Morrison and Secretary, Department of Family and Community Services

[2004] AATA 1313

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1313

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/207

GENERAL ADMINISTRATIVE DIVISION		)
Re		TERRY MORRISSON

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S C Fisher, Member

Date10 December 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

......[Sgd]......

S C Fisher
  Member

CATCHWORDS

SOCIAL SECURITY – Pensions Benefits and allowances – Newstart Allowance - Application for review of decision to impose a non-payment period – relocation to area of lower employment prospects – whether applicant had “sufficient reason” – whether new address was “near” family member – decision under review affirmed.

Social Security Act 1991 s 23, 601, 634

Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 809/98
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; 4 ALD 198
Watson and Secretary, Department of Family and Community Services [2002] AATA 822
Department of Social Security v Clemson (1993) 40 FCR 9
Secretary, Department of Family and Community Services and Markovic [2002] AATA 908

REASONS FOR DECISION

10 December 2004 Mr S C Fisher, Member        

Introduction and Background

1.      At all material times, Mr Terry Morrisson (the Applicant) was in receipt of newstart allowance. On 9 February 2004, the Applicant notified Centrelink that he had moved his residence “to live with or near an immediate family member”. On 13 February 2004, a Centrelink officer decided that the Applicant had moved to an area of lower employment prospects and that he did not have a sufficient reason for doing so. Consequently, a non-payment period of 26 weeks was imposed on the Applicant in respect of his newstart allowance.

Jurisdiction

2. In a procedural sense, the Tribunal has jurisdiction in this appeal by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999 (“the Administration Act”). In a substantive sense, the merits of this appeal are governed by the Social Security Act 1991 (“the Act”).

3.      In these Reasons for Decision, the Secretary, Department of Family and Community Services is described as the “Respondent”.

The Decision under Review

4.      The decision under review is a decision made by the Respondent on 13 February 2004 to impose a non-payment period of 26 weeks in respect of newstart allowance payable to the Applicant.

The Role of the Tribunal

5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (No. QG205 of 1997 FED No. 809/98, 29 June 1998). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.

The Material Before the Tribunal

Exhibit 1 Centrelink letter of 7 October 2002

Exhibit 2Centrelink letter of 7 January 2004

Exhibit 3Undated Centrelink letter concerning a liquid assets waiting period and ordinary waiting period

Exhibit 4Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

Evidence

6.      The only person to give evidence in these proceedings was the Applicant. The Applicant gave evidence in person. The Tribunal accepted that the Applicant was honest. There were no issues of credit in this appeal. The Applicant tendered correspondence between Centrelink and himself, which the Tribunal took into evidence as Exhibits 1 - 3. The Applicant represented himself.

7.      A summary of the evidence given by the Applicant to the Tribunal is set out below:

A.The Applicant described his work history in the mining industry in Western Australia in the Kalgoorlie region.

B.The Applicant described how he had been involved in a motor vehicle accident in June 2001 and that he had received a compensation payout in September 2002.

C.In March 2003, the Applicant left the Kalgoorlie region and sought work in the mining industry in the eastern States. The Applicant got some temporary work for the Australian Wheat Board in Nyngan.

D.When the Applicant’s work in Nyngan stopped, he went to live with his sister in Nanango, Queensland for a few weeks just before Christmas 2003.

E.The Applicant said that a Centrelink officer in the Kingaroy office informed him that there would be no problems if he moved from Nanango to Burrum Town because he owned land there.

F.The Applicant then moved to Burrum Town near Bundaberg on 3 February 2004 because he owns a block of land in Burrum Town and he wanted to build a dwelling on this land. The Applicant said that he has roots in this area and that this is when he wanted to establish himself. The Applicant said that he acquired this land in May 2003.

G.The Applicant’s mother lives in Bundaberg and he said that he wanted to live near her but not live with her.

8. The Respondent lodged documents T1 to T23 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 4. The Respondent was represented by Mr James Howard, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal. The Respondent did not call any evidence.

9.      The Tribunal considered carefully all of the documentary and oral evidence before it.

Discussion of the evidence

10.     In cross-examination, the Applicant stated that his primary reason for moving to Burrum Town was to build on the block of land he owned in this locality.

Issues

11. The sole issue for the Tribunal to determine is whether the Applicant had a sufficient reason for moving to an area of lower employment prospects within section 634 of the Social Security Act 1991 (Cth).

Applicant’s Submissions

12. The Applicant contended that he had a sufficient reason for moving to an area of lower employment prospects within section 634 of the Act. The Applicant contended that he wanted to move to live in Burrum Town because he owns a block of land in this locality that he wants to built a house on. The Applicant said also that he wanted to live near his mother, who resides in Bundaberg.

Respondent’s Submissions

13.     The gist of the Respondent’s submissions in this appeal can be summarised as follows:

A.The prime reason why the Applicant moved to Burrum Town was because he owns a block of land in this locality that he wants to built a house on and so reside in this locality.

B.The fact that the Applicant’s parents live in the general vicinity of Burrum Town was not the motivating cause for the Applicant’s shift of residence.

C.The Respondent contended that the Applicant did not satisfy the requirements of section 634(3)(b) in that he would have a sufficient reason for moving to a new place of residence if and only if he moved to live near a family member.

D.This Tribunal in Watson and Secretary, Department of Family and Community Services [2002] AATA 822 had considered section 634(3)(b) but declined to define the meaning of “near” in that provision.

E.The reason for the change of residence of the Applicant was not to live near a family member.

F.Accordingly, the Respondent urged the Tribunal to affirm the decision under review.

Findings of Fact

14.     Based upon the evidence before it, the Tribunal makes the following findings of fact:

A.Mr Terry Morrisson was in receipt of newstart allowance at all material times.

B.Mr Morrisson moved from Nyngan, New South Wales to Nanango, Queensland on or about 18 December 2003.

C.Mr Morrisson moved from Nanango to Burrum Town on 3 February 2004.

D.In a Customer Declaration form dated 9 February 2004 Mr Morrisson stated that his reasons for moving were to live with or near an immediate family member and to build on land he owns at Burrum Town.

E.The unemployment rate in Nanango is 8.1%.

F.The unemployment rate in Burrum Town is 12.6%.

G.On 13 February 2004, the Respondent imposed a non-payment period in respect of Mr Morrisson’s newstart allowance from 13 February 2004 to 12 August 2004.

H.On 18 February 2004, an Authorised Review Officer varied the 13 February 2004 decision by determining that the non-payment period would apply from 3 February 2004 instead of 13 February 2004.

I.On 10 March 2004, the Social Security Appeals Tribunal affirmed the decision of the Authorised Review Officer.

J.On 22 March 2004, Mr Morrisson changed his address and moved in with his mother who lives in Bundaberg.

K.Bundaberg is more than 100 km away from Burrum Town.

L.On 23 March 2004, Mr Morrisson appealed to the Administrative Appeals Tribunal.

M.The Respondent (through Centrelink) notified Mr Morrisson on 1 April 2004 that his newstart allowance payments had recommenced with effect from 22 March 2004.

The Legislation

15.     The relevant legislation is contained in the Social Security Act 1991 (“the Act”), in particular section 634 which states as follows:

“Move to area of lower employment prospects

634(1)  Subject to subsections (1B) and (2), if, in the opinion of the Secretary, a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, a newstart allowance is not payable to the person for 26 weeks.

634(1A) Subsection (1) extends to a person who makes a claim for newstart allowance on or after the day on which the person moved to the new place of residence and before the end of the period referred to in that subsection.

634(1B) If a person to whom a newstart allowance is not payable under subsection (1) for a period of 26 weeks (including that subsection as it applies by subsection (1A)) does either of the following during that period:

(a)moves back to the place of residence (the original place of residence) the movement from which resulted in newstart allowance not being payable to him or her;

(b)moves to another place of residence a movement to which from the original place of residence would not have resulted in newstart allowance not being payable to him or her;

the period of 26 weeks ends at the time of the movement back to the original place of residence or the movement to the other place of residence, as the case may be.

…

634(3)  For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:

(a)moves to live with a family member who has already established his or her residence in that place of residence; or

(b)moves to live near a family member who has already established residence in the same area; or

(c)satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or

(d)satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence).

Note:   For family member see subsection 23(14).

634(4)  The Secretary may determine in writing the day on which the period of non-payment imposed by subsection (1) commences and that day may be before the day of the determination.”

16. Section 23(14) of the Act provides:

“23(14)  For the purposes of this Act other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G, each of the following is a family member in relation to a person (the relevant person):

(a)       the partner, father or mother of the relevant person;

(b)       a sister, brother or child of the relevant person;

(c)any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b)”

Tribunal’s Reasons

17. For the purposes of this appeal, it was not contested that the Applicant is qualified for newstart allowance and that he either satisfied the activity test in section 601 of the Act or was exempted from doing so. Accordingly, the Tribunal did not consider this aspect of the case for the purposes of determining this appeal.

18.     The Tribunal had regard to decisions such as Department of Social Security v Clemson (1993) 40 FCR 9; Secretary, Department of Family and Community Services and Markovic [2002] AATA 908 and Watson and Secretary, Department of Family and Community Services [2002] AATA 822 where the application of the “sufficient reason” standard in section 634 has been relevant to the resolution of those appeals. Those decisions provide illustrations of the application of the “sufficient reason” standard, but as such, they provide no precedential value to the resolution of these appeals. Watson and Secretary, Department of Family and Community Services [2002] AATA 822 was cited to this Tribunal by the Respondent.

19. The scheme and intent of section 634(3) is to provide an exhaustive catalogue of factors which individually constitute a sufficient reason for which a person might move to an area of lower employment prospects and not attract a 26 week non-payment period in relation to newstart allowance. The phrase “if and only if” in section 634(3) makes it clear that any factors besides those listed in paragraphs (a) – (d) that could otherwise constitute a “sufficient reason” for a move by a newstart allowance recipient or Applicant to an area of lower employment prospects are extraneous and are therefore to be excluded from consideration. To put the same thing another way, any decision maker (including this Tribunal) must follow the signposts contained in section 634(3)(a) – (d) to determine whether or not a sufficient reason exists for a person to move to an area of lower employment prospects and still qualify to be paid newstart allowance. In the opinion of this Tribunal, section 634 requires investigation of the reason or reasons for which a newstart allowance recipient has shifted residence from one locality to another.

20. In the circumstances of this appeal the only ground in section 634 that is potentially relevant is section 634(3)(b) and neither party contended otherwise. It is incontrovertible that the Applicant’s mother is a “family member” within the meaning of section 23(14) of the Act. The fact that the Applicant moved to live with his mother on 22 March 2004 explains why the Respondent reinstated the Applicant’s newstart allowance from this date because this residential shift satisfied requirements of section 634(3)(a).

21. There is an obstacle confronting the Applicant in this case. As stated earlier, the Tribunal took into account the consideration that section 634(3) requires investigation of the motivation for a person to shift residence from an area of higher employment prospects to an area of lower employment prospects to continue to qualify for newstart allowance. The Tribunal has found as a fact that one of two assigned reasons for the residential move on the part of the Applicant was to build a house on land he owns at Burrum Town. The fact that his mother happens to live in Bundaberg is more or less coincidental. Where there are two or more reasons given by a person for a change of residence in the context of section 634, the Tribunal is entitled to weigh up those reasons and determine which reason(s) (if any) predominates or better or best explains the person’s change of residence. In the opinion of the Tribunal, the better explanation for the change of residence on the part of the Applicant was to build a house on land he owned at Burrum Town. The opportunity the Applicant gained to move closer to a family member was less important (but not completely unimportant) to him.

22.     The Tribunal noted it was only after the Applicant had not succeeded in his appeal to the Social Security Appeals Tribunal that he moved in with his mother in Bundaberg.

23. So far, the Tribunal has considered the motivation for the Applicant’s change of residence. This explores on a subjective plane of reference the reasons behind a residential change. For the purposes of section 634(3)(b), it is necessary also that the residential move satisfies a requirement of proximity. This is an objective criterion. This requirement of proximity is borne out by the use of the phrase “if the person … moves to live near a family member …” (emphasis supplied). The Respondent referred to this Tribunal’s decision in Watson and Secretary, Department of Family and Community Services [2002] AATA 822. The Tribunal took account of the following passages from Watson:

“18.     The Tribunal was referred to page 212 of “Words and Phrases” (Exhibit 2).  The word “near” was the subject of discussion in Tyne Keelmen v Davison (1864) 16 CBNS, per Byles J at page 622. Byles J took the view that “the word ‘near’ is not a restraining, but an expanding word, …to be extended so far as to give effect to the intention of the legislature”. It was pointed out that the word “near” in s 634(3)(b) of the Social Security Act 1991 (“the Act”) is not defined, nor is its meaning discussed in the second reading speech to the Bill.  

19. The Respondent’s interpretation of the word “near” seeks to restrict it to a notion of it being within a commuting time of ninety minutes. It was not appropriate for the Respondent to resort to s 601(2B) of the Act for guidance as to the meaning of the word “near” as that provision relates to what is considered a reasonable distance for a person to travel each way to work. The Respondent’s argument that if the Applicant lives further distant than a ninety minute commuting time it cannot be regarded as “near”, is unnecessarily restrictive and should be rejected.

20.      The appropriate approach is that contained in McMillan v Barclay Curle & Co Ltd (1899) 2 F (Ct of Sess) 91, per Lord Adam at page 93, who stated that the “question of whether one place is near another is entirely a question of circumstances, entirely a question of fact, and entirely a matter for the tribunal which determines the claim”.  

36.      … Consequently, I am not minded to restrict the term “near” to an interpretation which relies on any specific distance or travelling time.  In saying that, I am mindful of the principles outlined in the matter of [McMillan v Barclay Curle & Co Ltd (1899) 2 F (Ct of Sess) 91] that “the question of whether one place is near another is entirely a question of circumstances”.

24.     The Tribunal accepted that when the Applicant moved to Burrum Town, he ended up moving closer to his mother then he had been when he lived at Nanango. For the purposes of this appeal, however, the more precise issue is whether the Applicant moved his residence to live near a family member. The question of proximity calibrated by the term “near” in section 634(3)(b) is entirely a question of circumstances. The Tribunal has found as a fact that Bundaberg is more than 100 km away from Burrum Town. The Tribunal is not satisfied that Burrum Town is near Bundaberg in the sense contemplated by section 634(3)(b) of the Act.

Tribunal’s Conclusion

25. The correct and preferable decision in this case is that the Applicant did not change his residence to live near a family member within the meaning of section 634(3)(b) of the Act. The Applicant’s change of residence was motivated primarily by his desire to construct a dwelling on land he owned in the place to which he changed his residence.

Tribunal’s Order

26.     The Tribunal decides to affirm the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S C Fisher, Member

Signed:         Camille Banks

Associate

Date/s of Hearing  19 October 2004 (Bundaberg)  
Date of Decision  10 December 2004 (Brisbane)
The Applicant appeared in person  
For the Applicant  Mr J Howard, Departmental Advocate