COLIN KAMPF and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 189
•2 April 2013
[2013] AATA 189
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4297
Re
COLIN KAMPF
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 2 April 2013 Place Brisbane The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Portability – Australian resident – Reviewable decision made by computer – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) ss 7, 94
Social Security (Administration) Act 1999 (Cth) s 6A
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
Mr Colin Kampf, the applicant, has been in receipt of disability support pension (DSP) for some time. I have to determine whether his eligibility to receive DSP had been affected by the changes to the portability provisions of social security law which came into force on 1 July 2011.
PRIOR DECISIONS
On 12 March 2012, Centrelink made a decision to cancel the payment of DSP to the applicant. On 20 June 2012, an authorised review officer affirmed the decision, as did the Social Security Appeals Tribunal on 5 September 2012. On 26 September 2012, the applicant lodged an application for review by this Tribunal and, on 28 September 2012, this Tribunal made an order to stay the implementation of the original decision until its own determination was made.
LEGISLATION
At the hearing I advised the applicant that his application concerned the operation of para (ea) which has been inserted in sub 94(1) of the Social Security Act 1991 (Cth) (“the Act”). Subsection 94(1)(ea) provides:
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
…
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Paragraph (ea) had been inserted in sub 94(1) of the Act by the Families, Housing Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth) and came into force on 1 July 2011. The Explanatory Memorandum of this Act contained the following statement:
These amendments will close a loophole that has allowed continued payment of disability support pension to people who live permanently overseas but return to Australia every 13 weeks in order to retain their pension.
The effect of this amending legislation is that where a person satisfies the requirements for DSP, that person has to be an “Australian resident” as defined in the Act.
There is an exemption from the requirement to be an “Australian resident”, which is provided for in sub 94(1)(ea)(ii) of the Act, where a person satisfies the requirements of s 1218AA; however, there is no evidence that this exemption applies to this case.
Section 7 of the Act contains a definition of the term “Australian resident”. Relevantly, it provides:
Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
...
(2) An Australian resident is 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 who is a protected SCV holder.
Note: For holder and permanent visa see subsection (1).
...
(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.
CONSIDERATION
A preliminary matter is to identify the reviewable decision which cancelled the payment of DSP to the applicant. At the outset of the hearing I mentioned that the actual decision under review was not in the “T-Documents” (which are the documents filed by the respondent under s 37 of the Administrative Appeals Tribunal Act1975 (Cth)). A computer record of the decision, which was made on 12 March 2012, was tendered in evidence.[1] Section 6A of the Social Security (Administration) Act 1999 (Cth) authorises the respondent to use computer programs to make decisions. A decision made by those means is taken to be a decision made by the Secretary. I am satisfied that on 12 March 2012 a decision was made to cancel the payment of DSP to the applicant and that this decision is the reviewable decision under review.
[1] Exhibit B, Annexure A.
I have to determine whether, at the time of the decision, the applicant was an “Australian resident” as referred to in subs 94(1)(e) and (ea) of the Act.
In considering whether the applicant is an “Australian resident” I am required to have regard to the considerations that are specified in sub 7(3) of the Act. I will outline my conclusions in respect of each of those considerations.
(a) The nature of accommodation used by the person in Australia
When the decision was made, the applicant lived in backpacker accommodation in Darwin. The applicant has not provided any evidence of what Australian hostels that he stayed in prior to the decision. The applicant did not retain any receipts which verify what accommodation he stayed in. The fact that the applicant lived in hostel accommodation for relatively short periods points away from finding that he was residing in Australia at the time of the decision.
(b) The nature and extent of the family relationships the person has in Australia
The applicant has a number of relatives in Australia, namely his daughters, his mother and sisters and brothers. On 12 March 2012, he advised Centrelink that he has contact with his mother 1-2 times a month and he contacts his daughters 2-3 times a year.[2] I appreciate that in more recent times the applicant has had closer relationships with his family in Australia, however, in deciding this application I am examining the situation as at the date of the decision under review. The family relationships do not clearly point towards or away from a finding that he resided in Australia at the time of the decision.
[2] See Exhibit A, T-document 5, pp. 38-39.
(c) The nature and extent of the person’s employment, business or financial ties with Australia
The applicant has been in receipt of DSP for some time and was last employed in Australia in 2004. He has no employment, business or financial ties with Australia apart from having an Australian bank account. These matters point away from a finding that he resided in Australia at the time of the decision.
(d) The nature and extent of the person’s assets located in Australia
There is no evidence that the applicant has any assets in Australia apart from cooking utensils and personal effects. I would not be prepared to make a finding as to Australian residence because he has little assets as the applicant has explained the circumstances of his earlier failed relationship.
(e) The frequency and duration of the person’s travel outside Australia
Immigration records verify that between 18 January 2010 and 10 March 2012 the applicant was absent from Australia for more than 70 weeks out of about 112 weeks: he was absent from Australia for more than 63% of this time. The duration of each visit to the Philippines is for the maximum portability period of 13 weeks.[3] The applicant has lived overseas for the majority of the period and this points towards a finding that the applicant did not reside in Australia at the time of the decision.
(f) Any other matter relevant to determining whether the person intends to remain permanently in Australia.
[3] See Exhibit B, Annexure C.
The evidence before me is certainly contradictory on when the applicant first met his wife. In giving evidence before me, he stated that he met his wife in 2010 on a beach in the Philippines. However, in his statement of 3 January 2013 he states that he met her in Sydney in 2008 and that she was pregnant with his child when she returned to the Philippines.
On 12 March 2012, the applicant informed Centrelink that when he is overseas he lives in permanent accommodation with his wife and child.[4] At the hearing he explained that in using the term “permanent” he means living there for more than a few days. However, it is my view that the applicant, who is articulate, has used the expression “permanent” in its usual sense to mean a state of affairs which is “not temporary”[5].
[4] See Exhibit A, T-document 5, p. 38.
[5] Macquarie Dictionary (4th ed. 2005), p. 1065.
The applicant stated that when he is in the Philippines he may live at his wife’s mother’s house or in rented accommodation with his wife and child. His evidence at the hearing of the application is quite different from his submission of 20 August 2012 in which he asserted that he does not reside with his wife when he is in the Philippines.[6]
[6] See Exhibit A, T-document 13, pp. 55-57. esp. p.56: written submission made to the SSAT.
On 12 March 2012, the applicant informed Centrelink that it was far easier and cheaper for him to live overseas with his family than it was in Australia. He also remarked that if he is “forced” to stay in Australia more, then he would try to get his new family to apply for visas to go to Australia.[7] In his statement of 3 January 2013, the applicant stated:[8]
I do not and have never intended to reside in any country other than Australia.
[7] See Exhibit A, T-document 5, p. 39.
[8] See Exhibit B, Annexure B.
The applicant married his wife in the Philippines in May 2011.The applicant is in regular contact with his family in the Philippines, being his wife and daughter, by phone and email.
My consideration of these matters strongly points towards a finding that the applicant did not reside in Australia at the time of the decision.
CONCLUSION
Having regard to the considerations that are specified in sub 7(3) of the Act, I have come to the conclusion that the applicant was not an Australian resident as at 12 March 2012 when a decision was made to cancel his DSP. Prior to this date he had, for the majority of the preceding two years, lived overseas. As at 12 March 2012 his ties with his family in the Philippines were certainly closer than with his relatives in Australia. I rely on the statement that the applicant made to Centrelink on 12 April 2012 that his permanent accommodation was in the Philippines to base my conclusion that he intended to reside overseas. At this time the applicant stated that it was far cheaper and desirable for him to live in the Philippines. His statement that he then made about being “forced” to live in Australia is inconsistent with any intention on his part to live permanently in Australia.
I appreciate that the applicant has stated that he now wants to live in Australia but in determining this application I have to consider the circumstances of the applicant as at 12 March 2012.
DECISION
I affirm the decision under review.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member .........................[Sgd]...............................................
Associate
Dated 2 April 2013
Date of hearing 22 March 2013
Applicant In person
Advocate for the Respondent Joe Guthrie
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