Mark Bates and Secretary, Department of Social Services
[2014] AATA 436
•3 July 2014
[2014] AATA 436
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4135
Re
Mark Bates
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Dean Letcher QC, Senior Member
Date 3 July 2014 Place Sydney The decision under review is affirmed.
............................[SGD]............................................
Mr Dean Letcher QC, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – suspension and cancellation of payments –whether Applicant resident of Australia at relevant time – relevant considerations – partner and daughter in Indonesia – short periods in Australia only – Tribunal not satisfied on balance of all considerations that applicant resided in Australia at relevant time – decision under review affirmed
LEGISLATION
Social Security Act 1991; ss 7(2), 7(3), 80, 94(1)(ea)
CASES
Ray and Secretary, Department of Social Services [2014] AATA 227
Killick and Secretary , Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
REASONS FOR DECISION
Mr Dean Letcher QC, Senior Member
INTRODUCTION
The applicant seeks review of a decision of the Social Security Appeals Tribunal (‘SSAT’) dated 8 July 2013 affirming a Centrelink decision to suspend and cancel his Disability Support Pension (‘DSP’).The applicant had received DSP from 19 February 2010 but Centrelink determined that he was not an “Australian resident” and suspended then cancelled his DSP, effective 7 March 2013, under section 80 of the Social Security Act 1991(‘the Act’).
From shortly after the initial grant of DSP the applicant spent much of his time in Bali, Indonesia, returning to Australia only for short periods. On 25 January 2012, 28 May 2012, 24 January 2013 and 6 March 2013 he arrived at and departed from Darwin on the same day.
This pattern was an attempt to comply with the applicant’s understanding of the provisions which had governed his entitlement to receipt of DSP. However, on 1 July 2011 the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 came into effect and inserted section 94(1)(ea) into the Act thus creating an additional criterion for DSP entitlement:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
The issue for this Tribunal to determine is whether at 7 March 2013 the applicant was an “Australian resident” as defined by section 7(2) of the Act. There have been no determinations made that would bring the applicant within subsections (ia) or (ii).
Section 7(2) provides as follows:
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.
The applicant satisfies the second arm of this requirement as he is an Australian citizen. However in order to fully satisfy the definition of ‘Australia resident’ contained in this provision he must also be a person who “resides in Australia”. In this regard, section 7(3) of the Act provides:
(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(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.
EVIDENCE BEFORE THE TRIBUNAL
The applicant gave evidence by mobile phone from the village in eastern Bali where he lives with his Indonesian partner, their daughter and his partner’s family. He was born on 17 September 1955 and lived almost wholly in Australia until 2010. In early 2010 he separated from his wife and travelled to Bali in about May 2010.
The relevant considerations in section 7(3) are addressed in turn.
Nature of accommodation in Australia
When the applicant has returned to Australia, he has remained mostly in Darwin on one-day trips. On some occasions he stayed at his mother’s house, which is occupied by his daughter and son-in-law, or he stayed with friends at Banora Point near his estranged wife and children. He has household belongings stored at his mother’s house. She has dementia and is in a nursing home.
Nature and extent of family relationships in Australia
The applicant’s estranged wife and five adult children live in Australia. When he comes to Australia to stay for longer than a few days and travels to the Gold Coast, several of his children come to see him after they finish work. Two of his children live with his estranged wife and the others live in the general area. They have not visited him in Bali. He says that since 2010 he has not spent Christmas with his family in Australia. He visits his mother. He is in regular SMS contact with his estranged wife and daughter but there is no mail or email contact.
Nature and extent of employment, business or financial ties with Australia
The applicant is not employed. He has a bank account in Australia. He says that he has equity of some $90,000 in the mortgaged house he jointly owns with his estranged wife. He intends to get a divorce and says there will be a division of property but nothing has been done about this to date. He does not pay the mortgage on the house.
The applicant has an unregistered 1999 car garaged at his mother’s house. He says it is owned jointly and his interest is worth $2,500. He also has household goods stored at his mother’s but no other financial ties with Australia.
Nature and extent of assets in Australia
Except as set out above, the applicant has no other assets in Australia.
Frequency and duration of travel outside Australia
It is a feature of the applicant’s history that the great proportion of his time since the grant of his DSP in 2010 has been spent in Bali. He returned for periods in 2010 and 2011. In 2012 he made day trips to Australia in January, March and May, and stayed 11 days in August and 7 days in November. In 2013 he made day trips in January and March prior to the cancellation of his DSP.
Other matters relevant to determining intention to remain permanently in Australia
Throughout the hearing the applicant maintained that he now wishes to bring his partner and their daughter to Australia to live. The applicant’s partner did not possess a passport prior to the cancellation of the applicant’s DSP in March 2013 and as at the date of the hearing the applicant had not applied for any visa for his partner.
In an email to the Tribunal on 28 January 2014, the applicant wrote:
“….The DSP being my only income having been a resident of the Gold Coast in Qld it is very difficult to live there under the funds provided by the DSP. I decided to try and live elsewhere other than where I was at the time…”.
While he went on to say “I have since realised Bali has to[sic] many problems and they are getting worse”, it is the applicant’s intent as at 7 March 2013 which is relevant to the determination of this issue.
DISCUSSION
Having heard evidence from the applicant and considered the answers he provided to the respondent’s Statement of Facts and Contentions via email, I am left with the strong impression that until the suspension of his DSP he intended to remain in Bali where he could live comfortably on the pension. He was at pains to point out that the DSP provided a very good living in Indonesia where wages (if any work were available) were very low.
The SSAT noted that:
“He agreed that he has returned to Australia only to comply with the portability provisions in existence from time to time….It seemed to the Tribunal that he was not really arguing that he met the definition of Australian resident but rather he was aggrieved that he had not been forewarned of the relevant requirements….”.
I have also formed this view. In his evidence the applicant stated:
“I think they should have given me some sort of notification….I was ignorant of the laws…”
However it is a balanced considered of the requirements of s 7(3) of the Act, discussed above, which are determinative in relation to this application.
In Ray and Secretary, Department of Social Services[2014] AATA 227 the respondent conceded that, in the particular circumstances, most of the criteria used to determine whether the applicant resided in Australia were equivocal. The Tribunal concurred that this was a case where the outcome was “finely balanced” and held that although the applicant spent extensive periods in Indonesia, he was an Australian resident as he was an Australian citizen with extensive family in Australia, a history of spending many months here caring for his mother and a large amount of possessions stored here. In Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 a citizen who had spent only eight per cent of the period since 2005 in Australia and who had purchased property in France was found not to be a resident.
Each case will turn on its merits but if Ray was “finely balanced”, I regard the facts of the present case as weighing heavily against a finding of residence.
CONCLUSION
The applicant may have regrets now but in my view as at 7 March 2013 he was not residing in Australia and should not be classified as an Australian resident. He had established a new relationship with his partner and his daughter in an area where he could live, he believed, much better than in Australia and he believed that this state of affairs would continue. The applicant had unresolved financial affairs from his marriage but was not taking active steps to resolve them. Equally, he had taken no steps to obtain a passport or entry visa for his partner, he returned to Australia for token periods only and had no settled place at which he could be said to live here.
DECISION
The decision under review is affirmed.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher QC, Senior Member .............................[SGD]...........................................
Associate
Dated 3 July 2014
Date(s) of hearing 1 and 11 April 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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