MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 924
•24 December 2012
[2012] AATA 924
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3654
Re
MQJJ
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Professor T Sourdin, Member
Date 24 December 2012 Place Sydney The decision under review is set aside and in substitution the Tribunal decides that the Applicant was an Australian resident for Centrelink purposes as at 2 March 2012 and accordingly was qualified to receive disability support pension.
..........[sgd]....................................
Professor T Sourdin, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – residence requirement – decision under review set aside
LEGISLATION
Social Security Act 1991 ss 7, 94
CASES
Hafza v Director–General of Social Security (1985) 6 FCR 444
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)
SECONDARY MATERIALS
Guide to Social Security Law, Version 1.191
REASONS FOR DECISION
Professor T Sourdin, Member
24 December 2012
BACKGROUND
The issue in this matter is whether the Applicant was on 2 March 2012 ‘an Australian resident’ for the purpose of qualifying for the disability support pension.
There is no dispute that the Applicant suffers from a disability. He originally qualified for a disability support pension in April 1984. The Applicant has schizophrenia and other health problems that mean he cannot work or be retrained to work.
The disability is longstanding and the Applicant is currently 62 years of age. His early life was difficult and following an admission into a children’s home (Burnside) before he was 10 years of age, he appears to have resided in a range of institutions. Although he had some periods of employment as an adult his mental illness has meant that social and working relationships have been difficult. His ‘moving around’ (see below) is probably related to his mental illness in that he finds it hard to stay in one place for any substantive period.
In terms of his nationality, there is also no doubt that the Applicant is Australian. He was born in Australia, has an Australian passport and is descended from an Australian War veteran who was a prisoner of war and a mother who is also Australian by birth and who is still alive but according to the Applicant may also have suffered from a lack of mental stability.
In relation to the Applicant’s circumstances, he could be described as ‘homeless.’ For many years he has lived in a variety of places in Australia, mostly outdoors, where he constructs a shelter. He has some strong ties to some places although he does not stay in places for lengthy periods. He avoids some places that are unsafe or where the climate makes it difficult to survive. For example, he does not tend to travel to Sydney or Melbourne as the winter climates make it difficult for a homeless person to survive. He also tends to leave the Northern Territory in the summer months during the wet season. He does not live on the street and he avoids shelters for homeless people wherever possible as he finds these unsafe. He most closely identifies Darwin as his ‘home’ base and he has rights to camp on Aboriginal land there.
The reason why the Secretary considers that he does not qualify for the pension is that because he travels to South East Asia frequently and has few links within Australia he does not meet the residential requirements that are set out in the Act.
The Applicant started travelling to South East Asia more than a decade ago. He does not travel to one country in South East Asia but moves around. The Applicant says he travels to South East Asia mainly because this enables him to get a room with a TV and air-conditioning together with three meals a day and some beer money within the tight parameters of the pension payment. The Applicant says that he is unable to afford accommodation in Australia on his pension. While he may qualify for some form of social housing, his mental illness and longstanding pattern of moving around means that sharing a house or even having single accommodation would be difficult for him. In the last few years his travel to South East Asia has been frequent.
The Applicant would like to live in a caravan in the future in Australia and considers that this lifestyle would suit his particular condition in that it would mean he could still ‘move around’ but he would be protected from the weather and the security issues that surface when living on the street or living in the bush as a homeless person.
MATTERS FOR CONSIDERATION
The central issue in this matter is whether the Applicant is an ‘Australian Resident’ as set out in the legislation and therefore entitled to the disability support pension as a result of his disability and other circumstances.
Under section 94 of the Social Security Act 1991 (the Act), for a person to be entitled to the disability support pension they must be an Australian resident or meet other requirements. The Applicant does not disagree that he does not meet the ‘other requirements’ and it is therefore agreed that the issue in this matter is whether or not he can be defined as an ‘Australian resident.’
The definition of an Australian resident is set out in section 7(3) of the Act and is as follows:
(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.
The Act sets out in section 94 what is required to qualify for the disability support pension and it is not in dispute that the Applicant has an impairment and is unable to work (much of section 94 deals with these aspects and is not extracted below). The first part of section 94 provides that:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
…
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(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.
Note 1:For Australian resident , qualifying Australian residence and qualifying residence exemption see section 7.
…
The section was amended in 2011 and again in 2012. The 2012 amendment is noted above in bold. The 2011 amendment was introduced and became law in July 2011. According to the Secretary’s Statement of Facts and Contentions:
[14] Section 94(1)(ea) was inserted by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 and came into effect from 1 July 2011 (“Amending Act”). The corresponding Explanatory Memorandum stating:
These amendments will close a loophole that has allowed continued payment of disability support pension to people who live permanently overseas but return to Australia every 13 weeks in order to retain their pension.
It is not the intention of the 13-week portability period to allow people to live overseas and return to Australia for only short periods every 13 weeks to maintain payment. The 13-week portability period is designed to allow disability support pensioners who reside permanently in Australia sufficient time to deal with personal matters that may arise from time to time overseas. This is consistent with the purpose of disability support pension, which is to assist people with the cost of living in Australia, and is designed to engage people of workforce age in activities in Australia that will lead to greater levels of economic and social participation.
[15] Subsection 94(1)(ea) imported the additional qualification requirement that:
(i) the person is an Australian resident; or
(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.
[16] Section 1218AA, in part provides as follows:
1218AA Unlimited portability period for disability support pension
(1) The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is severely disabled (see subsection 23(4B)); and
(b) the person is receiving disability support pension; and
(c) the person is terminally ill; and
(d) the person’s absence from Australia is or will be permanent; and
(e) the purpose of the person’s absence is:
(i) to be with or near a family member of the person (see subsection (14)): or
(ii) to return to the person’s country of origin.
It seems clear that the amendments were intended to apply to those that resided overseas and returned to Australia for short intervals every 13 weeks or so to ensure that their pension status was maintained. The definition of what is an Australian resident as defined by section 7(3) is therefore critical in determining how the legislation is to be applied.
The factors that are set out above in section 7 were considered by the Social Security Appeals Tribunal (SSAT) in a decision made on 8 August 2012 and the Authorised Review Officer (ARO) which both affirmed the original decision that the Applicant was not an Australian resident for the purposes of his pension qualification.
This decision was reached after considering the factors outlined in section 7, case law and after considering evidence given by the Applicant. I will now consider each of those factors in turn before explaining why my decision is different from that of the SSAT. It is also important to recognise that the matters raised in section 7(3) are not exhaustive and other matters that need to be considered are discussed below.
The section 7(3) factors are:
(a) the nature of the accommodation used by the person in Australia
The SSAT noted that “[the Applicant] said that he had no fixed place of abode in either Australia or overseas, nor had he for many years” and concluded that ‘This factor points neither toward nor away from [the Applicant] being an Australian resident.” The ARO on 10 May 2012 had considered that he had a “… lack of any permanent accommodation in Australia.” With respect to the ARO, the factor that is to be considered is not whether the accommodation is ‘permanent’. Section 7(3) requires the decision maker to consider the ‘nature’ of the accommodation.
In a submission filed in support of the Applicant’s case it was noted (at [34]) that:
If the Secretary means that the applicant is homeless and does not live in a house regularly when in Australia, then the applicant accepts that he does not have a “settled place of abode”.
As noted above, in terms of this criteria, the ‘nature’ of the accommodation needs to be considered and it need not be a ‘fixed or settled place of abode.’ Importantly, the Applicant, although homeless, has sites in Australia where he camps on a regular basis. He is enrolled to vote in an electorate and has a registration card provided by an Aboriginal community that enables him to camp out in one community on land in Darwin. Although the Applicant may not live in a house, he has ‘strong ties to Darwin’ which the Applicant considers to be his ‘home base.’ In this sense he has a home ‘connection’ although he may not live in a house or conventional dwelling.
In considering the concepts raised in section 7(3) regard can also be had to the Guide to Social Security Law (version 1.191) (the Guide). Although not bound by Departmental policy guidelines, the Tribunal would not depart from policy unless there are cogent reasons to do so (See Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 645). In respect of assessing this element in section 7(3) the Guide notes that:
People who spend considerable time overseas will need to provide evidence that they still maintain strong connections to Australia. One consideration is the nature of the accommodation used by the person in Australia and overseas. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country and that they have made arrangements for an extended period of accommodation in Australia. [Tribunal’s emphasis]
The Applicant in submissions also noted (at [35]) that:
But it is critical to distinguish the applicant’s situation from one where a person does not have a home in Australia because they have set up a home in another country.
The Tribunal agrees with the Applicant that in considering this factor it is relevant to consider whether ties or connections exist to other countries or places outside Australia. The Applicant has no ties to any other country and does not stay in any particular South East Asian country or place. It is clear that he does not stay in the same place. He moves around and tries to find lodging that is affordable and within his pension limits. He does not have settled or permanent accommodation outside Australia.
In terms of this factor, the Applicant considers that Australia is his home and considers that he has a permanent connection to Australia. Although the Applicant’s ‘home base’ is a series of sites on Aboriginal land and also a number of other informal arrangements (including staying with friends, family or camping in other locations) and although he is ‘homeless’ this does not mean he has no connection with Australia. The Guide importantly notes that “it needs to be recognised that many people receiving a social security payment have very few assets and do not have formal living arrangements.”
On balance, and having considered the nature of the accommodation in Australia and outside Australia although the Applicant may not have permanent accommodation and does not live in a house, he could still be said to have ‘settled’ accommodation in Australia particularly when his electoral and ‘on country’ status is considered together with the lack of any connection to another country or place outside Australia.
(b) the nature and extent of the family relationships the person has in Australia
The second factor is linked to family relationships and in this matter it is clear that the Applicant has few family relationships compared to many other Australians. This can be partly attributed to his upbringing where he spent many of his formative years in a children’s home. In addition, his mental illness means that it is difficult to sustain long term relationships and the Applicant gave evidence that even when he stays with family it can be ‘difficult’ after a few days. Because he ‘moves around’ and is homeless it is hard for him to maintain and sustain links.
The Applicant, although estranged from his mother who is nearly 100 years of age still keeps up to date with her wellbeing. His mother is looked after by relatives who do not get on with the Applicant and who the Applicant considers are not friendly. He keeps up with his mother’s wellbeing by keeping in contact with a cousin in Coffs Harbour. Importantly, he maintains contact with his cousin, Bob, in Berry who he visits from time to time. The Applicant gave evidence that he stayed with Bob and Bob helped him with preparing for this matter although Bob had recently repartnered and his new partner showed some resistance to long visits by the Applicant. The Applicant gave evidence that he would stay with his cousin for 3 – 4 days at a time and he maintained sporadic email contact.
Importantly, the Applicant has no family overseas. The Guide states that:
Another factor that should be used to indicate what country the person is residing in is the nature and extent of the person’s family relationships in Australia and overseas. [Tribunal’s emphasis]
It was not disputed that the Applicant had no family ties or connections overseas. He may have few family relationships in Australia but he has some and these are continuing. The SSAT found that “This factor points marginally toward [the Applicant] being an Australian resident.” This Tribunal agrees that this factor supports a finding that the Applicant is an Australian resident.
(c) the nature and extent of the person’s employment, business or financial ties with Australia
The Applicant has been employed within Australia in the past although he has been on a disability support pension and homeless for some years. He has however done voluntary work from time to time and showed some material to the Tribunal relating to his voluntary work. His banking arrangements are all located in Australia and he has pension monies paid into his Australian bank account. His bank accounts and branch are located in Darwin, which the Applicant considers to be his home.
The SSAT and the Secretary considered that merely having a bank account in Australia does not support this factor and the Guide notes that:
Having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia. [Tribunal’s emphasis]
In the Applicant’s submission it was suggested that the Guide was inconsistent in relation to the keeping of a bank account as the Guide also states “… simply having an investment in Australia is, by itself, a weak indicator.” The Applicant suggested that maintaining savings in Australia indicated continuing ties.
The Tribunal has carefully considered this matter and notes that the Applicant for many years had a passbook account with a branch in Alice Springs until this was phased out a few years ago. He has since had the Darwin based accounts which he uses for banking. He appears to have longstanding banking arrangements in Australia although the amount that he banks is small and consistent with his circumstances his bank account balance and credit amounts are comprised of his pension payments. On balance and bearing in mind the Guide below it seems that the Applicant has some financial ties to Australia although they may be ‘weak’. This finding is made after considering the bank accounts held and importantly considering the longstanding pattern of use of physical accounts over the years.
In considering the weight to be given to banking arrangements, it is important to consider the entirety of the Applicant’s financial circumstances and his lack of any overseas arrangements. However in doing so, it is clear that he has few ties that could be described as ‘employment, business or financial’ within Australia and he has none overseas. On balance minimal weighting can be applied to this criteria in the Applicant’s favour and it is therefore appropriate to consider other criteria more closely. The Tribunal notes that in this situation, the Guide states that:
Care should be taken to ensure that poverty and lack of employment are not counted against a person’s claim to be residing in Australia. The lack of employment, business or financial ties simply means the other criteria at SSAct section 7(3) have greater significance.
(d) the nature and extent of the person’s assets located in Australia
The SSAT did not consider whether the Applicant had assets located in Australia. The ARO noted that “The customer said that he holds no assets in Australia. The customer said that he has 2 bank accounts in Australia the balances of which are not recorded on his pension record.”
As with the previous factor, the Guide notes that if there are very limited assets in Australia or overseas then more weight should be placed on other section 7(3) factors. However an issue that emerged at the hearing of this matter was that the Applicant considered that he had unrealised assets in Australia. In this regard, he expects that when his mother passes away he will inherit a portion of her estate. As his mother is nearly 100 years of age it is possible that he may be entitled to an inheritance at some point in the near future.
One of the reasons why the Applicant maintains contact with some family members is because he wants to ensure that his potential claim on the estate can be realised. In evidence, the Applicant said he thought that his mother had a house and that he would be entitled to a share of this on her death.
The Guide notes in respect of this factor that: “The key is to establish the extent of a person’s assets in Australia and whether the presence of these assets in Australia indicates that they have an ongoing connection to Australia.” In the Tribunal’s view an unrealised asset of the nature described by the Applicant cannot be counted under this criteria. However, it is a relevant matter to consider under subsection (f) below in respect of future intention to reside in Australia.
(e) the frequency and duration of the person’s travel outside Australia
One of the main reasons why the Applicant was found to be ineligible for the disability support pension was that he travels overseas regularly and has spent a considerable period of time outside Australia. (By the SSAT’s calculations the Applicant spent approximately 64% of this time between February 2006 and May 2012 outside Australia.) The SSAT and the ARO considered that the frequency and duration of the Applicant’s travel overseas was a factor that weighed against a finding that the Applicant was residing in Australia at the date of the cancellation. The SSAT noted that the Applicant travelled to a number of countries including Indonesia, Malaysia, the Philippines, Thailand, Singapore, Laos, China and Vietnam.
The Applicant does not disagree that he has travelled overseas on a frequent basis. He says he travels to obtain some respite from being homeless and that this travel and the availability of cheap food and lodging means that his mental and physical health can be maintained.
The Guide notes that:
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia… Taken in isolation, a 3 year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return… The purpose of an overseas absence may indicate whether a person continues to reside in Australia.
Here, there is no doubt that the pattern of travel suggests that in relation to this factor the Applicant could be considered as not meeting the Australian resident requirements. However, the Guide refers to a number of factors that must be considered by the decision maker that are linked to the purpose of the travel and the duration of travel. The Guide also requires consideration of future intention and notes:
For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
In terms of the future intention or ‘end date’ the Applicant’s evidence was that he wanted to buy a caravan or campervan when his elderly mother passed away and he hoped to inherit money from her estate. He did not see his travel plans as continuing indefinitely and he would prefer to stay in Australia and travel with a caravan or campervan. This matter is also relevant to the last of the section 7(3) factors.
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia
As noted above, the Applicant gave evidence that he wanted to remain in Australia and he hoped to inherit money that would enable him to buy a caravan or campervan. He provided the Tribunal with material about the life he hoped to lead if he was able to buy a caravan or campervan.
His travel overseas is linked to the difficulties he has faced as a homeless person in Australia and his current lack of assets. The Applicant made it clear in evidence that he intended to remain in Australia and he did not agree with the SSAT finding that he wished to “continue his international nomadic lifestyle”.
Apart from the section 7(3) matters, it is also appropriate to consider the Applicant’s situation whilst he is outside Australia. In Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992) it was noted (at [23]) that:
It is true that s 7(3) of the Act now requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia. They are, however, not expressed to be exhaustive and do not detract from the general observations which His Honour made in relation to the ordinary concept of residence. The definition however, compels a decision maker to pay some regard to the enumerated factors.
The SSAT considered whether the Applicant was resident while he was outside of Australia in this matter in [26] of its decision and noted that:
In the leading authority, Re Maha Hafza v Director-General of Social Security [1985] FCA 164;(1985) 6 FCR 444 (23 May 1995), Wilcox J noted that a person might be resident in more than one country. The corollary of this is that in rare cases a person may not be resident in any country. This in our view may well be one … of those rare cases since it cannot be said that [the Applicant] has been particularly resident in any one place over the past decade. That said, the Tribunal does not have to decide whether [the Applicant] is a resident of another country, what we must decide is if he was an Australian resident as defined in the social security law when the operative decision was made.
In the case referred to by the SSAT, the Federal Court was considering the Social Services Act 1947. Wilcox J noted that the Income Tax Assessment Act 1936, at that time, defined “resident of Australia” as including a person “whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia.” The Tribunal considers that Wilcox J expressed the notion of a person living simultaneously in two places in somewhat different terms. His Honour had noted (at 449-450) that:
It is important to observe firstly, that a person may simultaneously be a resident in more than one place (see the facts of [Commissioners of Inland Revenue v Lysaght [1928] AC 234] 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 underlying purposes, of the particular statute in relation to which the question arises.
There is no disagreement that the Applicant is not resident of a country outside Australia. The Secretary suggested that he might be a resident of “South East Asia” and the evidence showed that he spends time in a range of countries and in different places within them. In the Tribunal’s view it is important in exploring the concept of residence to consider the situation of the Applicant when he is outside Australia. Importantly, the Guide states that:
When making a determination about whether a person is ‘residing’ – in other words ‘living’ – in Australia, the key point is to establish that Australia is the person’s settled or usual place of abode – i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person’s ties will weigh more heavily in favour of one country than another. [Tribunal’s emphasis]
Importantly, in Wybrow, consideration was given to the situation of an applicant when located outside Australia. In deciding that Mr Wybrow was an Australian resident the Tribunal noted that (at [27]):
… the statutory factors are not exhaustive and it is just as appropriate to consider the converse of these factors in relation to the applicant’s circumstances outside Australia. Thus, it is appropriate to consider the nature of the accommodation overseas, the family relationships in the overseas country where the person is living, employment business or financial ties overseas and property located overseas. All of these factors produce a negative result so far as Mr Wybrow is concerned. His accommodation is ephemeral. He has no family relationships in Japan. I accept his evidence that his ties with [Pacific Asia Social Service] are temporary. He has no property in Japan.
In this matter, as noted above, the section 7(3) matters are finely weighted and on balance they are in the Applicant’s favour. A consideration of all the section 7(3) factors leads one to conclude that the Applicant has ties to Australia and no ties to another country that would outweigh these ties.
For the reasons stated above the Tribunal decides that the decision under review is set aside and in substitution the Tribunal decides that the Applicant was an Australian resident for Centrelink purposes as at 2 March 2012 and accordingly was qualified to receive disability support pension.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Professor T Sourdin, Member ...........[sgd].............................................................
Associate
Dated 24 December 2012
Date of hearing 30 November 2012 Solicitor for the Applicant Mr M Butt, Welfare Rights Centre Solicitor for the Respondent Ms K Martini, Program Litigation and Review Branch, Legal Services Division, Department of Human Services
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