Gracie and Secretary, Department of Family and Community Services
[2005] AATA 179
•3 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 179
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/324
GENERAL ADMINISTRATIVE DIVISION ) Re NICHOLAS GRACIE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr E K Christie, Member Date3 March 2005
PlacePerth
Decision The Tribunal sets aside the decision under review and in substitution thereto decides that Mr Gracie is a “person residing in Australia” for the purposes of the Social Security Act 1991.
The matter is remitted to the Respondent with a Direction to determine the appropriate date Age Pension entitlements are to commence in Mr Gracie’s factual circumstances. Such a determination may depend on any action taken by Mr Gracie to pursue an Act of Grace payment.
.................(sgd E K Christie) .................
Member
CATCHWORDS
SOCIAL SECURITY – age pension – entitlement – person residing in Australia – error in stated law by lower tiers of administrative decision-making – meaning of ‘residence’ – meaning of the phrase “have regard to’” – Act of Grace payment
Social Security Act 1991 ss 7(2), 7(3)
Social Security (Administration) Act 1999 s 29, s 80
R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327
Qld Medical Laboratory v Blewett (1988) 84 ALR 615
Department of Defence v Fox (1997) 24 AAR 171
Hafza v Director- General of Social Security (1985) 6 FCR 444
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Jebb v Repatriation Commission (1988) 80 ALR 329
REASONS FOR DECISION
3 March 2005 Dr E K Christie, Member 1. This is an application by Nicholas Gracie for a review of the decision of the Social Security Appeals Tribunal (”the SSAT”) made on 12 August 2004 that decided to cancel Mr Gracie’s age pension with effect from the date of grant. The age pension had been granted to Mr Gracie from 21 March 2003, the day he turned 65.
2. The SSAT decided that Mr Gracie was not “a person residing in Australia” and therefore not qualified under ss 29(1) of the Social Security Administration Act 1999 (“the SSA Act”) to make a claim for age pension.
3. The applicant represented himself at the hearing. The respondent was represented by Mr P Maishman, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T’ documents – Exhibit 1) and the various documents lodged by the parties.
Facts
5. On the basis of the evidence before it, the SSAT made the following findings of fact (T2 folio 14):
(a)Mr Gracie is an Australian citizen.
(b)On 20 February 2003 Mr Gracie lodged an application for age pension.
(c)On 8 March 2003 Mr Gracie left Australia.
(d)Mr Gracie was granted age pension from 21 March 2003, the day he turned sixty five.
(e)Mr Gracie does not own any property in Australia.
(f)Apart from comparatively short periods living with his son in Australia, Mr Gracie has been living in rental accommodation in Indonesia (Bali) since 1998 and his current lease agreement is for the period 15 December 2003 to 15 December 2006 with all the rent paid in full in advance.
(g)Mr Gracie has made thirty one trips from Australia since January 1998 and has spent more time overseas than in Australia since that time.
6. At the commencement of the hearing, Mr Gracie acknowledged the above findings of fact by the SSAT as correct – but gave a qualified response to their findings in paras. (c), (e), (f) and (g). These issues were addressed in his oral evidence.
Issues to be Decided
7. The only issue for the Tribunal to decide was whether Mr Gracie was entitled to age pension at the time his entitlement was cancelled from 21 March 2003.
Inquisitorial Powers of the Tribunal
8. At the end of the hearing, the Tribunal exerted its inquisitorial powers to address an error of law it had identified with respect to how the Authorised Review Officer and the SSAT had stated, and applied, one prescribed statutory provision viz. ss.7(3) of the Social Security Act 1991 (“the SS Act”).
9. The “Decision Statement” of the Authorised Review Officer (“ARO”) (24 May 2004, T29 Folio 93) cited ss 7(3) of the SS Act as follows:
Section 7(3) of the SSA states to determine whether a person resides in Australia, consideration must be given 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 (Tribunal emphasis).
10. The SSAT decision (at T2 Folio 11) cited the prescribed law exactly the same as the ARO:
15. Subsection 7(3) of the Act sets out that in order to determine whether a person resides in Australia consideration must be given to all of the following:
(a) the nature of the accommodation used by the person in Australia; and
(b) … ; and
(c) … ; and
(d) … ; and
(e) … ; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia (Tribunal emphasis).
11. However, the prescribed statutory law [ss 7(3)] does not contain the qualifying phrase “consideration must be given to” with respect to the six criteria for determining whether a person resides in Australia. Rather the prescribed statutory law provides 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 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 (Tribunal emphasis).”
12. It is clearly evident that, under s 7(3) of the Act, in deciding the question of law, whether or not a person is residing in Australia, "regard must be had to" a number of criteria. The Act then particularises specific six criteria for which "regard must be had to".
13. The phrase "have regard to" has been considered judicially on many occasions:
(a) it requires [the decision maker] to take those matters into account and give weight to them as a fundamental element in making his recommendation: per Gibb CJ in R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333;
(b) the mere assertion that [the decision maker] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense: per Gummow J in Qld Medical Laboratory v Blewett (1988) 84 ALR 615; and
(c) there would be a failure [by the decision maker] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient: per O'Loughlin J in Department of Defence v Fox (1997) 24 AAR 171.
14. There is a significant difference between the phrase “must consider” and “have regard to”. The phrase “must consider” makes it mandatory for the administrative decision-maker to consider all six criteria in ss 7(3); no discretion is possible.
15. In contrast the phrase “have regard to” provides the administrative decision-maker with discretion to “weight” the six criteria relative to each other; see Toohey’s case.
16. Clearly, the ARO and SSAT have created an error of law in terms of how they have expressly stated ss 7(3) in their decision-making process. Such an error can only create flaws in how ss 7(3) has been applied in their consideration of Mr Gracie’s factual circumstances. The Tribunal notes that the SSAT states in para 20 (of its 22 paragraph decision) [at T2 Folio 15]:
“20. Having given careful regard to all of the matters listed in subsection 7(3) of the Act and having considered relevant authorities, the Tribunal determines that Mr Gracie is not “a person residing in Australia” … (Tribunal emphasis)”.
17. However, the Tribunal concludes that this statement creates further uncertainty as the SSAT provides no legal authorities that it has relied upon to ensure that it has correctly applied the phrase “give careful regard to” and so further limits the validity of its reasoning.
18. Given these circumstances, and to ensure procedural fairness, the Tribunal, provided the legal authorities and summaries (in para. 13) to Mr Maishman, at the end of the hearing, and invited him to present supplementary submissions in response. Mr Maishman’s submissions were received on 18 February 2005.
19. Mr Maishman subsequently acknowledged that the correct interpretation of ss 7(3) of the SSAT was that it left it to the “decision maker to give weight to the appropriate parts of section 7(3) of the Act and to make a decision having a global view of the circumstances that might apply under this section”.
Statutory Requirements and Legal Principles
20. The legislation relevant to this matter is contained in the SS Act and the SSA Act.
·Section 11 of the SSA Act requires a person who wants to be granted an age pension to make a claim for the pension in accordance with Division 1 Part 3 of the SSA Act.
·Section 29 in Division 1 Part 3 of the SSA Act provides:
“29(1) Subject to sections 30, 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, 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”.
However, Mr Gracie does not fall within the exceptions of ss 29(2) and so must satisfy both requirements of s 29(1) in order to qualify for age pension.
21. The term “Australian resident” is defined in subsection 7(2) of the SS Act as:
“7(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen; …”
22. The only issue in dispute is Mr Gracie’s situation is whether he “resides in Australia”. The correct citation of ss 7(3) of the SS Act, as prescribed in the statute, is as stated in para. 11 of this decision.
23. The relevant legal principles for the interpretation and application of the phrase “have regard to” are set out in para 13 of this decision. Mr Maishman has agreed with the Tribunal’s analysis (see para. 19).
24. Central to the consideration of the six statutory criteria in ss. 7(3) of the SS Act, is an understanding of the legal meaning of "residence". The concept of what amounts to residence was discussed by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444. Although decided with reference to the Social Security Act 1947, the general concepts discussed by His Honour have not been altered by the 1991 Act. His Honour said (at 449-450):
"There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. 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. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 249, by Williams J:
`The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.'
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains `home': see Norman v Norman (No 3) (1969) 16 FLR 231 at 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place - see the facts of Lysaght (supra) and the reference by Williams J to ‘a home or homes' - and, secondly that the application for the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as `home', a change of intention may be decisive of the question whether residence in a particular place has been maintained (Tribunal's emphasis).”
Examination of the Evidence: Nicholas Gracie
25. Mr Gracie’s evidence is considered in relation to the six statutory criteria prescribed by ss 7(3) of the SS Act.
“(a) The nature of the accommodation used by the person in Australia …”
26. Mr Gracie has no home of his own in Australia nor does he have any rented accommodation. When he is in Australia he lives with his son and daughter-in-law rent free. However, Mr Gracie said that he had always regarded Australia as home and had never looked at Australia in any other way than being home. He regarded Australia as his home base.
27. Mr Gracie said that he had always regarded the housing arrangement in Australia with his son to be a permanent arrangement as his son had always made him welcome to stay at his house and was now extending the rear section of his house to include a room intended for the use by Mr Gracie. Mr Gracie said that whilst he stayed in his son’s home he contributed to the necessaries of life. He said that he had commenced living with his son in 2000 – some 3 years before he applied for the age pension.
“(b) The nature and extent of the family relationships the person has in Australia”
28. The SSAT concluded that Mr Gracie had a married son, a daughter, an aunt and his mother’s cousin who live in Perth. Mr Gracie told the Tribunal that he also had a grandchild, aunts and a sister in Australia. His former spouse also lives in Perth.
29. Mr Gracie also responded to a Tribunal question stating that he had maintained connections with “close friends” over time in Australia. These connections were formed during his school days (1953). In addition, he had friendships within the Uniting Church at West Perth; he said that he had become an Elder in this church whilst only 22 and hence the continuing connection of close friends in the church community.
“(c) Nature and extent of the person’s employment, business or financial ties in Australia”
30. Mr Gracie told the Tribunal that the had been a “major contributor” to the WA wildflower industry from its infancy. He had provided “many ideas and information” to AUSTRADE. AUSTRADE had passed his information and advice to other people in order to facilitate the marketing of WA wildflowers. He said that his entire working life was spent in Australia.
“(d) The nature and extent of the person’s assets located in Australia”
31. Mr Gracie has no assets. He “lost everything” when he became divorced in 1995 and had to sell his home because he could not pay the mortgage. His personal financial problems were further exacerbated by poor international advice given to him which had been intended to facilitate his entry into the global flower market.
“(e) The frequency and destination of the person’s travel outside Australia”
32. Mr Gracie acknowledges that he has made about 30 return trips between Australia and Indonesia since 1998 and had spent more time in Indonesia than Australia. He said that the trips were made using frequent flyer points. However, Mr Gracie referred to the underlying reason for this factual situation related to the full-time care of his infirmed mother (see para. 37); all trips he had undertaken were wholly related to his mother’s welfare.
“(f) Any other matter relevant to determining whether the person intends to remain permanently in Australia”
33. The Tribunal sought a response from Mr Gracie in relation to the “two Hafza” tests for residency.
34. In terms of “continuity of association with Australia” Mr Gracie referred to the accommodation arrangements with his son which he saw as permanent (see para 27). Furthermore, he referred to his incoming passenger card (Indonesia – Australia Exhibit 2) and said that for all his travel to Australia (involving around 30 trips) he had consistently completed the card as Category ‘C’ – “a resident returning to Australia”; in addition, he included the notation that ‘Indonesia’ was the country where he spent most time abroad.
35. In terms of his “intention to return to Australia and an attitude that Australia remained home”, Mr Gracie told the Tribunal that Indonesian visa requirements were such that he could not reside in Indonesia indefinitely. A visa could be refused at any time if there had been a breach of domestic law. In addition, an Indonesian visa for social or business reasons was only issued on a 60 day basis. Mr Gracie said that he had never had any intention to seek permanent residency in Indonesia. He referred to Exhibit 3 (Bio Data – Self Report of Foreigner) – a document he completed for Indonesian officials, to corroborate this evidence. Moreover, he said that his frequent trips, from Indonesia to Australia, indicated that his intention was to regard Australia as home, with Perth as his home base.
36. In a further response to the Tribunal question on the “Hafza tests”, Mr Gracie said that if his mother died he would sell the remainder of his existing accommodation lease contract in Indonesia and the most likely thing would be for him to return to Australia.
37. Mr Gracie explained that the reason he remained in Indonesia was to be able to be in a financial position to provide affordable and effective medical care for his aged mother. His mother has advanced dementia, confined to a wheelchair and was totally dependent on him; he said that the past institutionalization and hospitalization of his mother in Australia has resulted in a significant deterioration of her condition. He had been advised by the nursing supervisor of the hospital to discharge his mother from the hospital and to become his mother’s carer in order to provide her with some quality in her remaining life. He was now fulfilling a promise he had made to his mother not to institutionalize or hospitalize her – as well as acting on the nursing supervisor’s advice.
Contentions and Submissions of the Parties
38. Mr Gracie submitted that the evidence and information he had provided to the Tribunal fully described his case.
39. He emphasized that Centrelink had been aware of his frequent movements to Indonesia, from the outset, and should have informed him of their implications for his age pension claim. Although he had provided Centrelink with all the information they required, Centrelink had never provided him with the “full facts” with respect to his eligibility.
40. He stated that, in this regard, he had been given the wrong advice by Centrelink. Whilst he had lodged a claim on 20 February 2003, he had to leave Australia on 8 March 2003 to care for his mother in Indonesia. In his absence, she had an accident and had broken her arm. As a consequence, he was not in Australia when the age pension was granted on 21 March 2003 (when he turned 65). Mr Gracie had not been provided with any information or given any advice by Centrelink of the consequences of not being in Australia in relation to qualifying for Age Pension. He stated that if he had been correctly advised by Centrelink with respect to the statutory requirement to be “in” Australia, he would have deferred lodging his application.
41. Mr Gracie concluded with the submission that the factual situation he had found himself in arose because of decisions he had made to treat the ongoing care and medical needs of his mother – an aged pensioner herself – as paramount.
42. Mr Maishman, for the Respondent, submitted that Mr Gracie did not maintain a residence in Perth. It was his contention that at least from 1998, up until the addition on his son’s house was started, the accommodation arrangement was at best casual and convenient. These arrangements were that of for a visitor, rather than a person establishing a home. The home(s) that Mr Gracie had established since 1998 had been in Bali.
43. It was Mr Maishman’s contention that Mr Gracie’s relationship with his mother was a ‘most significant personal relationship’. Although his mother had lived in Perth for an extended time and in hostel accommodation from 1985, Mr Gracie chose to remove his mother from Australia to Bali, as Bali was where he resided.
44. Mr Maishman acknowledged that Mr Gracie had not worked for money in Indonesia at all – but had served the church and the people of Bali in a voluntary and honorary capacity. Mr Maishman conceded that Mr Gracie presently had little more involvement in the Bali church other than attending weekly services and doing the occasional reading. Mr Maishman contended that, initially, Mr Gracie’s reason for being in Bali was his involvement in the Church. Since the time his mother had been there, the involvement in the Church was less significant – but Mr Gracie continued to reside in Bali.
45. Mr Maishman referred to Mr Gracie’s concession that he had no assets, other than his personal belongings.
46. Mr Maishman submitted that Mr Gracie had spent significantly more time overseas than in Australia since 1998. He referred to Mr Gracie’s evidence that he always returned to Australia to obtain his Indonesian visa. Since 1998 Mr Gracie’s returns to Australia had usually been after 60, 90 or 120 day absences from Australia, his periods back in Australia had generally been for 14 days or less.
47. Mr Maishman contended that Mr Gracie’s returns to Australia since 1998 have been because of the requirement to leave Indonesia in order to apply for a new visa – and not because of an intention to maintain a residence in Australia.
48. Mr Maishman referred to the following evidence of Mr Gracie: that he had always worked in Australia, had never sought to become a resident of any other country and that it was offensive to him that he would not be considered a resident of Australia. When asked where he saw his future he indicated that it was considerably cheaper to look after his mother in Bali than in Australia. He said that he had promised his mother not to put her in a Nursing Home and he was honouring that pledge by taking her to Bali. He considered Australia his home and had made a major contribution to the establishment of the wildflower industry in Australia. He also referred to Mr Gracie’s evidence that, had he known of the Departmental policy on Age Pension, he would have asked for his claim to have been deferred.
49. Mr Maishman concluded with the submission that the evidence and information before the Tribunal show that Mr Gracie did not, on balance, satisfy the global requirements set out in subsection 7(3) of the Social Security Act 1991. Mr Gracie was not a resident of Australia on 20 February 2003 when he claimed Age Pension and was not in Australia on 21 March 2003 when he turned 65 years old and qualified for Age Pension. Since Mr Gracie was not qualified to claim age pension on the day it was granted, 21 March 2003, his payment must be cancelled with effect from that date.
Consideration of the Issues
50. “The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]”. There is only one decision in Mr Gracie’s case: is he entitled to the Age Pension?
51. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point in time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333). The Tribunal has considered all of the evidence and information before the Tribunal at the time of the hearing.
52. The first issue for the Tribunal to decide is the credibility of Mr Gracie as a witness. The Tribunal finds Mr Gracie to be a witness of truth. The Tribunal appreciated the honest and forthright manner he answered all questions asked of him. Accordingly, the Tribunal accepts the evidence of Mr Gracie.
53. The next issue is for the Tribunal “to have regard to” the statutory criteria prescribed in ss 7(3) to determine whether Mr Gracie is an Australian resident – by applying the relevant legal principles to the facts of Mr Gracie’s case.
54. Some of these criteria may suggest that he is a resident and some may suggest otherwise. For example, the nature of his accommodation in Australia may be seen as a situation more akin to that of a visitor rather than a resident. In addition, Mr Gracie has no significant assets in Australia. He spends more time in Indonesia than in Australia.
55. Pulling in the other direction, however, is the very clear evidence that Mr Gracie has given that establishes that he intends to return permanently to Australia. In this regard, Mr Gracie satisfies the “Hafza tests” as he has demonstrated “a continuity of association with Australia” as well as “an intention to return to Australia and an attitude that Australia remains home”. Moreover, Mr Gracie’s evidence was that his accommodation arrangements in Australia with his son (since 2000) were always seen as permanent. This viewpoint of Mr Gracie is corroborated by the fact that his son is now extending his home to provide a room for Mr Gracie. Furthermore, Mr Gracie has established, ongoing familial connections and continuing long friendships with the Uniting Church community as well as old school friends in Perth. The Respondent has acknowledged that Mr Gracie’s relationship with his mother to be a “most significant personal relationship”.
56. The Tribunal makes the observation that, as a 67 year old retiree who is the full-time carer of his aged, infirmed mother, it is not surprising that Mr Gracie has no existing business or financial interests in Australia. Mr Gracie’s knowledge and expertise in the WA wildflower industry represents an on-going source of commercial/trade information that could still be capitalized upon within Australia. However, the Tribunal has not considered this criterion in its analysis as at this stage, any weight that may attach, is associated with a degree of uncertainty.
57. The Tribunal has taken the matters specified in ss 7(3) (a), (b) and (f) of the Social Security Act into account, but also had regard to all of the other criteria specified in ss 7(3). The Tribunal has done so on the basis of all the material before the Tribunal. In addition, the Tribunal has accepted the evidence of Mr Gracie.
58. The Tribunal finds that Mr Gracie has established an intention to return permanently to Australia and so satisfies ss 7(3)(f). The Tribunal further finds that Mr Gracie has satisfied both elements of the “Hafza test” at the civil standard of proof. In making these findings, the Tribunal accepts the facts and matters referred to in paras 33 – 37. The Tribunal places special weight on the test in Hafza’s case and finds that Mr Gracie has not only “retained a continuity of association with Australia”, but also has proven, on the civil standard of proof, “an intention to return to Australia – as well as displaying an attitude that Australia remains home”.
59. The Tribunal finds that Mr Gracie has satisfied ss 7(3)(a), ‘the nature of accommodation used in Australia’, on the balance of probabilities. The Tribunal accepts the facts and matters referred to in paras 26 and 27.
60. The Tribunal finds that Mr Gracie has satisfied ss 7(3)(b), ‘the nature and extent of the family relationships he has in Australia’, at the civil standard of proof. The Tribunal accepts the facts and matters referred to in paras 28, 29.
61. The Tribunal has applied its discretion and exercised its discretion by giving weight to these three criteria – relative to the criteria specified in ss 7(3)(d)(e). The Tribunal has earlier concluded that there is factual uncertainty relative to ss 7(3)(c).
62. Accordingly, the Tribunal concludes that Mr Gracie‘s association with Australia is much stronger than with Indonesia. Coupling this with his intention to return to Australia, the Tribunal accepts that he is “a person residing in Australia”.
63. However, qualification for age pension requires not only the residency requirement [ss 7(3) of the SS Act] to be satisfied – but also for Mr Gracie to be “in” Australia at the time his claim for age pension was made [s 29 SSA Act]. The material before the Tribunal does not enable the latter aspect [ss 29 SSA Act] to be conclusively determined. Accordingly, the Tribunal remits the matter to the Respondent to determine at what date the statutory provisions of the Social Security Act and the Social Security (Administration) Act are both satisfied, so that the date for Mr Gracie to be granted age pension can be determined.
64. The Tribunal makes the observation that the internal review undertaken by both Centrelink (T29, 22 June 2004) and the SSAT review of Mr Gracie’s claim for age pension (T2, 12 August 2004) have been subject to an error of law in terms of citing and applying a statutory provision central to determining Mr Gracie’s Australian residency. Such an error may have contributed to a delay in effectively determining his claim. For example, the Tribunal hearing was some 8 months after the ARO decision. In addition, Mr Gracie has raised the issue of not being fully informed and having been given incorrect advice by Centrelink staff in relation to his age pension application. If these problems arising from Centrelink advice had not occurred, he states that he would have deferred lodging his application.
65. In these factual circumstances, Mr Gracie and the Respondent may wish to consider the Departmental Policy Guideline "Act of Grace Payments" (Part 3, Chapter 9).
66. The Departmental Policy Guideline states as follows:
"Section 3 Act of Grace Payments
What is an Act of Grace Payment
An Act of Grace Payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss....
Eligibility for an Act of Grace Payment
Eligibility for an Act of Grace Payment depends on the claimant's circumstances and a wide range of matters may be taken into account to determine eligibility although there is no set eligibility criteria for an Act of Grace Payment, claims may be considered where:
§ a person received incorrect advice leading to detriment, but where there is no legal liability,
§ a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable,
§ it is considered desirable to apply the benefits of proposed legislation, or
§ there are other special circumstances where there may be a moral obligation to make a payment
Request for an Act of Grace Payment
Requests for ‘Act of Grace Payments' can arise from almost any sphere of Commonwealth administration.
The Act of Grace power is a unique discretion given to the Minister for Finance and Administration to make payments to persons who may have been unintentionally disadvantaged by the effects of Commonwealth Government legislation, actions or omissions and who have no other viable means of redress.
Claims for Act of Grace Payments
A claim for an Act or Grace payment should first be considered under the criteria for `compensation for detriment caused by administrative error'.. If a claim satisfies that criteria it will be determined under the compensation for detriment provisions. Claims that do not satisfy the compensation criteria may be determined under the Act of Grace provisions."
67. In relation to the "Act of Grace Policy" the Tribunal considers that there is no issue for a claim under the Policy, "Compensation for Detriment caused by Administrative Error", as ” legislative problems and mistakes that have arisen [in Mr Gracie’s circumstances] may be overcome by resort to the Minister for Finance’s statutory Act of Grace power”.
68. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mr Gracie. The process for such a payment is for Mr Gracie to make a claim to the Department for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria. The final authority to grant payments under Act of Grace does not rest with the Tribunal, but the Minister for Finance or their appointee.
69. For all of the above reasons, the Tribunal sets aside the decision under review and in substitution thereto decides that Mr Gracie was a resident of Australia at the time of his application for Age Pension. The Tribunal remits the matter to the Respondent with a Direction to determine the appropriate date Age Pension entitlements are to commence in Mr Gracie’s factual circumstances.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: ….........(sgd N Wee) ….........
AssociateDate/s of Hearing 14 February 2005
Date of Decision 3 March 2005
Counsel for the Applicant Self represented
Counsel for the Respondent Mr P Maishman
Solicitor for the Respondent Service Recovery Team, Centrelink
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