Bornecrantz and Secretary, Department of Social Services (Social services second review)

[2019] AATA 1471

Bornecrantz and Secretary, Department of Social Services (Social services second review) [2019] AATA 1471 (1 May 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6819

Re:Elizabeth Bornecrantz

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:A G Melick AO SC, Deputy President

Date:1 May 2019

Date of written reasons:        26 June 2019

Place:Hobart

The Tribunal is satisfied that the Applicant has failed within a reasonable time to comply with a direction made by the Tribunal under section 33(2) of the Administrative Appeals Tribunal Act 1975 in relation to the application. Pursuant to section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

The Tribunal is also satisfied that the application for review of the decision has no reasonable prospects of success. Pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.

...............................[sgd].................................

A G Melick AO SC, Deputy President

SOCIAL SECURITY – qualification for age pension – residency requirements – 10 years qualifying Australian residence – considerations in s 7(3) of the Social Security Act – Tribunal satisfied Applicant did not satisfy residency requirements

PRACTICE AND PROCEDURE – dismissal – dismissal if fails to proceed with application or comply with a direction within a reasonable time – dismissal if Tribunal satisfied that no reasonable prospect of success

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 42A, 42B

Social Security Act 1991 (Cth), ss 7(3), 43

CASES

Andelman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010
Bornecrantz and Secretary, Department of Social Services [2018] AATA 1108
Filsell and Comcare [2009] AATA 90

Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366

WRITTEN REASONS FOR ORAL DECISION

A G Melick AO SC, Deputy President

26 June 2019

1. The application seeks a review of the decision of the Social Services & Child Support Division of the Tribunal dated 29 October 2018, affirming a decision to reject Mrs Bornecrantz’ claim for age pension made on 26 October 2016.

2. A directions hearing was held on 1 May 2019 and all parties attended by telephone. The Applicant was represented by her husband, Mr Bornecrantz. At the conclusion of that directions hearing the decision and reasons for it were given orally. By email sent 4 June 2019, the Applicant’s representative requested written reasons pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (the Act). Those reasons are set out below.

3. The relevant provisions of the Act that I consider to be applicable to this application are ss 42A(5)(a) and (b), which state:

   Discontinuance, dismissal, reinstatement etc. of application

   (5)  If an applicant for a review of a decision fails within a reasonable time:

   (a)  to proceed with the application; or

   (b)  to comply with a direction by the Tribunal in relation to the application;

   the Tribunal may dismiss the application without proceeding to review the decision.

4. The second section of the Act that is relevant is s 42B(1):

   Power of Tribunal if a proceeding is frivolous, vexatious etc.

   (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  has no reasonable prospect of success; or

   (c)  is otherwise an abuse of the process of the Tribunal

5. I will deal with the decision in relation to s 42A(5) first. On 22 November 2018, the Tribunal set down this matter for a conference by telephone to occur on 31 January 2019 at 10:00am. On 30 January 2019 at 6:34pm the Applicant’s representative emailed the Tribunal. In part, the email read:

   Supplementary submission,

   we’re not interested in a Phone Conference, all conferenced out

   Part of a written submission attached to that email read:

   We do not think that anything can be achieved by an inconvenient telephone conference. All past such conferences have achieved less than zero progress in the understanding of the people from the AAT and those representing the Secretary of the Department of Social Services in their crimes against old-age pensioners that are Australian citizens.

6. The submissions did not deal with the issue at hand and that was the question which I have discussed with the Applicant’s representative, namely whether the Applicant was an Australian resident at the time she lodged her pension.

7. The telephone preliminary conference listed for 31 January 2019 proceeded in the absence of the Applicant. Following that conference, the conference registrar directed that the matter be listed for a telephone directions hearing.

8. Considering the case law in relation to s 42A(5), I note the Respondent’s submissions at paragraphs 17, 18, 19, 20 and 21 of its written submission dated 11 February 2019, namely:

   17. In Andelman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299, Jagot J outlined the two questions which a Tribunal must ask itself when deciding whether to dismiss an application under s 42A(5).

   18. Relevantly His Honour said at [32]:

   [32] the first is whether the factual conditions of s 42A(5) were satisfied. The second is whether the circumstances were such as to make dismissal of the proceeding under s 42A(5) a breach of the Tribunal's obligation, in accordance with the laws of natural justice, to give Mr Andelman a fair hearing.

   19. In Charara v Commissioner of Taxation [2016] FCA 451, Wigney J also considered the principles applicable to dismissal of an application under s 42A(5)(b). The Court's decision was focused on the requirement for procedural fairness to be afforded to an applicant prior to their application for review being dismissed.

   20. Relevantly, His Honour stated:

   [75] The discretionary power to dismiss an application under s 42A{5) is in aid of the objective in s 2A{b) of the AAT Act: Berry v Commissioner of Taxation [2015] FCA 1244 at [35]. That section provides as follows:

   In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism for review that is:

   (b) fair, just economical, informal and quick ...

   …

   [78] The discretionary power in s 42A(5)(b) of the AAT Act is only enlivened if the applicant fails "within a reasonable time" to comply with the direction. Thus, before the Tribunal exercises the discretion, it must consider and determine not only whether there has been a failure to comply with the direction; it must also consider and determine whether a reasonable time has elapsed since the relevant failure. An omission to do so would constitute a misapplication of s 42A(5).

   [79] The discretion must only be exercised sparingly and as a matter of "last resort": Guse v Comcare [1997} FCA 140; (1997) 49 ALO 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).

   [80] In exercising the discretion, the Tribunal must also afford the applicant procedural fairness: Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward sub missions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy that default.

   [82] If the applicant does provide an explanation for why a direction has not been complied with, or an argument as to why the discretion to dismiss the application should not be exercised, those explanations or arguments are mandatory relevant considerations: LVR (WA) Pty Ltd v Administrative Appeals Tribunal and Another [2012] FCAFC 90; (2012) 203 FCR 166 at 195, [122]. Failure to take any such explanations or arguments into account would constitute an error of law in the exercise of the power: L VR at 198, [143]. And, in order to take an explanation into account, the Tribunal must "engage in an active intellectual process, in which each relevant matter receive[s] [its] genuine consideration: LVR at 198, [145] citing Bat Advocacy NSW Inc v Minister tor Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LG ERA 99 at [44]-[45]; Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 540, [105].

   21. The Secretary submits that the requirements of s 42A(5) are satisfied. To that end, the Secretary relies on the following facts and circumstances:

   (a)The Applicant was directed to appear at a Conference by Telephone on 31 January 2019, having been sent a Listing Notice on 22 November 2018, that is, 70 days prior to the conference

   (b)The Applicant had sufficient time after being sent the direction, to contact the Tribunal to reschedule the Conference by Telephone if the date or time was inconvenient to her

   (c)The receipt of an email from the Applicant's representative/husband on 30 January 2019 at 6.34pm stating "we are not interested in a Phone Conference" has resulted in delay and uncertainty

   (d)The submissions made by the Applicant's representative/husband on 30 January 2019 do not assist to proceed with the application as the submissions do not deal with the substantive issue before the Tribunal, that is, whether the Applicant was an Australian resident at the time of lodging her claim for Age Pension.

9. I find the above submissions correctly state the law and the relevant principles I have to apply. Therefore the facts I rely upon to suggest the requirements of s 42A(5) are satisfied are that the Applicant was sent a Listing Notice on 22 November 2018 requiring her to appear at a telephone preliminary conference on 31 January 2019.

10. The Applicant had sufficient time after being sent the Listing Notice to contact the Tribunal to reschedule the conference if the date or time was inconvenient. The receipt of an email from the Applicant’s representative on 30 January 2019 at 6:34pm stating ‘we’re not interested in a phone conference’ resulted in delay and uncertainty. The submissions made by the Applicant’s representative in the attachment to the email of 30 January 2019 do not assist to proceed with the application as they do not deal with the substantive issue before the Tribunal, which I have already noted was whether or not the Applicant was a resident at the time the application for age pension was made.

11. Upon that basis, I consider it appropriate to dismiss the application pursuant to s 42A(5). However, if I am wrong about that, I have also considered the principles that are set out in s 42B(1) of the Act.

12. In relation to s 42B(1), I note the case law and relevant law set out by the Respondent at paragraphs 24 to 29 of their written submission dated 11 February 2019, namely:

    24. In Filsell and Comcare [2009] AATA 90, Deputy President Jarvis set out the principles to be considered when deciding s42B applications. Those principles include, at para [33]:

    (d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 428, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.

    (e) Conversely, applications to dismiss under s 428 should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal's time and resources will be wasted, and the tribunal's ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AA T Act) will be impeded.

    25. The Secretary notes however, that in Williams and Australian Electoral Commission (1995) 38 ALD 366, it was held that a matter should not be dismissed merely because a person's case appeared weak.

    26. The Secretary submits however, that the Applicant's case is lacking in substance and has no reasonable prospects as the Applicant was not an Australian resident at the time of claim and her claim for Age Pension cannot be made out as a result.

    27. Section 43 of the Social Security Act 1991 ("the Act") sets out the provisions for qualification for age pension:

    43. Qualification for age pension

    (1) A person is qualified for age pension if the person has reached pension age and any of the following applies:

    (a) The person has 10 years qualifying residence ...

    …

    Note 1:   For qualifying Australian residence see section 7.

    28. In deciding whether the Applicant had a qualifying residence at the time of her claim, the criteria in s7(3) of the Act must be satisfied.

    29. Section 7(3) of the Act provides:

    (3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

    (a) the nature of the accommodation used by the person in Australia; and

    (b) the nature and extent of the family relationships the person has in Australia; and

    (c) the nature and extent of the person's employment, business or financial ties with Australia; and

    (d) the nature and extent of the person's assets located in Australia; and

    (e) the frequency and duration of the person's travel outside Australia; and

    (f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

13. Those submissions correctly state the law and the principles to be applied. In particular, s 43 of the Social Security Act 1991 that sets out the provisions for qualification for age pension. Section 43(1) reads:

    Qualification for age pension

    (1)  A person is qualified for an age pension if the person has reached pension age and any of the following applies:

    (a)  the person has 10 years qualifying Australian residence;

14. There are other subsections in s 43 but none are applicable to the Applicant.

15. I also note that s 7(3) of the Social Security Act 1991 provides:

    Australian residence definitions

    (3)  In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

    (a) the nature of the accommodation used by the person in Australia; and

    (b)  the nature and extent of the family relationships the person has in Australia; and

    (c)  the nature and extent of the person's employment, business or financial ties with Australia; and

    (d)  the nature and extent of the person's assets located in Australia; and

    (e)  the frequency and duration of the person's travel outside Australia; and

    (f)  any other matter relevant to determining whether the person intends to remain permanently in Australia.

16. In relation to s 7(3), I note that the Applicant was only visiting Australia at the time of making her claim, although I accept that there are family relationships with members of her family still residing in Australia. The Applicant has no employment, business or financial ties with Australia. She has no substantial assets in Australia and note that, although her assets may sometimes be as high as $5000, they fluctuate. I also note that the Applicant has been living outside Australia for a considerable period of time and has only visited Australia twice since leaving in 2011.

17. I note, as far as the Applicant’s ties to Australia, she has a daughter, a son and two grandchildren living in Australia, and she and her husband live permanently in the United Kingdom. In her claim for age pension, the Applicant listed her permanent address at St Leonards-on-Sea in the United Kingdom (T6, p 54). In his submission to the Tribunal at the first instance, the Applicant’s representative stated that the Applicant’s intention was not to reside in Australia but in the United Kingdom (T14, p 143)

18. The submissions made on behalf of the Applicant stated ‘Elizabeth will be visiting often’ (T14, p 146) – a clear intention not to reside permanently, only to visit. I also note that, at the time the initial decision was made, the Applicant had not returned to Australia since her visit which ended on 31 October 2016. The Applicant’s representative has previously given evidence that he and the Applicant reside permanently in the United Kingdom (see Bornecrantz and Secretary, Department of Social Services [2018] AATA 1108 and Bornecrantz v Secretary, Department of Social Services [2017] FCA 1010).

19. Therefore, I cannot see how the Applicant can satisfy the residency requirements under s 43(1)(a) and s 7(3) of the Social Security Act 1991 and therefore find that she does not satisfy the qualifications for an age pension.

20. Accordingly, within the power granted to me under s 42B(1)(b) of the Act, I find that the Applicant has no reasonable prospect of success and that it would be a futile exercise, consuming too much time with no result, to allow the matter to proceed. Therefore, I also dismiss the application pursuant to that section of the Act.

21. I should note, furthermore, I have considered the submissions made by the Applicant’s representative about foreign law and citizenship but, in relation to this matter, I am bound by the Australian legislation.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the written reasons for the oral decision herein of A G Melick AO SC, Deputy President

.................................[sgd]..................................

Associate

Dated: 26 June 2019

Date(s) of hearing:	1 May 2019
Advocate for the Applicant:	Mr L Bornecrantz
Solicitors for the Respondent:	Ms G Heggen, FOI and Litigation Branch, Department of Human Services