Dilworth and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 138

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 138

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5155

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GARRICK JOHN DILWORTH

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date2 March 2011

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension residence qualification requirements - claimant not in Australia or Australian resident at the time of making his claim - not a valid claim - decision under review affirmed

Social Security Act 1991

Social Security Administration Act 1999, s29

Administrative Appeals Tribunal Act 1975, s37

REASONS FOR DECISION

2 March 2011 Ms A F Cunningham (Senior Member)   

1.      Mr Dilworth's claim for a disability support pension was rejected by a Centrelink officer on the basis that he was not an Australian resident and was not in Australia at the time of lodging his claim.  The decision was affirmed by an authorised review officer and the Social Security Appeals Tribunal.  Mr Dilworth has sought the review of the decision by the Administrative Appeals Tribunal.

2. The hearing was conducted by way of telephone link to Mr Dilworth in Vietnam. Mr Dilworth appeared on his own behalf and gave oral evidence. The T Documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

3.      The issue for the Tribunal to determine is whether Mr Dilworth satisfies the qualification requirements for disability support pension (DSP). 

4.      Mr Dilworth completed his application for DSP on 21 December 2009 and it was received by Centrelink on 30 March 2010.

5.      DSP is paid pursuant to the provisions of the Social Security Act 1991 (the Act) and the Social Security Administration Act 1999 (the Administration Act). Mr Dilworth's eligibility for DSP on the basis of his state of health was not assessed by Centrelink on the basis that as Mr Dilworth does not satisfy the residence requirements, he has not submitted a valid claim.

6.      The residence requirements are contained in sub-division H of the Administration Act. Section 29 relevantly provides:

"29      General rule

29(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

29(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".

7. None of the exclusion provisions referred to in section 29 apply in this case.

8.      In his oral evidence to the Tribunal Mr Dilwoth did not dispute that he was not in Australia at the time of lodging his claim.  It was his evidence that he had not visited Australia since the death of his father in 2004.  This conflicted however with his original oral evidence to the Tribunal that he had purchased land at Narrabeen and built a house upon it in around 2007/2008.  Further that he had applied for a position with the Warringah Shire Council at about the same time as he had intended to move back to Australia.  He said that he sold the property for financial reasons after residing in it for approximately one year whereafter he bought a home unit at Queenscliff.  Under cross-examination he agreed that he had applied for the job with the Warringah Shire Council in around 1998 and that his property at Narrabeen had been sold by 2000 and not 2007/2008. 

9.      Mr Dilworth was referred to a letter which he wrote to the Social Security Appeals Tribunal on 30 August 2010 in which he stated that he has resided in Vietnam since 2004 and has not returned to Australia since (T11).   It was in 1999 when he moved into the house at Narrabeen with the intention of winding up his business activities in Vietnam and settling back in Sydney.

10.     In the letter Mr Dilworth states that his health rapidly deteriorated and that he was unable to re-establish any consistent work due to his osteoporosis.  He had found it cheaper to live in Vietnam rather than Australia and had also assisted with the care of four of his wife's nieces who resided with them. 

11.     One niece aged 13 years continues to live with Mr Dilworth and his wife.  Mr Dilwoth maintains that his state of heath prevents him from returning to Australia in order to establish residency and lodge a claim for DSP.  

12.     Nevertheless the eligibility requirements of the Administration Act stipulate that in order for a valid claim to be established, the claimant must be both an Australian resident and in Australia at the time of making his claim. 

13. The term Australian resident is defined in section 7 of the Social Security Act which requires that a person must "reside in Australia". Sub-section 7(3) sets out the matters to which regard must be had in determining whether a person resides in Australia and reads as follows:

"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 matters relevant to determining whether the person intends to         remain permanently in Australia".

14.     

Mr Dilworth did not dispute the respondent's documentary evidence that he last departed Australia on 25 June 2004 and has not returned to Australia since that date.  Despite Mr Dilworth's evidence that he regards Australia as his home, he has maintained little connection with Australia since his last departure.  He no longer owns any property in Australia or has any business or financial ties with the country.  He currently owns two blocks of land in Vietnam.  Although he still has family residing in Australia he has not visited them since his last departure in 2004.  The T Documents also disclose that Mr Dilworth jointly owns two motor scooters and has household contents and personal effects to the value of $60,000.00.  It is presumed that his assets are situated in Vietnam as there was no evidence to the contrary. 

Whilst he maintains an ANZ back account in Australia, the account balance is not stated. 

15.     Despite Mr Dilworth's protestations that he regards Australia as his home, he resides in Vietnam and was clearly not an Australian resident at the time of lodging his claim in 2010.

16. Whilst I have some sympathy with the limitations imposed on Mr Dilworth's movements due to his osteoporosis, the legislation does not permit me to take this into account and disregard the mandatory residence requirements as stipulated in section 29 of the Administration Act.  Nor is there an International Social Security Agreement with Vietnam

17.     For these reasons I have no option but to affirm the decision under review that Mr Dilworth did not lodge a valid claim for DSP on 30 March 2010.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:   R Hunt (Administrative Assistant)

Date/s of Hearing  18 February 2011
Date of Decision  2 March 2011
Solicitor for the Applicant          Applicant on his own behalf
Solicitor for the Respondent    Mr B Sparkes, Centrelink Advocacy Branch