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

[2020] AATA 4969

Nguyen and Secretary, Department of Social Services (Social services second review) [2020] AATA 4969 (10 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/4453

Re:Origen Nguyen

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West

Date:10 December 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R West

Catchwords

SOCIAL SECURITY – Jobseeker payments – whether Applicant a resident of Australia – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

Cases

Re Maha Hafza v Director-General of Social Security [1985] FCA 164

McDonald in Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745

REASONS FOR DECISION

Member R West

10 December 2020

BACKGROUND

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal

   
   

   (Social Services & Child Support Division) (‘AAT1 Decision’) dated 14 July 2020 affirming the decision of Services Australia (‘Centrelink’) to refuse the Applicant’s claim for the Jobseeker payment (‘JSP’).

2. The relevant history of the matter is as follows:

   ·The Applicant made her original application for JSP on 24 April 2020.

   ·Centrelink assessed and refused the application on 5 May 2020 (‘Initial Decision’).

   ·The Applicant requested a review of the Initial Decision and an authorised review officer affirmed the Initial Decision on 10 June 2020 (‘ARO Decision’).

   ·On 23 June 2020, the Applicant sought a review of the ARO Decision by the Administrative Appeals Tribunal (Social Services & Child Support Division) (‘AAT 1 Review’).

   ·On 14 July 2020, the AAT 1 Review affirmed the ARO Decision (‘AAT 1 Decision’).

   ·On 23 July 2020, the Applicant applied to the General Division of the Tribunal for a review of the AAT 1 Decision (‘Second Tier Review’).

3. A hearing in relation to the Second Tier Review was held by teleconference on

   
   

   3 December 2020.  The Applicant was self-represented and the Respondent was represented by Mr Noonan, a solicitor with Services Australia.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic. These restrictions necessitated that the hearing not be conducted on the Tribunal premises. The Applicant and the Respondent each consented to the hearing on 3 December 2020 be conducted by telephone. The Tribunal determined, pursuant to section33A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), to conduct the hearing by teleconference.

   RELEVANT ISSUES

5. The basis of the refusal of the Applicant’s claim for the JSP in the Initial Decision and as affirmed in the subsequent reviews is that the Applicant did not meet the residency requirement for the JSP at the date of claim and in the 13 weeks following that date.[1]

   [1] See Schedule 2, clause 4(1) of the Social Security Administration Act

6. The eligibility requirements for a JSP is set out in section593 of the Social Security Act 1991 (Cth) (‘the Act’). Relevantly, a person is qualified for JSP if the person is an Australian resident or is exempt from the resident requirement within the meaning of subsection 7(7) of the Act. The exemptions are not relevant in the Applicant’s case.

7. The expression, an Australian resident, is defined in subsection 7(7) of the Act as a person who resides in Australia and is one of the following:

   a.an Australian citizen; 

   b.the holder of a permanent visa; or

   c.a special category visa holder who is a protected SCV holder.

8. There is no dispute that the Applicant is an Australian citizen and she holds an Australian passport.  Accordingly, the issue to be addressed in this appeal is whether, in the period from 24 April 2020 to 24 July 2020 (qualification period), the Applicant was a person who resides in Australia.

9. Section 7(3) of the Act prescribes mandatory considerations for determining whether a person resides in Australia. It requires the decision-maker to have regard to:

   a.    the nature of the accommodation used by the person in Australia;

   b.    the nature and extent of the family relationships the person has in Australia;

   c.     the nature and extent of the person’s employment, business or financial ties with Australia;

   d.    the nature and extent of the person’s assets located in Australia;

   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.

   EVIDENCE

10. The Applicant gave sworn evidence to the Tribunal regarding her circumstances during the qualification period.  She explained that she was born in Australia and had moved to the USA in October 2012.  She had married and taken up permanent residency in the USA in March 2013.  She lived in rented accommodation with her husband in Florida.  Her husband had family in the USA although they were not very supportive of the Applicant and her husband.  The Applicant said she worked irregularly while in the USA but relied primarily on her husband for financial support.  He worked with an airline company.  She said that in the USA, she and her husband had a joint bank account and a joint credit card, and her husband had a car which he purchased through his work.  She said that apart from furniture, household effects and clothes she and her husband did not have any assets in the USA. 

11. She said that she did not have any assets in Australia. Her only relatives in Australia were her father and three brothers.  She said that her oldest brother had been sent to prison in 2010 and she had not seen him since and had no idea where he is now living.  Similarly, she has had no contact with her second oldest brother for around nine years.  She said that her youngest brother, who is sixteen years old, lives with adoptive parents and she visits him whenever she is in Australia.

12. The Applicant explained that she has returned to Australia regularly for visits of a month or two twice each year since she moved to the USA.  She said she could access cheap airfares through her husband’s employment.  The AAT 1 Decision[2] sets out the evidence of the Applicant’s travel movements which confirm that she has visited Australia regularly, although not as frequently as the Applicant stated in her evidence to the Tribunal.

    [2] T3 of the T Documents, page 10-14. 4

13. The Applicant gave evidence that she came to Australia in March 2020 primarily to see her father, to celebrate her birthday with him and to support him in relation to some surgery he was to undergo.  She stated that her intention was to return to the USA and that if it were not for the COVID-19 pandemic, she would have done so before the end of qualification period.  She said that the travel restrictions imposed in response to the pandemic had prevented her from returning to the USA and she was stuck in Australia.  She said that during the qualification period she lived with her father and his wife[3] in a rented housing unit and her father was providing financial support for her.  She said that her husband had recently told her that he wanted a divorce, but during the qualification period her intention was to return to live with him in the USA.

    [3] The Applicant clarified that her father had remarried after the death of her mother and his current wife is not related to her except by marriage.

14. The Tribunal notes that in her application for the JSP,[4] the Applicant referred to her home in the USA and confirmed that she was currently living in United States and that she was living apart from her husband temporarily until approximately 01 November 2020.

    [4] T13 of the T Documents.

    ASSESSMENT

15. In assessing the evidence, the Tribunal is mindful that the concept of residence has been held to involve two principal elements, physical presence and the intention to treat that place as a home at least for the time being.[5]  The test of whether there is an intention to treat a place as home involves a consideration of whether the person has retained a continuity of association with the place.[6]In addition, the factors set out in section7(3) of the Act should not be applied in a mechanical way in order to reach a determination.
    

    [5] Re Maha Hafza v Director-General of Social Security [1985] FCA 164, Wilcox J stated at [13]

    [6] Levene v. Inland Revenue Commissioners (1928) AC 217 at p 225 and Judd v. Judd(1957) 75 WN (N.S.W.) 147 at p 149 as cited in Maha Hafza at [14]

    [7] McDonald in Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD

    745 at [748]

    They are there to guide the decision-maker in determining the person's intention as to the place of residence.[7]

16. It was clear from the Applicant’s evidence that when she applied for the JSP and during the qualification period, she regarded home as the place she lived with her husband in Florida and she only remained in Australia at that time because she was unable to leave due to the COVID-19 restrictions.  She referred to being stuck in Australia, not because I want to be. She gave no indication that she regarded her father’s housing unit as her home.  In fact, she expressed her frustration with being forced to remain with her father and imposing an unreasonable burden on him.

17. Having regard to the factors set out in section7(3) of the Act, the evidence was that the Applicant:

    a.was living in her father’s housing unit reluctantly;

    b.had no financial interest in the housing unit and did not contribute to the rent or other expenses;

    c.did not have family relationships in Australia apart from her father and possibly her youngest brother which would indicate a willingness or intention to make her home in Australia;

    d.has no employment, business or financial ties to Australia; and

    e.has predominantly lived in the USA since 2012.

18. During the qualification period, the Applicant had an established home in the USA with her husband.  Most of her personal property was left in her US home and she expressed her intention to return there.

    CONCLUSION

19. On the basis of the evidence, the Tribunal cannot be satisfied that, at the relevant time, the Applicant was a person who resides in Australia and accordingly she was not eligible for the JSP at the time of her claim.

20. It is regrettable that the Tribunal is not able to consider the Applicant’s eligibility in a broader context.  She is clearly a victim of circumstances.  As an Australian citizen who has returned to Australia to be with her family, she has been trapped in Australia by the COVID-19 travel restrictions.  She is without any means of support other than from the limited financial resources of her aged father. The effect of the Tribunal’s decision is to exclude her from access to the safety net of the JSP otherwise available to Australian citizens.

21. In this context, the Tribunal notes that the Applicant gave evidence that after the qualification period she was advised by her husband that he wanted a divorce and that this may now change the course of her life.  If that be the case it is open to the Applicant to make a new application for the JSP at any time and the Respondent is required to assess her application based on the circumstances at the time.  If circumstances change from those that applied during the qualification period, it is possible that the Applicant may become eligible for the JSP. 

    DECISION

22. The decision under review is affirmed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision herein of Member R West.

…………………[sgd]…………………………

Associate

Dated: 10 December 2020

Date of hearing:	3 December 2020
Applicant:	By phone
Advocate for the Respondent:	Mr T. Noonan, Services Australia