Secretary, Department of Social Services and Tint Lwin

[2014] AATA 332

[2014] AATA  332

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/6662; 2013/6663
Re	Secretary, Department of Social Services
APPLICANT
And	Tint Lwin
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	29 May 2014
Place	Sydney

The decision of the Social Security Appeals Tribunal dated 13 November 2013 is set aside and in substitution the Tribunal decides that Mr Lwin is not eligible for Baby Bonus in respect of H.

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

Senior Member A K Britton

CATCHWORDS

SOCIAL SECURITY — Baby Bonus — Eligibility — Whether the child is a “FTB child” —Whether the child was living with her father — Interpretation of term “living with”

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) – ss 22; 36(2)(aa); 36(2)(b)(i)

Social Security Act 1901 (Cth)

CASES

Re McGee; Secretary, Department of Social Services [2014] AATA 53
Re Saqa and Secretary, Department of Family and Community Services and Anor [2006] AATA 439

Tint Lwin and Secretary, Department of Social Services, (Unreported, Social Security Appeals Tribunal, Member Halstead, 13 November 2013)

SECONDARY MATERIALS

The Family Assistance Guide, Version 1.169

REASONS FOR DECISION

Senior Member A K Britton

29 May 2014

1. The Secretary of the Department of Social Services (the Secretary) has applied to the Administrative Appeals Tribunal (AAT) for review of a decision of the Social Security Appeals Tribunal (SSAT) to set aside a decision of an authorised review officer (ARO) to refuse Mr Lwin’s claim for Baby Bonus in respect of his daughter. I will refer in these reasons to Mr Lwin’s daughter by the pseudonym, “H”. Mr Lwin will be eligible for the Baby Bonus if H was a FTB child of Mr Lwin. Whether H was an FTB child of Mr Lwin turns on whether she was “living with” Mr Lwin in the period, 3 February 2012 to 7 March 2012 (the relevant period).

   DID MR LWIN SATISFY THE CRITERIA FOR THE GRANT OF THE BABY BONUS?

2. Mr Lwin will qualify for the Baby Bonus if H was an FTB child of Mr Lwin at any time within the  26 week period starting from the date of her birth (ss 36(2)(aa) and 36(2)(b)(i) of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act). Section 22 of that Act sets out when an individual is a FBT child and provides:

   When an individual is an FTB child of another individual

   1An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

   Individual aged under 16

   2An individual is an FTB child of the adult if:

   (a)the individual is aged under 16; and

   (b)the individual is in the adult's care; and

   (c)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and [emphasis added]

   (d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).

   …

3. It is agreed that paragraphs (a), (b) and (d) are satisfied. It is also agreed that H was not an Australian resident, or a special category visa holder residing in Australia at any time during the 26 weeks commencing from the date of her birth. Accordingly, to satisfy paragraph (c) I must be satisfied that H was “living with” Mr Lwin at some point during that period.

   BACKGROUND FACTS

4. The facts are not in dispute.

5. Mr Lwin is a citizen of Australia and has resided in Australia since January 1991.

6. He and Mi Tint Wai (Mrs Lwin), H’s mother, married in May 2011.

7. Mr Lwin travelled to Myanmar for H’s birth and remained in Myanmar between 28 January 2012 and 7 March 2012. He travelled on a “social visit visa”, a special class of visa available to former citizens of Myanmar. During that period he stayed with Mrs Lwin and H in Mrs Lwin’s family home. Throughout the period he spent in Myanmar, Mr Lwin devoted his time to caring for and supporting his wife and daughter. By 7 March 2012 he had exhausted his annual leave and returned to Australia. He has not returned to Myanmar.

8. Mrs Lwin was unable to return with her husband to Australia in March 2012 because she did not hold an Australian visa. When granted a visa later that year she was unable to travel because of poor health. She and H joined Mr Lwin in March 2013, and have remained in Australia to this day.

9. Since the birth of his daughter Mr Lwin has provided financial and emotional support to H and Mrs Lwin. He is a loving and devoted husband and father.

10. While in Myanmar between January and March 2012, Mr Lwin maintained his apartment in Sydney which he had been renting for about nine years.

11. H was conferred Australian citizenship by descent in September 2012.

    WAS H LIVING WITH MR LWIN IN THE RELEVANT PERIOD?

12. Mr Lwin contends that H was “living with” him in the 33 days he spent in Myanmar immediately after her birth. The Secretary disagrees.

13. In its reasons for decision the SSAT noted the inconsistent approaches taken by the AAT to the interpretation of the words “living with” in the context of s 22(2)(c) of the Family Assistance Act (Tint Lwin and Secretary, Department of Social Services, (Unreported, Social Security Appeals Tribunal, Member Halstead, 13 November 2013) [21] – [27]). The SSAT adopted the approach taken in ReSaqa and Secretary, Department of Family and Community Services and Anor [2006] AATA 439, where the words “living with” were construed to mean (at [22]) “staying with even for a brief period”. The SSAT reasoned that that approach should be preferred as it was consistent with the beneficial nature of the Family Assistance Act. The SSAT concluded that H was “living with” her father in the 33 days he spent in Myanmar after her birth and therefore satisfied s 22(2)(c) of the Family Assistance Act and was eligible to receive the Baby Bonus.

14. The SSAT’s decision was made before the recent decision of the AAT where the meaning of the term “living with” was considered: Re McGee; Secretary, Department of Social Services [2014] AATA 53. Noting that neither the Family Assistance Act nor the Social Security Act 1901 (Cth) provided a definition of that term and after considering the authorities and relevant extracts of the Family Assistance Guide (at 2.1.2.10 and 2.1.2.30), Deputy President Handley stated (at [38] – [40]):

    The relevant meaning of the words ‘abide’ and ‘dwell’ [common dictionary definitions of the word “live” and “living”] has a temporal element suggesting a degree of permanence to the arrangement. In my view, this is apposite in the context of the Family Assistance Act and claims thereunder. The time during which the arrangement has been operational may be relatively short, if the arrangement has only recently commenced. Provided the intention behind the arrangement is ongoing, and, therefore, has a degree of permanence, then the temporal element would likely be satisfied.

    This appears to accord to the relevant provisions in the Family Assistance Guide. The general residence requirement stated in paragraph 2.1.2.10 requires consideration to be given to the period of time that the child has stayed with the individual adult and, while stating that a short period of time is not likely to constitute living with the individual, it does not preclude this. Paragraph 2.1.2.30, which expressly addresses the situation where a child is born overseas, states that the fact of the adult returning to Australia without the child does not make the adult ineligible for payment if the child was living with the adult at any time after the birth. These paragraphs indicate that careful consideration needs to be given to the facts of each case.

    In my view, the meaning of the words ‘living with’ in s 22(2)(c) indicates that the living arrangement must have had a degree of permanence or, at least, been ongoing at the relevant time. [emphasis added]

15. I agree with that analysis. It is consistent with the ordinary meaning of the term “living with” having regard to the context in which it appears. Adopting that approach it is apparent that in this case the living arrangement lacks the necessary degree of permanence. While Mr Lwin’s plan has always been to live with H on a permanent basis in Australia, he had no intention of live with her on an ongoing basis while she was in Myanmar. He travelled to Myanmar on the understanding that he would return to Australia once his annual leave was exhausted and Mrs Lwin and H would join him once Mrs Lwin’s visa was granted. That intention is consistent with the type of visa he was granted, which allowed him to remain in the country for up to a month, with extensions available on request. Although circumstances conspired against Mr Lwin’s desire to remain with his family, it could not be said that the 33 days he spent with his daughter in Myanmar had the necessary degree of permanence. I find that H was not “living with” Mr Lwin in that period.

16. It follows that H was not an FTB child of Mr Lwin, and therefore he is not eligible for the Baby Bonus in respect of H.

17. I have considerable sympathy for Mr Lwin who has had the benefit of a reasoned and favourable decision made by the SSAT only to find that a different approach has been taken by this tribunal to the meaning of words in a statute.  He told the tribunal that he decided to defend the challenge brought by the Secretary to the SSAT’s decision because he did not want his daughter to conclude later in life that she had been treated as a second class Australian citizen. I assure Mr Lwin that my decision was made on the basis of the interpretation of a statutory provision not on the basis of H’s country of birth or visa status.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

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

Associate

Dated 29 May 2014

Date(s) of hearing	9 May 2014
Solicitors for the Applicant	Dr Stephen Thompson, Sparke Helmore
Respondent	In person