Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Bender

[2010] AATA 1052

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1052

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2012

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And THOMAS BENDER

Respondent

DECISION

Tribunal Ms K Hogan, Member  

Date22 December 2010

PlacePerth

Decision The decision of the Social Security Appeals Tribunal on 23 April 2010 is set aside. The Secretary's decision of 22 January 2010 to cease paying age pension is affirmed.    

.(sgd) Ms K Hogan...........

Member

CATCHWORDS

Social Security - review of decision regarding payment of age pension - whether Australian resident for purpose of the Act - concept of 'residence' within meaning of the Act - factors to be considered in making determination - decision under review set aside

REASONS FOR DECISION

22 December 2010   Ms K Hogan, Member  

1.      The Secretary is seeking a review of the decision of the Social Security Appeals Tribunal that Mr Bender’s age pension should not have been stopped from 3 October 2009.

2.      Mr Bender applied for the pension on 21 September 2009; it was subsequently granted from 27 September 2009.

3.      On 21 October 2009 Centrelink suspended payment of the pension from 3 October 2009 because Mr Bender left Australia within 2 years of his most recent return.

4.      On 22 January 2010 an authorised review officer “ARO” determined that Mr Bender was not an Australian resident between October 2005 and September 2009 which means that when Mr Bender left Australia on 3 October 2009 he ceased to be entitled to be paid age pension because he left Australia within two years of his return to Australia on 17 September 2009.

5.      The ARO also decided that Centrelink policy that age pension can be paid to missionaries throughout their overseas posting could not be applied to Mr Bender as the ARO considered that Mr Bender had not been posted overseas by a religious order.

6.      Mr Bender appealed to the Social Security Appeals Tribunal who decided on 12 April 2010, by the decision by the Presiding Member, to set aside the decision under review and substitute its decision that payment of Mr Bender’s age pension should not have been stopped from 3 October 2009.

7.      The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs applied to review that decision to this Tribunal.

Issues for Determination

8.      The issues for determination are:

(a)      whether Mr Bender ceased to be an Australian resident;

(b)whether Mr Bender’s age pension should have been stopped when he left Australia on 3 October 2009.

Legislation

9. Australian resident is defined in subsection 7(2) of the Act:

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.

Subsection 7(3) provides:

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.

Evidence and Determination of the Issues

10.     It was not disputed that Mr Bender was in Australia when he lodged the claim, nor was it disputed that at the time he lodged the claim Mr Bender was an Australian citizen.

11.     Mr Bender gave evidence by telephone.  I am satisfied that he was an honest witness.

12.     The Secretary led no evidence to suggest that at any time Mr Bender gave information to the Department which was incorrect or misleading.

13.     Mr Bender advised the Tribunal that he had previously played professional basketball in Israel in the 1970’s.  He said he had a desire to live in Israel and, through basketball he was able to do that.  He said that being a Christian and understanding the Bible, he knew that going to Israel was very important in his spiritual life and he knew that one day he would return as a missionary.

14.     In 1993, he had long service leave and decided to go to Israel where he made contact with the Carmel Assembly.

15.     Mr Bender left Australia on 8 October 2005 and became a missionary in Israel.  He has continued his missionary work since.

16.     When he returned to Israel he made contact with the leadership of the Carmel Assembly saying that he wanted to be a part of the congregation and to volunteer with the youth club, which is an outreach program for young people.  Because of his basketball background he has been involved with the basketball program in the village.  His work is voluntary.  He has recently become involved in their drug rehabilitation centre.

17.     Mr Bender contended that he intends to return to Australia and to purchase a home in the future.

18.     His evidence was that there are factors which may “determine the length of time I will be abroad as a missionary” (exhibit R 3) - his advanced age, his wife’s fragile health and the existence of military conflict.

19.     Mr Bender left Australia because he was called to Israel as a missionary.

20.     Mr Bender returned to Australia for the following periods:

(a)      4 November 2008 – 28 December 2008

(b)      17 September 2009 – 3 October 2009

(c)       March 2010 – 18 May 2010

21.     Mr Bender stated (Exhibit R2) that the return trips were for the purpose of:

(a)the birth of his first grandchild.  This trip also involved a number of speaking engagements, which Mr Bender identified (Exhibit R 3) as on more than 20 occasions;

(b)      applying for the age pension;

(c)the birth of his second grandchild.  This trip also involved over 30 speaking engagements during the nine week stay.

22.     On the occasions when Mr Bender returned to Australia he undertook speaking engagements for which he received honorariums that so far, have covered his expenses.

23.     Mr Bender gave evidence that he was neither posted by an organisation nor sent by order.  He was not sent for a certain period of time, and his finances were not taken care of.

24.     The Tribunal is satisfied on the evidence of Mr Bender that he works in an active capacity as a missionary.

25.     Nevertheless the Tribunal is satisfied on the basis of his evidence that his role as a missionary is properly described as having arisen as a response to a call from God, rather than having been posted by his church.

26.     When interpreting legislation such as the provisions under consideration the first step is to look to the ordinary meaning of the words used.

27.     In Gracie and Secretary, Department of Family and Community Services [2005] AATA 179. At paragraph 24 the Tribunal said:

The concept of what amounts to residence was discussed by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444. Although decided with reference to the Social Security Act 1947, the general concepts discussed by His Honour have not been altered by the 1991 Act. His Honour said (at 449-450):

“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 Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 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 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.’

28.     The general concept of residence includes two elements, physical presence in a particular place and the intention to treat that place as home.  There is no doubt that on the day the application was lodged Mr Bender was physically present in Australia, however the address he gave on the application form was that of his son and he stayed in Australia for the period between 17 September 2009 and 3 October 2009.

29.     In addition to looking at the ordinary meaning of the words, the Act itself requires that consideration must be given to certain factors set out in section 7(3) of the Act. These are:

(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.

30.     It is now necessary to look at each of the above factors.  The first is the nature and accommodation used by the person in Australia.  The Tribunal is satisfied on the evidence that Mr Bender’s accommodation in Australia since October 2005 has been temporary, and that Mr Bender could not be described as residing at his son’s home at the time the application was lodged and that he left Australia shortly thereafter.

31.     The second consideration is the nature and extent of the family relationships the person has in Australia.  Mr Bender has a son, daughter-in-law and two grandchildren in Australia.  The Tribunal accepts Mr Bender’s evidence that he has a close relationship with his son.  In Australia he has a number of friends and the closeness of those friendships is evidenced by the fact they provide temporary accommodation for him when he visits Australia.  He also has close ties to Australian churches.  He has a brother in the United States whom he has not seen for a number of years.  His wife’s sister and his sister’s family live 150 kilometers away in Israel.

32.     The third consideration is the nature and extent of the person’s employment, business or financial ties with Australia.  Since October 2005 Mr Bender has not been in an employment relationship nor has he been in a business relationship in Australia.  In relation to financial ties, on the evidence he has bank accounts here but had no other property.

33.     In relation to the frequency and duration of the person’s travel outside Australia, clearly Mr Bender has spent the majority of his time since October 2005 outside of Australia.

34.     The final requirement for consideration is any other matter relevant in determining whether the person intends to remain permanently in Australia.  The Tribunal is satisfied on the basis of the evidence that at the time the application for the pension was lodged Mr Bender had no firm intention to remain permanently in Australia.

35.     Examining the various factors in section 7(3), the Tribunal finds that the evidence does not indicate particularly strong links to Australia for the purposes of the Act.

36. The next factor the Tribunal needs to take into account is the Ministerial Policy in relation to missionaries namely that missionaries would generally be considered to have remained Australian residents for the purpose of subsection 7(2) of the Social Security Act 1991 throughout their overseas posting unless there is a cause to determine otherwise.

37.     The Tribunal is satisfied on the evidence of Mr Bender that he works in an active capacity as a missionary and therefore that policy is applicable.

38.     Nevertheless the Tribunal is satisfied on the basis of his evidence that his role as a missionary is properly described as having arisen as a response to a call from God, rather than having been posted by his church.

39.     The Policy refers to ‘overseas posting’.  Mr Bender was honest in his evidence and the Tribunal forms the view that it was not proper to treat what he has been doing as a ‘posting’.  He indicated that he had a calling and that his calling took him to Israel.  This is unlike the situation of some missionaries who are, in fact, posted by their mission to particular parts of the world and then return to reside in Australia until they are posted again.  That is not the history given by Mr Bender.

40.     The law in relation to the meaning of residence and the application of the provisions of section 7(3) in this case provide a reason to make a determination otherwise than in accordance with the Policy.

41.     The Tribunal determines that Mr Bender was not an Australian resident between 8 October 2005 and 17 September 2009.

42.     The Tribunal determines that when Mr Bender left Australia on 3 October 2009 he ceased to be entitled to be paid age pension because he left Australia within two years of his return to Australia on 17 September 2009.

Decision

43.     The decision of the Social Security Appeals Tribunal on 23 April 2010 is set aside.  The Secretary’s decision of 22 January 2010 to cease paying age pension to Mr Bender is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member

Signed: .(sgd) T Freeman.................
  Associate

Date/s of Hearing  8 December 2010
Date of Decision  22 December 2010
Representative for the Applicant               Mr P Maishman
  Centrelink Legal Services Branch
Representative for the Respondent          Self represented