1. The issue requiring determination is whether the decision to suspend the Applicant's disability support pension from 21 December 2022 was correct.

1. The relevant legislative provisions are found in the Social Security Act 1991 (Act) and the Social Security (Administration) Act 1999 (Administration Act).
2. The portability provisions covering social security payments are contained in Part 4.2 of the Act.
3. Section 1217 of the Act states:

1217 Meaning of maximum portability period, allowable absence and 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).

(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 applies, the absence does not:

(i) exceed the period specified in column 5 of that item; or

(ii) in the case of item 2 - cause the total number of days (whether consecutive or not) of the person's temporary absence from Australia in the last 12 months to exceed 28, ignoring days in accordance with 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 not an unlimited period, 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

(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 that is the person's maximum portability period for the payment.

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

1. Section 1217 of the Act also contains a portability table. Items 2 to 3 refer to portability of disability support pension:

Any temporary absence, except for any of the following purposes:

A total of 28 days (whether consecutive or not) of temporary absence from Australia for any purpose in the last 12 months, ignoring days on which the person was not receiving disability support pension (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)

Temporary absence for any of the following purposes:

4 weeks (but see also sections 1218AAA, 1218AA, 1218AB, 1218, 1218C and 1218D)

Terminally ill overseas disability support pensioner

1. Subsection 1218AAA(1) of the Act permits the Secretary to make a written determination that a disability support pensioner's maximum portability period is an unlimited period if the person's impairment is severe. Subsection 1218AAA(2) of the Act states that such a determination cannot be made if the person is outside Australia, unless the Secretary is satisfied that the person was unable to return to Australia due to either a serious accident or hospitalisation:

Unlimited portability period for disability support pension - severely impaired disability support pensioner

(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) 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.

(2) The Secretary must not make a determination under subsection (1) in relation to a person who is outside Australia unless the Secretary is satisfied that:

(a) the person is unable to return to Australia because of either of the following events:

(b) the person's portability period for disability support pension had not ended at the time the event occurred.

1. Section 1218AA of the Act permits the Secretary to make a written determination that a disability support pensioner's maximum portability period can be unlimited if the person is terminally ill:

1218AA Unlimited portability period for disability support pension - terminally ill overseas disability support pensioner

(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

(d) the person's absence from Australia is or will be permanent; and

(i) to be with or near a family member of the person (see

subsection 23(14)); or

(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 revocation as if:

(a) the person's maximum portability period for the pension were worked out under whichever one of items 2, 2AA and 2A of the table in section 1217 applies; and

(b) if the person was absent from Australia at the time of the revocation - the person's absence started on the revocation; and

(c) if item 2 of the table in section 1217 applies - the person had not been absent from Australia at any time in the 12 months before the revocation.

1. Section 1218C of the Act permits the extension of a portability period in certain events:

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.

1. Subsection 80(1) of the Administration Act states that a suspension determination must be made if a person is being paid a social security payment and the payment was not payable:

(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a) who is not, or was not, qualified for the payment; or

(b) to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);

the Secretary is to determine that the payment is to be cancelled or suspended.

Note: Division 3AA is about compliance with participation payment obligations for persons who are not declared program participants.

1. It is common ground that the Applicant was in receipt of disability support pension at all relevant times and I find accordingly.
2. I have already set out the relevant provisions of the Act. Items 2AAA and 2AA provide that the maximum portability period is 28 days where there is a temporary absence, except when the person is seeking eligible medical treatment, attending to an acute family crisis or is absent for a humanitarian purpose.
3. I make the following findings. On 28 August 2022 the Applicant purchased return tickets from Melbourne to Dhaka, Bangladesh, departing Melbourne on 23 November 2022 and returning on 14 February 2023.[2] The Applicant did in fact depart Australia on 23 November 2022 but did not return until 12 September 2023. He then departed Australia again on 26 October 2023 and had not returned prior to 16 April 2024.[3]
4. I find that, pursuant to subparagraph 1217(4)(b)(ii) of the Act, the Applicant's portability period ended on 20 December 2022, this being the 28th day he was absent from Australia within the previous 12 month period.
5. There is no evidence before me to establish that the Applicant was seeking eligible medical treatment, attending to an acute family crisis or was absent from Australia for a humanitarian purpose. As such, I find accordingly.
6. Therefore, the maximum portability period is 28 days, unless the Applicant establishes that he is a severely impaired disability support pensioner or a terminally ill overseas disability support pensioner, as set out in items 2A or 3 contained in section 1217 of the Act.
7. In his oral submissions to the General Division of the AAT the Applicant did not rely on section 1217 of the Act to provide him relief. Similarly, in his written closing submissions to this Tribunal he also did not submit that this provision was of any relevance to this application.
8. The evidence does not establish that the Secretary made a written determination that the Applicant's maximum portability period for disability support pension is unlimited, pursuant to sections 1218AAA or 1218AA of the Act. Certainly, there is no evidence that the Applicant was terminally ill or underwent a medical review to determine whether he had a severe impairment which prevented him from performing any work within the next five years.
9. I find that the Secretary did not make determinations under sections 1218AAA or 1218AA of the Act.
10. I conclude that sections 1218AAA or 1218AA of the Act are not enlivened and so do not provide the Applicant with unlimited portability.
11. I next turned my mind to whether there is any basis on which the maximum portability period may be extended under section 1218C of the Act.
12. The Centrelink record indicates that the Applicant first informed Centrelink about his absence on 4 January 2023, advising that he planned to return to Australia within 6-13 weeks of his departure, that is, between 4 January and 22 March 2023. It also noted that his planned return date was 14 February 2023.[4]
13. The Applicant next contacted Centrelink on 22 January 2023 and advised that he first had a medical problem on 1 December 2022 and went to see his doctor on 20 January 2023 when he was able to secure medical evidence, which he has provided. He went on to disclose that he has a return flight for 14 February 2023 but will have to change this because he cannot return.[5]
14. The Centrelink record indicates that the Applicant again contacted on 27 January 2023, reiterating his previous statement that he was suffering from low back pain with restriction of movement of his right leg, which began on 1 December 2022 and he first saw a doctor on 20 January 2023.
15. On 21 February 2023 the Applicant contacted Centrelink and advised that he had tried to make contact prior to 27 January 2023 but had the wrong number and that his date of injury was 1 December 2022.[6]
16. In his application for review with the AAT dated 29 May 2023 the Applicant provided the following statement:[7]

The decision is wrong because both the Centrelink decision maker and an Authorized Review officer did not look at the circumstances surrounding the law, for example I left Australia on 23 November 2022 to Visit family members residing In Bangladesh. In the following week in the destination Country on or about 1 December 2022, I started feeling pain in my lower back which I thought would go away but got worse as the day passes. I started ringing Centrelink Disability Support Line since 16 December 2023 on a regular basis but never got hold onto them until around 4 January 2023, spoke with the Officer named "Jay" about my situation. He transfer the phone to his supervisor, who explained that I require evidence from a medical doctor outlining medical conditions and once acquired should be sent it off to them via MyGov. I sent a medical certificate outlining my conditions as well as medical evidences on or about 20, 21 or 22 January 2023. On 27 January 2023, Centrelink Delegate made a decision not to extend the portability period and the suspension of my DSP on 20 December 2022 stands. Around 21 February 2023 when I did not hear from Centrelink I called them and got the news of it and I immediately appeal the decision explaining to the service officer as to why I was seeking an appeal. My contentions were the decision made by the delegate did not reflect my situations such as constant ringing Centrelink office prior to my allowable portability period ends (which is 20 December 2022) and did not get hold onto anyone and how I finally got to spoke with a person named "Jay" and his supervisor and the discussion we had it is those circumstances lack in that decision which goes into the heart of law when extending the portability period of which is lacking in Authorized review officer decision on 29 March 2023 as well. Both have had a discretionary power which allows them to extend the DSP portability period a person in my situation e.g, unable to travel due to severe medical conditions. And both denied to exercise that discretionary power which the legislation allows them to, given in my situations which I discussed above. As of now I am still overseas due to those medical conditions. On 22 March 2023 I have received a letter through My Gov from Centrelink that now they have cancelled my DSP because I was still in overseas and no mention about my circumstances in that letter.

1. In his Application to the General Division of the AAT the Applicant stated:

AAT1 child division got the issue wrong, where it stated "The issue which arises in this case is how long can [the Applicant] be paid disability support pension whilst he is outside Australia?" [ page 2 para 6 of the AAT1 decision]. The real issue in this case would be whether discretionary power be exercised by the AAT1 to extend the applicant's DSP portability period under section 1218C (1) (b) of the Act.

My application falls under section 1218C (1) (b)- "a serious illness of the person or a family member of the person" This section is about extending portability period beyond 28 days staying overseas person with DSP under the condition that the DSP recipient faces various issues as set out in 1218C and one of them is "serious illness" during the portability period of 28 days. I left Australia for Bangladesh on 23 November 2022 to visit immediate family members. On or about 1 December 2022, I was experiencing severe lower back pain for which I was taking pain killer but the symptoms were persistent eventually led me to seek rural doctor's advice about it (as I was residing in a rural area at that time) and I saw him on 4 December 2022 (medical certificate will be provided for that day) for further advice on it, to which he provided a preliminary examination and prescribed medications. Unfortunately, It was not much help, which then turn me into seeing a USAId organized (a NGO run by USAID) medical diagnostic center for a better treatment and after an exhaustive trying to book an appointment with them; I was finally able to secure an appointment with that center on 20 January 2023 (medical certificate was already before the AAT1). Furthermore the pain was so excruciating that travelling to Australia was not an option before the expiry of my 28 days portability period due to the severity of the lower back pain, it really restricted my movements to the point that I had to seek further help on that matter.

Now, the section 1218C (1) (b) has not been exercised in my case, which led me to review AAT1 decision for a second review in General division.

1. The Applicant provided the following medical evidence to establish his contention that he was unable to return to Australia prior to the expiration of the 28 day portability period:

a) Medical certificate completed by Dr Mohammed Kamrul Hasan, a specialist in orthopaedic medicine, located in Muladi, Barishal, dated 15 November 2023 which states:[8]

I have examined [the Applicant], Aged 40 Years on 4th December 2022 for his severe Lower Back Pain Issues and I have provided treatment according to his symptoms.

b) Clinical notes from Dr Syed Mushfique Hasan, Dhamura United Diagnostic Centre and Clinic, Barishal dated 20 January 2023 which relevantly states:[9]

1. A statement from Dr Syed Mushfique Hasan dated 20 January 2023 which states:[12]

It has been certified that [the Applicant], 40 years of age is came to me with the coplain of Low Back Pain with Restrictions of the movement of Right Leg. His back pain is radiating btowards lowe limb with numbness, After all physical and clinical examination [the Applicant] is diagnosed a case of PLID, in L3-L4 and L5-S1. His pain is severe in nature. He needs complete bed rest for 6 month with pelvic traction. He is unable to journey for long period for 12 months.

d) A serology report dated 20 January 2023 noting that the Applicant's RA test[13] was normal;

e) A biochemistry report dated 20 January 2023 noting that the Applicant's serum uric acid test was 8.2 and the normal range for me was between 3.6-7.7; [14]

f) Clinical notes from Dr Syed Mushfique Hasan, Dhamura United Diagnostic Centre and Clinic, Barishal dated 17 January 2024 which relevantly states:[15]

Sever LBP[16] for last 3 month H/O, PLID[17] (L3-L4 & L-5 S-1).

• Complete Bed Rest
• Physiotherapy (Pelvic traction with SWV)
• Hot Compression with Lumbar corset

g) A serology report dated 17 January 2024 noting that the Applicant's RA test[18] was normal;

h) A biochemistry report dated 17 January 2024 noting that the Applicant's serum uric acid test was within normal range;[19] and

1. A statement from Dr Syed Mushfique Hasan, Dhamura United Diagnostic Centre and Clinic, Barishal dated 22 February 2024 which states:[20]

It has been certified that [the Applicant], Aged - 42 years is under my treatment since 20th January 2023. Initially he was diagnosed with PLID in L3-L4 and L5-S1. His pain was severe in nature & he was unable for sitting as well as standing for a long time, which prevents him to have a long flight. He Developed Same physical condition with sever radiating Low Back Pain from 17.01.24. After examine him both physically & clinically I found that he has got repeated PLID with Herniation in L5-S1 as well as Disc Prolapses this time. His physical condition is worse than previous PLID. Now [the Applicant], 42 Years needs complete bed rest for )6 months with medication with Physiotherapy (1. Pelvic Traction, SWV) at least for 09 months. In this physical condition [the Applicant] is uncertain as to when he will be he will able to travel.

1. In his oral submissions to the General Division of the AAT the Applicant relied on his consultation on 4 December 2022 as establishing that he could not return to Australia from 4 December 2022.[21] He went on to state that though his return ticket was for mid-February 2023 he only made this booking "just to be safe in case something happens...say for example, I booked a ticket within 28 days and I could not return, then I would lose my money. So I wanted to have a safe plan, so I extended the date, that way I have flexibility...".[22] Further, he had trouble recollecting the period December 2022 to January 2023 and so relied on the medical certificates in evidence as indicating when his pain symptoms began.[23] He confirmed that he had not provided an x-ray, CT scan or MRI during the relevant period.[24] He declared that he spent most of his time lying in bed and received treatment by way of medications and physiotherapy.[25]
2. When asked what, if any, discussion took place about enabling the Applicant to return to Australia, the Applicant stated that such a discussion took place, but that he did not know if he could receive the same care in Australia and that any further questions would need to be addressed to his treating doctor.[26] Later in the hearing he stated that he ignored Dr Mushfique Hasan's advice not to travel when he returned to Australia in September 2023, as he did not have anyone to support him.[27]
3. The Applicant contends that the term 'serious illness' "encompasses a medical condition of such gravity that return to Australia is impracticable, rather than merely inconvenient".[28] He submits that the biochemistry and serology tests dated 20 January 2023 indicate serious musculoskeletal impairment.[29] Without a statement from any of his treating practitioners stating the same, I do not accept the Applicant's submissions on this point.
4. At its highest, the medical evidence indicates that the Applicant sought medical treatment on 4 December 2022 due to severe back pain and was provided unspecified treatment on that day. On 20 January 2023 he was reviewed by another doctor, Dr Mushfique Hasan, whose clinic notes indicate that the Applicant disclosed lower back pain and was sent for a x-ray (not in evidence) and blood and biochemistry tests. On the basis of this consultation, Dr Mushfique Hasan stated that the Applicant required six months of pelvic traction and that he was unable to travel for 12 months.
5. I accept that the Applicant suffered from low back pain from about 1 December 2022. However, the medical evidence suggests that it was only from 20 January 2023 (that is, after the 28 day portability period expired) that the Applicant was advised by a medical practitioner that he could not return to Australia. Certainly, Dr Kamrul Hasan made no reference to the Applicant's inability to travel when he provided consultation and review on 4 December 2022.
6. Subsection 1218C(2) of the Act refers to a 'period of absence'; that is, it does not specifically refer to whether this is the whole time a person is absent from Australia or merely the temporary exemption period.
7. In the matter of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis[30] Gray J opined that the 'period of absence' is not distinguishable from the portability period.[31] I am satisfied that Mouratidis provides authority that the relevant event preventing a person's return to Australia must occur during the original portability period.
8. I therefore understand the legislative test set down in 1218C of the Act to be whether a serious illness prevented the Applicant from returning to Australia before the expiration of the temporary portability period.
9. There is no medical evidence before me to indicate that the Applicant was prevented from returning to Australia prior to 20 January 2023, nearly a month after the expiration of the temporary portability period expired. Whilst he had reportedly advised a doctor of his low back pain on 4 December 2022 there is no contemporaneous medical evidence to indicate that the Applicant was suffering from a 'serious illness' from that date that rendered him unable to return to Australia. Only some time after the temporary portability period ended is there evidence that the Applicant was unable to return to Australia.
10. Further, it is apparent that irrespective of his medical conditions, the Applicant had not intended to return to Australia before 14 February 2023. In the decision of Hasan and Secretary, Department of Workplace Relations[32] the AAT declined to exercise the section 1218C discretion where a person had indicated that they did not intend to return to Australia before the expiration of their temporary portability period.
11. I find that none of the other events outlined in subsection 1218C(1) of the Act are relevant in the Applicant's case and therefore there is no basis on which to extend his portability period for the payment of disability support pension.
12. As the Applicant's time absent from Australia exceeded the temporary portability period and there is no basis on which to extend this period, I find that Centrelink correctly suspended his disability support pension, as it ceased to be payable to him by operation of section 1215 of the Act and subsection 80(1) of the Administration Act.

Ms Peta Heffernan, Australian Government Solicitor

[17] Prolapse lumbar intervertebral disc.

[30] [2012] FCAFC 29.

[32] [2007] AATA 1945.