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

[2019] AATA 232

Jarrett and Secretary, Department of Social Services (Social services second review) [2019] AATA 232 (27 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3728

Re:Trevor Jarrett

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:27 February 2019

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension – application for payment – eligibility – whether Applicant an Australian resident – intention to reside in Australia – frequency and duration of travel outside Australia – family relationship and ties – nature of Applicant’s accommodation – business, financial and employment ties – nature and extent of Australian assets – decision under review affirmed

LEGISLATION

Social Security (Administration) Act 1999 (Cth) ss 29, 126

Social Security Act 1991 (Cth) ss 7, 43

CASES

Taslim v Secretary, Department of Family and Community Services and Others (2004) 37 FCR 70.

Re Maha Hafza v Director General of Social Security [1985] 50 ALR 674
Secretary, Department of Families and Community Services and Indigenous Affairs and Baccon [2006] FCA 773
Killick and Secretary, Department of Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

SECONDARY MATERIALS

Social Security Guide

REASONS FOR DECISION

Chris Puplick AM, Senior Member

27 February 2019

1. Mr Trevor Jarrett (the Applicant) appeals to this Tribunal against a decision by the Secretary, Department of Social Security (the Respondent) to reject his claim for an age pension.

2. Mr Jarrett was born on 20 April 1951, he is 67 years of age and thus qualified to apply for a pension on the basis of his age. He has also resided in Australia for a period of at least ten years at some point in the past. Both of these are eligibility requirements under section 43 of the Social Security Act 1991 (the Act).

   NARRATIVE

3. In relation to this application the relevant facts are:

   (a)The Applicant was living overseas between 1 May 2017 and 29 October 2017 on which date he returned to Australia.

   (b)On 8 November 2017 he lodged a claim for the age pension.

   (c)

   On 9 November 2017 the Applicant left Australia and remained overseas until

   
   

   12 January 2018.

   (d)

   The Applicant was granted the age pension as of his date of application but on

   
   

   16 January 2018 this decision was revoked by the Secretary[1] because the Applicant had left Australia within two years of his most recent return.[2]

   (e)There was a debt arising from this revocation[3] and the Applicant paid back the pension which he had received.[4]

   (f)On 23 January 2018 the Department formally determined the Applicant’s application and rejected his claim on the basis that he was not, at the time of the application, residentially qualified.

   (g)This decision was reviewed by an Authorised Review Officer (ARO) of the Department and affirmed by them on 31 January 2018.

   (h)On 9 May 2018 the Applicant appealed that decision to the Social Services and Child Support Division of this Tribunal (AAT1) which, on 19 June 2018 upheld the decision of the ARO.

   (i)The Applicant then appealed from that decision to this Tribunal on 4 July 2018 and the matter was heard on 15 February 2019.

   [1] Under provisions of section 126 Social Security (Administration) Act 1999 (Cth).

   [2] Section 37 Tribunal Documents at [86].

   [3] Ibid at [255].

   [4] This was stated by the Applicant in oral evidence and not contested by the Respondent.

4. Although there was an initial revocation of the original grant of age pension, the Tribunal proposes to deal with this matter as a case of a refusal to grant the original application.

5. In his submission to the Tribunal, by way of a commentary upon the Secretary’s Statement of Facts, Issues and Contentions, the Applicant indicated that he had made an initial claim for age pension in November 2016.[5] He further submitted a letter from

   
   

   Mr Chris Martin[6] who assisted him in this application and Mr Martin gave oral testimony to that effect.

   [5] Applicant’s Submission at Tab [1].

   [6] Ibid at Tab [5].

6. It is a requirement of section 29 of the Social Security (Administration) Act 1999 (the Administration Act) that, at the time an age pension claim is lodged, the applicant must be “in Australia.”

7. This matter is relevant to the extent that, should the Applicant’s claim for pension be successful, it might be backdated to the date on which he was first in contact with the Department regarding any such application.

8. Although the Applicant was convinced fully that he was present in Australia in November 2016 and that he actually “sat alongside an officer” of the Department while completing the necessary forms, an examination of his travel record provided by the Department of Immigration and Border Protection proves that he was not, in fact, in the country at that time, having departed on 12 January 2016 and had not returned until 5 April 2017.[7]

   [7] Respondent’s Evidence at [R1].

9. Memory plays tricks on the best of us and on this occasion the Applicant’s memory has failed him. He may have lodged a form online and Mr Martin may have assisted in that, but he was not present in Australia and hence has no entitlement to consideration of anything in relation that that pension application.

   THE LEGISLATIVE FRAMEWORK

10. The Tribunal sets out below the relevant sections of both the Act and the Administration Act which relate to these proceedings.

    SOCIAL SECURITY ACT 1991

    SECT 43 Qualification for age pension

    1A person is qualified for an age pension if the person has reached pension age and any of the following applies:

    (a)the person has 10 years qualifying Australian residence;

    Note 1:    For qualifying Australian residence see section 7.

    SECT 7 Australian residence definitions

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

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

    2An 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.

    3In 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.

    5A person has 10 years qualifying Australian residence if and only if:

    (a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

    (b)the person has been an Australian resident during more than one period and:

    (i)     at least one of those periods is 5 years or more; and

    (ii)    the aggregate of those periods exceeds 10 years.

    SOCIAL SECURITY GUIDE

    Version 1.252 - Released 4 February 2019

    3.4.1.10 Qualification for Age

    10 years qualifying residence

    Ten years qualifying residence is satisfied if the claimant has:

    ·been an Australian resident continuously for at least 10 years at any point in the past, OR

    ·been an Australian resident for 2 or more periods that in total exceed
    10 years, AND

    ·at least one of those periods is of 5 years duration or more.

    Act reference: SSAct section 7 Australian residence definitions, section 43(1)(a) Qualification for age pension

    SOCIAL SECURITY (ADMINISTRATION) ACT 1999

    SECT 29 General Rule

    1Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

    (a)is an Australian resident; and     

    (b)is in Australia.

    2Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

    THE ISSUE OF RESIDENCY

11. Apart from satisfying the criteria in section 43 of the Act, applicants for age pension must meet certain other criteria.

12. Reference has been made already to section 29 of the Administration Act which provides that a social security claim may “only be made by a person who … is an Australian resident.”

13. The Applicant has to be a resident at the time of the application and the tests to establish residency are set out in section 7 of the Act (see above). In essence, the following matters must be considered:

    (a)the nature of the applicant’s accommodation in Australia

    (b)their family relationship and ties in Australia

    (c)the nature of their business, financial and employment ties in Australia

    (d)the nature and extent of their Australian assets

    (e)their frequency and duration of travel outside Australia

    (f)other matters relevant to the question of their intention to reside permanently in Australia.

14. In relation to each of these the Respondent challenges the Applicant’s position so as to suggest that they do not meet the legislative requirements.

    Accommodation in Australia

15. Applicant: The Applicant attests that he owns an apartment in Balmain which was originally a two-bedroom unit, now “converted” into a three bedroom unit, with the work on this “conversion” undertaken by himself and his son. From time to time both of his adult children resident in Australia have lived in the unit, largely while the Applicant was living or travelling overseas. The Applicant says that he pays the utility bills and rates and while his ex-wife may have contributed to some of the expenses, she has no beneficial interest in the property. The Applicant says that the apartment is owned unencumbered and without mortgage. Both Mr Martin and Mr Dan Brown who gave evidence to the Tribunal affirm what the Applicant says about the property. During a brief return visit to Australia in January 2018 the Applicant stayed both at this apartment and in the apartment of

    
    

    Mr Brown in Woolloomooloo. The Applicant says that this is his place of residence.

16. Respondent: The Secretary contends that in order for a person to be genuinely “resident” in a place they must demonstrated a degree of permanency in terms of use and attachment. Usage of the residency must be “more than a mere visit” which “could not be construed as setting up ‘residency’”[8]. The Respondent asserts that the Applicant needs to establish not only a physical presence in a place to establish residency but also an intention to treat that place as a “home” at least for the time being.[9] The Social Security Guide uses the term “settled or usual place of abode.”[10] By examining details of the Applicant’s travel record, the Respondent claims that the Applicant was living primarily in Bali (see below) and that the Balmain apartment, being used primarily by other family members, should not be regarded as the Applicant’s place of residence.

    [8] Taslim v Secretary, Department of Family and Community Services and Others (2004) 37 FCR 70.

    [9] Re Maha Hafza v Director General of Social Security [1985] 50 ALR 674 at [682]-[683] per Wilcox J.

    [10] Social Security Guide at 3.1.1.10.

17. Tribunal: The Tribunal accepts that the Applicant owns the Balmain unit and uses it when he is in Australia. It finds nothing unusual about its occupation at other times (apparently rent-free) by other members of the immediate family. It notes the statement in the

    
    Social Security Guide

    to the effect that: “it is not possible for a person to be residing in more than one country at the same time”[11] but qualifies this proposition, in the words of Wilcox J: “It is important to observe, firstly, that a person may simultaneously be a resident in more than one place.”[12] The Tribunal acknowledges however that this was not the position taken by Branson J in Baccon.[13]

    [11] idem

    [12] Re Maha Hafza v Director General of Social Security [1985] 50 ALR 674 at [680].

    [13] Secretary, Department of Families and Community Services and Indigenous Affairs and Baccon [2006] FCA 773 at [16].

18. The Tribunal finds that the Applicant had a permanent place of residence in Australia and that he made use of it while in the country on those occasions prior to his return to Australia in December 2018.

    Family relationship and ties

19. Applicant: The Applicant states that, at the time of his pension application he was living primarily in Indonesia with his second wife Sofianti who he married on 25 June 2017. He has a son and daughter in Australia, the former living in Sydney and the latter in London. He has a sister in Madrid who he visits regularly. His ex-wife lives in Australia as do his closest friends. In addition he has been in a form of relationship with another woman by whom he has a child (now aged 11) who, at the time of his pension application was resident in Hong Kong and whom he used to visit there on a regular basis. This child is now resident in Australia for the purposes of his secondary education.

20. Respondent: At the time of preparing her submission the Secretary noted that the Applicant’s younger son was resident in Hong Kong and that the Applicant was primarily resident in Indonesia, both being with his wife and her close family but in order to facilitate greater access to Hong Kong. Both these situations have now changed. The Applicant’s wife in in the active process of seeking permanent residency in Australia and his younger son is resident here.

21. Tribunal: The Tribunal accepts that the Applicant’s family ties are essentially based in and focused upon Australia and that such a situation would be germane to any pension application being lodged since his return to Australia. However the Tribunal must consider what the situation was when the pension application was lodged in November 2017 (and in the allowed period of 13 weeks thereafter). In the period November 2017/February 2018 the Tribunal accepts that the immediate focus of the Applicant’s life was towards Indonesia and towards his wife, her family and his (then) Hong Kong-based son.

    Nature of business and employment ties

22. Applicant: The Applicant detailed in his submission that he has spent many years working for significant companies in Australia but that in almost all cases this has involved extensive travelling abroad. He has, since approximately 2010 been essentially retired and does not assert that he has any significant or extensive current business ties in Australia. The Applicant states that he has some significant savings in a bank in

    
    

    Hong Kong and is looking to transfer those assets to Australia when a more favourable exchange rate is available to him.

23. Respondent: The Respondent notes that the Applicant has some financial investments in Australia and that at the time of his application he held more, by way of bank holdings in Hong Kong than Australia. The respondent had no information about the extent of the Applicant’s economic or financial situation in Indonesia.

24. Tribunal: The Tribunal finds that consideration of this criterion yields little one way or the other in establishing questions of residential status and that nothing can be taken from it.

    Nature and extent of Australian assets

25. Applicant: The Applicant points to his ownership of the Balmain apartment and a part-ownership of a boat. He has a small savings account and some small sum in his superannuation account.

26. Respondent: The Respondent does not argue that the Applicant has any further assets in Australia although there is some degree of uncertainty as to exactly what share (and to what value) of the boat in question is the Applicant’s.

27. Tribunal: As with the question of the Applicant’s business ties there appears to be nothing that turns one way or the other regarding this criterion as it relates to issues of residency.

    Frequency and duration of travel

28. Applicant: The Applicant maintains that during the whole of his working life he was required by his employment to travel extensively overseas and to spend considerable periods away from Australia. In addition he made clear that his commitment to his younger son in Hong Kong caused him to focus on making living arrangements that maximised his ability to spend time with him, providing parental care and support. Through organisations such as Rotary, he has been engaged in humanitarian projects such as those related to various recent natural disasters in Indonesia. In more recent years, his relationship with Sofianti and her family in Indonesia (Bali) have caused him to spend time there where he is also able to live with fewer expenses than would be the case in Australia.

29. Respondent: The Respondent points to the fact that from 11 July 2011 to 19 June 2018 the Applicant spent 2,365 days outside Australia. That is well over 90% of that time. Since that time, the Applicant has again spent more time overseas than in Australia: from

    
    

    19 June 2018 to 6 December 2018, and has only been back resident in Australia on a permanent basis since December 2018. Even when he applied in person for the pension this was during a brief visit from 29 October to 9 November 2018.

30. Tribunal: During the period leading up to the application for the pension the Tribunal finds that the Applicant was primarily resident overseas and that this was not for purposes primarily related to any employment requirements after 2010. While the Applicant may have regarded Australia as “home” in an emotional sense, his lack of physical presence must count against him in this regard. In Baccon Branson J said, without determining the issue, that: “it may be arguable that, in the context of the Act, a person cannot have been an Australian resident for any continuous period if he or she has, during that period, been a resident of, and resident in, another country.”[14] The length of time spent away from Australia by the Applicant must weigh heavily against his being able to be described as being “resident” here for any significant period of time required to establish an entitlement such as the right to apply for an aged pension.

    [14] Secretary, Department of Families and Community Services and Indigenous Affairs and Baccon [2006] FCA 773 at [16].

    Other factors regarding intention

31. Applicant: The Applicant states that it was always their intention to return to Australia to live and that, at least in relation to the younger son, it was always planned that he would be returning to Australia for his secondary education. He also asserts that in large part the initiative to return to Australia was driven by his wife Sofianti who wanted to leave Indonesia and move here. There is no reason to dispute that. The evidence of both
    Mr Martin and Mr Brown (two highly credible and articulate witnesses) was to the effect that they had both been encouraging the Applicant to return to Australia and that he always had an underlying intention to do so.

32. Respondent: The Respondent concedes that in the most recent time, primarily since the relocation of the younger son to Sydney that the Applicant’s intention was to return to live in Australia. However, the Respondent disputes that this was necessarily the case at the time that the pension application was lodged, rather, that the Applicant was well settled in Indonesia and that his commitment was to there and to Hong Kong. Apart from the commitment to wife and child, the Respondent also draws attention to the evidence of the Applicant that he was deeply engaged and committed to working in humanitarian and relief efforts as a volunteer in Indonesia and was also committed to a programme of teaching the basics (theoretical) of sailing to Indonesian children with various disabilities.

1. Tribunal: The Tribunal finds the Respondent’s argument on this point to carry more weight than the Applicant’s. Until such time as the younger son relocated, the Tribunal is persuaded that the Applicant’s commitment was to maintain a physical presence as near him as possible. It accepts that, at least initially, the Applicant was committed to establishing and developing his ties with his Indonesian wife’s family and that he was a well-integrated member of the local Balinese community. His return visits to Australia were few and far between and at least one appears to have been for the primary purpose of lodging a pension application which had to be done in person.

   CONSIDERATION

2. The Tribunal is required to weigh and balance all the criteria which are outlined in the legislation in relation to the question of residency which is itself a matter over which authorities differ and about which there is little clear consensus.

3. It is difficult to get inside the mind of any applicant sufficient to be able to determine, with precision, the nature of their intentions at any particular moment in time. There may be
   

   [15] Ibid at [9].

   [16] Killick and Secretary, Department of Housing, Community Services and Indigenous Affairs [2010] AATA 1059 at [66].

   “an intention to return and continue to treat that place as home”[15] but equally that requires some past evidence of that commitment to home being established and an acceptance that “merely having in mind to return to Australia at some point is not sufficient.”[16]

4. Just as in relation to determination of “good character”, account should be taken of
   

   [17] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].

   “… in part what a person says, in part by what a person does and in part by what a person is heard to say and seen to do”[17]. It seems to the Tribunal that taking account of what the Applicant did and was seen to do in the years between at least 2010 (after his work travel ceased) and the date of the pension application, there was no evidence of the Applicant’s intention to return to Australia on a full-time basis and his actions hardly qualified him as being regarded objectively as being an Australian “resident”.

5. The “calculus” (to borrow a term of the Federal Court’s[18]) of criteria thus persuades the Tribunal that, at the time of the pension application in November 2017, the Applicant did not reside in Australia as required by the Social Security Act and was thus not eligible to make a claim under the Social Security (Administration) Act.

   [18] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].

   FORWARD

6. Despite such a finding by the Tribunal, nothing precludes the Applicant from now submitting a further claim for age pension. This will be assessed on current criteria without reference to past applications and will take into account both the residential status and family circumstances of the Applicant. The Tribunal urges this course of action upon him.

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 27 February 2019

Date(s) of hearing:	15 February 2019
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services