Loose and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 570

Loose and Repatriation Commission (Veterans’ entitlements) [2015] AATA 570 (6 August 2015)

Division	VETERANS’ APPEALS DIVISION
File Number	2014/6274
Re	Trevor Loose
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	6 August 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – service pension – must be Australian resident at time of claim – must be in Australia on that date – applicant Australian citizen – not satisfied applicant Australian resident – more likely return to Australia was temporary – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), ss 5G, 36H, 58M

REASONS FOR DECISION

Senior Member Bernard J McCabe

6 August 2015

Introduction

1. Trevor Loose, a veteran, applied for a service pension on 21 March 2003. His claim was accepted and payments commenced. But the Repatriation Commission now says Mr Loose did not qualify for the pension when he applied for it because he was not, at the time, an Australian resident. The Commission says Mr Loose was a resident of Brazil on the date of his application, and continued to live in that country without informing the Commission of his residency. The pension was cancelled on 8 July 2013 with effect from 21 March 2003. Mr Loose says the pension should be restored.

   The issue

2. Section 36 of the Veterans’ Entitlements Act 1986 (Cth) sets out the general requirements relating to the grant of an age service pension. Section 36H imposes an additional requirement in relation to residency. That section says a claimant must be an Australian resident at the time of his or her claim, and must actually be present in Australia on that date. (There are exceptions to this rule in s 36H(2), but they do not apply here.) The meaning of the expression Australian resident is clarified in s 5G(1AA). That subsection provides:

   (1AA) An Australian resident is a person who:

   (a) resides in Australia; and

   (b) is one of the following:

   (i)     an Australian citizen; …

3. Mr Loose was an Australian citizen at all material times. The real issue in this case is whether he could be said to reside in Australia when he lodged the claim for a pension on 21 March 2003. I am not satisfied he was a resident, for reasons I will explain. That means the decision under review must be affirmed.

   Was Mr Loose a resident of Australia in March 2003?

4. Mr Loose enlisted in the Royal Australian Navy in 1960. He served in Vietnamese waters in 1967 and 1969 (Exhibit 1, page 20, and Exhibit 3, page 2). He was discharged in 1972 and began working on oil rigs at various locations around the world. He said in Exhibit 3 (page 3) that the work was well-paid but demanding because he was away from his family. He was divorced from his wife in 1980. During that year, he started working for the Brazilian national oil company, Petrobras. The job did not continue for long, however, and he found himself working for an enterprise that ran nightclubs and casinos in Brazil. He said in his written statement (Exhibit 3, page 5) that the work dried up in 2001 because the authorities shut down the venues operated by his employer. In his oral evidence, he said he returned to Australia during 2001 with the intention of moving in with his son and getting work here. While he was in this country, he lodged an application with the Department of Veterans’ Affairs to determine qualifying service. But he said he was unable to find work and returned to Brazil after four months when he received a call from his former employee who was re-entering the casino business.

5. The applicant said in his oral evidence that he entered into a relationship with his partner, Anna, before coming to Australia in 2001. The relationship commenced in 1988; the couple had lived together off and on since then. Mr Loose said in his evidence that he knew he could not afford to bring Anna to Australia to live with him 2001. If that is so, one would expect to see evidence that the relationship concluded when he departed from Brazil – supposedly permanently. But he moved back in with Anna and other members of her family when he returned to Brazil after a few months. The evidence suggesting he readily resumed his former life is consistent with the relationship persisting while the applicant was temporarily visiting Australia.

6. Mr Loose said in his oral evidence that he made a fresh decision to move back to Australia in 2003. He said he planned to reside with his son at first instance then bring Anna to live with him once he started to earn his income. He agreed he did not make extensive plans before he came here: he did not have any assets, financial resources or clear plans as to how the couple would survive, other than as guests of his son. He arrived on 18 March and almost immediately lodged his claim for the pension. He agreed he did not make any enquiries with the Department of Immigration as to whether it would be possible for Anna to immigrate here. He said he assumed he could bring her to Australia on a tourist visa once he became established. He also failed to mention the fact of his relationship to the Department of Veterans’ Affairs. In his age service pension claim form, which is reproduced in Exhibit 1 (page 27ff), he said he was divorced in 1980 but did not discuss his new relationship with Anna. He agreed he received medical treatment that was not readily available to him in Brazil while he was here in 2003 but insisted that was not the motivation for his visit.

7. Some aspects of this story are difficult to reconcile. Mr Loose’s failure to sort out Anna’s visa arrangements in advance of his return in 2003 is not consistent with his stated intention of bringing her to live in this country. If he genuinely intended Anna should join him here, one would have expected him to at least investigate whether it would be permitted in advance of his arrival in Australia, or at some point during the early part of his stay. His airy suggestion that he thought his partner could enter and remain on a tourist visa is not persuasive. His failure to disclose the relationship with Anna in the pension claim form also raises questions. If she was to join him in Australia and benefit from the pension, one would have expected him to mention that fact when asked about the existence of a relationship in the claim form. It was certainly relevant information which may have affected his eligibility.

8. As it happens, Mr Loose said he decided to return to Brazil on 16 June 2003 after Anna, his partner, had indicated she would not move to Australia unless her aged mother could also join the couple. Mr Loose said in his oral evidence that he was not aware this would be an issue before his departure from Brazil but said his partner thereafter became implacably opposed to leaving Brazil without her mother. He said he had no choice but to return to Brazil on 16 June 2003. During the course of his evidence, he suggested at one point that he thought he would only be in Brazil until he convinced Anna that she should come to Australia without her mother, but the tenor of his answers suggested he regarded himself as being obliged to accede to Anna’s wishes to remain in Brazil. In any event, he resumed his life there with Anna.

9. I did not have the opportunity to hear Anna’s perspective on what occurred, but I have some difficulty with the applicant’s story. Mr Loose suggested Anna’s demand that her mother accompany her was unexpected, but it seems unlikely all of that would not have been discussed between the couple before Mr Loose made the momentous decision to return to Australia in March 2003.

10. It follows there are, at a minimum, questions over whether Mr Loose genuinely intended to remain in Australia after he returned in March 2003. But the Commission says there are other matters which suggest he had not established the links one would expect if he were to be classified as a resident of this country. The Commission points out Mr Loose’s living arrangements while he was in Australia were inherently uncertain: he said he was living with his son but it is unclear whether that was likely to be viable over time. He did not have a clear plan for his future accommodation, including accommodation for his wife. He did not have an Australian driver’s licence and made no attempt to get one while he was here between May and June 2003. He had an old bank account but no other financial assets upon which he could rely. He had no employment ties here. He had a relationship with his son, with whom he stayed, but his familial ties here were not strong – whereas he had strong ties to Brazil, where he had lived for many years.

11. The Commission is right about all that. I am not satisfied Mr Loose was a resident of Australia in March 2003 when he made his claim for a service pension. It is more likely that he returned temporarily to this country from his place of residence for the purposes of obtaining medical treatment and applying for the pension. When he left in June 2003, he did not clearly announce his departure so that the Commission was not made aware of his change in circumstances.

12. I would add that Mr Loose would run up against the restriction in s 58M if I accepted he was a resident when he made his application. That section limits the portability of pensions where a former resident has recently re-established himself or herself and made a claim for the age service pension. While s 58M(2) permits the Commission to make a determination excepting the veteran from the limitation, that determination was not made in this case. Moreover, a determination almost certainly could not have been made at the time: taken at its highest, Mr Loose’s case is that he was forced to return to Brazil because his partner changed her mind about leaving her own family behind. That eventuality was not unforeseeable.

    Conclusion

13. I am not satisfied the applicant was an Australian resident within the meaning of s 5G, which means he cannot satisfy the requirements of s 36H. The decision under review must therefore be affirmed.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 6 August 2015

Date of hearing	19 May 2014
Applicant	In person
Advocate for the Respondent	Mr B Williams, Department of Veterans’ Affairs