Martin Reeves and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 934

[2012] AATA 934  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3407
Re	Martin Reeves
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	4 December 2012
Date of written reasons	11 January 2013
Place	Brisbane (heard in Darwin)

The decision under review is set aside and a decision substituted that the applicant's disability support pension not be cancelled.

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Deputy President P E Hack SC

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and entitlements – disability support pension – whether Australian resident – applicant living in Australia and the Philippines – no permanent accommodation in either country – spouse ordinarily resident in the Philippines – few assets in either country – applicant’s intention to settle in Australia when spouse able to do so – decision under review set aside.

LEGISLATION

Social Security Act 1991 (Cth) ss 7(2), 7(3), 94(1)(ea)

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth)

REASONS FOR DECISION

Deputy President P E Hack SC

11 January 2013

1. For many years recipients of disability support pension could continue to receive that pension even though effectively living overseas, so long as they returned to Australia, even briefly, every 13 weeks.  But with effect from 1 July 2011, and as a consequence of amendments made to the Social Security Act 1991 (Cth) by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth), one of the qualifications for disability support became that a person was required to remain an Australian resident.

2. The applicant, Mr Martin Reeves, has been in receipt of disability support pension for some years.  On 2 March 2012 Centrelink determined to cancel his disability support pension on the basis that he was not residing in Australia.  That decision, although made, has not been implemented because Centrelink agreed to stay the implementation of the decision pending review and subsequently this Tribunal made an order staying the implementation of the decision.  The decision was affirmed on internal review and by the Social Security Appeals Tribunal on 25 July 2012.  Mr Reeves now seeks a review of the cancellation decision.

3. Section 94 of the Social Security Act 1991 (Cth) sets out the criteria for qualification for disability support pension. A person is qualified for disability support pension if the person has (a) physical, intellectual or psychiatric impairments of sufficient severity; (b) a continuing inability to work; (c) has turned 16; (d) relevantly, was an Australian resident when the person first had a continuing inability to work and (e), either the person is an Australian resident or is absent from Australia in certain prescribed circumstances. There being no suggestion that any of those prescribed circumstances exist, and it being accepted that Mr Reeves was an Australian resident at the time when he first satisfied the requirement to have a continuing inability to work, the case turns on the qualification in s 94(1)(ea), that is, “the person is an Australian resident”.

4. By virtue of s 7(2) of the Social Security Act 1991 (Cth), an Australian resident is a person who resides in Australia and, so far as is presently relevant, who is an Australian citizen. Mr Reeves has lived in Australia since 1981 and has been an Australian citizen since 1988. For most of his life, Mr Reeves lived in Melbourne. In May 2009, the premises in which Mr Reeves was living were destroyed by a fire. Mr Reeves was seriously injured in that fire, which in addition, destroyed all of his possessions. He had no insurance. The fact that all his possessions were destroyed is material to these proceedings. After the fire, Mr Reeves lived in a rooming house in Melbourne. In November 2010, Mr Reeves moved to Darwin and since then, on and off, he has lived in a YMCA hostel in Darwin. He is a long term occupant of a room at the YMCA. I will examine the nature of his occupation at those premises in more detail below.

5. In December 2010, Mr Reeves accompanied a friend of his on a visit to the Philippines.  Whilst there, he met Ms Virginia Flores, the person who is now his wife.  He married Ms Flores in the Philippines in April 2011.  Since then, Mr Reeves has divided his time between Australia and the Philippines, spending roughly about an equivalent amount of time in each of Australia and the Philippines.

6. Mr Reeves notified Centrelink of the fact of his marriage.  That prompted Centrelink to seek to reduce his disability support pension on the basis of Ms Flores’ earnings in the Philippines.  Ms Flores is a schoolteacher in the Philippines who is able to retire and thus receive a pension from the Philippines in January 2013.  Mr Reeves tells me, and I have no reason to doubt, that it is their intention upon Ms Flores’ retirement for Ms Flores to move to Australia and live with Mr Reeves.  The plan that Mr Reeves had to obtain a spouse visa for Ms Flores was disrupted by a recent and significant change in the cost of obtaining that visa and Mr Reeves’ present intention is that, until such time as he and she are able to save the whole of the cost of such a visa, Ms Flores will apply for tourist visas and return to the Philippines at the expiry of those tourist visas and then return again when she is able to.

7. Section 7(3) of the Social Security Act1991 (Cth) is relevant. It is in these terms:

   (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.

8. The helpful submissions of the parties have focused upon each of those paragraphs in turn and it seems convenient to adopt the same approach.  In Australia, Mr Reeves resides at the YMCA hostel.  He has access to a room, and in recent times, the same room, which has a refrigerator, a table, chairs, a wardrobe, a single bed and a vanity.  He shares a bathroom with the other 10 residents on the same floor of block D of the YMCA hostel and has access to a communal kitchen where he is able to cook or prepare his food which is eaten in a communal dining room.  The YMCA offers accommodation on a long term basis – that is, four weeks is the minimum period of stay that they would ordinarily permit.

9. Since his marriage, Mr Reeves has resided, when in the Philippines, in the house in which Ms Flores resides.  That arrangement is somewhat unusual as well. Ms Flores has resided for the past 18 years in part of the premises owned by the aunt of Ms Flores’ teaching colleague in the Philippines.  Ms Flores occupies a floor of that house, the remainder of the house being occupied by the colleagues’ aunt and another couple. Ms Flores (and Mr Reeves when he is residing with her) has access to two rooms on the first floor, a balcony and a bathroom.  When Mr Reeves is in the Philippines, he pays an additional rent of the Philippine equivalent of about $25 Australian per week to compensate for the additional power, water, etc. occasioned by his occupancy.

10. The nature of the accommodation is little different in substance.  In each case, Mr Reeves does not have any contractual right of exclusive possession.  He is, in a sense, a boarder at will in both the Australian and Philippines premises.  His situation, partly because all of his possessions were destroyed by the fire, is somewhat unusual and there is as it seems to me not a great deal of distinction between the nature of the accommodation in either location.

11. Mr Reeves has three adult children who in turn have youngish families. Those family members all live in and around Melbourne.  Mr Reeves’ financial situation has prevented him from seeing them since his departure from Melbourne some two years ago but he keeps in regular contact with them by telephone speaking to them approximately every two weeks.  He has no blood family in the Philippines but is of course married to Ms Flores.

12. He has no employment or business ties in either Australia or the Philippines and to the extent that he has financial ties, they are in this country.  He has a bank account with an Australian Bank and a superannuation accumulation fund held in Australia.  Subject to the exercise of a discretion by the Commissioner of Taxation, he cannot access the funds in that superannuation fund until he turns 65.

13. Mr Reeves has made a number of trips to the Philippines, but unlike many in this situation, his visits to Australia have not been merely to, as it were, satisfy the requirements of Centrelink and then depart back overseas.  I will set out what I understand to be the duration of his stays taken from exhibit three, the applicant’s Statement of Facts and Contentions.  That demonstrates roughly equal stays in Australia and the Philippines as follows:

    ·4 Dec 2010 – 1 Feb 2011 – In the Philippines (59 days)

    ·2 Feb 2011 – 25 Feb 2011 – In Australia (24 days)

    ·26 Feb 2011 – 27 April 2011 – In the Philippines (41 days)

    ·28 April 2011 – 15 June 2011 – In Australia (56 days)

    ·16 Jun 2011 – 10 Aug 2011 – In the Philippines (56 days)

    ·11 Aug 2011 – 4 Sept 2011 – In Australia (25 days)

    ·5 Sept 2011 – 23 Oct 2011 – In the Philippines (49 days)

    ·24 Oct 2011 – 4 Nov 2011 – In Australia (11 days)

    ·5 Nov 2011 – 22 Jan 2012 – In the Philippines (79 days)

    ·23 Jan 2012 – 27 March 2012 – In Australia (65 days)

    ·28 March 2012 – 26 June 2012 – In the Philippines (91 days)

    ·27 Jun 2012 – current – In Australia

14. The other matter relevant to determining whether Mr Reeves intends to remain permanently in Australia is his evidence about that intention.  Unlike the Social Security Appeals Tribunal, I see no reason to doubt Mr Reeves’ evidence of his intention to bring Ms Flores to Australia upon her retirement and to the extent that he is able to; that is, in the near term, to obtain tourist visas for her as often as he is able and in the medium term, when his financial position permits him to do so, to seek and hopefully obtain, a spouse visa for Ms Flores.  The cost of that is significant and presently in excess of the liquid assets that Mr Reeves has available to him.

15. The case is one where one is left to make a judgment about residence really as a matter of impression having regard to the criteria specified in s 7(3). Having regard to those matters, is does seem to me that on balance, Mr Reeves was residing in Australia in March 2012, when the decision to cancel his Disability Support Pension was made. Mr Hamilton, who appears for the Secretary, has submitted that if that conclusion be reached the matter should be remitted to Centrelink to consider whether the other qualifying requirements of s 94 of the Social Security Act 1991 (Cth) are met. It is correct to say, as does Mr Hamilton, that those other matters were not the subject of any consideration in the cancellation decision nor were they the focus of any examination in the internal or external review of that decision. But there being no suggestion that Mr Reeves was not otherwise qualified, I see no reason to adopt Mr Hamilton’s suggestion that the matter be remitted to Centrelink to consider the other qualifying requirements. Given that what is before me is a decision of 2 March 2012 to cancel payment of disability support pension, it seems to me that I am obliged, having reached the conclusion that I have, to make a decision setting aside the decision of 2 March 2012 and substituting a decision that Mr Reeves’ Disability Support Pension not be cancelled. If Centrelink take the view that there is some reason to doubt Mr Reeves’ qualifications under one or other of the other criteria it can consider those matters as it may be advised. The decision then will be as I have indicated.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.

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Associate

Dated 11 January 2013

Date of hearing	4 December 2012
Solicitors for the Applicant	Darwin Community Legal Services
Advocate for the Respondent	Mr R Hamilton, Department of Human Services