KENNETH WHITEHEAD and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 34
[2013] AATA 34
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3721
Re
KENNETH WHITEHEAD
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 23 January 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Applicant not resident in Australia when claim made – claim taken not to have been made – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 23, 43
Social Security (Administration) Act 1999 (Cth) s 11, 29
REASONS FOR DECISION
Mr R G Kenny, Senior Member
23 January 2013
BACKGROUND
On 1 April 2010, Kenneth Whitehead lodged a claim for the age pension which is payable in accordance with the Social Security Act1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act). This was in anticipation of his reaching 65 years of age on 13 May 2010. On 21 April 2010, Centrelink rejected the claim. That decision was affirmed, on 7 June 2010, by an authorised review officer and, on 27 July 2010, by the Social Security Appeals Tribunal.
LEGISLATION AND ISSUES,
The qualification criteria for age pension are set out in s 43 of the Act. These include a requirement that the claimant be of pension age which, in Mr Whitehead’s case, is 65 years of age[1]. The claimant must also have 10 years of “qualifying Australian residence”. In that regard, s 7(5) of the Act provides:
A 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.
[1] See s 23(5A) of the Act.
It is common ground that Mr Whitehead has the required 10 years of qualifying residence and that he turned 65 on 13 May 2010. Under s 29(1) of the Administration Act, the general rule for claiming a social security payment, which includes the age pension,[2] is that the claim may only be made by a person who is an Australian resident and is in Australia. Under s 29(2) of the Administration Act, when that requirement is not met, a claim is taken not to have been made. It is not in dispute that Mr Whitehead was in Australia when he lodged his claim for age pension.[3] The rejection of his claim was on the basis that he was not an Australian resident when he did so. Under s 7(2) of the Act:
An 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.
[2] See s 23(1) of the Act.
[3] See immigration movement records at folio 69 of exhibit 1.
Under s 7(3) of the Act, in deciding for the purposes of the Act whether or not a person is residing in Australia, regard must be had to the following:
(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.
The issue for determination is whether Mr Whitehead met the requirements of s 7(2) of the Act at the time of his claim.
EVIDENCE
After living in and working in Australia for most of his life, Mr Whitehead travelled to Thailand in 2006 as a tourist. Since then, he has spent much of his time in Thailand, in large part because of the low cost of living there. He has suffered illness since 2003 and, in order to reduce his debt level, sold his house in Brisbane at that time. He now has no assets in Australia except for an amount of approximately $60,000 in a building society account. He relies on this to support himself financially. In Thailand, he stays in rented premises and has few possessions apart from personal items, his bed and a bicycle. He undertakes voluntary work in teaching English. Mr Whitehead has two sons and a grandson who live in Sydney and one son and three grandchildren in Brisbane. He has no relatives in Thailand.
Mr Whitehead is an Australian citizen and has always considered Australia to be his home. He has an Australian passport and has not formally taken up permanent residence in Thailand. He stays there on a visa and does not believe he will remain there permanently but will return to Australia permanently at some stage. Mr Whitehead has made several trips to Australia since 2006, including a period of 7 months in Melbourne when his mother suffered an illness from which she died in January 2012. On that occasion, he stayed in rented premises. Usually, on his trips, he endeavours to visit all of his family members and stays with them.
Mr Whitehead accepted as correct the following summary of his absences from Australia as provided by Australian immigration authorities:
Departure from Australia Arrival in Australia 11 August 2006 2 March 2007 24 April 2007 4 March 2008 13 September 2008 11 March 2009 29 March 2009 30 September 2009 28 November 2009 12 March 2010 20 April 2010 15 October 2010 1 May 2011 1 July 2011 4 March 2012 25 August 2012
Clearly, the absences in the last three entries were after the date of Mr Whitehead’s age pension claim.
Mr Whitehead said that his enquiries to Centrelink before he lodged his claim for age pension led him to understand that his staying in Thailand would not disqualify him from being paid the age pension.
CONSIDERATION
Mr Whitehead has strong ties with his immediate family and usually stays with them when visiting Australian. However, during his mother’s illness, he rented premises in Melbourne and immigration records confirm that he was in Australia at that time from 1 July 2011 until 4 March 2012. However, that period in Australia is after his age pension claim was made. He has no employment or business ties with Australia and his only financial tie is in the form of his credit union account. That also comprises his asset holding in Australia. Mr Whitehead’s travel outside of Australia since August 2006 has been exclusively to Thailand and the dates of his travel there are noted above.[4] As I read that data, from 11 August 2006 when Mr Whitehead first left Australia for Thailand until the date of his claim on 1 April 2010, he spent more than 70% of his days in Thailand and the remainder of his time in Australia.
[4] See para 9 (above).
That analysis relates to s 7(3)(a) to (e) of the Act. The remaining matter for consideration under that provision is “any other matter relevant to determining whether the person intends to remain permanently in Australia”. It is clear from Mr Whitehead’s evidence that he does not intend to live permanently in Australia. Indeed, he is currently in Thailand, having returned there on 20 April 2010 which was 10 days after his claim was made. Clearly, as at that claim date, he did not intend to “remain” permanently in Australia. His stated belief was that he would return to live permanently in Australia at some stage in the future.
When all of the factors in s 7(3) of the Act are taken into account, I am satisfied that Mr Whitehead cannot be considered to have been resident in Australia at the date of his claim. Unfortunately, that outcome is a result of applying the unequivocal terms of the Act and the Administration Act and is not affected by any incorrect information he may have been given about residence requirements.
The imbalance of approximately 70%/30% presence in Thailand/Australia, respectively, between Mr Whitehead’s first arrival in Thailand until his claim date does not support residence in Australia. This is especially so when the only factor in Mr Whitehead’s favour is his bank account in Australia. As I understand it, this is a matter of convenience for him and its location in Australia is not material as he is able to gain access to his account from Thailand. The Australian account, alone, is not sufficient to establish residence in Australia. Accordingly, his claim is taken, under s 29(2) of the Administration Act, not to have been made. For the age pension to be paid to Mr Whitehead, a valid claim was required.[5] Accordingly, the age pension is not payable to him as a result of his purported claim lodgement on 1 April 2010.
[5] See s 11 of the Administration Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 23 January 2013
Date of hearing 15 January 2013 Applicant By Telephone Solicitors for the Respondent Mr Bob Hamilton
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