(i) Bundle of "T" documents; > > (ii) Copy of first review decision and copy of the Applicant's application for a second review; and > > (iii) Statement of Facts, Issues and Contentions prepared by the Respondent, dated 8 December 2025, with attachment.

1. The Applicant's representative submitted to the Tribunal at the hearing that when the Applicant left Australia in September 2024, she was receiving disability support pension. He had had online meetings before they departed Australia to request continued portability of the Applicant's payment; they advised Centrelink that they would return to Australia, although they had no return date.
2. The Applicant's representative agreed that the Applicant had first been granted a permanent visa on 26 July 2021. When asked whether the Applicant had a "continuing inability to work" before or after that date, the representative stated that the Applicant had been diagnosed as having had a stroke and issues had been ongoing since that date. The representative referred to a functional assessment having been completed only at the time of the Applicant's discharge from hospital in November 2021. He agreed that the Applicant's functioning had not significantly improved since the stroke, but submitted that prior to rehabilitation, it could not have been said she could or could not do anything. The representative confirmed that, as of July 2021 when the permanent visa was granted, the Applicant was in rehabilitation in a regional hospital, where she remained for six months before discharge.
3. The Applicant's representative referred to the second review application that had been made. The Tribunal noted that the reasons given in the application were as follows:

[The Applicant] was granted DSP when she travelled overseas, she had also given the travel advise (sic), she didn't require any further assessments to get paid her DSP overseas, centrelink didn't continue her payment, also Centrelink dint (sic) conduct the review for suspension untill (sic) 18 months and subsequently cancelled DSP. She was granted DSP from special Team of Centrelink.

1. The Applicant's representative also referred in his submissions to letters prepared by the Applicant's treating doctors and noted the doctors are not occupational, physical or speech therapists. The Applicant's representative queried how the doctors had the capacity to state the Applicant couldn't work at that time. The representative submitted that, as of July 2021, no specialist had made an assessment about the Applicant's capacity to work. The representative submitted that the Applicant's capacity to work as of July 2021 was "undetermined". When asked about any subsequent improvements to the Applicant's functioning, he stated that there had been minor improvements, up to a certain extent.

1. The Respondent submits that it was correct to suspend the Applicant's disability support pension from 28 September 2024, as she was not qualified to receive disability support pension at the date.
2. The Respondent submits that the effect of Clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) (the Administration Act) is that, given the Applicant's claim for disability support pension was made on 18 August 2024, the Tribunal must consider the Applicant's qualification for disability support pension in the period 18 August 2024 to 18 November 2024.
3. While the Respondent accepts the Applicant met the "medical qualification" requirements in paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Social Security Act), the Respondent submits that the Applicant does not satisfy the residency requirements set out in paragraph 94(1)(e).
4. The Respondent submits that the Applicant became an Australian resident, within the meaning of the Social Security Act, on 26 July 2021. She did not have 10 years qualifying residence at the time of her claim on 18 August 2024, did not have a qualifying residence exemption and was not otherwise a refugee or former refugee. The Respondent further submits that the Applicant was not a dependent child of an Australian resident when she first had a continuing inability to work.
5. As to when the Applicant first had a continuing inability to work, the Respondent noted that in Secretary, Department of Family and Community Services v Michael [2001] FCA 1811, the Federal Court held (at [27]) that:

We favour the construction of subpar 94(1)(e)(i) which requires the decision-maker to determine when the actual impairment identified for the purposes of pars 94(1)(a), (b) and (c) was first such as to prevent the claimant from doing any work within the two year period identified for the purposes of par 94(1)(c)... in most cases, the decision-maker will have only to determine whether or not the impairment as it is at the relevant time was present at the time at which the claimant became an Australian resident. It is only where the condition has become more or less acute, or where one of the other variable factors to which we have referred has come into operation that the matter will become more difficult.

1. Drummond J in Michael further noted (at [4]-[5]) that:

It is plain that par (e) of the sub-section was intended by Parliament to ensure that a non-Australian resident who enters Australia with an impairment that is sufficient to satisfy s94(1)(c)(i) will not be entitled to a disability support pension until the person has resided in Australia for the substantial period of time sufficient to amount to "10 years qualifying Australian residence"...

Section 94(1)(e)(i) should therefore be read as requiring the pension applicant to be an Australian resident when the person first suffers from the particular impairment which is found, as at the date of determination of the pension claim, to be sufficient to prevent the person from doing any work within the two years immediately following that date.

1. The Respondent submits that the medical evidence before the Tribunal indicates that the Applicant had a continuing inability to work prior to becoming an Australian resident and that she had a continuing inability to work from 14 April 2020 at the latest, based on a medical report prepared on her behalf.
2. The Respondent submits, in the alternate, that even if the Applicant was an Australian resident when she first had a continuing inability to work, her pension was correctly suspended as she had exceeded her portability period. This is due to the operation of subsection 1220(1) of the Social Security Act, which provides that:

(a) a person is an Australian resident; and

(b) the person ceases to be an Australian resident; and

(c) the person again becomes an Australian resident; and

(d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

(e) after the pension is granted, or the person is transferred to the pension, but before the end of that period of 2 years, the person leaves Australia; and

(f) financial assistance is not payable in respect of the person's absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953 ;

a pension based on that claim is not payable to the person during any period during which the person is outside Australia.

1. The Respondent submits that disability support pension was not otherwise payable to the Applicant, on the basis that she had departed Australia on 28 September 2024, within two years of becoming an Australian resident.
2. At the Tribunal hearing, and in response to the oral submissions of the Applicant's representative about the weight the Tribunal should place on the medical documents, the Respondent submitted that the information in the documents clearly demonstrates a continuing inability to work and that this had occurred prior to the Applicant having become a permanent resident. The Respondent submitted that the letters paint a clear picture, in particular, comments about the Applicant having been dependent on assistance for all activities of daily living made by a doctor who would have had a lot to do with the Applicant, who had been in the hospital for a significant period of time at that point. The Respondent submitted that the medical information establishes that the Applicant was dependent on full-time nursing care prior to having become an Australian resident.

1. The relevant facts in this matter are not in dispute. The Tribunal accepts that the Applicant arrived in Australia from her country of birth on 8 December 2017 on a Subclass 600 visa (visitor visa). She was granted a Subclass 010 visa on 15 October 2018 (bridging visa). Both visas are temporary visas.
2. The Applicant very unfortunately suffered a significant stroke on 23 October 2018. She was admitted to hospital on that date and, as of the following day, was on a breathing machine and life support machines. The Applicant spent a period of time in the intensive care unit of the hospital before being moved to a general ward. Seven months after admission, the following information was prepared in support of a guardianship application, dated 21 May 2019, by a medical registrar at the hospital:

[The Applicant] was admitted to [hospital] on 23 October 2018 with reduced conscious state and neuroimaging demonstrated basilar artery thrombosis with large acute ischaemic stroke affecting the thalami, posteromedial temporal, left superior and middle cerebellar and brain stem structures.

[The Applicant] received thrombolysis treatment for the stroke, and repeated neuroimaging demonstrated persisting though smaller and non-occlusive thrombus in the basilar artery. [The Applicant] was managed in the Intensive Care Unit for the first 8 days of hospital admission, and has remained an inpatient of the [hospital], on a general ward, since then.

[The Applicant] has made small improvements over her 7 month hospital stay, though significant cognitive and functional deficits remain. She has impaired cognition and has impaired ability to communicate. She is able to open her eyes more consistently but remains non-verbal. She can follow simple commands and communicates yes or no with head nod or shake. She is not able to participate in discussions or decision-making about her health, accommodation and finances.

[The Applicant's] swallow remains unsafe and she receives her nutritional requirements through her percutaneous endoscopic gastrostomy (PEG) tube which was inserted on 23 January 2019. [The Applicant's] mobility remains limited. She requires 1-person assist to sit on the edge of the bed, and is currently hoist transfer, and is sat out of bed in a special tilt-in-space wheelchair daily. [The Applicant] wears continence aids.

[The Applicant] is expected to continue to show small improvements with regular therapy, but functional gain will be limited. [The Applicant's] impaired decision-making capacity will most likely be permanent. We expect that [the Applicant] in the long term will still require high level care and assistance with all activities of daily living.

1. The Tribunal had been provided a letter prepared by another hospital registrar, dated 25 March 2020, stating that they had known the Applicant since September 2019 and that the Applicant had made no significant gains in respect of her cognitive capacity in that time. The registrar described that the Applicant remained non-verbal, was highly dependent for all of her personal and daily activities of living and that there had been no significant improvement in that regard since September 2019. The registrar submitted that it was "sensible to conclude that this is likely her baseline" and they could not "foresee a future (near or longterm) where [the Applicant] regains capacity to make or participate in personal, financial or medical decisions".
2. The Respondent relies on two medical reports, in particular, to submit that the Applicant's continuing inability to work was present from at least February 2020, if not earlier. The Applicant's representative submits that neither is prepared by a medical specialist - such as an occupational therapist or physical therapist - who would be qualified to comment on work capacity.
3. The first of these, dated 13 April 2020 and prepared by an intern at the hospital, states as follows, in relevant part:

[The Applicant] has significant cognitive and functional deficits. She is unlikely to make significant further improvement given the time since her stroke. She has impaired cognition and ability to communicate. She is able to open her eyes spontaneously and indicate yes or no through movement of her head. She remains non-verbal. She is able to express when she is in pain. She can write a few specific short words in a barely legible manner on a whiteboard with some support.

She is not able to participate meaningfully in discussions about her healthcare, personal or financial matters. Her husband [name] is her guardian.

[The Applicant] is unable to swallow safely and is fed through a percutaneous endoscopic gastrostomy tube. [The Applicant] requires full nursing care and is transferred with a hoist. She requires the assistance of one person to sit up and uses continence pads.

[The Applicant] will not be able to re-enter the workforce.

1. The second medical report, prepared by a medical resident at the hospital, is dated 6 July 2020 and states the following in relevant part:

[The Applicant] has remained an inpatient of the [hospital] since 23 October 2018. [The Applicant] has impaired mobility and function and is dependent upon assistance for all activities of daily living. She requires a 1-person assist to sit on the edge of the bed, and is currently hoist transfer, and is sat out of bed in a special tilt-in-space wheelchair daily. As a result of her stroke [the Applicant] has urinary and faecal incontinence. [The Applicant] has dysphagia and is fed via a percutaneous endoscopic gastrostomy (PEG) tube. [The Applicant] continues to have impaired cognition and impaired ability to communicate. She is non-verbal but able to follow simple commands, and communicate yes or no with head nod or shake. She can write some simple words. She is under adult guardianship, with her husband [name] appointed as her guardian and substitute decision maker for personal and financial matters.

[The Applicant] has no other significant past medical history. She has had a routine CXR and HIV testing which are normal. [The Applicant] does not have evidence of active tuberculosis and her health condition does not pose a threat to the Australian community and is not infective in nature.

As outlined above, the functional impairment [the Applicant] has sustained means that she will require permanent, full time care for the rest of her life. [The Applicant] is currently an inpatient in the [hospital] acute medical ward...

1. The Tribunal accepted, from a letter prepared on 30 July 2021 by a medical resident at the hospital, that the Applicant had been transferred to an interim care ward at another, regional hospital on 13 July 2021 and was awaiting a discharge placement. As of July 2021, she was described as requiring two people to assist with hoist transfer, used a wheelchair when out of bed, was non-verbal but could follow simple commands, was able to communicate by nodding or shaking her head, continued to be fed through a tube, and required two people to assist with management of personal care due to urinary and faecal incontinence. The medical resident noted that the Applicant's husband had been appointed as her guardian for personal and financial matters under relevant state law.
2. The Applicant was granted a Subclass 801 visa (partner visa) - a permanent visa - on 26 July 2021. Her representative did not dispute that this was the first time at which she had held a permanent visa in Australia.
3. The Applicant departed Australia on 29 December 2022 and returned to Australian on 16 August 2024, lodging a claim for disability support pension with the Respondent on 18 August 2024.
4. The Applicant departed Australia on 28 September 2024 and it was this departure that formed the basis of the original decision in this matter, to suspend the Applicant's disability support pension from the time of departure. While noting the Respondent's written submissions about a 13-week period of consideration of the Applicant's qualification for disability support pension, the substantive decision in this matter is a decision to suspend the Applicant's pension as of 24 September 2024. Because of this, the Tribunal considered that the legal issue before it is whether the Applicant's disability support pension was correctly suspended as at that date.
5. The Respondent submits that the Applicant's disability support pension was correctly suspended from 24 September 2024 for two reasons: firstly, because she did not meet residency requirements as of that date; and secondly, because she had departed Australia within two years of becoming an Australian resident. The Tribunal first considered the residency requirements as set out in subsection 94(1) of the Social Security Act.
6. Paragraph 94(1)(e) of the Social Security Act notes several ways in which a person is able to satisfy the residency requirements to qualify for disability support pension and provides that:

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident...

94(1)(e)(i) - Was the Applicant an Australian resident when she first satisfied paragraph (c)?

1. Sub-paragraph 94(1)(e)(i) of the Social Security Act requires the Tribunal to consider whether the Applicant was an "Australian resident" at the time she first satisfied paragraph 94(1)(c).
2. Paragraph 94(1)(c) of the Social Security Act states that a person is qualified for disability support pension if:

(i) the person has a continuing inability to work;

(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system..

1. There was no evidence that the Applicant was participating in the supported wage system and the Tribunal finds accordingly.
2. A "continuing inability to work" is defined at subsections 94(2) and (3) to be:

(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008 - 2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).

(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of a training activity; or

(b) the availability to the person of work in the person's locally accessible labour market.

1. The medical evidence before the Tribunal is that, from the time of the stroke in October 2018 and up to at least July 2021 when the permanent visa was granted, the Applicant was hospitalised, required intensive medical and nursing support, was non-verbal and had very little ability to communicate with others, was being fed through a tube due to difficulties swallowing, was reliant on others for activities of daily living and, for at least part of the period, had been incontinent.
2. The Tribunal did not accept the assertions of the Applicant's representative that the medical documentation prepared by various interns and residents at the hospital is insufficient to establish a continuing inability to work. Nor did the Tribunal accept that a report prepared by a functional physician, such as an occupational therapist or physical therapist, is required before a finding can be made that an individual has a continuing inability to work within the meaning of the legislation. Rather, the Tribunal is required to consider the best evidence before it as to whether the Applicant did or did not meet the "continuing inability to work" definition in section 94 of the Social Security Act at the relevant time.
3. Based on the information before it, the Tribunal accepted that the Applicant had a severe impairment within the meaning of subsection 94(3B). The Tribunal makes this finding on the basis of a Medical Eligibility Assessment Recommendation, in respect of the August 2024 claim, contained in the hearing papers.
4. Given the level of functioning of the Applicant following her stroke, her level of reliance on others to meet her daily needs and her inability to communicate aside from nodding or shaking her head, the Tribunal finds that the impairment was - from the time of the stroke in October 2018 - sufficient to prevent the Applicant from doing any work independently of a program of support in the following two year period and was sufficient to prevent the Applicant from undertaking a training activity during the following two year period. The Tribunal finds that the Applicant has a continuing inability to work, as defined at subsection 94(2) of the Social Security Act, and that this commenced in October 2018 on the date of the stroke and the commencement of the long-term hospitalisation of the Applicant.
5. Subsection 7(2) of the Social Security Act defines an "Australian resident" to be:

(2) An Australian resident is a person who:

(ii) the holder of a permanent visa;

(iii) a special category visa holder who is a protected SCV holder.

1. The Applicant is not an Australian citizen and is not a protected SCV holder as defined in subsections 7(2A), (2B), (2C) and (2D) of the Social Security Act. She became the holder of a permanent visa on 26 July 2021 and it is from this date that she can be considered to have met the Australian resident definition in subsection 7(2) of the Act.
2. The Applicant was not an Australian resident when she first satisfied paragraph 94(1)(c) of the Social Security Act as she was not an Australian resident when she first had a continuing inability to work. She did not satisfy sub-paragraph 94(1)(e)(i) of the Social Security Act as of 24 September 2024 when her disability support pension was suspended.

94(1)(e)(ii) - Did the Applicant have 10 years qualifying residence or an exemption?

1. Sub-paragraph 94(1)(e)(ii) of the Social Security Act provides that a person meets the residency requirements where they have 10 years qualifying Australian residence or have a qualifying residence exemption.
2. As the Applicant was only able to satisfy the residence definition from 26 July 2021, when the permanent visa was granted, she did not have 10 years qualifying Australian residence as of 24 September 2024 when the payment was suspended.
3. A "qualifying residence exemption" is defined at subsections 7(6) and (6AA) of the Social Security Act as follows:

(6) A person has a qualifying residence exemption for a social security pension (other than carer payment) or a social security benefit (other than youth allowance, austudy payment, jobseeker payment or special benefit) if, and only if, the person:

(i) a refugee; or

(ii) a former refugee.

(6AA) A person also has a qualifying residence exemption for a social security benefit (other than a special benefit), a pension PP (single), carer payment, carer allowance, a mobility allowance, a seniors health card or a health care card if, and only if, the person:

(b) except in relation to pension PP (single), benefit PP (partnered), youth allowance, austudy payment, jobseeker payment, carer payment, carer allowance, mobility allowance, a seniors health card or a health care card--was a family member of a refugee, or former refugee, at the time the refugee or former refugee arrived in Australia; or

(f) in any case--holds or was the former holder of a visa that is in a class of visas determined, by legislative instrument, by the Minister for the purposes of this paragraph.

1. The Applicant's representative does not assert that she is a refugee, former refugee, or a family member of a refugee or former refugee. She does not, and has not, held a visa in a class of visas determined by the Minister.[1] The Applicant does not have a qualifying residence exemption.
2. The Applicant does not have 10 years qualifying Australian residence or a qualifying residence exemption and therefore did not meet sub-paragraph 94(1)(e)(ii) of the Social Security Act at the time of suspension of the disability support pension.

94(1)(e)(iii) - Was the Applicant a dependent child of an Australian resident?

1. Sub-paragraph 94(1)(e)(iii) of the Social Security Act requires that the Applicant was born outside of Australia and, at the time she first satisfied paragraph (c) (for the purposes of the present case, when she first had a continuing inability to work), was not an Australian resident and was a dependent child of an Australian resident. The paragraph additionally requires that the Applicant became an Australian resident while a dependent child of an Australian resident.
2. The Applicant's representative does not assert that the Applicant has, at any relevant time, been a dependent child of an Australian resident. She did not meet the requirement in sub-paragraph 94(1)(e)(iii) at the time of suspension of the disability support pension.

1. The Applicant did not meet any of the requirements set out in paragraph 94(1)(e) of the Social Security Act at the time her disability support pension was suspended in September 2024 and, on this basis, disability support pension was not payable to her from that date.
2. Subsection 80(1) of the Administration Act provides for suspension or cancellation of a payment in the following circumstances:

(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.

1. The Respondent's representative submitted at the hearing that the Respondent had made a decision to suspend rather than cancel the payment as of September 2024, based on information available at that time. What, specifically, was available to the Respondent at that time and relied upon by the Respondent was not elucidated at hearing. As this was the more favourable of the two approaches allowed by section 80 of the Administration Act, the Tribunal accepted the approach of the Respondent. The Tribunal concluded that the Applicant's disability support pension was correctly suspended from 28 September 2024. For this reason, the decision before the Tribunal is correct and is affirmed.

The Applicant was represented at the hearing by her husband

[1] Social Security Guide 1.1.Q.35: Visa Subclass 852 (a Referred Stay visa).