Lost unlimited portability status, now what?!

[lucy]

Hi there!
Thankyou all for this board, it's invaluable to those of us trying to walk the morass of new legislation and rules!! Briefly, I had unlimited portability for several years, and lived overseas all of that time. I returned to Oz when my Gran was dying, but she kicked on for over 2 years, good ol' stick! During all of that time I had contacted Centrelink several times a year just to confirm that my unlimited portability was ok, and to let them know that I intended through all of that time to return overseas when my Gran passed, they answered 100% of the time that nothing would change unless I told them that I intended to stay in Oz permanently (btw I willingly passed up all family payments for my young daughter, pension card etc, as I was happy to be non-resident and return OS soon - these couple of years were extremely difficult financially, living in Oz with a child and no family tax etc) When Gran died, just over 2 years later, I made arrangements to return OS, only to be told my residency status had now changed, so that I could only go the 6 weeks (this despite at least 20 phone calls with Centrlink advising me I had nothing to worry about) Of course I appealed the decision, to no avail. I was told my only final recourse was the Ombudsman, or reapply under the new tables (I'm not sure I'd qualify, as I have several separate issues that may not add up under the one column!) I have the feeling that had I been able to afford legal representation I'd have won, but $$$$!!!
So.....here we are still in Australia, although all of my adult life was spent overseas, my whole support system etc is overseas.
My question is regarding current portabiloity rules - I understand that we can be paid 4 weeks, then stay away a further 13 unpaid weeks (totalling 17 weeks). Is this correct? AND, is the 4 / 17 week period counted from 1 Jan one year to 1 Jan the next, or, for example, is it calculated as 12 months from the first date OS (eg 12 July 2014 - 12 July 2015)
I'd be extremely grateful for any advice here, as I have walked a very steep learning curve with Centrelink that has left me severely wary of any advice they give!!
Thanks very much, greatly appreciated x

[Banjo]

That's an unfortunate result Lucy.
Did your appeal reach the Administrative Appeals Tribunal?

You're correct in saying that the paid portability period is now 4 weeks, a further 13 weeks unpaid is allowed in a 12 month period.
This will be counted from the day you leave next.

[lucy]

Thanks for that Banjo.....do you mean that the 12 months is counted from the date I leave? I'm asking because I thought maybe I'd have 4 weeks at the end of 2015 then 4 weeks beginning of 2016, so join them together, Dec thru Jan.....Yes I went to the AAT, absolutely no joy there.....they basically said that the misleading advice offered repeatedly by Centrelink officers in no way mitigated against the fact that 2 years continuously living in Aus demonstrated an intent to reside permanently in Aus (despite all evidence to the contrary, such as no permanent housing here in aus, etc etc) Overall it was an intimidating and awful experience dragged out over a year, but that's the way the cookie crumbles I guess! Now daughter's dad not allowed tourist visas back into Oz to visit our daughter, and we can't manage being OS, so another family devastatingly impacted by these decisions and legislation changes.....anyway, I'll wade through some of the other posts on this forum, and hopefully gauge whetehr it might be worth my while being assessed under the new tables....my faith in the system's just at a low point atm!!
Thanks again Banjo
Lucy

[Banjo]

There's a couple of others here that know more about the 4 week portability than me but I'd say no, you cannot take 4 weeks at the end of 2015 then 4 weeks in 2016... until the date you returned the previous year. (e.g. return Dec 30th 2015, leave again Dec 31 2016.)
I hope I'm wrong, maybe you could give Welfare Rights a ring.

[Deleted]

It seems Centrelink just reset the rules to apply from the new regs. My only suggestion is to re apply under the new tables.

[dougandkas]

Hi Lucy personally if I was you I would take my case to the Ombudsman appeal through him, show your evidence of calls, misled information, your residence status etc for your life os and your stated intention. Centrelink record many calls and if you can remember times and dates you can perhaps prove your intention was stated repeatedly. but I would take it to Ombudsman's,, good luck.

[nomadic]

Hi Lucy, once again your story infuriates me. If you have proof of what you say i think you would win appeals. My advice as I have said many times is to seek legal advice as I did.. Call the law institute in your state and ask for a list of pro bono lawyers who are experts in centrelink law. These lawyers will listen to your story and if one of them thinks you are being victimised like I was will take up your case for free if they think you can win. There are some really caring lawyers out there if you have the evidence. Seems like another case for the need for a royal commission. Centrelink really is on the nose and I feel your despair. But please do not give up hope. They are nothing but- You know i can't say it on a family forum. Good luck.

[immiadvice]

I personally think Lucy has no chance of winning an appeal. The legislation is sound. Two continuous years of living in Australia would be enough for residence requirements. Presumably you were grandfathered in 2004. Returning back to Australia will void the grandfathered legislation.

I'd ask them for back pay on family tax benefit and use that for the costs to get the spouse a resident visa. In the meantime get your medical records up to date and consider applying for unlimited portability.

[Denis-NFA]

Oct 19, 2015 21:28:34 GMT 7 immiadvice said:

I personally think Lucy has no chance of winning an appeal. The legislation is sound. Two continuous years of living in Australia would be enough for residence requirements. Presumably you were grandfathered in 2004. Returning back to Australia will void the grandfathered legislation.

I'd ask them for back pay on family tax benefit and use that for the costs to get the spouse a resident visa. In the meantime get your medical records up to date and consider applying for unlimited portability.

Good comment, particularly the back pay portion.

[nomadic]

I stand to be corrected immiadvice as C/L law is certainly for lawyers only. But surely if they tell you lies you would have some recourse. So I urge Lucy to still seek legal advice first up and then if you are correct to continue from there. Surely if they tell you that you are fine when you are not this is blatant lie and at least a moral crime is not a civil one. Or is it acceptable for them to lie to everybody as i suspect they do.

[immiadvice]

Nomadic, the problem here a we all know is that the centrelink representatives over the phone are not well versed in the legislation. I've long believed they will and do say anything just to get the customer off the phone.

In order for the courts to even consider Lucy has been misled by a centrelink employee she'd need to prove they gave her the wrong advice.

Did she have it in writing?

If she recorded her phone call did she notify the other party that she was recording? If not the evidence is inadmissible.

Sure centrelink will have logged the calls but most importantly not the content. If they have retained recordings of the content they'd most likely delete these at the commencement of legal proceedings before they could be subpoenaed if these recordings could prove them wrong.

If that is the avenue Lucy wants to go, no doubt she has already looked at this from their website.

www.humanservices.gov.au/customer/information/claiming-compensation-from-us

[nomadic]

C/l are suppose to put down on record all content of phone calls. whether they do or not is doubtful for sure but if not then this is just another reason for a royal commission. Also they should be versed in any information they gave her. Or are you saying they just say anything to get rid of her. Once again i say seek legal advice Lucy whether they know what they said or didn't know. If the system is as inept as Immiadvice suggests then they are totally corrupt and jail sentences are needed to right this wrong from the very top to the people telling the lies and i while i know they are liars 100% for sure i find it hard to believe they are total criminals. But as always i stand to be corrected. Just continue to fight them though Lucy ás they are certainly immoral..

[cringle98]

Where do I get legal advise in Qld so much distrust of anything centrelinked

[Banjo]

You need to contact Basic Rights Queensland.

Basic Rights Queensland Inc.

Contact Phone:
[phone]
1800 358 511
Contact Email:
[e-mail]
Website:
www.brq.org.au/
Fax:
[phone]
Hours of Operation:
Telephone advice sessions: Monday to Friday 9.30am to 4.00pm.

Or in the north.

Townsville Community Legal Service

Contact Phone:
[phone]
Contact Email:
[e-mail]
Website:
www.tcls.org.au
Fax:
[phone]
Hours of Operation:
Open to the public from 9.00am to 5.00pm Monday to Friday

I'd call the Brisbane office first.

[Denis-NFA]

Oct 20, 2015 18:53:35 GMT 7 immiadvice said:

In order for the courts to even consider Lucy has been misled by a centrelink employee she'd need to prove they gave her the wrong advice.

Did she have it in writing?

If she recorded her phone call did she notify the other party that she was recording? If not the evidence is inadmissible.

immiadvice

In regards recording conversations:-

If you have access to a computer and an internet connection then use the National Relay Service.

When you call C/L via this service the ordinary phone 'jockeys' will immediately pass the call up the line to someone that can actually answer your inquiry and their typed responses to your questions are available for you to download at the end of the call.

I still have saved every single call I made.