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 May 2013, this decision was affirmed by the Social Security Appeals Tribunal[11].
[11] T2.
The issue to be decided is whether Mr Christian is eligible for FTB and Baby Bonus in respect of his son.
Mr Christian says that he and his son are citizens of Australia who live in New Zealand. In his submission, he cannot be excluded from obtaining Australian social security while living in New Zealand because New Zealand is included as a State under the Australian Constitution.
This is not correct.
The Commonwealth of Australia Constitution Act 1900 (Brit) (The Constitution Act) refers to the colony of New Zealand in the definition of ‘The States’ at clause 6 –
The States shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State.
The words ‘such of’ and ‘for the time being’ indicate the scope of the definition. Clause 3 of the Constitution Act provides that –
It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor‑General for the Commonwealth.
The proclamation of the Commonwealth of Australia on 17 September 1900 did not include New Zealand.
With regard to Mr Christian’s eligibility for FTB, under s 21(1) of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) it must be established that he has at least one FTB child and that he is an Australian resident. On the present evidence, Mr Christian is not within the terms of s 21(1A) of the Family Assistance Act.
Under s 3(1), the term ‘Australian resident’ has the same meaning as under the Social Security Act 1991 (the Social Security Act). Under s 7(2) and (3) of that Act, several factors must be considered when deciding whether a person ‘resides in Australia’.
Having regard to Subdivision A of Division 1 of Part 3 of the Family Assistance Act, I am satisfied that Mr Christian cannot qualify for FTB as the residence requirements under s 21(1)(b)(i) and 22(2)(c) are not satisfied. At the time of the child’s birth and subsequently, neither the child nor Mr Christian have actually resided in Australia and cannot be deemed to have done so, having regard to the matters set out in s 7(3) of the Social Security Act. Furthermore, as it is not presently established that Mr Christian receives payments under the Australian social security system, the exception under s 22A(1) does not apply.
The uncontested evidence establishes that Mr Christian arrived in and departed from Australia on the following dates[12] -
[12] T11 folio 106.
Arrived in Australia Departed from Australia 20 January 1998 17 February 1998 7 July 2001 16 July 2001 15 December 2003 26 December 2003 23 October 2004 26 October 2004 29 March 2005 10 April 2005 1 November 2005 17 January 2006 22 August 2006 19 September 2006
As can be seen, Mr Christian has visited Australia for short periods only since 20 January 1998. The present evidence does not establish that Mr Christian has employment, business or financial ties with Australia, or any assets in Australia. It can be accepted that he has family members in Australia, including his parents, and that, when visiting Australia, he may use the North Star Caravan Park address cited in the claim form he completed – it appears that this is his parents’ address. That notwithstanding, I am reasonably satisfied that Mr Christian has substantial ties in New Zealand, not least with his son, where he has been residing for many years. Even though Mr Christian recorded that he is in receipt of income support payments[13], and that he has never worked[14], the Social Security Appeals Tribunal recorded that “He is currently starting up a business to produce ‘honey wine’ which he hopes to export to Australia”[15]. The balance of the evidence does not establish that Mr Christian resides in Australia. I am satisfied that he does not and that he has not been an Australian resident for many years.
[13] T4 folio 63.
[14] T4 folio 66.
[15] T2 folio 7.
I note that s 24(4) of the Family Assistance Act applies a three year maximum period of eligibility while an individual is overseas[16] –
Maximum period of eligibility for family tax benefit while individual overseas
(4) If an individual leaves Australia, the maximum period for which the individual can be eligible for family tax benefit during that absence from Australia is the period of 3 years beginning on the first day of that absence.
(5) If:
(a) an individual who has been absent from Australia for more than 13 weeks, but less than 3 years, returns to Australia; and
(b) the individual leaves Australia again less than 13 weeks later;
the individual is taken not to have returned to Australia for the purposes of subsection (4).
[16] Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Rydel [2012] AATA 143 at [29]-[30].
Thus, on this ground, too, Mr Christian is not eligible for FTB.
With regard to Baby Bonus, for Mr Christian to be eligible, essentially, he must have an FTB child and he must be eligible for FTB within 26 weeks following the birth of his child (even if the rate is nil). As he does not have an FTB child within the terms of s 22 and he did not qualify for FTB under s 21 within 26 weeks of 19 January 2012, he is not eligible for Baby Bonus.
It follows that Mr Christian’s claim for FTB and Baby Bonus is not made out and the decision under review must be affirmed.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..................[sgd].....................................................
Associate
Dated 10 October 2013
Date of hearing on the papers 1 October 2013 Date final submissions received 5 September 2013 Applicant Self-represented Advocate for the Respondent Jennifer Maclean Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Residency
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Family Tax Benefit
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Baby Bonus
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Statutory Interpretation
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