John Mason and Secretary, Department of Social Services
[2013] AATA 781
[2013] AATA 781
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0842
Re
John Mason
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 1 November 2013 Place Brisbane (heard in Darwin) The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
SOCIAL SECURITY – qualification – age pension – residence – decision affirmed
LEGISLATION
Social Security Act 1991, s 7(3)
Social Security (Administration) Act 1999, s 29(1)
CASES
Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444
REASONS FOR DECISION
Deputy President P E Hack SC
1 November 2013
The applicant, Mr John Mason, was born in New Zealand in May 1947. Many years ago he moved to this country and became an Australian citizen in January 1990. The issue in these proceedings is whether, in October 2012 when he applied for the age pension, he was an Australian resident as that expression is used in the Social Security Act 1991 (Cth).
Section 43 of that Act sets out the qualifications for age pension. The respondent, the Secretary, Department of Social Services, accepts that Mr Mason satisfies each of those qualifications, including the requirement that he have ten years “qualifying Australian residence”. The Secretary relies on s 29(1) of the Social Security (Administration) Act 1999 (Cth) as the basis for refusing Mr Mason’s claim. It provides that, subject to some irrelevant exceptions,
…a claim for a social security payment… may only be made by a person who:
(a)is an Australian resident; and
(b)is in Australia.
It is not in issue that Mr Mason was in Australia on 2 October 2012 when he made his claim. The case turns on whether he was an “Australian resident” at that time. The term is defined in s 7(2) of the Social Security Act. There are two elements to the definition. A person must, (a), reside in Australia, and, (b), either be an Australian citizen or the holder of a permanent visa or be a special category visa holder. Mr Mason is an Australian citizen.
Section 7(3) of the Social Security Act provides:
In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
Whilst the matters listed are not the only matters to which regard may be had it is convenient to first examine the evidence by reference to those matters before considering what other matters might inform the conclusion whether Mr Mason was residing in Australia on 2 October 2012. Additionally, it is conceded by Mr Mason’s solicitor to be relevant to consider where otherwise Mr Mason might be residing, if not in Australia, by reference to the same matters.
The factual background is not in issue. Mr Mason was a seaman until his retirement in late September 2012, a few days prior to his application for the age pension. He married his present spouse in September 1993. His wife is a citizen of the Philippines who resides, and has always resided, in that country with the three children of the marriage aged 13, 9 and 8. Originally Mr Mason’s spouse and children lived in a single bedroom apartment but for approximately the last three years the family has lived in a rented three bedroom house. Mr Mason pays the rent and paid for some improvements to the house. Mr Mason is the sole provider of support for his spouse and the family.
Throughout the period of the marriage Mr Mason has visited on a regular basis although there have been long periods when Mr Mason was unable to visit. He did not visit (and remained in Australia) between February 2002 and November 2004, a period of 142 weeks because he was unable to obtain work in Australia.
The nature of Mr Mason’s employment was such that he was away aboard a ship for five weeks at a time and then had a five-week break. Of more recent times, the pattern had been a five-week period of work followed by a similar period in the Philippines with one or two days in the flat in a Darwin between work and the Philippines. When in Australia (and not away aboard ship) Mr Mason’s accommodation is basic in the extreme. He shares a rented flat in Darwin suburb with a friend, also a seaman. He contributes equally to the cost of rent and power and, whilst he is staying in the flat, to the cost of food. He has paid half of the purchase price of some appliances in the flat. When in the Philippines, he resides for much longer periods in the rented three bedroom house in which his spouse and three children reside.
Mr Mason financed the purchase of land in the Philippines although it must be held in the name of his spouse. As Mr Mason said in the course of the hearing, the shared intention was that he would retire, get his age pension and go to the Philippines to live with his spouse and family and build a house for the family to live in on the block of land.
Mr Mason’s family ties are not, in any real sense, in Australia. He has a sister living on the Gold Coast who he visits very infrequently and some other family, including three children from a former marriage, living in New Zealand. His spouse and three infant children live in the Philippines.
In early October 2012 Mr Mason no longer had employment and thus had no employment ties with any particular country. He had been in employment in Australia for very many years prior to his retirement and paid tax in Australia for very many years. He had no particular business ties in any country beyond a membership of many years standing (and now possibly lapsed following his retirement) with a trade union. He had two bank accounts in Australia and one in the Philippines. He was in the process of receiving his entitlements to superannuation. When those funds were received later in October 2012 he transferred the funds to his Philippines account.
Mr Mason has few assets in Australia – a half interest in some appliances and some clothing – but equally has few assets in the Philippines. He has purchased land (in the name of his spouse) and has provided the funds to furnish the family’s rented house.
Over recent years Mr Mason spent a little under half of his time outside Australia and in the Philippines. Of greater significance is the fact that except for the one- or two-day interludes before and after five-week periods of work he spent all his time in the Philippines. In essence, when he was not working he was living with his family in the Philippines.
The final matter requires me to consider any other matters relevant to determining whether Mr Mason intends (or, more correctly, in early October 2012 intended) to remain permanently in Australia. Undoubtedly relevant under this head is the fact that Mr Mason’s settled intention at the time of his claim for the age pension was to reside outside Australia on a permanent basis, to live with, and enjoy the company of, his spouse and family.
Mr Mason’s submissions drew attention to the frequently quoted observations of Wilcox J in Hafza v Director-General of Social Security[1], a case concerned with a statutory definition of resident of Australia (by reference to the Income Tax Assessment Act 1936 (Cth) as “a person … who resides in Australia”. His Honour said:
There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v
Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249, by Williams J:“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.”
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place – even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383 – 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 – Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 – together with an intention to return to that place and an attitude that that place remains “home”: see Norman v Norman (No 3) (1969) 16 FLR 231 at 236. It is important to observe, firstly, that a person may simultaneously be a resident in more than one place — see the facts of Lysaght (supra) and the reference by Williams J to “a home or homes” — and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.
[1][1985] FCA 164; (1985) 6 FCR 444 at 449-450
As it seems to me it is inescapable that in October 2012 at the time of his application Mr Mason was not a resident of Australia. If required to determine where he was a resident I would readily conclude that he was residing in the Philippines. In Australia he had no family ties of any significance and a room in a shared flat where he stayed only occasionally. The contrast to the situation in the Philippines is stark.
In those circumstances the decision was undoubtedly correct and ought be affirmed.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ..................[Sgd]......................................................
Associate
Dated 1 November 2013
Date of hearing 14 October 2013 Solicitors for the Applicant Darwin Community Legal Service Solicitors for the Respondent Program Litigation & Review Branch, Department of Human Services
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