HM and THE CO-ORDINATING PRACTITIONER FOR HM - [2024] WASAT 23

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019 (WA)
CITATION:   HM and THE CO-ORDINATING PRACTITIONER FOR HM [2024] WASAT 23
MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT
HEARD:   4 APRIL 2024
DELIVERED          :   5 APRIL 2024
PUBLISHED           :   5 APRIL 2024
FILE NO/S:   VAD 3 of 2024
BETWEEN:   HM
Applicant
AND
THE CO-ORDINATING PRACTITIONER FOR HM
Respondent

Catchwords:

Statutory interpretation - Review of decision of co-ordinating practitioner - Meaning of 'ordinarily resident' - When a person is ordinarily resident for a period of at least 12 months at the time of making the first request - Whether the subject person is eligible for access to voluntary assisted dying

Legislation:

State Administrative Tribunal Act 2004 (WA), s 34, s 61(h), s 62(3)
State Administrative Tribunal Rules 2004 (WA), r 9
Voluntary Assisted Dying Act 2019 (Vic), s 9
Voluntary Assisted Dying Act 2019 (WA), s 4, s 16(1), s 16(1)(b)(ii), s 18(1), s 23(1), s 24(1), s 84, s 84(1)(a)(i), s 93, s 94, s 95
Voluntary Assisted Dying Bill 2019 (WA)

Result:

The decision of the co-ordinating practitioner of HM is upheld and the application is dismissed

Category: B

Representation:

Counsel:

Applicant	:	Ms B Tariq
Respondent	:	No appearance

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

AB and CD [2024] WASAT 6
EF, GH AND IJ and KL [2024] WASAT 18
Federal Commissioner of Taxation v Addy [2020] FCAFC 135
Hafza v Director-General of Social Security (1985) 6 FCR 444
Harding v Commissioner of Taxation [2019] FCAFC 29
NTJ v NTJ (Human Rights) [2020] VCAT 547
Re Vassis; Ex parte Leung (1986) 9 FCR 518

REASONS FOR DECISION OF THE TRIBUNAL:

Ms HM is a 69-year-old woman suffering from a terminal cancer.
On 13 March 2024, Ms HM requested access to voluntary assisted dying under the Voluntary Assisted Dying Act 2019 (WA) (Act), which was a 'first request' under s 18(1) of the Act (First Request).
On the same day:
(a)the First Request was accepted by a medical practitioner who became the 'co-ordinating practitioner' for Ms HM under s 23(1) of the Act and who is the respondent in these proceedings;
(b)the respondent undertook a 'first assessment' under s 24(1) of the Act to assess whether Ms HM was eligible for access to voluntary assisted dying; and
(c)the respondent decided that Ms HM was ineligible for access to voluntary assisted dying.
In a document dated 23 March 2024 (Exhibit 3) the respondent explained that the respondent had concluded that Ms HM met all, bar one, of the eligibility criteria for access to voluntary assisted dying set out in s 16(1) of the Act. However, the respondent had concluded, on the information the respondent had received from HM, that at the time of making the First Request, Ms HM had not been ordinarily resident in Western Australia for a period of at least 12 months, as required by s 16(1)(b)(ii) of the Act (Decision).
The information the respondent had received from Ms HM leading to the Decision was that:
(a)Ms HM had lived in Western Australia until she moved to Tasmania upon retirement 9 years ago;
(b)Ms HM came to Western Australia to attend her son's birthday celebrations on 1 September 2023; and
(c)Ms HM had been unexpectedly taken ill and was unable to return to Tasmania as planned.
On 19 March 2024, Ms HM applied to the Tribunal for review of the Decision.
I am satisfied that the criteria set out in s 84(1)(a)(i) of the Act conferring jurisdiction on the Tribunal to review the Decision have been met. In addition, the application was made within 28 days of the Decision as required by rule 9 of the State Administrative Tribunal Rules 2004 (WA).
Pursuant to directions made by President Pritchard on 21 March 2024, the hearing took place on an urgent basis on 4 April 2024, and in private, subject to allowing Ms HM's partner, Mr HN, to attend, which he did. Her Honour also made orders pursuant to s 34, s 61(h) and s 62(3) of the State Administrative Tribunal Act 2004 (SAT Act) that:
(a)The applicant is to be referred to as 'HM';
(b)The name of the applicant, the name of the respondent and any information which might enable the applicant or the respondent to be identified is not to be published except as required by the VAD Act.
In addition, in these reasons I have anonymised the names of the applicant's partner and her sister, as I consider it is appropriate to maintain Ms HM's anonymity.
I have considered all the evidence available to the Tribunal at the hearing today, and the detailed and helpful submissions of Ms HM's counsel, Ms Tariq.
I have every sympathy for Ms HM's situation. However, I have concluded that the correct and preferable decision is that, as at the date of the First Request, Ms HM had not been ordinarily resident in Western Australia for a period of at least 12 months. Accordingly, the Decision must be upheld, and the application dismissed.
I will now set out the reasons for that conclusion. In these reasons I deal with the following matters:
(a)the proper construction of the eligibility criterion in s 16(1)(b)(ii);
(b)my findings on the evidence;
(c)the applicant's submissions; and
(d)the correct and preferable decision.

Construction of s 16(1)(b)(ii)

The issue in this matter turns on the meaning of the phrase 'ordinarily resident in Western Australia for a period of at least 12 months' in s 16(1)(b)(ii) of the Act.
The interpretation of the phrase 'ordinarily resident' was recently considered by her Honour, President Pritchard, in AB and CD [2024] WASAT 6 (AB and CD). Her Honour said, at [22]:
The ordinary and natural meaning of the phrase 'ordinarily resident'…directs attention to a person who usually or commonly or habitually dwells in, or has their settled or usual home in a particular place, in this case Western Australia. That criterion imports an element of permanence in relation to where the person makes their home.
Section 16(1)(b)(ii) requires the person to have been ordinarily resident for a single discrete period of at least 12 months, rather than for periods of time which, taken together, might add up to at least 12 months: AB and CD at [26]. If there has been a period of time where the person was not 'ordinarily resident' in Western Australia, any period of time before that period, where the person was 'ordinarily resident' in Western Australia, will not count in the calculation of the period of 'at least 12 months'. However, a person may continue to be 'ordinarily resident' in Western Australia even if they have been absent from Western Australia for periods of time within the period prior to making the first request: AB and CD at [29].
In AB and CD, at [36], Justice Pritchard adopted a summary of the principles to be discerned from the authorities set out by her Honour, Justice Quigley in NTJ v NTJ (Human Rights) [2020] VCAT 547 (NTJ) at [77] concerning the similarly worded provision in the Voluntary Assisted Dying Act 2017 (Vic). Justice Pritchard also agreed with, and summarised, a number of observations made by Justice Quigley about the application of the criterion of 'ordinarily resident'. I accept what has been said by both Justice Pritchard and Justice Quigley as correctly reflecting the authorities. Relevantly to this matter those principles are as follows:
(a)whether a person is 'ordinarily resident' in a place is a question of fact and degree;
(b)to say a person is 'ordinarily resident' means more than merely residing in a place. It is a settled and usual place of abode, a place where a person regularly or customarily lives;
(c)there must be some element of permanence, to be contrasted with a place where a person stays only casually or intermittently;
(d)a person may be 'ordinarily resident' in more than one place at the same time;
(e)a temporary absence from a place may not prevent a person from being 'ordinarily resident' in that place. It is a question of fact and degree at which point a temporary absence might prevent it being proper to continue to regard the person as 'ordinarily resident' in that place;
(f)whether the person intends to return to the place after the temporary absence is relevant to determining whether they are 'ordinarily resident' in the place during the absence;
(g)it is not necessary that the person have real property ownership in the place, or a fixed address.
(h)relevant considerations as to whether a person is 'ordinarily resident' in a State include:
(i)the person's subjective opinion and intentions as to where or how they view themselves 'ordinarily resident';
(ii)whether the person is able to adduce evidence of common or usual attachment to the State such as by way of a driver's licence, car registration, insurance, Medicare or Centrelink registration or otherwise; and
(iii)whether the person has a long association with the State as a permanent resident, and who, despite absences, including lengthy absences, outside the State, regularly returns home to the State and who has close associations to people in the State such as family.
With respect to the concept of a temporary absence, Quigley J in NTJ at [76] cited with approval the decision of Burchett J in Re Vassis; Ex parte Leung (1986) 9 FCR 518 in it was said:
… It is a question of fact or degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him as ordinarily resident in Australia[.]
In Hafza v Director-General of Social Security (1985) 6 FCR 444, Wilcox J said that the concept of residency had two elements: physical presence in a particular place and the intention to treat that place as home, at least for the time being. His Honour said (449):
Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place … 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 together with an intention to return to that place and an attitude that the place remains 'home'.
The importance of establishing a continuity of association with a place in determining whether a person may be said to 'reside' in that place has been restated in Harding v Commissioner of Taxation [2019] FCAFC 29 and Federal Commissioner of Taxation v Addy [2020] FCAFC 135 (Federal Commissioner of Taxation v Addy), with reference to factors such as continuing to have a home, a family unit, possessions, and relationships with people and institutions in the place as well as evidence of the person's intention to treat a particular place as their home.
In Federal Commissioner of Taxation v Addy at [74] Derrington J, with whom Steward J agreed, said in relation to the determination of whether a person 'resides in Australia', that a person's intention to make a particular place 'home' either permanently or temporarily is an elemental consideration in the identification of where that person resides. However, it is clear in that case that the intention must be coupled with the establishment, by physical presence, of a 'home' in the place, and that intention alone is not determinative of the issue of residence.

Findings on the evidence

Ms HM provided a signed witness statement dated 28 March 2024 which was tendered in evidence at the hearing (Exhibit 1). That evidence was supplemented, upon my inquiry, by oral evidence from Ms HM during the course of the hearing. A bundle of the documents referred to in Exhibit 1 was also tendered (Exhibit 2).
Ms HM's evidence was unchallenged and is corroborated by the documents as to some of the events and their dates. My impression of Ms HM was that she was an honest and reliable witness who was open and candid in her answers to questioning. Ms HM's partner, Mr HN, did not provide a statement but confirmed that the facts referred to in HM's statement were correct.
I accept Ms HM's evidence and make findings of fact as set out below.
Ms HM was born in Scotland. In 1980, when she was 26 years old, she migrated to Australia with her then husband and young son. The visa on which she travelled to Australia granted her status as an Australian permanent resident from her arrival.
Ms HM encouraged her family in Scotland to move to WA, which they subsequently did. In 1984 Ms HM's sister, Ms HP, and her family emigrated to WA followed by Ms HM's parents in 1988 and another sister and her husband a few years after that. Ms HM's father and mother died in 2002 and 2012 respectively, and the ashes of both parents are scattered at Fremantle Cemetery.
Ms HM and her family initially lived in Ferndale with friends. They then rented a home in Maylands before buying a home in Ferndale in late 1980. Ms HM lived there with her family between 1980 and 1996.
In 1996, Ms HM separated from her husband. In 1997 and 1998, Ms HM lived for short periods in Maddington, Huntingdale and Ferndale.
In April 1998, Ms HM began living in a rented property in Palmyra with Mr HN.
In 1999, Ms HM and Mr HN bought land in Canning Vale and built a house. They moved into that house in October 1999.
In 2000, Ms HM and Mr HN bought an investment property in Lynwood which they rented to a long-term tenant (Investment property).
In 1980 Ms HM and her husband opened a joint bank account in Western Australia with the Town and Country Bank, which subsequently became the ANZ Bank.
In 1997, Ms HM opened a savings account in her own name with ANZ. The BSB number for that account identifies the account as being held by the ANZ Fremantle branch. In 2000, Ms HM and Mr HN opened a joint investment deposit account with ANZ in Kardinya. The BSB number for that account identifies the account as being held by the ANZ Kardinya branch. In 2012, Ms HM opened a high interest saving account in her own name. The BSB number for that account identifies the account as being held by the ANZ Canning Vale branch. Ms HM continues to use these three accounts. However, she has not attended any of the branches since moving to Tasmania in 2014 and has conducted her banking online.
Between 1984 or 1985 and 1994, Ms HM worked in WA part-time as a sign-writer and a graphic designer. From 1994 until becoming redundant in 2007, Ms HM worked for Qantas. She retired in 2007.
In 2012 Ms HM and Mr HN began to consider moving to Tasmania.
In December 2014 Ms HM and Mr HN sold their home in Canning Vale and moved to a town in Tasmania where they rented a home.
In November 2015 Ms HM and Mr HN bought a home in another town in Tasmania (Tasmanian property).
In 2017, Ms HM and Mr HN sold the Investment property.
In 1981 or 1982, Ms HM obtained a driver's licence in Western Australia. She held that licence until sometime in early to mid-2015, after she had moved to Tasmania. Ms HM then obtained a Tasmanian driver's licence because she was only allowed to drive in Tasmania on her Western Australian driver's licence for 3 to 6 months after moving to Tasmania.
The address used by both Ms HM and Mr HN on their income tax returns is the address of the Tasmanian property.
While living in Tasmania Ms HM maintained regular telephone contact with family and a group of close friends comprising four couples. Ms HM telephoned her sisters and son at least once every one to two weeks and her friends at least once a month.
Ms HM and Mr HN returned to Western Australia in 2015, 2016 and 2017 once a year for two or three weeks on each occasion. Ms HM did not travel to Western Australia as often as she would have liked, because they spent time visiting Mr HN's family members, who were unwell, in the ACT.
In the years 2018 and 2019, Ms HM and Mr HN returned to Western Australia on average twice a year for two to three weeks a time.
From the beginning of 2020 to May 2022 as a result of the closure of the State border in response to the COVID-19 pandemic, Ms HM and Mr HN were able to travel to Western Australia only once, when there was a temporary relaxation of travel restrictions between Western Australia and Tasmania.
Ms HM liked to return to Western Australia in September because a number of birthdays of her close family members fell in that month. However, I conclude from her evidence that the decision on when to come would be made in consultation with her family members in Western Australia as to when it was suitable.
In addition, Ms HM's son and his family visited Ms HM and Mr HN in Tasmania at Easter and Christmas over the years. Her sister, Ms HP, also visited on several occasions.
Apart from the occasions in 2015, 2016 and 2017 when they travelled to Canberra, Ms HM did not travel from Tasmania to any place other than Western Australia.
When they travelled to Western Australia, Ms HM and Mr HN stayed primarily with her son or Ms HP in their homes, and occasionally with close friends in their homes.
Between December 2014 and September 2023 Ms HM and Mr HN visited Western Australia on a total of about nine occasions. Initially they would stay with Ms HM's son and daughter in law, while Ms HM's grandchildren were young. As the children got older, they would split their time depending on what was suitable to the people they were visiting.
Generally, when Ms HM and Mr HN stayed in Ms HM's son's house or Ms HP's house, they would stay in the same guest room.
Ms HM kept two suitcases in Ms HP's house which contained clothes and shoes some of which had been left after the move to Tasmania and some that she did not want to take back to Tasmania after each trip, which accumulated over the years. Most of these clothes belonged to Ms HM but some belonged to Mr HN. On occasion, things were left to make room in the luggage being taken to Tasmania for things Ms HM and Mr HN had been given on the trip.
The collection of clothes and shoes meant that Ms HM did not have to pack as much when she came to Western Australia. However, Ms HM did continue to take clothes and shoes with her from Tasmania to Western Australia and back.
Ms HM kept very few things at her son's house between visits, saying it was possibly a dressing gown and nightwear and some shoes.
Ms HM and Mr HN began to discuss the idea of returning to live in Western Australia in early 2021 and made the decision to do so in late 2021 or early 2022. However, they considered that it was necessary to undertake renovations to the Tasmanian property before they could sell it. In particular, they considered they needed to paint the house because an accumulation of soot on the exterior white paint made the house look shabby. Painting must be conducted in the summer months because of the issues of cold and rain during the rest of year.
In March 2022 they started to look for a painter to paint the house. In September 2022, after they had been unable to find a painter, they decided Mr HN would paint the house himself and they hired scaffolding.
Mr HN began the painting in November 2022 and took 6 months because of inclement weather, the need for some repairs before painting and the need to move scaffolding as sections of painting were completed.
The Tasmanian property was not put up for sale before 1 September 2023. Ms HM and Mr HN had not completed repairs to the house and decluttering which they considered necessary before putting the house up for sale. However, Ms HM considered the work required was 95% complete, subject to a couple of places Mr HN wanted to finish off.
I infer from the photographs of the house at the Tasmanian property in Exhibit 2, which appears to be of a reasonable size, and from her evidence concerning the need to 'declutter' that Ms HM, with Mr HN, owns a normal houseful of possessions which are kept at the Tasmanian property.

Ms HM began looking for a house to purchase in Western Australia in about November 2022, by searching online. On 19 February 2023, she and Mr HN entered into a contract to purchase a property in Mandurah. The contract was not subject to finance but was subject to a satisfactory building inspection report. Ms HM and Mr HN did not proceed with the purchase when the building inspection report disclosed structural issues. The contract was terminated on 1 March 2023 and the deposit refunded.
Ms HM said that the plan, had the purchase of the Mandurah property been completed was possibly to leave it empty or to rent it for a short period of time until they could sell the Tasmanian property and come back to Western Australia.
Ms HM and Mr HN had planned to travel to Western Australia in April 2023 but did not do so as they were attempting to complete the work at the Tasmanian property.
In early 2023 Ms HP moved house and told Ms HM that she was intending to discard certain bedroom furniture. Ms HM asked Ms HP to keep the bedroom furniture for Ms HM and Mr HN when they moved to Western Australia.
Ms HM and Mr HN came to Western Australia on 1 September 2023 and stayed with her son at his home. The plan was to stay for two weeks and to return to Tasmania to finish preparing the Tasmanian property for sale and to sell it in the warmer months of the year.
The following day, on 2 September 2023, Ms HM felt unwell and went to see a doctor who told her she had a chest infection. On 5 September she was admitted into Fiona Stanley hospital. The investigations initially focused on her heart. However, she had a CT scan which showed dark areas within her lungs and she underwent lung biopsies.
Prior to September 2023, Ms HM's usual doctor was in Tasmania and she did not have a doctor in Western Australia. The doctor she saw on 2 September 2023 was her daughter in law's doctor.
Ms HM was discharged from hospital on 8 October 2023 and went to live with Ms HP at her home.
On 24 October 2023 Ms HM experienced difficulty breathing and was taken to hospital by ambulance, where she was readmitted. While in hospital she asked about the results of the biopsies which she had not been given.
On 25 October 2023 Ms HM was told that she had an aggressive and incurable small cell lung cancer and that she had three months to live if she did not commence chemotherapy and radiotherapy immediately.
On 26 October 2023 Ms HM began the first of four cycles of chemotherapy. She was discharged from hospital on 3 November 2023 and returned to live with Ms HP in her home.
Ms HM was readmitted to hospital on 7 November 2023 and further discharged on 13 November 2023.
On 16 November 2023 Ms HM had her second chemotherapy cycle.
On 28 November 2023 Ms HM began the first of 30 radiotherapy treatments.
Ms HM and Mr HN continued to live with Ms HP at her home until early December 2023 when Ms HP caught Covid. Subsequently Ms HP's husband caught Covid. For a time, Ms HM and Mr HN could not stay with Ms HP because two groups of Ms HP's husband's family visited them from Scotland over a 7-week period. This had been planned well before Ms HM became ill. In addition, Ms HM was concerned about staying in the same house as people who had recently been travelling by plane, as the treatment she was undertaking had compromised her immune system.
During this period Ms HM's son also caught Covid. However, Ms HM preferred not to stay with her son in any event, as his family had acquired a large dog in the previous year and she was concerned about the dog jumping up at her and about catching an infection.
Ms HM and Mr HN then found it difficult to find long term accommodation. They moved every week between 10 December 2023 and 26 February 2024. On 19 February 2024 they secured long-term Airbnb accommodation. However, Ms HM was admitted to hospital again from 25 February to 18 March 2024. Ms HM and Mr HN then returned to live with Ms HP at her home as Ms HP's guests had left and they wanted to live not far from the hospital. They continue to live with Ms HP at her home.

Evidence of HM's intentions

Ms HM's evidence of her feelings and intentions was largely uncorroborated. However, as I have said I accept the truthfulness of her evidence.
Ms HM said of Tasmania, in effect, that she considered it to be a good location to retire to because it was scenic and she and Mr HN could easily travel to Western Australia regularly to see family and friends. She said that, when she moved to Tasmania, she always knew that she would easily be able to return to Western Australia if something bad were to happen to either her or her family.
Ms HM said, 'In the back of my mind, I knew I would return to WA one day. My intention did not change during the period I lived in Tasmania'.
Ms HM said that initially they planned to keep the Investment property and live in it when they returned to Western Australia 'if they had not found a suitable property to buy'. They made the decision to sell that property because the long-term tenant had vacated the property which was discovered to have a termite problem that they considered too expensive to treat.
Ms HM says that at no stage did she decide she wanted to live permanently in Tasmania and that she considered herself to be a West Australian.
Ms HM said that she regards her son's house and her sister's house as her home in Western Australia. She says, 'I knew those houses were available to me at any time that I need or want to return to WA'.
Of the decision to move back to Western Australia, Ms HM said that she missed her family and friends in Western Australia and found it becoming harder to return to Tasmania after each visit. During the pandemic they missed attending Ms HM's niece's wedding and they spent Christmas in 2021 alone. Ms HM said that her family is very important to her and after the pandemic it became even more important to spend time with them.

Applicant's submissions

Ms HM's counsel submits that Ms HM has been 'ordinarily resident' in Western Australia for at least 12 months at the time of the First Request because:
(a)Prior to her moving to Tasmania in December 2013 Ms HM had established her home in Western Australia and had been resident in this State for over 34 years;
(b)Ms HM's absence in Tasmania between December 2014 and September 2023 was of a temporary nature during her retirement, which should not prevent her from being regarded as 'ordinarily resident' in Western Australia during that time because:
(i)Ms HM reason for going to Tasmania was because she thought it would be a nice place to live for a period during retirement;
(ii)Ms HM never had any intention of living permanently in Tasmania and always intended to return to Western Australia;
(iii)Ms HM maintained a continuing physical and emotional connection with Western Australia because:
1.her close family, namely her son and her sisters and their families, live in Western Australia, and her parents were laid to rest in Western Australia;
2.Ms HM maintained frequent and regular contact with her family by telephone and returned to Western Australia as regularly as she could;
3.she continued to use bank accounts opened in Western Australia;
4.she kept personal belongings in Western Australia;
5.Ms HM had a home in Western Australia with her son and her sister where she could stay whenever she wanted or needed to return to Western Australia;
6.in early 2022, Ms HM had made a decision to return to Western Australia which was delayed by the need to renovate the Tasmanian property;
7.Ms HM took active steps to effect the return to Western Australia by attempting to purchase a property in WA in February 2023;
8.Ms HM has always considered herself to be West Australian; and
9.her wish is to die in Western Australia and be laid to rest alongside her parents.
Ms HM also submits, in summary, that the legislative intention of the Act was not meant to deny a person with such a close and longstanding connection with Western Australia the benefit of access to voluntary assisted dying.

Correct and Preferable Decision

To deal with the submission concerning legislative intention first, Justice Pritchard said in AB and CD at [27] that:
27… Clearly, the intent of the legislature was to exclude those who might come to this State, temporarily and briefly, and only for the purpose of voluntary assisted dying. In the context of the [Act], which has been viewed in some quarters as controversial in nature, the concern of the legislature was to confine access to voluntary assisted dying to persons living in Western Australia on a more permanent basis rather than making it available to visitors who might come here solely to access voluntary assisted dying.
I note, in addition, that in the second reading speech on the Voluntary Assisted Dying Bill 2019, on 7 August 2019, the expressed intention that the legislation was to provide a choice to Western Australians who were dying.
On the facts I have accepted Ms HM is not a person who has come to the State only for the purpose of accessing voluntary assisted dying. Ms HM may fairly be described as being a Western Australian, as I accept she considers herself to be. She clearly has a longstanding association with this State. She had the misfortune of being diagnosed with a terminal cancer when she was in Western Australia. Consequentially, all her medical treatment for that cancer has occurred here.
That is Ms HM is not the type of applicant that the legislature seemed concerned to prevent from accessing voluntary assisted dying in this State. However, those considerations cannot override the ordinary and natural meaning of the criterion the legislature has seen fit to apply in s 16(1)(b)(ii).
On the evidence before me I find that Ms HM was ordinary resident in Western Australia for over 34 years until December 2014.
I also find that after December 2014 Ms HM was ordinarily resident in Tasmania. She lived in that State for the vast majority of her time, in a house she owned with her closest family member, Mr HN, which house contained almost all of her personal property. In addition, the Tasmanian property was noted as her place of residence on her tax return, she held a Tasmanian driver's licence, and her doctor was in Tasmania.
The fact that Ms HM was ordinarily resident in Tasmania is not, however, determinative of the question of whether she was also ordinarily resident in Western Australia, given that a person may be ordinarily resident in two places concurrently.
Ms HM has been resident in Western Australia from 1 September 2023. She has been unable, by reason of her illness, to travel to Tasmania, and has no desire to do so. It is unsurprising that the plans to sell the Tasmanian property have not progressed given the course of her illness in the last 6 months.
With respect to the submissions concerning Ms HM's close and continuing connection with Western Australia since December 2014, I accept that Ms HM has a close emotional connection with Western Australia, because almost all her immediate and extended family members live here, other than Mr HN before September 2023, and because she has maintained continuous close ties with them and with a group of friends.
She has also maintained a physical connection with Western Australia by visiting it regularly, to the exclusion of any other place excepting Tasmania, and Canberra for a few years until 2018.
Ms HM has spent only very short periods of time in Western Australia since 2014. On the basis of an estimate of 27 weeks in the 8 years and 9 months until 1 September 2014, she spent roughly 6% of her time in this State. That was largely as a result of her attending to other family obligations in Canberra or circumstances out of her control, namely the COVID-19 pandemic. Had it not been for those matters Ms HM would likely have spent twice as much time in Western Australia as she did. However, she did not.
Ms HM and Mr HN sold their home in Western Australia before making the move to Tasmania in December 2014. In the ensuing nearly 9 years thereafter Ms HM did not maintain a home in Western Australia. Nor did she own any real property in this State after 2017 when the Investment property was sold. After that date, the only real property Ms HM owned was in Tasmania.
Whilst Ms HM said that she regarded the homes of her sister and her son as her homes in Western Australia, the evidence of the recent past does not support a conclusion that those houses were always available to her at any time she needed them. Rather they were usually available upon an arrangement being made to visit at a time suitable to all parties. In other words permission was needed, although it was usually granted.
Whilst Ms HM did stay in the same rooms at each house when staying with her son and her sister, she did not maintain any significant possessions in her son's house. The possessions she kept in her sister's house were limited and kept as a matter of convenience, either to free up luggage space on the trip to Tasmania or to reduce, but not eliminate, luggage on the way to Western Australia.
I do not consider that it can be reasonably be said that Ms HM kept property in the form of the bedroom furniture that her sister had put aside for her in her sister's home, rather than disposing of it. However, even if that is included, the total property maintained in Western Australia was very limited indeed, relative to the totality of Ms HM's possessions. The vast majority of her possessions were in Tasmania, namely the contents of the Tasmanian property.
Ms HM's official residence for the purpose of taxation, and her driver's licence, were in Tasmania. Whilst Ms HM may have preferred to keep her Western Australian licence it was changed to reflect the reality, that she was living in Tasmania. She did not maintain a connection by seeing a medical practitioner in Western Australia until she became ill in September 2023.
Whilst Ms HM maintains bank accounts that are nominally in Western Australia, I do not consider that is significant evidence of a connection with Western Australia given that there is no evidence that Ms HM has ever attended those branches since moving to Tasmania in December 2014, but has conducted her banking online.
With respect to move to Tasmania in 2014 I do not consider that it can be said that move was temporary, or that any of the occasions that Ms HM has returned to Tasmania after a visit to Western Australia could be said to be temporary departures.
I accept that, when Ms HM moved to Tasmania, she always had it in mind that she would return to Western Australia someday. However, on the evidence before me until early 2022 Ms HM had no specific plan about when she might return to Western Australia. That is her residence in that State was indefinite, until a decision to return was made, sometime in the future. Consistently with a plan to stay in Tasmania for an indefinite period, the home in Western Australia was sold and a new home purchased in Tasmania.
Accordingly, whilst I accept Ms HM did not think of the move as being permanent, it was not temporary. There was no time period set for the residence in Tasmania, nor was it defined by any limited purpose. As things transpired, the move lasted nearly 9 years.
A plan was formed in early 2022 to return to Western Australia. At that time the plan was to return to Western Australia after renovating and selling the Tasmanian property. However, the timing of the execution of that plan was still indefinite. Ultimately the renovations considered necessary were not completed, and the Tasmanian property was not put on the market, between the formation of the intention to return to Western Australia and Ms HM being taken ill on 1 September 2023.
Whilst the attempted purchase of the property on 19 February 2023 evidences a clear intention to effect the move back to Western Australia, that purchase did not take place. In any event, on Ms HM's evidence there was no plan at that stage that they would immediately use that property as a residence in Western Australia. Rather moving into it would await the sale of the Tasmanian property and a permanent move to Western Australia.
Although I accept Ms HM's evidence that she considered the renovations to the Tasmanian property were mostly done by September 2023, that property still had not been put on the market. On the evidence before me that would not have occurred until sometime their planned return to Tasmania in September 2023 and likely before Christmas that year.
In summary, therefore, in my view, prior to early 2022 Ms HM was, like many others, a Western Australian living full time in another State and returning to this State on holiday from time to time, to visit family and friends and with the thought in the back of her mind that one day she would return to live in Western Australia. After early 2022 she had a more concrete plan to return to live in Western Australia. However, it was still a plan with an indefinite end date. That only changed after Ms HM became ill in September 2023.
There are cases, namely NTJ, AB and CD and EF, GH AND IJ and KL [2024] WASAT 18 (EF), where people have been found to be ordinarily resident in the relevant state despite significant periods of time spent travelling elsewhere and relatively little time in the relevant state. In each the emotional connections to Western Australia (in AB and CD and EF) and Victoria (in NTJ) were a significant factor, as is the case with Ms HM. However, in all three cases the totality of the relevant connections with Western Australia (in the case of AB and CD and EF) and Victoria (in the case of NJT) were stronger.
In particular, in AB and CD, the intervening period of living out of Western Australia were much shorter and for defined purposes. In NJT the time out of Victoria could properly be characterised as extended holidays during retirement, but always returning to Victoria, with significant 'administrative' connections to that state. In EF, the individual concerned had very limited possessions, and when he was not in the other location he lived, kept no possessions there. He also had significant 'administrative' ties in Western Australia. In particular, all his healthcare needs had been met in Western Australia for over 45 years before he sought access to voluntary assisted dying.
In my view, on the totality of the evidence before me, it cannot be said that Ms HM was ordinarily resident in Western Australia after the move to Tasmania in December 2014 until 1 September 2023.
Accordingly, I find that Ms HM had not been ordinarily resident in Western Australia for at least 12 months before the First Request was made.

Orders

The Tribunal orders:
1.The application for review of a decision of the co-ordinating practitioner on 13 March 2024 is dismissed.
2.The Tribunal decides that as at the date of the applicant's first request for access to voluntary assisted dying on 13 March 2024 the applicant had not been ordinarily resident in Western Australia for at least 12 months before the first request was made and the applicant therefore does not meet the eligibility criterion in s 16(1)(b)(ii) of the Voluntary Assisted Dying Act 2019 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GH
Associate to Deputy President, Judge F Vernon
5 APRIL 2024