Stevens and Secretary, Department of Social Services (Social services second review)
[2016] AATA 544
•28 July 2016
Stevens and Secretary, Department of Social Services (Social services second review) [2016] AATA 544 (28 July 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0573
Re
Warren Stevens
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 28 July 2016 Place Canberra The decision under review is set aside. Mr Stevens was an Australian resident on 29 June 2015. The matter is remitted to the Secretary to determine Mr Stevens’ entitlements consistent with this decision.
................................[sgd]........................................
Mr S. Webb, Member
Catchwords
SOCIAL SECURITY – age pension claim – residence test – meaning of ‘Australian resident’ – absence from Australia – assessment of ties to Australia – real and enduring connection with Australia – decision set asideLegislation
Social Security Act 1991 (Cth) ss 7, 43
Social Security (Administration) Act 1999 (Cth) ss 3, 29
Cases
Mentink v Secretary, Department of Social Services [2016] FCAFC 39
REASONS FOR DECISION
Mr S. Webb, Member
28 July 2016
Warren Stevens claimed Age Pension. A delegate of the Secretary decided to reject his claim on residence grounds. Mr Stevens has pressed his review rights, thus far without success.
Issues
In order for Mr Stevens’ age pension claim to be granted there are two steps. First, his claim must satisfy the requirements of s 29 of the Social Security (Administration) Act 1999 (the Administration Act). This is something of a gateway provision – for a claim to be properly made, it must be made by a person who is present in Australia and who is an Australian resident at the time. If these conditions are not met, by operation of s 29(2) of the Administration Act, the claim will be taken not to have been made.
Once the first step is satisfied, the second step is for the claim to be assessed under the qualification requirements for age pension, set out in s 43 of the Social Security Act 1991 (the Social Security Act). These tests require a person to have reached pension age and to have 10 years qualifying Australian residence.
Was Mr Stevens an Australian resident at the time of claim?
The Secretary maintains that even though Mr Stevens was physically present in Australia when he made his claim for age pension, he was not an Australian resident at that time. This is so, the argument goes, because he had been absent from Australia for extended periods over preceding years and he had developed ties in the Republic of the Philippines without maintaining a real and enduring connection with Australia.
Mr Stevens staunchly maintains that this is not correct and that at all times he has maintained strong, close and meaningful ties to Australia. He has always considered Australia to be his home. He is an Australian citizen – he was born and raised in Australia, and he will probably die in Australia. Mr Stevens told me that he likes to travel abroad, and that he has done so extensively over many years. He is hopeful of continuing to do so for the foreseeable future. He considers this to be part of the freedom of being retired and without commitments.
He told me that he retired in 2013 and previously he had worked for many years as a contract miner, always working for blocks of time, with blocks of time off in between, as is common for contractors in the mining industry. When he worked, he would live in mining camps or hotels. When he had time off, he would commonly travel to the Philippines for holidays, as he had done for many years, since 1990 at least. He explained that his ex-wife was from the Philippines and he has spent a good deal of time holidaying and having a good time there as it is cheap and he could afford to do so, particularly when he was working.
He argues that his connections with the Philippines, including his relationship with Trinidad Salazar, should be viewed in this context. His absences from Australia, albeit frequent and sometimes for lengthy periods, have been in the capacity of a tourist – he does not possess a resident visa for the Philippines or any other country outside Australia. His family is in Australia, he has worked and paid taxes in Australia throughout his life, and he has always returned to Australia to work, for family reasons and to be with his friends.
In Mr Stevens’ submission, he should be treated as an Australian resident and his claim for age pension should be granted.
Whether Mr Stevens satisfies the Australian residence test is to be determined under the interlinked provisions of the Administration Act and the Social Security Act. The term ‘Australian resident’ is given meaning under ss 7(1) and (2) of the Social Security Act. Matters that must be considered when deciding whether a person ‘resides in Australia’ are set out in s 7(3) of that Act. These definitional provisions are adopted for the purposes of the Administration Act: s 3(2). It follows that for the purposes of s 29 of the Administration Act, an ‘Australian resident’ is one within the meaning given by ss 7(1), (2) and (3) of the Social Security Act.
For ease of understanding, it is helpful to set out these provisions –
7 Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
...
(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.
Consideration
Mr Stevens reached pension age on 30 June 2015. He is twice married and divorced, and he has no real property in Australia.
After his second divorce, he lived and worked in Lithgow, New South Wales. His mother resided there until her death in or about November 2013. He has a sister, who resides in Lithgow. Mr Stevens has three adult daughters living in Newcastle and an adult son who resides in Lithgow. He maintains regular contact with his children and their families, visiting and staying with them from time to time. His family ties to Australia are strong and enduring, and that was so when he claimed age pension on 29 June 2015. This weighs for him being a resident in Australia when he claimed age pension.
Prior to his mother’s death, Mr Stevens and his sister shared responsibility to care for her. After she died, her house in Lithgow was sold – Mr Stevens could not recall precisely when this occurred. I understand that the sale was arranged by Mr Stevens’ sister while he was absent from Australia, in or about November 2014, and the proceeds were divided between them. Mr Stevens did not return to Australia, thereafter, until 27 June 2015.
Mr Stevens told me that, on his return to Australia after the sale, he had nowhere to stay in Lithgow. His sister could not accommodate him as she lives in a one bedroom flat. His evidence is that he arranged accommodation with an old friend who owns the Wallerawang Hotel. The arrangement was that he would stay in Room 10 whenever he wanted to (with roughly one week’s notice) at a cost of $250 per week, but this amount would be paid in labour, working in the Hotel. When he was not staying in Room 10, he would pack his things and his friend would store them until the next time. Mr Stevens told me that he would not stay at the Hotel when he was visiting his children in Newcastle and when he was not in the Lithgow region, including when he was holidaying in the Philippines. I accept that the arrangement Mr Stevens made in respect of accommodation with his friend at the Wallerawang Hotel had an enduring character – he would always stay in Room 10 and his personal effects were stored with his friend in the Hotel.
Weighing up the transient nature of Mr Stevens’ accommodation in Australia on 29 June 2015 and the enduring character of his arrangement with his friend, I am satisfied that these considerations do not weigh strongly for or against him being an Australian resident on that day.
His travel records reveal that he was absent from Australia for all but 11 days from 18 November 2013 to 29 June 2015, when he lodged his age pension claim. I accept that during the period of these absences from Australia, Mr Stevens was living at his house in the Philippines. This and the likelihood that Mr Stevens did not have an abode in Australia in the period of his absence prior to 27 June 2015 weighs against him residing in Australia on 29 June 2015.
Mr Stevens told me that he came to know the Philippines through his ex-wife, and they took out a lease on a block of land in or about 1990 with the intention of building a holiday home. That marriage failed, however, and the block of land was left vacant for several years. In or about 2000, Mr Stevens started to build a house on the leased land. He did so himself, with help from friends and employing cheap labour. This project was completed in or about 2008. The purpose of building this structure, he explained, was to provide cheaper accommodation for him while he was on holiday and, perhaps more importantly, to provide accommodation that was not in a hotel or a bar where the temptation to over-indulge and drink too much was always present. Mr Stevens told me that his house in the Philippines is not a real asset as it is built on leased land – for him, it is little more than a convenience that facilitates cheap holidays. Nevertheless, it is a connection to the Philippines that weighs in the balance when assessing Mr Stevens’ Australian residence at the time he made his claim for age pension.
For many years, from in or about 1997, Mr Stevens worked as an underground mining contractor. He worked as a miner, a supervisor and a trainer at various times. In these occupations, he spent long periods of time living in temporary accommodation, including mining camps and hotels, over many years. His work was on a contractual basis – he would work in blocks of time, with periods between contracts or between jobs during which he would take extended holidays in the Philippines. His evidence is that on returning to Australia in 2015, he obtained work with Harvey Norman and, more recently, as a delivery driver for a business in Lithgow, which is presently ongoing. Mr Stevens’ employment history is of work-related ties to Australia. The evidence does not establish that he has engaged in employment in the Philippines.
Mr Stevens told me that, after his mother died in or about October 2013, he decided to retire from work. He drew down his superannuation benefits, amounting to a little more than $28,880, on 14 August 2014.[1] In retirement, and without the commitment of caring for his mother, he told me that he was free to spend more time holidaying in the Philippines. He explained that he was able to live cheaply in the house he built and his limited finances would stretch further in the Philippines than in Australia. Nevertheless, his finances were not sufficient to support his lifestyle without income. It was for this reason he returned to Australia on 27 June 2015 – he claimed age pension two days later and, when his claim was rejected, he sought and obtained employment.
[1] T4 folio 60.
On balance, I am satisfied that Mr Stevens’ employment ties to Australia weigh in favour of him being an Australian resident on 29 June 2015.
Mr Stevens’ evidence is that each time he visited the Philippines, he did so on a tourist visa and his intention, always, was to return to Australia. I accept that at all relevant times Mr Stevens held an Australian passport and he was an Australian citizen. There is no evidence that he holds a residence visa for the Republic of the Philippines – his visits to that country were as a tourist. He does not speak the Tagalog language. This weighs in favour of him being an Australian resident on 29 June 2015, but only lightly.
When questioned about references in his age pension claim form to Trinidad Salazar as his ‘partner’, Mr Stevens explained that this was not correct – he included these references on the advice of a Centrelink officer even though Miss Salazar is not and has not been his partner. The true situation, he asserted, is that he met Miss Salazar in or about 2008. At that time she was a “bar girl”. A sexual relationship ensued. Mr Stevens required someone to look after his house when he was in Australia, so he asked Miss Salazar if she was interested. An arrangement was made that she would reside in the house, rent free, and he would pay her a small amount (8,000 to 20,000 pesos per month) for looking after the house when he was not there. He explained that this arrangement suited them both well – his house was not left empty while he was not in attendance and he was able to maintain a sexual relationship with Miss Salazar when he was in attendance; and for Miss Salazar, she had somewhere to live, a small income while she completed her studies and money to give her mother for caring for her son (from a previous relationship) in Manila, about four hours’ drive from Mr Stevens’ house.
On Mr Stevens’ evidence, his relationship with Miss Salazar changed, somewhat, in or about December 2014, after his mother died and he retired. Free of these commitments, Mr Stevens told me that he wanted to spend more time having a good time in the Philippines, and that is what he did. I take this to include spending more time with Miss Salazar. He told me that they considered having a different kind of relationship, with a longer term view and with greater commitment. He denied that this occurred, or that any changes or plans for the future were made: the relationship did not become more serious – it was always sexual and of mutual convenience or benefit, but it did not amount to anything more. In his submission, at no time were he and Miss Salazar partners or members of a couple. He was adamant that the relationship was one of casual convenience, secondary to his relationship with family members in Australia. He denied detailed knowledge of or any close involvement with members of Miss Salazar’s family in the Philippines. In Mr Stevens’ submission, proof of the casual nature of their relationship is that he returned to Australia in June 2015 and found employment, whereas Miss Salazar has continued with her life in the Philippines, although I understand that she continues to reside in and look after Mr Stevens’ house.
Even though there is a substantial age disparity between Mr Stevens and Miss Salazar, the sexual nature of the relationship and its persistence over several years suggests a degree of intimacy or caring that may go beyond mere casual convenience. The long periods of time he spent outside Australia before returning on 27 June 2015, were periods he spent with Miss Salazar in the Philippines. There is a real question about Mr Stevens’ intentions in respect of his relationship with Miss Salazar and what should be taken from his travel records.
The present evidence does not establish that Mr Stevens’ relationship with Miss Salazar was more than a relationship of convenience. His evidence on this point stands without contradiction. His relationship with Miss Salazar was an arrangement of convenience – it was a relationship that he could (and did) leave at will, when returning to Australia, and that he could take up again, as occurred, when visiting the Philippines – he paid Miss Salazar for the services she provided and that arrangement could be brought to an end at any time.
On balance, while the longevity and sexual nature of Mr Stevens’ relationship with Miss Salazar weighs against him being an Australian resident as of 29 June 2015, this is counter-balanced by the apparent convenience of the relationship, being casual, uncommitted, non-binding and involving payment for service.
At the date of claim, Mr Stevens had but few assets other than money in Australia, being personal items that he would store with his friend at the Wallerawang Hotel while he was away. Mr Stevens told me that he has some household effects at his house in the Philippines. These are in the manner of furnishings and some personal effects to which he attributed little value. He told me that the house he built is in the bush and he keeps an old four wheel drive vehicle there for access (a 1993 Nissan Pathfinder). He retains two bank accounts in the Philippines. At the date of claim, his BPI account had a balance of 69,885 pesos (less than $2,000) and his HSBC account had a balance of approximately $300. Most of his money was retained in ANZ Bank accounts in Australia – a total amount of some $54,000 as of 29 June 2015. To my mind, Mr Stevens’ retention of most of his financial assets in Australia is consistent with the characterisation of his absences from Australia, albeit for lengthy periods after his mother died and he retired from work, as holidays. This weighs for him being considered as an Australian resident when he made claim for age pension on 29 June 2015.
Mr Stevens’ travel records from 9 March 1996 to 7 May 2016 were filed by the Secretary. It is helpful to set out this information in the following manner –
Departure from Australia Arrival in Australia Days absent from Australia Days in Australia 9 March 1996 5 May 1996 57 - 29 October 1996 14 November 1996 16 177 3 February 1998 4 March 1998 29 446 25 April 2000 11 May 2000 16 783 15 December 2000 31 January 2001 47 218 2 August 2002 2 September 2002 31 548 7 March 2003 5 May 2003 59 186 13 November 2003 16 March 2004 124 192 5 August 2004 17 October 2004 73 142 7 February 2005 28 April 2005 80 113 18 July 2005 9 September 2005 53 81 6 December 2005 5 March 2006 89 88 12 June 2006 16 July 2006 34 99 2 December 2006 2 March 2007 90 139 18 August 2007 2 November 2007 76 169 17 January 2008 1 February 2008 15 76 12 June 2008 24 August 2008 73 132 21 October 2008 26 October 2008 5 58 4 December 2008 6 March 2009 92 39 3 August 2009 17 January 2010 167 150 10 April 2010 18 April 2010 8 83 12 June 2010 8 August 2010 57 55 27 October 2010 6 November 2010 10 80 4 February 2011 5 April 2011 60 90 19 September 2011 13 January 2012 116 167 3 April 2012 13 April 2012 10 81 26 June 2012 6 July 2012 10 74 17 September 2012 10 October 2012 23 73 4 December 2012 2 February 2013 60 55 8 April 2013 29 April 2013 21 65 24 June 2013 6 July 2013 12 56 24 August 2013 31 October 2013 68 49 18 November 2013 17 August 2014 272 18 26 August 2014 27 June 2015 305 9 7 July 2015 12 September 2015 67 10 25 November 2015 6 January 2016 42 74 23 April 2016 7 May 2016 14 108
As can be seen, Mr Stevens has been a frequent traveller overseas. His evidence is that after his mother died and he retired from work, he was free to spend more time on holiday. It appears that is what he did.
In the five years from 18 November 2008 to his departure from Australia on 18 November 2013, after his mother died, Mr Stevens’ travel records reveal that he spent 714 days absent from Australia (39 percent) and 1135 days in Australia (61 percent). His travel during this period appears to be consistent with his evidence of taking holidays in the Philippines when he was not working and caring for his mother in Australia. As I have said, after leaving Australia on 18 November 2013, Mr Stevens spent a total of 11 days in Australia (2 percent) and 577 days outside Australia (98 percent) before lodging his age pension claim. This is consistent with his evidence of taking a holiday on retirement and having an extended ‘good time’ in the Philippines, free of commitments. Subsequently, until 6 May 2016, he spent 192 days in Australia (61 percent) and 123 days outside Australia (39 percent).
The sheer amount of time Mr Stevens spent outside Australia in the period prior to 29 June 2015 weighs against him being an Australian resident at that time. So, too, do the enduring interests Mr Stevens had in the Philippines, which caused him to return there so often and so frequently over many years.
Nevertheless, the present evidence establishes that Mr Stevens was partial to taking holidays in the Philippines for varying amounts of time and has engaged in a peripatetic lifestyle over many years. This involves, on the one hand, holidays, good times, a house in the Philippines and Miss Salazar, and on the other hand, spending time in Australia with his family and friends, and in employment. As peripatetic as his lifestyle may have been, I accept that it is nevertheless a lifestyle that has been firmly based in Australia – the place where his family resides, where he earns and keeps his money, where he speaks the language and is culturally at home, and to which he returns when his holidays are done. This weighs for him being an Australian resident when he claimed age pension.
Residence assessment
Weighing all these factors and considering Mr Stevens’ circumstances in the period leading up to the date on which he lodged his age pension claim, his case is finely balanced. On the one hand, he maintained close and enduring ties to Australia through his family, friends, employment and financial arrangements. On the other hand, he was involved with Ms Salazar in an ongoing relationship that was at least sexual in nature and, after his mother died and he retired, he spent the vast majority of his time outside Australia in the Philippines pursuing recreational and other interests there, spending only 9 days in Australia from 18 November 2013 to 27 June 2015.
These variables and circumstances must be viewed through the prism of the legislation. Mr Stevens’ intentions and the location of his usual abode are central factors in determining whether he was residing in Australia when he claimed age pension. It is on that day this assessment must be made for the purposes of s 29 of the Administration Act.
Mr Stevens clearly identifies Australia as his home. It is the place where his family resides and his cultural, financial and emotional roots are in Australia. It is the place to which he has always returned and it is where he earns money and retains his financial assets. As to his intentions as of 29 June 2015, I accept what he says – he planned then, as he plans now, to continue with his lifestyle, enjoying holidays and good times in the Philippines, as and when he can afford to do so, and so long as he is able, as a matter of his free choice in retirement; but always returning to Australia: to his children, grandchildren and other family members, to his friends and to the area he considers to be his home.
Presently, he has leased an abode at Doggets Lane in Wallerawang, when previously, at the date of claim, his abode was Room 10 at the Wallerawang Hotel. Even though that accommodation in the Hotel was somewhat temporary, being activated by attendance, it was also enduring insofar as Mr Stevens retained personal possessions in that location, with his long-term friend.
Perhaps the point on which this case hinges, on which Mr Stevens’ Australian resident status pivots, is encapsulated in his repeated references to time he has spent in the Philippines as ‘holidays’. This conceptualisation implies transience: absence of a temporary nature from a place to which he will return. The history of his travel movements in and out of Australia confirms that this is what he has done. The only significant variation in his travel patterns is in the period before he claimed age pension. I accept his evidence that, once he was free from the commitments of caring for his ailing mother and his previous employment, he spent more time doing what he has enjoyed to do for many years – holidaying and enjoying himself in the cheap, warm environment he has come to appreciate in the Philippines. That Mr Stevens was absent from Australia for all but 11 days from 18 November 2013 to 29 June 2015 does not mean that he must be taken to have ceased to reside in Australia at that time, when his presence in the Philippines had a physical but transient character. That said, the test of Australian residence requires a positive finding.
The conception of residing in a place has been discussed in many cases. I think the words used by the Full Court in Mentink v Secretary, Department of Social Services[2] at [47] are apposite here –
Further and in any event, we do not accept MrMentink’s submission that if “resident” is given its ordinary meaning, mere temporal presence in Australia would suffice to establish residency. For example, “resident” is defined in the Macquarie Dictionary as relevantly “someone who resides in a place”, while “reside” is defined to mean “to dwell permanently or for a considerable time; have one’s abode for a time”, and “reside in” as “to abide, lie, be present habitually in”. Similarly, at common law residence means “physical presence in a particular place and the intention to treat that place as home” or, where the person is physically absent, “a continuity of association with the place ... together with an intention to return to that place and an attitude that that place remains ‘home’”. Thus, while the precise meaning of expressions such as “resident” and “reside in” will be affected by the legislative context in which they appear, the consistent theme is that of a real and enduring connection between a person and a place. Transient physical presence, on the other hand, is effectively a denial of any such connection.
[Citations omitted]
[2] [2016] FCAFC 39.
Physical presence in Australia is but one determinant under s 29 of the Administration Act. For the purposes of that section, residence in Australia is not defined by physical presence or absence, alone. All of the factors set out in s 7(3) of the Social Security Act, including any other matter relevant to determining whether the person intends to remain permanently in Australia, must be considered and weighed in the balance.
For the purposes of s 7(2) and (3) of the Social Security Act and s 29 of the Administration Act, the conception of ‘residing in Australia’ is not confined to a person ‘remaining permanently in Australia’ to the exclusion of any departure from Australia, for the purpose of taking a holiday for example. The concept of residence in this context is sufficiently broad to accommodate a peripatetic lifestyle, but only insofar as the person resides in Australia. Residing in Australia requires real and enduring connections with Australia, having regard to the variables set out in s 7(3) of the Social Security Act. This assessment requires consideration of past circumstances and future intentions in each particular case. Thus, without inconsistency, a person may have taken holidays overseas, and may intend to do so again, but may also intend to remain permanently in Australia and be found to satisfy the Australian residence test.
To my mind, although finely balanced, this is such a case. I am satisfied that the nature and quality of Mr Stevens’ real and enduring ties to Australia on the day he claimed age pension, out-weigh those factors that caused him to be absent from Australia in the period prior to that day. Mr Stevens’ past visits to the Philippines and those he plans in the future are properly characterised as holidays, having a temporary character. I accept his evidence that his intention, always, is to return to Australia for the various reasons he has explained - that is what he has done in the past and I accept that he intends for this to continue in the future. His travel plans in respect of future holidays in the Philippines are not inconsistent with him remaining permanently in Australia as an Australian resident – the present evidence does not establish a contrary intention on his part to leave Australia and sever the close and enduring ties that establish and give form to his continuing residence in Australia. Mr Stevens returned to Australia two days before lodging his claim for age pension. Subsequently, to 6 May 2016, Mr Stevens spent 61 percent of the time in Australia, retaining an abode in Wallerawang and engaging in employment.
That being so, I am satisfied that Mr Stevens was in Australia and he was an Australian resident on 29 June 2015, when he claimed age pension.
This means he satisfies the requirements of s 29 of the Administration Act and his claim was properly made.
Decision
For this reason, the decision under review will be set aside. Mr Stevens’ age pension claim was properly made – he was an Australian resident on 29 June 2015. The matter will be remitted to the Secretary to determine Mr Stevens’ age pension claim under s 43 of the Social Security Act.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .................................[sgd].......................................
Associate
Dated 28 July 2016
Date of hearing 20 July 2016 Applicant By telephone Solicitors for the Respondent Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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