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

[2021] AATA 1350

Peng and Secretary, Department of Social Services (Social services second review) [2021] AATA 1350 (17 May 2021)

Division:GENERAL DIVISION

File Number(s):      2020/6677

Re:Kun Peng

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:S TAGLIERI SC MEMBER

Date:17 May 2021

Place:Hobart

The decision under review is set aside and the matter remitted to the Respondent to reconsider in accordance with these reasons and the recommendations of the Tribunal.

......................[sgd]...............................................
S Taglieri SC, Member

Social Security- Eligibility to make Newstart claim- Whether Applicant an Australia resident- Periods of absence from Australia and other considerations- Imprisonment and overseas legal proceedings explaining absence- Intention to return

Legislation

Social Security (Administration) Act 1999 (Cth)

Social Security Act 1991 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Hafza v Director General of Social Security [1985] FCA 164

Opitz and Repatriation Commission [1990] AATA 589
Keil v Keil [1947] VLR 383

Secondary Materials

Australian Government, Social Security Guide (version 1.274)

REASONS FOR DECISION

INTRODUCTION

1. This review concerns the Respondent’s determination rejecting the Applicant’s claim for Newstart Allowance of 11 August 2019 on the basis that the Applicant was not eligible to make the claim. The Respondent determined that although the Applicant was physically present in Australia at the time of lodging his claim, he was not at the time a resident of Australia, a pre-requisite to making a valid claim.

2. On 26 October 2020, the Applicant filed an application to the General Division of this Tribunal (AAT2), as the Social Security and Child Support Division (SSCSD) had in the first instance of review (AAT1) affirmed the Respondent’s determination on 8 October 2020. Written reasons were provided by Member Schiwy of the SSCSD for the decision taken. In summary, on the evidence received by the Member, she was not persuaded that the Applicant was an Australian resident at the time he lodged his claim. She also drew adverse inferences about the Applicant’s credit.

   By exchange of emails with the Tribunal, the parties agreed this review should be conducted on the basis of a hearing on the papers pursuant to s 34J of the Administrative Appeals Act 1975. The Tribunal proceeds accordingly.

   Relevant law and issues

3. The Social Security (Administration) Act 1999 (the SSA Act), contains specific provisions governing who may make a claim for payment under the Social Security Act 1991. In particular, subsection 29(1) relevantly states that a claim can only be made by a person who is an Australian resident and is in Australia.

4. The Respondent has conceded that the Applicant was in Australia at the relevant time of lodging his claim.[1] Hence, the only issue in contention and to be decided on this review, is whether at the relevant time the Applicant was an Australian resident.

   [1] Respondent’s Statement of Facts, Issues and Contentions dated 10 March 2021 (RSOFIC).

5. The meaning of “Australian resident” for the purposes of social security law is provided for in s 7 of the SSA Act. By virtue of s 7(2) of the SSA Act, as the Applicant is an Australian citizen and has been since 2007,[2] if the tribunal is satisfied that he resided in Australia at the time of lodging his claim, the decision under review should be set aside.

   [2] Applicant’s Certificate of Australian Citizenship, T4, 129.

6. The Respondent has referred to many of the authorities of the Tribunal and the Federal Court which have considered the meaning of residency for social security purposes. I will not set them out in detail but note that they have provided guidance in relation to whether a person is an Australian resident. I also accept the Tribunal should consider the Social Security Guide, topic 3.1.1,[3] and what it provides in relation to residency.[4]

   [3] T3 ‘Social Security Guide’ (v 1.274).

   [4] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634.

   The parties’ contentions and evidence

7. The Applicant maintains, as he did on the review below, that he was an Australian resident at the time of claim lodgement. He has produced a large volume of documents in support of this contention,[5] including medical records, Singaporean records showing he is no longer a resident there, tax records, legal documents concerning complaints to the Singapore Medical Council, documents showing his son is not a citizen of Singapore[6] and bank account statements.[7]

   [5] T1, 38 documents attached to AAT2 application.

   [6] T5, 130.

   [7] T6, 131–8.

8. On 29 September 2020, the Applicant also provided a further 10 documents accompanying a Rebuttal submission which have been considered.[8] These documents evidence a near death by drowning in 2014 while in Singapore, his imprisonment in Singapore between 5 November 2014 and 26 May 2016, treatment for a serious right eye injury during this time and a psychiatric illness diagnosed as major depressive disorder in 2016.[9]

   [8] T16, 181–206.

   [9] Ibid.

9. On 3 October 2020, the Applicant furnished further documents to support his review. These related to proceedings in which he was involved during the period February to August 2019 in the State court of the Republic of Singapore.[10] In a covering email dated 8 October 2020, the Applicant explained that his absence from Australia during periods relevant to whether he was residing in Australia at the time he lodged his claim, was due to having to deal with these Singaporean legal issues.

   [10] Singapore Court Documents, T18, 210–21.

10. The Respondent relied on the following in support of its contention that at the material time the Applicant was not an Australian resident:

    ·A letter from the Applicant providing a residential address in China;[11]

    ·NAB transaction history for an account ending 1125, showing no transactions in a three-month period from February 2019;[12]

    ·Centrelink online documents for the period August 2019 and June 2020, noting interactions between the Applicant and Respondent;[13]

    ·Centrelink records relating to periods of absence from and presence in Australia.[14]

    [11] T10, 152.

    [12] T6, 131–8.

    [13] T20, 244–⁠60.

    [14] T12, 154–8; T21, 261–7.

11. The parties were in agreement that the Applicant owned a residential property in Australia. However, the Respondent contended that the Applicant did not spend much time living at the property because he was absent from Australia for long periods and stayed with friends while in Australia.

12. The Applicant made written submissions to the effect that the decision under review was incorrect for a number of reasons.  His application to the Tribunal detailed numerous reasons why he claimed the previous decision was wrong. In summary his contentions are:

    ·     That the decision below was incorrectly based on what happened after Centrelink rejected his claim for Newstart allowance on 23 August 2019, rather than the circumstances at the time he made his application. The Applicant contends that in the period after 23 August 2019 he became less qualified yet his application made later in 2020 was accepted. 

    ·     That he was forced to leave Australia after rejection of his claim in August 2019, as he had no means of supporting himself in Australia.

    ·     That evidence of what happened after rejection of the claim on 23 August 2019 should not be taken into account and was irrelevant.

    ·     That his period of absence from Australia between 5 November 2014 and 26 May 2016 was not voluntary but enforced because of his imprisonment in Singapore.

    ·     That once he returned to Australia in June 2016 and until rejection of his claim, he had been in Australia for 88 of 163 weeks, or 54%, so more than half the total time.

    ·     That of his absences from Australia in the period 2016 to 2019, 20 weeks were for psychiatric treatments and 40 weeks for legal proceedings in Singapore. The effect of his submission was that because his absences were compelled, he ought be regarded as resident as he is an Australian citizen, has property in Australia and is not a resident of another country.

    ·     That a majority of the Applicant’s closely related persons, partners, friends, family members, former employers and potential employers are Australian citizens or in Australia. The Applicant however did not identify who these persons were, other than Angela who he described variously as “friend” and “ex-partner” in documents filed with the Tribunal.

    ·     That his links to Australia are strong and stable and he did not qualify for Social Security in another country, this too being indicative of qualification for social welfare in Australia.

    ·     That the AAT1 decision incorrectly focused on factors irrelevant to eligibility to claim Newstart because financial supports from other persons were not relevant to residency but means test eligibility.

    ·     The Applicant disputed adverse inferences about credit. He stated that it was unfair for him to be criticised about his difficulty recalling facts when he had a diagnosis that explained poor memory and also because of covid-19 he had not seen his family for some time and needed to think about when he last saw his son.

    ·     That the AAT1 was wrong to rely on suspicions the Applicant may have had employment in China or Singapore, when there was no evidence to that effect and the suspicions were contrary to the medical evidence by Dr Segkar[15] and others who certified that he was incapacitated for work.

    ·     That his documentation demonstrates that he has not paid tax or received income in Singapore, which also rebuts the suspicions held by the AAT1 Member about earnings from employment.

    [15] T16, 189–97.

13. In a concluding submission the Applicant stated that the decision of the AAT1 was not based on objective evidence but on subjective baseless prejudice and suspicions.

14. The Applicant also filed and relied on written submissions dated 14 January 2021. In these, he makes complaints about misuse of administrative power and violation of personal privacy by the Respondent. The submissions make requests to limit the information and evidence which can be used for the purposes of this review.

15. The submissions referred to at [14] are misguided as the Tribunal is required to take into account all evidence relevant to the issues in contention for the purposes of making the correct or preferable decision. Notably, because residency has been held to involve two notions; where a person is physically; and secondly where he/she intends to live,[16] present and future circumstances may be relevant in any given case.

    [16] Hafza v Director General of Social Security [1985] FCA 164 per Wilcox J at 680.

16. In the Respondent’s submissions inviting affirmation of the decision below, emphasis is placed on the Applicant’s periods of absences from Australia and the evidence that his ex-wife and child are residing in China where he has been mostly living. The Respondent points to immigration data which it says shows that since 2014, the majority of the Applicant’s time has been outside of Australia. Namely, that in 2.3 years the Applicant has only been present for 7% of the time.[17]

    [17] RSOFIC [15].

17. The Respondent also contends that the Applicant has very few ties with Australia and says that the AAT1 Member’s findings about lack of credit and reliability are important and by inference, this Tribunal should makes similar adverse credit findings.[18]

    [18] RSOFIC [18].

    Findings and evaluation of evidence

18. The Tribunal has not had the benefit of hearing oral evidence from the Applicant or observing his demeanour, as both parties agreed that this review should proceed on the papers.[19]  Nevertheless, there is merit in the submission that the nature of the Applicant’s medical conditions and medical evidence about the incapacity they caused, were not adequately considered when assessing the reliability of evidence at the AAT1 hearing.

    [19] Request from Applicant received 7 April 2021; Respondent’s consent received 7 April 2021.

19. I also accept the Applicant’s contentions that findings of fact should not be made on the basis of suspicion. While it is proper to draw factual inferences when underlying findings of fact permit, there was no evidence of employment or earnings before the AAT1 and the adverse remarks and inferences against the Applicant about employment and earnings tainted the decision making below.

20. On the evidence before me, I make the following findings:

    ·The Applicant at the relevant time owned residential property in Australia and still does.

    ·The Applicant’s son is an Australian citizen, but resides in China and has done so for approximately five years or more. The Applicant met his Chinese ex-wife in Singapore in approximately 2012 but the Applicant did not reside with her for the period 5 November 2014 to 26 May 2016, as he was imprisoned in Singapore during this time.

    ·The Applicant’s ex-wife resides in China and has done so for some years.

    ·The Applicant separated from his ex-wife in approximately 2014 but it appears he has spent considerable time at the same address as her in China after release from prison in May 2016.

    ·There is no evidence of the Applicant working or earning income in Australia from at least 2013.

    ·The Applicant has a genuine injury and disability relating to his right eye and has had extensive medical treatment for it outside of Australia.

    ·The Applicant has not had assessable income in Singapore since 2015 and up to about 2017.

    ·The Applicant has a diagnosed major depressive disorder with anxiety and has been treated overseas by GPs and psychiatrists between 2016 and at least 2018.

    ·Soon after the Applicant’s imprisonment he returned to Australia on 24 June 2016 and from that time his entry and exit from Australia has not been accurately recorded in exhibit T12. Rather, the source records from the Immigration Department contained in T21 demonstrate the following –

Arrived in Australia	Departed Australia	Days	Weeks
2016
24/06/2016	26/09/2016	95 (T12 says 94)	13 weeks and 4 days
3/11/2016	5/12/2016	33 (T12 says 32)	4 weeks and 5 days
10/12/2016	31/12/2016	22	3 weeks and 1 day
Total	150 / 190
2017
01/01/2017	16/03/2017	75 (T12 says 74)	10 weeks and 5 days
12/04/2017	06/05/2017	25 (T12 says 25)	3 weeks and 4 days
16/06/2017	14/08/2017	60 (T12 say 59)	8 weeks and 4 days
24/08/2017	22/09/2017	30 (T12 says 29)	4 weeks and 2 days
27/10/2017	02/12/2017	37 (T12 says 35)	5 weeks and 2 days
18/12/2017	31/12/2017	14	2 weeks
Total	241 / 365
2018
01/01/2018	06/01/2018	5	5 days
15/01/2018	09/03/2018	54 (T12 says 54)	7 weeks and 5 days
21/03/2018	06/05/2018	47 (T12 says 46)	6 weeks and 5 days
31/05/2018	12/07/2018	43 (T12 says 42)	6 weeks and 1 day
08/08/2018	27/08/2018[20]	20	2 weeks and 6 days
30/08/2018	14/11/2018[21]	77 (T12 says 75)	11 weeks
Total	170 / 365
2019
28/02/2019	20/03/2019	21 (T12 says 19)	3 weeks
10/08/2019	29/08/2019	20 (T12 says 18)	2 weeks and 6 days
Total	41 /365
2020
31/01/2020	16/02/2020	17	2 weeks and 3 days
Total	17 / 290 (up until date of application for review)

[20] There is some inconsistency between pages 264 and 265 of T21 about Applicant’s date of arrival. The differences are unlikely to be particularly material.

[21] As above. 

·The Applicant was involved in legal proceedings in Singapore from late 2018 and throughout most of 2019.

1. In 2012, the Applicant moved to Singapore for work and after a relatively short time he encountered mental health difficulties and then was imprisoned. He was not released from prison until 26 May 2016.

2. His period of mental illness and incarceration deprived him of his freedom and prevented him from returning to Australia to live. These circumstances are not typical of many cases in which the question of residency of Australia is in issue. However, the concept of imprisonment and how it impacts on questions of residency has been considered by Courts and Tribunals. Incarceration in one place which prevents a person from carrying out their plans to live in different place, will not necessarily mean that the person resides in the place in which they are imprisoned.[22]

   [22] Opitz and Repatriation Commission [1990] AATA 589; Keil v Keil [1947] VLR 383.

3. In my view, it is significant that the Applicant chose to return to Australia soon after being released from prison. From when he arrived in Australia on 24 June 2016 and the date he lodged the claim for Newstart Allowance in August 2019, his absences from Australia are largely explained by the need to obtain treatment for the eye injury sustained in Singapore, and legal proceedings also in Singapore, the latter of which I accept would have been very difficult to conduct from another country.

4. The Applicant has presented evidence about his psychiatric condition and eye injury, including that in 2018 they were wholly incapacitating. The Respondent has not rebutted this evidence, nor challenged it in the AAT1 hearing. Accordingly, I am persuaded that the Applicant had no means of supporting himself in Australia between about June 2016 and August 2019.

5. The absence of banking transactions in the Applicant’s Australian bank accounts are unsurprising, as the evidence is that he has not had any paid employment or social security payment other than during the very short period in 2020.

6. The evidence establishes the Applicant has not been in Australia since early 2020,[23] but he claims that he has been unable to return due to covid-19. This claim has not been disputed by the Respondent and it is widely known and publicised that travel into Australia was heavily restricted from March 2020, even for Australian citizens abroad.

   [23] T21, 265, last departure 16.2.20 and not updated record showing entry to Australia.

7. The AAT1 placed emphasis on the fact that the Applicant’s Australian property was advertised for rental in November 2019, but this is unsurprising as he was not in Australia. It raises the possibility that he received rental income in Australia, but there is no evidence about this. If he earned rental income from Australia, this may also be a factor favouring a finding of residency.

8. There are factors pointing to residency and non-residency as at August 2019 in this case. Importantly, the Applicant states that he would stay in Australia if he was able to obtain a social security payment.[24] He has not been challenged about this statement. This supports intention to live in Australia, also a factor weighing in favour of a finding of residency. The correctly summarised data from the immigration department referred to at [20] demonstrates the following time spent in Australia comparative to overseas in the relevant periods:

   ·In the second six months of 2016, 78.9% in Australia, noting he was imprisoned in Singapore in the first six months of 2016.

   ·2017, 66% in Australia.

   ·2018, 46.5% in Australia.

   ·2019, 17% in Australia.

   [24] T14, 165.

9. While the time spent in Australia initially exceeded 50% for two years, it declined to below 50% in 2018 and 2019. The reduced time in Australia in 2019, in the Tribunal’s view, cannot warrant a conclusion adverse to residency because the Applicant’s absences are explained by circumstances either beyond his control or because attending to legal proceedings necessitated his presence in Singapore.

10. Accounting for the factors to be considered in s 7(3) of the SSA and having regard to the Social Security Guide and relevant authorities referred to by the Respondent, this is a finely balanced case. As the Respondent has not disputed factors that favour a finding of residency, and because the adverse credit findings of the AAT1 were not justified in my view, I am satisfied that the decision below was not correct or preferable.

    Conclusion

1. For the foregoing reasons, particularly because the Respondent has not correctly assessed the Applicant’s time spent in Australia or placed adequate emphasis on the reasons for his absences, and because the adverse credit findings were not justified, the reviewable decision is set aside. The Tribunal recommends the Respondent reassess the evidence in this case accurately, noting the Tribunal’s findings referred to at [18] to [29]. The matter is remitted for reconsideration by the Respondent pursuant to s 43(c)(ii) of the Administrative Appeals Act 1975.

I certify that the preceding 31 paragraphs are a true copy of the reasons for the decision herein of S TAGLIERI SC, Member.

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

Associate

Date(s) of hearing:	Determined without a hearing in accordance with s 34J of the Administrative Appeals Act 1975
Applicant (self-represented):	Mr Kun Peng
Solicitors for the Respondent:	Mr Brian Sparkes

Dated:   17 May 2021