Rutledge and Secretary, Department of Family and Community Services

[2004] AATA 903

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/80

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN RUTLEDGE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date27 August 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - carer payment - residential qualification - Australia-Thailand - carer allowance - Centrelink - review by SSAT.

Legislation

Social Security Act 1991- ss7,2m 7.3, 198(1) and (4), 954(1)

Social Security (Administration) Act 1999

Social Security (International Agreements) 1999

Guide to Social Security Law

Authorities

Re Clifopoulos and Secretary, Department of Social Security – AATA 9745

Re Hafza and Director-General of Social Security (1985) 6 FCR 444

Re Distefano and Secretary, Department of Social Security (1996) AATA 11080

Re Gnisios and Secretary, Department of Social Security (1996) AATA 10759

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake (No 2) 1979 2 ALD 634

Re Walsh and Secretary, Department Family and Community Services (2002) AATA 881 (4 October 2002).

REASONS FOR DECISION

27 August 2004 Associate Professor B W Davis AM (Part-time Member)   

The Application

1.      The applicant, John Rutledge, seeks review of decisions made by a Centrelink officer on 15 April 2004, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 18 June 2004, to reject the applicant’s claim for carer payment on grounds that he does not meet the requirement to be a resident of Australia.

2.      A similar decision was made by Centrelink on the same date and by the SSAT on the same date as above, to reject the applicant’s claim for caree allowance for his sister, on grounds the caree did not meet the requirement to be a resident of Australia.

Issues

3.      The issues are whether the carer and the caree meet requirements to be residents of Australia for purposes of carer payment and caree allowance respectively.

Standard of Proof

4.      The Tribunal must determine the matter to its reasonable satisfaction and on the balance of probabilities, in accordance with relevant sections of the Social Security Act 1991.

Legislation

5.      Relevant legislation in this case is as follows:

Social Security Act 1991- ss7,2, 7.3, 198(1) and (4), 954(1)

Social Security (Administration) Act 1999

Social Security (International Agreements) 1999

Guide to Social Security Law, Attachment 4.

Background

6.      The applicant, John Rutledge, lodged his first claim for carer payment on 1 December 1997, in respect of his intellectually impaired sister, Marie Rutledge.   Carer payment was granted.   At the time the applicant was married to a Thai woman, from whom he separated in December 1998.   He married another Thai woman in 2001 and the couple now have a one and half year old son.   His wife is now pregnant.

7.      Carer payment has been cancelled and regranted several times since December 1997, due to various periods of absence from Australia to Thailand, the longest period of absence being a continuous period 29 May 1998 until 14 June 1999.

8.      The applicant was first paid carer allowance for his sister from 23 December 1999 onwards and was continuously in receipt of allowance until 29 March 2004.

9.      On 30 March 2004 the applicant’s carer payment and carer allowance were cancelled, as the applicant had been outside Australia more than the permitted 26 weeks period.

10.     On the same day the applicant returned to Australia, lodged a new claim for carer payment and carer allowance but departed again for Thailand on 5 April 2004.

11.     On 15 April 2004 Centrelink cancelled payments on grounds both the carer and caree were not considered to be Australian residents.   However, a contradictory letter was sent on the same day, indicating that Mr Rutledge could receive carer payment and allowance until 4 October 2004.

12.     Centrelink reviews of the decision were conducted on 15 April and 16 April 2004 and the results phoned to the applicant.    The relevant officers affirmed the decision to cancel payments.   A further review was conducted by an Authorised Review Officer (ARO) on 22 April 2004 and the decision to cancel payments on grounds of non-residency of Australian was again affirmed.   The matter was then referred to the SSAT for its consideration.

13.     The SSAT hearing was conducted in Melbourne on 2 June 2004, but adjourned to receive further information from Mr Rutledge.   The applicant spoke to the Tribunal by conference telephone from Thailand.   After considering all evidence before it,  the SSAT decided on 18 June to affirm the decision under review i.e. Mr Rutledge’s appeal was unsuccessful.   He then decided to lodge an application for review by the AAT on 1 July 2004.

14.     In reaching its verdict the SSAT applied a number of criteria specified in the Act, and Guide to Social Security Law, covering aspects of the situation, such as the applicant’s residency and accommodation, extent of business and financial ties to Australia, location of assets, frequency and duration of travel outside Australia and other relevant factors.

15.     The Tribunal noted that although the applicant is an Australian citizen, he has been spending periods of time in Thailand since 1989, and between June 2001 and March 2004 spent 24 months in Thailand and only 9 months in Australia.   He returned to Australia approximately every 26 weeks to satisfy portability requirements for his carer payments, arguing that he and his sister found living in Thailand more affordable than Australia.    Mr Rutledge is not on the electoral role in Australia and does not keep in touch with his extended family in Australia.   He has been living in Thailand on temporary or tourist visas, which require him to periodically leave the country and reapply each time on his return.

Facts and Contentions

16.     The applicant lodged a statement of facts and contentions immediately prior to the AAT hearing in Hobart on 12 August 2004.   He indicated he was in an extremely difficult financial situation and needed resolution of his case as soon as possible.   He claimed it was his intention to reside in Australia, but Centrelink had created problems by advising him carer payment and allowance would continue until 4 October 2004, but then cancelling payments.   He acknowledged his sister was on Disability Support Pension (DSP) and this would continue, regardless of his residency, however they could not survive if carer payments and allowance were withdrawn.    He contended they lived in Thailand because his sister preferred that location and living costs were much lower than Australia.

17.     The respondent claimed decisions in the case had been lawfully made by Centrelink, both on a factual basis and in accordance with specified criteria in relevant sections of the Social Security Act 1991 and Guide to Social Security Law.   The pattern of residency and travel by the applicant was clear evidence of lack of Australian residency, as he only returned to Australia briefly and periodically to satisfy welfare portability provisions, before returning to Thailand.   A range of criteria showed that neither the carer or caree met Australian residency requirements and case precedents demonstrated their claims to be Australian residents should be rejected.

The AAT Hearing

18.     The AAT hearing was conducted in Hobart on 12 August 2004, the applicant being represented by Mr Greg Sando of the Community Legal Service and the respondent (DFCS) by Ms Diana Hutchinson and Mr Brian Sparkes.   The applicant was in Thailand and gave evidence by conference telephone.

19.     After being affirmed, Mr Rutledge explained his family situation, travel pattern and longer-term intentions.   He indicated he was in dire economic circumstances, having to sell some household items in order to survive in Thailand.   He claimed that when last in Australia, he had been encouraged to believe his Centrelink payments would continue and on receiving a computer record acknowledging receipt of his application, returned to Thailand thinking all was well.   If he had known cancellation would occur, he would have remained in Australia.

20.     Mr Rutledge emphasised he would prefer to live in Australia and had plans to do so from mid 2005, despite his sister’s preference for Thailand.   He had to remain in Thailand at present, because it was necessary to convince the Australia government that his Thai marriage was genuine, before he could apply for an entry visa for his wife.   Given his limited financial capacity, careful timing was necessary since visas and travel expenses had to be met.

21.     In cross-examination, Mr Rutledge indicated he recognised there were limited employment prospects in Australia, but nonetheless was determined to return.   His sister liked Thailand because there was no stigma attached to being mentally handicapped and because his family could provide low cost, but loving care.   He hoped to find a suitable regional centre in Australia, such as Shepparton where the family could settle in a warm climate and with a lower cost structure than capital cities.

22.     In closing submissions counsel for the applicant argued Mr Rutledge had put the welfare of his family first and tried to meet provisions of the Act.   He should not be penalised for minor transgressions of welfare portability provisions, given his need to balance family obligations, financial difficulties and the need to travel frequently.   It was a case where human factors govern; the Tribunal should accept this and order restitution of carer payments and allowances.   It was clear his client regarded Australia as home and would resume residency here as soon as circumstances permitted.

23.     Counsel for the respondent noted Mr Rutledge’s difficulties, but stated it was not possible to ignore the reality the applicant had in past years and currently resided far more in Thailand than Australia.    His claim that he intended to move his family to Australia in 2005 was not supported by any tangible evidence of commitment to that process and Centrelink’s decision to cancel carer payment and allowance was based on firm evidence that the applicant visited Australia only to meet pension portability requirements.    Mr Rutledge should not have assumed that filing applications would necessarily result in payments being granted.   All pensions, benefits and allowances under the Act involve some form of residential criteria for qualification.

Analysis

24.     This is a de-novo hearing, where the Tribunal must stand in the shoes of the original decision-maker, but consider all evidence anew, as well as statutory provisions and any relevant case determinations.

25.     The law relevant to this matter can be found in the Act, particularly the following sections.

Section 7(2) Definition of Australian resident.

Section 7(3) Factors in deciding whether an individual is residing in Australia.

Section 198(1) and (4) Qualification for carer payment.

Section 954(1) Qualification for carer allowance.

26. Division 1 of Part 2.5 of the Act sets out the qualification for carer payment. It is a requirement of s198(4) that a person must be an Australian resident, unless in a country covered under schedule international Social Security agreements (Social Security (International Agreements) Act 1999.   No such agreement is in place between Australia and Thailand.

27.     Division 1 of Part 2.19 of the Act sets out the qualification requirements for carer allowance.   Section 954(1) specifies that a person is qualified for carer allowance for a disabled adult if the care receiver is an Australian resident.

28.     Section 7.2 of the Act defines an Australian resident as a person “who resides in Australia” and is an Australian citizen.   It is not disputed that the applicant and his handicapped sister are Australian citizens.

“7(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.”

29.     Centrelink has contended and the Tribunal agrees, it is relevant and essential to compare the applicant’s and the applicant’s caree’s circumstances in Thailand and Australia.   In Re Clifopoulos and Secretary, Department of Social Security (1994) AATA 9745, the Tribunal found that “the decision-maker is entitled to consider the converse of each factor.” For example, when referring to the “nature of accommodation in Australia”, the Tribunal is entitled to consider the “nature of accommodation outside Australia”. This is further supported in Re Hafza and Director-General of Social Security (1985) 6 FCR 444 where Wilcox J observed that:

“[3]  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.”

30.     Turning more directly to the criteria specified in section 7.2 of the Act and considering the evidence anew, the Tribunal finds as follows:

(a)      Accommodation:

It is clear the applicant has established a home in Thailand and has resided there with his sister, wife and son for three years, and has paid for a water pump and generator to improve household amenity.   By contrast he has no identified accommodation in Australia, being reliant upon friends or “sleeping rough” during brief returns to Australia.

(b)Family Relationships:

The applicant’s family relationships are centred in Thailand; Mr Rutledge readily acknowledging absence of contact with his extended family in Australia since the death of his mother.

(c)Extent of Business or Financial Ties with Australia:

The applicant does not appear to have any business or employment ties in Australia or Thailand.

(d)Assets:

Mr Rutledge claims to be in financial difficulties, but as recently as April 2004 indicated his Thai assets were worth approximately $27,000 in personal and household assets.   The only Australian assets identified were an almost zero bank account and a small superannuation asset of around $1,200.

(e)Travel Outside Australia:

Department of Immigration records demonstrate that Mr Rutledge was absent from Australia on numerous occasions from December 1997 to date, for various periods ranging from 1 week to 6 months.   There are earlier records indicating absences between April 1992 and July 1995.   Since June 2001 the applicant has spent 25 months in Thailand and only 9 Months in Australia, leaving Australia six times during that period to visit Thailand.   This tends to support contentions by the ARO and SSAT that Mr Rutledge’s prime place of residence is Thailand.  

31.     It should be noted that the record of residency for the caree (his handicapped sister) is slightly different.   Marie Rutledge remained absent from Australia between May 1998 and June 1999, when Mr Rutledge returned to Australia for 10 months, during which period he was again overseas approximately 14 weeks.   The caree did not accompany him back to Australia in September 2003 or March 2004 and continues to reside in Thailand.

32.     The Tribunal accepts that the applicant’s preferred place of long-term residency may be Australia, but there is no tangible evidence of moves to accomplish that aim and all current evidence points to Thailand being his prime place of residency in recent years.   In those circumstances he does not meet the criteria for Australian residency specified in s7(3) of the Act and perforce the same applies to his sister, who prefers Thailand and is in his care.

33.     The Tribunal further notes provisions of Attachment 4 to the Guide to the Social Security Law which states:

“A customer outside Australia may still be regarded as an Australian resident (s7(2)) for some payments.   A customer who is temporarily absent, rather than permanently residing outside Australia, must demonstrate a continued commitment to Australia as their home.

The following factors must be considered:

·     Length of absence; AND

·     Reason for absence.

Length of absence

The customer must intend to return to Australia within a specific period.    An absence of 12 months or less would usually be accepted as temporary.   However, a period of 3 years absence should be regarded as an upper limit UNLESS there are exceptional circumstances delaying the customer’s return.

Example:  Sudden ill health

Reason for Absence

The purpose of an overseas visit may indicate whether it is of a temporary nature.  The reason should be consistent with the intended length of the absence.

Examples:   This may be accepted in the case of university and similar appointments, where the appointment is usually for a fixed term.   Missionaries can also be classed as temporarily absent from Australia during the period of their posting as long as they have demonstrated an intention to return to Australia at the end of their stay.”

34.     With respect to Mr Rutledge’s case, there is no medical reason for him or his sister to remain in Thailand, and there is no other exceptional circumstance which prevents them leaving Thailand; indeed the carer crosses borders frequently for visa purposes.   While a person may simultaneously be a resident in more than once place, the weight of evidence is that the applicant has not retained a firm continuity of association with Australia.

35.     Having considered all evidence before it, the Tribunal finds on the balance of probabilities that neither the applicant, nor his sister the caree, are currently residents of Australia within the meaning of s7(2) of the Act, thus they are not entitled to receive carer payment or carer allowance.   It is open to them to reapply for assistance if at some later date circumstances change and they take up residency in Australia.

36.     The decision under review is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  12 August 2004
Date of Decision  27 August 2004
Counsel for the Applicant         Mr Greg Sando
Solicitor for the Applicant          Hobart Community Legal Service
Counsel for the Respondent     Ms Diana Hutchinson
Solicitor for the Respondent     Centrelink