FEDERAL COURT OF AUSTRALIA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (No 3) [2011] FCA 268

THE COURT ORDERS THAT:

1.    The appeal brought by amended notice of appeal dated 18 November 2010 be dismissed.

2.    The allegation in paragraph (a) of the notice of contention dated 9 December 2010 be upheld.

3.    The applicant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

introduction

1    The applicant, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“Department”), by an amended notice of appeal dated 18 November 2010, appeals pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from the decision of the Administrative Appeals Tribunal (“the Tribunal”) given 30 April 2010 at Melbourne (“the Tribunal’s reasons”), by which the Deputy President of the Tribunal affirmed the decision of the Social Security Appeals Tribunal that the respondent, Michael Mouratidis, is entitled to a continuation of the payment of his disability support pension from 29 March 2009.

2    The questions of law raised on the appeal are:

a.     Whether the Tribunal misinterpreted s.1218C of the Social Security Act 1991 by holding that there was a discretion to rely on an event as defined in sub-section (1) which occurred before the portability period referred to in sub-section (2) in order to extend the portability period;

b.    Whether the Tribunal erred in accepting that the deterioration of the Respondent's mother's condition constituted an "event" under section 1218C of the Act that could be used to extend the Respondent's portability period beginning 28 December 2008.

3    The grounds of the appeal are:

a.    That the Tribunal misinterpreted s.1218C of the Social Security Act 1991 by holding that there was a discretion to rely on an event as defined in sub-section (1) which occurred before the portability period referred to in sub-section (2) in order to extend the portability period;

b.    That the Tribunal erred in accepting that the deterioration of the Respondent's mother's condition constituted an "event" under section 1218C of the Act that could be used to extend the Respondent's portability period beginning 28 December 2008.

4    By a notice of contention dated 9 December 2010, the respondent contends that the Tribunal’s decision should be affirmed on the following grounds not relied on by the Tribunal:

(a)    On the facts of this case, the Tribunal should have made a finding that the September portability period should be extended and that the relevant event which occurred in that period was at 2 December 2008; or

(b)    On the facts of this case, the Tribunal should have made a finding having the effect of extending the December portability period on the basis that the relevant event during that period rendering Mouratidis unable to return to Australia was:

(i)    The occurrence of Sophia's [the respondent’s mother’s] serious illness on 5 January 2009 being the combination of age related dementia, a hip fracture and pneumonic consolidation; or

(ii)    the release from hospital of Sophia suffering from her serious illness on about 14 January 2009.

5    The appeal required consideration of the following principal questions:

(a)    Whether an appreciable deterioration in an existing illness can constitute the occurrence of a serious illness which is an ‘event’ within the meaning of s 1218C(1)(b) of the Social Security Act 1991 (Cth) (“the Act”), or whether, on the contrary, the term “event” in the relevant legislation requires a sudden and material change and a specific identifying incident rather than a condition or illness which came on gradually.

(b)    Whether an event which has occurred during the person’s absence from Australia cannot be relied on to extend the specified portability period under s 1218C(1)(c) if the person returns to Australia, albeit briefly, and then again travels overseas; or whether, on the contrary, any return to Australia automatically terminates the preceding portability period, so that on the person’s subsequent departure from Australia, a fresh portability period commences, the extension of which would require the occurrence of a new event.

6    In the present case, the respondent was in receipt of a disability support pension immediately prior to leaving Australia in September 2008 to visit Greece, where his elderly mother, already suffering from a number of health complaints, was residing. The portability period specified under s 1217 of the Act for the continued payment of the respondent’s benefit during his absence from Australia was 13 weeks, unless extended under s 1218C(1) of the Act. The Secretary’s discretion to grant an extension relevantly required that a serious illness of a family member occurred or began during the benefit holder’s absence from Australia.

7    The respondent notified the Department that his mother’s worsening condition prevented him from returning to Australia within the 13 week portability period. The Tribunal found (and it was not disputed) that the respondent gained the impression that an application for an extension would be unsuccessful and, in order to prevent the termination of payment of his benefit, immediately before the specified 13 week period expired, he returned to Australia for about 3 weeks. He then, on 28 December 2008, returned to Greece to care for his mother, exceeded the 13 week portability period commencing on the date of his departure, and has since remained there. The Tribunal found that the respondent’s mother’s illness appreciably deteriorated during his first absence from Australia, which amounted to the occurrence of an event, and that it would be harsh and unreasonable to rely on the respondent’s brief return to Australia in order to deny him the continued payment of the benefit to which he would be otherwise entitled.

Background and Evidence

8    The following undisputed facts were set out in the Tribunal’s reasons at [3] to [20]:

The respondent was born on 6 February 1949 in Greece and came to live in Australia with his family, which includes his mother, in approximately 1965.

In 1990 the respondent injured himself and was in receipt of a DSP [disability support pension] from about that time. For some period prior to 28 May 2008 he was also receiving a carer's pension to assist in looking after his mother.

On 23 May 2008 he accompanied his mother, who was then aged 90 years, on a return visit to Greece. He stated the reason for accompanying his mother was because she was old and frail. It was anticipated that the visit would be for a short period only.

The Tribunal accepts that the respondent returned to Australia on 22 August 2008 just prior to the expiration of the 13 week period permitted for DSP recipients to be outside Australia before payment of the benefit would ordinarily cease.

On this return to Australia the respondent notified the applicant that he intended to return to Greece on 12 September 2008 apparently planning to return to Australia on or by 12 December of that year. In a letter to the respondent dated 2 September 2008 the applicant advised him that his pension may be reduced or stopped, his carer's allowance and concession card would be cancelled if his return was delayed. The letter was silent as to whether, and if so in what circumstances, the respondent could apply to continue receiving the pension payment beyond the 13 week period.

The respondent returned to Greece on 12 September 2008.

On 30 October 2008 the respondent apparently telephoned the applicant seeking advice on the portability of his DSP. A Departmental note records that, "...the customer [the respondent] has been provided with advice only about a portability, and no decision has been made... ". The notes seems, but it is by no means clear, to indicate that an information package on portability was sent to the respondent. Among other things the record states:

"[Customer went] to Greece with his mother to [stay] with family, Mother has ALZ and wants to stay in Greece, Mother on age and can stay 26 wks and then go proportional (only has 33 mnths awlr). Customer states he needs to stay and look after her, but there is other family in Gr who is also taking care of her. I told customer that we would not grant an extension for him to stay and look after his mother because she wants to stay there. Customer said she has been in AU a long time and has the right to stay overseas longer. I told him about the legislation. Told customer that his mother has 26 weeks but he only has 13 weeks. He said other family are also looking after mother. No new medical event has occurred to prevent them from returning to au other than that mother wants to stay".

The record does not disclose that the respondent was given any verbal advice concerning portability other than his entitlement extends for a period of 13 weeks. There is no evidence noting the date any material may have been sent, the address to which it was sent or whether the respondent in fact received the information.

Dr V Toustsoglou, the Director of General Medicine at the Dramas General Hospital certified that as at 2 December 2008, the respondent's mother was suffering from "ALZHEIMER's Condition with Psychotic Syndrome" and that she needed assistance of a second carer and could not travel overseas.

On 9 December 2008 the respondent returned to Australia.

After the respondent's return to Australia, his mother was admitted to hospital on 16 December 2008 having broken her right hip. Dr D Evangelidis, an orthopaedic surgeon, certified her as also suffering age related dementia and pneumonic consolidation.

On 28 December 2008 the respondent returned to Greece.

On 12 January while still in hospital Dr E Patelaros, a psychiatrist, opined that the respondent's mother was suffering advanced dementia, was bedridden and incapable of caring for herself.

On 15 January 2009 the respondent's mother was discharged from hospital.

On 29 March 2009 the respondent's DSP was stopped.

At sometime prior to 16 July 2009 the respondent requested an extension of the time in which his DSP would continue to be paid beyond the 13 week period. On that day the applicant wrote to him refusing his request. The refusal was based on the fact that his mother was hospitalised prior to his departure from Australia.

The respondent was unsuccessful in having the refusal overturned after internal reconsideration.

The respondent successfully appealed to the SSAT which decided that his DSP pension should continue to be paid in the period following 29 March 2009.

A medical report from Dr G. Nanos-Domnidis, a neurologist who examined the respondent's mother, which the parties agree was issued on 23 November 2009, opines that she is suffering from the terminal stages of Alzheimer's disease”

Relevant Legislation

9    Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to this court, on a question of law, from any decision of the Tribunal in that proceeding.

10    Section 1213 of the Act provides:

Persons to whom Division applies

This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:

(a)    immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or

(b)    during the period of absence, the person’s claim for such a payment is granted under the Social Security (Administration) Act 1999.

11    Section 1215 of the Act provides:

Some payments generally portable with time limit

(1)    If the person’s maximum portability period for the payment is not an unlimited period, the following rules apply:

(a)    throughout the person’s portability period for the payment, the person’s right to continue to be paid the payment is not affected merely by the absence;

(b)    throughout so much (if any) of the period of absence as occurs after the end of the person’s portability period for the payment, the payment is not payable to the person.

(2)    This section is subject to Subdivision B of this Division (which contains exceptions) and section 1220.

12    Section 1217 of the Act provides:

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 allowable absence

(2)    The person’s absence is an allowable absence in relation to the payment at a particular time if, at that time:

(a)    it is an absence specified in column 4 of the item in the table at the end of this section that is applicable to the payment and the person; and

(b)    except where an unlimited absence is specified in column 5 of the item or a provision of Subdivision B of Division 2 of Part 4.2 applies, the absence does not exceed the period specified in column 5 of that item.

Meaning of portability period if unlimited maximum portability period

(3)    If the person’s maximum portability period for the payment is an unlimited period, the person’s portability period for the payment, in relation to the period of absence, is an unlimited period beginning at the commencement of the period of absence.

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.

13    Item 3 of the table at the end of s 1217 provides that the “maximum portability period” (subject to s 1218A and 1218 of the Act) for all persons on a disability support pension, on any absence, is 13 weeks.

14    Section 1218AA of the Act provides:

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.

15    Section 1218C of the Act provides:

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.

(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.

16    The current ss 1213, 1215, 1217 and 1218C were inserted into the Act by the Social Security and Veterans’ Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000 (Cth). The Explanatory Memorandum relevantly provides:

This Part amends the “international portability” provisions of the Social Security Act 1991 – that is, those provisions which deal with the rules for payment of social security payments when the customer leaves Australia temporarily.

…

At present, each payment has its own "international portability" rules, and while they are for the most part similar, there are many inconsistencies. These amendments will standardise those rules in a central area of the Act, with a standard maximum portability period of 26 weeks (in most cases), and will effect the necessary consequential amendments to remove the now-redundant provisions from the provisions relating to each payment.

New rules to be subject to maintaining qualification for the benefit

A key feature of the new rules is that presence in Australia per se is no longer to be required as a criterion for qualification for any of the payments (although all payments retain the requirement that a customer be an Australian resident). However, the facility for portability of the payment is subject to the customer remaining qualified for it. That is to say, the specific qualification requirements of the payment may effectively require a customer to remain in Australia in order to maintain qualification for the payment, and it is intended that this specific requirement should prevail over the more general provision relating to 26 weeks portability (see new section 1212E). This requirement is illustrated by the following examples.

…

New section 1218C of the Bill provides for extension of a person's portability period in the exceptional circumstance listed in that section (eg serious illness, natural disaster, etc). This facility is available in relation to all payments; …

…

New section 1213 - Persons to whom Division applies

This section is an application provision which provides that the Division applies to a person who leaves Australia, and was receiving a social security payment before he or she left (or, before leaving, had made a claim for a payment which was subsequently granted).

…

New section 1215 - Some payments generally portable with time limit

This section provides that a person ceases to have a right to payment after the expiry of that person's portability period - as to which see new section 1217.

….

New section 1217 - Meaning of maximum portability period, allowable absence, and portability period

This section sets out the meaning of maximum portability period, allowable absence and portability period for the purposes of ascertaining the portability available to a customer. This is established by reference to Column 5 of the Table contained in that section, having regard to the payment that person is receiving (Column 2), any conditions which apply to the person (Column 3), any conditions relating to the absences which are allowed in relation to both those matters (Column 4).

…

New section 1218C - Extension of person's portability period

This section provides a discretion for the Secretary to extend a person's portability period, where the person finds him or herself in any of the grievous circumstances listed in that section.

17    Section 1217 was amended and s 1218AA inserted into the Act by the Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 and Other Measures) Act 2003 (Cth). The Explanatory Memorandum to that Act relevantly provides:

Schedule 6 – Reducing portability period

Summary

Schedule 6 amends the Social Security Act to reduce the allowable period of temporary overseas absence for portable social security payments from 26 weeks to 13 weeks. The new portability period will apply to disability support pension (DSP) without distinction (under the current rules, severely disabled customers have unlimited portability for DSP) although there will be capacity to grant an unlimited portability period to a severely disabled disability support pensioner in defined circumstances.

The changes will not affect age pension and wife and widow B pension where the recipient is an ‘entitled person’. These payments will retain an unlimited maximum portability period.

…

Background

The rules relating to overseas portability of social security payments are set out in Part 4.2 of the Social Security Act. Certain pensions have indefinite portability - age pension, DSP for a severely disabled person, bereavement allowance and wife and widow B pension for an ‘entitled person’ (defined in section 1212 of the Social Security Act). All other portable social security payments have a maximum portability period of 26 weeks (some conditional upon meeting specified criteria). The table at the end of section 1217 of the Social Security Act sets out the various portable social security payments and specifies the maximum portability period that attaches to each relevant payment type and any conditions that attach to the portability period. There is capacity under section 1218C for a person’s portability period to be extended in prescribed circumstances.

These rules are amended to reduce to 13 weeks the maximum portability period for those social security payments that are currently portable for 26 weeks. The exception is DSP for a severely disabled person which currently has unlimited portability. Under the new rules, DSP will be portable for up to 13 weeks although there will be capacity to determine unlimited portability for severely disabled people with a terminal illness.

These amendments are intended to encourage people who are workforce age and on income support payments to remain in Australia and be available to contribute through employment or social participation.

…

Explanation of the changes

The table at the end of section 1217 of the Social Security Act sets out the portability arrangements for portable social security payments.

Item 12 repeals existing items 2 and 3 of the table and replaces them with a single portability period of 13 weeks for DSP.

However, item 15 then inserts new section 1218AA that provides the Secretary with the discretion to determine an unlimited maximum portability period for DSP if certain conditions are met.

These conditions are set out in new subsection 1218AA(1) and are satisfied if a person:

•    is a severely disabled person; and

•    is receiving DSP; and

•    has a terminal illness; and

•    is leaving Australia permanently to be with or near a family member of the person or to return to the person’s country of origin.

If a person has been granted unlimited portability for DSP under this new rule but, during the period of absence, ceases to meet one or more of the conditions set out above, then the person would become subject to the standard 13 week maximum portability period. The 13 week portability period would run from the day the person ceased to meet the relevant condition for unlimited portability. These revocation rules are in new subsections 1218AA(2) and (3).

…

The remaining amendments to the Social Security Act are consequential upon, or consistent with, the new portability periods set out in the table at the end of section 1217.

The tribunal’s Decision

18    In the present case, Deputy President McDonald affirmed the decision of the Social Security Appeals Tribunal to continue the payment of the respondent’s disability support pension from 29 March 2009 for an indefinite period. Having set out an account of the relevant facts, the Deputy President observed that the applicant, in reliance on Re Manolev and Secretary, Department of Family and Community Services (2005) 88 ALD 794 (“Manolev”), submitted that the event preventing the respondent’s return to Australia was his mother’s need for care, which did not occur during his absence from Australia. Rather, from November 2008, the condition of the respondent’s mother deteriorated only.

19    The respondent, in contrast, submitted that the words “unable to return” in s 1218C applied, on a proper construction, to a situation in which (although the pensionholder could physically return) the family member could not; and from 12 December 2008, the respondent’s mother was unable to return to Australia because she could not travel and required the assistance of two carers. Further, the event in s 1218C(2) was not limited to an emergency.

20    Before the Tribunal, the respondent also relied on the definition of “occur”, which included “to appear”, “to present” and “to take place”, submitting that the respondent’s mother’s condition began to be a continuing serious illness during his third visit to Greece.

21    The Deputy President considered the decisions in Manolev and Re Morched and Secretary, Department of Family and Community Services [2009] AATA 584 (“Morched”) (discussed below at paras 30 to 43).

22    He rejected the Manolev interpretation that when “the event” required by s 1218C was a serious illness, it must be a specific identifying incident and not something which came on gradually.

23    The Deputy President stated at [25]:

This Tribunal is unable to accept that limitation which does not appear in the words of the section and there is no reason to read down the words used. As is apparent from the terms of the section, the event must have “occurred” or “began” during the period of absence. For an illness to occur, this includes a condition manifesting itself. Among the meanings attributable to the verb “to occur” are “take place, befall, happen”, and it in this sense that the noun “event” in s 1218C(2) of the Act should be understood.

24    The Deputy President observed that although frail and aged, the respondent’s mother was fit to undertake the journey to Greece in May 2008, but by 2 December 2008 (while the respondent was still in Greece) her condition appreciably deteriorated and “[a]s at 2 December 2008…her condition had changed from one in which she was merely old and frail with Alzheimer’s disease to one in which she had become seriously ill as the result of that disease” (at [27]).

25    The Deputy President observed that on 16 December 2008 (which was about a week after the respondent again returned to Australia) his mother broke her hip, was then admitted to hospital for a time and subsequently discharged, but was certified as suffering from advanced dementia and being bedridden. The Deputy President observed that the respondent returned to Greece on 28 January 2009.

26    The Deputy President observed that after the respondent returned to Greece on 28 December 2008, his mother was admitted to hospital on 16 December 2008 after breaking her right hip, was certified by an orthopaedic surgeon as suffering from age related dementia and pneumonic consolidation, was diagnosed by a psychiatrist, Dr Pateloaros with advanced dementia and was discharged from hospital on 15 January 2009.

27    The Deputy President observed that the respondent’s two return journeys to Australia were made in order to secure the continuation of his pension payments, but he was nevertheless outside Australia in early December when his mother’s condition deteriorated and she became seriously ill.

28    It would, the Deputy President said, be harsh and unconscionable to rely on the respondent’s return to Australia between 9 December 2008 and 28 December 2008 in order to disqualify him from receiving a continued payment of the benefit to which he was otherwise entitled, given that:

(a)    it was unclear whether he had been advised of the circumstances which may give rise to approval of portability;

(b)    the subsequent medical evidence that his mother’s condition had worsened was forthcoming; and

(c)    he was advised that an application to have the extension of portability approved would not be successful.

29    The Deputy President observed that the respondent’s mother’s condition was terminal and the Act did not require any set term or limit to be imposed on the extension. The Deputy President concluded that “[f]or the above reasons, the Tribunal affirms the decision of the SSAT that the respondent is entitled to a continuation of the payment of his DSP from 29 March 2009”.

relevant case law

30    As appears from the reasons of the Deputy President, two decisions of the Tribunal considering s 1218C were particularly relevant to his decision.

31    In Manolev, the Tribunal upheld the decision refusing to extend the portability period for the applicant’s carer payment and the carer allowance that he received following his wife’s injury. The applicant’s stay in Bulgaria exceeded the specified portability period. He claimed that he and his wife could not return to Australia within the applicable 26 week portability period because his wife was very ill. After the portability period expired and the carer payment and allowance ceased, the applicant, while still in Bulgaria, again sought an extension on the basis of a medical condition he claimed he had developed, described as a phobia about enclosed spaces which prevented him from flying.

32    The Tribunal Member, P. Staer, on 4 May 2005 stated, in relation to the applicant’s wife’s illness (at [27]):

We have already concluded that [the wife] may have a serious illness but it is an illness which was present before they left Australia and, therefore, she is excluded on the basis of s 1218C(2)(a) — the event did not occur or begin during the period of absence.

33    In relation to the applicant’s illness, Member Staer stated (at [28]):

In [the applicant’s] case, the tribunal has to take note of what is meant by ‘a serious illness of the person’ and whether [the applicant’s] illnesses would qualify him under this category. The section speaks of ‘events’ and the tribunal believes this means a specific identifying incident and not something which came on gradually.

34    Member Staer referred to the Macquarie Dictionary definition of “serious”, including of “grave aspect”, “giving cause for apprehension” and “critical”. He also referred to the statement in the Explanatory Memorandum regarding s 1218, referred to above at para 16. Member Staer then stated (at [30]):

The tribunal would, from the above, come to the conclusion that the intention was that granting a discretionary extension for a serious illness was implying some specific unexpected event which has a limited timeframe and that its effect would be over in a short period of time and the person involved would be able to return to Australia.

35    Member Staer found that the applicant’s claimed illnesses were “rather vague without specific onset and without a specific end point” (at [31]) and there were no satisfactory answers to certain relevant questions asked by Centrelink (at [32]).

36    Member Staer concluded that “[t]he tribunal therefore finds that [the applicant’s] illnesses are not of the serious nature implied in the legislation and the explanatory memorandum of that legislation” (at [33]).

37    The Tribunal’s decision in Manolev depended, in my view, on its failure to find a serious illness in either the applicant or a family member, which began or occurred during his absence from Australia.

38    The member’s observations that the serious illness must be unexpected, have a limited timeframe, have only a short effect, must not come on gradually and must constitute a specific identifying incident were obiter dicta and, in my view, were unwarranted restrictions.

39    In the subsequent decision of Morched, the Tribunal Member, Dr D Campbell, adopted a different construction of s 1218C of the Act. Member Campbell set aside a decision under review refusing the applicant an extension of the portability period.

40    In Morched, the applicant, who was in receipt of a disability support pension, had a number of existing medical conditions prior to travelling from Australia to Lebanon. There was a considerable body of evidence as to his medical condition during his approximately six months’ stay in Lebanon. Although the applicant had placed no reliance on it in seeking an extension, there was also evidence of the illness and death of his sister during his absence from Australia.

41    Member Campbell concluded that the evidence did not establish that the applicant’s ill health occurring in August was a serious illness. He considered that rather, any illness suffered during the relevant period was a continuance of symptomatology arising from the applicant’s many preexisting chronic conditions. Member Campbell observed that “there is no evidence to suggest that there has been a particular deterioration in his chronic conditions, as evidenced by what he was prescribed, the absence of any hospitalisation or the need for supplementary care…” (at [19]).

42    In relation to the applicant’s sister’s illness and death, however, Member Campbell was satisfied that (at [25]):

the set of circumstances outlined in respect of his sister’s illness and death would constitute events which culminated during his period of absence and, from the point of view of a reasonable person, would have been significant in his inability to return to Australia.

43    On that basis, Member Campbell concluded that the applicant satisfied the requirements of s 1218C of the Act and granted an extension of the portability period.

grounds of appeal

GROUND (a)

44    The applicant’s first ground of appeal was:

That the Tribunal misinterpreted s. 1218C of the Social Security Act 1991 (“the Act”) by holding that there was a discretion to rely on an event as defined in subsection (1) which occurred before the portability period referred to in subsection (2) in order to extend the portability period.

The applicant’s submissions

45    The applicant alleged the following errors of law:

1.    The Tribunal erred by paraphrasing the statutory formula.

2.    The Tribunal granted an extension of a portability period of 13 weeks beginning on 28 December 2008 (given that the respondent returned to Greece on that date) and expiring (in the normal course) on 29 March 2009.

3.    The respondent’s return to Australia on 9 December 2009, in the absence of an extension pursuant to s 1218C, ensured that a fresh 13 week portability period commenced on 28 December 2009 when he returned to Greece.

4.    The Tribunal therefore erred in law, as it misconceived and misinterpreted the operation of s 1218C of the Act by treating the portability period which commenced on 12 September 2009 as continuing uninterrupted to March 2009 and beyond.

5.    The Tribunal erred in exercising a discretion that is not permitted under the Act to extend the payment of the disability support pension from 29 March 2009, as it would be harsh and unreasonable if his return to Australia disqualified him from a benefit to which he was otherwise entitled.

6.    The Secretary is unable, and has no discretion, to extend the portability period where the event had not occurred or begun during the period of absence (namely, 28 December 2008 to 28 March 2009).

7.    The Tribunal erred in its interpretation of the provision by ignoring the words “during the period of absence” (emphasis added). In this case, the “event” was the deterioration that occurred in early December when the respondent was outside Australia during the portability period which began on 12 September 2008 and ended on 9 December 2008. The applicant submitted:

[T]he Tribunal erred when it then introduced a concept of it being "harsh and unreasonable if his return to Australia for the period between 9 December and 28 December 2008 ... should act to disqualify him from receipt of the benefit" when the Respondent later returned to Greece on 28 December 2008 and remained overseas beyond the new portability period of 28 December 2008 to 28 March 2009. The statute does not make any allowance for that concept or for an exception but rather refers to an event occurring or beginning "during the period of absence.

8.    The only relevant event in this case was the respondent’s mother’s Alzheimer’s disease or dementia, which did not occur or begin during the absence from Australia (an absence which commenced only on 28 December 2008).

The respondent’s submissions

46    The respondent submitted that:

7.    Under s151 of the Social Security (Administration) Act 1999 the SSAT may exercise all the powers and discretions conferred by the social security law on the Secretary.

8.    Under s1218C of the Act the Secretary may extend a person's portability period in certain circumstances. Under section 3A of the Act the Secretary has broad decision making powers:

"Power of Secretary to make determinations etc.

If:

(a)    a provision of this Act refers to a determination made, approval given or other act done by the Secretary; and

(b)    there is no other provision of this Act expressly conferring power on the Secretary to make the determination, give the approval or do the act;

the Secretary has power by this section to make such a determination, such an approval or do such an act, as the case requires. "

9.    The Secretary's discretion is therefore not limited other than by the provisions of s1218C(2). In R v Australian Broadcasting Tribunal; Ex Parte 2HD Pty Ltd (1979) 144 CLR 45, the High Court discussed the proper approach to statutory interpretation of legislative discretions. The court stated:

"The general rule is that a discretion expressed without any qualification is unconfined except so far as it is affected by limitations to be derived from the context and scope and purpose of the statute.”

10.    Likewise, in R v Ford [1945] SASR 118 Mayo J said at 121:

"It is a well-known principle that where a discretion is given in the widest language, there is no justification for being at pains to interpolate some artificial limit not implicit anywhere in the context."

11.    The discretion afforded to the Secretary is expressly limited according to the terms of s1218C(2). For this reason, the limitations included in s1218C(2) should be read as exhaustive. The discretion to extend a Portability Period is not in any way otherwise limited by the provision or the Act. There is therefore no basis for preventing the Secretary from extending the September portability period merely because the application for extension:

(a)    was not made in a timely manner; or

(b)    was subsequently followed by another portability period.

12.    There is no reason to read down the powers of the Secretary. It is submitted that had there been an intention to limit the time or manner by which a Portability Period extension may be granted, the Act would have said so expressly. In several other situations envisaged by the Act, the Act requires that payment applications must be lodged according to specified times and/or processes. These provision are:

(a)    section 198N4 (c);

(b)    section 92G;

(c)    section 1061D;

(d)    section 1185AA;

(e)    section 1185P; and

(f)    section 598.

13.    Further, under s126(2) of the Social Security (Administration) Act 1999 the Secretary may review a decision whether or not a person has applied for review of the decision. The Tribunal could thus retrospectively extend the September or December portability periods regardless of whether any application for review was made during the relevant period.

Discussion

47    Section 1218C provides that the Secretary may extend the portability period only if the following preconditions are satisfied:

(a)    The Secretary is satisfied that the person is unable to return to Australia.

(b)    The inability to return is because of an event specified in (a) to (k) of s 1218C(1).

(c)    The event began or occurred during the period of absence and, where the event is political or social unrest, industrial action or war, the person’s involvement or participation is unwilling.

48    It was not disputed that the Tribunal has no discretion to dispense with the satisfaction of any of the above statutory preconditions of its discretion to extend the portability period.

49    So to say does not, however, determine whether, as the applicant contends, the following additional limitations (exposed by the facts of the present appeal) apply by necessary implication to the existence of the discretion, viz:

(a)    The portability period the potential subject of extension under subs (1) and the period of absence referred to in subs (3) both automatically terminate upon the person’s return from abroad to Australia (irrespective of the length or purpose of the return) and, should the person then again depart Australia, a fresh portability period and a fresh period of absence commence.

(b)    On a person’s return to Australia before a portability period has been extended, the discretion to extend it under s 1218C(1) terminates, although the statutory conditions were satisfied for the existence and favourable exercise of the discretion; and, if the person subsequently leaves Australia again, a second portability period commences which may be extended only if, inter alia, a new event begins or occurs in the associated period of absence.

(c)    If a portability period has been already extended under s 1218C(1), the person’s return to Australia immediately terminates the extension, as such a return, whatever its length and purpose, is incompatible with the fundamental requirement of inability to return to Australia, on which the power to extend the portability period is predicated.

Portability period extended by the Tribunal

50    In the present case, the Tribunal did not expressly state that it extended a portability period and did not identify, by reference to particular dates, the portability period it extended. Rather, it affirmed the decision of the SSAT that the respondent was entitled to a continuation of the payment of the disability support pension from 29 March 2009.

51    There are two possible portability periods the subject of the extension. The first is a portability period commencing on 12 September 2008. The second is a portability period commencing on 28 December 2008. While the respondent returned to Australia on 9 December 2008, prior to the expiration of the 13 week period commencing on 12 September 2008, and hence, on one view, did not require an extension of that portability period, it was during his absence within that 13 week period that the Tribunal unambiguously located the occurrence, as at 2 December 2008, of an event which satisfied the statutory precondition for the existence of the discretion (namely, the appreciable deterioration of the respondent’s mother’s illness to the point where it became serious, as certified on 2 December 2008). If, on the other hand, the respondent’s return to Australia on 9 December 2008 and arrival in Greece on 28 December 2008 initiated a new portability period and a new period of absence, the 13 week portability period expired on 29 March 2009, yet the only circumstances relevant to an extension identified by the Tribunal within that period of absence was the mother’s diagnosis on 12 January 2008 and discharge from hospital on 15 January 2009. The Tribunal did not identify those circumstances as an event, although the respondent, in the Notice of Contention, alleges that such a finding could and should have been made.

52    The respondent submitted, correctly in my view, that on the better construction, the Tribunal extended the portability period commencing on 12 September 2008 but failed to make an express finding to that effect. On the better reading of the reasons, the Tribunal extended the portability period commencing on 12 September 2008, in which it identified the occurrence of an event within the meaning of s 1218(1) during the respondent’s absence from Australia. It treated the respondent’s short return to Australia (prior to the expiration of the portability period commencing on 12 September 2008) as potentially relevant to the exercise, rather than the existence, of the discretion.

53    On that construction of the Tribunal’s reasons, the respondent’s return to Australia on 9 December 2008 would not constitute an impediment to the existence of the discretion unless, as the applicant contended, the Act imposes a temporal scheme where (in the context of extensions of the portability periods specified in the Act) any return to Australia extinguishes the discretion to extend, and terminates an extension already granted of, a portability period specified in s 1217 of the Act even if, during the respondent’s absence from Australia, the criteria for an extension were satisfied.

Does returning to Australia extinguish the portability period?

54    Under Ground (a), the central question is thus whether, under s 1218C, an absence from Australia punctuated by a brief return to Australia mandates a temporal division into separate portability periods and the allocation of separate “periods of absence” to each, precluding reliance on an event which occurred in the earlier period to extend the latter; or whether, on the contrary, the section permits the Tribunal to treat the earlier period in which the qualifying event occurred during the party’s absence as the period to be extended.

55    Section 1213 provides that Part 4.2 of the Act applies to a person during a period (“the period of absence”) throughout which the person is “continuously absent from Australia” if, immediately before the period of absence, the person was receiving a social security payment.

56    The word “continuously” is neither defined in the Act nor discussed in the Explanatory Memorandum, and no particular minimum time for the period of absence is specified. As I raised the question only in the course of the hearing, the parties made no detailed submissions on the implications of s 1213, nor on the meaning of “continuously absent”. Neither party suggested, however, that the respondent’s absence from Australia in Greece from 12 September to 9 December was not “continuous” in the sense necessary to attract the application of the Part. A brief examination of authorities in which the meaning of the term “continuously” has been considered indicates that the meaning of the word may vary according to the statutory context in which it appears. “Continuously” is not, in every case, construed literally to denote absolute continuity and may, in some contexts, apply despite a temporary break or interruption within a given period. See, for example, Turner v American Metal Co. Limited 36 N.Y.S. 2d 356 at 384 (1944); and Stroud’s Judicial Dictionary of Words and Phrases (2006) at 536-538, citing, inter alia, Frank v Frank [1951] P. 430, Swymer v Swymer [1955] P. 11 and Wyatt v Wyatt [1954] P. 26.

57    Such analyses raise the possibility that a person could be “continuously absent” from Australia within the meaning of s 1213 despite a temporary irregular return. I heard no submissions on that question however, and in the present context, it suffices to observe that s 1213 does not pose an insuperable impediment to the construction of s 1218C I have adopted.

58    Section 1214 of the Act provides that some payments are generally portable with no time limit, while s 1215 of the Act provides, essentially, that some persons have payments with a limited maximum portability period.

59    Section 1215 provides that if the maximum portability period is not unlimited, throughout the portability period for the payment the person’s right to be paid the payment is not affected merely by the absence, but the payment is not payable through so much of any of the period of absence as occurs after the end of the person’s portability period for the payment.

60    The meanings of the terms “maximum portability period”, “allowable absence”, “portability period if unlimited maximum portability period” and “portability period if maximum portability period limited” are set out in subs 1217(1) to (4).

61    A person’s maximum portability period for the payment and allowable absence in relation to the payment at a particular time is defined by reference to a table set out in s 1217.

62    Item 4 of the table indicates that all persons receiving a disability support pension have a maximum portability period of 13 weeks, with the rider “(but see also ss 1218AA and 1218)”. It indicates that an allowable absence for the disability support pension is an absence that does not exceed 13 weeks at a particular time.

63    Section 1217 defines the portability period for a person with a maximum portability period for the payment of a period of weeks, as a period beginning at the commencement of the period of absence, and ending at the earlier of either the first time during the period of absence that is not an allowable absence or the end of the period of weeks that is the person’s maximum portability period for the payment.

64    When that definition is applied to the facts of this case, the respondent’s first relevant portability period commenced on 12 September 2008 and prima facie ended at 9 December 2008 (which was earlier than the first time that the absence was not an allowable absence).

65    Section 1218C, however, entitled “Extension of person’s portability period – general”, provides that the Secretary may extend the person’s portability period in the specified circumstances and, by subs (3), provides that if the Secretary extends the person’s portability period under subs (1), the person’s portability period for the payment for the purposes of the Part is the extended period. The portability periods for the various types of pension specified in s 1217 are therefore subject to alteration by an extension, if granted.

66    Section 1218C does not, in terms, prohibit the extension of the specified portability period either before or after it has expired, after a person has returned to Australia or if it has already been exceeded. In contrast to some other provisions of the Act, it does not stipulate that an application for extension of the portability period must be made (or granted) within any particular time.

67    Section 1218C is a remedial provision and should be liberally construed. Subsection (3) expressly establishes a circumstance which will preclude the existence of the discretion and its other preconditions are clearly stated. The Court should be slow to imply an additional precondition. The applicant did not dispute that an extension can be made under s 1218C(1) before or after the expiration of the specified portability, and after the respondent had returned to Australia. That conclusion is also consistent with Manolev, where the applicant’s return to Australia after he had exceeded the portability period (which expired during his absence) did not preclude the extension of the relevant portability period. Nor, in the present case, did the applicant challenge the Tribunal’s observation that no time limit applied to an extension.

68    The present case differs from Manolev, in that the respondent physically returned to Australia after his absence from Australia to which a 13 week portability period applied (during which, on a fair reading of its reasons, the Tribunal considered that an “event” occurred). After about three weeks, the respondent again departed Australia for Greece where he remained, thus exceeding the 13 week portability period.

69    It was not disputed that the 13 week portability period commencing on 12 September 2008 could have been extended for an indefinite period after its expiration (provided that the conditions of s 1218C were otherwise satisfied).

70    In my opinion, the respondent’s return to Australia on 9 December 2008 did not exclude the discretion to extend the portability period commencing on 12 September 2008.

71    Although the definition of the portability period in s 1217 depends on the commencement of the period of absence and the two concepts are closely related, they are not neither interchangeable nor necessarily coterminous. The period of absence may be shorter or longer than the portability period specified in s 1217.

72    The portability period specified in s 1217 delimits the term during which the person’s payment will continue to be paid despite his or her continuous absence from Australia. Section 1218C does not provide that an event must begin or occur within the portability period (whether the 13 week period specified in s 1217, or the period as extended). Rather, it specifies that the event must occur during the period of absence.

73    “The period of absence” is defined in s 1213 as a period “throughout which the person is continuously absent from Australia immediately before which the person was receiving a social security payment” (I have referred to judicial construction of the word “continuously” above). It is clear from, inter alia, s 1217 that the portability period there specified (which can be extended under s 1218C) commences at the same time as the period of absence.

74    In my view, provided that a relevant event which causes the person’s inability to return to Australia begins or occurs during the period of absence, the discretion under s 1218C to extend the portability period which commenced at the same time as the period of absence will arise. The extension may be made before or after the portability period specified in s 1217 has expired. The portability period as extended prevails over any other delimitation or sequence of separate portability periods that would otherwise apply.

75    Further, in my opinion (consistently with the view that the inability to return to Australia is not limited to a physical impossibility or incapacity), a person’s temporary return to Australia after the commencement of a period of absence during which an event occurred neither automatically terminates an extension already granted nor precludes the retrospective extension of the portability period which commenced on the date of the relevant period of absence.

76    In some cases, a return to Australia after the occurrence of an otherwise qualifying event might constitute strong evidence that it did not cause an inability to return to Australia in the requisite sense. In my view, however, a transient return to Australia, as occurred in this case, would go to the exercise, rather than the existence, of the discretion.

77    The applicant directed me to s 1218AA for guidance as to whether, by analogy, a return to Australia would automatically terminate an extension of a portability period under s 1218C. Section 1218AA (which applies only where, inter alia, the person has a severe disability and a terminal illness) permits the Secretary to determine that the maximum portability period is unlimited but, by subs (2), provides that the Secretary may revoke the determination if any of the qualifying circumstances cease to exist.

78    Section 1218AA applies only in the narrow circumstances specified. It concerns a determination that a period is unlimited, rather than a discretion to extend it. In so far as s 1218AA provides any guidance for the construction of s 1218C, it suggests that an extension under that section would not automatically terminate, because under s 1218AA a decision to revoke is required and the revocation does not take immediate effect.

79    In my opinion, ground (a) of the notice of appeal is not made out and Question (a) in the amended notice of appeal should be answered in the negative.

GROUND (b)

80    Ground (b) in the Amended Notice of Appeal alleges:

That the Tribunal erred in accepting that the deterioration of the Respondent’s mother’s condition constituted an “event” under section 1218C of the Act that could be used to extend the Respondent’s portability period beginning 28 December 2008.

The applicant’s submissions

81    The applicant submitted that:

1.    The Tribunal erred in law by introducing a concept of appreciable deterioration not contemplated by the legislation. It effectively extended the meaning of “event” to include a gradual deterioration, instead of applying its ordinary meaning, including: “something that happens or is thought of as happening, an occurrence; an incident, now especially one that is significant or noteworthy”.

2.    When the word “event” was taken in context with the words “occurred or began during the period of absence”, it was clear that it could not include a deterioration, which is a gradual process and not an event. An event “requires a significant or sudden material change in a person’s circumstances that prevents a person from returning to Australia within the portability period”. Therefore, the deterioration of an illness which occurred or began during the period of absence was not an event which occurred or began within the meaning of s 1218C.

3.    The Tribunal erred in rejecting the reasoning in Manolev, which correctly interpreted “event” to mean a specific identifying incident, which does not cover deterioration of a condition or an illness which came on gradually.

4.    The Tribunal erroneously relied on Morched, which was wrongly decided.

5.    Although an event may include a manifestation of a serious condition or disease which occurs during the relevant portability period, in the present case, there was no such event, and “s 1218C does not take into account when the respondent became aware of his mother’s condition”.

The respondent’s submissions

82    The respondent submitted that:

(d)    The Tribunal did not err in law, but rather, correctly interpreted s 1218C.

(e)    The ordinary dictionary meanings of “event” and “occurs” and the clear use of “occurs” as an alternative to “begin”, indicated that the discretion was intended to apply to serious illnesses which became manifest or presented themselves during the portability period.

(f)    Further, such a construction was necessary in order to avoid illogical or arbitrary outcomes as, on the applicant’s construction, a discretion would exist only at the moment when an illness which later became sufficiently serious to prevent return to Australia began. That could well be at a point when the relevant illness had no symptoms or did not affect the sufferer. Thus, if the “medical genesis” of the illness predated the portability period, it would not satisfy the requirements of the provision.

(g)    The applicant’s construction would thwart the clear legislative intention that the “event” must be the factor which prevents the benefitholder from returning to Australia. On the applicant’s construction, a degenerative illness such as HIV, although serious, “may not become “serious” until such time as the hold of the disease upon the person’s body reached a certain tipping point, from which there is no return”.

(h)    An “event”, according to its dictionary meaning, is widely defined and in order to satisfy s 1218C(1)(b), the Court need only be satisfied that there is a discrete and qualitative change in circumstance, which (in this case) was not the deterioration in the mother’s condition per se but “the qualitative change in circumstances or occurrence that this deterioration gave rise to”.

83    Such an interpretation was consonant with the other events listed in s 1218C(1) which all, on analysis, involved a change to the status quo before and after the event.

84    The Tribunal did not paraphrase the legislative criteria, but simply made a finding of fact of appreciable deterioration which was one factor which led it to conclude that there had been an event within the meaning of s 1218C(1).

85    The deterioration in this case was marked, discrete and distinct, and as it was not a gradual change, the Tribunal’s decision is thus reconcilable with Manolev.

86    The construction in Manolev requiring a specific identifying incident and not something which came on gradually was wrong, but in any event, Manolev (and other Tribunal decisions said to have applied its reasoning) was distinguishable on their facts.

Discussion

87    In my opinion, the Tribunal did not misinterpret s 1218C as alleged. The Deputy President did not paraphrase the relevant provision but rather, construed it in accordance with the statutory objectives and the ordinary meaning of the words in the context of the legislation as a whole.

88    “Event” is defined in the Oxford English Dictionary to include:

1. a. The (actual or contemplated) fact of anything happening; the occurrence of. Now chiefly in phrase in the event of: in the case (something specified) should occur; also (U.S.) without of.

…

2. a. Anything that happens, or is contemplated as happening; an incident, occurrence. the course of events

….

d. In mod. use chiefly restricted to occurrences of some importance; hence colloquial uses such as quite an event.

3. a. That which follows upon a course of proceedings; the outcome, issue; that which proceeds from the operation of a cause; a consequence, result. in (the) event: in (the) result.

b. Undesigned or incidental result.

…

5. Idiomatic phrases, with mixed notion of 2 and 3. at (or in) all events: whatever happens or happened; in any case, at any rate. upon all events: for every emergency.

89    In the Oxford English Dictionary, “occur” includes the following relevant definitions:

a. Of time, an opportunity, etc.: to present itself. Of a person or thing: to be met with or found, to turn up or appear (esp. in some place, class of things, course of action, etc.).

b. Of an idea, etc.: to present itself in thought, come to mind. Followed by to (a person, etc.). Freq. with it as subject and that-clause or infinitive as complement.

2. Of an event, incident, etc.: to happen, come about, take place, esp. without being arranged or expected.

90    It is a precondition of the exercise of the discretion under s 1218C that one (or more) of a number of specified “events” be the cause of the person’s inability to return to Australia and that it begins or occurs during the person’s period of absence. Each of the terms in s 1218C must be construed in context of the provision, and indeed, the legislation, as a whole, in order to accord the section a rational operation consonant with the statutory objectives. The term “event” is a label subsuming the different circumstances specified in subparas (a) to (k) and to which its common dictionary meanings may not be commonly applied. A legal requirement to remain outside Australia or involvement in custody proceedings may not, in common parlance, be described as an “event”, as opposed to a “situation” or a “state of affairs”. Similarly, the word “event” may not always aptly describe political or social unrest or a serious illness.

91    In the present case, the event relied on is the occurrence of a serious illness of the respondent’s mother during his period of absence from Australia.

92    Section 1218C(1)(b) provides that the serious illness, which is a necessary precondition of the discretion to extend the portability period, may either “begin” or “occur” during the period of absence.

93    The “occur” alternative should have some work to do and add to, rather than merely replicate, the “begin” limb of s 1218C(1)(b). Its dictionary meanings suggest that “occur” is a broader word than “begin” and does not necessarily import a precise temporal demarcation. The meanings include “to be met with”, “present itself”, “found to exist”, “take place”, “turn upon appear”, “befall” or “happen”. Some common meanings, however (such as “to be met with”, “found”, “turn up”, “appear” and “came about without being arrangement or expected”), suggest that “to occur” involves an alteration in the status quo.

94    If “occur” were construed in isolation and literally, according to its widest dictionary meaning, the occurrence of a serious illness could comprehend the unaltered continuation of a preexisting serious illness during the relevant period of absence. When, however, s 1218C is read as a whole, it is clear that the serious illness must not only occur during the period of absence but must constitute an event which causes the person’s inability to return to Australia. Taken together, those requirements indicate that the state of affairs causing the inability to return to Australia did not exist before departure from Australia. Thus, for a serious illness to occur in the relevant sense, there must be at least a change or a development in the condition or what is diagnosed or detected, during the period of absence, which causes the inability to return. The total context invites the conclusion that s 1218C is directed at some change in the state of affairs prevailing prior to the person’s absence from Australia.

95    It is clearly unnecessary that the serious illness “begin” during the period of absence. In my opinion, the occurrence of a “serious illness” of a person or family member under s 1218(1)(b) would comprehend a change (including an appreciable deterioration) in the degree or nature, or the diagnosis of, an existing condition, sufficient to cause the inability to return to Australia during the period of absence. There is, in my view, no requirement that the illness be or involve an emergency, that it develop suddenly rather than gradually, or that it be of short duration.

96    Further, in my opinion, the Tribunal correctly held that the inability to return to Australia in the context of s 1218C is not limited to physical inability or impossibility. A number of the defined events, including s 1218C(1)(b) itself and subparas (a) (serious accident of a person or family member) and (d) (death of a family member of the person), expressly refer to a physical misadventure or death befalling someone other than the person. Other subparagraphs deal with circumstances in which the impediment to return is likely to be merely practical (subpara (g)) or one of family or legal obligation (subparas (d), (e) and (f). Read in context, the inability to return to Australia referred to in s 1218C(1) is to be measured by reference to what is feasible or could be reasonably expected in the specified circumstances.

97    Section 1218C is a remedial provision conferring a discretion to extend a portability period “where a person finds him or herself in any of the grievous circumstances listed in that section”. It should be construed to avoid a capricious or unjust operation. In my opinion, on a proper construction, the reach of s 1218C is sufficient to address developments in a known, preexisting illness which only became serious or sufficiently serious to prevent the benefitholder’s return to Australia during his or her absence, and the diagnosis, detection or manifestation during the period of absence of a hitherto undetected serious preexisting illness.

98    The construction of “serious illness” for the purposes of s 1218C(1)(b) adopted in Manolev was, in my view, erroneous. The exclusion of any discretion to extend the portability period in the case of a serious illness, the degree, nature or quality of which came on gradually, or was of more than short duration, is not warranted by the express terms of the provision nor implicitly required for its rational operation in the context of the Part as a whole.

99    In my opinion, ground 2 of the notice of appeal is not made out and Question (b) in the amended notice of appeal should be answered in the negative.

notice of contention

100    Although in my view the Tribunal, as a matter of substance, found that the portability period commencing on 12 September 2008 should be extended on the basis of an event which occurred as at 2 December 2008, it did not expressly so find. Therefore, for the avoidance of doubt, I hold that the first ground of the notice of contention is made out. While it is unnecessary to address the respondent’s subsidiary alternative argument in para (b) of the notice of contention, I was not persuaded that the Tribunal should have made the finding as alleged.

conclusion

101    In my opinion, the appeal should be dismissed.

102    The allegation in para (a) of the notice of contention is upheld.

Associate:

Dated:    24 March 2011