Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 769
•5 November 2012
[2012] AATA 769
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4235
Re
Brett Opie
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 5 November 2012 Place Adelaide Mr Opie’s application for a stay of the decision of the Social Security Appeals Tribunal dated 3 September 2012 pursuant to subs 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
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Senior Member K Bean
CATCHWORDS
PRACTICE AND PROCEDURE - Application for stay - Minimal hardship likely to be suffered if stay not granted - Some potential difficulties with recovery of monies paid out if substantive application unsuccessful - Prospects of success less than even - Request for stay order refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), subs 41(2)
Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (Cth) (No. 34, 2011)
Social Security Act 1991 (Cth), subs 7(1), 7(2), 7(3), 94(1)(ea), and 1218AA
CASES
Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454
REASONS FOR DECISION
Senior Member K Bean
5 November 2012
INTRODUCTION
The applicant, Mr Opie, has been in receipt of disability support pension (DSP) since 18 December 2001. Mr Opie has spent the bulk of the time since he was granted DSP outside of Australia. For a large portion of that time, he has lived in the Philippines, where he has developed significant ties.
Up until 2011, Mr Opie at all times met the requirements for continued payment of his DSP, including by returning to Australia every 13 weeks during the period when it was necessary for him to do this in order to retain eligibility for DSP. However, in 2011, significant amendments were made to the provisions affecting portability of DSP. In particular, the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Act 2011 (the Amending Act) amended the Social Security Act 1991 (the Act) so as to require a recipient of DSP to be an Australian resident other than in specified circumstances.
In early 2012, Centrelink reviewed Mr Opie’s circumstances in light of the new portability provisions, and a decision was made in March 2012 that he was not an Australian resident and was accordingly not eligible for DSP. Mr Opie sought review of that decision by the Social Security Appeals Tribunal (SSAT) and on 3 September this year, the SSAT also decided that Mr Opie was not an Australian resident and that he ceased to qualify for DSP on 15 March 2012.
As a consequence of that decision, Mr Opie’s DSP will cease 13 weeks after the date of the SSAT’s decision, unless a stay of the SSAT’s decision is granted by this Tribunal.[1] Mr Opie has accordingly made an application to this Tribunal for the grant of a stay of the decision of the SSAT, as well as for the review of the decision of the SSAT. If the stay sought by Mr Opie is granted it will have the effect that he will continue to receive DSP pending the outcome of his substantive application for review of the decision of the SSAT by this Tribunal.
[1] T2/11.
It follows that the issue currently before me is whether I should grant a stay of the SSAT’s decision.
APPLICABLE LAW
The Tribunal’s power to stay a decision under review is found in subs 41(2) of the Administrative Appeals Tribunal Act 1975, which relevantly provides as follows:
“The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
It is also clear from the applicable authorities that where ongoing payments will result from a stay order, there are three principal considerations for the Tribunal in deciding whether to grant a stay. Those considerations have been summarised by Professor Dennis Pearce in his text Administrative Appeals Tribunal as follows:
“●any hardship which a party to the review may suffer by reason of the grant or refusal of a stay;
●the likelihood of recovery by the Commonwealth of moneys to be paid under the determination sought to be stayed;
●the prospect of success of the application for review.”[2]
[2] Pearce, D, Administrative Appeals Tribunal, 2nd Edition, Butterworths, 2007, p 158, citing Re Repatriation Commission and Delkou (1985) 8 ALD 454.
Accordingly, I propose to address each of those issues in considering whether a stay should be granted in the particular circumstances of this matter.
ANY HARDSHIP WHICH MAY BE SUFFERED BY MR OPIE IF A STAY IS NOT GRANTED
Ms Riley, who appeared as advocate for Mr Opie at the stay hearing, conceded that Mr Opie has access to substantial funds. She said that he has a term deposit in Australia in the amount $110,000 together with a “a day to day account” in the Philippines in the amount of $17,000.[3] Accordingly, Ms Riley conceded that Mr Opie would be in a position to support himself if a stay was not granted and his DSP payments ceased. She also conceded that if a stay was not granted and Mr Opie’s substantive application was successful he would be paid arrears of DSP and to that extent would not be “out of pocket” as a result of a stay not being granted.
[3] Submissions for the applicant, [3.9].
However, she contended that some tangible detriment would be suffered by Mr Opie if a stay was not granted. She said if his DSP was cancelled he would also cease to qualify for a pension card which entitles him to a number of benefits, including reduced rates for medication and public transport. She submitted that, if a stay was not granted but Mr Opie was ultimately successful in his substantive application, he would not be compensated for the additional costs incurred by him in paying for medication and fares at the ordinary rate during the period between when his DSP was cancelled and when it was ultimately restored.
Conversely, of course it also follows that if a stay was granted and Mr Opie was ultimately unsuccessful in his substantive application, he would have received the additional benefits accruing to him as a result of holding a pension card, notwithstanding that he was not strictly entitled to those benefits during the period after he was ultimately found not to have been eligible for DSP.
Nevertheless, as he will lose his pension card if his DSP is cancelled, I accept that some detriment will be suffered by Mr Opie if a stay is not granted and he is ultimately successful in his substantive application. However, that detriment is far less than would be the case if, for example, he did not have access to substantial funds which are ample for his support during the period pending a final decision by this Tribunal on his substantive application.
In assessing the weight to be given to the detriment he may suffer, I also consider that regard should be had to the fact that Mr Opie’s entitlement to a pension card is tied to his eligibility for DSP. Therefore his prospects of success on the substantive application are relevant in considering whether he should continue to receive the benefits associated with holding a pension card, pending the outcome of his substantive application.
THE LIKELIHOOD OF RECOVERY OF MONIES PAID TO MR OPIE DURING THE CURRENCY OF A STAY
As I have indicated above, Mr Opie has access to substantial funds and Ms Riley submitted that he would have the capacity to satisfy any debt owed to the Commonwealth. Alternatively, she also submitted that Centrelink would have the ability to make deductions from any future payments to which Mr Opie was entitled, such as for example, if he remained in Australia and was able to qualify for DSP again in the future.
However, Mr Opie has acknowledged that he has a five year old daughter in the Philippines and he told the SSAT that he was renting an apartment in the Philippines.[4] Ms Riley also acknowledged that in the period between September 2000 and March 2012, Mr Opie had spent approximately two years in Australia and nine years outside Australia. She further acknowledged that Mr Opie has current plans to return to the Philippines for Christmas, although she said he intended to return to Australia after visiting the Philippines and seeing his daughter over the Christmas period.
[4] T2/4.
In these circumstances, the respondent submitted that there was some risk that Mr Opie would return to the Philippines indefinitely and that this would frustrate recovery of any debt incurred by him as a result of a stay being granted.
In my view, the risk identified by the respondent is lessened to some extent by the fact that if this Tribunal was to affirm the cancellation of Mr Opie’s DSP, it would be in his longer term financial interests to remain in Australia with a view to re-establishing his entitlement to DSP. Were he to do so, that would be likely to allow for recovery of any debt owed to the Commonwealth, whether from Mr Opie’s existing funds or potentially by way of deductions from any welfare payments to which Mr Opie was found to be entitled.
However, on the evidence before me, I nevertheless accept there is some risk that if a stay is granted and his substantive application is unsuccessful, Mr Opie may return to the Philippines indefinitely, or at least make lengthy visits to the Philippines, either of which has the potential to compromise the Commonwealth’s ability to recover any debt from him.
MR OPIE’S PROSPECTS OF SUCCESS ON THE SUBSTANTIVE APPLICATION
As I have alluded to above, the Amending Act came into effect on 1 July 2011. One of the amendments made by it was to insert subs 94(1)(ea) into s 94 of the Act, which specifies the criteria for qualification for DSP. Subsection 94(1)(ea) states as follows:
“Qualification for disability support pension
(1)A person is qualified for disability support pension if:
…
(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.”
Section 1218AA of the Act relates to persons who are terminally ill and does not apply to Mr Opie. Therefore in order to qualify for DSP after the commencement of the Amending Act, Mr Opie must establish that he is an Australian resident.
The term “Australian resident” is defined by subs 7(1) of the Act which provides as follows:
“Australian residence definitions
(1) In this Act, unless the contrary intention appears:
"Australian resident" has the meaning given by subsection (2).”
Subsections 7(2) and (3) also provide that:
“(2)An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Note:For holder and permanent visa see subsection (1).
(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.”
As Mr Opie is an Australian citizen, it follows that the main question before this Tribunal in the context of the substantive application is whether, having regard to the matters set out in subs 7(3), Mr Opie was an Australian resident as at and from 15 March 2012. As that is the ultimate question for resolution by the Tribunal following a final hearing, it is neither necessary or appropriate that I consider it exhaustively.
However, I note that Mr Opie most recently returned to Australia on 13 March 2012, and has remained in Australia since then. Ms Riley submitted that Mr Opie is currently staying with a friend in a large house in which he has his own room, with room for his personal belongings. I note that Mr Opie also told the SSAT that he rents premises in the Philippines, and that his rent is paid in advance until November 2012.[5] He apparently also told the SSAT that he had rented this property for over two years. Mr Opie also told the SSAT that his five year old daughter and her mother are living in this property whilst he is in Australia, although he is not currently in a relationship with his daughter’s mother.
[5] T2/8.
Ms Riley submitted that whilst Mr Opie had been estranged from his parents and brothers (who live in Australia) until he returned to Australia this year, he had begun to re-establish those relationships and had also made contact with his ex-wife in Australia. Whilst Ms Riley submitted that Mr Opie was unable to work because of his medical conditions, she also said he has always kept the bulk of his investments in Australia and has a large term deposit in Australia in the amount $110,000. Mr Opie is a qualified plumber and Ms Riley submitted that his professional tools were also in Australia.
Ms Riley conceded that Mr Opie owned no property either in Australia or in the Philippines. As alluded to above, Ms Riley also did not dispute that since 2000, Mr Opie had spent the bulk of his time outside Australia, having spent approximately two years in Australia and nine years outside Australia in the period from September 2000 until March 2012.
However, Ms Riley also submitted that I should have regard to the fact that during the periods when Mr Opie was outside Australia, his absences did not disqualify him from receipt of DSP. In other words, his absences were permissible at the time in the context of qualification for DSP. She accordingly submitted that there was a degree of unfairness in having regard to those past absences in reaching a conclusion that, following a change in the legislation, he no longer qualified for DSP.
Ms Riley acknowledged that the relevant provision did not in fact have a retrospective effect. However she contended that there was an element of retrospectivity about its application to Mr Opie, in so far as the legislation drew on circumstances which did not disqualify Mr Opie from DSP at the time to potentially reach a conclusion that, following the amendment of the legislation, activities which were permissible at the time now had the result that he no longer qualified for DSP.
Ultimately of course, it will be a matter for the Tribunal constituted to hear the substantive application to determine the relevance of the asserted unfairness relied upon by Ms Riley. In the context of this application however, I am not persuaded that reliance on the unfairness asserted by Ms Riley will significantly assist Mr Opie in establishing that he was an Australian resident in March 2012.
It is of course common for the legislature to change eligibility requirements for various benefits and entitlements, sometimes having regard to past events or conduct. As Ms Riley conceded, the intention behind the change to the legislation which took effect on 1 July 2011 appears to have been to “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”.[6] Having regard to the objective of the amendments, it is not surprising that past absences from Australia, whilst permissible at the time, have implications for continued eligibility for DSP in light of the changed legislative requirements. However, I am not persuaded that this gives rise to any unfairness which is relevant to determining whether Mr Opie was an Australian resident within the meaning of the Act at the relevant time.
[6] Explanatory Memorandum, Families, Housing, Community Services and Indigenous Affairs and other Legislation Amendment (Budget and Other Measures) Bill 2010; Applicant’s submissions, [1.9].
Further, on the limited material before me, I consider that the statutory criteria point away from Mr Opie having been an Australian resident as at March 2012. Of particular relevance in this regard are his lengthy absences from Australia, his ties to his daughter and her mother, and his rental accommodation in the Philippines. When these are contrasted with his relatively fragile and attenuated family ties in Australia and his lack of any significant practical or financial ties to Australia, such as a rental agreement or property, I consider that Mr Opie faces some difficulties in establishing that he was an Australian resident within the meaning of the Act at the relevant time.
Whilst those difficulties may be surmountable, on the material before me I consider Mr Opie’s prospects of success in the substantive application to be less than 50 percent.
CONCLUSION
For the reasons set out above, I do not consider that Mr Opie will suffer any substantial hardship if a stay of the SSAT decision is not granted. I also consider that if a stay were to be granted, there is a real possibility that recovery of any debt arising in the event of Mr Opie’s application being unsuccessful could be complicated by the possibility of him departing Australia for the Philippines and remaining there indefinitely, or visiting the Philippines for lengthy periods. Perhaps most significantly, I also consider that he has less than even prospects of succeeding in his substantive application, which in my view lessens the weight which should be given to any detriment flowing from cessation of his DSP pending final determination of the matter, including the loss of his pension card. In these circumstances I consider that, on balance, the relevant considerations militate against granting a stay of the SSAT decision.
Given his relatively weak prospects of success, in order to justify the grant of a stay I consider that it would have been necessary for Mr Opie to demonstrate that he would suffer substantial financial hardship if a stay were not granted. However, I do not consider the likelihood of such hardship to have been established. Rather, I am satisfied that Mr Opie has the means to support himself in the period pending determination of his substantive application, and I consider it to be appropriate that he do so rather than risk incurring a substantial debt which the Commonwealth may have some difficulty in recovering.
For these reasons, I have decided not to grant the stay sought by Mr Opie.
DECISION
Mr Opie’s application for a stay of the decision of the Social Security Appeals Tribunal dated 3 September 2012 pursuant to subs 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of ....................[Sgd]....................................................
Administrative Assistant
Dated 5 November 2012
Date of hearing 16 October 2012 Advocate for the Applicant Ms M Riley Solicitors for the Applicant Welfare Rights SA Inc Advocate for the Joined Party Anthony Parker Solicitors for the Joined Party Program Litigation and Review Branch
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Stay of Proceedings
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Jurisdiction
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Prospects of Success
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