BMR, MTH and CJG and THE CO-ORDINATING PRACTITIONER FOR MTH - [2024] WASAT 44

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019 (WA)
CITATION:   BMR, MTH and CJG and THE CO-ORDINATING PRACTITIONER FOR MTH [2024] WASAT 44
MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT
HEARD:   6 MAY 2024
DELIVERED          :   7 MAY 2024
PUBLISHED           :   8 MAY 2024
FILE NO/S:   VAD 5 of 2024
BETWEEN:   BMR
First Applicant
MTH
Second Applicant
CJG
Third Applicant
AND
THE CO-ORDINATING PRACTITIONER FOR MTH
Respondent

Catchwords:

Statutory interpretation - Review of decision of co-ordinating practitioner - Meaning of 'ordinarily resident' - When a person is ordinarily resident for a period of at least 12 months at the time of making the first request - Whether the subject person is 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
Voluntary Assisted Dying Act 2019 (Vic), s 9
Voluntary Assisted Dying Act 2019 (WA), s 4, s 16(1), s 16(1)(b)(ii), s 18(1), s 23(1), s 24(1), s 84, s 84(1)(a)(i), s 93, s 94, s 95
Voluntary Assisted Dying Bill 2019 (WA)

Result:

The decision of the co-ordinating practitioner of 15 April 2024 is upheld and the application is dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr P Doukas
Second Applicant	:	Mr P Doukas
Third Applicant	:	Mr P Doukas
Respondent	:	No appearance

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Third Applicant	:	N/A
Respondent	:	N/A

Cases referred to in decision(s):

AB and CD [2024] WASAT 6
EF, GH AND IJ and KL [2024] WASAT 188
Federal Commissioner of Taxation v Addy [2020] FCAFC 135
Hafza v Director-General of Social Security (1985) 6 FCR 444
Harding v Commissioner of Taxation [2019] FCAFC 29
NTJ v NTJ (Human Rights) [2020] VCAT 547
Re Vassis; Ex parte Leung (1986) 9 FCR 518

REASONS FOR DECISION OF THE TRIBUNAL:

(This decision was delivered orally on 7 May 2024 and has been edited from the recording of the hearing to correct errors of grammar and infelicities of expression.)

Background

Mr MTH is a 70-year-old man with advanced progressive myeloma for which there are no further therapeutic options.
On 15 April 2024, Mr MTH requested access to voluntary assisted dying under the Voluntary Assisted Dying Act 2019 (WA) (Act), which was a 'first request' under s 18(1) of the Act (First Request).
On the same day:
(a)the First Request was accepted by a medical practitioner who became the 'co-ordinating practitioner' for Mr MTH under s 23(1) of the Act and who is the respondent in these proceedings (respondent);
(b)the respondent undertook a 'first assessment' under s 24(1) of the Act to assess whether Mr MTH was eligible for access to voluntary assisted dying; and
(c)the respondent decided that Mr MTH was ineligible for access to voluntary assisted dying.
In the first assessment report form dated 15 April 2024 (part of Exhibit 1), the respondent answered yes to all bar one of the seven eligibility criteria. The respondent indicated 'no' to the eligibility criteria that 'at the time of making the First Request has been ordinarily resident in Western Australia for a period of at least 12 months'.
In a document dated 3 May 2024 (part of Exhibit 1), the respondent confirmed that the respondent had concluded that Mr MTH met all bar one of the eligibility criteria for access to voluntary assisted dying. However, the respondent said that he was unable to conclude that Mr MTH had been ordinarily resident in Western Australia for a period of 12 months as Mr MTH had returned to this State in February 2024 after a long absence interstate (Decision).
In a report dated 15 April 2024 (part of Exhibit 1), the respondent identified that the information he had received from Mr MTH leading to the Decision was that:
(a)Mr MTH had lived in Western Australia from the ages of 5 to 7 years and had gone to school in Western Australia during that period;
(b)Mr MTH had lived in Western Australia again from the age of approximately 25 to 27 years;
(c)After that, Mr MTH returned to Western Australia intermittently including for his father's funeral 10 years ago; and
(d)Mr MTH returned to Western Australia permanently on 14 February 2024, because he had become too frail to undergo unsupported treatment for myeloma in rural Victoria, where he lived. He has a sister and niece in Western Australia who provide him with support.
On 1 May 2024, Mr MTH, Ms BMR and Ms CJG applied to the Tribunal for review of the Decision. Ms BMR is Mr MTH's niece and Ms CJG is his sister, and Ms BMR's mother.
Pursuant to directions made by President Pritchard on 3 May 2024, the hearing took place on an urgent basis on 6 May 2024, and in private.
Her Honour also made orders pursuant to s 34, s 61(h) and s 62(3) of the State Administrative Tribunal Act 2004 (SAT Act) that:
(a)the applicants are to be referred to as 'BMR', 'MTH' and 'CJG';
(b)the respondent is to be described as 'the co-ordinating practitioner for MTH'; and
(c)the applicants' and the respondent's names and any information which might enable the applicants or the respondent to be identified is not to be published except as required by the Act.
I have considered all the evidence available to the Tribunal at the hearing yesterday, and the detailed oral submissions of the applicant's counsel, Mr Peter Doukas.
I have concluded that the correct and preferable decision is that, as at the date of the First Request, Mr MTH had not been ordinarily resident in Western Australia for a period of at least 12 months. Accordingly, the Decision must be upheld, and the application dismissed.
I will now set out the reasons for that conclusion. In these reasons I deal with the following matters:
(a)the standing of BMR and CJG to be applicants;
(b)the proper construction of the eligibility criterion in s 16(1)(b)(ii) of the Act;
(b)my findings on the evidence;
(c)the applicants' submissions; and
(d)the correct and preferable decision.

Standing of the applicants

Section 84(1) of the Act restricts the ability to seek review of various decisions to an 'eligible applicant', which term is defined in s 83 of that Act as meaning –
(a) a patient who is the subject of a decision referred to in s 84(1); or
(b) an agent of a patient referred to in paragraph (a); or
(c) any other person who the Tribunal is satisfied has a special interest in the medical care and treatment of a patient referred to in paragraph (a).
Mr MTH falls within the first category of 'eligible applicant'.
In this Tribunal, in EF, GH AND IJ and KL [2024] WASAT 188 at [20] - [23], his Honour Judge Jackson said that:
(a)there did not appear to be any decision which addressed the scope of s 84(1)(c);
(b)the Second Reading Speech and the Explanatory Memorandum for the relevant Bill expressed the view that 'merely being a member of the person's family or their primary caregiver is not, on its own, intended to be sufficient to constitute having a special interest'. However, that limitation does not appear in the legislation;
(c)in his Honour's view, a strict or narrow approach should not be taken to the question as to what amounts to a special interest in the medical care and treatment of the patient in question.
(d)amongst other things, the need to protect patients from potential abuse or coercion, which is expressed as a principle of the Act at s 4(1)(j) supports the proposition that a broad view of a 'special interest' may need to be taken.
(e)in his view, the review function provided by s 84 of the Act provides a degree of protection for patients from those whose concern may not be the welfare of the patient, and the Tribunal should therefore be slow to find that an applicant lacks the necessary special interest.
(f)whether any particular applicant does fall within s 84(1)(c) must be determined on the merits in light of the facts.
It was not necessary for Judge Jackson to determine whether the applicants (other than the patient) fell within s 84(1)(c) because on the evidence before him they were acting as agents for the applicant, the subject of the decision.
I agree with Judge Jackson's comments concerning the interpretation of s 84(1)(b) and adopt them.
On the evidence before me, Ms BMR and Ms CJG both hold Mr MTH's enduring power of attorney and both have been formally appointed by him to make medical decisions on his behalf. Mr MTH is currently living in Ms CJG's home. Both Ms BMR and Ms CJG provide Mr MTH with care and support. During the hearing, Ms BMR in particular, advocated strongly on Mr MTH's behalf.
I am satisfied that they have no personal interest in the outcome of the decision other than a genuine concern that their uncle and brother be able to access voluntary assisted dying in accordance with his expressed wish.
On that basis, I am satisfied that Ms BMR and Ms CJG both have a special interest in Mr MTH's medical care and treatment and are appropriately applicants under s 84(1)(c).

Criteria for an application under s 84(1)(a)(i)

I am satisfied that the criteria set out in s 84(1)(a)(i) of the Act conferring jurisdiction on the Tribunal to review the Decision have been met. In addition, the application was made within 28 days of the Decision as required by rule 9 of the State Administrative Tribunal Rules 2004 (WA).

Construction of s 16(1)(b)(ii)

Section 16(1)(b)(ii) of the Act provides that, in order for a person to be eligible for voluntary assisted dying, the person must meet the criteria that the person 'at the time of making the first request, has been ordinarily resident in Western Australia for a period of at least 12 months'.
The interpretation of the phrase 'ordinarily resident' was recently considered by her Honour, President Pritchard, in AB and CD [2024] WASAT 6 (AB and CD). Her Honour said at [22]:
The ordinary and natural meaning of the phrase 'ordinarily resident' … 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.
Section 16(1)(b)(ii) requires the person to have been ordinarily resident for a single discrete period of at least 12 months, rather than for periods of time which, taken together, might add up to at least 12 months.[1] If there has been a period of time where the person was not 'ordinarily resident' in Western Australia, any period of time before that period, where the person was 'ordinarily resident' in Western Australia, will not count in the calculation of the period of 'at least 12 months'. However, a person may continue to be 'ordinarily resident' in Western Australia even if they have been absent from Western Australia for periods of time within the period prior to making the first request.[2]
[1] AB and CD at [26].
[2] AB and CD at [29].
In AB and CD, at [36], Justice Pritchard adopted a summary of the principles to be discerned from the authorities set out by her Honour, Justice Quigley in NTJ v NTJ (Human Rights) [2020] VCAT 547 (NTJ) at [77] concerning the similarly worded provision in the Voluntary Assisted Dying Act 2017 (Vic). Justice Pritchard also agreed with, and summarised, a number of observations made by Justice Quigley about the application of the criterion of 'ordinarily resident'. I accept what has been said by both Justice Pritchard and Justice Quigley as correctly reflecting the authorities. Relevantly to this matter those principles are as follows:
(a)whether a person is 'ordinarily resident' in a place is a question of fact and degree;
(b)to say a person is 'ordinarily resident' means more than merely residing in a place. It is a settled and usual place of abode, a place where a person regularly or customarily lives;
(c)there must be some element of permanence, to be contrasted with a place where a person stays only casually or intermittently;
(d)a person may be 'ordinarily resident' in more than one place at the same time;
(e)a temporary absence from a place may not prevent a person from being 'ordinarily resident' in that place. It is a question of fact and degree at which point a temporary absence might prevent it being proper to continue to regard the person as 'ordinarily resident' in that place;
(f)whether the person intends to return to the place after the temporary absence is relevant to determining whether they are 'ordinarily resident' in the place during the absence;
(g)it is not necessary that the person have real property ownership in the place, or a fixed address.
(h)relevant considerations as to whether a person is 'ordinarily resident' in a State include:
(i)the person's subjective opinion and intentions as to where or how they view themselves 'ordinarily resident';
(ii)whether the person is able to adduce evidence of common or usual attachment to the State such as by way of a driver's licence, car registration, insurance, Medicare or Centrelink registration or otherwise; and
(iii)whether the person has a long association with the 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 associations to people in the State, such as family.
With respect to the concept of a temporary absence, Quigley J in NTJ at [76] cited with approval the decision of Burchett J in Re Vassis; Ex parte Leung (1986) 9 FCR 518 (concerning residence in Australia) in which it was said:
… It is a question of fact or 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 Hafza v Director-General of Social Security (1985) 6 FCR 444, Wilcox J said that the concept of residency had two elements: physical presence in a particular place and the intention to treat that place as home, at least for the time being. His Honour said at [449]:
Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place … a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that the place remains 'home'.
The importance of establishing a continuity of association with a place in determining whether a person may be said to 'reside' in that place has been restated in Harding v Commissioner of Taxation [2019] FCAFC 29 and Federal Commissioner of Taxation v Addy [2020] FCAFC 135 (Federal Commissioner of Taxation v Addy), with reference to factors such as continuing to have a home, a family unit, possessions, and relationships with people and institutions in the place as well as evidence of the person's intention to treat a particular place as their home.
In Federal Commissioner of Taxation v Addy at [74] Derrington J, with whom Steward J agreed, said in relation to the determination of whether a person 'resides in Australia', that a person's intention to make a particular place 'home' either permanently or temporarily is an elemental consideration in the identification of where that person resides. However, it is clear in that case that the intention must be coupled with the establishment, by physical presence, of a 'home' in the place, and that intention alone is not determinative of the issue of residence.

Findings on the evidence

Mr MTH, Ms BMR and Ms CJG each provided a signed witness statement dated 6 May 2024 which were tendered in evidence at the hearing along with the documents referred to in those statements (Exhibits 2, 3 and 4 respectively). Additional documents concerning Mr MTH's enrolment in a clinical trial were received after the hearing on 6 May 2024 (Exhibit 5). That evidence was supplemented by oral evidence from each of the applicants during the course of the hearing on 6 May 2024.
To deal first with the limits of my decision-making power, a great deal of the written and oral evidence of Ms BMR and the written evidence of Ms CJG, and to a certain extent Mr MTH, concerns the details of Mr MTH's current suffering and his very clear wish to access voluntary assisted dying. Mr MTH also points out that he was eligible to access voluntary assisted dying in Victoria and had chosen to come home to Western Australia to die with his family, expecting that he would be eligible because he has spent large parts of his life in this State. Both Ms BMR and Ms CJG say that they do not understand why Mr MTH, who considers himself to be a Western Australian, 'has to fight so hard to access something that he had access to in Victoria'. Ms BMR points out that Mr MTH cannot be regarded as a 'medico‑tourist'. The process of making this application has clearly added to the distress of an already very distressing time in all their lives.
However, the merits of the restriction under s 16(1)(b)(ii) of the Act is not a matter for me to determine. Neither is the evidence of Mr MTH's suffering and wish to access voluntary assisted dying relevant to my consideration of whether he meets that residency requirement. Whatever my personal sympathies may be, the limit of my role is to determine whether, on the evidence before me, Mr MTH meets that requirement.
Whilst Mr MTH was apparently eligible for voluntary assisted dying in Victoria there are currently no reciprocal arrangements under the Act. That is, the legislature has made no provision to allow someone who has moved to Western Australia to have the support of their family while dying, from a State where patients have access to voluntary assisted dying, to have such access in Western Australia without meeting the residency requirement. I understand the legislation is currently under review. In that review, the legislature may wish to consider whether it is appropriate to amend the legislation to allow people in a similar position to Mr MTH such access. However, that is a matter for the legislature. I must deal with the legislation as currently drafted.
Turning to the evidence, the evidence in the witness statements and the oral evidence was significantly more extensive than the facts given to the respondent on which he based his decision. I accept that the circumstances of making the first request were very stressful, the applicants did not appreciate the importance of the details of Mr MTH's residence in Western Australia, and that the focus was on the period of 12 months before the First Request. I do not consider that difference reflects on the truthfulness of their evidence.
There were differences between the evidence of each of the witnesses as to the timing of events, and on occasion, between their oral and written evidence, and between their evidence and the documentary evidence. Much of the evidence in relation to Mr MTH's movements over the years was imprecise and vague, and the witnesses often had difficulty remembering specific dates and other details. There were also differences between the evidence of Ms BMR on the one hand and Ms CJG and Mr MTH on the other, as to the timing of events in Victoria from 2018 onwards.
My impression of all of the witnesses is that they were being honest in their evidence.
Many of the events occurred a considerable period of time ago. Given the passing of time, the stress of the current situation and the urgency of the application, these differences and difficulties are entirely understandable. In particular, I accept that over the weekend while the statements were prepared Mr MTH was very gravely ill. He was clearly unwell during the hearing. All of the witnesses were affected to some degree by the distressing nature of the matters they were discussing. However, these issues with the witnesses' evidence remain and undermine the reliability of that evidence to some extent.

As a result, where the witnesses' evidence is contradicted by the documentary evidence, I have preferred the documentary evidence. In addition, where the evidence relates to events occurring in Victoria from 2018, I have preferred the evidence of Ms CJG and Mr MTH over that of Ms BMR, who was resident in Western Australia from 2008. Where the oral evidence of a witness differs from the written statement, I have generally preferred the oral evidence.
On the basis of the evidence I have accepted, I make findings of fact as follows.
Ms CJG is Mr MTH's older sister. They were both born in Victoria. They came to Western Australia with their parents in the year after Mr MTH's birth in 1954, and the family lived in Fremantle. Their father had been born in Western Australia.
Mr MTH's father's parents had emigrated to Western Australia from the United Kingdom in 1919 and his father lived in Western Australia for most of his life.
Mr MTH's parents divorced in June 1955. However, it appears that despite the divorce the family continued to live in Fremantle and the parents remarried in March 1961. Sometime soon after that remarriage, and before August 1961, Mr MTH's mother left her husband and moved to Queensland with Mr MTH and Ms CJG. In 1962 in Queensland Mr MTH's mother gave birth to a girl, who was also Mr MTH's father's child. This sister was given up for adoption and Mr MTH and Ms CJG were placed in care for a time.
At some time later in 1962, Mr MTH's mother took Mr MTH and Ms CJG back to Western Australia and reunited with their father. Subsequently, Mr MTH went to primary school in Western Australia.
Mr MTH's parents separated again in around 1968 and his mother took Mr MTH and Ms CJG to Victoria.
Mr MTH left school at around that time, when he was 14 years old. He lived first with his mother, and then with Ms CJG, in Victoria.
Mr MTH and his sister had a traumatic childhood living with their mother. It is not necessary for me to go into the details of that trauma. However, as a result Mr MTH and Ms CJG have always been very close.
In 1972, when Mr MTH was about 18 years old, he returned to Western Australia from Victoria. At about that time, Mr MTH's father had begun living with another partner.
Mr MTH lived in Western Australia until the early 1980s. He lived for some of that time with his father in Hilton. He also lived in Kalgoorlie for three years doing contract work on the mines. During that time, Mr MTH obtained a heavy vehicle truck licence in Western Australia.
In around 1981 to 1982, Ms CJG had left an abusive marriage and was a single parent of three young children. Mr MTH began to make trips to her home in Lorne, Victoria to support Ms CJG and her children.
For a number of years thereafter, Mr MTH travelled around from place to place where he could find work. This was predominantly between Victoria and Western Australia but he also travelled to Queensland on occasion. During this period Mr MTH had no fixed address.
Mr MTH would stay with Ms CJG in her home when he was in Victoria. He was living with her during the Ash Wednesday bushfires in 1983 when her house burnt down and he lost most of his possessions other than his car. After that Ms CJG found another home and Mr MTH continued to live with her for some time.
Mr MTH's mother moved to Lorne in 1985. At that point Mr MTH was staying with Ms CJG occasionally.
Mr MTH's mother was unwell for a number of years and died in April 1989. At that time, Mr MTH discussed moving back to Fremantle with Ms CJG but she wanted to stay in Victoria.
At about the same time Mr MTH entered into a relationship with a woman in Victoria, which relationship lasted for about 15 years until around 2004. During that time, he lived for a period with her in homes in and around Geelong and Lorne, although they did not live together for the entirety of their relationship.
Mr MTH returned to visit Western Australia after his mother's death, in about 1990 to 1992.
Mr MTH's father moved to a home in Kelmscott at some point and Mr MTH regularly returned to Western Australia to visit him.
Ms BMR moved to Western Australia in around 2008 and settled in Perth.
Mr MTH's father became ill in 2009 and Mr MTH returned to Western Australia in the latter part of 2009 for a number of months. He lived with Ms BMR in her home.
Mr MTH then returned to Victoria to finalise some work commitments. During that period his father's partner left his father and he was moved into a nursing home.
Mr MTH returned to Western Australia in mid-2010 and again lived with Ms BMR. Ms CJG also came to Western Australia for some months. Their father passed away on 21 December 2010.
After his father's death, Mr MTH continued to live with Ms BMR for around 6 months, helping her to finalise his father's affairs.
In early 2011, Mr MTH returned to Victoria to spend time with Ms CJG.
Mr MTH's father had left him a few things when he died which Mr MTH left with Ms BMR in Western Australia. These were kept, with some of Mr MTH's other possessions, in a storage unit that Ms BMR rented. The possessions included his father's war medals, videos, DVDs, photo albums, his father's clothes, some of Mr MTH's clothes, and concreting equipment.
After 2011, Mr MTH visited Ms BMR in 2012 with a friend and stayed for a short time. Ms BMR wanted to get a smaller storage unit and asked Mr MTH and Ms CJG if they wanted to keep the things they had stored in the existing unit. Ms CJG told Ms BMR to dispose of her things as she saw fit. Mr MTH came to Western Australia and went through the things in the storage unit to decide what he wanted to retain. He stayed on in Western Australia for a while after his friend left, working doing concreting and gardening.
Between 2011 and 2018, Mr MTH does not seem to have had a separate home of his own. He lived at times in Ms CJG's home, which at this time was in Kennett River, Victoria, and Ms BMR's home in Aveley, Western Australia. He had a room of his own in both houses.
He worked as a gardener and as a concreter in both States, and sometimes in Queensland. He kept tools for both trades at Ms BMR's home in Western Australia and also in Ms CJG's home in Victoria.
Mr MTH was unclear in his evidence how often he came to Western Australia during this period, referring only to the time in 2012 and another time closer to the onset of the COVID-19 pandemic, which appears to have been in 2018. However, I accept Ms BMR's evidence that Mr MTH made regular trips every year to Western Australia.
It is not possible for me to make a finding on the evidence about how much time Mr MTH spent in Western Australia during each visit. I accept that the amount of time varied from year to year. The best I can say is that when he came to Western Australia he usually came for a few months, and in some years, he would be in Western Australia for six months in total.
When Mr MTH came to Western Australia he stayed with Ms BMR. She had a four-bedroom home. One of the bedrooms was allocated for Mr MTH's sole use. He was the only person who stayed in that bedroom.
When Mr MTH was in Victoria he often lived with Ms CJG, but not invariably. Mr MTH had a room in each of the homes Ms CJG lived in, which was allocated for his sole use. He also kept possessions including work tools at Ms CJG's home, as I have said, which tools were stored under the house. He would work in gardening and as a concreter while in Victoria.
In about May 2018, Ms CJG separated from her husband and Mr MTH, who was then in WA, returned to Victoria to support her. It is not entirely clear where Mr MTH lived when he returned to Victoria although it may have been Colac. However, given the evidence that in April 2019 Mr MTH moved in to live with Ms CJG, I am satisfied that, on this occasion, he did not live at Ms CJG's home after he returned to Victoria, although he did continue to keep some of his possessions at her home, including his tools.
On his birthday in March 2019, Mr MTH was diagnosed with myeloma. In April 2019, Mr MTH moved in to live with Ms CJG in Kennett River, Victoria. He continued to live with her until around Christmas of that year, during which time she took care of him and helped him get to his chemotherapy appointments. Mr MTH moved out at the latest at the beginning of 2020 after which time he rented a home in Colac in Victoria. He had another partner for a period of about two years at around this time. However, it is not clear whether she lived with him in Colac.
Mr MTH was unable to return to Western Australia in 2020 and 2021 because the Western Australian border was closed as a result of the COVID-19 pandemic. In any event, he continued to be unwell.
Mr MTH has not undertaken any work since his diagnosis in March 2019.
Sometime in late 2021, Ms CJG decided to sell her home and move to Western Australia. At that time, Mr MTH did stay in Ms CJG's home in Victoria for a short time, during which he supervised a friend of his undertaking painting and repairs on Ms CJG's house, in preparation for sale. That sale took place around the end of 2021 and the beginning of 2022.
After her house was sold Ms CJG travelled to London to visit her son and his family for a number of months, as the Western Australian borders were still not open due to the COVID-19 pandemic. The borders reopened to interstate and international travellers on 3 March 2022, at which time Ms CJG travelled to Western Australia, where she lived with Ms BMR for a few months. Ms CJG then bought a house in Lake Coogee. She entered into the contract to purchase the property on 7 June 2022 and settlement occurred on 14 July 2022.
Ms CJG purchased a home with four bedrooms as she wanted the home to be large enough to accommodate Mr MTH. It was her expectation that at some time Mr MTH would come to live with her in Western Australia.
Although Mr MTH lived in a rental property in Colac, he continued to keep a number of his possessions in Ms CJG's home in Victoria, which she stored under the house. When Ms CJG sold her home, she asked Mr MTH what he wanted to do with those possessions. He told her to send them to Western Australia. Most of the possessions of any value Mr MTH had in Victoria, being mainly landscaping equipment including a lawn mower and his fishing rods, were moved to Western Australia with Ms CJG's things at the end of December 2021.
Ms CJG continued to provide emotional support to Mr MTH after she moved to Western Australia.
Mr MTH remained in Victoria where he was continuing to receive treatment for myeloma both in Melbourne and in Colac. His condition varied from time to time, in that he would be unwell, receive treatment, recover over time, be relatively well for a while and the cycle would repeat. That is from time to time he may have been fit to travel to Western Australia but he did not do so. While it may be accepted air travel within Australia was expensive after COVID-19, there is no evidence before me that Mr MTH considered returning to Western Australia at that time. Rather, he remained where he was receiving medical treatment for his myeloma.
For a period of time, Mr MTH responded to treatment although he spent time in hospital in September and October 2023.
Mr MTH was informed of the possibility of being accepted into a clinical trial to treat his myeloma in December 2022. He consented to participate in the trial on 1 August 2023 and it appears he commenced on the trial sometime in late 2023. It was not possible for him to participate in this trial if he moved to Western Australia.
Mr MTH had another relapse in December 2023 at which point it was thought he might die. At that time, Ms CJG was again visiting her son in the United Kingdom but cut short her trip at the end of December 2023 to return to Victoria to be with Mr MTH. Mr MTH survived, but then discovered he was ineligible to remain on the clinical trial.
At that point, in early January 2024, Mr MTH made the decision to return to Western Australia.
On 18 January 2024, Mr MTH was discharged from hospital after having been admitted in about December 2023. He vacated his rental property and packed up his belongings with help from his family and returned to Western Australia with Ms CJG on 14 February 2024. He did not take many possessions with him to Western Australia.
Mr MTH did have possessions in his rented accommodation in Colac, including a television and a fridge. These were of limited value and were donated to charity when he returned to Western Australia.
Mr MTH has never owned a house or had many possessions. Over the years he has largely spent what he earned although he does have a relatively small amount of savings. He currently receives a pension.
The evidence is that Mr MTH changed his address for his bank accounts, Centrelink and Medicare records and the electoral roll on coming to live in Ms CJG's house in Western Australia. It is also said that he did not drive in Western Australia upon his return and so did not need a driver's licence.
I infer from this evidence that, prior to returning to Western Australia, Mr MTH held a Victorian driver's licence, and that his address for that, and for his bank accounts, Centrelink and Medicare, was his address in Victoria, and that he was registered to vote in Victoria. I do not have any evidence about his recorded address for taxation purposes, however, infer it was the same address in Victoria as was used for these other administrative and official purposes. I also infer that the address for all these purposes was the address of his residence in Colac, noting the evidence of his referral to the clinical trial in December 2022 (part of Exhibit 5) is the Colac address, and that had been the position since around the time he moved to Colac, at the beginning of 2020.
I do not have any evidence of how long Mr MTH recorded his address for administrative or official purposes before the beginning of 2020. Given that he was living in Victoria, I infer it was an address in Victoria from at least his return to Victoria in May 2018. Whilst I think it is likely that it was also Victoria from 2011, I make no finding in that regard. However, there is no evidence before me that he ever used an address in Western Australia for administrative or official purposes at any time from 2011 until after 14 February 2024. Nor is there any evidence that he has held a driver's licence in Western Australia other than obtaining his heavy vehicle truck licence in Western Australia in the 1980s.
Mr MTH says that he has always considered Fremantle home. He says that is because his childhood in Victoria was traumatic and Fremantle was where he had felt a sense of security, safety, love and normality. He says that he lived in Victoria to be near his sister. I accept that.
With respect to Mr MTH's intention to move to Western Australia to live with Ms CJG, I accept that he believed that he would do so at some time in the future. However, Mr MTH's evidence in his statement which I prefer on this point was to the effect that the decision to move was made when he realised that there was no longer any hope of treatment in Victoria; that is when he was excluded from the clinical trial.

Applicants' submissions

In broad summary, the applicants' counsel submits that Mr MTH has been 'ordinarily resident' in Western Australia for at least 12 months at the time of the First Request for two reasons.
Firstly, it is submitted that Mr MTH was ordinarily resident in Western Australia and Victoria during the period between 2011 and mid-2018, when he lived and worked in both states, he had a room in his relatives' homes in both states, and he kept possessions in both states. It is submitted that he continued to be resident in both states after he returned to Victoria in mid-2018 but that he was prevented from returning. It is submitted that, largely, that was because he was diagnosed with myeloma in March 2019 and was receiving treatment and was unable to travel. Additionally, it is submitted he was unable to travel between about March 2020 and 3 March 2022 because the Western Australian borders were closed to travellers from Victoria, as well as other states.
Alternatively, it is submitted that Mr MTH was ordinarily resident in Western Australia from the time that Ms CJG returned to live in Western Australia and purchased a house in mid-2022. This is on the basis, it is submitted, that Mr MTH had been used over many years to living with family members, in particular with his sister, and the expectation was that he would live with her in the house in Lake Coogee.

Correct and preferable decision

Justice Pritchard said in AB and CD at [27] that:
… 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 voluntary assisted dying. In the context of the [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 making it available to visitors who might come here solely to access voluntary assisted dying.
I note, in addition, that in the second reading speech on the Voluntary Assisted Dying Bill 2019, on 7 August 2019, the expressed intention was that the legislation was to provide a choice to Western Australians who were dying.
I accept, as was submitted to me, that overall Mr MTH has spent roughly about half his life in Western Australia and that he considers himself to be a Western Australian. His grandparents and father lived in Western Australia for nearly a century, from 1919 to 2010. I have accepted that as a result of his childhood experiences that he thinks of Fremantle as home, because it was the place where as a child he was secure, safe and loved. He has a longstanding emotional connection to Western Australia.
I also accept that Mr MTH was eligible for access to voluntary assisted dying in Victoria at the time he left that state on 14 February 2024, and that he returned to Western Australia because he wanted to die with his family around him. It appears that he assumed that he would have access to voluntary assisted dying on his return to this State.
In other words, on the evidence I have accepted Mr MTH is not a person who has come to the State only for the purpose of accessing voluntary assisted dying.
However, as I have said, the legislation does not make an exception to the residency requirement on the basis that voluntary assisted dying was available in the state from which the person seeking access to it had travelled. Nor is the residency requirement to be calculated on the total amount of time the person has lived in Western Australia during their lifetime.
I find that Mr MTH was ordinarily resident in Western Australia for a number of years when he was a child and from 1972 until the early 1980s. After that, however, while he travelled between Western Australia and Victoria on many occasions while his father was alive, his ordinary place of residence appears to have been Victoria. He did stay in Western Australia for a lengthy period of time of around 18 months in total before and after his father's death and it could be said he was ordinarily resident here at that time.
However, after his father's death and the sorting out of his father's estate, Mr MTH lived in Victoria. During that time until May 2018 he visited Western Australia for lengthy periods of time of up to six months a year, worked in Western Australia, was accommodated in a room in Ms BMR's home which was for his sole use and had possessions including work equipment there.
However, in my view, this is insufficient to establish that he was ordinarily resident in Western Australia, as well as Victoria, during that period. There is no evidence of what may be described as administrative or official attachments to Western Australia during that time. He lived in Western Australia intermittently to visit Ms BMR and to work.

In my view, the evidence also does not support a finding that Mr MTH was ordinarily resident in Western Australia, in Ms BMR's house, as well as in Victoria, during the nearly six‑year period from his return to Victoria in May 2018 until he came to Western Australia in February 2024.
Again, whilst I accept that Ms BMR kept a room available for Mr MTH's sole use and that she continued to store a number of possessions for him, I do not consider that these facts are sufficient, on their own or in the context of his longstanding emotional connection with Western Australia, to establish that Mr MTH was ordinarily resident in Western Australia during that period.
After Mr MTH returned to Victoria from his last trip to Western Australia, in May 2018, Mr MTH did not return to Western Australia. Although some of that period was because of the COVID‑19 restrictions there is no evidence before me that Mr MTH had any plans to visit Western Australia during that time, albeit that this is understandable given his medical condition.
As I have found, his residence for administrative or official purposes was in Victoria from at least the time he returned to Victoria in May 2018.
Mr MTH received all his medical treatment in Victoria from at least March 2019.
In my view, Mr MTH made the choice to remain in Victoria after his diagnosis of myeloma in order to continue to receive treatment in Victoria. There is no evidence that he ever explored the possibility of receiving treatment in Western Australia before January 2024.
Whilst I accept that the clinical trial Mr MTH first became aware of in December 2022 and which he entered into in late 2023 was not available to him in Western Australia, there is no evidence that Mr MTH considered moving to Western Australia before he became aware of that trial, or in the lengthy period before he consented to participate in the trial on 1 August 2023.
Whilst the choice Mr MTH made is completely understandable in the very difficult circumstances he faced, it was a choice nonetheless.
In addition, in my view the evidence does not support a finding that Mr MTH was ordinarily resident in Western Australia, in Ms CJG's house in Lake Coogee, as well as in Victoria, from sometime in 2022.
Whilst I accept that for many periods of his life Mr MTH lived with Ms CJG, he was not living with her from at least the beginning of 2020. He lived in a house in Colac, Victoria. He continued to live there after Ms CJG sold her house and moved to Western Australia, apart from a short period where he stayed with her to supervise painting and repair of her home for sale.
When Ms CJG moved to Western Australia Mr MTH did not move with her. Whilst he had periods of time where he was too unwell to travel, during the time from 2022 he was relatively well from time to time. It is not the case that it was not physically possible for him to relocate to Western Australia. Indeed, when he was seriously unwell in February 2024, he flew to Western Australia.
Whilst, as I have said, it is understandable that he chose to stay to continue the medical treatment he was receiving in Victoria and then to participate in the clinical trial, he made a decision to continue to reside in Victoria. As I have said, he did not explore the option of transferring his care to Western Australia before he became aware of the clinical trial.
On the evidence before me there was never any firm plan about when Mr MTH would move to Western Australia to live with Ms CJG. No decision was made about the circumstances under which he would make that move. On the evidence, the decision to move was not made until Mr MTH was told he could not remain on the clinical trial; that is in early 2024. Whilst it may be inferred that had he been well he likely would have followed Ms CJG to Western Australia earlier, that did not occur.
Whilst Ms CJG bought a home of a sufficient size to accommodate Mr MTH at some stage in the future and expected that he would come to Western Australia at some time to live with her, that did not actually occur until February 2024. Whilst Mr MTH did have possessions which went to Western Australia with Ms CJG's possessions and ended up at Ms CJG's new home, those possessions were possessions that had been stored at Ms CJG's home while Mr MTH lived in Colac. They were also, largely, possessions related to his work and recreation, which were of a type he was likely not to require unless and until he was well again. The maintenance of the status quo in relation to those possessions, that is they were stored in Ms CJG's home, first in Victoria and then in Western Australia, while Mr MTH lived in a rental property in Colac, does not materially assist in establishing he was ordinarily resident in Western Australia in my view.
Again, there is no evidence of the establishment of administrative or official connections to Western Australia after Ms CJG moved to Western Australia, until after 14 February 2024. Those connections, as I have found, were all in Victoria. His address for important purposes, including Centrelink and Medicare, was his home in Colac from the beginning of 2020.
For completeness, I do not consider that the fact that during the period from July 2022 Mr MTH had rooms allocated in two homes in Western Australia, in Ms BMR's home and in Ms CJG's home, alters those conclusions.
In my view, on the totality of the facts as I have found them, Mr MTH was not ordinarily resident in Western Australia at any time from at least his return to Victoria in May 2018 until 14 February 2024.
Accordingly, I find that the correct and preferable decision is that at the time of the first request Mr MTH was not ordinarily resident in Western Australia for a period of at least 12 months.

Orders

The Tribunal orders:
1.The application for review of a decision of the co-ordinating practitioner on 15 April 2024 is dismissed.
2.The Tribunal decides that as at the date of the first request of second named applicant, MTH, for access to voluntary assisted dying on 15 April 2024 the applicant had not been ordinarily resident in Western Australia for at least 12 months before the first request was made and the applicant therefore does not meet 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.
GH
Associate
8 MAY 2024