal to the Federal Court as alternative avenues of investigation or review. The Tribunal is also aware that Ms Chang’s personal and financial circumstances are difficult. In that context, Centrelink has arranged for her to speak with a social worker and with legal aid in the event that they are able to assist with her immediate needs.
www.austlii.edu.au/au/cases/cth/aat/2013/772.html
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Nancy Chang is an Australian citizen. She currently resides in Taiwan. Ms Chang is seeking recognition of her entitlement to indefinite portability of her disability support pension (DSP).
The Tribunal is satisfied that it has jurisdiction in this matter. That is, there is a decision concerning the claim for unlimited portability of Ms Chang’s DSP, and that claim was reconsidered by an authorised review officer on 12 September 2013, and further reviewed by the Social Security Appeals Tribunal on 27 September 2013.
The matter was heard by conference telephone on 21 October 2013.
Background
Ms Chang acquired Australian citizenship on 17 September 2002. She subsequently left Australia on 4 February 2005 and was away for the next six years, returning again on 30 August 2011.
Over the next two years, Ms Chang moved in and out of Australia. She left again on 16 September 2011, returning some nine and a half months later on 31 July 2012, leaving three months later on 16 September 2012, and returning again after five months on 8 February 2013.
While in Australia in the latter part of 2012 and early 2013, Ms Chang applied for and, on 10 February 2013, was granted a disability support pension (DSP). On 25 May 2013, Ms Chang again left Australia.
On 9 May 2013, Ms Chang had a DSP portability medical review to assess whether she might be eligible for portability of her DSP based on the criteria in the Act.[1]
Legislation
The relevant legislation is the Social Security Act 1991 (Cth) (Act). Chapter 4 deals with international agreements and portability. Division 1 of that chapter is a preliminary provision and includes section 1211 which provides that where it applies the Social Security (International Agreements) Act 1999 (Cth) (International Agreements Act). overrides inconsistent provisions in chapter 4.[2] Division 2 deals with portability.
Issues
The issues are:
Whether Ms Chang is a ‘severely impaired disability support pensioner’ (Act section 1218AAA).
Whether Ms Chang continues to be eligible to receive DSP.
Consideration
Section 94 of the Act sets out the eligibility criteria for DSP. Since 1 July 2011, one of those criteria is that to qualify for DSP a person must be an Australian resident, except under the limited scope of the exceptions to this requirement in section 94 of the Act[3], the provisions of which do not apply to Ms Chang. On 16 January 2013, the Tribunal in a separate decision found that due to Ms Chang’s chequered residency history in Australia since 2005 she was no longer an ‘Australian resident’. [4]
Ms Chang had been injured as a result of a physical assault in Brisbane in 1997. The assault left her with chronic neck and low back injuries and related abdominal pain and migraines. She claimed that meant she could not work, and had led to her being effectively homeless for a considerable number of years.
Ms Chang submitted in the present application for review that in light of her severe level of disability and her long periods of homelessness, the Tribunal decision of 16 January 2013 should be overturned. For two reasons the Tribunal cannot accede to her request. In the first instance, that is not a matter for decision in this application for review. Second, the Tribunal is not able to reverse one of its own decisions. Overturning a Tribunal decision can only be achieved by an appeal or review by the Federal Court. Ms Chang has not appealed or sought review by the Federal Court of the January 2013 decision.
The current claim is whether Ms Chang, having been granted DSP on 10 February 2013, was entitled to continue to receive DSP even though she had left Australia. The provisions covering this possibility are found in Chapter 4 of the Act.
Section 1218AAA
From 1 July 2012, the Act provides that ‘recipients with a severe impairment and no future capacity to work are eligible for indefinite portability of their pension’. This statement is based on section 1218AAA of the Act which is headed: ‘Unlimited portability period for disability support pension – severely impaired disability support pensioner’. The Social Security Guide states: ‘DSP recipients applying for portability under the ‘severely impaired’ provisions are required to undergo an assessment of their impairment and their future work capacity’.
On 17 April 2013 Ms Chang underwent a review for deciding whether her DSP was to qualify for portability under s 1218AAA. The DSP Portability Medical Review report, dated 10 May 2013, found that Ms Chang was ‘severely impaired’, and that her symptoms attracted 20 points and were likely to continue beyond the next 5 years either unchanged or would deteriorate. Accordingly, she would have been eligible for portability of her DSP provided she met the other criteria in the relevant provisions of the Act.
In the meantime, on 25 May 2013 Ms Chang had left Australia for Taiwan and has not returned. On 3 June 2013, Ms Chang was advised by Centrelink that her payment of DSP had been suspended because she had left Australia within two years of her most recent return. Support for that advice is found in section 1220 of the Act also located in Chapter 4 of the Act.
That section provides among other things, that portability of a DSP ceases if ‘within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to ...(ii) a disability support pension’.[5] That provision applied to Ms Chang because she had again become an Australian resident when she returned to Australia on 8 February 2013 but because she had departed again on 25 May 2013, she had left Australia within two years of being granted the DSP. The decision not to pay Ms Chang DSP in accordance with section 1220 was reviewed and then affirmed by the Tribunal on 30 August 2013.[6] Ms Chang has not appealed or sought review of this decision by the Federal Court.
In a further letter from Centrelink on 21 June 2013, Ms Chang was advised that following the medical review for indefinite portability, she had qualified for indefinite portability as a person who is ‘severely disabled’ in terms of section 23(4B) of the Act. The letter went on to say, however, that as she had been assessed as a former resident under section 1220 of the Act, and she had departed Australia within two years of her most recent return, and she had not departed to ‘a country with which Australia has a Social Security Agreement’,[7] namely, Taiwan, she was no longer entitled to receive the DSP.
Ms Chang objected to that outcome because she said that if she had remained in Australia until 21 June 2013 she would have been granted indefinite portability and it is harsh to have denied her that benefit when her reasons for leaving related in part to her disabilities and her difficult living arrangements in Sydney at the time.
Ms Chang also claimed that she had not been advised that if she left the country her indefinite portability entitlement could be denied. In addition she said she was not advised that there were certain countries with Social Security Agreements with Australia where she could go without loss of her entitlement.
Ms Chang’s recollections on some of these issues are doubted. On 21 March 2013 Ms Chang had contacted Centrelink concerning portability, her entitlement to DSP, and to advise of change of address and accommodation. The record of interview noted that Ms Chang had an intention to leave Australia on 1 July 2013, and was planning to return between 30 September 2013 – 30 December 2013. At that stage Ms Chang is recorded as saying she did not know where she was going.
Information about the options available to Ms Chang appear in a Centrelink record dated 21 March 2013 The record noted that ‘CUS may not be trav 02/07/2103, the above was done to give CUS paperwork to consider options’. The advice was that as she had not spent 2 years in Australia, she would lose her entitlement to DSP and any other related entitlements.
Ms Chang made several telephone calls to Centrelink prior to her departure indicating her disagreement with the decision that she was no longer an Australian resident and that as she was permanently and severely disabled, she should be entitled to portability. She also said that she disagreed with the legislation and the policy behind the provisions supporting the decision.
On 22 May 2013, Ms Chang phoned Centrelink again to advise that she was intending to leave Australia, but on this occasions she said she was leaving in June 2013. She also asked when the decision about her indefinite portability would be granted. On that occasion she spoke with the Team Leader, Complex Portability Team, International Services, Centrelink. She claimed he had told her that if she left Australia she would still be entitled to DSP for six weeks and then a decision about her entitlement to indefinite portability would be made. In giving evidence before the Tribunal, the team leader denied that he said this to her.
Ms Chang’s reason for advising she needed to leave was that it was too cold in Sydney. In his evidence, the team leader noted that the conversation was a long one and canvassed warmer places Ms Chang might consider including Cairns and New Caledonia. The team leader’s evidence on file was: ‘CUS is planning on departing Australia in June. CUS advised she had been repatriated twice due to non-return tickets. I advised CUS strongly not to depart without a decision [on indefinite portability] in that case. Reached compromise with CUS that we would give a decision in the week commencing 17th June. CUS may depart overseas before then but will advise and provide contact details’. As it was a decision was first notified to Ms Chang on 3 June 2013.
Ms Chang’s evidence was that she had left Australia on a one way ticket because she had learned not to book return tickets since she had missed aeroplanes on numerous occasions. At the same time, she also indicated that as she had twice been repatriated to Australia by the Department of Foreign Affairs and Trade (DFAT), and still owed DFAT monies for those tickets, DFAT will not provide her with another return ticket. So she must have known that if she had insufficient funds for a return ticket, the Australian government was not going to repatriate her once again. This explained the team leader’s concern about her leaving on a one-way ticket.
Ms Chang had also agreed in that phone call that once she knew where she would be located she would advise of her change of address. Had she done so, she would have been advised as to whether her choice of destination was to a country with which Australia had a Social Security Agreement. As it transpired, Ms Chang said that on 24 May 2013 she had found on the internet a cheap ticket to Taiwan and had departed next day without notifying of her departure or her change of address.
Ms Chang argued that her disability meant she was incapable of organising her life and that this meant leniency should be extended to her for her precipitous action. The Tribunal does not accept this submission. Although Ms Chang has been found to be ‘severely disabled’, the evidence shows that she has a remarkable facility to navigate the internet, to obtain information by telephone and to make cogent submissions. She is also capable of contacting services such as Centrelink or legal aid even from overseas.
For these reasons the Tribunal finds that Ms Chang is capable of using the internet to check her social security entitlements and obligations, to read and understand letters and emails she receives from Centrelink, and to heed warnings and advice she received from time to time prior to her departure in May 2013. The Tribunal is satisfied that Ms Chang was strongly advised not to leave Australia prior to the decision on portability. She chose to ignore that advice.
At the hearing, the representative for the Secretary submitted that Ms Chang’s entitlement to DSP was barred by the terms of section 1218AAA of the Act. That provision states:
1218AAA(1) The Secretary may make a written determination 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 receiving disability support pension;
(b) (b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) The Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) The Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4) ) within the next 5 years.
The representative for the Secretary said that there was no question that Ms Chang met the criteria in section 1218AAA(1)(b)-(d). However, because she had left Australia prematurely and her DSP has been suspended, she did not meet the terms of section 1218AAA(1)(a), that is, she is not a person ‘receiving disability support pension’.
Section 1218AAA(2) also provides that the Secretary may not grant unlimited portability under section 1218AAA(1) in relation to someone who is outside Australia unless the reason the person is not in Australia is either ‘a serious accident’ or the ‘hospitalisation’ of the person. The Tribunal is satisfied that Ms Chang does not come within either exception. Section 1218AAA(2) is an example of the limited scope of this provision. These two circumstances are the only exceptions to the strict conditions in section 1218AAA(1). The Secretary has no discretion to permit unlimited portability for other reasons.
The legislative restrictions on claiming unlimited portability is reinforced by section 1218AAA(3). This section provides that the Secretary may revoke a decision relating to unlimited portability if ‘any of the qualifying circumstances ceases to exist’ (emphasis added). This provision does give the Secretary discretion, but that discretion may only be applied to a person who has at some point qualified for unlimited portability but has since ceased to meet one or more of the qualifying criteria. It is only in those circumstances that the eligibility could be ‘revoked’.
As Ms Chang is ‘not receiving disability support pension’ she is not eligible for unlimited portability of her DSP under section 1218AAA. Ms Chang submitted that the Secretary should have discretion to waive this requirement in a case such as hers. The Tribunal cannot accede to this submission. Ms Chang has not been found to be entitled to unlimited portability at any time, the criteria for this entitlement are strict, and there is no discretion in relation to the initial finding of eligibility.
Section 1218AA
Unlimited portability is also provided for in section 1218AA which states:
1218AA(1) The Secretary may determine that a particular parson’s maximum portability period for disability support pension is an unlimited period, if all the 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.
Apart from the fact that Ms Chang cannot at present meet the criterion in section 1218AA(1)(b) as she is not ‘receiving disability support pension’, Ms Chang is also not able to show that although severely disabled, she is also ‘terminally ill’. Nor has she provided any evidence that her presence in Taiwan is ‘to be with or near a family member’ or to return to her country of origin. Ms Chang said her father lives in Taiwan, but her evidence was that they are not close. This means she is not able to satisfy the tests in that provision. Accordingly, she is not eligible for unlimited portability under section 1218AA.
Summary
The consequence of these findings is that until Ms Chang returns to Australia she is not entitled to DSP, and that unless, following her return, she returns to Australia for at least 2 years, she is not entitled to portability of her DSP, nor to unlimited portability. That means the decision under review is affirmed.
Ms Chang’s circumstances are unfortunate in that she cannot meet the statutory tests which would permit her to continue to receive DSP while living outside Australia. She has been advised that she can complain to the Ombudsman or appeal to the Federal Court as alternative avenues of investigation or review. The Tribunal is also aware that Ms Chang’s personal and financial circumstances are difficult. In that context, Centrelink has arranged for her to speak with a social worker and with legal aid in the event that they are able to assist with her immediate needs.
www.austlii.edu.au/au/cases/cth/aat/2013/772.html
