Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Siqiao Huang

[2009] AATA 1001

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 1001

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2543

GENERAL DIVISION		)
Re		Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Applicant

And Siqiao Huang

Respondent

DECISION

Tribunal Senior Member A K Britton

Date24 November 2009

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal is set aside and substituted with a decision that the respondent’s claim for maternity payment is refused.

.......................[SGD].......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – maternity payment – whether respondent was an Australian resident in the 13 week period following the birth of her child

Social Security Act 1991 – s 7

REASONS FOR DECISION

24 November 2009 Senior Member A K Britton           

1.      The Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs has applied to the Tribunal for review of the decision made by the Social Security Appeals Tribunal (“the SSAT”), “that a maternity payment claim made by Ms Siqiao Huang was effective.”  In January 2007 Ms Huang lodged a claim for maternity payment in respect of her daughter, Yi, who had been born in China five months earlier.  Ms Huang’s claim was refused.  On review that decision was affirmed.

2.      The stated reason for the decision to refuse the claim was Ms Huang’s alleged failure to provide all requisite information to support her claim within the period prescribed by statute.  The decision-maker commented:  “It would appear likely that [the residential eligibility provision] would not be met” but did not otherwise address that issue.

3.      On review, the SSAT set aside that decision, finding that Ms Huang had lodged an effective claim and — contrary to the findings made by Centrelink’s decision-maker — had provided all necessary documents within the period prescribed by statute. 

4.      The Secretary now contends that the SSAT erred by failing to consider, or properly consider, whether Ms Huang met the statutory residence requirement. In these proceedings the Secretary does not challenge the finding that Ms Huang’s supporting documents were lodged within time and using the words of the statute, “that an effective claim has been made,” and I proceed on that basis. 

5.      Ms Huang was represented in these proceedings by her brother.  She was unable to attend.  She is currently in China.  I have had no direct evidence from Ms Huang on a number of issues that are relevant to these matters.  I note for the record that the Secretary had advised, by way of a hearing certificate, that Ms Huang was required to be available for questioning.

6.      The issue in this matter turns on a single issue, that is, does Ms Huang meet the so-called “residence requirement”.  When Ms Huang made her claim in January 2007, the eligibility rules for maternity leave were contained in A New Tax System (Family Assistance) Act 1999 and the Social Security Act 1991 (“the Act”). At that time an applicant like Ms Huang who is the parent of a subject child, is eligible for maternity payment if, among other things, they were eligible for family tax benefit at any time within the 13 week period starting on the day of the birth of the child. A person was eligible for family tax benefit if, among other things, they were an Australian resident: section 21 of the Act. The Act defines an Australian resident to include a person who is an Australian citizen and who resides in Australia: s 7(2).

7. It is not in issue in these proceedings that Ms Huang is an Australian citizen. The Secretary contends, however, that she does not satisfy the second limb of the test of being an Australian resident - that is, to reside in Australia. This, as correctly identified by Ms Maclean for the respondent, is the sole issue to be determined in these proceedings. Section 7(3) of the Act sets out a non-exhaustive list of factors that must be taken into account in deciding whether or not a person is residing in Australia, and a copy of that section has been provided to Mr Huang this morning.

8.      In assessing Ms Huang’s claim, it is necessary to consider each of those factors.  For convenience, I will use the term “the relevant period” to describe the 13 week period immediately following the birth of Ms Huang’s daughter, that is the period, 8 August 2006 to 7 November 2006.

9.      Dealing firstly with paragraph (a) — the nature of the accommodation used by Ms Huang in Australia — I must make some brief comments about the time Ms Huang has spent in Australia since first arriving in order to put my comments about the nature of her accommodation in Australia in context.  Ms Huang arrived in Australia in June 2001 and has not been in Australia since late January 2009.  During that period she has been in Australia on six occasions which total 118 weeks.  Throughout that period she has spent 320 weeks in China.  Her longest visits were in 2004 and 2005.  On the first occasion she spent just over 17 weeks in Australia and on the second occasion in between — July 2004 and October 2005 — she spent 65 weeks in Australia.

10.     The evidence is this:  that most of the time when Ms Huang has been in Australia she has rented accommodation in Melbourne.  The best I can glean from the information provided, assisted by her brother’s evidence, is that she had no ongoing rental accommodation during that period, but rented a number of places which she shared with others. 

11.     She has spent just over six weeks with her brother, most recently for a two week period in January 2009, and before that in January and February 2007, when she stayed in one of the three bedrooms in his apartment in Berala, Sydney.  Prior to that the best evidence is that she spent just over two weeks, again with her brother, in other rented accommodation in Berala.  Mr Huang gave evidence today that, in effect, a room is set aside in his apartment for Ms Huang’s use while she is in Australia.

12.     His evidence is to the effect that that room is also used for various family activities — including use of the TV and computer.  I accept his evidence that there is a room available for Ms Huang when she comes to Australia but it is clear it is not set aside for her exclusive use. 

13.     The evidence is somewhat unclear as to the precise nature of Ms Huang’s accommodation when in China.  It would appear that some of the time she stays with either her own family or, presumably, more recently, her husband’s family, but otherwise, according to her brother, follows work and obtains rental accommodation depending on where she finds herself.

14.     The evidence indicates that in respect of her Australian accommodation , she stores some of her belongings with her brother; I will return to that issue.

15.     The second issue that I am required to have regard to is the nature and extent of the family relationships in Australia.  It is unchallenged that Ms Huang’s brother and his immediate family are resident in Australia and have been so for some time.  He and his family are Ms Huang’s sole relatives in Australia, otherwise her parents - her husband’s family and her extended family appear to reside in China.  It may be also that some family members reside in Canada.  The evidence on that point is somewhat unclear. 

16.     The next issue that I am required to have regard to is the nature and extent of Ms Huang’s employment, business and financial ties in Australia.  The picture on this issue is somewhat unclear, although less so in respect Ms Huang’s employment ties.  In an undated document prepared for the purpose of the SSAT proceedings, lodged on 28 April 2009, Ms Huang stated that prior to October 2005 she had lived and worked in Australia for many years.  In response to a recent request by Centrelink for further particulars about any employment performed in Australia, Ms Huang stated that from April to October ’05 she had worked full time at Global Victoria PTY LTD.

17.     Included in the respondent’s material are Ms Huang’s tax records for the 2006, 2007 and 2008 financial years.  In those years she earned just over $11,000, $736 and $16,000 respectively.

18.     It is somewhat unclear to me, from the information available, on what basis the income of $16,000 has been derived, given the short period Ms Huang was in Australia during the 2008 financial year.  Some of Ms Huang’s financial records have been provided to the Tribunal.  They reveal that in the financial year ending 30 June 2007, Ms Huang held savings accounts with ING, HSBC, the Commonwealth and the St George banks.  Throughout that period there was little, if any, activity on either of those accounts.  There were two significant transactions made into Ms Huang’s Australian accounts.  They are detailed at paragraph 52 of the respondent’s submissions and reveal that in 2005 an amount of $20,000 was transferred to Ms Huang’s Australian bank account, and in 2009 an amount of $50,000 was also transferred into that account.

19.     The next factor that I am required to have regard to is the nature and extent of Ms Huang’s assets located in Australia.  Ms Huang, in a document provided to Centrelink on 11 September 2009, estimated the value of her assets in Australia to be over $10,000.  In January 2007 she estimated the value of her assets in Australia to be $1000.  In the more recent document she particularised the assets held in Australia, that is non-cash assets, as being a television, bed, toaster, pillow, CD collection, books, computer and personal belongings. 

20.     The next factor I am required to have regard to is the frequency and duration of Ms Huang’s travel outside Australia.  I have already touched upon that globally. If the period examined is June 2001 to January 2009, about a third of Ms Huang’s time has been spent in Australia.  The rest of the time has been spent in China and throughout the relevant period, no time was spent in Australia.  In the interests of keeping these reasons reasonably brief, I adopt the uncontested statement which is taken from T 31 of the respondent’s T documents and relates to Ms Huang’s departure from, and arrivals in, Australia.

21.     I am also required to have regard to any other matters relevant to determining whether the person intends to remain permanently in Australia.  There is no direct evidence provided by Ms Huang as to what her intentions are about returning or remaining in Australia.  There is evidence is, however, that she has transferred, as I’ve mentioned, an amount of $50,000 into an Australian account, and that she made an application for a home loan that was approved in February 2009.  That is consistent with Mr Huang’s evidence today, that he has taken steps on behalf of his sister to locate a suitable property and to date has been unsuccessful.

22.     Mr Huang’s evidence today is to the effect that his sister intends to return to Australia when her daughter is ready for school, which is a couple of years off at this stage.  There is no direct evidence or evidence of any other type about Ms Huang’s intention about returning to Australia. 

23.     As I have said, the issue here is whether Ms Huang was residing in Australia at any time within the relevant period.  As Mr Huang properly points out, this is not a crude exercise of asking whether or not Ms Huang was in Australia during the 13 weeks following the birth of her child.  And again, as he properly points out, the fact that her child was born overseas and she has not returned to Australia for any significant period after the birth of her child, does not, of itself, disqualify her from receiving maternity benefit.  It is just one of a number of factors I am required to have regard to.

24. Parliament has instructed that in deciding if Ms Huang is residing in Australia, I must have regard to all of the matters set out in subsection 7(3) of the Act. Those matters have no hierarchy or weighting. Each is a mandatory consideration, and whether one is more important than another will depend on the circumstances of each case. In my view the following matters weigh against a finding that Ms Huang is resident in Australia:

25.     Firstly, the temporary nature of her accommodation while in Australia. At its highest, her evidence is that she has had access since at least 2007 to a spare room in her brother’s house. This is not a case of Ms Huang having any permanent accommodation while in Australia, while at the same time residing for some of her time overseas. 

26.     Also weighing against a finding that Ms Huang does not reside in Australia is the evidence that the only family members that live in Australia are Mr Huang and his immediate family.  I accept that she is close to her brother.  But nonetheless, it is apparent that the bulk of her family do not reside in Australia. 

27.     Regarding the limited employment Ms Huang has undertaken while in Australia, the evidence is somewhat unclear as to precisely how long she has been employed while in Australia.  The tax records provide some insight, but as noted, her overall income earned while in Australia is relatively low.

28.     Another factor, in my view, which goes against a finding of residency is the paucity of reliable evidence to support a claim that she has business ties within Australia, and finally, the limited non-cash assets that she has within Australia.

29. In Ms Huang’s favour is the evidence that there are plans afoot to purchase a property in Australia which, as I have noted, has not yet been realised. A difficulty in this matter has been attempting to discern what her intentions were throughout the relevant period in her absence and without the provision of a statement addressing these issues. But even if it is accepted that throughout the relevant period her intention was, at some time in the future, to reside in Australia on a permanent basis, in my view, that does not outweigh the other evidence which, in my view, does not support a finding that Ms Huang resides in Australia for the purpose of the Act.

30.     For these reasons, the decision of the SSAT is set aside and substituted with a decision that Ms Huang’s claim for maternity payment is refused.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         .................................[SGD].............................................
  Associate

Date/s of Hearing:  24 November 2009
Date of Decision:  24 November 2009
Solicitor for the Applicant          Centrelink Legal Services
The Respondent was represented by her brother, Mr Siming Huang