Colin Stevens and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 675
[2013] AATA 675
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0539
Re
Colin Stevens
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 23 September 2013 Place Hobart The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
SOCIAL SECURITY – disability support pension – overseas claimant – Australian citizen married and residing in Vietnam – whether an Australian resident at time of cancellation of pension – decision under review affirmed
Social Security Act 1991, ss 7, 94, 1212C, 1217, 1218AA(1), 1218AAA(1), 1218AB
Social Security (Administration) Act 1999, s29
Guide to the Social Security Law, 3.1.1.10
MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 924
Firdousi v Secretary, Department of Families and Community Services (2005) AATA 1304
Re Maha Hafza v Director-General of Social Security (1985) 6 FCR 444REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
The applicant, Colin Stevens has been in receipt of disability support pension (DSP) since 7 May 2003. Following the changes to the legislation in 2011, Mr Steven's eligibility for DSP was reviewed. A Centrelink officer determined on 13 February 2012 that Mr Stevens was no longer entitled to receive DSP because he was not an Australian resident and his pension was cancelled. This decision was affirmed by an Authorised Review Officer (ARO) and by the SSAT on 11 April 2012. Mr Stevens now seeks a review of that decision by the Administrative Appeals Tribunal.
The hearing was conducted by way of telephone link to Mr Stevens in Vietnam. Mr Stevens appeared for himself and gave oral evidence. The Secretary was represented by Brian Sparkes. The T Documents were tendered in evidence pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.
Mr Stevens has resided in Vietnam since 2008. He said that he decided to live in Vietnam when his DSP was reinstated in 2008 because it was much cheaper to live there than in Australia. In 2011 he married a Thai national and resides in rented accommodation with his wife and her two children. It is accepted that Mr Stevens is an Australian citizen.
The issue for the Tribunal to determine is whether Mr Stevens was an Australian resident when his DSP was cancelled on 13 February 2012.
In the statement accompanying his application for review, Mr Stevens stated that he had worked in the oil and gas industry from 1972 until 2003 on drilling rigs and production platforms both onshore and offshore. After developing respiratory problems he was diagnosed with pulmonary fibrosis and was granted a DSP in 2003. In 2008 he requested a suspension of his DSP for a 12 month period as he had hoped to return to full-time employment in the oil industry as a health and safety officer on a construction site in Indonesia. However his health problems persisted and he reapplied for DSP in November 2008.
In order to maintain portability of DSP whilst residing in Vietnam, Mr Stevens returned to Australia every 12 weeks. He described this as "an expensive imposition, and to what real benefit" which he did not understand except that it was a legal requirement. Mr Stevens has not returned to Australia since 2012 when his DSP was cancelled. Mr Stevens maintains that he would return to Australia on a more regular basis if he was financially able to do so.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The qualification provisions for DSP are set out in section 94 of the Act. This provision requires that either the person is an Australian resident or is absent from Australia and a determination has been made under subsection 1218AAA(1) or the person is absent from Australia and all of the circumstances described in paragraphs 1218AA(1) (a) (b) (c) (d) and (e) are satisfied. There was no evidence that any determination has been made by the Secretary.
Section 1218AAA(1) requires that (a) a person is receiving DSP, (b) the Secretary is satisfied that the person's impairment is a severe impairment, (c) severe impairment will continue for at least the next five years and (d) that if the person were in Australia the severe impairment would prevent the person from performing any work independently of a program of support.
Section 29 of the Administration Act states as follows:
“(1) Subject to sections 30, 30A, 31, 31A and 32, 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) Subject to sections 30, 30A, 31, 31A and 32, 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”.
Section 7(1) of the Act provides:
“Australian resident has the meaning given by subsection (2)”.
Subsection (2) states:
“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)”.
Subsection (3) states:
“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”.
The unlimited portability exceptions as contained in section 1218AAA do not apply as Mr Stevens is not terminally ill or severely disabled. Nor do Mr Stevens’ circumstances satisfy section 1218AB of the Act.
Section 1217 of the Act provides that DSP is portable for any temporary absence of 13 weeks. A temporary absence is defined in section 1212C of the Act as one where the person does not cease to reside in Australia within the meaning of subsection 7(3) of the Act. Thus the issue to be determined is whether Mr Stevens was an Australian resident when his DSP was cancelled. If I find that Mr Stevens was not an Australian resident, then he was not eligible for DSP and the decision under review must be affirmed.
The background to the changes in the legislation is outlined in the decision of the SSAT at paragraphs 12 to 14 and does not need to be repeated here.
There is no Social Security International Agreement under the Social Security (International Agreements) Act 1999 with Vietnam to assist Mr Stevens with his claim.
In deciding whether or not Mr Stevens was a resident of Australia at the relevant time, the evidence will be considered under the factors listed in subsection 7(3) of the Act as follows:
Nature of accommodation
Since his marriage in 2011, Mr Stevens has resided in rented accommodation with his wife and her two children in Vietnam. Mr Stevens has no permanent accommodation in Australia. When he returned to Australia to renew portability of his DSP in 2008, he stayed with friends. Most of his return visits were to Darwin because of the cheaper airfares. Mr Stevens estimated that he had returned to Darwin some half-dozen times to renew portability of his pension.
Mr Stevens said that he has some furniture remaining in Australia which is stored at a friend's house.
Family relationships in Australia
Mr Stevens has two adult children, one sister and two brothers as well as extended family members in Australia. It was his evidence that he maintains regular contact by telephone and the internet with his daughter, his sister and younger brother.
He has a wife in Vietnam and has accepted responsibility for his wife's two children.
Nature and extent of employment, business or financial ties in Australia
The evidence was that Mr Stevens has no employment, business or financial ties with Australia. He referred to his business interest in a company which had attempted to import tea from Vietnam but was currently not trading. Mr Stevens said that he was currently unemployed and was dependent upon financial support from friends in Vietnam as he has almost exhausted his savings.
Assets in Australia
Apart from some furniture that he has stored in Australia, Mr Stevens stated that he owns no other assets in Australia. His only other assets are furniture in rented accommodation in Vietnam
At the time of the hearing before the SSAT, Mr Stevens advised that he had approximately $16,000 in an Australian bank account. In his evidence before the Tribunal, he stated that the current balance is around $200.
Frequency and duration of travel outside Australia
Mr Stevens did not dispute the data entry records of his arrivals and departures from Australia as recorded at T14, pages 61-64. These records indicate that Mr Stevens’ last visit to Australia coincided with the expiration of his DSP portability by virtue of the change in the legislation. Most of his visits were of short duration and some as short as one to two days.
Although the Tribunal accepts that the purpose of some of Mr Stevens’ visits was to visit family members in Australia, the majority of his visits since 2008 have been of short duration and were solely for the purpose of renewing DSP portability. For instance, Mr Stevens arrived in Australia on 10 December 2010 and departed on 11 December 2010; he arrived in Australia on 3 March 2011 and departed on 8 March 2011; he arrived in Australia on 25 May 2011 and departed on 7 June 2011; he arrived in Australia on 9 August 2011 and departed the same day; he arrived in Australia on 13 November 2011 and departed on 14 November 2011; he arrived in Australia on 10 February 2012 and departed on 14 February 2012.
Any other relevant matters
Despite his marriage to a Vietnamese citizen, Mr Stevens maintains that he has no residency status in Vietnam. He currently resides there on a five-year exemption visa and is required to leave the country every 90 days or alternatively apply for an extension. Mr Stevens said that that he still considers himself a resident of Australia. There was no evidence that Mr Stevens had expressed any intention to return to Australia to live. He said that he has chosen to live in Vietnam where he can enjoy a better standard of living. Nor have any steps been taken to obtain an Australian Visa for Mr Stevens’ wife. Mr Stevens maintains that this is due to the lack of finances.
CONSIDERATION AND FINDINGS
Mr Stevens submitted that his circumstances were similar to those of the applicant in MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 924 which he referred to as the “Vagabond” case. There the AAT set aside the decision under review on the basis of its finding that the applicant was an Australian resident at the relevant time and accordingly qualified to receive DSP. The applicant in that case was born, and for many years, lived in a variety of places in Australia, often outdoors and in self-constructed shelters. He had travelled throughout South-East Asia and was described by the Tribunal as “homeless”. The SSAT had found that the applicant had no fixed place of abode either in Australia or overseas.
The AAT considered that it was relevant to determine the nature of the applicant’s accommodation. It considered that it was not necessary for the accommodation to be either a fixed or settled place of abode but that it was relevant that the applicant had various sites in Australia where he camped on a regular basis, was enrolled to vote in an electorate and had a registration card provided by the Aboriginal community that enabled him to camp out in community land in Darwin. The AAT found that the applicant had strong ties to Darwin although he did not live in a house and in this sense had a home “connection”.
Reference was made to the Guide to Social Security Law (Version 1.191) (the Guide) with respect to assessing the concepts raised in section 7(3) where it is stated that:
“People who spend considerable time overseas will need to provide evidence that they still maintain strong connections to Australia. One consideration is the nature of the accommodation used by the person in Australia and overseas. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country and that they have made arrangements for an extended period of accommodation in Australia”.
Of relevance in that case was the fact that the applicant had no ties to any other country, nor did he stay in any particular South-East Asian country or place but moved around in an effort to find affordable lodging within his pension limits. The applicant had no settled or permanent accommodation outside of Australia. Further, the applicant considered Australia as his home and that he had a permanent connection to Australia.
Mr Stevens’ circumstances vary considerably with the above facts as found by the AAT in that he has clearly established residence and connections in Vietnam where he has lived for a number of years. Mr Stevens’ ties with Vietnam have strengthened since his marriage in 2011. He resides in rented accommodation with his wife and her two children for whom he has assumed responsibility. He has no permanent accommodation in Australia and has not returned to Australia since 2012 following the cancellation of his DSP. Prior to that, although he did visit family members on occasions, it is clear that the main purpose of his return visits was to renew portability of his pension.
Mr Stevens’ only remaining ties with Australia are that he has family members who reside there. He has no assets in Australia apart from some furniture and an Australian bank account with a minimal balance of around $200. He currently has no employment, business or financial ties with Australia.
Regardless of Mr Stevens’ sentiment that he considers himself to be an Australian resident, the evidence does not support such a finding. As his Honour Wilcox J said in Re Maha Hafza v Director-General of Social Security (1985) 6 FCR 444 at paragraph 13:
"As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever" and at paragraph 14: “Physical presence and intention will coincide for most of the time" but not always. The test, he said "… is whether the person has retained a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains “home"”.
Also of relevance is the Tribunal statement in Firdousi v Secretary, Department of Families and Community Services (2005) AATA 1304 when it said at paragraph 27 when referring to the term "residing in Australia” and “temporarily absent from Australia" which is referred to in sections 7(2B), 7(2D) and 7(2E):
"In drawing a distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough."
At paragraph 3.1.1.10 the Guide notes:
“The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties in Australia under a number of different criteria listed in the SS Act section 7(3)”.
It is clear from the drafting of subsection 7(3) that there must be evidence that a person intends to remain in Australia on a permanent basis. Mr Stevens has not resided in Australia for many years and despite his desire to return to Australia when financial circumstances permit, there is no evidence of any plan to do so. Mr Stevens has clearly established residence in Vietnam with his wife and her children and has taken no steps to obtain Australian citizenship for his wife. Mr Stevens maintains that he has no right to permanently reside in Vietnam, however an absence of permanent residency in another country does not on its own establish residency in Australia. Residency in Australia is established by satisfaction of the criteria set out in subsection 7(3). For the above reasons the Tribunal finds that Mr Stevens’ circumstances do not establish that he was a person residing in Australia at the time of the decision under review.
The decision under review is accordingly affirmed.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) [Sgd]
Administrative Assistant
Dated : 23 September 2013
Date(s) of hearing 31 July 2013 Applicant In person via telephone link Solicitors for the Respondent Mr B Sparkes, Program Litigation and Review Branch
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