Martin Goldsmith and Secretary, Department of Social Services

[2015] AATA 613

Goldsmith and Secretary, Department of Social Services (Social services second review) [2015] AATA 613 (19 August 2015)

Division	GENERAL DIVISION
File Number(s)	2015/0600
Re	Martin Goldsmith
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	19 August 2015
Place	Sydney

The decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

Social Security – Age Pension – Residence requirements – Applicant resides in Norfolk Island – Whether Applicant meets Australian residence requirements for age pension – External Territory – decision affirmed

LEGISLATION

Acts Interpretation Act 1901, s 2B

Social Security Act 1991, ss 7, 23, 43, 1220
Social Security Administration Act 1999, ss 11, 29

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

19 August 2015

1. Mr Goldsmith is a 66 year old, UK born, Australian citizen.  He lived, and worked, in Australia for almost 40 years - between 1972 and May 2010.  Since about March 2010, apart from short, very occasional, return visits to Sydney, he has lived on Norfolk Island.

2. In December 2013, during a 3 or 4 day visit to Sydney (the only one he made that calendar year) Mr Goldsmith applied for an age pension.  In that application he gave his Norfolk Island address in answer to a question asking for “your permanent address”. He also stated that he was not living permanently in Australia.  Centrelink promptly rejected that application - in a 9 December 2013 letter posted to his Norfolk Island address - because Mr Goldsmith was not an Australian resident.  Australian residence is one of the basic general qualification requirements for any “social security payment” - an expression that includes an age pension:  see Social Security Act 1991 (“SSA 1991”). This is because social security payments can only be made in response to a formal claim (i) that complies with the Social Security Administration Act 1999 (the “SSAA 1999”), and (ii) by a person who (subject to some, presently inapplicable, exceptions) is both an Australian resident and present in Australia at the time of their application: see SSAA 1999 ss 11 & 29.

3. Mr Goldsmith returned to Australia in January 2014 and made another age pension application.  In that application he gave his permanent address as one at Mona Vale, New South Wales, and stated that he was living permanently in Australia.

4. The residential history Mr Goldsmith detailed in his January 2014 application did not refer to Norfolk Island as a place where he had lived.  The differences between the December and January applications, relating to his residential history, are set out in the following table.

Period		Country / Place of Residence
Start	End
December 2013 application
23-Oct-48	2-Nov-69	England
16-Dec-69	20-Mar-72	New Zealand
20-Mar-72	5-Nov-12	Australia
5-Nov-12	2-Dec-13	Norfolk Island
2-Dec-13	Australia
January 2014 application
23-Oct-48	6-Oct-68	England
6-Oct-68	12-Mar-72	New Zealand
12-Mar-72	Feb-14	Australia

1. The reason for the differences between the two applications, and specifically the absence of any reference to Norfolk Island in the January 2014 application may relate to Mr Goldsmith’s attempt to characterise Norfolk Island as part of Australia.  But whatever the explanation it is clear that Centrelink was in fact aware of his residence on the Island.  This is apparent from a Centrelink note (dated 28 January 2014).  The note attributes to Mr Goldsmith a statement that he intended to remain in Australia, but would have to return to Norfolk Island to pack up, and finalise his arrangements there.) 

2. Mr Goldsmith returned to Norfolk Island in early February 2014. This resulted in the immediate suspension of his age pension - because of the provisions of SSA 1991 s 1220(1). (That section restricts the “portability” of some social security payments, where a person, whose Australian residence had not been continuous, “leaves Australia” within 2 years after being granted the relevant social security payment.)

3. Mr Goldsmith asked Centrelink to review its February 2014 suspension decision.  He wrote letters supporting his request, on 20 March and 2 April 2014.  In the second of those letters he commented that he had returned to Norfolk Island to “gather up my belongings”.  But a fair reading of the letters conveys that Mr Goldsmith’s strong preference, indeed his actual intention, was to remain living on the island and not to return to Australia.  (His oral evidence in the present proceedings confirmed that view.) 

4. On 9 May 2014 Centrelink cancelled Mr Goldsmith’s age pension.  He wrote two further (identical) letters to Centrelink in June 2014 following up his earlier review request.  Those letters, despite their brevity, also convey that Mr Goldsmith’s preference is to remain living on Norfolk Island. 

5. Despite Mr Goldsmith’s correspondence, Centrelink adhered to its previous decisions.  In its 19 January 2015 decision the Social Security Appeals Tribunal (“SSAT”) came to the same view about Mr Goldsmith’s qualification, and affirmed Centrelink’s suspension and cancellation decisions.

   THE STATUS OF NORFOLK ISLAND

6. The SSA 1991 at least assumes that Norfolk Island is an “external territory” and is not part of Australia. This assumption appears from

   (a) the definition of Australia in SSA 1991 s 23

   (b)     the limited inclusion of two external territories - Christmas Island and Cocos (Keeling) Island - in the general statutory definition of Australia “when used in a geographical sense”:  Acts Interpretation Act 1901 s 2B

   (c)     the definitions of “internal” and “external” territories:  Acts Interpretation Act 1901 s 2B.

7. Norfolk Island is a “territory” for the purposes of the Acts Interpretation Act 1901 - because it was accepted in 1914 as a “territory” for the purposes of s 122 of the Constitution.

8. The inescapable conclusion is that Norfolk Island is not within the geographical area of Australia for the purposes of SSA 1991.

   SPECIAL PROVISION FOR NORFOLK ISLAND RESIDENCE IN THE SSA 1991?

9. Mr Goldsmith’s principal contention is that, despite the formal status of Norfolk Island as an “external territory”, SSA 1991 makes special provision for Norfolk Island residence. He says those special provisions demonstrate his age pension payment qualification.

10. Mr Goldsmith’s contention partly relies on various statutory provisions, in the Australian Citizenship Act 2007 and the Migration Act 1958. Those provisions are not relevant to his age pension qualification - because of the specific statutory definition of “Australia” in SSA 1991 s 23.

11. Mr Goldsmith’s contention otherwise relies on SSA 1991 s 7(4) and s 1220(4). It is convenient to set out their content.

    7  Australian residence definitions

    …

    (4) For the purposes of:

    (a)       Part 2.2 (age pension); and

    (b)       Part 2.3 (disability support pension); and

    (d)       Part 2.7 (bereavement allowance); and

    (e)       Part 2.8 (widow B pension);

    the following apply:

    (f) residence of a claimant in an external Territory other than Norfolk Island is taken to be residence in Australia; and

    (g) residence of a claimant in Norfolk Island is taken not to interrupt the continuity of residence of the claimant in Australia.

    …

    1220  No portability where claim based on short residence

    (1)  If:

    (a)       a person is an Australian resident; and

    (b)        the person ceases to be an Australian resident; and
    (c)       the person again becomes an Australian resident; and

    (d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

    (i)  an age pension; or
    (ii)  a disability support pension; or
    (iii)  a bereavement allowance; and

    (e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and

    (f) financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;

    a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.

    …

    (4)  For the purposes of the application of this section in relation to a particular social security payment, a person who has a qualifying residence exemption for that payment is taken:

    (a)       to be an Australian resident; or

    (b) to reside in an area that is, at the time of residence, an external Territory;

    as the context requires.

12. Mr Goldsmith’s reliance on the terms of SSA 1991 s 7(4)(f)&(g), whilst superficially understandable, is unsound. The two provisions, when read together correctly, distinguish between “residence” and “continuity of residence”. The requirement of Australian “residence” is directly relevant to the general qualification requirement for any claim for social security payment - see paragraph 2 above. The concept of residential “continuity” is relevant to the concept of “qualifying Australian residence” (generally a 10 year “continuous period”) - which is one of the specific age pension qualification criteria - see SSA 1991 ss 7(5), 23(1) & 43(1)(a). They are different concepts. The fact that SSA 1991 s 7(4)(g) declares that “residence of a claimant in Norfolk Island is taken not to interrupt the continuity of residence of the claimant in Australia” cannot be interpreted to mean that residence in Norfolk Island establishes that the person is, or was, an Australian resident. The provision does not mean that at all.

13. Mr Goldsmith’s reliance on SSA 1991 s 1220(4)(b) is also unsound. It is unsound for two reasons. The first is that the provision applies only to a person who has a “qualifying residence exemption” (see the expression I have shaded in the extract set out above). That expression has the meanings defined in SSA 1991 ss 7(6) & 7(6AA). Those provisions apply (broadly speaking) to persons who have (or had) refugee status. They had no relevance to Mr Goldsmith’s situation. He does not have a “qualifying residence exemption”.

14. The second reason why SSA 1991 s 1220(4)(b) is irrelevant to Mr Goldsmith’s situation is that it only deals with the identification of a person’s residential status. It says nothing at all about whether or not a person is present in Australia or “outside Australia”. SSA 1991 s 1220(1)(d) & (e) provide for the suspension of a person’s age pension payment during “any period during which the person is outside Australia”. Consequently, the references in SSA s 1220(4) to where a person is “taken” to reside, have no relevance to the determinative factual question upon which SSA s 1220(1) operates. That question involves a simple enquiry - whether the person is “outside Australia”. The answer to that enquiry is that Mr Goldsmith was.

    MR GOLDSMITH’S RESIDENCE AT THE TIME OF HIS JANUARY 2014 APPLICATION

15. Mr Goldsmith has spent little time in Australia since March 2010.  This is readily apparent from the following tabulated summary of his movements to and from Norfolk Island since 2010.

Period		Number of Days Presence
Start	End	Norfolk Island	Australia
Calendar 2010
22-Mar-10	5-Apr-10	15
6-Apr-10	9-May-10	34
10-May-10	1-Aug-10	84
2-Aug-10	26-Sep-10	56
27-Sep-10	11-Oct-10	15
12-Oct-10	14-Nov-10	34
15-Nov-10	31-Dec-10	47
Total		161	124
Calendar 2011
1-Jan-11	17-Mar-11	76
18-Mar-11	26-Mar-11	9
27-Mar-11	31-Dec-11	280
Total		356	9
Calendar 2012
1-Jan-12	16-Mar-12	76
17-Mar-12	25-Mar-12	9
26-Mar-12	22-Oct-12	211
23-Oct-12	4-Nov-12	13
5-Nov-12	31-Dec-12	57
Total		344	22
Calendar 2013
1-Jan-13	2-Dec-13	336
3-Dec-13	5-Dec-13	3
6-Dec-13	31-Dec-13	26
Total		362	3
Calendar 2014
1-Jan-14	27-Jan-14	27
26-Jan-14	6-Feb-14	12
7-Feb-14	31-Dec-14	328
Total		355	12

1. Mr Goldsmith said he went to live on Norfolk Island, in about 2010, to pursue a domestic relationship - one he thought would be long term.  I infer that he did not then intend to return to live in Australia.  That relationship failed some time in about 2012.  But he continued to live on the Island - hoping, at least for some time, that the relationship failure was only temporary.  His hopes in that regard have not been fulfilled.

2. Mr Goldsmith explained (in the present proceedings) that the Mona Vale address was a property owned by friends.  There was a flat at the rear of property.  He had rented the flat some years before he left to go to Norfolk Island.  He said that he had left some of his belongings there, and paid rent, at least for a few months.  He paid no rent after some time in 2011.

3. The information Mr Goldsmith gave about the Mona Vale flat differs somewhat from the explanation the SSAT attributed to Mr Goldsmith in its reasons for decision. I do not think that anything would be gained by either an attempt to reconcile the (apparently) different explanations, or a detailed discussion of the various factual considerations relevant to the determination of a person’s place of residence - see SSA 1991 s 7(3). The circumstances of Mr Goldsmith’s departure from Australia in 2010, the details in his December 2013 application, and the letters he later wrote to Centrelink in 2014, all convey that his intention and preference has, for some years, been to live permanently on Norfolk Island. That view was confirmed in the brief evidence Mr Goldsmith gave in the present proceedings. He has no intention to return to Australia, and I do not accept that he had any real intention to so do even when he submitted his January 2014 application. I am quite satisfied that Mr Goldsmith is not an Australia resident, and was not such a resident at any time in January 2014.

   DECISION

4. Mr Goldsmith was not an Australian resident at the time of his January 2014 age pension application.   Even if he was a resident at that time, he left Australia in February 2014 and, by the time of the cancellation decision in May 2014 he was not then an Australian resident.  For all these reasons, both the suspension of his age pension, and its subsequent cancellation were correct.

5. The decisions under review are affirmed.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated 19 August 2015

Date(s) of hearing	15 July 2015
Advocate for the Applicant	Mr N Boler
Solicitor for the Respondent	Ms B Salaji, Department of Human Services