Gary Pople and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 905
[2012] AATA 905
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number(s) | 2012/4327 |
| Re | Gary Pople |
| APPLICANT | |
| And | Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENT |
DECISION
| Tribunal | Ms A F Cunningham (Senior Member) |
| Date | 20 December 2012 |
| Place | Hobart |
The decision under review is affirmed.
[Sgd Ms A F Cunningham] Senior Member
SOCIAL SECURITY – overseas claimant, disability support pension, no current plans to return to Australia – resident of Indonesia - not Australian resident - not entitled to DSP - decision under review affirmed
Social Security Act 1991, ss 7(1), 7(3), 1212C, 1217, 1218AA
Social Security (International Agreements) Act 1999
Hazfa v Director-General of Social Security (1985) 6 FCR 444
REASONS FOR DECISION
The applicant, Gary Pople seeks the review of a decision of Centrelink which cancelled his disability support pension (DSP) on the basis that he was not an Australian resident.
Mr Pople has been in receipt of DSP since 10 October 2001 and has resided in Bali, Indonesia since 2004. He is an Australian citizen and previously resided in Australia. Mr Pople returned to Australia periodically to renew portability of DSP in accordance with the previous provisions of the relevant social security legislation which allowed a person to continue to receive DSP whilst overseas provided they returned to Australia every 13 weeks.
On 1 July 2011 changes were made to the portability rules requiring that either a person is an Australian resident or the circumstances of the person’s absence from Australia fall within those outlined in the legislation.
The issue for the Tribunal to determine is whether Mr Pople continued to meet the qualification provisions for the payment of DSP from 10th February 2012 being the date of Centrelink's decision cancelling his payments.
The hearing was conducted by telephone link to Mr Pople in Bali. He appeared on his own behalf and gave oral evidence. Mr Brian Sparks appeared on behalf of the Secretary. The T Documents were tendered in evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Two further documents were tendered in evidence. The first being a copy of a Notice of Decision advising Mr Pople of the decision to cancel his DSP. The second was a signed copy of a statement written by Mr Pople dated 10 September 2003.
THE EVIDENCE
The evidence was that Mr Pople has lived in Indonesia since around 2001. The Department’s records indicate that he had numerous return visits to Australia, details of which were contained in paragraph 60 of the Secretary’s Statement of Facts and Contentions and were not disputed by Mr Pople. The majority of the visits were of short duration and occurred every three months.
It was Mr Pople’s evidence that the previous legislative qualification provisions for DSP allowed a person to remain out of Australia for a period of up to 6 months. However following changes to the legislation introduced in 2004, to remain qualified a person was only permitted to remain out of the country for a period of up to 13 weeks. Mr Pople maintains that he complied with the legislative requirements by ensuring that he returned to Australia every three months.
Mr Pople referred to a letter that he had written to the Department on 24 April 2012 (T15) regarding a letter that he had received from Centrelink dated 25 August 2011 advising of changes to the residency rules and stating: "Customers who were outside Australia on 1 July 2004 and were told they could be paid indefinitely and have not returned to live in Australia since will continue to be paid indefinitely." In the letter Mr Pople stated that he would prefer to live in Australia but lacks the means to do so without government assistance for housing, care services, medical and financial help.
It was Mr Pople’s evidence that he currently resides at Ari Homestay. He said that he had made financial contributions towards his accommodation from his lump sum workers compensation payment of around $40,000-$50,000 over a period of time. He described his accommodation as consisting of a room 4 m x 5 m in size, bathroom and attached small living room which he now shares with his fiancee. His fiancee has two adult children and other family members who reside in Indonesia. Mr Pople has two adult children and four grandchildren who all reside in Australia. Until recently he had little contact with his children but his relationship with them has improved in recent times. Mr Pople agreed that he does not have any permanent accommodation in Australia and that when visiting Darwin, he stays at the home of a friend where he has separate downstairs accommodation. He agreed that during the last seven or eight years his 42 visits to Australia had all been to Darwin. He said that he had also visited Sydney for medical reasons as well as Perth, Western Australia. Mr Pople agreed that the purpose of his short visits to Australia was to maintain the portability of his DSP. He agreed that his present intention is to remain living in Indonesia but stated that he did not know what the future holds. He agreed that in his evidence to the SSAT he had stated that he found travel to Australia expensive and inconvenient.
Mr Pople maintained that he is not employed in Indonesia and disputed the respondent's contention that he is financially involved with the Homestay. He stated that he entered Bali on a tourist visa which did not allow him to work. Mr Pople disputed having informed a Centrelink officer that he has legal resident status in Bali which allows him to stay indefinitely. (T17 page 77). He maintains that he is required to renew his tourist visa which enables him to stay in Bali for a six month period.
In his signed statement made on 10 September 2003 Mr Pople stated that he was living with friends having arrived in Australia two weeks ago and that he did not own any property in Australia and had nowhere else to live. He stated that he was unable to function mentally or physically in Australia and was in Australia to finalise his divorce. He planned to return to Indonesia as soon as possible. It was his intention to continue to live in Indonesia for six months and return to Australia to renew his visa.
Attached to the respondent’s Statement of Facts and Contentions were a number of photographs and comments from Trip Advisor with respect to Ari Homestay. The comments suggested that visitors to the Homestay had assumed that Mr Pople was owner of the accommodation. The comments also suggested that Mr Pople was involved with the Hotdog and Burger Shop attached to the Homestay. In response Mr Pople disputed his financial involvement in the Homestay business or the Shop. He said that he was not legally able to work in Bali and could not be responsible for people’s assumptions. He maintained that he is only “mentally involved” with the Homestay business.
Mr Pople agreed that he has no assets or property in Australia. He has one operating bank account which he can access from Bali. This account contains approximately $5,000 which Mr Pople recently borrowed from his brother.
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 contained in section 94 of the Act which requires that either the person is an Australian resident or is absent from Australia and complies with the circumstances described in paragraphs 1218AA (1)(A), (V), (C), (D) and ( E).
Section 1218 of the Act does not apply as Mr Pople is not, on the evidence terminally ill and severely disabled.
Section 1217 of the Act provides that DSP is portable for any temporary absence of 13 weeks. Mr Pople is not entitled to an unlimited period of portability because there is no evidence that he is a severely impaired disability support pensioner. An absence from Australia is defined as temporary 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.
Section 7(1) of the Act states:
“(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
designated temporary entry permit means:
(a) an old PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People’s Republic of China if that citizen holds an old PRC (temporary) entry permit; or
(b) a new PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People’s Republic of China if that citizen holds:
(i) an old PRC (temporary) entry permit; or
(ii) a new PRC (temporary) entry permit.
former refugee means a person who was a refugee but does not include a person who ceased to be a refugee because his or her visa or entry permit (as the case may be) was cancelled.
holder, in relation to a visa, has the same meaning as in the Migration Act 1958.
new PRC (temporary) entry permit means an entry permit within class 437 of Division 2.6—Group 2.6 in Part 2 of Schedule 1 to the Migration (1993) Regulations as in force before 1 September 1994.
old PRC (temporary) entry permit means a PRC (temporary) entry permit within the meaning of the Migration (1989) Regulations as in force before 1 February 1993.
permanent visa, special category visa, special purpose visa, temporary visa and visa have the same meaning as in the Migration Act 1958.
protected SCV holder has the meaning given by subsections (2A), (2B), (2C) and (2D).
qualifying Australian residence has the meaning given by subsection (5).
qualifying residence exemption has the meaning given in subsections (6) and (6AA).
(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”.
There is no social security agreement under the Social Security (International Agreements) Act 1999 with Indonesia.
DISCUSSION AND FINDINGS
The issue to be decided is whether is Mr Pople was an Australian resident at the time of cancellation of his DSP in February 2012. This requires a consideration of the evidence against the criteria listed in subsection 7(3).
THE NATURE OF THE ACCOMMODATION USED BY THE PERSON IN AUSTRALIA
It was Mr Pople’s evidence that most of his visits to Australia in recent years have been to Darwin where he stays in accommodation owned by a friend. The duration of his stays have been very short, generally only for a few days and solely for the purpose of renewing portability of his DSP and/or his tourist visa for Bali.
THE NATURE AND EXTENT OF THE FAMILY RELATIONSHIPS THE PERSON HAS IN AUSTRALIA
Mr Pople has two children and grandchildren who reside in Australia. However he does not have regular contact with his family and was until recently, estranged from them. In Indonesia he resides with his fiancee and referred to the support that he receives from his fiancee's family.
THE NATURE AND EXTENT OF THE PERSONS EMPLOYMENT, BUSINESS OR FINANCIAL TIES WITH AUSTRALIA
Mr Pople has no employment, business or financial ties with Australia and has not for a number of years. Any employment, business or financial ties are or have been in Indonesia.
Mr Pople has one Australian bank account in order to access funds from Indonesian ATMs.
THE NATURE AND EXTENT OF THE PERSONS ASSETS LOCATED IN AUSTRALIA
Mr Pople has no property or assets in Australia. The monies in his Australian bank account comprise funds loaned to him by his brother.
THE FREQUENCY AND DURATION OF THE PERSONS TRAVEL OUTSIDE AUSTRALIA
Since 2004 Mr Pople's residence has been in Indonesia and on his own admission his travel to Australia has been for the purpose of renewing portability of his DSP. Mr Pople accepted the respondent’s evidence regarding the frequency and duration of those visits as contained in paragraph 60 of the Secretary’s Statement of Facts and Contentions. The Secretary calculated that during the period identified in paragraph 60, that is from December 2001 until October 2012, Mr Pople spent 2920 days in Indonesia and 210 days in Australia.
The Tribunal accepts that this evidence supports a finding that Mr Pople was ordinarily resident in Indonesia during the relevant period.
ANY OTHER RELEVANT MATTER
Whilst Mr Pople has stated that he would love to return to Australia to live, he has no clear plans to do so. Since 2004 Mr Pople's return visits to Australia have been of short duration and only for the purpose of renewing portability of his DSP. All of the evidence suggests that his permanent residence is in Indonesia where he has spent the majority of his time.
Mr Sparks referred the Tribunal to a number of authorities which have considered the concept of residency. In Hazfa v Director-General of Social Security (1985) 6 FCR 444 Wilcox J stated at page 449:
“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 for ever”.
Wilcox J noted that "physical presence and intention will coincide for most of the time." His Honour went on to consider the question of a temporary absence from Australia and the evidence regarding the applicants’ stated desire to return to Australia at sometime in the future. His Honour dismissed the appeal after finding that despite the appellants stated desires, the objective circumstances which included their living arrangements in Tripoli, the fact that the applicants had no assets in Australia, did not possess any return air tickets when considered individually or together, supported the Tribunal’s decision.
In the present case the Tribunal similarly finds that Mr Pople’s circumstances which include his living arrangements in Indonesia, the absence of financial, employment or business ties with Australia, the lack of strong family ties in Australia, when viewed objectively support a finding that his residence is in Indonesia rather than Australia. The Tribunal considers that Mr Pople currently regards Indonesia, where he has lived since 2004, rather than Australia as his home.
On the basis of the Tribunal’s finding that Mr Pople was not an Australian resident on 10 February 2012 when Centrelink determined to cancel his disability support pension, he was therefore not entitled to DSP and the decision under review is accordingly affirmed.
| I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) |
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Administrative Assistant
Dated 20 December 2012
| Date(s) of hearing | 8 November 2012 |
| Applicant | In person |
| Counsel for the Respondent | Mr B Sparkes |
| Solicitors for the Respondent | Program Litigation and Review Branch |
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