Martin and Secretary, Department of Social Services (Social services second review)

Martin and Secretary, Department of Social Services (Social services second review) [2020] AATA 595 (19 March 2020)
Division:GENERAL DIVISION
File Number: 2019/4012
Re:Keith Martin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D R Davies
Date:19 March 2020
Place:Brisbane

The Tribunal affirms the decision under review.
.................................[SGD].....................................
Senior Member D R Davies
CATCHWORDS
SOCIAL SECURITY – age pension – whether applicant satisfied qualification criteria – whether applicant was an Australian resident during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

CASES
Hafza v Director-General of Social Security (1985) 6 FCR 444
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Senior Member D R Davies
19 March 2020
INTRODUCTION
Definitions

In this Decision:
Mr Martin – means the Applicant, Keith Martin.
Secretary – means the Respondent, Secretary, Department of Social Services.
The Act – means the Social Security Act 1991 (Cth).
The Administration Act – means the Social Security (Administration) Act 1999 (Cth).
The Guide – means the Social Security Guide.
AAT1 – means the decision of the Administrative Appeals Tribunal Social Services and Child Support Division dated 5June 2019.
Mr Martin seeks the review of the decision of AAT1 which affirmed the decision of the Department of Human Services that Mr Martin’s application for age pension lodged on 31 July 2018 is rejected because he was not an Australian resident at the time the claim was lodged.[1]
[1] Exhibit 1 Tribunal Documents T2 pp3-8.
BACKGROUND
Mr Martin was born in Australia in 1951. He is now 68 years of age.
On 21 July 1995, when Mr Martin was 43 years of age, he left Australia having lived and worked in Australia until then. He then lived and worked in Samoa. On 14 October 1997, he married Lanuola Euta, a Samoan national[2] and they now have four children.
[2] Exhibit 1 Tribunal Documents T17 p112.
Mr Martin and his wife established in 1997 and have operated since then a business in Samoa called Savaii Surfaris, specialising in surfing holidays based at Aganoa Lodge, Fa’aala Palauli Savai’i, Samoa (Aganoa Lodge), which was also their home. Mr Martin and his wife are directors and shareholders of Savaii Surfaris Limited which owned and operated the business.[3]
[3] Exhibit 1 Tribunal Documents T17 p119 and T21 p132.
On 24 December 2016, Mr Martin returned to Australia. On his Incoming Passenger Card at that time he indicated that he did not intend to live in Australia for the next 12 months.[4]
[4] Exhibit 1 Tribunal Documents T26 p161.
On 14 January 2017, Mr Martin made his first claim for age pension (the First Claim).[5] He indicated in the application form that he was living at a unit in High Street in Sippy Downs, Queensland, Australia (the Sippy Downs unit) and his wife was still living in Samoa.
[5] Exhibit 1 Tribunal Documents T6 pp34-50.
On 4 February 2017, Mr Martin returned to Samoa.
On 10 May 2017, Mr Martin’s First Claim was rejected on the basis that he was not living in Australia on a permanent basis.[6]
[6] Exhibit 1 Tribunal Documents T14 p93.
Mr Martin stated to Centrelink on 27 November 2018 that he had dual citizenship in Samoa and he was informed that this was possible to acquire after being there for more than 10 years.[7]
[7] Exhibit 1 Tribunal Documents T44 p419.
Since 4 November 2016, Mr Martin has rented the Sippy Downs unit for his two daughters to live in while they attended respectively the University of the Sunshine Coast and the Chancellor State College, which is a high school on the Sunshine Coast.[8]
[8] Exhibit 1 Tribunal Documents T26 p157.
On 10 May 2018, Mr Martin entered into a tenancy agreement for the Sippy Downs unit for a period of six months commencing from 5 May 2018.[9] His two daughters continued to live in the unit.
[9] Exhibit 1 Tribunal Documents T15 p95.
In a letter to Centrelink which was received on 27 November 2018, Mr Martin advised that his daughter, Miriama, was seriously injured in a car accident in July 2018, and he returned to Australia on 21 July 2018 to care for her.[10]
[10] Exhibit 1 Tribunal Documents T25 p152.
When he entered Australia on 21 July 2018, Mr Martin indicated on his Incoming Passenger Card that he intended to live in Australia for the next 12 months and that the main reason for his travel was “holiday”.[11]
[11] Exhibit 1 Tribunal Documents T26 p162.
On 31 July 2018, Mr Martin lodged a claim for age pension (the Second Claim) and indicated the following information:[12]
·His address was at the Sippy Downs unit
·He was living in Australia on a permanent basis since 21 July 2018.
·His wife was still living in Samoa and was not living in Australia on a permanent basis.
·He was employed by Megan Grant earning a wage of $1,062.50 per fortnight.
[12] Exhibit 1 Tribunal Documents T17 pp111-115.
Mr Martin and his wife stated in a Centrelink Private Company Form (MOD PC), which they completed on 27 August 2018[13], that they were directors and shareholders of Savaii Surfaris and that this business continued to operate at Aganoa Lodge.
[13] Exhibit 1 Tribunal Documents T21 pp129-146.
On 27 August 2018, Mr Martin’s Second Claim was rejected on the basis that he was not living in Australia on a permanent basis.[14]
[14] Exhibit 1 Tribunal Documents T22 p147.
On 18 October 2018, an Authorised Review Officer (ARO) affirmed the decision to reject Mr Martin’s Second Claim for age pension on the basis that at the time he was not residing in Australia but was a resident of Samoa and was therefore an Australian resident for social security purposes.[15]
[15] Exhibit 1 Tribunal Documents T26 pp154-160.
On 20 March 2019, Mr Martin applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for review of the decision of Centrelink on 27 August 2018 to reject his claim for age pension and the decision of the ARO to affirm that decision on 18 October 2018
On 5 June 2019, AAT1 decided that the decision under review was affirmed, finding that Mr Martin was not an Australian resident as defined at the time of lodging his claim on 31 July 2018 and as a consequence the claim was deemed not to have been made.[16]
[16] Exhibit 1 Tribunal Documents T2 pp3-8.
On 27 February 2019, Mr Martin made a further claim for age pension (the Third Claim)[17] which was granted on 9 July 2019, commencing from 27 February 2019.[18]
[17] Exhibit 1 Tribunal Documents T32 p240.
[18] Exhibit 1 Tribunal Documents T41 p390.
THE ISSUE
Both parties accept that Mr Martin had reached pension age at the time he lodged the Second Claim and that he met the qualification criteria for age pension set out in section 43 of the Act.
The only question to be decided is whether at the relevant time Mr Martin was an Australian resident.
THE RELEVANT PERIOD
If a person is not qualified on the day on which a claim is made, but becomes qualified within the period of 13 weeks after the day on which the claim is made, then the claim is taken to be made on the first day on which the person is qualified for the social security payment: subclause 4(1) of Schedule 2 to the Administration Act.
The relevant period in this instance is therefore from 31 July 2018, when Mr Martin lodged his claim, to 30 October 2018. Evidence of events and circumstances before and after those dates may be relevant to deciding whether or not he was an Australian resident during that period.
LEGISLATIVE PROVISIONS
Subsection 43(1) of the Act provides that a person who has reached pension age is qualified for an age pension if any of the following applies:
(a)The person has 10 years qualifying Australian residence;
(b)The person has a qualifying residence exemption for an age pension;
(c)The person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age; or
(d)If the person reached pension age before 20 March 1997 – the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Subsection 7(5) of the Act provides that a person has 10 years qualifying Australian residence if and only if:
(a)The person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)The person has been an Australian resident during more than one period and:
(i)At least one of those periods is five years or more; and
(ii)The aggregate of those periods exceeds 10 years.
Subject to some exceptions, none of which apply to Mr Martin, subsection 29(1) of the Administration Act provides that a claim for a social security payment may only be made by a person who is:
(a)An Australian resident; and
(b)Is in Australia.
Subsection 7(2) of the Act defines an Australian resident as someone 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 special category visa holder.
Subsection 7(3) of the Act provides that, in deciding whether or not a person is residing in Australia, regard must be had for the following:
(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 within 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.
CONSIDERATION
Residence comprises essentially two elements: physical presence and the intention to treat a place as home, at least for the time being, although not necessarily forever: Hafza v Director-General of Social Security (1985) 6 FCR 444, per Wilcox J at 449-450.
In Hafza (above) Wilcox J said:
“Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place – even involuntarily: see Commissioners of Inland Revenue v Lysaght (1928) AC 234 at 248 and Keil v Keil (1947) VR 383 – a person does not necessarily cease to be a resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place – Levene v Inland Revenue Commissioners [1928] AC 217 at p225 and Judd v Judd (1957) 75 WN (NSW) 147 at p149 – together with an intention to return to that place and an attitude that that place remains “home” – see Norman v Norman (No3) (1969) 16 FLR 231 at 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght (supra) and the reference by Williams J to “a home or homes” – and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and the underlying purposes of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.”
In Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726, [19], Senior Member Toohey stated:
“The considerations in section 7(3) are there to guide the decision-maker in assessing the totality of an applicant’s circumstances; the determination will depend on the facts as found in relation to each individual applicant. No one factor on its own is likely to be determinative.”
Mr Martin appeared and gave evidence at the hearing before this Tribunal. Mr Martin impressed me as a truthful witness who was prepared to acknowledge that some of his answers in the forms which he provided to Centrelink in respect of his age pension claim were not correct. He said that he found the forms difficult. The evidence before the Tribunal is also contained in the Tribunal Documents and the other Exhibits which were admitted.
In his evidence to the Tribunal Mr Martin said that he returned to Australia on 21 July 2018 because his daughter, Miriama, had been seriously injured in a car accident and he wanted to care for her and his other daughter, Melita. His daughters were living in the Sippy Downs unit and had been since 2016 while they attended university and high school respectively. He said that the unit was a three bedroom unit.
In his evidence to the Tribunal, Mr Martin said that at the time he came back to Australia on 21 July 2018 he was not intending to remain permanently in Australia, even though he had indicated on his Incoming Passenger Card of that date[19] that he intended to live in Australia for the next 12 months. He also acknowledged that on that Card he had indicated that his reason for travel was “holiday”.
[19] Exhibit 1 Tribunal Documents T26 p162.
In his letter to Centrelink, received by Centrelink on 28 September 2018,[20] Mr Martin stated:
“You stated that on my Incoming Passenger Card I said it was not my intention to live permanently in Australia, which was true at the time. However, between then and the 24/7/2018, I had been told how severe my daughter’s injuries were and decided I would live here to look after them which is more important to me than the Business. Which is still capable of being looked after without me.”
[20] Exhibit 1 Tribunal Documents T25 p152.
Mr Martin said in his evidence that, over the weeks that followed his return, he realised how seriously his daughter was injured and that he needed to remain in Australia to care for her and for his family.
Mr Martin said that the realisation that he needed to stay in Australia was gradual and it took him some time to take steps to manifest this intention. He said it was a gradual process.
Mr Martin gave evidence that between 31 July 2018 when he made the age pension claim and the end of October 2018, he had not taken any concrete steps about moving to Australia. He said that around Christmas 2018 and January 2019 as a family, they had sat down and decided that they all needed to be together in Australia. Up until then, the move to Australia was being considered, along with how they would manage to continue to operate the business in Samoa. He said that his wife applied for a partner visa to come to Australia in April 2019.
WAS MR MARTIN AN AUSTRALIAN RESIDENT?
In order to determine whether Mr Martin was an Australian resident during the relevant period, it is necessary to have regard to the matters required by subsection 7(3) of the Act.
The nature of accommodation used in Australia
The evidence is that Mr Martin rented the Sippy Downs unit, a three bedroom unit, from 4 November 2016 to provide accommodation for his two daughters who were attending university and high school respectively on the Sunshine Coast, Queensland, Australia. Mr Martin said that he continued to rent the unit in Sippy Downs until 13 June 2019 when they moved to another three bedroom unit in Sippy Downs which he has rented since then. He said that his wife has been living with him there since April 2019 apart from three or four visits she has made back to Samoa which were up to a month at a time. He is currently living in the unit in Sippy Downs with his wife, two daughters and two sons.
There is evidence in the Tribunal Documents that in the period between mid-September 2018 and December 2018 Mr Martin had been looking for other rental accommodation in the Sippy Downs area.[21]
[21] Exhibit 1 Tribunal Documents T27 pp163-187.
Mr Martin said that in Samoa, the family home had been at Aganoa Lodge which was the resort from which the Savaii Surfaris business had been operated. His wife had continued to live there until she moved to Australia in April 2019. He said that when they return to Samoa they stay at Aganoa Lodge.
I consider that during the relevant period, the evidence suggests that the Sippy Downs unit was primarily to provide accommodation for Mr Martin’s two daughters who were attending university and high school on the Sunshine Coast.
The nature and extent of the family relationships in Australia
The evidence is that Mr Martin moved to Samoa in 1995, married his wife in 1997 and they lived in Samoa with their family at Aganoa Lodge since then. Mr Martin’s two daughters were living and studying in Australia since 2016. Mr Martin said that his wife moved to live with him and his two daughters in Australia in April 2019 on a temporary visa and in May 2019 she applied for a permanent visa. Subsequently his two sons have joined the family living in the Sippy Downs unit. However, Mr Martin said that in July 2019 his son, Christopher, was still living at Aganoa Lodge, managing and operating the resort. He said that his wife’s sister and her husband also live at Aganoa Lodge and work in the resort. He said that this wife’s sister is the manager and her husband is the head chef at the resort.
Mr Martin said that he has two sisters living on the Sunshine Coast who have children and grandchildren. He said that he had a daughter from his first marriage who died but she had a child who is his grandchild, who is now 25 years of age and she lives in Sydney.
The evidence is that Mr Martin came to Australia on 21 July 2018 to care for his daughter who had been injured in a car accident. Whilst during the relevant period Mr Martin’s two daughters were living and studying in Australia, at that time, his wife and two sons were still living in Samoa in the family home in Aganoa Lodge.
I consider that during this period, Mr Martin’s family relationships in Samoa were stronger than they were in Australia and that this weighs against a finding that he was an Australian resident.
Nature and extent of employment, business or financial ties with Australia
The evidence is that Mr Martin and his wife have owned and operated the Savaii Surfaris business in Samoa since 1997. Mr Martin said that in 2014 he and his family entered into an agreement with Kolea Capital Management (Kolea) to sell what would be 49% of the Savaii Surfaris business to Pegasus Lodges and Resorts (Pegasus) over a period of time.[22] The arrangement was that Pegasus was to handle the marketing and the revenue from the business and they would pay wages to Mr Martin and his wife and family who worked in the business, managing the onsite operations. Mr Martin said that Pegasus stopped paying them in December 2018 even though they should have continued paying them until December 2020. Subsequently, there has been a dispute with Pegasus in relation to the arrangements.
[22] Exhibit 1 Tribunal Documents T16 p106.
Up until and during the relevant period, Mr Martin was receiving an income of $1,062.50 per fortnight as his wage from the business.[23] His wife was also receiving a similar income from the business. Mr Martin said that this income was usually paid to them by Megan Grant who was the travel agent at Torquay who handled all the bookings for the business.
[23] Exhibit 1 Tribunal Documents T17 p114.
Mr Martin advised Centrelink that he was performing the duties of consultant and bookkeeper for the business in Samoa and was working 40 hours per week in each capacity.[24] Mr Martin gave evidence that he performed the bookkeeping duties and his wife was the consultant and that these weekly hours were split between the two of them.
[24] Exhibit 1 Tribunal Documents T19 p121.

During the relevant period, Mr Martin did not have any employment, business or financial ties in Australia.
Accordingly, I consider that the nature and extent of Mr Martin’s employment, business and financial ties in Australia weighs against his being an Australian resident during the relevant period.
The nature and extent of assets located in Australia
The evidence is that the only assets which Mr Martin had in Australia were a Toyota Regius van which he owned jointly with his wife, valued at $6,000.00[25] and an ANZ bank account which in September 2018 had a balance of $110,919.53.[26] Mr Martin said that this bank account represents the balance of money which he received from his mother’s estate. It appears that the Toyota van was purchased in October 2018.[27]
[25] Exhibit 1 Tribunal Documents T29 p195.
[26] Exhibit 1 Tribunal Documents T36 p287.
[27] Exhibit 1 Tribunal Documents T42 p398.
Mr Martin said that he also had an ANZ bank account in Samoa which is the account which he uses in Samoa.[28] This bank account had a small balance.
[28] Exhibit 1 Tribunal Documents T36 p285.
This evidence suggests that Mr Martin did not have significant assets located in Australia and that this weighs against his being an Australian resident during the relevant period.
The frequency and duration of travel outside Australia
The evidence is that during the period of 23 years from 21 July 1995 to 21 July 2018 he was present in Australia for a total of 648 days which is an average of four weeks per year.[29]
[29] Exhibit 1 Tribunal Documents T26 p157.
Departmental travel records show that in the period between 20 December 2014 and 4 December 2018, Mr Martin travelled to Australia nine times for stays of between 13 and 92 days. The longest of those stays being 92 days was between 21 July 2018 and 21 October 2018. His average stay during this period was 30 days.[30]
[30] Exhibit 1 Tribunal Documents T44 p410.
I consider that this evidence suggests that Mr Martin was not an Australian resident during the relevant period.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
As previously mentioned, the evidence is that Mr Martin came to Australia on 21 July 2018 because his daughter had been seriously injured in a car accident. His evidence is that over the ensuing period he realised that he and his family needed to live in Australia. He said that he did not take any concrete steps to give effect to this intention in the period between 31 July 2018 and the end of October 2018 and that it was following a family discussion between Christmas 2018 and January 2019 that the decision was made for the family to move from Samoa to Australia.
CONCLUSION
Taking all the evidence into consideration, I am not satisfied that during the period from 31 July 2018 to 30 October 2018 Mr Martin was an Australian resident.
I find that Mr Martin was not an Australian resident in accordance with the requirements of the Act when he made his claim for age pension on 31 July 2018, nor during the period of 13 weeks thereafter. In accordance with section 29 of the Administration Act, the claim under review is taken not to have been made.
The application for review is unsuccessful and the decision of AAT1 is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D R Davies

.................................[SGD].......................................
Associate
Dated: 19 March 2020

Date of hearing: 19 February 2020

Applicant: In person

Solicitors for the Respondent: Mr Rick McQuinlan, Department of Human Services

[2020] AATA 595

19 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	19 February 2020
Applicant:	In person
Solicitors for the Respondent:	Mr Rick McQuinlan, Department of Human Services