Lance Christian and Secretary, Department of Social Services - [2013] AATA 716

[2013] AATA 716

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/2704

Re

Lance Christian

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

Decision

Tribunal
Mr S. Webb, Member

Date 10 October 2013

Place Canberra
The decision under review is affirmed.
...............[sgd].........................................................
Mr S. Webb, Member
SOCIAL SECURITY – family tax benefit – baby bonus – applicant overseas for more than three years – maximum period of eligibility for FTB exceeded – not eligible for FTB or baby bonus – decision affirmed
A New Tax System (Family Assistance) Act 1999, s 3, 21, 22, 24, 36
Social Security Act 1991, s 7
REASONS FOR DECISION
Mr S. Webb, Member
10 October 2013

Lance Christian is an Australian citizen. He has a child who was born in New Zealand. Mr Christian claimed Family Tax Benefit (FTB) and Baby Bonus in respect of this child. His claim was rejected by primary determination and on review by an Authorised Review Officer and, subsequently, by the Social Security Appeals Tribunal. Mr Christian is unhappy and applied for review.
The brief facts follow.
Mr Christian was born in New Zealand and holds citizenship in New Zealand and in Australia.
On 19 September 2006, he departed from Australia and he has not returned[1]. It appears that subsequently Mr Christian has been residing in Christchurch in New Zealand.
[1] T11 folio 106 refers.
On 19 January 2012, Jeanne Pang gave birth to Mr Christian’s son, N, in Christchurch, New Zealand[2].
[2] T4 folio 74; T4 folio 45.
On 13 June 2012, Mr Christian signed a claim for FTB and Baby Bonus in respect of N. He ticked Yes to the question “Are you living in Australia permanently?”[3]. He recorded his permanent address as “Site 207 NTH STAR CVAN PK Coast Road Hastings Point NSW 2489” and his postal address as “219 Milton Street Sydenham Christchurch NZ 8024”[4]. He provided account details for a bank at Sydenham[5] and, in response to the question “Which of the following best describes where you live?” he ticked “In accommodation where you pay no rent”[6]. Mr Christian set out dates for when he had departed from and returned to Australia, indicating that his most recent departure from Australia was on 10 April 2005 and that he had returned to Australia on 22 August 2006[7]. It appears that Mr Christian omitted to record that he had departed Australia again on 19 September 2006.
[3] T4 folio 37.
[4] T4 folio 35.
[5] T4 folio 39.
[6] T4 folio 59.
[7] T4 folio 39.
On 17 August 2012, a Centrelink officer decided to reject Mr Christian’s claim[8].
[8] T5 folio 75.
On 12 December 2012, Mr Christian informed Centrelink that he was still overseas and, at that point in time, he had no intention of bringing his son to Australia[9].
[9] T10 folio 94.
On 1 February 2013 the decision to reject Mr Christian’s claim was affirmed by an Authorised Review Officer[10].
[10] T7.
On 13…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lance Christian and Secretary, Department of Social Services

Details

AGLC: Lance Christian and Secretary, Department of Social Services [2013] AATA 716
Case: [2013] AATA 716
Decision Date

CaseChat Overview and Summary

In the matter of Lance Christian and Secretary, Department of Social Services, the applicant, Lance Christian, sought a review of a decision by the Social Security Appeals Tribunal affirming the rejection of his claim for Family Tax Benefit (FTB) and Baby Bonus in respect of his son, born in New Zealand. The decision under review was affirmed by Mr. S. Webb, a member of the Administrative Appeals Tribunal (AAT). The applicant, an Australian citizen, had been residing in New Zealand for over three years at the time of the decision. He claimed FTB and Baby Bonus for his son, but his claim was rejected by the primary determination, an Authorised Review Officer, and the Social Security Appeals Tribunal.

The primary legal issue was whether Mr. Christian was eligible for FTB and Baby Bonus for his son, born in New Zealand. The applicant argued that he and his son were Australian citizens who live in New Zealand, and that he should not be excluded from obtaining Australian social security benefits while living in New Zealand. However, the Tribunal found that New Zealand was not included as a state under the Australian Constitution, and that the applicant did not meet the residence requirements for FTB eligibility under the A New Tax System (Family Assistance) Act 1999 and the Social Security Act 1991. Furthermore, the three-year maximum period of eligibility for FTB while an individual is overseas had expired.

Based on the evidence provided, the Tribunal concluded that Mr. Christian did not reside in Australia and had not been an Australian resident for many years. The applicant had substantial ties in New Zealand, including his son, and had been residing there for several years. Additionally, the three-year maximum period of eligibility for FTB while an individual is overseas had expired. Therefore, Mr. Christian was not eligible for FTB and Baby Bonus. The decision under review was affirmed.

No further orders were made by the Tribunal.

Orders