Crossley and Secretary, Department of Social Services (Social services second review)

[2018] AATA 525

Crossley and Secretary, Department of Social Services (Social services second review) [2018] AATA 525 (19 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/4883

Re:Paul Crossley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:19 March 2018

Place:Sydney

The decision under review is set aside and the matter is remitted to the Secretary with a direction that Mr Crossley was an Australian resident when he applied for Age Pension on 28 June 2016 and, subject to meeting all the other claim criteria, his claim of 28 June 2016 is to be granted.

........................[sgd]............................................

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension – eligibility – whether applicant an Australian resident – frequency and duration of overseas travel – nature and extent of ties to Australia – Tribunal satisfied applicant was an Australian resident – decision set aside and remitted

LEGISLATION

Social Security Act 1991 (Cth) ss 7, 43

Social Security (Administration) Act 1999 (Cth) s 29

CASES

Mentink v Secretary, Department of Social Services [2016] FCAFC 39

Re Maha Hafza v Director-General of Social Security [1985] FCA 164
Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773

REASONS FOR DECISION

Chris Puplick AM, Senior Member

19 March 2018

THE QUESTION TO BE DETERMINED

1. The question before the Tribunal can be stated with simplicity:

   When Mr Paul Crossley applied for the Age Pension on 28 June 2016 was he a resident of Australia or a resident of Thailand?

2. While the question is simple working out the answer is anything but simple.

   THE ANSWER TO THE QUESTION

3. Nevertheless, for the reasons which are set out below I find that on 28 June 2016 Mr Crossley was a resident of Australia.

   BACKGROUND

4. The evidence about Mr Crossley’s residency arrangements at the relevant time is not altogether clear or at least what evidence there is gives rise to contradictory interpretations, which it is my responsibility to try and resolve.

5. The Tribunal has before it considerable evidence related to Mr Crossley’s previous history and payments from the Department of Social Services, including previous payments of the Age Pension.

6. From this history, the following facts are relevant for an understanding of the current matter:

   ·On 24 November 2012 Mr Crossley started to receive the Age Pension having been found, at that time, to meet all eligibility requirements.

   ·On 2 June 2015 that pension was cancelled because Mr Crossley’s earnings for the past twelve weeks were above the allowable limits.

   ·On 28 June 2016 Mr Crossley made a second application for the Age Pension which was rejected on the basis that the Department disputed his residency qualifications. He appealed this decision but it was affirmed by both the Department and the Social Services & Child Support Division (first tier review) of the Tribunal. That is the matter now before this Tribunal.

   ·On 21 February 2017 Mr Crossley, following various changes in his circumstances, made a third application for the Age Pension which was granted on 23 March 2017. There was a brief suspension of this payment between 29 April and 15 May 2017 but since that date Mr Crossley has been in receipt of it.

7. Another factor of relevance in these considerations is that Mr Crossley, who travelled frequently to Thailand on business, met his now wife in early 2013 and they were married in September 2015. She has visited Australia only once for a six week period in 2015 and has no intention of seeking to reside in Australia.

8. Finally I take note of the fact that Mr Crossley, who had previously retired, re-entered the workforce, in order to supplement his income, in early 2015 working for companies which were seeking business investment opportunities in Thailand. Mr Crossley was familiar with Thailand having previously had employment which took him there on frequent business visits.

   LEGISLATIVE FRAMEWORK

9. The Age Pension is payable under s. 43 of the Social Security Act 1991 (Cth) (“the Act”), the relevant part of which provides:

   43 Qualification for age pension

   (1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:

   (a) the person has 10 years qualifying Australian residence;

10. Under s. 7 of the Act there are several other provisions relevant to my consideration of Mr Crossley’s claim. They are:

    7 (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.

    7 (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.

    7 (5) A person has 10 years qualifying Australian residence if and only if:

    (a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

    (b) the person has been an Australian resident during more than one period and:

    (i) at least one of those periods is 5 years or more; and

    (ii) the aggregate of those periods exceeds 10 years.

11. Further legislative provisions are contained in the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), relevantly:

    Subdivision H—Residence requirements for claimants

    29 General rule

    (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.

12. The operation of these two Acts provides the framework within which I must answer the simple question, where was Mr Crossley living on 28 June 2016.

13. His qualification, as required under s. 43 in terms of both his “pension age” and his “10 years qualifying residence” are not in issue; nor is the fact that he made the application himself while in Australia[1]; but at the relevant time was he “an Australian resident”?[2] 

    [1] As required under the Administration Act s. 29(1)(b)

    [2] The Act s. 7(2) and the Administration Act s. 29(1)(a)

14. In answering this question I must have regard to the factors which are set out in s. 7(3) of the Act (outlined above) and test both parties’ evidence against these criteria.

15. The Secretary has also drawn my attention to definitional matters regarding the issue of residency set out in the judgements of Wilcox J in Hafaz[3] and Branson J in Baccon[4] and I have made my decision within those definitions.

    [3] Re Maha Hafza v Director-General of Social Security [1985] FCA 164 at [13] and [14]

    [4] Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773

16. I have also drawn upon the discussion of this specific subject within the context of an application for the age pension in Mentink v Secretary, Department of Social Services[5].  In that case, while rejecting the claim that “mere temporal presence in Australia would suffice to establish residency” the Court stated :

    “Thus, while the precise meaning of expressions such as ‘resident’ and ‘reside in’ will be affected by the legislative context in which they appear, the consistent theme is that of a real and enduring connection between a person and a place.”[6]  (emphasis added)

    [5] [2016] FCAFC 39

    [6] At [47]

    THE SECRETARY’S CONTENTIONS

17. In relation to Mr Crossley’s residential status, the Secretary contends that Mr Crossley:

    1.last owned a residence in Australia 12 years ago

    2.travelled to Thailand on a regular basis, often for extended periods of time

    3.in the period prior to lodging his second age pension application spent most of his time living in Thailand

    4.informed both the Department (at a Job Capacity Assessment) and the Administrative Appeals Tribunal in the first tier review that he intended to spend a significant amount of time in Thailand

    5.had more stable accommodation arrangements in Thailand than in Australia

    6.had closer family ties in Thailand with his Thai wife and her dependent children than he had with his own family (children from his first wife) in Australia; and

    7.had limited assets in Australia.[7]

    [7] Secretary’s Statement of Facts and Contentions

    MR CROSSLEY’S CONTENTIONS

18. Mr Crossley answers the Secretary’s contentions and makes his own case as follows:

    1.The nature of his employment between 2015 and 2016 required him to travel to Thailand on business on numerous occasions.

    2.He ceased to own a residence in Australia when possession of his family home passed to his wife on their separation and his wife and children continued to live at that residence.

    3.After leaving the family home he resided for several years with “his best mate” at a stable address in Camden where he paid board and contributed to household expenses. This address was where he registered with the Department of Social Services and to which all his correspondence was addressed.

    4.When in Thailand, during his working life he rented a condo on Sukhumvit (a principal thoroughfare in Bangkok) and his Thai wife spent some time with him there.

    5.Subsequently on visits to Thailand he resided in the home of his wife’s parents (his wife also residing there and working in the attached shop).

    6.He maintains close connections with his children and grandchildren in Australia, although he does not “do baby-sitting duties” and has less contact with his youngest daughter since she moved out of Sydney with her husband who is in the Navy.

    7.His wife has never wanted to reside in Australia and has commitments to her parents and to their family business and he accepts that this means spending considerable time apart.

    8.He has tried “to satisfy both camps” that is, to maintain close ties with both his families – his first in Australia and his second in Thailand.

    9.During all the times he travelled to Thailand his age pension (first granted in November 2012 until cancelled for financial reasons in June 2015) was always paid and he was covered by portability arrangements throughout that time. He drew my attention to the computer print-outs of his Centrelink records which, against details of periods of absence from Australia record the word “Portability.”[8]

    10.What he told the Department at interview, which was that “he was having a good time in Thailand and might never come back”, he meant in a humorous fashion and not as a statement of deliberate intent.

    11.He has limited assets in total but has always operated an Australian bank account into which all previous social security payments have been made.

    12.He took out an 18 month membership (at a cost of $1,100.00) of the Camden Golf Club in February 2015.[9]

    [8] T documents at 221

    [9] Extracted from Mr Crossley’s evidence, evidence presented to the AAT at its first tier review and in Applicant’s Statement to this Tribunal (undated). Exhibit A-1

    WHAT DOES THE EVIDENCE ESTABLISH?

19. I turn to review the evidence in the order of the relative weight which I perceive has been given to it by the Secretary in rejecting Mr Crossley’s claim and relating it to the requirements which I am obliged to take into consideration under s. 7(3) of the Act.

    Travel to Thailand [s. 7(3)(e)]

20. The Secretary produced for the Tribunal a table showing that Mr Crossley had made 55 trips to Thailand in the period from 8 February 2004 to 15 May 2017. There were three occasions during which Mr Crossley was absent from Australia for prolonged periods (294 days, 277 days and 208 days). Otherwise all the trips were of short duration ranging from 4 to 38 days.

21. I regard this as compatible with Mr Crossley’s claims that he travelled extensively to Thailand on business for two Australian companies: Labelforce Pty Ltd (based in Perth) and the Le Mac Australia Group Pty Ltd (based in Sydney) during the period 2012 to 2015. I accept that he was during this period paid according to relevant Australian employment conditions and that he was an employee to two Australian companies. These arrangements are noted in the Secretary’s Statement of Facts and Contentions and at no stage has their veracity been called into question.

22. The question then arises of how to calculate the length of time which Mr Crossley has spent outside Australia.

23. The Secretary urges me to consider that from 14 February 2013 to 28 June 2016 he spent a total of 823 days outside Australia, a period representing 67% of the time in the two-and-a-half years before lodgement of the claim.

24. Mr Crossley, by contrast urges me to consider the period from 28 December 2014 to 28 June 2016. This is a period which relates to his last departure from Australia before starting to work for the two companies already mentioned. If that time frame is adopted, then in that period Mr Crossley spent 213 days outside Australia, and thus 62% of his time in Australia in the eighteen-months prior to lodging his claim.

25. I can see no compelling reason that I should adopt one version or the other. There is certainly nothing in the social security legislation which requires the pension application to be considered within a temporal framework of the preceding 30 months rather than 18 months, or the other way around.

26. In any event I prefer to take the 18 month period as the benchmark as I think this to be a reasonable period during which to establish where a person was ordinarily resident.

    Family ties [s. 7(3)(b)]

27. I accept Mr Crossley’s evidence that he attempted at all times to maintain a balance between his commitments to his new family in Thailand and his existing family in Australia.

28. Mr Crossley’s relationship with his Thai wife is marked by prolonged periods of separation and there is no evidence that they ever genuinely cohabited in terms of living together. He said in evidence that his wife only spent brief periods with him in his Sukhumvit condo, especially as she was working in the family business which is located in Thepharak, approximately one hour outside Bangkok. During other visits Mr Crossley resided at the home of his parents-in-law. Mr Crossley accepts some financial and emotional responsibility for the children of his Thai wife from her previous marriage – a daughter aged 22 who is at university and a son aged 7.

29. I believe Mr Crossley still maintains strong and genuine emotional ties to his family in Australia and spent time with them, especially on special family occasions and Christmas while he was travelling extensively to Thailand.

    Accommodation arrangements [s. 7(3)(a)]

30. Mr Crossley does not own any property in either Australia or Thailand. His accommodation in Thailand is provided by his wife’s parents. In Australia he has had a long-term arrangement staying with his friend Mr Williams in Camden. Now that Mr Williams has married, also to a Thai lady (one of Mr Crossley’s longer trips was to attend their wedding in Thailand) he now resides with another friend of his (Mr Bevan), also in Camden, where he pays no rent but contributes to household expenses.

31. I take from all this that Mr Crossley has no stable accommodation arrangements in either country and that in both he is dependent upon the generosity and support of other people. However at the time of the pension application Mr Crossley’s most stable accommodation arrangements were those in Camden, Australia.

    Employment arrangements [s. 7(3)(c)]

32. Both the Secretary and I accept that prior to early 2015 Mr Crossley had retired from the workforce. He re-entered it in early 2015 and worked for two Australian companies until sometime in the middle of 2016.

33. I take it from this that during the period leading up to his pension application date Mr Crossley was employed by two Australian companies and he worked for them primarily in Australia but with extensive travel, for business purposes to Thailand.

    Personal assets [s. 7(3)(d)]

34. The evidence shows that Mr Crossley has few personal assets anywhere. There is an active bank account in both countries but the majority of such financial resources that exist are maintained in Australia. His only income is the pension and those payments are made into his Australian account. At the time of the pension application he owned one vehicle (Hyundai Getz) and was part-owner of another (Toyota Forerunner).

35. What few assets Mr Crossley possesses are located in Australia and were at the time of his pension application. I find he has no assets in Thailand apart from a small bank account through which he remits money to his wife. A Thai bank statement was presented to the Tribunal by the Respondent and taken into evidence.

    CONCLUSIONS

36. I believe that the above analysis addresses all the matters which I am obliged to consider under section 7(3) of the Act.

37. I think it appropriate to add that I found Mr Crossley to be a highly credible witness. His answers were straightforward and direct. His responses to the questions of the Respondent were clear and helpful, even when making admissions which were not particularly favourable to his own position. He rightly drew my attention to a number of errors in the paperwork of the Department, although they were not of material relevance in my decision making.

38. I have come to the conclusion, based on the evidence before me, and testing it against the items which I am bound, by statute, to consider, that Mr Paul Crossley has and had a “real and enduring connection” with Australia and at the time of his pension application was a resident of Australia.

    DECISION

39. The decision under review is set aside and the matter is remitted to the Secretary with a direction that Mr Crossley was an Australian resident when he applied for Age Pension on 28 June 2016 and, subject to meeting all the other claim criteria, his claim of 28 June 2016 is to be granted.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.........................[sgd]...........................................

Associate

Dated: 19 March 2018

Date(s) of hearing:	12 March 2018
Applicant:	In person
Solicitors for the Respondent:	J Eslick, Department of Human Services