Carswell and Secretary, Department of Social Services (Social services second review)
[2016] AATA 126
•3 March 2016
Carswell and Secretary, Department of Social Services (Social services second review) [2016] AATA 126 (3 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5671
Re
Jeffrey Carswell
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Member Taglieri
Date 3 March 2016
Place Hobart The decision under review is affirmed.
........................................................................
Ms S Taglieri, Member
CATCHWORDS
Age Pension - whether application properly treated as made; meaning of residence and residing in Australia; found not to be residing in Australia at relevant time. Application dismissed.
LEGISLATION
Social Security (Administration) Act 1999
Social Security Act 1991
Administrative Appeals Tribunal Act 1975
CASES
Re: Gracie and Secretary of Department of Family and Community Services [2005] AATA 179
Drake v Minister for Immigration & Ethnic Affairs (1979) 2 ALD 60
Secretary, Department of Family and Community Services v Baccon [2006] FCA 773
Scott and SDSS (1999) 57 ALD 627
Scott and SDSS (2000) FCA 1241
Re: Evans and SDFaCS (2002) AATA 914
Croker and SDFaCS (2000) FCA 1304
Kobayashi and SDSS (2016) AATA 19
Young and SDSS (2015) AATA528
Re: Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) AATA 451
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Member Taglieri
INTRODUCTION
This application concerns a review of the Respondent’s decision not to grant Mr Carswell an age pension, after he applied for one on 15 July 2014[1] (“the claim”).
[1] Claim for Age Pension, T4
Mr Carswell was born in Denmark on 24 May 1943. He immigrated to Australia in 1971 and lived and worked here for many years. He became an Australian Citizen in 1974.
He was married but separated in about 2004[2] and after that, the Respondent’s records evidence of frequent trips and absences from Australia[3].
[2] T4, page 19 of T documents, but compare to T13, when separation was said to be in 1998
[3] T7
The Respondent initially treated the claim as not having been made, because it said that Mr Carswell had failed to submit various information and/or documents[4].
[4] T5
Mr Carswell disputes that he did not provide the information sought by the Respondent. The Respondent did not press this as a reason for justifying the refusal of Mr Carswell’s claim on the hearing of this application, so it is unnecessary for the Tribunal to address this issue.
Instead the Respondent simply contended that the claim made by Mr Carswell was correctly treated as a claim that had never been made, because of section 29(1) of the Social Security (Administration) Act 1999 (“SSA Act”).
Section 29(1) of the SSA Act requires that a claim for a social security payment can only be made if the person is:
(a)An Australian Resident; and
(b)In Australia.
The Respondent conceded that Mr Carswell was in Australia when the claim was received on 18 July 2014, but it disputed that he was an Australian Resident at that time.
The Respondent also conceded that if Mr Carswell’s claim could be treated as having been made, because he was an Australian Resident when he made it, then he would otherwise qualify for age pension because he met the requirements of section 43 of the Social Security Act 1991 (“SS Act”).
The disposition of this appeal therefore requires the Tribunal to consider and determine a narrow issue. Namely, whether Mr Carswell was an Australian Resident on 18 July 2014.
Section 7(2) of the SS Act provides for the meaning of Australian Resident as follows:
…a person 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…
The meaning of Australian Resident for relevant purposes therefore has two components. Firstly, that the person reside in Australia and second, satisfy one of the factual circumstances in subparagraph (b) of the definition.
The Respondent conceded Mr Carswell met subparagraph 7(2)(b)(i), but argued he did not “reside in Australia”.
Whether a person resides in Australia requires consideration of a number of factors in section 7(3) of the SS Act. The factors were referred to in the Social Security Appeals Tribunal decision.[5]
[5] Paragraph 24, page 6 of T documents
MR CARSWELL’S CONTENTIONS
Mr Carswell has provided a number of responses disputing the Respondent’s decision to refuse his claim since it was made[6]. His contentions have been that he is eligible to receive age pension from the date he made his claim because in summary:
(i)He disputes he does not have close ties with Australia;
(ii)There has been administrative, clerical and bureaucratic mishandling;
(iii)He has worked and paid taxes in Australia for decades;
(iv)He is an Australian citizen.
[6] T10, T11, T12, T13. T14, A1, being letter dated 10 January 2016 enclosing his letter of 26.6.15, 4.8.15, internet article, Comments & Notes table
More recently, Mr Carswell submitted to the Tribunal that he will probably be able to receive age pension if he resides in a country with whom Australia has an International Social Security Agreement, so he moved to Denmark to live. He complained that the representatives of the Respondent had failed to advise him of this.
When arrangements were being put in place for a hearing of his application, Mr Carswell advised by email that he would not participate in a hearing and that he now expects to receive age pension.[7]
[7] Email to Tribunal Registry, 21.1.16 and 5 February 2016
Mr Carswell sought a determination that he be compensated for non-receipt of age pension in the past, or an order that he was entitled to receive one sooner (he nominates January 2014)[8].
[8] Email to Tribunal Registry above.
None of Mr Carswell’s responses/emails demonstrated that he understood the fundamental reason why his claim had been refused, namely that the Respondent was not satisfied that he was residing in Australia, so had to treat his claim as not having been made.
Further, none of his responses addressed in a meaningful or relevant way the factors that have to be considered when determining if a person resides in Australia.[9] Instead, he repeatedly criticises the Respondent’s representatives for not alerting him to the International Agreement arrangements concerning Social Security Law.
[9] That is section 7(3) SS Act
While the Tribunal understands that non-lawyers and ordinary people may have difficulty in understanding relevant issues and presenting their cases, Mr Carswell had read the reasons of the Social Security Appeals Tribunal, so was aware that he had not succeeded then because it had been determined that he was not residing in Australia at the time he claimed.
Despite this, Mr Carswell’s documents filed with this Tribunal did not address in any meaningful or relevant way, whether his facts and circumstances satisfied the factors in section 7(3) of the SS Act, which must be considered at law when determining if he was a person residing in Australia.
The Tribunal did not have the opportunity to make relevant enquiries of him to elicit evidence that may have addressed the relevant factors in section 7(3), particularly those in dispute because Mr Carswell chose not to participate in the hearing.
RESIDING IN AUSTRALIA AT THE TIME OF CLAIM FOR AGE PENSION?
The travel movements’ record[10] clearly demonstrates that from at least 2005, Mr Carswell has had frequent absences from Australia. The vast bulk of his time since has been outside of Australia. This is consistent with Mr Carswell’s own statement that he was currently living overseas[11], spends time with his son in Canada and family in Denmark, giving an address in Bulgaria/Denmark at various times in the relevant recent past.[12]
[10] Exhibit R1 and also T7 at page 34 of T documents
[11] T12, page 80
[12] See Exhibit A1 and annexures to it
There is evidence of a single bank account in Australia, but this is not persuasive evidence of residency as bank accounts are capable of being transacted remotely and electronically.
Mr Carswell stayed with his son when visiting in Australia and gave that son’s address as being his permanent address[13]. However, the length of time he spent there appears little, given the content of the travel record, which he has not disputed.
[13] Answer to Q.24 at page 14 of T documents
There is no evidence that he maintained his own home, owned property or held assets in Australia.
There was ample evidence Mr Carswell had in the past worked and paid taxes, but that was many years prior and does not cause the Tribunal to be persuaded that he was residing in Australia at the time he made his claim.
The Tribunal accepts that Mr Carswell had and has ties to Australia, but the evidence very strongly demonstrates a distancing from Australia and making other places his home.
The Tribunal must have regard to section 7(3) of the SS Act[14] and is permitted to have regard to the Guide to Social Security Law which provides policy guidance to the interpretation of the criteria in section 7(3) of the SS Act[15].
[14] Re: Gracie and Secretary of Department of Family and Community Services [2005] AATA 179
[15] Drake v Minister for Immigration & Ethnic Affairs (1979) 2 ALD 60
The authorities and the Guide, both state that residence involves two elements, physical presence in a place and the intention to treat it as home.[16] The evidence does not allow the Tribunal to be satisfied of the two requisite elements.
[16] Hafza at paragraph 13, followed in Secretary, Department of Family and Community Services v Baccon [2006] FCA 773
Taking a global approach to all of the evidence and relevant factors, the Tribunal is not persuaded that Mr Carswell was residing in Australia at the time he made the claim and so, the application must be dismissed.
While the Tribunal accepts that Mr Carswell has had a difficult and frustrating time when seeking to pursue a claim to be paid age pension, the Respondent does not owe a statutory or other kind of duty to advise and inform potential recipients of social security of avenues that they may pursue.[17]
[17] Scott and SDSS (1999) 57 ALD 627; Scott and SDSS (2000) FCA 1241; Re: Evans and SDFaCS (2002) AATA 914; Croker and SDFaCS (2000) FCA 1304; Kobayashi and SDSS (2016) AATA 19; Young and SDSS (2015) AATA528; Member Wulf at (21) in Re: Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) AATA 451
This Tribunal has limited and express powers of review pursuant to the Administrative Appeals Tribunal Act 1975. It is not within the powers of this Tribunal to make the orders that Mr Carswell seeks. Further, it is not for this Tribunal to make adverse findings or criticisms of employees of Centrelink or the relevant Department. How such persons are managed and operated are matters of Government policy and outside the scope of this Tribunal’s objects and powers.
The decision under review is affirmed.
I certify that the preceding 35 (thirty five) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member) ........................................................................
Administrative Assistant
Dated
Date of hearing 11 February 2016 Applicant Self-represented (no appearance) Solicitor for the Respondent Mr Brian Sparkes, Department of Social Services
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