Lee and Sec, Dept Families, Housing, Community Services & Indigenous Affairs

[2011] AATA 562

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 562

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4820

GENERAL ADMINISTRATIVE DIVISION		)
Re		Tracey Min Lee

Applicant

And Sec, Dept Families, Housing, Community Services & Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date16 August 2011

PlaceSydney

Decision The Decision under Review is AFFIRMED.

...................[sgd].....................

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY:  Alleged overpayment of Baby Bonus, Family Tax Benefit, Parenting Payment.  Was Applicant an Australian resident at time claim for payments made and when she received payments.  Decision to recover overpayment affirmed.

LEGISLATION

Social Security Act 1991, Sections 7, 500

A New Tax System (Family Assistance) Act 1999, Sections 21, 36

CASES

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241

Hafza v Direction-General of Social Security (1985) 6 FCR 444

REASONS FOR DECISION

xx August 2011 M D Allen, Senior Member            

1.By Application made 8 November 2010 the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”) affirming a prior determination to raise and recover a debt in the sum of $13,642.67 being the overpayment of Parenting Payment, Family Tax Benefit (“FTB”) and the Baby Bonus paid to the Applicant.

2.The payment of the abovementioned Social Security benefits followed the birth of the Applicant’s son in September 2008.  Following the birth of her son the Applicant applied for and was granted the following Social Security payments:

(a)FTB on and from 22 September 2008;

(b)Baby Bonus in the sum of $5,000.00 on 29 October 2008; and

(c)Parenting Payment with effect from 30 October 2008.

3.On 12 November 2008 the Applicant and her son departed Australia for China.  At that time she was accompanied by the child’s father, Mr Tao Li, a Chinese national.  The Applicant and her son then returned to Australia for the period 13 January 2010 to 15 February 2010.

4.The Applicant’s Parenting Payment was cancelled on 11 February 2009 but upon returning to Australia on 13 January 2010 the Applicant, on 14 January 2010, made a further claim for Parenting Payment which was granted with effect from that date.

5.On 12 April 2010, the Respondent raised the following debts against the Applicant, namely:

-Parenting payment debt in the amount of $2,393.41 for the period 30 October 2008 to 11 February 2009;

-Parenting Payment debt in the amount of $940.58 for the period 14 January 2010 to 14 February 2010;

-FTB debt in the amount of $3,985.22 for the period 22 September 2008 to 30 June 2009;

-FTB debt in the amount of $1,305.46 for the period 1 July 2009 to 7 May 2010; and

-Baby Bonus debt in the amount of $5,000.00 in respect of a payment made to the Applicant on 29 October 2008.

In raising the said debts, the Respondent maintained that the Applicant was not entitled to the sums paid as she was not, at all relevant times, an Australian resident.

6.The qualifications for the Parenting Payment are set out at Section 500 of the Social Security Act 1991 (“SSA”). Paragraph 500(1)(b) SSA requires that the recipient of Parenting Payment must be “an Australian resident…”

7.Section 21 of the A New Tax System (Family Assistance) Act 1999 requires vide subparagraph 21(1)(b)(i) that to be eligible for FTB a person must be “..an Australian resident”.

8.Likewise, section 36 of the Family Assistance Act 1999 (“FAA”) requires that a recipient of a Baby Bonus must be eligible for FTB. As stated in paragraph 7 above, section 21 FAA requires that to be paid FTB a person must be an Australian resident.

9.The issue in this matter is therefore whether at any of the relevant times the Applicant was in fact an Australian resident.

10.Section 3 FFA provides that the term “Australian resident” in that Act has the same meaning as in the SSA.

11.Section 7 SSA states inter alia:

“(1) …

(2)  An Australian resident is a person who:

(a)  resides in Australia; and

(b)  is one of the following:

(i)  an Australian citizen;

…”

12.In these proceedings there was no dispute that the Applicant was granted Australian citizenship on 28 August 1997.

13.Subsection 7(2) SSA states:

“(2)  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.

Note: For holder and permanent visa see subsection (1).

(2A)  A person is a protected SCV holder if:

(a)  the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or

(b)  the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.

(2B)  A person is a protected SCV holder if the person:

(a)  was residing in Australia on 26 February 2001; and

(b)  was temporarily absent from Australia on 26 February 2001; and

(c)  was a special category visa holder immediately before the beginning of the temporary absence; and

(d)  was receiving a social security payment on 26 February 2001; and

(e)  returned to Australia before the later of the following:

(i)  the end of the period of 26 weeks beginning on 26 February 2001;

(ii)  if the Secretary extended the person's portability period for the payment under section 1218C--the end of the extended period.

(2C)  A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

(a)  the time is during the period of 3 years beginning on 26 February 2001; or

(b)   the time is after the end of that period, and either:

(i)  a determination under subsection (2E) is in force in respect of the person; or

(ii)  the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

(2D)  A person who, on 26 February 2001:

(a)  was residing in Australia; and

(b)  was temporarily absent from Australia; and

(c)  was not receiving a social security payment;

is a protected SCV holder at a particular time if:

(d)  the time is during the period of 12 months beginning on 26 February 2001; or

(e)  the time is after the end of that period, and either:

(i)  at that time, a determination under subsection (2E) is in force in respect of the person; or

(ii)  the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

(2E)  A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

(a)  the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or

(b)  the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

(2F)  If a person makes an application under subsection (2E), the Secretary must make the determination if:

(a)  the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and

(b)  the application was made within whichever of the following periods is applicable:

(i)  if paragraph (2E)(a) applies to the person--the period of 12 months beginning on 26 February 2001;

(ii)  if paragraph (2E)(b) applies to the person--the period of 3 years beginning on 26 February 2001.

The Secretary must give a copy of the determination to the person.

(2G)  The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection (2B). If the Secretary is required to make such a determination:

(a)  the determination must state that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; and

(b)  the determination must be made within the period of 6 months of the person's return to Australia; and

(c)  a copy of the determination must be given to the person.”

14.The specific matters to which the Tribunal must have regard as stated in Ss7(2)SSA do not, in my opinion, detract from the indicia stated by the courts as to what constitutes “residence” or “being resident” at any particular place.

15.As was pointed out by Willams J in Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249:

“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 place of abode:”

16.Further, as was pointed out by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449, once a person has established a home in a particular place, even involuntary, the test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that that place remains “home”.

17.However, as His Honour pointed out at page 450 where a person is not physically present, a change on intention may be decisive of the question of whether residence in a particular place has been maintained.

18.The evidence is that the Applicant was born in Shanghai in 1971 and came to Australia on 4 February 1991 to undertake tertiary studies.  She was granted Australian citizenship on 5 August 1996 and her mother and brother joined her in Australia in 1997.

19.Following completion of her tertiary studies the Applicant was employed in Australia but in May 2000, whilst employed by Merrill Lynch, she transferred to that firms New York office.  She remained in the United States of America (“USA”) until 2006.  Whilst resident in the USA she undertook a Masters’ Degree in Business Administration (“MBA”).

20.At the beginning of 2006 the Applicant moved from New York to Hong Kong working in the financial sector.  During this time she also renewed acquaintance with a friend from her time in High School in Shanghai, Mr Tao Li.  As a result of her relationship with Mr Li the Applicant became pregnant.

21.Although the Applicant was entitled to Maternity Leave by her employer in Hong Kong, in March 2008 she resigned from her employment.  Upon resignation from her employment she did not immediately return to Australia but spent some time with her partner Mr Li in Shanghai.  She returned to Australia in August 2008 together with Mr Li who entered Australia on a visitor’s visa.

22.The Applicant stated that it had always been her intention to give birth to her child in Australia and to raise him here, particularly as it was in Australia that she had her parents for support.

23.In November 2008 when Mr Li’s visa expired the Applicant travelled with him to Shanghai as they both wished to show their child to his paternal grandparents.  It was not her intention, the Applicant claimed, to remain in China but rather to be away for a period of one month then return to Australia and her family.

24.Whilst in China, the Applicant’s child developed a severe lung disease.  Exhibit A9 is a translated medical certificate which states that the child had pneumonia and emphysema(?) and was unfit for travel.

25.As neither the Applicant nor her child was a Chinese citizen the Applicant and her partner had to pay the cost of their child’s hospital and medical treatment.  The Applicant stated that $10,000.00 was paid out in medical expenses from their savings.

26.It was not until September 2010 that the Applicant’s child was judged by his doctors as fit enough to travel.  During this period the Applicant and her child had been staying with Mr Li and his parents who had a three bedroom unit in Shanghai.  As Mr Li was unemployed, food and accommodation were provided by Mr Li’s parents.

27.Although the Applicant’s son had been cleared to travel in September 2009 it was not until 12 January 2010 that the Applicant and her son commenced their return to Australia arriving on 13 January 2010.  The Applicant then returned to China on 15 February 2010 allegedly for the purpose of celebrating Chinese New Year with Mr Li and his parents.

28.In evidence there were some discrepancies between the Applicant and Mr Li regarding the reasons for returning to China in February 2010.  In her statement, the Applicant says it was at the request of Mr Li’s parents, but Mr Li in evidence denied his parents had requested that the Applicant and her child visit at that time.

29.Although ostensibly the Applicant visited China in February 2010 for the Chinese New Year, it was not until September 2010 that she and her son returned to Australia.

30.When the Applicant returned to Australia in August 2008 she flew from Shanghai and had booked a return ticked to China.  The Applicant said that she did this as she had intended to return to China for one month but then with her child becoming ill everything that happened after that was out of her control.

31.Although the Applicant said that she intended to remain in China for only one month in late 2008, as pointed out by the Respondent when she left Australia in November 2008 she did not hold a return ticket to Australia.

32.When returning to Australia in August 2008 the Applicant completed an incoming passenger card.  On that card she stated that she did not intend to stay in Australia for the next twelve months.  When questioned by the SSAT regarding this she purportedly said that she made “a blatant and careless human error”.  In this Tribunal she said that as she knew she would be returning to China for one month she answered the question to the best of her ability as she was confused.

33.On 10 February 2009 a Centrelink Officer telephoned the Applicant in China. A record of that conversation is at document T43 page 202 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.  Being notes made at the time I accept the accuracy of those notes where the notes differ from the Applicant’s version of events.

34.According to the notes of the conversation, the Applicant advised that whilst she was originally returning to Australia in December she had decided to stay on until March 2009.  The Applicant was then informed that she would be regarded as an Australian resided due to her assets and family in Australia but that if she did not return to Australia in March 2009 that finding would be reviewed.

35.At no time during the conversation with the Centrelink officer on 10 February 2009 did the Applicant inform that officer that her son was seriously ill and unable to travel.  I would have thought that if the Applicant was as concerned regarding her son’s condition and inability to travel as she professed to be she would have stated to the Centrelink officer that was the reason she was unable to return to Australia.

36.In evidence before me the Applicant when questioned regarding this omission said that it was her intention to return in March.  I cannot accept this.  She was, according to her own evidence, uncertain at that time when her son would be fit to travel.

37.Whereas I accept that the Applicant may have been under some pressure living in a three bedroom unit with her partner’s parents and with a sick child, she is a very intelligent woman with an MBA.  She must have appreciated the importance of stating that her child was too ill to travel.  Instead she stated she intended to return in March.

38.I also found the evidence of Mr Li as to his future intentions to be vague and inconsistent.  Although the Applicant has referred to Mr Li intending to migrate to Australia so far he has taken no effective steps to initiate that process and I am satisfied, after hearing his evidence, that in truth Mr Li has no intention of moving to Australia either now or in the future.

39.Prior to going to the USA, the Applicant was residing in a unit at St Georges Parade Hurstville.  When her mother, brother and later her father came to Australia they also resided in that unit.  After the Applicant left for the USA her parents maintained the lease of the unit until 2005 when the landlord terminated the lease.  They then moved to a unit in Bellevue Parade, Hurstville, but continued to store the Applicant’s possessions.

40.When the Applicant returned to Australia to give birth she and her partner, and later their son, resided with the Applicant’s parents in the Bellevue Parade unit.  Currently the Applicant is residing with her son and her mother in a social housing unit at Kogarah.

41.I find that the Applicant, in the period May 2002 to August 2008 was not an Australian resident.  She resided, in the sense that that is where she had her dwelling and worked, firstly in the USA and then in Hong Kong.  She was not on a temporary assignment to the New York office of Merrill Lynch but accepted a transfer to that office.  She then undertook study in the USA with no fixed intention to return to Australia at any particularly time, and then obtained permanent employment in Hong Kong and only formulated the intention of returning to Australia when she discovered that she was pregnant.

42.I do not accept that at the time of the birth of the Applicant’s son, the Applicant had the intention to reside in Australia, albeit with the intention of undertaking a short trip to China.

43.If, as stated, the Applicant had intended to visit China for one month only in November 2008 she should have returned to Australia on or about 12 December 2008.  Although her son had been admitted to hospital on 10 December there is no evidence that the Applicant had made any arrangements to return to Australia in or around that time.

44.Whereas the interpretation of the hospital records of Shanghai Childrens Hospital state that at the time of discharge, namely 12/12/2008 the Applicant’s child should not travel for one year I am doubtful as to the accuracy of this translation.  “Not suitable for long journey in one year” is a curiously definite statement for a medical practitioner to make.  I find I am more persuaded by the certificate issued by Dr Huang, albeit in March 2011, which stated:  “His condition did not allow him to travel long distances by air at the time” (Tribunal’s emphasis), which to my mind is more consistent with a physician’s cautious approach and ongoing assessment of a patient.

45.At the time the Applicant went to China in November 2008 her partner did not have a visa to reside in Australia.  She and her partner had both food and accommodation provided to them in China by her partner’s parents.  Even if one accepts that their child was for a period unable to travel, even on the Applicant’s own evidence she delayed her return until well after the child was regarded as fit to travel, namely until January 2010.

46.The Applicant’s later sojourn in China is similar.  Although the Applicant says she was requested by Mr Li’s parents to go to China in order to celebrate the Chinese New Year, she remained in China from 15 February 2010 to September 2010.  Mr Li on the other hand denies his parents requested the Applicant visit for the Chinese New Year.

47.I am satisfied that at the time the Applicant gave birth to her son she had no real intention to remain in Australia.  She certainly had the intention that her son, by reason of his birth, would be an Australian citizen and she no doubt knew that benefits would accrue to her having given birth in Australia.

48.At the time the Applicant entered Australia she had no real estate or motor vehicles.  Neither had she employment prospects.  Her parents and brother were in Australia but it would seem they also divide their time between Australia and China.

49.The Applicant arrived in Australia in August 2008 with a return ticket to China.  Her incoming passenger card declared her intention of not remaining in Australia for twelve months.

50.As submitted by the Respondent, the Applicant has a very real purpose in being in China, namely being in a marriage-like relationship with the father of her child.  No doubt the presence of her mother was a powerful inducement to undertake her accouchement in Australia, but otherwise her intentions were to reside with her partner.

51.The Applicant is currently in Australia and as I understand matters is in receipt of social security benefits.  There is therefore no requirement to consider write-off in this matter.

52.The debt did not arise though an administrative error and there are no special circumstances which could persuade me that the debt or any part thereof should be waived.

53.As the Applicant was not an Australian resident at the relevant time the decision under review is affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .............[sgd].............................
  K. Lynch, Associate

Dates of Hearing         27 July 2011
Date of Decision         16 August 2011
Representative for the Applicant               Mr S Hodges
Representative for the Respondent          Centrelink Legal Services