CONFIDENTIAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 97
[2013] AATA 97
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2896
Re
CONFIDENTIAL
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Ms K Hogan, Member
Date 22 February 2013 Place Perth DECISION SUMMARY
The Tribunal sets aside the decision under review.
…(Sgd) K Hogan……..
Ms K Hogan, MemberCatchwords
Social Security - disability support pension - whether applicant is an Australian resident- consideration of factors relevant to residence in Australia - decision set aside
Legislation
Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment Act (Budget and Other Measures) Act 2011
SocialSecurity Act 1991
Social Security (Administration) Act 1999
Cases
Hafza v Director General of Social Security (1985) 6 FCR 444
Re Wybrow and Secretary, Department of Social Security (1992) AATA 315
Secretary, Department of Families Community Services and Indigenous Affairs v Baccon [2006] FCA 773.REASONS FOR DECISION
Ms K Hogan, Member
22 February 2012
HISTORY
The applicant seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 4 July 2011.
The decision of the SSAT was to affirm a decision of a Centrelink authorised review officer (ARO) made on 13 April 2012, cancelling the applicant’s disability support pension with effect from 11 February 2012 on the basis that she was not an Australian resident for the purposes of social security law.
THE ISSUE
The issue to be considered by the Tribunal is whether the applicant is an Australian resident as defined in subsection 7 of the Social Security Act 1991 (the Act).
EVIDENCE
The Tribunal was provided with a number of documents including:
(a) the section 37 documents;
(b) written submissions from the applicant and the respondent.
The applicant gave evidence at the Tribunal.
The Tribunal heard oral submissions on behalf of the parties.
THE LEGISLATIVE FRAMEWORK
The eligibility criteria for disability support pension is set out in Section 94 of the Act and requires a person, inter alia, to be an Australian resident.
The term "Australian resident" is defined in subsection 7(2) of the Act:.
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.
Subsection 7 (3) provides that:
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.
FACTS
The applicant was born on 11 April 1958, in Malaysia. She arrived in Australia on 26 January 1988 and was granted permanent residency in 1996.
The applicant studied at Murdoch University and graduated with a Bachelor of Commerce on 17 August 1992.
The applicant engaged in finance related employment at various organisations between September 2004 and April 2008 (T13 page 89, T14 pages 94-95, T14 page 104).
The applicant was married on 10 December 1994, but separated from her husband in 2002 and subsequently divorced.
The applicant built a house in Ellenbrook. The settlement dated was 1 January 1988. The applicant lived in the house that she built until her health deteriorated to the point that she was having difficulties with day to day tasks and managing her home (T5 page 52).
In January 2010 the applicant was admitted into Swan Clinic for depression.
On 1 February 2010, the applicant made a claim for disability support pension. The claim was supported by a medical report of Dr P L Webster who confirmed the applicant’s diagnosis as Psychosis Delusional Disorder (T4 pages 41-48).
On 10 March 2010, a job assessment capacity report was prepared by Ms Gabriel Ellison, registered Psychologist who stated:
(a)The applicant has a recommended rating of 20 under Impairment Table 6 (T5 page 50).
(b)The applicant’s prognosis was poor and she was unlikely to be suitable for work in the foreseeable future (T5 page 52).
Records from the Department of Immigration and Citizenship, the applicant's written submissions and her oral evidence demonstrate that the applicant was in Malaysia for the following periods:
·6 July 2010 to 29 September 2010;
·13 February 2011 to 9 May 2011;
·14 May 2011 to 8 August 2011;
·13 August 2011 to 7 November 2011;
·12 November 2011 to 6 February 2012;
·11 February 2012 to 5 August 2012;
·13 August 2012 to 21 January 2013.
APPLICANT
The applicant’s evidence, which was consistent with her submissions to the SSAT, was that:
(a) she is renting her house on a temporary basis with the intention to live there again;
(b) she leaves Australia temporarily but intends to live permanently in Perth when she is better;
(c) when she first became unwell, her mother suggested that she move in with her male cousin and his wife who would provide companionship and assistance to her;
(d) her mother advised her to rent out her home whilst she was living with her cousin and in late 2010 her cousin and his family assisted her to move into their home in Willetton;
(e) her cousin assisted her to undertake the repair work on her home prior to renting it out in January 2011;
(f) although she has a mother and brother in Malaysia she has no friends there;
(g) in Australia her cousin, his wife and family have been supportive and she is currently staying at the home of a long-term friend;
(h) she has only ever worked in Australia and has no employment history in Malaysia;
(i) she maintains a bank account, superannuation account, credit card and mobile phone in Australia;
(j) since returning to Australia recently, she has been living with a long term friend because her cousin has moved to a smaller house;
(k) the only assets belonging to her are in Australia. Her furniture is in storage and all her personal effects are here;
(l) she does not have a regular doctor in Malaysia and returns to see her doctors in Australia.
The applicant contends that she is an Australian resident under sub-section 7(3) of the Act on the basis that she has lived in Australia since 1988 and the extent and frequency of her trips to Malaysia have arisen only as a consequence of her illness and upon the advice of her treating doctor that she needed to stay with her mother until her health improves.
The applicant contended that it was important for her to maintain contact with the doctors who have treated her since 1995 because she trusts them and they know her. The extent of her reliance upon her doctors is evidenced by the fact that she returned to see them in August 2012 even though she was not receiving the pension.
The applicant has not sold her house and contended that it would be cheaper for her to sell her possessions than to keep them in storage but the reason she has not disposed of her assets and personal effects is that she intends to return to Australia which she regards as her home.
RESPONDENT
The respondent relied upon its statement of facts, issues and contentions.
The respondent conceded that the applicant is a permanent resident and therefore satisfies the criteria under section 7(2)(b).
The respondent referred to the changes to the eligibility criteria for the disability support pension which were introduced in the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment Act (Budget and Other Measures) Act 2011 (the Amending Act). The explanatory memorandum relevantly stated:
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.
It is not the intention of the 13-week portability period to allow people to live overseas and return to Australia for only short periods every 13 weeks to maintain payment. The 13 week portability period is designed to allow disability support pensioners who reside permanently in Australia sufficient time to deal with personal matters that may arise from time to time overseas. This is consistent with the purpose of disability support pension, which is to assist people with the cost of living in Australia, and it is designed to engage people of workforce age in activities in Australia that will lead to greater levels of economic and social participation.
The respondent contended that the applicant's circumstances were outside the scope of the type of circumstances for which Parliament intended the portability period to apply and for which a person would be eligible for a disability support pension.
The respondent contended that the applicant is not attending to matters which may arise from time to time but is residing in Malaysia.
The respondent contended that the concept of residency in social security law has been developed over many years and has two essential elements:
(a) a physical presence in a particular place; and
(b) the intention to treat that place as home;
(see Secretary, Department of Families Community Services and Indigenous Affairs v Baccon [2006] FCA 773, citing Hafza v Director General of Social Security (1985) 6 FCR 444).
The respondent contended that:
(a)the applicant's strong emotional ties are obviously in Malaysia because that is where her mother lives;
(b)her house in Australia is rented out and her residential arrangements in Australia are "more akin to a visitor to a country" (R: SOFIC para 38);
(c)the applicant has no business ties in Australia and her bank accounts are used extensively in Malaysia;
(d)the extent of the time she has spent in Malaysia since 2011 should be determinative of a finding that she is not residing in Australia.
CONSIDERATION OF THE ISSUES
In Re Wybrow and Secretary, Department of Social Security (1992) AATA 315, it was found that it is appropriate not only to consider the facts in section 7(3) from an Australian perspective in determining whether an applicant is an Australian resident, but also the converse of these factors (the extent to which these facts exist in relation to the second country in question).
The Tribunal finds that:
(a) the applicant's furniture and personal effects are in Australia and not in Malaysia;
(b)the applicant's only significant asset, her house, is in Australia;
(c)the applicant has family in Australia and in Malaysia;
(d)the applicant has no financial or business ties in Malaysia;
The Tribunal was provided with medical reports from her treating doctors supporting the evidence that she has been advised to seek support from her mother overseas.
In balancing considerations of the applicant’s residency, it is clear to the Tribunal that whilst the applicant has spent considerable time overseas it is not as a result of any lifestyle decision but as a direct result of the illness for which she receives a disability pension.
The Tribunal is satisfied that the applicant is a resident for the purposes of sub-section 7(2) and (3) of the Act.
DECISION
The Tribunal sets aside the decision under review.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member .
...(sgd) T Freeman............
Associate
Dated 22 February 2013
Date of hearing 1 February 2013 Applicant In Person
Advocate for the applicant Ms Chris Belcher Advocate for the respondent Mr Lam Nguyen Solicitors for the respondent Australian Government Solicitors
0
2
0