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

[2008] AATA 570

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 570

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/5096

General Administrative Division		)
Re		GWEN HAWTHORNE

Applicant

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

Respondent

DECISION

Tribunal  J.W. Constance, Senior Member

Date 28 May 2008

Place Canberra

Decision  The reviewable decision made by the Social Security Appeals Tribunal on 12 September 2007 affirming the Secretary’s decision on 27 June 2007 to cease paying age pension to Mrs Hawthorne is affirmed.

..................[Signed]......................

J.W. Constance, Senior Member

CATCHWORDS

SOCIAL SECURITY -  review of decision to cease paying age pension – whether Australian resident for purpose of the Act – concept of ‘residence’ within meaning of the Act – factors to be considered in making determination – decision under review affirmed.

Social Security Act 1991 (Cth) ss 7, 48, 51

Gracie and Secretary, Department of Family and Community Services [2005] AATA 179

Koitaki Para Rubber Estates Ltd v Commissioner of Taxation(Cth) (1941) 64 CLR 249

REASONS FOR DECISION

INTRODUCTION

1.      Mrs Hawthorne is seeking a review of a decision of the Social Security Appeals Tribunal which affirmed a decision of the Secretary to cancel her age pension.

2.      Mrs Hawthorne applied for the pension on 7 September 1999; it was subsequently granted, with effect from the date of the application.  On 29 May 2007 the Secretary cancelled the pension on the ground that Mrs Hawthorne had not made a proper claim for it.[1]

[1] S.48 of the Act requires that a proper claim must be made for a pension to be granted.

3. To have made a proper claim in September 1999 an applicant was required by section 51 of the Social Security Act 1991:

(a)  to have been an Australian resident; and

(b) to have been in Australia

on the day the claim was lodged, 

There is no dispute that Mrs Hawthorne was in Australia on the day she lodged the claim.  Further it is agreed that at the time Mrs Hawthorne was an Australian citizen.

ISSUE FOR DETERMINATION

4.        The issue for determination is whether Mrs Hawthorne was an Australian resident at the time the claim for the pension was lodged.

LEGISLATION

5. Australian resident is defined in subsection 7(2) of the Act:

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.

Subsection 7(3) provides:

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.  

THE FACTS

6.      Mrs Hawthorne says that her having lived outside Australia for most of the time since 1964 has been a consequence of her calling as a missionary.  She says that notwithstanding the time she has lived overseas she has continued to be an Australian resident throughout that time.

7.      Mrs Hawthorne provided two statements and gave evidence by telephone.  She confirmed the accuracy of her statements.[2]  Although I did not have the opportunity to observe Mrs Hawthorne I am satisfied that she was an honest witness and that she gave her evidence to the best of her recollection.  Unless stated otherwise the findings of fact I make are based on her evidence.  I am satisfied of the facts found on the balance of probabilities.

[2] Exs A1 & A2.

8.      It should be noted that there is no suggestion that at any time Mrs Hawthorne gave any information to the Department which was incorrect or misleading.  The Secretary acknowledges that the decision to cancel the pension was made with the intention of correcting an administrative error which was solely the responsibility of the Department.

9.      Mrs Hawthorne left Australia in 1964 and became a missionary with the World Ecumenical Crusade known as WEC International.  She has continued her missionary work ever since.  She spent 34 years in India in both medical and pastoral roles.  From time to time Mrs Hawthorne returned to Australia to spend time with her family and to renew her contacts with her Church and with the Mission.  Between 1981 and the time she made the pension application Mrs Hawthorne returned to Australia for the following periods:

18 June 1982 – 18 July 1993

2 August 1986 – 23 July 1987

1 July 1992 – 18 February 1993

7 July 1996 – 25 August 1996

22 August 1999 – 19 October 1999.

These records confirm Mrs Hawthorne’s evidence that she would return to Australia every three to five years, sometimes for considerable periods. 

10.     Mrs Hawthorne told me, and I accept her evidence, that she has always regarded Australia as her home.  She has a large extended family here and left Australia because she was called to India as a missionary of the Lord.  She also said with complete frankness that she has no idea whether she will return to Australia and that she has no plans to retire, that not being the nature of her calling.  I am satisfied that she was of the same view in September 1999.

11.     On the occasions when Mrs Hawthorne returned to Australia she undertook work with the mission and on at least one occasion was employed for part of the time.  On another occasion she underwent additional training as a nurse. I am also satisfied, based on the evidence of Mr Benson, the Business Manager of WEC International, that Mrs Hawthorne has been a member of the mission continuously since she joined in 1964.

12.     In November 1998 Mrs Hawthorne and her husband left India with the intention of spending time with family in the United Kingdom and elsewhere in Europe.  This was planned as a temporary absence from India and their missionary work in that country.  Unfortunately whilst in the United Kingdom she was diagnosed as suffering an illness which prevented her ever returning to her missionary work in India.  However both Mrs Hawthorne and her husband subsequently carried out their calling in the United Kingdom and in Bulgaria. 

13.     I am satisfied on the evidence of Mrs Hawthorne that she did not return to active missionary work until late 1999 or early 2000.  Nevertheless I am satisfied on the basis of her evidence and that of Mr Benson that her role as a missionary is properly described as a calling, rather than as employment, and that her calling continued throughout the period November 1998 to late 1999 even though during that time she was not able to actively perform the role by reason of her illness.  It was during this period that Mrs Hawthorne made her application for the pension.

14.     Most of the year following the diagnosis of her illness Mrs Hawthorne lived in London for the purpose of receiving treatment.  Mrs Hawthorne had some treatment in Australia but this was for a relatively short period.

15.     I have taken into account the evidence of Mrs Hawthorne’s children, Sharon, Kathleen and Barry. However, their evidence focused on her current situation and future intentions and not the circumstances as they existed in September 1999.

DETERMINATION OF THE ISSUE

16.     When construing legislation such as the provisions under consideration the first step is to look to the ordinary meaning of the words used.  I have been referred by both Counsel to the decision of Gracie and Secretary, Department of Family and Community Services [2005] AATA 179. At paragraph 24 the Tribunal said:

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 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.

17.     The general concept of residence includes two elements, physical presence in a particular place and the intention to treat that place as home. There is no doubt that on the day the application was lodged Mrs Hawthorne was physically present in Australia, however, considering a wider timeframe, she had been present in the United Kingdom until 22 August 1999 and she left Australia to return to the United Kingdom on 19 October 1999. Her stay in Australia on that occasion was a period of about two months.

18.     Turning to whether there was an intention to treat that place as home, on Mrs Hawthorne’s evidence I am satisfied that her intention was that he home was with her husband in the United Kingdom in nearer proximity to her children. I take into account that in the application which Mrs Hawthorne lodged with the Secretary she indicated her home address was 30 Kerrs Lane Nambour in Queensland.[3] However, she indicated, again quite properly and openly, that she had been at that address for only one week.

[3] Ex.R1 p.36

19.     What I regard of greater importance is that on the same form she was asked, “To whom do you pay rent, fees, board or lodging?” She nominated a Mr D Littlehales of 26 Aberdeen Park, Highbury, United Kingdom and noted that “currently temporary lodgings from January 2000 will be at this address”. I am satisfied that as at the relevant date in September 1999, whilst Mrs Hawthorne was present in Australia, her home was in the United Kingdom and that her intention was that this was her home at that time.  Certainly could change and did change from time to time.  

20.     I am strengthened in this view by the reference in Koitaki Para Rubber Estates Ltd v Commissioner of Taxation, referred to in the Hafza decision, to residence being where the person ‘eats and sleeps and his [or her] settled or usual abode’. Again I come to the conclusion on the evidence that, whilst Mrs Hawthorne may have been eating and sleeping at the address in Nambour, that this was temporary and that her settled or usual place of abode was outside Australia and in the United Kingdom. This again is consistent with what was said in the Gracie decision that physical presence and intention will coincide for most of the time. In this case I am satisfied that the physical presence and intention to regard the place as home would normally have coincided in the United Kingdom rather than in Nambour, Queensland.

21. In addition to looking at the ordinary meaning of the words, the Act itself requires that consideration must be given to certain factors set out in section 7(3) of the Act. These are:

(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.

22.     It is now necessary to look at each of the above factors. The first is the nature and accommodation used by the person in Australia. For the reasons I have stated, I am satisfied on the evidence that this was temporary, that Mrs Hawthorne was visiting her family and, in fact, at the time the application was lodged she had been residing there only for one week and left shortly thereafter to return to the United Kingdom.

23.     The second consideration is the nature and extent of the family relationships the person has in Australia. Clearly Mrs Hawthorne had an extensive family in Australia and she visited that family when she could. However, I also take into account that her husband and her children were in the United Kingdom and/or Europe.

24.     The third consideration is the nature and extent of the person’s employment, business or financial ties with Australia. As I have indicated, Mrs Hawthorne was not in an employment relationship nor was she in a business relationship. Her financial ties were very limited; on the evidence she had two bank accounts here but had no other property here. Again, the relevance of that must be balanced by the fact that by reason of her calling she had very little in the way of assets elsewhere.

25.     In relation to the frequency and duration of the person’s travel outside Australia, clearly Mrs Hawthorne did travel quite extensively outside Australia and had spent most of her life since between 1964 and September 1999 outside Australia, However, as has been noted, she did come back at times for periods up to 12 months at a time.

26.     The final requirement for consideration is any other matter relevant in determining whether the person intends to remain permanently in Australia. As I have said, I am satisfied on the basis of the evidence before me that at the time this application was lodged Mrs Hawthorne had no firm intention to remain permanently in Australia. Further Mrs Hawthorne’s travelling since lodging that application, whilst normally would not be relevant, confirms my determination that at the time she lodged this application she did not intend to remain permanently in Australia.

27.     In relation to the above point, I do note that it may well have been that in the early days Mrs Hawthorne did retain her residence in Australia for some time. It is not for me to determine when she ceased to reside here. The issue for determination is whether Mrs Hawthorne was residing in Australia in 1999.

28. Examining the various factors in section 7(3), and accepting as Counsel for the Secretary indicated, that they are to an extent finely balanced, it seems to me that they do not assist Mrs Hawthorne in that they highlight her presence overseas rather than indicating particularly strong links to Australia. That is not to in any way diminish the links with Australia that she does have and obviously regards as very important.

29. The next factor I need to take into account is the Ministerial policy in relation to missionaries to which I have referred, namely that missionaries would generally be considered to have remained Australian residents for the purpose of subsection 7(2) of the Social Security Act 1991 throughout their overseas posting unless there is a cause to determine otherwise. As I have indicated, I am satisfied that Mrs Hawthorne remained in her missionary role throughout and therefore that policy is applicable. However, even taking that into account, there are two factors which lead me to the conclusion that Mrs Hawthorne was not resident at the relevant time notwithstanding the terms of that policy.

30.     The first is that the policy refers to ‘overseas posting’. Mrs Hawthorne was honest in her evidence and I formed the view that it was not proper to treat what she has been doing as a posting. She indicated that she had a calling and that her calling took her to various parts of the world.  This is unlike the situation of some missionaries who are, in fact, posted by their mission to particular parts of the world and then return to reside in Australia until they were posted again. That is not the history given by Mrs Hawthorne.

31. The law in relation to the meaning of residence and the application of the provisions of section 7(3) in this case provide a reason to make a determination otherwise than in accordance with the policy.

DECISION

32.     The reviewable decision made by the Social Security Appeals Tribunal on 12 September 2007 affirming the Secretary’s decision on 27 June 2007 to cease paying age pension to Mrs Hawthorne is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.

Signed:       .....................................................................................
  Peter Horobin  
  Associate

Date of Hearing  28 May 2008
Date of Decision  28 May 2008
Solicitor for the Applicant             Jaleh Johannessen
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Solicitor for the Respondent        Jillian Furner

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