AB and CD - [2024] WASAT 6

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019
CITATION:   AB and CD [2024] WASAT 6
MEMBER:   PRESIDENT PRITCHARD
HEARD:   12 FEBRUARY 2024
DELIVERED          :   12 FEBRUARY 2024
PUBLISHED           :   14 FEBRUARY 2024
FILE NO/S:   VAD 1 of 2024
BETWEEN:   AB
Applicant
AND
CD
Respondent

Catchwords:

Statutory interpretation – Review of decision of co-ordinating practitioner – Section 16(1)(b)(ii) Voluntary Assisted Dying Act 2019 (WA) – meaning of 'ordinarily resident' – When a person is ordinarily resident in Western Australia for a period of at least 12 months at the time of making first request – Whether subject person eligible for access to voluntary assisted dying

Legislation:

State Administrative Tribunal Act 2004 (WA), s 34, s 61(h), s 62(3)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Voluntary Assisted Dying Act 2017 (Vic), s 9
Voluntary Assisted Dying Act 2019 (WA), s 4, s 16(1)(b)(ii), s 84, s 93, s 94, s 95

Result:

The decision of the co-ordinating practitioner is set aside and, in substitution, the Tribunal decides the applicant meets the ordinarily resident eligibility requirement

Category: B

Representation:

Counsel:

Applicant	:	Ms R Young SC
Respondent	:	No appearance

Solicitors:

Applicant	:	No appearance
Respondent	:	No appearance

Cases referred to in decision(s):

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Mohammadi v Bethune [2018] WASCA 98
NTJ v NTJ (Human Rights) [2020] VCAT 547
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208
Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194; [1992] FCA 296
Re Vassis; Ex parte Leung (1986) 9 FCR 518

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered extemporaneously on 12 February 2024 and have been edited to correct matters of grammar and infelicitous expression)

Mr AB is a 67-year-old man who is living with lung cancer which has metastasized to his brain. On 13 October 2023, he made what is known as a first request to access voluntary assisted dying (First Request) pursuant to the Voluntary Assisted Dying Act 2019 (WA) (VAD Act).
On 19 October 2023, Dr CD, Mr AB's co-ordinating practitioner, conducted what is known as a first assessment and concluded that Mr AB met all of the eligibility requirements, bar one, to access voluntary assisted dying under the VAD Act.
The eligibility criterion which Dr CD concluded that Mr AB did not meet was the requirement in s 16(1)(b)(ii) of the VAD Act that at the time of making the First Request, Mr AB had been ordinarily resident in Western Australia for a period of at least 12 months. As a result of that conclusion, Dr CD concluded that Mr AB was not eligible to access voluntary assisted dying in Western Australia under the VAD Act.
On 2 February 2024, Mr AB applied to the Tribunal for a review of Dr CD's decision (Application). The Application was, unusually, made more than two months after the usual 28‑day period within which a review must be commenced.[1] However, in the course of the hearing, I heard from Mr AB and his friend, Ms S, as to the reasons why there was a delay in making the Application. I am satisfied that the delay was the result of Mr AB's ill health, misinformation in relation to his rights of review, general ignorance in relation to his rights of review, and the fact that, as a result of his precarious health, Mr AB needed assistance (especially from Ms S) to prepare an application for a review and Ms S was, as a result of her own circumstances, unable to assist until earlier this year. In light of all of those circumstances, in my view, it is in the interests of justice that an extension be granted, and accordingly, I consider that the time in which the Application can be made should be extended to 2 February 2024.[2]
[1] State Administrative Tribunal Rules 2004 (WA), r 9.
[2] Pursuant to State Administrative Tribunal Rules 2004 (WA), r 10.
Having carefully considered all of the evidence available to the Tribunal at the hearing today, and the submissions of Ms Young SC on behalf of Mr AB, I have concluded that the correct and preferable decision is that at the date of the First Request Mr AB had been ordinarily resident in Western Australia for a period of at least 12 months, and that he therefore met the criterion in s 16(1)(b)(ii) of the VAD Act. Accordingly, Dr CD's decision should be set aside, and a decision be substituted that Mr AB does meet that eligibility criterion.
In these reasons for decision, I deal with the following matters:
(a)Procedural history;
(b)The proper construction of the eligibility criterion in s 16(1)(b)(ii) of the VAD Act;
(c) My findings on the evidence before the Tribunal; and
(d) The correct and preferable decision.

(a) Procedural history

The Application was lodged by Mr AB on 2 February 2024.
Subject to the question of an extension of time to commence the Application (which I considered was better dealt with at the hearing), I was satisfied the Tribunal had jurisdiction to deal with the Application. The VAD Act required that notice be given to certain persons,[3] and having done that, I then listed the matter for an urgent directions hearing.
[3] Voluntary Assisted Dying Act 2019 (WA), s 94 (VAD Act).
Having regard to Mr AB's obvious ill health, the Tribunal listed this matter on an urgent basis.
On 6 February 2024, I made orders including orders to join Mr AB's co‑ordinating practitioner as the respondent to the Application. I also made programming orders to arrange for today's hearing to be conducted on an urgent basis, to require the co-ordinating practitioner (Dr CD) to provide relevant materials and her reasons for decision,[4] to make clear that all hearings of the Application were to be in private,[5] and to protect the confidentiality and privacy of all persons appearing in these proceedings, namely Mr AB and the co-ordinating practitioner.[6]
[4] Ibid, s 95.
[5] Ibid, s 93.
[6] State Administrative Tribunal Rules 2004 (WA), ss 34, 61(h) and 62(3).
Additionally, in the course of the directions hearing, I canvassed whether it would be possible for Mr AB to secure legal representation to assist him in pursuing the Application. From the Tribunal's perspective, that was particularly important as this is the first occasions in which the VAD Act has been considered by the Tribunal. As Mr AB was agreeable to the Tribunal doing so, the Tribunal made enquiries as to whether counsel was willing to appear for Mr AB on a pro bono basis. Ms Young SC kindly agreed to act for Mr AB. Her representation has clearly been of considerable assistance to Mr AB, and in turn to the Tribunal. The Tribunal is grateful that practitioners such as Ms Young are, despite their busy schedules, willing to assist the Tribunal by acting pro bono for parties before the Tribunal who do not have the benefit of legal representation. The involvement of Ms Young SC was all the more important in circumstances where, as I have said, this is the first case of its kind to be considered in this State.
It is appropriate briefly to refer to the scheme of the VAD Act which is relevant to the Application.
Section 16 of the VAD Act sets out a number of criteria which must be met before a person is eligible for access to voluntary assisted dying under the VAD Act. This review concerns only the intention in s 16(1)(b)(ii) of the VAD Act.
A person seeking to access voluntary assisted dying must make certain requests which are set out in the VAD Act.[7] Of relevance to the present case is the first request in that process. A person seeking to access voluntary assisted dying must approach a co-ordinating practitioner who must consider what is known as the 'first request' by that person to access voluntary assisted dying.[8] The co-ordinating practitioner must make a decision (first assessment) in respect of each of the eligibility criteria under s 16 of the VAD Act.[9] If the co‑ordinating practitioner is satisfied the person meets all of the eligibility criteria, the request can then proceed to the next stage.[10] However, if the co-ordinating practitioner is not satisfied as to any eligibility requirement, they must assess the person as ineligible and the process for request and assessment ends,[11] subject to a review by the Tribunal. The co-ordinating practitioner must then inform the patient of the outcome of the first assessment,[12] as was done in this case when Mr AB was given a copy of Dr CD's First Assessment Report, dated 19 October 2023. If the person who has been deemed ineligible wishes to do so, they can seek a review by the Tribunal.[13]
[7] VAD Act, s 18, s 42, s 47.
[8] VAD Act, s 18.
[9] VAD Act, s 24.
[10] VAD Act, s 38.
[11] VAD Act, s 28(2).
[12] VAD Act, s 29(1).
[13] VAD Act, s 84.
However, the Tribunal is not able to review all aspects of the co‑ordinating practitioner's decision as to the eligibility criteria in relation to a particular applicant. Instead, the Tribunal's jurisdiction is confined to certain decisions.[14] Relevantly to the present case, one of the decisions that is able to be reviewed by the Tribunal is whether, at the time of making the first request, the person has been ordinarily resident in Western Australia for a period of at least 12 months.[15]
[14] VAD Act, s 84.
[15] VAD Act, s 84(1)(a)(i).
As Dr CD decided that Mr AB did not meet that criterion, I determined the Tribunal had jurisdiction to deal with the Application.

(b) The proper construction of the eligibility criterion in s 16(1)(b)(ii) of the VAD Act

As I have already mentioned, s 16 sets out a number of criteria which must be met before a person is regarded as eligible to access voluntary assisted dying under the VAD Act. This review concerns only s 16(1)(b)(ii) which provides that the person seeking access to voluntary assisted dying:
at the time of making a first request, has been ordinarily resident in Western Australia for a period of at least 12 months.
There are three components to the eligibility criterion in s 16(1)(b)(ii):
·Whether the criterion is met is to be judged as at the time the person made a first request. As I have observed, the date on which Mr AB made the First Request was 13 October 2023. (I digress to observe that while, on a review, the Tribunal may take into account new material, whether or not it existed at the time the decision was made, or whether or not it was before the decision maker,[16] nevertheless, any such new material must pertain to the state of facts which existed as at 13 October 2023, when Mr AB made the First Request);
·The person seeking to access voluntary assisted dying must have been 'ordinarily resident in Western Australia' prior to making the first request; and
·The person must have been ordinarily resident for a minimum time, namely a period of at least 12 months.
[16] State Administrative Tribunal Act 2004 (WA), s 27(1).
The key question in this case concerns the meaning of the phrase 'ordinarily resident'. That phrase is not defined in the VAD Act. Discerning its meaning requires the application of orthodox principles of statutory construction, namely to identify the meaning – that is, the ordinary and grammatical sense – of the words used, but understood within their statutory context, including the legislative purpose.[17] In so far as that context includes the statutory purpose, that purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials.[18]
[17] Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208 at [5] (Buss P and Murphy JA); Mohammadi v Bethune [2018] WASCA 98 at [31].
[18] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [25].
There are two components to the phrase 'ordinarily resident': 'ordinarily' and 'resident'. The word 'ordinarily' is an adverb, the ordinary and natural meaning of which is 'in ordinary cases, usually; in the ordinary way; and to the usual extent'[19] and 'in the ordinary or usual course of events or state of things; in most cases; usually, commonly'.[20] One of the meanings of the word 'ordinary' is 'customary, normal'.[21] 'Usual' means 'in ordinary use or observance; having general currency, validity, or force; commonly observed or practised; current, prevalent'.[22]
[19] Macquarie Dictionary (Online edition)
[20] Oxford English Dictionary (Online edition).
[21] Macquarie Dictionary, (9 ed, 2023) ‘ordinary’.
[22] Oxford English Dictionary (Online edition) 'usual'.
The second component of the phrase is 'resident'. A 'resident' is one who 'resides, dwells, or has an abode in a place',[23] while to 'reside' means 'to dwell permanently or for a considerable time, to have one's settled or usual home in or at a particular place'[24] and 'to abide, lie, or be present habitually in'.[25]
[23] Oxford English Dictionary (Online edition) 'resident'.
[24] Oxford English Dictionary (Online edition) 'reside'.
[25] Macquarie Dictionary (Online edition) 'reside'.
The ordinary and natural meaning of the phrase 'ordinarily resident', therefore, directs attention to a person who usually or commonly or habitually dwells in, or has their settled or usual home in a particular place, in this case Western Australia. That criterion imports an element of permanence in relation to where the person makes their home.
The meaning of the phrase 'ordinarily resident' must, as I have observed, be understood within its context. Its immediate context is that the legislature has required that at the time of making the first request, the person must have been ordinarily resident in Western Australia for a period of at least 12 months.
That assessment falls to be made as at the date of the first request by the person. The co-ordinating practitioner, (and the Tribunal in their place, on a review) look back in time to see what the factual situation was, prior to the first request.
In my view, the reference to 'a period of at least 12 months' contemplates the portion of time in which the person has been 'ordinarily resident'. The term 'period' means 'any specified division or portion of time'[26] and 'an indefinite portion, spell, or interval of time; a portion of one's life'.[27] Furthermore, the reference to 'at least 12 months' signals the legislature's intention that the focus of attention is not solely on the period of 12 months prior to the first request. Rather, the inquiry is whether, prior to the first request, the person had been ordinarily resident in Western Australia for a minimum of 12 months.
[26] Macquarie Dictionary (Online edition) 'period'.
[27] Oxford English Dictionary (Online edition) 'period'.
In addition, the reference to a period (of at least 12 months) is in the singular in s 16(1)(b)(ii) – that is 'a period'. In other words, the criterion is that the person must have been ordinarily resident for a discrete portion of their life, of at least 12 months' duration, rather than for periods of time which, taken together, might add up to at least 12 months. To take an extreme example, a person could not rely upon the fact that they had spent their young adult years in Western Australia (perhaps studying at university) before moving interstate for many years, during which time they had a job, bought a house, and had a family, but then returned to Western Australia six months prior to making a first request to access voluntary assisted dying. In my view, they could not rely upon the accumulation of their time living in Western Australia during their early adulthood, plus the six months immediately prior to the first request, as the basis for claiming a period of at least 12 months of being ordinarily resident in the State under s 16(1)(b)(ii) of the VAD Act.
Turning to the legislative purpose, the criterion in s 16(1)(b)(ii), as with all the criteria in s 16 of the VAD Act, operates to confine access to voluntary assisted dying. In this respect, access is confined to persons who, at the time of the first request, can be said to have usually or commonly or habitually dwelled in, or who have had their settled or usual home in, Western Australia, for a period of at least 12 months. Clearly, the intent of the legislature was to exclude those who might come to this State, temporarily and briefly, and only for the purpose of accessing voluntary assisted dying. In the context of the VAD Act, which has been viewed in some quarters as controversial in nature, the concern of the legislature was to confine access to voluntary assisted dying to persons living in Western Australia on a more permanent basis rather than to make it available to visitors who might come here solely to access voluntary assisted dying.
Further, confining access to voluntary assisted dying in that way is entirely consistent with the principles which must be observed by all persons exercising a power or performing a function under the VAD Act. Those principles are set out in s 4 of the VAD Act, and include that 'a person approaching the end of life should be provided with high quality care and treatment, including palliative care and treatment, to minimise the person's suffering and maximise the person's quality of life'; that 'a therapeutic relationship between a person and the person's health practitioner should, wherever possible, be supported and maintained'; and that 'a person is entitled to genuine choices about the person's care, treatment and end of life, irrespective of where the person lives in Western Australia and having regard to the person's culture and language'.[28] Compliance with those principles would be very difficult, or impossible, in the case of a person who came to Western Australia only briefly, and temporarily, for the purpose of accessing voluntary assisted dying, and in those circumstances, that would likely be for the reason that voluntary assisted dying was not available to them in their usual place of residence.
[28] VAD Act, s 4(1).
The meaning of the words used in s 16(1)(b)(ii) of the VAD Act requires particular attention to where the person was a resident in the period immediately prior to making the first request to access voluntary assisted dying. However, the criterion does not require that the person have been present in Western Australia consistently during that period of at least 12 months. The requirement that the person be 'ordinarily resident' in Western Australia permits of the possibility that the person may have been absent for a portion, or portions, of time, within the period prior to making the first request, but that notwithstanding those absences, Western Australia remained the place where they had been ordinarily resident for at least 12 months. That choice of language reflects an appreciation by the legislature that persons who are ordinarily resident in this State may leave the State for various reasons, such as for work, study, holidays or to visit family who live outside Western Australia. In the case of a person who otherwise meets the criteria for access to voluntary assisted dying, those persons may also be absent from the State to obtain access to medical treatment not available in this State.
In the case of a person who applies to access voluntary assisted dying, and who has made Western Australia their home or abode, and who has not left the State at all, for at least 12 months prior to making their first request, satisfaction of the criterion in s 16(1)(b)(ii) will pose no difficulty. In the case of persons who have not been living in Western Australia for some portion, or portions, of time during the 12 months prior to making the first request, an assessment will need to be made by the co-ordinating practitioner (and, in the event of a review, by this Tribunal) as to whether, despite those absences, Western Australia was the place where they were 'ordinarily resident' for at least 12 months prior to the first request.

I should immediately observe that that does not mean that where the person was living more than 12 months prior to making the first request, or even after making the first request, will be irrelevant to the assessment. On the contrary, the question whether a person was ordinarily resident in the State for a period of at least 12 months prior to making the first request will necessarily be informed by taking into account where they were living for periods prior to that timeframe, and in the event of a review in the Tribunal, where they have been living since that first request.
The meaning of the phrase 'ordinarily resident' which I have discerned from the words used in s 16(1)(b)(ii) is consistent with the meaning given to that phrase in other legislation.
The criterion in s 16(1)(b)(ii) is in similar, but not identical, terms to that in s 9 of the Voluntary Assisted Dying Act 2017 (Vic). That section requires that to be eligible for access to voluntary assisted dying, a person must be ordinarily resident in Victoria, and at the time of making a first request, have been ordinarily resident in Victoria for at least 12 months.
The meaning of the phrase 'ordinarily resident' in s 9 of the Voluntary Assisted Dying Act 2017 (Vic) was considered by the President of the Victorian Civil and Administrative Tribunal, Justice Quigley, in NTJ v NTJ.[29] Her Honour considered the meaning of the phrase 'ordinarily resident' which appears in a variety of statutory contexts, especially in bankruptcy cases.[30] Her Honour observed:[31]
The authorities stress that the words 'resident' and 'ordinarily resident' have their ordinary meaning. That is, whether a person is 'ordinarily resident' in a place is a question of fact and degree that depends on the circumstances of the case. For example, in the relatively frequently cited decision of Re Taylor; Ex parte Natwest Australia Bank Ltd, [32] Lockhart J said (in the context of a creditor's petition):
I shall not attempt to give any comprehensive definition of the word “resident”. It has no technical or special meaning for the purposes of the Act. Nor do the words “ordinarily resident” have any such technical or special meaning. They are ordinary English words. Whether a debtor is ordinarily resident in Australia is a question of fact and degree. That point is made by many of the reported cases, both in this country (see for example Robertson v Commissioner of Taxation (Cth) [(1937) 57 CLR 147] per Dixon J at 163) and the United Kingdom (see Re Brauch (A Debtor); Ex parte Britannic Securities & Investments Ltd [1978] Ch 316 per Goff LJ at 330-331), where his Lordship conveniently collects some of the relevant authorities.
[29] NTJ v NTJ(Human Rights) [2020] VCAT 547 (NTJ)..
[30] Ibid, [65] – [66], [74] ff.
[31] NTJ at [75].
[32] Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194; [1992] FCA 296.
Her Honour went on:[33]
Similarly, in Re Vassis; Ex parte Leung,[34] Burchett J said (again in the context of a creditor's petition):
The question where a person is ordinarily resident is a question of fact: Levene v Commissioners of Inland Revenue [1928] AC 217. It is obviously not to be answered, in respect of any particular time, by asking where that person was then resident. Otherwise, the word “ordinarily” would have no meaning. But even the unqualified concept of residence is not tied to the accidents of a day; for, as Viscount Sumner said in Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 245: “One thinks of a man's settled and usual place of abode as his residence.” At the same time, his Lordship pointed out that “in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question”. In s 43 of the Bankruptcy Act, the phrase is not “resident in Australia”, but “ordinarily resident in Australia”, and it expresses an alternative to “personally present … in Australia”. In such a context, it must convey the former of the meanings which I have quoted from Viscount Sumner's speech rather than the latter. If a man's home is in Australia, a merely temporary absence will not prevent his being “ordinarily resident in Australia”. It is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him as ordinarily resident in Australia. In Akbarali v Brent London Borough Council [1983] 2 AC 309 at 344, Lord Scarman said: “For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.”
[33] NTJ at [76].
[34] Re Vassis; Ex parte Leung (1986) 9 FCR 518.
Justice Quigley distilled the following principles from those cases (which are consistent with the meaning of the words 'ordinarily resident' which I have discerned as a matter of ordinary statutory construction), and which summary I gratefully adopt.[35]
[35] NTJ at [77]
As submitted by the Secretary and the Board, the following principles can be distilled from Re Taylor; Ex parte Natwest Australia Bank Ltd and Re Vassis; Ex parte Leung:
a.'resident' and 'ordinarily resident' are not technical terms and have their ordinary English meaning;
b.whether a person is 'ordinarily resident' is a question of fact and degree;
c.to say a person is 'ordinarily resident' must mean something more than being 'resident' with the word 'ordinarily' connoting a comparison, a measure of degree;
d.it is settled and usual place of abode, the place where a person regularly or customarily lives;
e.there must be some element of permanence, to be contrasted with a place where a person stays only casually or intermittently;
f.a person may have two places of residence, may regularly live in each, and cannot be physically present in both at the same time, but may be resident (or ordinarily resident) in each at the same time; and
g.a temporary absence from the relevant jurisdiction may not prevent a person from being “ordinarily resident” in that jurisdiction. It is a question of fact and degree at which point a temporary absence might “if sufficiently prolonged” prevent it being proper to continue to regard the person as ordinarily resident in that jurisdiction. Whether the person intends to return to the jurisdiction after the temporary absence is relevant to determining whether they are “ordinarily resident” during the absence.
Justice Quigley went on to discuss the application of the phrase 'ordinarily resident' and the phrase 'resident' in a number of other cases before then applying the criterion to the facts of the case in NTJ. In applying the criterion of 'ordinarily resident' in NTJ, Justice Quigley made a number of observations[36] about how the criterion of 'ordinarily resident' may be applied. I respectfully agree with what her Honour said, which may be summarised as follows:
·Whether a person is 'ordinarily resident' in a State is a matter of fact and degree;
·The person may be resident without always being physically present;
·The requirement that a person be 'ordinarily resident' requires something more than the mere fact of residing in a place. It requires a finding of where a person regularly or customarily lives as opposed to being temporarily resident for holiday, business or educational purposes;
·To be ordinarily resident in a State does not preclude a person having more than one residence, such as having a home in that State and a holiday home in another State or country;
·The requirement does not amount to a requirement that the person have real property ownership or a fixed address. A person may be able to demonstrate that they are ordinarily resident in a State when they live in different locations, within that State or elsewhere, such as by evidence of a common or usual attachment to a place in the form, for example, of a driver's licence, car registration and insurance, Medicare or Centrelink registration and so on;
·A person's subjective opinion or intentions as to where or how they view themselves as 'ordinarily resident' are relevant; and
·Also relevant to whether a person is 'ordinarily resident' in a State will be whether the person has a long association with a State as a permanent resident, and who, despite absences, including lengthy absences, outside the State, regularly returns home to the State, and who has close connections to people in the State, such as family.
[36] NTJ at [83] – [88].
Before turning to the evidence before the Tribunal in this case, it is appropriate to refer to the reasons of the co-ordinating practitioner as to how she came to the conclusion that Mr AB had not been ordinarily resident in Western Australia for at least 12 months prior to the First Request.
By a letter dated 9 February 2024, which constituted her reasons for decision (and which was provided to the Tribunal pursuant to orders I made at the directions hearing), Dr CD noted that there had been discussion as to whether Mr AB would be eligible, as the information from the palliative care team was that he had only recently moved to Western Australia – that is, that he had not been ordinarily resident in Western Australia for at least 12 months at the time of the First Request. Dr CD also noted that notes from Mr AB's first admission to hospital approximately six weeks prior to the First Request said that Mr AB had very recently arrived to stay with his friend. That is not a full summary of the reasons for decision, but I simply refer to it to indicate that there seems to have been minimal evidence available to Dr CD in relation to where, in fact, Mr AB had been ordinarily resident prior to the First Request.
I turn, next, to the evidence before the Tribunal in relation to Mr AB.

(c) My findings on the evidence before the Tribunal

Mr AB provided a witness statement to the Tribunal dated 12 February 2024. He also relied on a witness statement of his close friend, Ms S, dated 11 February 2024 and filed 12 February 2024. Ms S has been his best friend since the early 2000s. Both witness statements were tendered in evidence at the hearing. The evidence of Mr AB and of Ms S was supplemented, where required, in the course of the hearing following inquiries by me as to matters on which I required clarification. In addition, Mr AB's counsel, Ms Young SC, tendered a bundle of documents relevant to the question before the Tribunal.
The evidence of Ms S corroborated Mr AB's evidence in a number of respects. It was very useful to have had the benefit of the evidence of Ms S because, in addition to the documents, it helped to clarify some of the dates relevant to issues or events and as to which Mr AB's recollection appeared to be less precise than might otherwise have been desirable.
The evidence of Mr AB and Ms S was unchallenged. Having regard to their evidence, to the corroborative impact of the evidence of Ms S in relation to Mr AB's evidence and to the documents which were consistent in many respects with their evidence, I am satisfied that the following matters of fact are established, and I make the following factual findings.
Mr AB was born in New South Wales in 1956. He is an Australian citizen.
Mr AB moved to Western Australia in 1991. He worked in various jobs in Western Australia from 1991 to 2021.
Mr AB lived in regional Western Australia from at least 1998 and lived in one house in a regional Western Australian town from 1998 to April 2021. The house was made available to him as a condition of his employment. Mr AB made many improvements to the house over the period during which he lived there, including to the garden.
Ms S also lived at the same house from early 2003 until April 2021. Initially she lived with Mr AB in a romantic relationship, but from about 2006, she shared the house with him as a friend and housemate. They shared responsibilities for looking after the house and garden, and for pets they adopted during those years. They were active in the local community where they lived.
During the period from 1998 to 2021, Mr AB also travelled extensively throughout the region where he lived in Western Australia and made many friends there.
Mr AB has held a Western Australian driver's licence since about 1991. He has not held a licence from any other jurisdiction in that period. He also holds a Western Australian skipper's ticket. He has not held a skipper's ticket from any other jurisdiction.
Mr AB opened a bank account at the branch in the regional town where he lived and has maintained that account since then.
In about March 2007, Mr AB purchased a run-down property in New South Wales, in a town near to where his parents and one of his siblings resided (New South Wales property). He bought it so he would have somewhere to stay when he visited his parents, and with the intention of renovating it, as an investment. He did not move into the New South Wales property on a permanent basis. Other than for when he was renovating the New South Wales property, Mr AB did not live at that property.
At various times between 2007 and 2021, Mr AB would have holidays in which he would travel to New South Wales, during which time he would work on the renovation of the New South Wales property.
In about 2010 or 2011, Mr AB went to Cambodia where he met a woman, Ms K, who became his romantic partner. They have a son together, and Mr AB regards Ms K's daughter as his adopted daughter. His intention was to visit Cambodia on a regular basis and eventually to bring the children to Western Australia. Although his illness has prevented Mr AB from fulfilling that plan, he has visited Ms K and their children in Cambodia, and when he has done so, he has stayed with them. He has not lived in Cambodia for any substantial length of time.
Mr AB was diagnosed with lung cancer in December 2019. He was diagnosed with brain cancer in about June 2022. The prognosis he was initially given was that he had a life expectancy of about a year.
From 2020, Mr AB used leave from his employment to have chemotherapy and radiotherapy for his cancer. Some of his treatment was in Perth, but later he was able to have treatment in the town where he lived. Ms S was his carer during this time. When his leave expired, he resigned from his employment in April 2021, as he was too ill to continue working.
When he resigned from his employment, Mr AB also had to leave the home in which he had been living. Although his employer offered to permit him to stay at the house, paying full rent, Mr AB did not wish to do that.
During early 2021, Ms S was house sitting in another regional town, and later purchased a house of her own in that town.
Mr AB decided that he should get his life affairs in order, finish the renovation of the New South Wales property, and do some travelling. He put all of his belongs in storage with friends. He sold one of his cars, but took his other car to New South Wales, which was where he first went.
Mr AB travelled to New South Wales with the intention of completing renovations of the New South Wales property, prior to selling it, so that he could give the proceeds to his Cambodian family.
Between July 2020 and July 2023, Mr AB lived at the New South Wales property while it was renovated (on and off for about 18 months between April 2021 and November 2022), before that property was sold. During that time he also spent time in hospital (in New South Wales, while undergoing treatment for his cancer), returned to Western Australia to visit friends in regional Western Australia, and travelled to Cambodia (between November 2022 to March 2023). He then returned to New South Wales, to ensure the New South Wales property was ready for sale. It sold in July 2023.
In about June 2022, Mr AB decided to cease cancer treatment, and since then he has been in palliative care.
In late July 2023, Mr AB returned to Cambodia for what he knew would be the last time. Unfortunately, he became too unwell to stay, and with the assistance of Ms S and family members, returned to Western Australia in September 2023.
Mr AB always intended to return to Western Australia once he sorted out the New South Wales property, and after saying goodbye to his Cambodian family.
Upon his return, Mr AB lived with Ms S at her home in regional Western Australia for about three weeks, before he was able to find accommodation at a palliative care provider, where he now lives permanently. Fortunately, that is very close to Ms S's home, and she is able to see him every day. Ms S regards herself as like the family Mr AB has chosen and Mr AB regards her in the same way.
Ms S said that when Mr AB left Western Australia for New South Wales in 2021, she understood that he would return home to Western Australia to live with her. Regrettably, it has not been possible for him to continue to live at her home, given he is so unwell, but she continues to care for him, and to be like his family during this difficult time in his life.
Mr AB has six adult children, but only has contact with two of them from time to time. None of them live in Western Australia. Instead, Mr AB regards his support network as being Ms S and many friends in Western Australia, together with a few friends in Cambodia.
Mr AB regards Western Australia as his home, that it is where his heart is, and his heart is in regional Western Australia. He calls himself a Western Australian. He says he wants to die here. He wants to be buried in the same regional town in Western Australia where he lived for more than 20 years, and where he is now living in palliative care.

(d) The correct and preferable decision

Mr AB made his First Request on 13 October 2023. During the 12 months prior to that time, he spent little time in Western Australia. I am, nevertheless, satisfied that Mr AB can properly be said to have been ordinarily resident in Western Australia for at least 12 months prior to the First Request on 13 October 2023. I have reached that view for the following reasons.
First, between 1991 and April 2021, Mr AB lived in Western Australia, on a permanent basis, and was present in the State, other than when he travelled outside the State for holidays or to see family. From 1991 to April 2021, there is no doubt that Mr AB was ordinarily resident in Western Australia. He had his place of residence here, and from 1998 to 2021, lived at the same property, which he clearly made his home, together with Ms S; he had close relationships with Ms S and friends here; he was employed here; he was an active member of his local community in regional Western Australia; and he had a driver's licence and a skipper's ticket from Western Australia. And from September 2023, he returned to live in Western Australia on what will clearly be a permanent basis, until his death.
Secondly, although Mr AB was not physically present in Western Australia for most of the time between April 2021 until the beginning of September 2023, that does not undermine the conclusion that overall, between 1991 and the First Request, he was ordinarily resident in Western Australia. While he lived in New South Wales for substantial periods between April 2021 and September 2023, the evidence supports the conclusion that that was on a temporary basis, and for a specific purpose, namely, to renovate the New South Wales property so that he could sell it, to provide funds for his family in Cambodia after his death. Furthermore, Mr AB left his personal possessions in storage in Western Australia while he went to New South Wales in April 2021. He took a car with him, but he maintained its Western Australian registration while he was out of the State. Those considerations support the conclusion that his time in New South Wales was intended only to be a temporary absence from Western Australia. And once the renovation of the New South Wales property was concluded, and it could be sold, he promptly left New South Wales.

Throughout the period that Mr AB lived outside Western Australia between April 2021 and September 2023, he did not establish the kind of new connections which would ordinarily be regarded as consistent with establishing a permanent home in New South Wales. He kept his Western Australian driver's licence and his Western Australian skipper's ticket. When he was away from New South Wales during that period, it was to return to Western Australia, to see those closest to him here, or to visit Cambodia, where his Cambodian family were. The evidence leaves no doubt that having got his life affairs in order, and having seen his Cambodian family for what he knew would be the last time, Mr AB returned to Western Australia to spend his final days with those closest to him, especially Ms S.
Put another way, the evidence does not support the conclusion that Mr AB could properly be regarded as ordinarily resident elsewhere during that period. In saying that, I do not mean to suggest that in order to establish that a person is ordinarily resident in Western Australia, it is necessary to establish that they were not ordinarily resident anywhere else. That is not the legislative criterion. My point is simply that if, on the evidence, the person met the criteria for being ordinarily resident somewhere else, that may make it more difficult to establish that they were 'ordinarily resident' in Western Australia at the same time, because the sorts of factors relevant to being ordinarily resident may not have been present in relation to their connection to Western Australia during the same timeframe.
Thirdly, Mr AB's own understanding, with which his actions are, in my view, quite consistent, is that he now regards, and has for many years regarded, Western Australia as his home.
Fourthly, to focus solely on the period of 12 months prior to 13 October 2023 (as it appears, with respect, that Dr CD did) would, in my view, be to ignore the fact that s 16(1)(b)(ii) establishes the period of at least 12 months prior to making a first request as merely the minimum period of being ordinarily resident in the State. It is not the only period that one needs to have regard to.
Taking all of the evidence into account, I am comfortably satisfied, and I find, that Mr AB can properly be regarded as having been ordinarily resident in Western Australia from 1991 to the First Request on 13 October 2023.
The orders which should be made are:
1.Pursuant to r 10 of the SAT Rules 2004 the time for the commencement of the review is extended to 2 February 2024.
2.The application for a review of the decision of the co-ordinating practitioner of 19 October 2023 is allowed.
3.The decision of the co-ordinating practitioner of 19 October 2023 is set aside and in substitution for that decision, the Tribunal decides that the applicant is a person who, at the time of making the first request on 13 October 2023, had been ordinarily resident in Western Australia for a period of at least 12 months; and that the applicant therefore met the eligibility criterion in s 16(1)(b)(ii) of the Voluntary Assisted Dying Act 2019 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Honourable Justice Pritchard
14 FEBRUARY 2024