Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 726
•23 October 2012
[2012] AATA 726
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2298
Re
Philip Boucaut
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 23 October 2012 Place Sydney The Tribunal affirms the decision under review.
...............[sgd].........................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – age pension – whether applicant residing in Australia at the relevant time – relevant considerations – applicant residing in Thailand – applicant planned to remain in Thailand for the foreseeable future – decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 7, 43
Social Security (Administration) Act 1999 s 29, Sch 2, cl 4(1)
CASES
Hafza v Director-General of Social Security (1985) 6 FCR 444
Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241
REASONS FOR DECISION
Senior Member J F Toohey
23 October 2012
BACKGROUND
Mr Philip Boucaut was born in Australia and is an Australian citizen. His wife, who was born in Thailand, is also an Australian citizen. Over the years they have usually spent several weeks each year in Thailand.
Mr and Mrs Boucaut each have a number of serious medical conditions. In 2009, they sold their house in Australia planning to buy a smaller unit that would be easier to maintain. In the meantime, in December 2009 they went to Thailand on holiday. After some time, they decided to stay in Thailand where his wife’s family could help look after her and where the medication she needs is available. They live in a house she already owned in Thailand.
In late January 2012, Mr Boucaut contacted Centrelink to inquire about an age pension. He was advised (correctly) that he had to be present in Australia in order to lodge a claim. He returned to Australia on 2 February 2012 and lodged his claim on 3 February 2012.
Centrelink rejected Mr Boucaut’s application on the basis that he did not satisfy the residency requirement in the Social Security Act 1991 (the Act). He returned to Thailand on 6 March 2012. This was the first time he had returned to Australia since leaving for Thailand in December 2009.
On 30 May 2012, the Social Security Appeals Tribunal affirmed Centrelink’s decision.
Mr Boucaut gave evidence before the Tribunal by telephone on 22 October 2012. He was frank in saying that Thailand has been his and his wife’s home since they decided the stay there some time in 2010. It will remain their home for the foreseeable future. He believes that returning to Australia would put her health at risk and leave her without the support of her family. If and when the time comes, and his wife passes away, he plans to return to Australia and live in Darwin.
Mr Boucaut has approximately $318,000 invested in a term deposit in Australia and he and his wife pay tax on the interest it earns. Other than a small amount in a superannuation fund, they have no other on assets in Australia. He has family in Australia.
Mr Boucaut holds a form of visitor visa in Thailand which requires him to report to the immigration authorities every 90 days.
THE ISSUE
There is no dispute that Mr Boucaut had reached pension age at the time he lodged his application and that he was in Australia at the time. The only question to be decided is whether, at the relevant time, he resided in Australia.
If a person is not qualified on the day on which a claim is made, but becomes qualified within the period of 13 weeks after the day on which the claim is made, then the claim is taken to be made on the first day on which the person is qualified for the social security payment: the Social Security (Administration) Act 1999 (the Administration Act) Sch 2, cl 4(1)
The relevant period is, therefore, from 3 February 2012, when Mr Boucaut lodged his application, to 4 May 2012. Evidence of events and circumstances before and after those dates may be relevant to deciding whether or not he was residing in Australia during that period.
THE RELEVANT LAW
Section 43(1) of the Act provides that a person who has reached pension age is qualified for an age pension if any of the following applies:
(a)the person has 10 years qualifying Australian residence;
(b)the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age; or
(d)if the person reached pension age before 20 March 1997--the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Section 7(5) of the Act provides that a person has 10 years qualifying Australian residence only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i)at least one of those periods is 5 years or more; and
(ii)the aggregate of those periods exceeds 10 years.
Subject to some exceptions, none of which applies to Mr Boucaut, s 29 of the Administration Act provides that a claim for a social security payment may only be made by a person who is:
(a)an Australian resident; and
(a)is in Australia.
Section 7(2) of the Act defines an Australian resident as someone who:
(a)resides in Australia; and
(b)is one of the following:
(i)an Australian citizen;
(ii)the holder of a permanent visa;
(iii)a special category visa holder who is a protected SCV holder.
Section 7(3) of the Act provides that, in deciding whether or not a person is residing in Australia, regard must be had to the following:
(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.
Residence comprises essentially two elements: physical presence and the intention to treat a place as home, at least for the time being, although not necessarily forever: Hafza v Director-General of Social Security (1985) 6 FCR 444, per Wilcox J at 449-450; and see Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241.
In Hafza (above), Wilcox J said:
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place -- even involuntarily: see Commissioners of Inland Revenue v Lysaght (1928) AC 234 at 248 and Keil v Keil (1947) VR 383 -- 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 -- Levene v Inland Revenue Commissioners [1928] AC 217 at p 225 and Judd v Judd (1957) 75 WN (NSW) 147 at p 149 -- together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (No 3) (1969) 16 FLR 231 at 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place -- see the facts of Lysaght (supra) and the reference by Williams J to "a home or homes" -- and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
The considerations in s 7(3) are there to guide the decision-maker in assessing the totality of an applicant’s circumstances; the determination will depend on the facts as found in relation to each individual applicant. No one factor on its own is likely to be determinative.
WAS MR BOUCAUT A RESIDENT OF AUSTRALIA AT THE RELEVANT TIME?
As I have noted above, Mr Boucaut has been entirely frank about his intention to remain in Thailand for the foreseeable future; it has been his home since not long after December 2012 and will remain his home for the foreseeable future.
Mr Boucaut’s temporary immigration status in Thailand does not alter the fact that it has become his home and he is no longer a resident of Australia. As he was not a resident at the time if his application, I must affirm the decision under review.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ........[sgd]................................................................
Associate
Dated 23 October 2012
Date(s) of hearing 22 October 2012 Applicant In person Solicitors for the Respondent Ms B Salaji, Program Litigation and Review Branch, DHS Legal Division
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