C A T C H W O R D S
SOCIAL SECURITY - age pension - pension not payable while person absent from Australia - whether applicant's reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to or arrived in Australia - s.1220 Social Security Act 1991 (Cth) - no error of law - whether leave to appeal should be granted.
Social Security Act 1991 (Cth) - ss.1211, 1213, 1219, 1220
R.E. RUHL v THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY
No. G 192 of 1995
Davies J
Sydney
12 July 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G 192 of 1995
)
GENERAL DIVISION )
BETWEEN: R.E. RUHL
Applicant
AND: THE SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent
Coram: Davies J.
Date: 12 July 1995
Place: Sydney
REASONS FOR DECISION
This is an application for leave to extend time so as to permit the applicant, Ronald Ruhl, to appeal from a decision of the Administrative Appeals Tribunal made on 11 November 1994. The applicant is not present before the Court, being now resident in Colombia, but he has requested that the Court determine the matter on the documents.
Mr Ruhl was a resident of Australia between November 1953 and November 1974. He then left Australia. He returned to Australia again on 3 June 1993. On 20 June 1993 he applied for the aged pension which he was subsequently granted. He again left Australia on 20 July 1993 and has not returned since that time.
The basic principle with respect to the portability of pensions is that set out in s.1211 of the Social Security Act 1991 (Cth). Section 1211 provides:
"Social security benefits and additional family payments are not payable to a person who is outside Australia because presence in Australia is specified as an essential condition of qualification."
There are some exceptions to s.1211. Section 1213 (1) provides that a person's right to continue to be paid an age pension is not affected by the person's leaving Australia. This right is subject, however, to the provisions set out in ss.1218, 1219 and 1220. For present purposes, s.1220, which relates to persons having only a short stay in Australia, is relevant.
Section 1220(1) of the Act deals with the case where a person is an Australian resident, ceases to be an Australian resident, again becomes Australian resident, lodges a claim for a pension, the claim is lodged within 12 months after the person again became an Australian resident, the person leaves Australia before the end of that period of 12 months and there is no determination by the Secretary in respect of the person under subsection 1220(3). In Mr Ruhl's case, these circumstances all applied.
The effect of s.1220(1), is that a pension based on the claim made by Mr Ruhl for the age pension is not payable during any period during which he is outside Australia.
No determination was made under s.1220(3). Section 1220(3) permits the Secretary to determine that ss.1220(1) shall not apply to a person where the Secretary is satisfied that:
"...the person's reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to or arrived in Australia."
The Secretary's refusal to make such a determination was reviewed by the Administrative Appeals Tribunal and a decision was given on 11 November 1994 affirming the Secretary's decision. The Administrative Appeals Tribunal concluded on the material before it that it could not be satisfied that Mr Ruhl's reasons for leaving Australia before the end of the 12 months period arose from circumstances that could not be reasonably foreseen.
The Tribunal came to that conclusion for a number of reasons, but it is sufficient to state one of them, and that is that Mr Ruhl had come to Australia on an air ticket which entitled him to travel back to Colombia, the return air flight being undertaken within 3 months of arrival in Australia. Mr Ruhl returned to Colombia within that period. Accordingly, the Tribunal concluded that Mr Ruhl had, when he arrived in Australia, intended to return to South America within the 12 month period.
No
further material has been put before the Court which throws any doubt upon the
Tribunal's decision. Indeed, a statutory
declaration which was sent by facsimile to the Court, and which was made by Mr
Ruhl for the purposes of this
application, referred to his age and his advanced sickness because of heart
disease and it stated:
"Therefore, I cannot fulfil one's obligation to reside in Australia for one year or more."
That statement clearly confirms the point that the Administrative Appeals Tribunal made, that Mr Ruhl did not propose to reside in Australia for 12 months. In those circumstances, no purpose would be served by extending time within which to lodge the application.
The provisions of the statute are clear and, in a person of Mr Ruhl's circumstances, the statute does not permit payment of the age pension to him. For those reasons, the application will be dismissed.
I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.
Associate:
Date: 12 July 1995
Appearing for the respondent: L. Plater
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 12 July 1995
Date of judgment: 12 July 1995
