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

[2022] AATA 3894

Harrison and Secretary, Department of Social Services (Social services second review) [2022] AATA 3894 (10 November 2022)

Division:GENERAL DIVISION

File Number(s):      2020/1036

Re:Charles Harrison

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Chris Puplick AM, Senior Member

Date:10 November 2022

Date of written reasons:        18 November 2022

Place:Sydney

For the reasons given orally at the interlocutory hearing in the matter, the application by the Respondent for the dismissal of the application before the Tribunal is granted.

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

Chris Puplick AM, Senior Member

Catchwords

PRACTICE AND PROCEDURE – refusal of age pension – where applicant failed to meet residence requirements – application for dismissal – where application has no reasonable prospects of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Australian Citizenship Act 2007 (Cth) s 22B

Social Security Act 1991 (Cth) ss 7, 43

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

Cases

Harrison and Secretary, Department of Social Services (Social services second review) [2017] AATA 411

REASONS FOR DECISION

Chris Puplick AM, Senior Member

18 November 2022

Application for dismissal

1. On 9 November 2022 the Respondent in this matter (the Secretary, Department of Social Services) notified the Tribunal of its intention, at the commencement of the hearing of the original application set down for the following day (Thursday 10 November 2022), to apply for a dismissal of the application without proceeding to review. That application was duly made and contested by the Applicant (Mr Charles Harrison).

2. Paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides (emphasis added):

   (1)  The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  has no reasonable prospect of success; or

   (c)  is otherwise an abuse of the process of the Tribunal.

3. The power is entirely discretionary. The Tribunal may or may not dismiss an application depending on its assessment (satisfaction) of the prospects of success in overturning or amending an original decision, the subject of review in the Tribunal.

   The original application

4. Mr Charles Harrison is an Australian citizen but equally a peripatetic citizen of the world, who has lived and worked across several continents and in his journey managed to marry or partner at least seven different women and father at least 18 children.

5. In between all his activities he has found time to lodge eight separate applications for age pension between 2013 and 2019. Apparently, his 2019 application was successful and is in place, although that is not in any way germane to these proceedings.

6. Initially when the Applicant applied for the age pension it was granted on 12 November 2013. However, on 21 January 2015 that pension was cancelled because the Department determined that the Applicant had not met the residency requirements for such payment.  As a result of that cancellation the Department then raised a debt against the Applicant to recover payments made between 12 November 2013 and 14 January 2015.

7. These proceedings relate to an application for review by the Applicant against two earlier decisions by the Secretary, Department of Social Services to reject age pension applications made on 25 January 2016 and 11 November 2016. These decisions were dealt with together and affirmed on review by an Authorised Review Officer of the Department (4 June 2019) and on further review by the Social Services and Child Support Division of this Tribunal (AAT1) on 6 December 2019.

8. On 22 February 2020 the Applicant applied to this Tribunal for a review of the AAT1 decision. Because the Applicant was resident in Orange (NSW) the Tribunal acceded to his request and the hearing was conducted using the Microsoft Teams platform on 10 November 2022.

9. However, prior to addressing any matters of the substantive application the Tribunal is required to resolve the matter of the dismissal application.

   The original matter at issue

10. It is not a matter of dispute that the Applicant was born on 18 September 1948, that he arrived in Australia on 26 August 1981 on a permanent resident visa, that he became an Australian citizen on 18 December 1987 and that he reached pensionable age on 18 September 2013.

11. The question is whether or not the Applicant fulfilled the residence requirements of certain sections of both the Social Security (Administration) Act 1999 (Cth) and the Social Security Act 1991 (Cth) (the Social Security Act) both of which impose certain residential requirements on applicants for the age pension.

    Legislative requirements

12. Section 29 of the Administration Act provides (emphasis added):

    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.[1]

    [1] None of the subsections referred to are relevant in this application.

13. Section 43 of the Social Security Act provides (emphasis added):

    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;

    (b) the person has a qualifying residence exemption for an age pension;

    (c) the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;

    (d) if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.

    Note 1: For qualifying Australian residence see section 7.

14. The relevant provisions of section 7 of that Act provides

    7 Australian residence definitions

    In this Act, unless the contrary intention appears:

    Australian resident has the meaning given by subsection (2).

    qualifying Australian residence has the meaning given by subsection (5).

    …

    (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.

    …

    (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.

15. These requirements are matters of fact, not opinion or judgement.

16. The basis of the ARO’s decision of 4 June 2019, affirmed by the AAT1, sets out the rejection reasons as follows: (emphasis added):

    CUS (customer) had previously received Age Pension from 12.11.13. His Age Pension was cancelled from 12.11.13 on the grounds he was not residentially qualified for Age Pension. This decision was affirmed by AAT1 on 31.03.17. AAT1 found CUS had resided in Australia for a total of 3 years and 4 months at the time of his claim for Age Pension on 12.11. 13.

    Departmental records indicate that between 12.11.13 and 25.01 .16 CUS had spent 195 / 805 days in Australia.

    Departmental records indicate that between 12.11.13 and 15.12.16 CUS had spent 291 / 1095 days in Australia.

    Travel records show CUS was makes regular returns to Australia and while the majority of the returns are for short periods, records indicated he returned for approximately 3 months (99 days) between 03.12.15 to 11.03.16.

    Record show CUS returned to Australia on 03.12.15, lodged his claim for Age Pension on 25.01 .19 and departed Australia on 12.03.16.

    CUS returned to and departed Australia on 3 more occasions prior to his return on 03.11.16.

    He lodged a further claim for Age Pension on 10.11.16. Records indicate he departed

    Australia again on 18.11.16.

    Records do not support CUS has returned to Australia for any significant period after

    departing on 11.03.16 and at the time of review, had been overseas since 08.04.19.[2]

    [2] Tribunal documents (T-documents) at 281-282.

17. There has been no challenge to the finding of the AAT1 that the Applicant’s period of residence in Australia up until 21 January 2015 was indeed no more than three years and four months.

18. The Applicant pursued a separate course of action in relation to the raising of the debt from the earlier pension cancellation. This decision was affirmed by an ARO of the Department on 29 April 2015 and then re-affirmed by a decision of the AAT1 on 29 September 2015. The Applicant then sought a second-tier review of that decision, and this was heard by Member Bygrave who, on 31 March 2017 again affirmed the validity of the debt raised.[3]

    [3] Harrison and Secretary, Department of Social Services (Social services second review) [2017] AATA 411.

19. In her determination Dr Bygrave gave meticulous analysis to all claims made by the Applicant in relation to both his periods of residency in Australia and his claims that, for prolonged periods, he was employed overseas by the Australian Government and that, as a result, those periods of employment should be counted as periods of qualifying residence (Australian Citizenship Act 2007 (Cth) s 22B).

20. The AAT held that the Applicant did not possess the necessary 10-year residential requirement. The Tribunal concluded:

    The Tribunal accepts Mr Harrison’s statement that he views Australia as ‘home’. However, since Mr Harrison arrived in Australia in August 1981 on a permanent resident visa, there are only two periods of time in which the Tribunal can be satisfied he resided in Australia. These periods are August 1981 to October 1983 and October 1986 to December 1987, a total of 3 years and 4 months.

    The evidence before the Tribunal does not show that Mr Harrison worked for the Australian Government when he undertook contracts as a civil engineer in Zimbabwe from October 1983 to October 1986, in Thailand from 1988 to 1991 or in Fiji from 1991 to 1995. Indeed, the contradictory and inconsistent evidence that Mr Harrison has provided to the Department and the Tribunal raises significant questions regarding the validity of Mr Harrison’s statements about where he resided and worked in the periods between 1988 and 1991, 1991 to 1997, 1998 to 2000, 2000 to 2013 and 2013 to 2016.

    The most transparent evidence before the Tribunal about Mr Harrison’s residency in Australia is the frequency and duration of his time in Australia and travel outside of Australia. Mr Harrison’s immigration records show that for the period from 1994 to 2013, he has only spent 12 per cent of his time in Australia.[4]

    [4] Ibid at [85]-[87].

21. No appeal has been lodged against Dr Bygrave’s findings of March 2017 and, in the absence of any such appeal, this Tribunal is bound to accept that her findings are correct and unimpeachable.

22. The only basis upon which these findings can be rejected is for the Applicant to provide fresh evidence which calls any of the findings into question. The Applicant has lodged documents from the then Ministry of Water Resources and Development in Zimbabwe which refer to his employment between 1982 and 1985 on projects which were sponsored by the (then) Australian International Development Bureau. It is not entirely clear whether or not these documents were before the previous AAT, although the Applicant says that they were not. However, the nature of the Applicant’s employment in Zimbabwe was considered by the AAT and found not to constitute qualifying residency because the employment arrangement was not directly with the Australian Government. The Tribunal concluded (at [29]) that: “DFAT was unable to confirm that Mr Harrison was employed directly by the Australian Government in the period of October 1983 to October 1986.”

23. With that as a basis, it is possible to calculate the period of residency which the Applicant had in Australia from 21 January 2015 to 25 January 2016 (the date of the first age pension application) or alternatively to 10 November 2016 (the date of the second application). The Applicant’s travel records are set out in detail in the Tribunal documents (at 360-361) and they show that after 21 January 2015 (when the Applicant was overseas) the Applicant returned to Australia on 3 July 2015. After that date, the Applicant departed and returned to Australia on six separate occasions up until 10 November 2016. In the relevant period the Applicant spent, cumulatively, only a little more than one year resident in Australia.

24. This means that even on the most generous allocation of time to the Applicant, by 10 November 2016 he had resided in Australia for little more than four and a half years.

25. This is obviously well short of the 10-year requirement which is set out in legislation.

26. These are simply the facts. The Applicant cannot meet the 10-year qualification. The Tribunal can be satisfied that the application thus has no prospect of success. This determination in itself is not a matter of the exercise of any discretion; the application fails because the Applicant cannot meet statutory requirements.

27. It is therefore appropriate for the Tribunal to exercise its discretionary power under paragraph 42B(1)(b) of the AAT Act and dismiss the application by Mr Harrison.

    DECISION

28. The application by the Respondent for the dismissal of the application before the Tribunal is granted.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 18 November 2022

Date(s) of hearing:	10 November 2022
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Sparke Helmore Lawyers