REID and SEC, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 754

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 754

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0998

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT REID

Applicant

And SEC, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date1 October 2010

PlaceSydney

Decision The decision under review is affirmed.

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

Dr J D Campbell
  Member

CATCHWORDS

Social Security – Youth Allowance – Australian resident – Full time students outside Australia for purpose of Australian course – Provision of necessary advice – Special consideration – decision under review affirmed.

Social Security Act 1991, sections 7(2), 7(3), 540, 1217, 1218

REASONS FOR DECISION

1 October 2010 Dr J D Campbell, Member

1.Mr Robert Reid, the Applicant, was born on 11 May 1993.  Mr Reid lodged an application for Youth Allowance with Centrelink on 17 April 2009.  In his claim, dated 16 April 2009, Mr Reid detailed that he was living in the principal house of his parent at 21 Kokoda Avenue, Wahroonga and not paying rent.  Mr Reid detailed that he was enrolled as a full time student at Ku-ring-gai Creative Arts High School; nominated a personal bank account with the National Australia Bank and listed his household contents and personal effects as nil.

2.In a parent/guardian statement dated 16 April 2009 and lodged with the claim, Mr Reid senior (the Applicant’s father) stated that he was divorced with two dependent children, aged 16 and 11 years respectively.  Mr Reid senior also authorised the payments to be made to his account at St Ives, and advised that he was in receipt of an age pension.

3.On 15 May 2009 Mr Reid senior is recorded as seeking advice from Centrelink concerning what affect a scenario where his son would travel overseas for one and a half years, remain a full time student and most likely not remain enrolled in an Australian institution would have on his son’s Youth Allowance payments.  Such a scenario was said to be potentially occurring within three weeks of the enquiry. (T6 pg45).

4.Following a further enquiry by Mr Reid on 3 June 2009, Centrelink records detail that Youth Allowance had been granted to Mr Reid on 3 June 2009, payable from 11 May 2009 (T6 p47).

5.On 21 June 2009 Centrelink documents record an affirmation of an earlier decision to cancel Mr Reid’s Youth Allowance. This decision considered the fact that Mr Reid had decided to depart Sydney on 21 July 2009 to live with his father in the Philippines. Further to this it was determined that he no longer qualified for such payments as he was no longer residing in Australia pursuant to s 7(3) of the Social Security Act 1991 (the Act) (T7).

6.Subsequent Centrelink documentation notes Mr Reid senior seeking to provide information and obtain verification about Mr Reid’s overseas study, as well as advising that Mr Reid was enrolled in the Karabar Distance Education Centre, as opposed to the Ku-ring-gai High School. Centrelink required Mr Reid senior to urgently provide details about the distance education program (T8, T9, T10). It was also noted that Mr Reid senior was advised by Centrelink that his son’s Youth Allowance would cease if verification documents were not forthcoming.

7.Mr Reid’s Youth Allowance payments were suspended on 15 September 2009, with effect from 21 June 2009 (T11). 

8.On 16 September 2009 Mr Reid was advised by Centrelink that his Youth Allowance was based on full time study at Karabar High School Distance Education Centre with the course ending on 18 December 2009 (T11).

9.On 23 September 2009 Centrelink records an enquiry from Mr Reid about the reduction in his Youth Allowance payments, and notes that he has started a correspondence course from 31 August 2009 while outside the country.  Furthermore, the Centrelink record details that as Mr Reid is studying overseas in a course which is not an approved course at an approved institution, he does not qualify as a secondary school student and, therefore, Youth Allowance is not payable (T12).

10.In a series of enquiries in October 2009 (T12) Mr Reid senior is documented as seeking to appeal the decision to suspend Mr Reid’s Youth Allowance as Mr Reid was studying overseas.  On 19 October 2009 Centrelink received a letter from Mr Reid senior detailing the circumstances and events that had occurred. This letter included a diary note of a conversation Mr Reid senior had with Mr Dzong, a Centrelink officer, on 8 July 2009. The notes states:

“need written consent from school re staying enrolled and undertaking equivalent o/s course ... will have study credited to Oz course ... this can be extended to Uni if Uni provides same consent ... 13 weeks limit applies to holiday prior to commencement of study and also further holiday after study”.  (T13)

11.On 20 October 2009 Centrelink reconsidered the decision of 15 September 2009 to suspend the payment of Youth Allowance to Mr Reid (T16).  The decision was further reviewed and affirmed by an Authorised Review Officer on 18 November 2009 (T19) and by the Social Security Appeals Tribunal on 17 February 2010.

Further Material

12.At the hearing on 10 September 2010, Mr Reid senior attended in person. He detailed much material that provided me with a better understanding of his own domestic and work life experiences that led to, and continue to have, an effect on the life style options available to his son, Mr Reid:

·In the mid eighties Mr Reid senior was backwards and forwards between Sydney and Manila on business activities associated with property development.

·Mr Reid senior slowed down the property development activities in the Philippines in 2002 and subsequently returned to Sydney.

·In 2003-2004 Mr Reid senior commenced property development activities in Sydney.

·Mr Reid senior experienced financial difficulties in Sydney in 2008. Such difficulties were associated with matters concerning property development.  A prolonged court case lead to the sale of a domestic property in Wahroonga.

·Mr Reid senior’s wife died 1995/1996.  A subsequent defacto relationship of 11 years ceased in 2008, from which the youngest dependant ensued.

·Mr Reid senior has had five cardiac procedures (stents) at St Vincent’s Hospital and is in receipt of the age pension.

·Mr Reid senior was in the Philippines in May 2009 and made arrangements for his two children to attend the International High School in Manila on a trial basis.  The daughter did not enjoy the experience and returned to Sydney to continue her studies, while residing with the grandparents of a friend.  Mr Reid stayed at the school, returning to Sydney in late May early June 2009 to collect the necessities for continuing to live and go to school in the Philippines, always with the intention of continuing his education.

·Mr Reid senior and Mr Reid initially lived in a private hotel in Makita City, but have since moved to a rented house.  Mr Reid senior considers that Mr Reid is somewhat dependent upon him.

·Mr Reid has a mild attention deficit disorder associated with problems of concentration. He has experienced some episodes of depression associated with occasional interactions with his mother.

Consideration and Findings

13.I note that there appears to have been two streams of endeavour coursing through the consideration of this matter.  The two issues are:

(a)Whether Mr Reid qualifies for Youth Allowance; and

(b)If Mr Reid does qualify for Youth Allowance, whether his payment is portable for a period greater than the 13 weeks subsequent his to departure from Australia.

14.Unfortunately, it appears from what has transpired in the correspondence nominated earlier in this decision, these two issues have been intermingled. This has, inturn, lead to a degree of confusion and apparent misunderstanding on behalf of the Applicant , his father and  Centrelink officers.

Qualification for Youth Allowance

15.In addressing the issue of qualification for Youth Allowance, I note that section 540 of the Act provides:

“540 – Qualification for youth allowance general rule

Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

(a)       either of the following applies:

(i)throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);

(ii)the person is a CDEP Scheme participant (see section 1188B) in respect of the period;

(b)throughout the period the person is of youth allowance age (see Subdivision D); and

(c)throughout the period the person satisfies any requirements relating to Youth Allowance Employment Pathway Plans that apply to the person under Subdivision E; and

(d)       throughout the period, the person:

(i)is an Australian resident; or

(ii)is exempt from the residence requirements within the meaning of subdivision 7(7).”

16.I note that the term Australian Resident is defined in subs 7(2) of the Act as follows:

(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.

17.     Subsection 7(3) of the Act indicates as follows:

(3)In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

(a)the nature of the accommodation used by the person in Australia; and

(b)the nature and extent of the family relationships the person has in Australia, and

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

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

(e)the frequency and duration of the person’s travel outside Australia; and

(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.”

18.In addressing the qualifications issues nominated in section 540 of the Act, it is evident that as at 17 April 2009, the date the claim for Youth Allowance was lodged, Mr Reid satisfied all the criteria in that he was residing in Australia and attending school in Australia, his limited assets were located in Australia and he was living with his father and other siblings at Wahroonga.

19.In addressing the criteria listed in subsection 7(3) of the Act, it is evident that from 21 June 2009 Mr Reid was no longer residing in accommodation in Australia and was living with his father in Makita City, Manila.  On this date. Mr Reid left Australia, having returned briefly to collect appropriate clothes and other belongings, before returning to live with his father in the Philippines for one to one and a half years.  It was his intention to live with his father and to attend school in the Philippines.  While at that time he was enrolled at Ku-ring-gai High School, he did not attend from 21 June 2009 onwards, and later in August 2009 enrolled in distance education with Karabar.

20.I note that the Applicant’s step-sister had returned to live in Sydney at this time, as were other siblings bar an older step-brother who was living in America.  I observe that the Applicant had no financial ties or business interests remaining in Australia after this date, although he maintained the bank account listed in his claim.  I note that Mr Reid senior stated that when the Applicant returned temporarily to Sydney at the end of 2009, he lived with his many friends or half-brothers before returning to Manila in early January 2010 (Exh R2).

21.I further note that while Mr Reid may have left many personal effects in Sydney when he departed on 21 June 2009, his intention was to leave and live with his father in Manila. He intended to continue his schooling, eventually by way of a distance learning program from Karabar, and if successful in his education pursuits return to Australia and study at a university.

22.Having considered all the material before me, including Mr Reid senior’s statement of 10 May 2010 (Exh A2), I conclude that Mr Reid has not been an Australian resident since 21 June 2009.  In so stating, I also determine that Mr Reid’s return trip to Australia in late 2009/early 2010 was clearly of a temporary nature and did not alter the finding that Mr Reid was not an Australia resident.  As to the future, circumstances alone will determine whether Mr Reid can be considered to be an Australian resident.

The Portability Issue

23.Much material has been gathered and much time spent on discussion between the Applicant, Mr Reid senior and Centrelink on the issues surrounding portability in circumstances where the Applicant meets the criteria for qualification for Youth Allowance payments.  However, once the criteria for Youth Allowance are no longer met, the portability for temporary absence provision detailed in section 1217 of the Act, and the exception provision for full time students outside Australia for the purpose of the Australian Course detailed in section 1218 of the Act have no part to play. This is because the pre-requisite for the operation of portability provisions (satisfaction of the qualification criteria in section 540 of the Act) must exist before consideration of their operation be entertained.

24.In summary, I find that Mr Reid did not satisfy the Australian resident criteria for qualification for Youth Allowance prior to his departure from Australia on 21 June 2009. As such, payment of Youth Allowance should have been cancelled from that date.  Further, I conclude that the portability provisions contained within sections 1217 and 1218 of the Act can operate and have effect in circumstances where an individual meets and continues to meet the criteria qualifications nominated in section 540 of the Act for Youth Allowance. As Mr Reid does not satisfy the Australian resident criteria, the issue of portability does  not need to be taken any further.

Decision

25.The decision under review is affirmed.

Special Consideration

26.In this matter I have been particular in detailing the circumstances of the interactions which have transpired between Mr Reid, Mr Reid senior and Centrelink.  I am not satisfied that Mr Reid’s claim for Youth Allowance, its subsequent granting and later cancellation have not been tarnished with confusion and resultant wasted effort.  For whatever reason, Centrelink officers appear in part to be trying to assist Mr Reid senior in his endeavours on behalf of his son, when focus of the claim appeal shifts from qualification criteria to gathering information concerning portability provisions pursuant to sections 1217 and 1218 of the Act.

27.As a consequence of this confusion, Mr Reid senior has continued to pursue his endeavours on behalf of his son believing that if the portability provision were to be satisfied, the qualification criteria of Australian resident would somehow be met.  It would appear to me that there is sufficient Centrelink documentation presented to Mr Reid senior to permit him to form such a view. Certainly there is little material before me which allows me to conclude that Mr Reid senior was dissuaded from such a view.

28.While the issue of debt is not before me, I note that a debt has been raised, and that another amount of debt could occur as a consequence of the issue of a stay order by the Tribunal in the circumstances that the Respondent (Centrelink) made no objection to such a stay being granted.

29.In the light of both what has transpired in the long term consideration of this matter, the confusion surrounding advice given to parties assisting Mr Reid as to what information needed to be provided and what was relevant to finalisation of the matter, and the personal circumstances of both Mr Reid and his father, it is my strong recommendation that waiver of debts arising from lodgement of this claim be approved.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed: ................[sgd].....................................................................
           Associate

Date of Hearing  10 September 2010
Date of Decision  1 October 2010
Advocate for the Applicant       Mr R Reid, Applicant’s father 
Advocate for the Respondent   Mr B Slattery, Centrelink Advocacy Branch