Celentano and Secretary, Department of Family and Community Services

[2005] AATA 772

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/3

GENERAL ADMINISTRATIVE   DIVISION		)
Re		DONATO CELENTANO

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date12 August 2005

PlaceSydney

Decision The reviewable decision dated 21 December 2004 is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Age pension – cancellation decision - jurisdiction of the Administrative Appeals Tribunal considered - valid decision – Authorised Review Officer acted within power – interview with social security payment recipient lawful - no denial of procedural fairness -  no breach of privacy – evidence not  improperly or illegally obtained – merits review – Australian residency requirement not satisfied -– decision affirmed.

LEGISLATION

Social Security Administration Act 1999 sections 29, 63, 80, 126, 192, 196, 129, 194, 195 and 130

Social Security Act 1991 sections 7 and 1220

Evidence Act 1995 section 138

Administrative Appeals Tribunal Act 1975 section 33

Trade Practices Act 1974

Privacy Act 1988

CASELAW

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167

Secretary, Department of Social Security v Alvaro ((1994) 34 ALD 72

Minister for Immigration and Multicultural Affairs v Shahid Ahmed [2005] FCAFC 58

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Upton and Department of Transport (1977) 1 ALD 150

S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Refrigerated Express Line v Australian Meat (1980) 29 ALR 333

Kioa v West (1985) 159 CLR 550

REASONS FOR DECISION

12 August 2005   Senior Member, Mrs Josephine Kelly  

Introduction

1.Mr Donato Celentano first arrived in Australia from Uruguay in June 1970 when he was 33 years old.  He was born on 6 August 1937 and became an Australian citizen on 21 September 1995 (T4 at 12). He departed Australia in July 1998 to look after his daughter who was in a serious car accident and he did not return until 4 August 2002. He has remained in Australia since then and was here at the time of the hearing.

2.He was granted an Age pension in 2003. On 13 September 2004 an officer of the Respondent decided to cancel his Age pension payments (“the cancellation decision”) when she was reviewing, as an Authorised Review Officer, a decision about the date of portability of that pension (“the portability decision”) (T42 at 123). This case is about the cancellation decision.

3.The reviewable decision is the decision of the Social Security Appeals Tribunal (the “SSAT”) dated 21 December 2004 affirming the cancellation decision which had also been affirmed by an authorised review officer on 23 September 2004 (T45). 

4.Ms Francois appeared for Mr Celentano and Ms Gleeson appeared for the Respondent, the Secretary of the Department of Family and Community Services (“the Secretary”).

Background

5.There is a Centrelink record dated 11 April 2002 (T6 at 14) which refers to a letter that was received from Mr Celentano requesting information about his Age pension as he had just turned 65. His inquiry was about how long he must stay in Australia as it is expensive and he has no family in Australia, only friends.  Clearly, that inquiry was made while he was in Uruguay as he did not return here until 4 August 2002.   He was advised that he needed to return to Australia with the intention of being a permanent Australian Resident and that he would not be able to leave Australia for the first 2 years after the pension was granted.  He applied for Age pension on 6 August 2002, two days after he returned, and it was refused on 21 August 2002 because he had no ties to Australia (T16 at 43).

6.Mr Celentano applied again for the Age pension on 7 October 2003 (T25 at 73) which was granted from that date (T26 at 92).

7.Mr Celentano’s circumstances on 7 October 2003 were:

·He was living in rental accommodation (T25 at 86 and 88);

·He had no family relationships in Australia. His wife, son and daughter lived in Uruguay (T2 at 5 and 9, T19 at 48, T42 at 126);

·He had no business or financial ties in Australia (T2 at 5);

·He was working for Main Steel Pty Limited (T42 at 126);

·His only asset in Australia was his bank account (T42 at 126 and T25 at 80);

·Since arriving in Australia in 1970 he has spent significant periods outside of Australia including but not limited to the entire years of 1977, 1978, 1984, 1985, 1990, 1999, 2000 and 2001 (T42 at 127).

8.On 2 June 2004 Mr Celentano was informed that if he travelled to Uruguay then, he would not be able to take his Age pension with him. He was “advised in Italian that start day for 2 yr residence requirement is the date of grant of pension namely 07.10.03.” The pension was not portable until 7 October 2005 (T30).   

9.On the same day (2 June 2004), Mr Celentano requested a review of the decision the start date of his pension was 7 October 2003, claiming it should be August 2002, when he first applied for it, “for a 2 year residence period before I can take pension overseas” (T29). 

10.On 9 August 2004, Mr Celentano contacted Centrelink twice about the portability date of his pension. The file notes are recorded at T32 and T31. On both occasions Mr Celentano was informed that his pension was not portable before 7 October 2005. Mr Celentano told one Centrelink Officer that he needed to be with his wife and daughter who is not well (T32 at 102). He had told his wife that maybe he would be able to see her in Uruguay soon and he was upset that he could not leave and see his wife and daughter.

11.On 16 August 2004, Mr Celentano told a Centrelink Officer, perhaps Mr Foley, that he had made plans to leave for Uruguay on 5 September 2004 (T33 at 104).  On the same day, Mr Foley informed Mr Celentano that the relevant start date of his pension was August 2002 and thus his pension was portable from September 2004. Mr Celentano was then sent a letter informing him that his pension would be portable during his absence from Australia beginning 6 September 2004 (T34).

12.That there was an error made about the date of portability during the 16 August 2004 discussion with Mr Celentano (T33) and the subsequent letter (T34) was picked up on 17 August 2004 or shortly thereafter, and various attempts were made to contact Mr Celentano by telephone (T35) before a letter was sent on 23 August 2004. 

13.On 23 August 2004, Centrelink wrote to Mr Celentano informing him that the decision of 16 August 2004 was incorrect and that his pension was not portable until 7 October 2005 (T39). The letter further explained that the decision “is currently being assessed by an Authorised Review Officer” (T39).

14.On 27 August 2004, Ms Linda Forbes of Welfare Rights spoke to Ms Koulouris in relation to the letter or 23 August 2004. Exhibit A1 was a statement by Linda Forbes about that telephone conversation. Ms Forbes  explained how she was upset that Mr Celentano was being sent contradictory information from Centrelink and that he had to keep changing his travel plans. Ms Forbes states “I discussed Mr Celentano’s case with IOB (“International Operations Branch”) and they decided that Mr Celentano’s pension is portable on 4 September 2004.”

15.Ms Koulouris explained that Mr Celentano had asked for a review. Ms Forbes continued to explain that Mr Celentano “is happy with IOBs decision” and the decision of 16 August, that is that portability was from 2004. Ms Forbes argued that the letter of 23 August was not proper notice and that the decision of the 16 August 2004 should remain in place. Ms Koulouris explained that she still needed to interview Mr Celentano.

16.Ms Francois contended that as a consequence of this conversation, there was no longer an application for review on foot. I address that matter below. She did concede at the hearing that the decision by the IOB was incorrect, as was the decision of 16 August 2004, and that the correct date for the portability of the pension was 7 October 2005.

17.On 2 September 2004 Mr Celentano attended an interview at the Fairfield Centrelink Office with Ms Koulouris. He answered questions to the effect that he was permanently living in Australia but that he did plan to leave Australia but that he did not know when he planned to leave Australia (see T42 at 131).

18.As set out above, on 11 April 2002 Mr Celentano was asking about how long he had to be in Australia before he could get the pension (T7).  However when questioned in September 2004 he stated that in August 2002 when he first returned to Australia “his intention was to remain here permanently”.  At the interview he also said that “his wife told him six months ago that his daughter’s condition had suddenly deteriorated and she would remain in Uruguay.”  When asked why his wife had not joined him in Australia when his daughter’s  condition had improved, he did not respond.

19.Mr Celentano had a return airline ticket although he said he had no intention of returning to Uruguay. His response when asked why he had a return ticket was that “there is not much monetary difference in the price between a single airline ticket and a return airline ticket” (T42 at 132). He also said “that he wanted to return to Uruguay because he had no family in Australia.”. He asked ‘what difference does it make if they pay here or in Uruguay.’ He stated that “he is lonely and wants to be with his family” (T42 at 132).

20.On 13 September 2004, the ARO gave her decision (T42 at 133). In the covering letter she referred to the basis of her review:

“I am writing to you about my review of Centrelink’s decision of 23 August 2004 that your Age Pension is not portable during the first 2 years of your resumed Australian residency”.

21.The Decision Statement also identified the decision under review as the Portability decision of 23 August 2004 (T42 at 123).

22.In the covering letter she stated that:

“… the decision to grant you Age Pension from 7 October 2003 was not correct. Although I am satisfied you are an Australian citizen you were not at the time you made a claim for an Age Pension residentially qualified pursuant to sections 7.(2) and 7.(3) of the Social Security Act 1991. As you do not qualify for an Age Pension I do not in these circumstances need to consider whether or not your Age Pension is portable. This means that your request to have the original decision changed has been unsuccessful”.

23.She also said in her decision statement that:

“There is no evidence to suggest that you intended to remain permanently in Australia when you arrived in Australia on 4 August 2002. The evidence suggests that your intention to remain permanently in Australia did not change even when you were subsequently granted an Age Pension on 7 October 2003. Based on the evidence I am satisfied that your intention was to always return to Uruguay” (T42 at 127).  

24.The issues identified by the ARO in the Decision Statement were:

·Whether you are qualified for Age Pension pursuant to sections 7 and 43 of the Social Security Act 1991.

·If so, whether your Age Pension is portable during the first two years of resumed Australian residency pursuant to section 1220 of the Social Security Act 1991.

25.The ARO’s decision that Mr Celentano was not entitled to the Age Pension was affirmed by Mr Ian Hood, an ARO, on 23 September 2004 (T45).

Issues:

26.The issues as formulated by the parties were:

·Does the AAT now have the jurisdiction to review the decision?

·Was there was an application for review on foot after Mr Celantano’s contact with Centrelink on 9 August 2004 and Ms Forbes’s telephone call on 27 August 2004?

·If there was an application for review on foot:

ØDid the ARO have the authority to review the decision of 7 October 2003;,

ØWas Mr Celentano an Australian Resident when he claimed the Age pension; and

ØDid the ARO observe the requirements of procedural fairness; and

ØWas the information obtained by the ARO on 2 September 2004 in breach of the requirements of the Act, the Evidence Act 1995 and the Privacy Act, 1988.

The Law

27.Section 7(2) of the Social Security Act 1991 (“the Act”) defines who is an Australian resident.  Relevantly, it is a person who:

(a) resides in Australia; and

(b) is one of the following:

an Australian citizen; …

Section 7(3) sets out the criteria to be taken into account when deciding whether or not a person is residing in Australia:   

(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.

28.Section 1220 of the Act deals with portability where the claim is based on short residence:

No portability where claim based on short residence

1220(1) If:

(a) a person is an Australian resident; and

(b) the person ceases to be an Australian resident; and

(c) the person again becomes an Australian resident; and

(d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

(i) an Age pension; or

(ii) a disability support pension; or

(iii) a bereavement allowance; and

(e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia;

a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.

29.Relevant provisions of the Social Security Administration Act 1999 (“the SSA Act”) follow.

Section 29 of the SSA Act provides that:

(1) … a claim for a social security payment or a concession card may only be made by a person who:

(a) is an Australian resident; and

(b) is in Australia.

(2) … a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

30.Relevantly, section 63(1) and (2) of the SSA Act confers power on the Secretary to require a person receiving a social security payment, to attend an office, contact the Department, attend a particular place for a particular purpose or give information within a specified time.. Written notice may be given (s 63(2)) but notice may be given in any other way (s 63(7)).

31.Section 80 of the SSA Act states that:

(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

(a) who is not, or was not, qualified for the payment; or

(b) to whom the payment is not, or was not, payable;

the Secretary is to determine that the payment is to be cancelled or suspended.

32.Section 126 of the SSA Act confers a review power on the Secretary:

(1) The Secretary may review:

(a) subject to subsection (2), a decision of an officer under the social security law;…

if the Secretary is satisfied that there is sufficient reason to review the decision.

(2) The Secretary may review a decision:

(a) whether or not any person has applied for review of the decision; and

(b) even though an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.

(3) The Secretary may:

(a) affirm a decision; or

(b) vary a decision; or

(c) set a decision aside and substitute a new decision.

33.Section 192 of the SSA Act confers on the Secretary a power to require information:

The Secretary may require a person to give information, or produce a document that is in the person's custody or under the person's control, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:

(a) the question whether a person who has made a claim for a social security payment is or was qualified for the payment;

(b) the question whether a social security payment is payable to a person who is receiving the payment;

(c) the question whether a social security payment was payable to a person who has received the payment;

(d) the rate of social security payment that is or was applicable to a person;

(da) the question whether a person who has made a claim under the Social Security (Fares Allowance) Rules 1998 was eligible for fares allowance;

(e) the administration of an agreement between Australia and a foreign country on social security matters;

(f) the question whether a person who has been granted a concession card is or was qualified for the card;

(g) the question whether a person who has applied for financial supplement is eligible for the supplement;

(h) the question whether a person who has obtained a financial supplement is or was eligible for the supplement;

(i) the determination of the maximum amount of financial supplement that a person is eligible for;

(j) the question whether an assurance of support given under Chapter 2C of the 1991 Act should be accepted or rejected.

34.Section 196 of the SSA Act provides that written notice of a requirement is necessary:

Written notice of requirement

(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.

(2) The notice:

(a) may be given personally or by post or in any other manner approved by the Secretary; and

(b) must specify:

(i) how the person is to give the information or produce the document to which the requirement relates; and

(ii) the period within which the person is to give the information or produce the document to the Department; and

(iii) the officer (if any) to whom the information is to be given or the document is to be produced; and

(iv) that the notice is given under this section.

(3) The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given.

(4) The notice may require the person to give the information by appearing before a specified officer to answer questions.

(5) If the notice requires the person to appear before an officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.

THE CASE FOR MR CELENTANO

Does the AAT have power to review?

35.The issue of whether this Tribunal had jurisdiction to review the SSAT decision  was quite properly not in contention at the hearing:  See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD, Brennan J at first instance in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, Secretary, Department of Social Security v Alvaro ((1994) 34 ALD 72 and Minister for Immigration and Multicultural Affairs v Shahid Ahmed [2005] FCAFC 58 at paragraph 33.

36.I understood Ms Francois to put four propositions. First, she argued that there was no application for review of the portability decision pursuant to s 129 of the SSA Act before Ms Koulouris and therefore her decision on portability, as well as cancellation, was beyond power. This was because Ms Koulouris purported to rely on a request for review of the decision of 23 August 2004 by Mr Celentano which Ms Francois said had not been made. Therefore, the last valid decision made was that dated 23 August 2004. In determining that portability was 7 October 2005, that letter corrected the errors that were made in the letter of 16 August and by the IOB orally to Ms Forbes. She said that Mr Celentano now accepts that date.

37.Her second proposition was that there being no application for review of the decision to grant Mr Celantano a pension, the decision-maker acted beyond power in making the cancellation decision.

38.The third proposition was that if there was power to make that decision, Mr Celantano had been denied procedural fairness because he was not made aware that a decision could be made cancelling his pension, and he was not given an opportunity to answer allegedly adverse information in Centrelink’s records.  In support of this proposition she relied on Kioa v West (1985) 159 CLR 550.

39.The fourth proposition was that the information obtained at the interview of 2 September 2004 had been unlawfully obtained.

40.Ms Francois argued that the third and fourth proposition were a constructive failure to exercise jurisdiction.  They are fundamental failures which should not be cured by this decision. She relied on the decisions in S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 for the proposition that these were breaches of “inviolable limitations and restraints” which make the decision null and void.

41.In support of the first and second propositions she relied on the case of Re Upton and Department of Transport (1977) 1 ALD 150. At 157 the Tribunal held:

“The decision of the Regional Director was outside the power vested in him, in the circumstances, but that is relevant to the Tribunal’s decision, not to its jurisdiction. It requires the Tribunal to set the decision aside: it does not require the Tribunal to refuse to review the decision.”

42.In that case, the Regional Director made a decision to suspend a pilot’s licence without complying with a regulation requiring notice of the facts and circumstances that warranted consideration being given to such action and providing an opportunity to the pilot to show cause why the licence should not be suspended. 

43.Ms Gleeson argued that even if Ms Koulouris did not have a basis for reviewing the portability decision, the Tribunal would not be prevented from conducting a review. There has been an SSAT decision on this matter within jurisdiction and this Tribunal has the opportunity to review that decision within its jurisdiction, which would achieve the correct and preferable decision in this case. If there was an error in the decision of the SSAT it is within the Tribunal’s power to substitute a new decision and in doing so is not confined to merely setting aside the decision. She relied on Shahid Ahmed at paragraph 42 where the court stated:

“An application for review to a tribunal is an application for review of the merits. Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as a Tribunal.”

44.In my opinion, Ms Francois’s submissions misconceive the nature of the Tribunal’s jurisdiction and the legislative scheme of the social security law has discussed in the cases cited above.  Her arguments are based on principles of judicial review rather than merit review of administrative decisions. She was seeking to establish that the decision made by Ms Koulouris was invalid but even if that were correct, that does not prevent me from reconsidering it on the evidence before me.  None of the errors of law alleged in my view require that the decision must be set aside and the decision of 7 October 2003 reinstated.

45.However, in case that is incorrect, I proceed to consider her submissions.

Did the ARO have power to make the decision she did?

46.Ms Francois argued that Mr Celentano had withdrawn his application for review of the 2 June 2004 decision that the date of portability was 7 October 2005, when he contacted Centrelink on 9 August 2004. I do not consider the file notes support such a submission (T31 at 100).

47.Ms Francois also contended that on 27 August 2004, Ms Forbes, Mr Celentano’s representative at the time, orally withdrew the application for review of the decision made on 2 June 2004 pursuant to s 130 of the SSA Act. This is not consistent with the facts in my view. Ms Forbes did not agree with the 23 August 2004 decision which in effect reinstated the 2 June 2004 decision, but instead argued for the decision of 16 August 2004 which she said was also the position of IOB, and which allowed portability as of September 2004. Rather than withdrawing Mr Celentano’s request for a review, Ms Forbe’s representations confirmed that Mr Celentano was not happy with the 2 June and 23 August 2004 decisions. It follows that I reject Ms Francois’s argument that Mr Celentano never requested a review of the letter dated 23 August 2004 (T39).

48.I find that there was on foot a review by the ARO of the 2 June 2004 decision on 18 August 2004 (T36 at 112), on 23 August 2004 (T39) and on 27 August 2004  (Ms Forbes’s statement Exhibit A1). Following the conversation with Ms Forbes, Ms Koulouris was reviewing the date of portability decided on 2 June 2004 and confirmed in the decision of 23 August 2004, at the request of Mr Celentano.

49.Ms Francois said that Mr Celentano had never requested a review of the decision to grant him the pension made on 7 October 2003.  I find that was so.

50.Ms Francois acknowledged that it was possible that a review of a decision could occur of the decision-maker’s own volition (s 126 of the SSA), but in this case she said, the ARO purported to rely on there being a request for review from Mr Celentano which there was not, and therefore, she grounded her jurisdiction incorrectly.  

51.The first matter to consider is the relevant legislative provisions when reviewing the portability decision. It was not disputed that s 122O(1) of the Act applies to Mr Celantano.

52.In summary it provides that there is no portability if (a) a person is an Australian resident and (b) ceases to be an Australian resident, and (c) becomes one again and (d) within 2 years after that, is granted an Age pension, and after it is granted that person leaves Australia within that 2 year period. Each of the provisions (a), (b) and (c) of the section requires the decision-maker to consider whether a person, in this case, Mr Celantano, was an Australian resident at different times. 

53.The provision does not require the decision maker to make a finding as to whether the person was an Australian resident when the Age pension was claimed. Section 29 of the SSA Act provides that a claim for a social security payment may only be made by a person who (a) is an Australian resident and (b) is in Australia. Relevantly, a claim made at a time when the claimant is not an Australian resident is taken not to have been made (s 29(2)). As set out above, s 7 of the Act defines an Australian resident.

54.Ms Koulouris’s decision was made because she found that he was not a resident when he claimed Age pension which she was not required to consider by s 1220 of the Act. However, clearly, when considering the material before her, she formed that opinion. She applied s 80 of the Act and cancelled the benefit.

55.A person has to be entitled to the Age pension before the issue of portability arises. In my view Ms Koulouris was entitled to consider that issue when it arose on the material before her in the context of the decision she was reviewing and was required by s 80 to cancel the Age pension. If that is not correct, s 126 of the SSA Act conferred on her the power to review the earlier decision.

Was the information obtained unlawfully?

56.Ms Francois’s next argument was that as no other officer who had dealt with Mr Celentano’s matter considered that the information was not insufficient to support the decision to grant the Age pension, Ms Kourlouris’s decision to cancel the Age pension payments could only have arisen as a result of the interview on 2 September 2004, and that information was “unlawfully” obtained. An aspect of this argument was that when determining if the pension should be granted to Mr Celentano, only his intentions as of 7 October 2003, when he applied for the Age pension, should be considered, and not his intentions on 2 September 2004 when he was interviewed. 

57.She submitted that there were two steps that needed to be established for a decision to be reviewed pursuant to s 126 of the SSA Act, which she said Ms Koulouris must have been relying on to make that decision.

58.First, there must be sufficient cause for a review, and secondly the review must only be on the basis of lawfully obtained information. Neither of those steps she claimed was satisfied in this case. 

59.Ms Gleeson submitted that there was a sufficient basis for the ARO to review the 7 October 2003 decision. Further, Mr Celentano’s circumstances in October 2003, which are outlined in paragraph 7 above, raise sufficient doubt as to whether he was an Australian resident at the time that he lodged his claim for the pension. Even without the information that was obtained from the interview on 2 September 2004, there was a plethora of information that would give sufficient reason to review the decision.

60.Further, Mr Celentano expressed an intention to leave Australia as recorded in the file note dated 5 August 2002 (T9 at 18): 

He left Australia to live permanently in Uruguay in 24 July 1998 with his wife Dora. All his family lives in Uruguay that is his wife and children. He has not tights(sic) in Australia his wife did not return to Australia with him me is not renting but living with a friend of his. During the interview he stated that he came to Australia to claim the pension and he even stated the claim form that he has plans to leave Australia.

61.His details were ambiguous about his wife (T10 at 23) and he had ties to Uruguay (T11 at 35). At T11 at 35, he stated “All my family are living in Uruguay, my wife and children. We don’t have a house in Uruguay and neither in Australia.” He was not granted an Age pension on his first application because he was not a resident of Australia (T16 at 43).

62.Assuming that it is necessary for me to determine whether there was “sufficient reason” to review the decision to grant Mr Celentano the Aged Pension, I find that there was on the information available in October 2003.   It was not argued before me that the proper question should be whether it was open to the officer to form such a view. 

63.A number of arguments were put by Ms Francois in support of her proposition that the information obtained in the 2 September 2004 interview was unlawfully obtained. She contended that whether August 2002 was the relevant start date from which to calculate when Mr Celentano’s pension would be portable overseas does not come within the power to obtain information conferred by s 192 of the SSA Act.

64.Further, no written notice of the requirement to provide information was given in accordance with s 196 and s 63(7) of the SSA Act.

65.It followed, according to Ms Francois, that this Tribunal should be very loath to act upon the information as it would be effectively condoning a breach of a man's privacy by a powerful government department.  She did not develop the argument by reference to provisions of privacy legislation.

66.She also relied upon s 138 of the Evidence Act 1995. That section provides a discretion to exclude improperly or illegally obtained evidence. The first point is that the Tribunal is not bound by the rules of evidence, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, and secondly, I would have to be satisfied that the evidence was “illegally” or improperly obtained” which I am not for the reasons given below. For that reason I also do not need to consider further the submission in relation to the privacy claim.

67.Sections 63 and 192 of the SSA Act confer powers on the Secretary to obtain information. Ms Francois contended that s 63 is limited by s 192. She relied upon the reasoning in Refrigerated Express Line v Australian Meat (1980) 29 ALR 333 at 347) which dealt with the Trade Practices Act 1974. There was a conflict between general trade practices provisions in Pt IV and provisions specific to international shipping in Pt X of that Act. The Court held that the provisions in Pt IX did not apply to the special provisions of Pt X. She argued that s 63 is cast broadly and section 192 is more narrowly cast and having regard to principles of statutory interpretation and the explanatory memorandum the power intrude into the citizen's privacy is limited by the matters in s 192.

68.In my opinion, Refrigerated Express Line does not assist. Section 63 provides a general power to compel a person who is an applicant or recipient of a benefit to do various things, including to give information (see ss 63(1) and (3A)), whereas, s 192 confers on the Secretary a power to compel information from anyone, whether they are a client of Centrelink or not, subject to a specified connection existing. The provisions do not conflict. Section 192 does not limit s 63.

69.I find that s 63 of the SSA Act permitted the ARO to require Mr Celantano to attend for an interview on 2 September 2004, which he did, because he was receiving a social security benefit. The provision does not require written notice, but confers a discretion to give written notice (s 63(2) and (7)). It is not necessary for me to make a finding on how notice was given in this case but I would not in any event because there is simply no evidence upon which I can. Ms Francois asserted that written notice had not been given but pointed to no material to support that.

Procedural Fairness

70.Ms Francois contended that there was procedural unfairness because Mr Celentano was not informed that there was a review of the decision to grant him the pension. Mr Celentano was not given an opportunity to make submissions and not given an opportunity to answer the ARO’s finding that his answers to questions at the interview on 2 September 2004 were inconsistent with the record of 11 April 2004.  She relied on Kioa v West (1985) 159 CLR 550 at 584, and 587 where Mason J said:

“But if the decision-maker intends to reject the application by reference to some other consideration personal to the applicant on the basis of information obtained from some other source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.”

71.There is no requirement for notice to be given that a review is being conducted and no requirement that the person the subject of the review be given an opportunity to make submissions.  The scheme of the legislation which includes review by an ARO, and appeals to the SSAT and this Tribunal provides procedural fairness. Kiao and also S175/2002 were cases dealing with principles of judicial review and not a legislative scheme providing for merit review of administrative decisions, and are not applicable. 

Merit

72.Ms Francois’s submissions were directed principally to legal errors rather than to do the merits of Mr Celentano’s case.  However as I have not found any errors such as alleged which prevent this Tribunal from considering the case on its merits, I proceed to do that. Mr Celentano was not called to give evidence at the hearing and no other evidence from him was tendered beyond that before the SSAT.   Medical evidence was tendered (Exhibit A3) to the effect that he is suffering from an Adjustment Disorder with Anxiety and Depression as he was alone in Australia and awaiting this decision.  That evidence was tendered only to support his legal representatives’ statement that they had been hampered in getting instructions from him because of that condition.  It also explains why he did not attend the hearing or give evidence. 

73.I find that the evidence set out above establishes overwhelmingly that the only reason Mr Celentano returned to Australia in 2002 was to get the Age pension and as soon as he could do so, return to Uruguay and receive payments there.   While there may be arguments about the fairness of the law, my job is to apply it.

74.I find that he was not an “Australian Resident” at any time after his return to this country in 2002. 

75.Considering the provisions in s 7(3):

(a)   he rents accommodation in Australia; (T25 at 86)

(b)    he has no family relationships in Australia and his wife has no intention to return to Australia;  all his family is in Uruguay; (T9 at 18)

(c)   he had a job in Australia between August 2002 and 18 February 2004 (T42 at 131)and a bank account but as at the date of hearing, I do not know what his situation is;

(d)  he had no other assets than a bank account and I do not know the balance of it at the date of hearing; (T25 at 80)

(e)    Mr Celentano had spent considerable time out of Australia over the years and was not a resident from 1998 until his return in 2002; (T42 at 127)

(f)  his only reason for returning to Australia was to claim the Age pension and return to Uruguay when he qualified for payments to be made there; his intention since 2002 has always been to return to Uruguay.

76.He was not an Australian resident when he claimed the Age pension and therefore pursuant to s 29(2) of the SSA Act his claim for the Age pension is taken not to have been made and therefore s 80 applies and the payments must be cancelled..

Decision

77.The reviewable decision is affirmed.

I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  9 May 2005
Date of Decision  12 August 2005
Counsel for the Applicant         Ms R. Francois
Solicitor for the Applicant          Welfare Rights Centre
Solicitor for the Respondent     Australian Government Solicitor