JOHN BREEN and SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 639
[2013] AATA 639
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3258
Re
JOHN BREEN
APPLICANT
And
SECRETARY, DEPARTMENT OF HOUSING, FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
Decision
Tribunal Ms K Hogan, Member
Date 9 September 2013 Place Perth DECISION SUMMARY
The Tribunal sets aside the decision under review and substitutes a decision that as at 17 February 2012 the applicant did not reside in Australia so was not qualified to receive the disability support pension. The effective date of cancellation is 17 February 2012.
.....(Sgd) K Hogan.....
Ms K Hogan, MemberCatchwords
Social Security - disability support pension - whether applicant is an Australian resident- consideration of factors relevant to residence in Australia - effective date of cancellation- decision set aside
Legislation
Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment Act (Budget and Other Measures) Act 2011
SocialSecurity Act 1991
Social Security (Administration) Act 1999
Cases
Hafza v Director General of Social Security (1985) 6 FCR 444
Re Wybrow and Secretary, Department of Social Security 5 [1992] AATA 315REASONS FOR DECISION
Ms K Hogan, Member
9 September 2013
History
The applicant seeks review of a decision of the Social Security Appeals Tribunal (SSAT) dated 20 June 2012.
The decision of the SSAT was to set aside a decision of a Centrelink Authorised Review Officer (ARO) made on 22 March 2012, cancelling the applicant’s Disability Support Pension (DSP) with effect from 17 February 2012 and substituting a decision to cancel the benefit with effect from 1 July 2011, on the basis that he was not an Australian resident for the purposes of social security law.
ISSUES
The issues to be considered by the Tribunal are:
(a)whether Mr Breen was an Australian resident as defined in subsection 7(2) of the Social Security Act 1991 (the Act); and
(b)if he is not an “Australian resident”, what is the correct date of cancellation of the disability support pension?
EVIDENCE
The Tribunal was provided with a number of documents including:
(a)the section 37 documents;
(b)written submissions from Mr Breen and the respondent.
The Tribunal heard oral submissions on behalf of the parties.
The legislative framework
The eligibility criteria for disability support pension are set out in Section 94 of the Act.
The applicant had previously satisfied the requirements of s 94. However that section has been amended and, with effect from 1 July 2011, an additional provision must now be satisfied as follows:
(1) 94 Qualification for disability support pensionA person is qualified for disability support pension if: ...
(ea) one of the following applies:
(i) the person is an Australian resident; or
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a),(b),(c),(d) and (e) exist in relation to the person.
The term "Australian resident" is defined in subsection 7(2) of the Act and requires that a person actually reside in Australia and satisfies one of the citizenship or visa requirements. Mr Breen is an Australian citizen but must also satisfy the requirement that he is “residing in Australia”.
Subsection 7 (3) provides that:
In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person's employment, business or financial ties with Australia; and
(d) the nature and extent of the person's assets located in Australia; and
(e) the frequency and duration of the person's travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
APPLICANT
The applicant’s evidence, which was consistent with his submissions to the SSAT, was that:
“…I believed I was entitled to be paid the pension. I was an Australian resident and there’s no reason why I shouldn’t have been paid. Just because I was in Indonesia, that’s irrelevant. That was for health reasons, it helped my arthritic condition, it helped my son. I have a six year old son. I wanted him to be – while I was in there he had a nanny as well, which helped him. But I never, ever considered myself a resident of any other country other than Australia. My belongings were in storage at my sister’s place in Melbourne until they were damaged in a flood a year or so ago. [Transcript page 8]
He said:
“I always kept in contact with my family, my sisters, on a regular basis. Like more than – less than weekly – a couple of times a week I would contact my sisters, my father, my nieces and cousins, different ones that I had contact with. So my family was in Melbourne, not in Bali. All I had in Bali was my son, Jack. My wife and I were divorced and she never, ever came to see her son.” [Transcript: page 8]
He had no permanent or regular accommodation in Australia.
He had no employment, business or financial interests in Australia.
In the 12 month period leading up to 17 February 2012, Mr Breen was in Australia for 23 days.
He had no assets in Australia; though he had personal belongings in Australia, stored at his sister’s house in Melbourne until they were destroyed in a fire:
“All personal, hand tools, suitcases full of clothes and, you know, personal belongings packed in boxes and things like that. There was no white goods. There were electrical goods but not – no fridges or washing machines. Basically it was clothing and, yes, just more personal belongings.” [Transcript: page 15]
He had lived outside of Australia since 2005 except for brief visits back to Australia.
He lived with his son in a house belonging to a friend in Indonesia.
He had a household of furniture including whitegoods in Indonesia.
He conceded that if the legislation had been, you only have to come back once a year he “would have come back once a year until (I) wanted to return permanently.”
The applicant wrote to Centrelink in January of 2012, and asked if Centrelink would provide for a special agreement that would “allow me to continue living in Indonesia with my disability pension until I reach retirement age in three years.” [T documents: page 345]
Prior to returning to Australia in May 2012 Mr Breen sold everything he owned in Indonesia. He had an entire household of things to sell:
“ fridges and stuff like that. Well, you know, just what you need in a home to live.
...
You know, because I had been living in it for probably six years going backwards and forwards there, and that’s where my son lived, because we had nothing else. And then I guess at the time it’s convenient and it was a cheap way of living too, I suppose.” [Transcript page 19]
The applicant contended that he is an Australian resident under sub-section 7(3) of the Act.
respondent
The respondent relied upon its statement of facts, issues and contentions.
The respondent conceded that the applicant is an Australian citizen and therefore satisfies the criteria under section 7(2)(b), and the Tribunal so finds.
The respondent referred to the changes to the eligibility criteria for the disability support pension which were introduced in the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment Act (Budget and Other Measures) Act 2011 (the Amending Act). The explanatory memorandum relevantly stated:
These amendments will close a loophole that has allowed continued payment of disability support pension to people who live permanently overseas but return to Australia every 13 weeks in order to retain their pension.
It is not the intention of the 13-week portability period to allow people to live overseas and return to Australia for only short periods every 13 weeks to maintain payment. The 13 week portability period is designed to allow disability support pensioners who reside permanently in Australia sufficient time to deal with personal matters that may arise from time to time overseas. This is consistent with the purpose of disability support pension, which is to assist people with the cost of living in Australia, and it is designed to engage people of workforce age in activities in Australia that will lead to greater levels of economic and social participation.
The respondent contended that the concept of residency in social security law has been developed over many years and has two essential elements:
(a)a physical presence in a particular place; and
(b)the intention to treat that place as home;
Hafza v Director General of Social Security (1985) 6 FCR 444.
The respondent wrote to Mr Breen on 22 February 2013 to explain that notwithstanding the decision of the SSAT to back-date the cancellation of his DSP, the effect of which was to create an overpayment, a subsequent decision of the respondent waived any debt that may arise from that overpayment.
Mr Breen sought review of the decision to cancel his DSP from 17 February 2012, and continued to be paid disability support pension on the basis that there was an entitlement.
On his return to Australia in May 2012, he again became eligible for disability support pension.
From a practical financial point of view there is no issue with respect to whether Mr Breen should have been paid or if there is there an overpayment which would need to be recovered.
The issue is one of statutory interpretation, applying the facts to Mr Breen’s circumstances, having regard to the amendments to the Act of 1 July 2011; was Mr Breen, as at 17 February 2012, an Australian resident under section 94(1)(ea)(i) of the Act?
The immigration records from 2010 to 2012 show that throughout that period he was returning every 13 weeks or thereabouts, for periods of between three and six days, including travel days on either side.
At the relevant point in time of cancellation, he was not an Australian resident.
Statements of intention regarding residency are not sufficient to justify a finding of residency.
CONSIDERATION OF THE ISSUES
It is accepted that Mr Breen is an Australian citizen. However, a person could be an Australian citizen but not be an Australian resident. To be a resident, the statutory criteria above in s 7(3) will determine whether, on the weight of evidence, he is a resident.
In Re Wybrow and Secretary, Department of Social Security [1992] AATA 315, it was found that it is appropriate not only to consider the facts in section 7(3) from an Australian perspective in determining whether an applicant is an Australian resident, but also the converse of these factors (the extent to which these facts exist in relation to the second country in question).
From an examination of those criteria, considering all the evidence before me, I make the following findings of fact regarding Mr Breen. As at 17 February 2012;
(a)He had no permanent or regular accommodation in Australia;
(b)He had no employment, business or financial interests in Australia;
(c)In the 12 month period leading up to 17 February 2012, Mr Breen was in Australia for 23 days;
(d)He had no assets in Australia; though he had personal belongings in Australia, stored at his sister’s house in Melbourne until they were destroyed in a fire.;
(e)He had lived outside of Australia since 2005 except for brief visits back to Australia;
(f)He had family in Australia with whom he was in regular contact;
(g)He lived in a house belonging to a friend in Indonesia;
(h)His son lived with him;
(i)He had a household of furniture including whitegoods in Indonesia.
The only other matter of relevance to these considerations is his submission that he always intended to return to Australia.
As a consequence, since the new law took effect on 1 July 2011 requiring residency as a qualification for disability support pension, Mr Breen was not a resident as at 17 February 2012 and therefore is not so qualified. Section 80 of the Social Security (Administration) Act 1999 (the Administration Act) requires his pension to be cancelled where he is not qualified.
The Tribunal finds that Mr Breen was not an “Australian resident” as at 17 February 2012.
The SSAT decided to implement the decision to cancel the pension with effect from 1 July 2011, the commencement date of the amending legislation.
The date of effect is to be determined by reference to s 123(1) of the Administration Act. That section provides that a social security payment will continue until a further determination is made under s 80. That determination is an “adverse determination”, which is defined in s 118(13) of the Administration Act. Section 118(13) provides that the date of effect of such a determination is to be either:
...(a) the day the determination is made; or
(b) a later day specified in the determination, on that day.
The Tribunal is satisfied that the applicant is not a resident for the purposes of sub-section 7(2) and (3) of the Act.
This is an adverse determination, and in accordance with s 118 (13), the effective date must be 17 February 2012.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that as at 17 February 2012 the applicant did not reside in Australia so was not qualified to receive the disability support pension. The effective date of cancellation is 17 February 2012.
I certify that the preceding forty-five. (45) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member.
..(Sgd) T Freeman...................
Associate
Dated 9 September 2013
Date of hearing 14 June 2013 Applicant In Person
Advocate for the respondent Mr Dube Solicitors for the respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Residency Determination
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Social Security Act
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Adverse Determination
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Disability Support Pension
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Citizenship
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