WAYNE DYER and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2013] AATA 51

[2013] AATA 51  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4457
Re	WAYNE DYER
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Senior Member Dr K S Levy, RFD
Date	1 February 2013
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member Dr K S Levy, RFD

CATCHWORDS

SOCIAL SECURITY - Pensions, benefits and allowances - Disability support pension - Australian residency - Overseas portability - Legislative amendments to maximum periods of portability - Date of effect of amendments - Decision under review affirmed.   

LEGISLATION

Acts Interpretation Act 1901 (Cth) s 5

Domicile Act 1982 (Cth) s 10

Social Security Act 1991 (Cth) ss 7, 94, 1217, 1218AA

CASES

Mathieson v Burton (1971) 124 CLR 1

Udny v Udny (1869) LR1 Sc&Div 441

SECONDARY MATERIALS

Taxation Ruling TR 98-17

REASONS FOR DECISION

Senior Member Dr K S Levy, RFD

1 February 2013

INTRODUCTION

1. As a result of a change to the portability provisions of social security benefits for those who are absent from Australia, Mr Dyer was affected by amendments to the Social Security Act 1991 (Cth) (the Act) which came into force on 1 July 2011. The applicant has resisted implementation of those amendments against him, which now disentitle him to continue to receive disability support pension (DSP). This is because for a considerable time now, he has spent the majority of his time in the Philippines.

2. The Department first wrote to the applicant on 25 August 2011 and advised him of the pending changes to the law and that he may be affected by them. Between 25 August 2011 and 19 March 2012, various correspondence between the respondent and the applicant resulted in extension of DSP while he continued to return to Australia for brief periods every 13 weeks. However, a formal assessment was undertaken and a decision was made on 19 March 2012 that Mr Dyer was not a resident of Australia on a permanent basis. Therefore his social security payment had to be cancelled in accordance with the current law.

3. The applicant sought review of that decision by an authorised review officer (ARO) who affirmed the original decision on 6 July 2012. He then sought further review from the Social Security Appeals Tribunal (the SSAT) which, on 4 September 2012, also affirmed the original decision. On 4 October 2012, he then lodged an appeal with this Tribunal. On 22 October 2012, he also obtained a stay order to prevent implementation of that decision until a determination was made by this Tribunal. All of these mechanisms have ensured he continued to be paid DSP until a final determination is made.

   EVIDENCE

4. Mr Dyer appeared in person at the Tribunal hearing and had his sister present as a support person.

5. He confirmed that the evidence lodged with the Tribunal by the respondent, including the evidence contained in the reasons for decision by the SSAT, are factually correct. Briefly, a summary of the facts are as follows:

   (1)Mr Dyer is now 62 years of age. He has now been on DSP since 26 November 1998.

   (2)Since shortly after he became eligible for DSP, he has travelled frequently to the Philippines. He has lived there, at least since 18 April 1999, for substantial periods of each year. The pattern of time spent in the Philippines and in Australia can be broadly said to be:

   (a)      From 18 April 1999 to 14 December 2004

   ·     6 months in the Philippines at a time (in some cases 8, 10 or 11 months).

   ·     2 or 3 months in Australia at a time.

   (b)     From 1 February 2005 to 29 June 2012

   ·         3 months in the Philippines at a time.

   ·         1-3 weeks in Australia at a time.

   (3)The ARO noted that in the two year period from 14 December 2009 until the ARO decision of 6 July 2012, Mr Dyer had spent only 13 weeks in Australia (i.e. 3 months out of 24 months).

   (4)The applicant told the Tribunal that he has a son in the Philippines who is six years old. The SSAT decision records the applicant’s evidence before that Tribunal as being that his son was born in the Philippines in January 2007. The applicant told this Tribunal that his son lives with him with the assistance of a carer or housekeeper but that the mother of his son does not live with him or care for the child in any respect. Mr Dyer pays for the carer, his son’s kindergarten, rent of his home and all requirements involved in living in the Philippines.

   (5)Mr Dyer argued that he was once told by Centrelink that he could be out of Australia indefinitely and could be paid DSP even though he did not return to Australia. There is no corroboration of that evidence although there have been changes to the law in 2000, 2004 and 2011. Mr Dyer claims those advices should enable him to be able to have DSP paid to him while living overseas under rules which previously existed.

6. The applicant also submitted that Centrelink had previously acknowledged that he was a “saved case”. That is referred to in the SSAT decision as a “safe” case. The applicant also argued that because he signs various forms for immigration when he enters and leaves Australia, and because he votes in Australia, that he is therefore recognised as a resident of Australia and should be so regarded for social security purposes.

   ISSUES

7. The issues for determination by this Tribunal are:

   (1)Is Mr Dyer a “resident” of Australia in terms of s 94(1)(ea) of the Act; and

   (2)Does any former legislative provision relating to portability of social security payments while a recipient is overseas override the recent amendments to the Act with effect from 1 July 2011?

   CONSIDERATION

8. I have taken account of all the material and the submissions made by the applicant and the respondent. I have listened to all of submissions of the applicant, including in relation to matters which I did not regard as having any significant weight as a matter of law. Some of these matters are traversed later in these reasons for the purposes of Issue 2 above. In particular, while discussing some of that evidence during the hearing, the applicant, who was unrepresented, was informed that he may be regarded as a resident for some legal purposes but not for others.

9. Central to Mr Dyer’s claim is that s 94(1) of the Act was amended with legal affect from 1 July 2011 by the addition of sub-subsection “(ea)” as follows:

   (ea) one of the following applies:

   (i) the person is an Australian resident;

   (ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

   (ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1:   For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

   …

10. The substance of this amendment is that, despite a person satisfying the requirements for DSP, there is also a requirement that a person lives substantially in Australia, for a sufficiently lengthy period, to be regarded as “an Australian resident”. Section 94(1)(ea)(ii) specifies some exceptional circumstances which would exempt a person from this requirement. These are detailed in s 1218AA of the Act. No claim has been made in this case about the relevance of those exceptions.

11. In determining whether a person is an “Australian resident”, s 7 of the Act is of assistance and relevantly provides:

    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;

    (ii) the holder of a permanent visa;

    (iii)a special category visa holder who is a protected SCV holder.

    Note: For holder and permanent visa see subsection (1).

    …

    (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.

    ISSUE 1 – IS MR DYER A “RESIDENT” OF AUSTRALIA IN TERMS OF S 94(1)(EA) OF THE ACT?

12. The facts, which are undisputed by the applicant, are that since prior to 2000 Mr Dyer has spent the majority of each year in the Philippines, returning to Australia only for relatively short periods up to 2004. Since that time, he has been absent from Australia for approximately 13 weeks on each occasion and has returned for short periods of one to three weeks on each visit in order to satisfy the portability requirements.

13. “Residence” is defined in the Australian Concise Oxford Dictionary as “a place where a person resides” or “dwelling at a specified place” (Third Edition). Residence can be defined differently for different legal purposes. For example, for taxation purposes, the Commissioner of Taxation considers physical presence of at least six months to be sufficient to be regarded as a resident (Taxation Ruling TR 98-17, paras 24 and 61-66). The law in other areas, such as for electoral purposes or social security purposes, may be assessed by different criteria.

14. If residence of a person is not clear, the concept of “domicile” may assist. At common law, a person may have a “domicile of origin”: i.e. usually the domicile of one’s parents until that person is independent and acquires a “domicile of choice”: i.e. where a person chooses another country as his or her home permanently. Under the Domicile Act 1982 (Cth), s 10 provides:

    The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his or her home indefinitely in that country.

15. Even if a person’s domicile is in Australia, he or she need not necessarily reside there predominantly. It is usually considered that a person can have only one domicile at any one time (Udny v Udny (1869) LR1 Sc&Div 441).

16. However, the Parliament can always specify by statute other factors which must be taken into account in determining “residence”. That is the case for the Social Security Act 1991 (Cth). Therefore, s 7(3) of that Act, set out earlier, delineates the factors which must be considered to determine the “residence” of the applicant in this case.

17. Considering the undisputed facts in relation to the criteria in s 7(3) of the Act, they reveal the following:

    (a) The nature of accommodation used by the person in Australia

18. Mr Dyer lives at his sister’s residence when in Australia, where his mother and his aunt also reside. A room is kept there for him, rent free.

19. In contrast, he pays rent of 3,000 pesos per month in the Philippines for the house he lives in with his six year old son. He also pays other expenses of the house facilities, for example, electricity.

    (b) The nature and extent of the family relationships the person has in Australia

20. Mr Dyer is an Australian citizen, having been born in Australia. His sister acts for him as an intermediary with Centrelink while he is overseas. From the decision of the SSAT, it is apparent that Mr Dyer applied for citizenship of his son during the current dispute he has with Centrelink. His son was granted Australian citizenship on 10 July 2012.

21. In contrast, Mr Dyer lives with his son in the Philippines. He employs a carer, for himself and his son, who does washing, cleaning and also the shopping. She also takes the child to kindergarten. Mr Dyer does the cooking.

    (c) The nature and extent of the person’s employment, business or financial ties with Australia

22. Mr Dyer has three bank accounts – one in Australia for crediting his DSP and two with the Bank of Philippine Islands. Of the latter two bank accounts, one has approximately 2,000 pesos and the other has approximately 150,000 pesos. The money was given to him by his sister to help support him and his son in the Philippines. Part of this latter amount is said to be repayment of money he had loaned to her previously.

23. The applicant has arranged for his DSP to be withdrawn regularly by a friend in Brisbane and sent to him in the Philippines in the form of a MoneyGram.

    (d) The nature and extent of the person’s assets located in Australia

24. Mr Dyer has one table and personal effects such as photographs in Australia. These are kept at his sister’s place. He does not own a home or any other assets in Australia.

25. In the Philippines, Mr Dyer owns his own furniture and some animals.

    (e) The frequency and duration of the person’s travel outside Australia

26. Mr Dyer has spent the majority of his time in the Philippines since 2000. Prior to 2004, when the law was more favourable to Mr Dyer, he spent considerably longer periods in the Philippines at any one time and also tended to spend longer periods in Australia on each return visit than he has spent here since 2004 or 2007. Since the legislative amendments in 2004, he now is only absent from Australia for no more than 13 weeks at a time. He sometimes stays up to a month at a time on each visit to Australia. However, since the birth of his son in January 2007, he now usually only stays two to three weeks at a time when he visits Australia.

    DETERMINATION OF ISSUE 1

27. On the basis of Mr Dyer’s asset holdings and placement, his family relationships and their location, his residential arrangements, travel to and from Australia and the length of time this pattern has occurred, I find Mr Dyer’s place of dwelling for the majority of the time, has been in the Philippines. This has now continued for over 12 years. I find that based on the criteria and the purpose of the provisions in s 7(3) and s 94(1)(ea) of the Act that, even though he is an Australian citizen, he is not now a resident of Australia and was not a resident as at 19 March 2011.

    ISSUE 2 – DOES ANY FORMER LEGISLATIVE PROVISION RELATING TO PORTABILITY OF THE APPLICANT’S DSP OVERRIDE THE RECENT AMENDMENT TO THE LAW WITH AFFECT FROM 1 JULY 2011?

28. The SSAT member who considered the matter in September 2012 was particularly thorough and sought further information from Centrelink about contact with Mr Dyer in 2004 when former rules applied.

29. There are therefore two sets of legislative amendments which had effect on Mr Dyer prior to the current law which took effect on 1 July 2011. These are:

30. (1)      The 2000 Amendments - The course of legislative amendments show that prior to 20 September 2000, the relevant provision was contained within s 1213A of the Act as it then was. Section 1213A provided that the absence for someone “not severely disabled” was 12 months. Section 1213A provided that a person who was severely disabled but then ceased to be severely disabled after leaving, could retain a former entitlement for 12 months from when he ceased to be severely disabled. Section 1213A was replaced by s 1217 by Act 94 of 2000. The new s 1217 provided that a severely disabled person is able to be absent for an “unlimited period”. A person other than a severely disabled person is allowed to be absent for 26 weeks.

    The saving provisions in clause 128 of Schedule 1A of the Act are:

    a.at the time of the 2000 amendments – if the person was absent immediately before their commencement (20/9/2000 which inserted s 1217 in place of s 1213A) then, unless the person “had not returned to Australia for a continuous period of 26 weeks or more after 20/9/2000”, s 1213A continued to apply to that person.

    b.at the time after the 2004 amendments – if a person who was absent from Australia when s 1213A operated (that is, before the 2000 amendments) then s 1213A continues to operate for the recipient up until the person first re-enters Australia after the commencement of the 2004 amendments.

    (2)The 2004 Amendments - An amendment contained in Act No. 122 of 2003 (which was proclaimed on 5 December 2003 and commenced in 2004), deleted any distinction between severely disabled and disabled and simply referred to “any persons” and also reduced the period someone could be absent from 26 weeks to 13 weeks. Section 1217 of the Act provides that with effect 1 July 2004, a person who was not severely disabled could maintain portability of social security payment for 13 weeks (rather than the previous 26 week timeframe).

    Section 1218AA was inserted to cover those instances where the person was severely disabled – but requiring addition criteria to be allowed “unlimited portability.

31. The SSAT referred to some documentary evidence in Centrelink records that in 2004 Mr Dyer was “regarded as a saved case in respect of 20 September 2000 portability provisions. However, it is also recorded that once he returned to Australia he would effectively lose his saved status” (see Exhibit 1, T-documents, p 9, para 24).

32. The reasons why that conclusion is the correct legal result here is that there is no legal basis to modify the statutory law as set out by Parliament unless there is some specific statutory power or discretion which is delegated under the Act to a Minister or a Departmental Secretary for specific circumstances.

33. Where new statutory law (including the amendment of existing statutes) is proclaimed, the interpretation of those new laws is to be ascertained as set out by the High Court of Australia in Mathieson v Burton (1971) 124 CLR 1. That decision is to the effect that where an amendment is tantamount to a repeal of a former section or part of a section, then a person’s rights might be limited or altered from that which formerly existed under that section prior to the amendment. It is also clear that, as required by s 5 of the Acts Interpretation Act 1901 (Cth) (as amended), an amendment will commence at the start of the day on which the amendment is proclaimed unless some other day is specified in the amending legislation.

34. Therefore, there is no legal basis for regarding any extension of earlier statutory provisions which have been amended or repealed unless there is some specific statutory “saving” provision. While there were “saving” provisions applicable in the 2000 amendments, there is no statutory provision supporting the proposition that any earlier provisions are “saved” by the 2004 amendments beyond the commencement date of the 2004 amending Act. The 2004 amending Act changed the law to be effective from the date of the proclamation of that amendment.

35. It is not clear whether Mr Dyer was “severely disabled” at any of the relevant times, but neither party made submissions about this. I find, in the absence of any such evidence that he was not “severely disabled”. Even if that was not the case, I also find that as a matter of law, whatever flexibility was available to Mr Dyer prior to the 2004  amendments, any benefit previously available has long expired. In addition, the 2004 (and later) amendments elicited an intention that any benefits available to a person in Mr Dyer’s position and living outside Australia under the earlier amendments, have now been  overridden by the later amendments. Mr Dyer’s submission is therefore not correct and the current law is now applicable to him.

36. While the current law took effect on 1 July 2011, the Secretary allowed a period of grace for those who may have altered their affairs as a result of the previous law. In Mr Dyer’s case, the Department wrote to him to advise him of the change on 25 August 2011 and subsequently allowed retention of the payments because of pending appeals. Unless he succeeds on Issue 2, strictly speaking, the law is to take effect from 1 July 2011 or any subsequent date where a period of grace has been allowed. In this case, a period of grace was allowed until the decision of 19 March 2012, when the new law took effect for Mr Dyer.

1. Mr Dyer also questioned why Centrelink could not allow him to retain DSP until he turned 65 when, he says, “he can do what he likes”. Whether that is strictly correct is not relevant here. The legal position is that he is not now entitled to DSP under the current law and that determination was made on 19 March 2012.

2. The applicant also argued that his son cannot live in Australia until he turns eight years of age. He told the Tribunal that the law in the Philippines allows his mother to have a say where the child lives until that age. No other evidence about that point was submitted. I note however that the applicant told the SSAT in relation the same point that he did not want to take his son to Australia until his son could understand where he was going. That inconsistency cannot be resolved nor does it assist in resolving the issues to be determined by this Tribunal. I am not satisfied the applicant’s evidence was reliable in a number of respects about the law of the Philippines.

3. In determining Issue 2, there is no merit in the argument that there is a legal basis for any ‘saving’ of former provisions which could override the current law. The applicant therefore cannot succeed under Issue 2.

   DECISION

4. In the circumstances I find that the decision under review must be affirmed as:

   (1)Mr Dyer is not a resident of Australia under s 94(1)(ea)(i) of the Act; and

   (2)The present law, which is effective from 1 July 2011, is applicable and Mr Dyer is not entitled to DSP until he satisfies the requirements of being an “Australian resident”.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD.

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Associate

Dated 1 February 2013  

Date of hearing  7 January 2013

Representation for the Applicant       Self-represented

Advocate for the Respondent  Mr Robert Hamilton