Pitkin; Secretary, Department of Family and Community Services
[2005] AATA 532
•7 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 532
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/9
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant
And
TIMOTHY PITKIN
Respondent
DECISION
Tribunal Mr S. Webb Date7 June 2005
PlaceCooma, New South Wales
Decision The decision under review is affirmed. ..............................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - newstart allowance - meaning of 'reduced employment prospects’ and ‘moving to a new place of residence' - period in which newstart allowance not payable – notification obligations – Respondent moved to a new place of residence – insufficient evidence of employment prospects during the relevant period – on balance, evidence does not support finding that employment prospects reduced - decision affirmed
Social Security Act 1991 ss 7, 593, 601, 634
Social Security (Administration) Act 1999 ss 68, 72
Administrative Appeals Tribunal Act 1975 ss 37, 33 (1AA)
Judiciary Act 1903 s 55ZF
Employment Services Act 1994 s42Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133
Re Moline and Comcare [2003] AATA 827
Hafza v Director-General of Social Security (1985) 60 ALR 647
Director-General of Social Services v Thomson (1981) 38 ALR 624
Castleman v Secretary, Department of Social Security (1999) 29 AAR 458
Marabouti v Department of Employment, Education, Training and Youth Affairs (1998)
Re Secretary, Department of Social Security and Prince (1990) 59 SSR 810
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557
Commonwealth v Muratore (1978) 141 CLR 296
McDonald v Director-General of Social Security (1984) 1 FCR 354REASONS FOR DECISION
7 June 2005 Mr S. Webb 1. This application by the Secretary, Department of Family and Community Services (“the Secretary”) is for review of a Social Security Appeals Tribunal (“SSAT”) decision that Timothy Pitkin, the Respondent in these proceedings, did not reduce his employment prospects by moving to a new place of residence and that, subject to other relevant provisions, newstart allowance was payable from 19 December 2003.
2. The matter came on for hearing in Cooma on 6 May 2005. The Secretary was represented by Mr A. Zhang, a Centrelink advocate. Mr Pitkin was unrepresented and gave oral evidence at the hearing. The Tribunal had before it documents that were prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). Materials were tendered and labelled at the hearing.
3. The manner in which these proceedings have been conducted on behalf of the Secretary is the subject of complaint by Mr Pitkin. The Applicant filed a statement of facts and contentions on 4 May 2005. Mr Pitkin claimed that he received the Applicant’s document on 5 May 2005, one day before the hearing, and was, therefore, denied the opportunity of seeking legal advice in relation to its contents and properly preparing his case. Relevant documents, including certain Centrelink records concerning Mr Pitkin, were not filed in advance of the hearing or tendered during the hearing by the Applicant Secretary. During the course of the hearing it became clear that relevant information concerning the policy interpretation contended for by the Applicant was not available to the Tribunal and, despite Mr Zhang’s best efforts, could not be obtained or provided to assist the Tribunal during the hearing.
4. The Applicant Secretary in this matter failed to comply with the Tribunal’s General Practice Direction and was not adequately prepared for the hearing on 6 May 2005.
5. There is an obligation on Commonwealth agencies to act as a model litigant, which has long been recognised by the Courts (see Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342) and by this Tribunal (see Re Moline and Comcare [2003] AATA 827). It follows that there was an obligation on the Applicant Secretary in these proceedings to act as a model litigant. That obligation is given expression and legal force by legal services directions issued by the Attorney-General pursuant to s 55ZF of the Judiciary Act 1903 with effect from 1 September 1999, specifically the “Directions on the Commonwealth’s Obligation to Act as a Model Litigant”. I also note that the new section 33(1AA) of the AAT Act, that came into force on 16 May 2005, provides that agencies and agency representatives have a duty to assist the Tribunal.
6. The model litigant policy does not preclude Commonwealth agencies from acting firmly and properly in cases such as this. It is expected, however, that the model litigant policy will be upheld and that cases will be properly prepared, with due regard to issues of procedural fairness, in order to assist the Tribunal come to the correct and preferable decision.
7. In this case it was not possible to complete the matter on the day set down. It was necessary to adjourn the hearing and direct the Applicant to file and serve additional documentation, information and closing submissions in writing within seven days, affording Mr Pitkin seven days thereafter in which to respond. Written materials and submissions were duly filed and served by the Applicant (Exhibit A1) and Mr Pitkin filed written submissions in response (Exhibit R2).
factual context
8. The following information arises from the documentary materials and is not in dispute.
9. In the period from February to September 2003 Mr Pitkin was employed by Allambi Youth Services in Newcastle and lived in an apartment in Merewether. On 27 September 2003 Mr Pitkin terminated his lease those premises, and sold his car and other items. On that day his employment with Allambie Youth Services in Newcastle ceased.
10. On 5 October 2003 Mr Pitkin travelled to Vietnam for 10 days holiday en route to Japan, where he expected to teach English for a period of at least three months by arrangement with the Nova Corporation.
11. On 15 October 2003 he arrived in Tokyo, Japan.
12. On 24 October 2003 Mr Pitkin returned to Australia.
13. On 3 November 2003 Mr Pitkin contacted Centrelink by telephone and obtained information about newstart allowance (Exhibit A1, Attachment 1).
14. On 17 November 2003 Mr Pitkin informed the Bundaberg Centrelink office that he intended to claim newstart allowance (Exhibit A1, Attachment 3).
15. On 1 December 2003 Mr Pitkin lodged a preliminary claim for newstart allowance at the Cannonvale Centrelink office (T7).
16. On 11 December 2003 Mr Pitkin lodged a claim for newstart allowance at the Byron Bay Centrelink office (T10).
17. Mr Pitkin was granted newstart allowance from 17 November 2003 (T11).
18. Centrelink notes dated 18 December 2003 record (T12):
“Team Leaders have not approved the move to Byron Bay area but will allow CUS to lodge 2 forms before applying MALEP [movement to area of lower employment prospects non-payment period].”
19. Centrelink notes dated 19 December 2003 record (T13):
“T/Leader will not approve move from Merewether to Byron Bay but cus is ok to lodge 2 forms OOA. I have advised cus that on 3rd form (ie form due approx 26/12/03) MALEP will apply unless cus’ has found other employment in the area OR he may move to an area of lower [sic - higher] employment prospects.”
Subsequently, Centrelink imposed a non-payment period of 26 weeks effective from 19 December 2003.
20. On 12 January 2004 Mr Pitkin sought reconsideration of that decision (T14).
21. On 23 January 2004, the decision was affirmed (T18-T20).
22. On 30 January 2004 Mr Pitkin requested a review of the decision by an Authorised Review Officer (“ARO”) (T21).
23. On 10 February 2004 the ARO affirmed the decision (T25).
24. On 16 April 2004 Mr Pitkin lodged an application for review of the decision by the SSAT (T29).
25. On 27 May 2004 the SSAT decided to set aside the decision and substitute a new decision that “Mr Pitkin did not reduce his employment prospects by moving to a new place of residence” (T2).
26. On 2 July 2004 the Secretary applied for review of the SSAT decision by the Administrative Appeals Tribunal (“the Tribunal”) (T1).
issues for determination
27. The issue for determination is whether Mr Pitkin reduced his employment prospects by moving to a new place of residence without sufficient reason and, if so, the period in which newstart allowance was not payable.
legal principles
28. The Secretary’s application rises under the Social Security Act 1991 (“the Act”). It is necessary to carefully consider the meaning and construction of s 634 of the Act. Under the section a 26 week non-payment period is applied to a newstart allowance claimant (or recipient) if that person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason. The operative date is the date on which the person moved their place of residence, that is the date on which the person, having departed from one place of residence, takes up residence in another place to which he or she has moved. Plainly, determining the date on which a person has moved to a new place of residence is a matter of fact, to which certain difficulty may attach in the particular circumstances of any case. I note in passing that there is power in the Secretary to determine the day on which a non-payment period under section 634 commences (subs 634(4)). Nonetheless, in order for subs 634(1) to have application and for a 26 week non-payment period to be imposed it must be established, on the balance of probabilities, that the newstart allowance claimant (or recipient) moved from one place of residence to another, that the person did so without sufficient reason (subs 634(3)) and that, in doing so, the person reduced his or her employment prospects.
29. Many are the cases in which the meaning of residence has been considered in various statutory contexts, and I am mindful of the cases to which attention has been drawn in these proceedings. I note that matters set out at s 7 of the Act, concerning Australian residence, include matters that must be had regard to when determining whether a person resides in Australia. For present purposes a person’s place of residence is the place in which he or she habitually lives that is their settled or usual abode or their home, at least for the time being, and to which, if absent, they intend to return and treat as home (see Hafza v Director-General of Social Security (1985) 60 ALR 647 at 680-681).
30. I note that the notification obligations on newstart claimants and recipients are set out at s 68 of the Social Security (Administration) Act 1999 (“the Administration Act”). The notification period requirements are set out at s 72 of that Act. In effect, in this case, Mr Pitkin was obliged to notify Centrelink within 14 days if his circumstances changed, and specifically, if he changed his address.
31. A distinction must be made between changing an address, and complying with the notification obligations on newstart claimants and recipients, and moving from one place of residence to another. A person may, for example, be temporarily absent from their place of residence while maintaining a continuity of association with that place and having an intention to return there, and may change their address for Centrelink purposes without changing their place of residence. That is to be distinguished from the case of a person who has more than one place of residence and may, from time to time, move between those residences. It is also to be distinguished from the case of a person who leaves a place of residence and has no intention of returning to it and severs any continuity of association with it, to the extent that it is no longer their place of residence, who changes their address from time to time for Centrelink purposes without establishing a new place of residence, as in the case of a person who is itinerant and without a home or usual place of abode.
32. A person will be within the terms of subs 634(1) only if he or she has moved from one place of residence to a second or new place of residence without sufficient reason and by so moving has reduced his or her employment prospects. Notifying Centrelink of a change of address within the required 14 day period is not evidence of moving to a new place of residence, even though such notification may be a relevant matter to take into account when determining as a matter of fact whether the person has moved to a new place of residence.
33. In this case, as will appear, Mr Pitkin moved his place of residence before claiming newstart allowance. However, that does not exclude him from the operation of subs 634(1), which applies in cases where a claim for newstart allowance is made “on or after the day on which the person moved to the new place of residence and before the end of the [26 week] period” (subs 634(1A)). As a matter of construction it follows that if a person moved from one place of residence to another more than 26 weeks before claiming newstart allowance, subs 634(1) does not apply.
34. In this case the meaning of ‘employment prospects’ is in issue. The term has no special meaning under the Act. Nevertheless, following Director-General of Social Services v Thomson (1981) 38 ALR 624 in which the Federal Court accepted that paid work is the antithesis of unemployment, the term ‘employment prospects’ in the context of the newstart allowance provisions under the Act is directed to paid work that is not unsuitable for the person. For present purposes, ‘employment prospects’ means the possibility or likelihood of or potential for obtaining paid work. That interpretation is consistent with the scope of the qualification criteria for newstart allowance (subs 593(1)) and the newstart allowance ‘activity test’ (subs 601(1)). An interpretation applying a broad dictionary definition of ‘employment’ (see Macquarie Dictionary 3rd Edition, 1997, for example) would encompass all manner of services and work, whether paid or unpaid. Such an interpretation would be contrary to the plain intention of the newstart allowance provisions under the Act and would be inconsistent with the general understanding of the term when applied to a person in common usage.
35. In order to determine a person’s employment prospects, plainly it is necessary to carefully consider factors including but not limited to the person’s work capacity and employment attributes, including their skills, training, qualifications, experience and capabilities, and the classes of work that may be unsuitable for them, in relation to the characteristics of the relevant labour market or salient factors operating upon it. Subsection 634(1) requires a comparative assessment of the person’s employment prospects in their ‘original’ and ‘new’ places of residence.
summary findings
36. Mr Pitkin moved from his place of residence in Merewether, Newcastle in or about September 2003 and arrived in Byron Bay on or about 10 December 2003. He established a new place of residence at Belongal Fields, Ewingdale Road, Byron Bay soon thereafter.
37. Mr Pitkin had no sufficient reason to move to Byron Bay.
38. In order to determine a person’s employment prospects in an area it is necessary to carefully consider the person’s employment attributes, that is their skills, training, qualifications, experience and capability for paid work, and the classes of work for which they are suited (which are not unsuitable) in relation to the particular characteristics of the relevant labour market.
39. There is not sufficient evidence before me concerning Mr Pitkin’s employment prospects in either Merewether, Newcastle or Byron Bay during the relevant period to ascertain, as a matter of probability, that Mr Pitkin reduced his employment prospects by moving from Newcastle to Byron Bay. The scant evidence that is before me does not substantially concern the relevant period in question in these proceedings and, evenso, does not point to any reduction in Mr Pitkin’s employment prospects in or about December 2003 in consequence of him moving to a new place of residence in Byron Bay.
40. That being so, the matter is resolved in Mr Pitkin’s favour.
decision
41. The decision under review is affirmed.
reasons for the decision
42. Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant caselaw and legislation.
43. In the Applicant Secretary’s submission Mr Pitkin moved from a place of residence in Newcastle to a new place of residence in Byron Bay and in so doing reduced his employment prospects, whereby newstart allowance was not payable for 26 weeks from 19 December 2003. As will appear, I do not agree.
44. Mr Pitkin’s unchallenged oral evidence was that he grew up in Bathurst, where he resided with his family. In 1997 he moved to Newcastle to attend University and resided on campus for approximately three years. Thereafter he stayed in shared accommodation and “moved every six months”. In or about February 2003 Mr Pitkin entered into an arrangement to share a flat at Merewether with two others on a six month lease. His evidence was that he lived in that accommodation from February to September 2003 and treated it as his home during that period.
45. On that evidence I am satisfied that Mr Pitkin’s place of residence at that time was Merewether in Newcastle and so find.
46. Mr Pitkin stated that he departed from his residence in Merewether and cancelled the lease in September 2003 in order to travel to Japan to take up employment teaching English, by arrangement with the Nova Corporation (see Exhibit R1, pp7-12). He stated that he “had no intentions of going back to Newcastle”, describing his association with Newcastle at that time as “purely a place for me to stay”. His evidence was that he sold his car and most of his possessions prior to his departure. I accept that evidence and so find.
47. The evidence is that Mr Pitkin travelled to Vietnam for a 10 day holiday, en route to Japan. Mr Pitkin’s evidence was that on arrival in Tokyo he signed a lease for accommodation that had been arranged by the Nova Corporation, but subsequently discovered the pre-arranged accommodation to be sub-standard, over-priced and in the wrong location, contrary to his expectations. He stated “I walked away. Nova wouldn’t help me”. The following exchange ensued between the Tribunal and Mr Pitkin:
“Meaning? --- I said, "No, I'm not working for you any more."
And now, you've given evidence that you'd signed two contracts, one with
Nova and one for a lease. What happened in relation to those contracts? --- The
lease I walked away from. Nova threatened us that they would take it further
and that we'd do our money. I came to an arrangement with the real estate,
where we paid him $50 for each night that we were staying there, to cover his
costs, but other than that, I haven't heard anything again, about that contract.
So how long did you stay there? --- We stayed there three nights. We had no
running water, no beds.
All right. And you say that Nova threatened to take action, did
they? --- Against the real estate contract. They weren't happy that we left their
real estate representative in the lurch, yes. But yes, they threatened that they
could take it further, that was their words, "We could take this further, sir."
As the day we got there, we were supposed to pay a deposit, quite a large
deposit of 20,000 yen.
Did you? --- No, we didn't, because we couldn't get the money out of the bank,
which was kind of lucky for us, but - - -
All right. And you say that you haven't actually been sued for breach of
contract? --- No, I haven't.
All right. So, three nights in that unsatisfactory accommodation, from what
you say. What happened then? --- Then I rang the airline company and worked
out when I could come back to Australia. They gave me, I think, it wouldn't
happen for another five days, I think, the flight - the next flight available, so
I used the money I had to survive in Japan.
Now, what was the ticket that you went to Japan on, was it a return
ticket? --- Yes.
And was it an open-ended return? --- Yes.
It was, was it? --- Yes.
So, that would have been a simple matter of - just of booking a flight, to
return back? --- Yes.
All right? --- That was also a condition with Nova, I think, that we had to have
a return flight, when we went there, we couldn't go there with a one-way
flight.”
48. Accepting Mr Pitkin’s evidence, I am not persuaded that he established a residence in Tokyo, Japan. On the contrary, I am satisfied that he did not. He spent less than two weeks in Japan staying in hotels. Despite his intentions of a longer association and residence in Japan for a time, his visit in 2003 is best described as fleeting and temporary rather than in terms of establishing a place of residence. I note Wilcox J’s discussion of relevant issues in Hafza (supra) at 680-681:
“13. There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 C.L.R. 241 at p.249, by Williams J.:
"The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."
14. Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place -- even involuntarily : see Commissioners of Inland Revenue v. Lysaght (1928) AC 234 a p 248 and Keil v Keil (1947) VR 383 -- a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place -- 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 – together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (1969) 16 F.L.R. 231 at p.236 It is important to observe firstly, that a person may simultaneously be a resident in more than one place -- see the facts of Lysaght 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. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.”
49. Nevertheless, Mr Pitkin had departed from his residence in Merewether at the time of his visit to Japan. I am satisfied that Mr Pitkin had no intention of returning to his previous residence, even though it appears that Centrelink retained his address in Merewether as then current.
50. Mr Pitkin’s evidence was that he returned to Sydney and visited his mother in Bathurst. He then stayed one night with his brother in Lambton, from whom he borrowed a vehicle, and travelled to Airlie Beach. Mr Pitkin stated that his intention at that time was:
“To go find work, so – to travel up the coast.
So, to travel up the coast and to find work? --- Yes, my dreams of Japan had failed, I was in no mood for staying in Newcastle. I didn’t want to show my face really, in Newcastle, again. I had a farewell party with all my mates. My intentions were just to have some fun, do what I wanted, like do what I went to Japan to do, experience new things.”
51. Considering Mr Pitkin’s evidence concerning his movements and the reasons for them in the period from October to 10 December 2003, I am satisfied and find that he did not take up residence in Airlie Beach or any of the places he visited during the period prior to his arrival in Byron Bay on or about 10 December 2003. Essentially, Mr Pitkin was itinerant during this period. The evidence is that Mr Pitkin recorded an address in Airlie Beach when stating his intention to claim newstart allowance (see T10 for example). However, Mr Pitkin’s oral evidence was that he was camping in his brother’s vehicle and not living at the stated address at the time. There is no evidence before me to indicate that Mr Pitkin established a place of residence at Airlie Beach for present purposes. His association with that place was temporary. He stayed for a period of less than two weeks and then left to attend his grandmother’s funeral and did not return.
52. On the evidence before me I am satisfied that Mr Pitkin established a place of residence at Byron Bay having moved there on or about 10 December 2003 and I so find. Initially his place of residence was at Belongal Fields, Byron Bay and subsequently it was a cottage at Cooper’s Lane, Mulumbimby. Mr Pitkin accepted that his place of residence after 10 December 2003 was in Byron Bay and gave evidence that he intended to stay in Byron Bay. I accept that evidence and so find.
53. Mr Pitkin submitted that he did not move from Newcastle to Byron Bay, but rather moved from Newcastle to Japan and some time later ended up in Byron Bay. I do not accept Mr Pitkin’s submission. Plainly, on the evidence before me, Mr Pitkin left his place of residence in Merewether, Newcastle at the end of September 2003 and did not arrive in Byron Bay until 10 December 2003, or thereabouts. His perambulations during the intervening period, whether in Australia or otherwise, do not disturb the fact that he moved from one place of residence in Newcastle to another place of residence in Byron Bay.
54. The evidence is that Mr Pitkin moved his place of residence to Byron Bay on or about 10 December 2003 and lodged a claim for newstart allowance on 11 December 2003. Plainly, Mr Pitkin is within the terms of subs 634(1A), whereby it is necessary to consider subs 634(1).
55. There is no evidence that Mr Pitkin had ‘sufficient reason’ to move to Byron Bay, within the meaning of that term under subs 634(3). I am satisfied that while Mr Pitkin was in straitened financial circumstances in December 2003 on his return to Brisbane following his grandmother’s funeral. However, his financial difficulties at that time do not comprise an ‘extreme circumstance’ whereby it was reasonable for him to move to Byron Bay.
56. In the Applicant Secretary’s submission, Mr Pitkin reduced his employment prospects by moving to Byron Bay from Newcastle, contending that there was a statistically higher level of unemployment in Byron Bay than there was in Newcastle in or about December 2003. The Secretary tendered two bundles of documents purportedly in support of that contention. The first is a bundle of documents printed from the Internet that is attached to the Secretary’s statement of facts and contentions and comprises:
“A” - “Reduced Employment Moving Test” print-out, indicating that the unemployment rate in Merewether was 7.4 percent and in Byron Bay was 12.3 percent on 4 May 2005; and
“B” - “A Snapshot of Byron” and “A Snapshot of Newcastle (C) - Inner” prepared by the Australian Bureau of Statistics from the 2001 census. The 2001 census data reveals that 10.9 percent of the labour force in Newcastle and 14.5 percent of the labour force in Byron Bay was unemployed at that time.
57. The only evidence before me concerning the general statistical unemployment rate in either Newcastle or Byron Bay in or about December 2003 is set out in the ARO’s decision (T26, folio 60). The ARO recorded that:
“The unemployment rate of Merewether is 7.7% with a labour force of 69,169 people compared to the Byron Bay area, which has an unemployment rate of 13.7% and a labour force of 13,133.”
58. The second bundle of documents tendered by the Applicant Secretary are computer print-outs from the “Service Finder Homepage” on 11 May 2005. This bundle of documents sets out the name, location and number of community organisations in Newcastle and in Byron Bay that were listed on the CentreNet Service Finder system on 11 May 2005. It contains no labour market information, such as the number of employees, or vacant positions, or positions filled in or about December 2003, for any of the listed organisations. That material indicates only that there are more community organisations in Newcastle than there are in Byron Bay.
59. The material tendered by the Applicant Secretary is not sufficient to assist the Tribunal to determine the extent of Mr Pitkin’s employment prospects in either Merewether, Newcastle or in Byron Bay in or about December 2003.
60. In the Secretary’s submission, the ambit of ‘employment prospects’ must be considered in relation to the requirements of the ‘activity test’ for newstart allowance pursuant to s 601(1) of the Act. In order to satisfy the activity test for newstart allowance a claimant must actively seek and be willing to undertake paid work, that is, any paid work that the person is capable of undertaking. While compliance with subs 601(1) is not in issue in these proceedings it is germane to consider Branson J’s observations in Castleman v Secretary, Department of Social Security (1999) 29 AAR 458 at paragraphs 18-20:
“18 The submission of the respondent that "paid work" is, in the context of s 601(1), the antithesis of unemployment is to be accepted (Director-General of Social Services v Thomson (1981) 38 ALR 624 at 626-627). However, nothing in s 601(1) creates an obligation on a person required to satisfy the activity test to seek every kind of paid work which is not unsuitable for him or her to undertake, or even a range of such work.
19 The requirements of s 601(1)(a) is that the person satisfy the Secretary that he or she is "actively seeking" paid work. In this context the adverb "actively" imports a requirement of active effort as opposed to indolence or procrastination. What the person is required to make an active effort about is the seeking of paid work which is not unsuitable for him or her to undertake - not the seeking of any particular class of such work, nor the seeking of any particular mix of such work.
20 If a person were to so limit the categories of work which he or she sought that, although the work being sought was not unsuitable for him or her to undertake, the chance of the work being obtained was low, the Secretary (or as the case may be, the Tribunal) might not be satisfied that the person was genuinely seeking paid work. Alternatively, were the person to restrict in a marked way the categories of work which he or she sought, the Secretary (or as the case may be, the Tribunal) might not be satisfied that his or her search for paid work was an active search because of the limited demands made on the person's time by the search actually being undertaken…”
61. The term ‘employment prospects’ has no special meaning under the Act and can be understood to mean, in common usage, the probability or likelihood of or potential for obtaining paid work. The term, in the statutory context in which it is used, does not refer to all available work, whether paid or unpaid, or suitable or unsuitable. It refers only to employment in paid work that is not unsuitable.
62. Following Castleman (supra), paid work that is unsuitable, or in the converse, that is suitable, to be undertaken by a person is not only described by the limits of physical or mental capacity, but also by extent of the person’s skills, training, qualifications and experience or capability. For example, paid work as a doctor in a rural town is unsuitable work for a person who is not possessed of the appropriate qualifications and experience. Paid work as a driver is unsuitable work for a person who has been disqualified from driving.
63. However, as Branson J made clear in Castleman (supra) the unsuitability of paid work is not limited by qualifications, or the absence thereof, alone. Lindren J discussed suitable employment in the context of subs 42(1) of the Employment Services Act 1994 in Marabouti v Department of Employment, Education, Training and Youth Affairs (1998), and said (Transcript p14):
“…there is nothing in that context [s 42(1) of the Employment Services Act 1994] to suggest that particular paid work is to be, or may be, considered unsuitable simply because the person is, or thinks that he or she is, over-qualified…”
Plainly, questions of fact and degree may arise when considering the question whether paid work of a particular class is unsuitable in the particular circumstances.
64. Nonetheless, a person with skills in an area of labour market demand may have better employment prospects in a place where such demand exists than a person without such skills (see Re Secretary, Department of Social Security and Prince (1990) 59 SSR 810).
65. In order to find that a person has reduced his or her employment prospects by moving to a new place of residence it is necessary to determine whether, as a matter of probability, the person reduced the likelihood of obtaining paid work that was not unsuitable by so moving. Such a determination requires findings in relation but not limited to the following at or about the time the person moved from one place of residence to another:
(a)the person’s capacity for work and their employment attributes, including any particular skills, training, qualifications and experience or capability of the person relevant to obtaining paid work;
(b)paid work that the person may have a reasonable prospect of obtaining, that is paid work within the person’s capability or for which they are suited that is not unsuitable work for the person;
(c)variances, if any, in the availability or percentage of paid work that is not unsuitable for the person in the person’s original and new places of residence;
(d)variances in the number or percentage of job seekers with comparable work capacities to the person within the local or regional labour market in the original and new places of residence; and
(e)the existence of regional demographic, labour market or economic factors that may affect the person’s employment prospects in either place.
66. Turning to the instant case, Mr Pitkin submitted that he had “diverse skills”, not just in the area of youth work (Exhibit R2). His oral evidence was that he had obtained a Year 12 certificate and had studied Industrial Design and Fine Arts and Education at University, with one year remaining to complete his degree. He stated that he had worked delivering newspapers and had been employed by the Bathurst City Council and Allambi Youth Services in Newcastle. Mr Pitkin’s evidence was that his training and experience was sufficient for him to be accepted by the Nova Corporation to teach English in Japan. I accept Mr Pitkin’s evidence concerning his work capacities.
67. On Mr Pitkin’s evidence, which was not challenged, I find that he was capable of and suited for unskilled or semi-skilled paid work in a variety of labouring, clerical or service related occupations, as well as paid work in the youth services or related education sectors, albeit not at the level of a qualified professional. Those classes of paid work were not unsuitable for him at that time.
68. Mr Pitkin asserted that he understood there were opportunities to work in the youth services area in Byron Bay, and obtained voluntary unpaid work with Byron Bay Youth Services soon after his arrival. However, it was not until 4 March 2004 that Mr Pitkin obtained paid work at the First Sun Caravan Park, performing maintenance and night security duties. There is no evidence to suggest that he would have fared any better in Newcastle in or about December 2003 in his (then) new place of residence in Byron Bay. There is no evidence before me concerning variances in the availability or percentage of work that may have been suitable for Mr Pitkin in either Byron Bay or Newcastle in or about December 2003.
69. The 2001 census data tendered by the Secretary concerning the number of people and percentage of the workforce employed in classes of paid work that may have been suitable for Mr Pitkin in Byron Bay and in Newcastle reveals that (Secretary’s Statement of Facts and Contentions, Attachment B, pp 11 and 20):
“There were 1519 (14.1%) people (822 males and 697 females) employed as Associate Professionals … 1539 (14.3%) people (415 males and 1124 females) employed as Intermediate Clerical, Sales and Service Workers … 1041 (9.7%) people (646 males and 395 females) employed as Labourers and Related Workers [in the Byron Bay (A) (Statistical Local Area)] in the 2001 Census...
…
There were 301 (13.7%) people (172 males and 129 females) employed as Associate Professionals … 327 (14.9%) people (110 males and 217 females) employed as Intermediate Clerical, Sales and Service Workers … 94 (4.3%) people (69 males and 25 females) employed as Labourers and Related Workers [in the Newcastle (C) – Inner (Statistical Local Area] in the 2001 Census...”
70. On its face, that material indicates that there were more people and greater percentages of the workforce employed in the types of employment to which Mr Pitkin was suited in Byron Bay than in Newcastle in 2001. That data stands in stark contrast to the data that was relied upon by the ARO on 10 February 2004, which indicated, purportedly, that there was a higher level of unemployment in Byron Bay than in Newcastle, or Merewether, at that time (T24 folio 55, T26 folio 59). Plainly, general unemployment statistics do not provide a reasonable measure of the employment prospects of a person and such general statistics are likely to conceal a wide variety of demographic and labour market factors. The amount of unemployed people seeking jobs in an area is one measure of competition for paid work. However, in order to assess the employment prospects of a person it is necessary to consider the extent of competition for paid work that is suitable for the person rather than in relation to all paid work as well as the particular employment attributes of the person. Furthermore, the extent of competition for suitable paid work must be considered in relation to the amount or percentage of such work that is available.
71. There is no evidence before me of the number of job seekers competing for work that may have been suitable for Mr Pitkin in either Newcastle or Byron Bay in or about December 2003. There is no evidence of the number or percentage of suitable positions or job vacancies in either Newcastle or Byron Bay for which Mr Pitkin could reasonably have been expected to apply in or about December 2003. It was open to the Secretary to tender evidence in relation to Byron Bay and Newcastle at or about December 2003 concerning:
(a)the number of job seekers competing for paid work that was suitable for Mr Pitkin, for example detailed Centrelink statistics concerning job seekers at or about that time,
(b)the availability of paid work that was not unsuitable for Mr Pitkin, for example Job Network data concerning suitable vacant positions or data concerning suitable positions publicly advertised at or about that time, and
(c)material concerning the relative characteristics of the labour markets and relevant demographic factors in each place that may have affected Mr Pitkin’s employment prospects in either place.
The Secretary did not do so, relying instead on Census data from 2001, broad unemployment statistics from 2005, lists of community organisations in each place in 2005 and the ARO’s record of general unemployment statistics in or about February 2004.
72. On that evidence the Applicant Secretary submitted I should find that Mr Pitkin reduced his employment prospects by moving from Newcastle to Byron Bay. However, that evidence is not sufficient to support any such finding.
73. Nor is there any compelling evidence to the contrary.
74. The role of this Tribunal is for de novo review of matters that are properly brought before it. That is, to review matters afresh, on the merits, standing in the shoes of the original decision-maker. The Tribunal exercises the powers of the original decision-maker (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557). Strictly there is no onus of proof on either party in proceedings before this Tribunal. However, the evidence must be sufficiently persuasive or compelling, on the balance of probabilities, to warrant disturbing a decision under review (see Commonwealth v Muratore (1978) 141 CLR 296; McDonald v Director-General of Social Security (1984) 1 FCR 354).
75. The state of the evidence in these proceedings is such that the comparative state of the labour markets in Byron Bay and Newcastle, and Mr Pitkin’s relative employment prospects in those places, in or about December 1993 is at its highest opaque. The general statistics recorded by the ARO concerning the relative rates of unemployment are not supported by any other material or data. The material that is before me indicates that Newcastle has a larger labour force, more community organisations and a lower overall percentage rate of unemployment than Byron Bay. I accept, in all likelihood, that those broad relativities pertained in December 2003.
76. The evidence that is before me does not, however, provide any firm basis for, nor as a matter of probability does it point to, a finding that Mr Pitkin reduced his employment prospects by moving from Newcastle to Byron Bay in December 2003. On the contrary, the 2001 Census data points to there being a higher number of people and a greater percentage of people in the workforce employed in paid work that may have been suitable for Mr Pitkin in Byron Bay than in Newcastle.
77. That being so, the Applicant Secretary’s case is not made out on the balance of probabilities. I am not persuaded that it is more probable than not that Mr Pitkin reduced his employment prospects by moving from a place of residence in Merewether, Newcastle to a new place of residence in Byron Bay. It follows, therefore that this case is resolved in Mr Pitkin’s favour.
conclusion
78. Mr Pitkin moved from Newcastle to Byron Bay without ‘sufficient reason’, but the state of the evidence in these proceedings does not persuade me to conclude that, as a matter of probability, he reduced his employment prospects by so moving.
79. For these reasons it follows that the decision under review is affirmed.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed: Z. Khan
AssociateDate/s of Hearing 6 May 2005
Date of Decision 7 June 2005
Representative for the Applicant Mr A. Zhang
Representative for the Respondent Unrepresented
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