Horn-Smith v Chief Commissioner of State Revenue

[2021] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Horn-Smith v Chief Commissioner of State Revenue [2021] NSWCATAD 196

Hearing dates:

18 March 2021

Date of orders:

12 July 2021

Decision date:

12 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N S Isenberg RFD, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

MERITS REVIEW - REVENUE LAW – jurisdiction of the Tribunal - onus – surcharge land tax on residential land – foreign person – permanent resident – submissions without supporting evidence.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Duties Act 1997 (NSW)

Foreign Acquisitions and Takeovers Act 1975 (Cth)

Land Tax Act 1956 (NSW)

Land tax Management Act 1956 (NSW)

Migration Act 1958 (Cth)

Taxation Administration Act 1996 (NSW)

Cases Cited:

Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481

Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Joseph John Horn-Smith (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
E C Graham (Respondent)

Solicitors:
Applicant (Self represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00323230

Publication restriction:

No restriction

REASONS FOR DECISION

Background

1. These proceedings concern an application to the Tribunal by Joseph John Horn-Smith (referred to in these reasons as ‘the Applicant’ or ‘Mr Horn-Smith’) to review the Chief Commissioner of State Revenue’s Land Tax Assessment Notice dated 16 June 2020 in respect of the 2017 to 2020 land tax years (the Assessment) to the effect that Mr Horn-Smith was liable to pay surcharge land tax (the Surcharge) on his property at Mosman in NSW (the Property).

2. The Assessment assessed Mr Horn-Smith as liable to pay the Surcharge because he was deemed to be a ‘foreign person’ for the purposes of the Land Tax Act 1956 (NSW) (LT Act). All references to legislative provisions in these reasons are to provisions of the LT Act unless stated to the contrary.

3. Mr Horn-Smith disputed the Assessment on several bases including that he had resided in Australia permanently since 2010; he has been in Australia for more than 200 days for each of the relevant land tax years; he was and is a British Citizen holding a New Zealand [sic] visa and is entitled to apply for a further such visa when his current visa expires; he should be treated as a permanent resident, akin to the way that persons holding Partner (Provisional) visas are treated in the same way as permanent visa holders for the purposes of the Surcharge; his visa is a New Zealand spousal visa and should afford him the same rights as a New Zealander living in Australia; and the Property was and is his only residence whether in Australia or elsewhere.

4. Mr Horn-Smith objected to the Assessment and the Chief Commissioner (the Respondent), by letter dated 17 September 2020 (the Determination), disallowed the objection. Mr Horn-Smith applied to the Tribunal to review the Determination.

Material before the Tribunal

Mr Horn-Smith’s documents and oral representations

5. In these proceedings Mr Horn-Smith relied on:

1. His 13 August 2020 objection sent to the Chief Commissioner by Mr Horn-Smith’s then solicitors, HWL Ebsworth (the Objection).

2. Mr Horn-Smith’s' application for review dated and filed with the Tribunal on 12 November 2020 (the Application). Attached to the Application was the Determination which advised that the Objection was disallowed and provided reasons for the disallowance. The Application requested a review of the attached Determination.

3. A 4 page document and cover-sheet filed on behalf of Mr Horn-Smith on 15 February 2021, headed “Impact statement of Joseph J Horn-Smith and Family” which I refer to as the Applicant’s submissions (AS).

4. A bundle of un-numbered pages of documents filed with AS. The first page of the bundle appears to be a table of contents with the heading “Evidence items” listing 20 separate documents. The bundle includes excerpts from NSW and Commonwealth legislation, explanatory notes from parliamentary bills, a letter from a firm which describes itself as Mr Horn-Smith’s income tax agent, copies of birth certificates and other miscellaneous documents.

5. A document filed 16 March 2021 by Mr Horn-Smith titled “Response to outline of submissions” (ASR). ASR is Mr Horn-Smith’s' response to the Chief Commissioner’s submissions of 5 March 2021. ASR was accepted by the Tribunal as submissions rather than statements of fact on the basis that if Mr Horn-Smith pressed for any statement to be dealt with as evidence, the Tribunal would consider objections by the Chief Commissioner prior to determining whether the statement was evidence (and the weight to be given to same) or a submission.

6. Mr Horn-Smith’s oral evidence and oral submissions to the Tribunal, which he made on his own behalf, during the telephone hearing on 18 March 2021.

The Respondent’s documents and oral representations

6. The Respondent relied on:

1. The Assessment.

2. The Determination.

3. A bundle of 42 numbered pages, together with an index, filed 15 December 2020 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (s 58 documents).

4. The Respondent’s written outline of submissions dated and filed 5 March 2021 (RS).

5. A 61 page bundle of authorities filed 17 March 2021.

6. A supplementary bundle of authorities comprising 181 pages, together with an index, filed 23 March 2021.

7. Oral representations made to the Tribunal during the hearing by Ms Graham, counsel for the Respondent.

7. All references to written submissions of the Chief Commissioner are to numbered paragraphs of RS unless stated to the contrary.

Consideration

8. I observe the Chief Commissioner did not rely on any evidence from witnesses and Ms Graham informed the Tribunal the Respondent did not intend cross-examining Mr Horn-Smith.

The role of the Tribunal

9. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against specified categories of decisions (administratively reviewable decisions) made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal’s processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)).

Jurisdiction of the Tribunal

10. Section 28 of the CAT Act provides “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

11. There is no dispute that the Tribunal is empowered to review the Assessment (ss 9 and 55 of the ADR Act and s 96 of the Taxation Administration Act 1996 (NSW) (TA Act). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Identification of the decision the subject of review by the Tribunal.

12. The Application sought a review of the Determination which disallowed Mr Horn-Smith’s objection to the Assessment. In Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 the Court of Appeal said at [28]:

… the right of review under s 97 is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer’s dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review.

13. Section 96 of the TA Act provides the jurisdictional power of administrative review by the Tribunal. That power is commensurate with the Supreme Court’s jurisdictional power in s 97.

14. There is no dispute that while Mr Horn-Smith was dissatisfied with the disallowance of his Objection, it is the Assessment, not the disallowance of the objection to the Assessment, which is the subject of review by the Tribunal in these proceedings. After some discussion, Mr Horn-Smith agreed to vary his application to the Tribunal to be a review of the Assessment rather than a review of the Determination. The Respondent consented to the variation, and I directed that the proceedings be varied accordingly.

Onus

15. Section 100(3) of the TA Act provides that the Applicant has the onus of proving his case in a review by the Tribunal. Mr Horn-Smith said he understood this obligation.

16. The requisite standard of proof for the Tribunal is the “balance of probabilities” Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104].

Agreed facts

17. There is no dispute that at all relevant dates:

1. Mr Horn-Smith’s wife was a Cook Islander with rights to New Zealand citizenship and was entitled to enter Australia on a Sub Class Visa 444.

2. Through his wife’s entitlements and visa, Mr Horn-Smith held an Australian Government issued New Zealand Citizen (Family Relationship) (Temporary) (class UP) (subclass 461) visa (the 461 Visa).

3. Mr Horn-Smith was a British citizen who owned the Property, which he had acquired in 2013. Mr Horn-Smith was not an Australian or New Zealand citizen.

4. Mr Horn-Smith’s wife was not an owner of the Property.

5. The Property was “residential land” for the purposes of the LT Act.

Issues

18. Mr Horn-Smith’s claims are based on his submissions in the Objection, AS, ASR and his oral statements to the Tribunal during the hearing.

19. At [2.2] in the Objection Mr Horn-Smith submitted he was not a foreign person and accordingly the Surcharge under s 5A of the LT Act did not apply, and in the alternative, the exemption under s 5B of the LT Act did apply to his circumstances.

20. In both AS and ASR, Mr Horn-Smith raised numerous submissions, many of which were not based on evidence before the Tribunal and others were not relevant to the Application. I have referred to and dealt with several of these submissions below. There was no need to separately refer to each submission as they did not affect the reasons for my decision.

Consideration of Mr Horn-Smith’s more relevant submissions

Application of s 5A of the LT Act

21. Mr Horn-Smith claimed in the Objection at [2.2(a)] that he was not a foreign person and accordingly the Surcharge on residential land owned by foreign persons under section 5A of the LT Act did not apply to him.

22. The parties agreed on most of the relevant evidence and legislation and its interpretation. However, they disagree on some critical points.

23. There is no dispute that:

1. Section 5A introduced the Surcharge payable in respect of ‘residential land’ owned by a ‘foreign person’ as at 31 December in any relevant year even where land tax is otherwise not payable pursuant to the Land Tax Management Act 1956 (NSW) (LTM Act).

2. Section 2A states that 'residential land' and 'foreign person' have the same respective meanings as in Chapter 2A of the Duties Act 1997.

‘Foreign person’ and ‘ordinarily resident’.

1. Section 104J(1) (in Part 1 of Chapter 2A) of the Duties Act 1997 (NSW) (DA) defines 'foreign person' as follows:

'foreign person means a person who is a foreign person within the meaning of the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by this section.'

2. The modification by s 104J(2) relates to persons who are Australian or New Zealand citizens. Mr Horn-Smith is not such a person, and the modification does not apply to him.

3. Section 4 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FAT Act) relevantly defines ‘foreign person’ as “an individual not ordinarily resident in Australia”.

4. The FAT Act provides, at s 5, that the relevant meaning of ‘ordinarily resident’ requires, amongst other matters, that the relevant person’s “continued presence in Australia is/was not subject to any limitation as to time imposed by law”.

24. Both parties relied on interpretations of Revenue Ruling G009 'Definition of Foreign Person' (the Ruling) and whether Mr Horn-Smith’s continued presence in Australia was indefinite or subject to any limitation as to time imposed by law.

25. Mr Horn-Smith submitted, in the Objection at [4.9] to [4.21], that the Ruling provides guidance on how the Chief Commissioner will interpret and apply relevant legislation. The relevant provisions of the Ruling are paragraphs [11] to [15]. At [4.11] and [4.12] Mr Horn-Smith stated:

4.11   … the Ruling confirms that persons who reside in Australia under a temporary visa are generally regarded as foreign persons. However, it specifies that persons who hold certain partner visas are treated as permanent resident visa holders. … In particular, holders of visa subclass 309 or 820 (both of which are temporary visas) will be treated as permanent resident visa holders.

4.12   It follows that not all temporary visa holders are to be automatically regarded as foreign persons. Rather, the Ruling implies that consideration will be given to the characteristics of the type of visa in question and that some temporary visas can be treated as if they were permanent resident visas.

26. Mr Horn-Smith submits the holders of visa subclasses 309 and 820 are examples in the Ruling of temporary partner visa holders (who are the de facto partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen) who live in Australia temporarily, are treated by the Chief Commissioner as if he/she held a permanent visa. The Objection submits at [4.15] that this appears to be an acknowledgement by the Chief Commissioner of the fact that though the visas are ”technically ‘temporary’ the holders of these visas actually intend to reside in Australia on a permanent basis with their partner.”.

27. Mr Horn-Smith then submits that the visa he holds is as a member of the family unit of a New Zealand citizen. The visa allows him to live and work in Australia for five years. “When the visa expires, the holder is able to apply for another visa of exactly the same time, provided all of the conditions for the granting of the visa are still met”:[4.16]. He continues at [4.17] and [4.18]:

4.17   Accordingly, although the visa Subclass 461 is technically a 'temporary' visa, the holder of this visa is able to live in Australia indefinitely by applying for the same visa every 5 years ... the Subclass 461 can be renewed on an indefinite basis, such that the holder could live their entire lifetime in Australia without ever holding any other kind of visa. Indeed, our client's circumstances are consistent with this use of the visa.

4.18   Our client intends to continue living in Australia indefinitely and when his current visa expires, he will apply for yet another Subclass 461 visa. Although this visa technically falls within a 'temporary' class of visa, the practical use of the visa in our view characterises it as a visa that is intended to operate in the same way as a permanent resident visa, or, at the very least, as the equivalent of a partner visa. Accordingly, we submit that the Commissioner should treat this visa in much the same way as he treats the visa Subclasses 309 and 820.

28. Mr Horn-Smith submits that the subclass 820 and 461 [sic] visas are precedents for the Chief Commissioner treating temporary visa holders as permanent resident visa holders. He further submits that the Chief Commissioner acknowledges that although these visas are technically “temporary” in nature, they are used by people intending to live in Australia in more permanent circumstances and the Chief Commissioner “therefore treats these individuals as permanent residents”:[4.20].

29. Mr Horn-Smith regards this application of the Ruling as in keeping with the substantive intention of the legislation which he submits is not intended to capture persons in his circumstances “who genuinely live in Australia on a full-time and permanent basis.” : [4.21].

The Chief Commissioner’s case

30. In the Determination (which largely comprised un-numbered paragraphs) the Chief Commissioner submitted at page 2:

[The Ruling] confirms that a person who is entitled to reside in Australia under a permanent entry visa is not subject to a time limit and is only classified as a foreign person if the person does not meet the test of actually been in Australia during 200 or more days of the preceding 12 month period (para 13).

However, a person who resides in Australia under a temporary visa is regarded as a foreign person. The conditions applying to such visas means temporary residents are not regarded as being ordinarily resident in Australia, and their presence in Australia is restricted by time and/or may be terminated under the Migration Act (para 15).

Paragraph 14 specifies only that a person who holds a Partner (Provisional) visa (subclass 309 or 820) will be treated in the same way as a permanent resident visa holder for the purposes of surcharge land tax and duty. It does not follow that the holder of any other class of visa will or should also be treated that way.

Your client does not hold a Partner (Provisional) visa; he holds a temporary New Zealand Citizen Family Relationship visa. The potential 'to renew such a visa does not mean it operates as a permanent visa, nor that it is the equivalent of a partner visa. Under the terms of your client's visa his continued presence in Australia is subject to limitation as to time. He is therefore not 'ordinarily resident' and is a foreign person, subject to surcharge land tax on the property.

31. The Chief Commissioner also relied at [17] in RS on s 5 of the FAT Act. That section provides at s 5(1) that “an individual who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if” certain conditions are satisfied. The conditions are firstly that the individual has actually been in Australia for a minimum number of days during a specified period and secondly at the particular time “the individual's continued presence in Australia was not subject to any limitation as to time imposed by law”.

32. At [26] the Chief Commissioner extracted paragraphs [11] to [15] of the Ruling, including the following:

11.    Individuals who are permitted to be in Australia under a visa that is not a permanent entry visa are "foreign persons", because the visas impose time limits on the person's lawful presence in Australia. Such visas include … a temporary entry visa …

12.   …

13.    A person who is entitled to reside in Australia under a permanent entry visa (i.e. a permanent resident) is not subject to a time limit and is only classified as a foreign person if the person does not meet the test of being ordinarily resident in Australia, namely, the part that requires that the person has actually been in Australia during 200 or more days of the preceding 12 month period (see paragraph 10(a)).

14.   A person who holds a Partner (Provisional) visa (subclass 309 or 820) will be treated in the same way as permanent resident visa holders. The 200 day requirement will need to be satisfied.

15. A person who resides in Australia under a temporary visa is regarded as a "foreign person". The conditions applying to such visas means temporary residents are not regarded as being ordinarily resident in Australia, and their presence in Australia is restricted by time and/or may be terminated under the Migration Act.

33. At [2] the Chief Commissioner submitted:

…. as the Subclass 461 visa is a type of temporary visa that must be renewed every 5 years … [accordingly his] continued presence in Australia is subject to a limitation of time imposed by law and he cannot be considered to be anything other than a "foreign person" pursuant to the definition in s. 2A of the Land Tax Act as it applies to s. 5A of the Land Tax Act.

Consideration

34. Mr Horn-Smith submits at [4.12] (see [25] above) that the Ruling implies that consideration will be given to the holder of a type of visa and some temporary visas can be treated as ‘permanent resident’ visas. Mr Horn-Smith provides no authorities or evidence to support his submissions other than a reference in the Ruling to holders of two specified visa classes being conditionally exempt from the Surcharge. I find no evidence or authority before the Tribunal that such exemptions prove the implication submitted by Mr Horn-Smith and I reject the submission.

35. Mr Horn-Smith’s submission at [4.20] as to the substantive intention of the legislation was not supported by any authority. Accordingly, I find that he has not satisfied his onus and I reject the submission.

36. The Chief Commissioner submits that statutory definitions of ‘permanent resident’ are found in:

1. the Australian Citizenship Act 2007 (Cth) which defines ‘permanent resident’ in s 5 as follows:

For the purposes of this Act, a person is a permanent resident at a particular time if and only if:

(a)   the person is present in Australia at that time and holds a permanent visa at that time; or

(b)   both:

(i)   the person is not present in Australia at that time and holds a permanent visa at that time; and

(ii)   the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or

(c)   the person is covered by a determination in force under subsection (2) at that time.

(2) The Minister may, by legislative instrument, determine that:

(a)   persons who hold a special category visa or a special purpose visa; or

(b)   persons who have held a special category visa; or

(c)   persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;

and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.

2. The Migration Act 1958 (Cth) at s 30, headed ‘Kinds of visas’, which provides:

1. at s 30(1) - A visa to remain in Australia … may be a visa, to be known as a permanent visa, to remain indefinitely; and

2. at s 30(2) - A visa to remain in Australia … may be a visa, to be known as a temporary visa, to remain during a specified period; or until a specified event happens; or while the holder has a specified status.

37. I find there is no evidence before the Tribunal that Mr Horn-Smith satisfies any of the requirements of either s 5 of the Australian Citizenship Act 2007 or s 30 of the Migration Act 1958 to remain indefinitely in Australia or to be a permanent resident of Australia or to hold a permanent visa.

38. Mr Horn-Smith’s submissions, at [4.16] – [4.20] in the Objection, relate to both ss 5A and 5B and are responded to by the Chief Commissioner at [34] - [36]. I deal with the parties’ relevant submissions below.

39. Mr Horn-Smith claimed at [2.2] in the Objection, in the alternative to his s 5A submission, that the exemption under s 5B applied to his circumstances.

40. Section 5A(4) provides that the LTM Act applies to the Surcharge in respect of residential land subject to various conditions including an eligibility under s 5B. Section 5A(4)(g) states:

(g)   the person is exempt from liability to pay surcharge land tax in respect of the land for a land tax year because the land is the principal place of residence of the foreign person (and accordingly sections 90 and 9D of the Principal Act operate to reduce the land value of the land if it is the principal place of residence of the person) only if the person is eligible for the exemption under section 5B,

41. In summary, the Chief Commissioner submitted in the Determination at pages 2 to 4 (s 58 documents pages 31 to 33) that the LT Act relevantly states at s 5B(1)(a) and (c):

(1)   A person is eligible for an exemption from liability to pay [the Surcharge] …only if … (a) the person is a permanent resident at midnight on 31 December of the previous year, and … (c)   the person lodges a [specific] declaration with a land tax return ….

42. Mr Horn-Smith informed the Tribunal during the hearing that he had paid on time to the Chief Commissioner the amount assessed by the Chief Commissioner, and this was equivalent to making the required land tax returns. Mr Horn-Smith provided no authority to support his submission. I find that there is no evidence before the Tribunal that Mr Horn-Smith had at any time lodged with the Chief Commissioner any of the relevant returns or declarations. The onus lies on Mr Horn-Smith to prove all elements of his case. There is undisputed evidence before the Tribunal of the payment to the Chief Commissioner. However, I reject Mr Horn Smith’s submission that he has complied with his relevant obligations under s 5B.

43. In the Application, dated 12 November 2020, Mr Horn-Smith claimed his grounds included:

… . I am able to apply for a further such visa (subclass 461, 5 year term) when the current one expires I should be treated as a permanent resident, akin to the way that persons holding Partner (Provisional) visas are treated in the same way as permanent visa holders for the purposes of surcharge land tax. This Visa is a New Zealand spousal visa and should afform me the same rights as a New Zealander living in Australia.

44. Mr Horn-Smith provided no legislative, judicial or tribunal authority in support of that claim. In AS, undated but filed with the Tribunal on 5 March 2021, Mr Horn-Smith referred to permanent residence twice and conceded in the 4^th (unnumbered) paragraph of the first page that he did not “meet the requirements for permanent residency”.

45. Having regard to my above findings concerning permanent residency and to Mr Horn Smith’s concessions to the Tribunal, I find that Mr Horn-Smith was not a permanent resident of Australia at any relevant date.

Issues raised in AS

46. Mr Horn-Smith stated on the third page of AS:

This ruling is discriminatory as it does not consider unintended consequences and subsequently, we will have no alternative but to uproot our family and leave Australia.

There are a number of questions that must be addressed in this situation:

47. Mr Horn-Smith conceded that he had no evidence to support his statement that the ruling “does not consider unintended consequences”.

48. Mr Horn-Smith stated his submission that “the ruling is discriminatory” was not asserting that the ruling was unlawful but that it was inconsistent. He asserts that he pays income tax at a federal level as a tax resident of Australia and that is evidence of an inconsistency of law at a state and federal level. Mr Horn-Smith submitted that the Australian constitution provides that where the law of a state and the law of Australia are inconsistent the latter shall prevail. Mr Horn-Smith conceded that he was not aware of any Commonwealth legislation concerning land tax, whether or not it was inconsistent with New South Wales land tax legislation. There is no evidence or authority before the Tribunal that there is any such Commonwealth law. Accordingly, I reject the implied submission that the New South Wales law breaches or is otherwise inconsistent with the Commonwealth Constitution.

49. Mr Horn-Smith then posed five questions and made submissions in relation to each one. The specific questions raised by Mr Horn-Smith in AS are as follows:

1.   In this case, is the law being applied in the manner in which it was intended i.e., to deter foreign ownership (failure to meet residency requirement) of specified classes of property in Australia, and failure to use property as primary place of residence?

2.   Is there a possibility of vacating the property in order create a rental return to offset land tax surcharge, while we regroup to look at other visa options in Australia?

3.   Has the 461 visa intentionally been excluded from the partner visa exemption list?

4.   Tax assessments are done within a 12-month period, yet the time limit imposed by law in my visa is not restricted to that 12-month period assessment. Should they be?

5.   Is there discrimination against 461 partner visas?.

50. My brief responses to those questions are set out below and I have had particular regard to the following three requirements which apply in each case.

1. Mr Horn-Smith has the onus of proving his case on the balance of probability by probative evidence and in accordance with the law.

2. The Tribunal must have regard to the material before it.

3. Mr Horn-Smith has provided no authority, nor am I aware of any authority, which would require or empower the Tribunal to deal with hypothetical issues.

51. As to question 1 – Mr Horn-Smith provided no evidence to support his submissions concerning parliament’s intention as to the law, nor the (possible) result of the application of the law, nor any relevant financial evidence; nor did he provide any authority as to the relevance of the second and third issues to the proceedings.

52. As to question 2 – There is evidence before the Tribunal that Mr Horn-Smith’s purchase of the land was conditional on him not using the land for rental income and that he was aware of the condition.

53. As to question 3 – Mr Horn-Smith has produced no relevant evidence concerning this issue nor any relevant authority to the effect that the Tribunal has any jurisdiction or statutory function to respond to any such question.

54. As to question 4 – The hypothetical question is not relevant to the Tribunal’s findings.

55. As to question 5 – Mr Horn-Smith submitted:

Retirement visas (subclass 410 and 405) are exempt from Foreign surcharge land tax in Australia also, and yet all have time limits imposed by law and each specify that Australian PR and Citizenship are NOT a possibility as a progressive feature of this visa.

56. Mr Horn-Smith did not support his above submission with any evidence concerning “Visa Subclass 410 and 405 (Retirement visas)”. Rather, he has raised what appears to be a hypothetical question concerning an alleged government policy.

57. As Mr Horn-Smith is aware, he has the onus of proving his case in his application to the Tribunal. The Tribunal is required by s 63 of the ADR Act to determine his application, to the extent that it concerns an administratively reviewable decision, having regard to the material before the Tribunal. It does not authorise or require the Tribunal to consider hypothetical questions which may, or may not, be tangentially related to the reviewable decision and of which there is no evidence before the Tribunal.

58. As noted above, the Tribunal’s authority is derived from the CAT Act. Section 28(1) of that Act states: “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

59. Mr Horn-Smith has provided no authority to the effect that responding to his question is relevant to the jurisdiction or function of the Tribunal. Mr Horn-Smith may well wish to raise questions of interest to him concerning various issues. However, in my opinion the Tribunal is not the appropriate forum to debate these issues. Accordingly, I reject the question.

60. At the last paragraph on page 3 of AS, Mr Horn-Smith requested “that natural justice be practiced”. During the hearing he confirmed that he did not understand the principle of “natural justice”. He produced no authority and no evidence to the effect that he was not being provided with natural justice in these proceedings and I reject any submission to the contrary.

61. Mr Horn-Smith also requested that his “determination as a foreign person be reviewed”. That review has taken place in the course of the proceedings and findings have been made in these reasons that Mr Horn-Smith was at all relevant dates a foreign person for the purpose of relevant legislation.

Issues raised in ASR

62. Mr Horn-Smith claimed, at the last un-numbered paragraph in ASR:

Based on the submission of the Respondent dated 5th March 2021, below are a number of responses and points raised that have failed to be addressed from the Applicants [sic] (Joseph John Horn-Smith) original submission with supporting evidence.

63. Mr Horn-Smith then provided 8 numbered paragraphs containing, amongst other material, some statements and submissions, questions as to the intent of Parliament in passing certain law, submissions as to the Australian Constitution, allegations of legislative ambiguity and possibilities that NSW Parliament may have made oversights in passing certain legislation. Minimal or no evidence has been provided to support the statements and submissions and Mr Horn-Smith’s oral evidence to the Tribunal confirmed that some statements / submissions were factually incorrect. None of the contents of paragraphs 1 to 8 have caused me to alter my above findings.

64. The last numbered paragraph, number 9 requested the Tribunal to “take the following Actions”. Those ‘Actions’ are as follows and I address each below:

a.   To engage and consider points that have been raised in the Applicants original ‘Evidence Submitted’ and this current document for a fair outcome.

b.   Applicant is requesting to be assessed consistently at the State and Federal Level for the purpose of Taxation.

c.   Ex Gratia relief.

d.   Due to the introduction of certain Clauses within the Taxation laws as outlined by the Respondent, there has been an unintended impact on a family that considers Australia its home. The Applicant seeks that this be addressed and raised with legislators as it is clear that there is some discrimination present due to the 'time limit imposed by law' statute. Without this the Applicant would not be considered a foreign person. If retirement visas are eligible to be exempt from Foreign Surcharge land tax, why aren't other classes of visa with time limits imposed by law?

65. As to Action ‘a’ – I have dealt above with matters raised by Mr Horn-Smith to the extent that those matters were relevant and supported by probative evidence.

66. As to Action ‘b’ – Mr Horn-Smith has provided no evidence that legislation dealt with by the Tribunal, whether ‘State’ or ‘Federal’, has not been dealt with and interpreted in accordance with relevant law. Once again, I note that Mr Horn-Smith bears the onus of proving his case. He has not shown on this point that there is any substantive issue which is relevant to his Application.

67. As to Action ‘c’ - There is no authority provided by Mr Horn-Smith or otherwise known to the Tribunal to authorise it to deal with the requested Ex Gratia relief. The submission is refused.

68. As to Action ‘d’ – Mr Horn-Smith submits that ‘Taxation laws’ outlined by the Chief Commissioner have had “an unintended impact on a family that considers Australia its home’. He submitted ‘that this be addressed and raised with legislators’. I refer to my above repeated extracts from s 28 of the CAT Act at [10] and [58]. Mr Horn-Smith has not identified any legislation which empowers or requires the Tribunal to raise this issue with legislators nor am I aware of any such legislation. Accordingly, Mr Horn-Smith has not satisfied his onus and his request is refused.

Mr Horn-Smith’s oral submissions

69. Mr Horn-Smith oral submissions included:

1. The Chief Commissioner argues that Mr Horn-Smith is not a resident because his visa has a time limit imposed by law. However, Mr Horn-Smith said he can submit other visas which have time limits imposed by law that are exempt from the Surcharge. Mr Horn-Smith conceded that holders of those other visa were exempt from the Surcharge because of express legislative provisions. He also conceded that he was not aware of any express legislative provision which provided an exemption from the Surcharge for holders of his class of visa. He submitted that the visa category he held was being discriminated against. He said he was not aware of any prior decision of a court or tribunal which had accepted that argument. Mr Horn-Smith claimed this Tribunal should accept the argument because “it is natural justice and it is what was reasonable”. I reject the submission that there is any relevant discrimination.

2. Mr Horn-Smith said he understood that something which was not natural justice “is something that was not fair treatment of a person”. Mr Horn-Smith conceded that he was not aware of any court or tribunal decision or precedent which supported his understanding and that he was not aware of the legal meaning of the phrase ‘natural justice’. I reject the submission.

3. Mr Horn-Smith also submitted that there is an inconsistency in the treatment of holders of different classes of visas. However, he provided no authority to the effect that the ‘inconsistency’ to which he referred was unlawful. I reject the submission that there is any relevant inconsistency.

4. Mr Horn-Smith orally informed the Tribunal during the hearing of his understanding that if the Property was held in his wife’s name there would be no Surcharge on the land used as her principal place of residence. Whether or not Mr Horn-Smith’s understanding is correct, and I make no finding in that regard, the parties agreed that at all relevant dates Mr Horn-Smith was the sole owner of the Property. Accordingly, I find that Mr Horn-Smith’s said understanding is irrelevant to these proceedings.

5. At AS page 2 paragraph [3] “Mr Horn-Smith stated:

“It is essential to take into account, that New Zealanders are not eligible to withdraw their superannuation contribution, if they are no longer considered "residents" by law, as their multiple entry visa into Australia has no time limit imposed by law.”

When asked whether there was any supporting evidence before the Tribunal regarding this statement and as to the relevance of the statement, Mr Horn-Smith conceded the issue was not relevant to the proceedings. Accordingly. I reject the submission.

Findings and decision

70. Having regard to my above findings, I am not satisfied on the balance of probability on the material before me that Mr Horn-Smith has satisfied his onus. Accordingly, the correct and preferable decision of the Tribunal is that the decision of the Chief Commissioner under review is affirmed.

Orders

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 July 2021