WILFRED MENTINK and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 184
[2013] AATA 184
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3926
Re
WILFRED MENTINK
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 28 March 2013 Place Brisbane The Tribunal decides:
1.BEING SATISFIED that it is desirable to do so and acting pursuant to section 35(2)(b) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that:
(a) publication of the content of documents of Mr Mentink’s evidence provided confidentially to the Tribunal, is prohibited to all persons other than the Respondent, the Tribunal and the Tribunal’s staff; and
(b) the Order made during the hearing over Mr Mentink’s evidence remains extant until further notice; and
2.As Mr Mentink does not satisfy the legislative requirements, he was not eligible for age pension for the periods under review. The decision under review is therefore affirmed.
...........................[SGD]...................
Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Australian residency at the time of application – Criteria for determining residency – Regaining of residency after period of absence – Decision under review affirmed
LEGISLATION
Administrative Appeals Act 1975 (Cth) s 35
Social Security Act 1991 (Cth) ss 7, 1217, 1220
Social Security (Administration) Act 1999 (Cth) s 29
CASES
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
INTRODUCTION
The applicant, Wilfred Mentink, applied for age pension on 5 March 2012, the day prior to his 65th birthday. The application was approved with effect from 6 March 2012, the day he turned 65 years of age. He then departed Australia on 27 April 2012 and returned three and half months later, on 6 August 2012. The department suspended his age pension for that period of absence from Australia. He then sought review by a departmental officer, an authorised review officer and, subsequently, the Social Security Appeals Tribunal (SSAT). Each of those review decision makers affirmed the original decision that Mr Mentink was not entitled to age pension for that period. He now appeals to this Tribunal for further review.
ISSUES
The following issues are raised for determination:
(1)There is a preliminary issue of whether the applicant was an “Australian resident” at 5 March 2012, the date of the application for age pension; and
(2)Was he an “Australian resident” at any time during the time of absence from Australia from 27 April 2012 to 6 August 2012?
EVIDENCE
The applicant took an affirmation and provided oral evidence at the hearing. He is an Australian citizen and provided substantial written evidence.
A significant factor in assessing this matter is the historical pattern of Mr Mentink’s presence in Australia. The evidence presented shows that since 4 June 2003, and up to the dates of the absence ending on 6 August 2012, he had been outside of Australia for the following periods:
·4 June 2003 – 27 December 2003 (6 ½ months)
·27 March 2005 – 17 April 2005 (3 weeks)
·Unknown – 30 December 2006 (? 1 week to 18 months?)
·16 March 2007 to 17 March 2007 (2 days)
·19 March 2007 to 7 August 2008 (1 year, 4 months)
·9 November 2008 to 2 March 2012 (3 years, 5 months)
·27 April 2012 to 6 August 2012 (3 ½ months)
·16 September 2012 to 14 December 2012 (3 months)
He has therefore been absent for at least six years out of the previous nine years.
The applicant has provided considerable detail about “issues of law”, which he lodged with the Tribunal on 26 November 2012. There is also other written material and the applicant competently presented his case about the issues he raised. The applicant is an intelligent man and his professional background was evident in his competent and comprehensive submission.
The applicant also provided oral evidence. In particular, he dealt with each of the legislative factors which needed to be addressed. In addition, he provided some insight into some of his work history in which he had previously been employed in a professional capacity but was subsequently convicted of certain offences. He outlined his working life in Australia after release from prison and described how it was difficult to either find or retain employment. I made a section 35 Order under the Administrative Appeals Tribunal Act 1975 (Cth) over that evidence and that remains extant.
Mr Mentink then spent time considerable time overseas. He presented considerable evidence outlining how he had a boat stolen and then faced scrutiny in Thailand and Indonesia. In particular, because, on his version of events, the Australian Federal Police had constantly monitored him in Asian countries which he visited, he was treated with great suspicion and it was difficult for him to get a visa in some countries. He outlined particularly the events in 2007 and 2008 in Thailand and Indonesia. Mr Mentink said that the Australia Federal Police seemed to be constantly providing information to local police about his presence in various countries. He told the Tribunal that in 2008 there was a renewed interest in him by the Indonesian police and that they endeavoured to have him deported. He then returned to Australia and stayed in Brisbane with a friend of his. He emphasised that while he is an Australian citizen, the period of time he had spent in Australia in the past decade or so had not been rewarding. He said that he now thought of himself as a “citizen of the world”.
I note that Mr Mentink told the SSAT in evidence that when he returned to Australia in 2008 he did not intend returning to Indonesia. However, he told this Tribunal that he met a person in Singapore who lived in Indonesia and discussed an interest in marriage. He said he otherwise would not have gone back to Indonesia had this woman not been his sponsor. I note that he returned to Indonesia three months later in November 2008.
Mr Mentink also submitted that it was difficult for him to get a visa to live in Indonesia. He described at one point in time of having an extension of one month to his visa but that this occurred because his wife had some input with the authorities. Mr Mentink also stated that, on that occasion, his wife had been spoken to separately by immigration officials and informed that he had been in prison in Australia. He attributes this to the monitoring of him by Australian authorities.
Mr Mentink ultimately married the Indonesian woman that he met in Singapore. She speaks little English and she has a son who is profoundly deaf.
Mr Mentink said that as he was not an Indonesian citizen he could not own property there. However, he purchased a property for $10,000 but it is in his wife’s name.
Mr Mentink made the point that his eligibility for age pension is affected by the fact that Indonesia is not a country with which Australia has an agreement which gives him any entitlement. That point was not argued any further by the respondent.
In assessing whether as at 5 March 2012 or at any subsequent time during his absence from Australia from 27 April 2012 to 6 August 2012 he was a resident of Australia, he told the Tribunal:
(a)He has a mother and sister that live in Australia and while he has been accommodated with them on some of his return visits to Australia, he said his relationship with them is that they are not very supportive of him. He does, however, have a friend in Brisbane where he has stayed more recently.
(b)He described his life in Indonesia and indicated that it is unlikely his wife and son would wish to live in Australia. On the other hand, he said that without being able to get his Australian pension, he will not be able to afford to live in Indonesia for the remainder of his life. He also mentioned that his visa in Indonesia has a condition on it that he is not permitted to work in Indonesia.
(c)He described the few frugal comforts he has in his house in Indonesia and the fact that he had never previously married in his life. He referred to the prospect of living apart from his wife and stepson as well as his other most valued possessions – as described to the SSAT these included the family dog, books, a home workshop, neighbours and extended family and friends.
CONSIDERATION
The legislative provisions which govern age pension are critical to the assessment of the issues in dispute.
Legislation
Firstly, for an applicant to lodge a valid claim for a social security payment, sub 29(1)(a) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that they must be an “Australian resident”. Additionally, sub 29(1)(b) provides that the applicant must be “in Australia”.
Also, sub 80(1) of the Administration Act provides that where the Secretary has knowledge that the applicant is not or no longer qualified for the social security payment, the Secretary must cancel or suspend the payment.
Section 1220 of the Social Security Act 1991 (“the Act”) provides as follows:
(1) If:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident; and
(c) the person again becomes an Australian resident; and
(d) within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i) an age pension; or
(ii) a disability support pension; or
(iii) a bereavement allowance; and
(e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and
(f) financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
(2) If:
(a) a person resides in an area that is, at the time of residence, an external Territory; and
(b) the person has never before resided in Australia; and
(c) the person then arrives in Australia; and
(d) within the period of 2 years after the person arrives in Australia, the person is granted, or is transferred to:
(i) an age pension; or
(ii) a disability support pension; or
(iii) a bereavement allowance; and
(e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and
(f) financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
(4) For the purposes of the application of this section in relation to a particular social security payment, a person who has a qualifying residence exemption for that payment is taken:
(a) to be an Australian resident; or
(b) to reside in an area that is, at the time of residence, an external Territory;
as the context requires.
The term “Australian resident” mentioned in s 1220 is defined in sub 7(2) of the Act as follows:
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).
Subsection 7(3) of the Act sets out a number of considerations which must be considered to ascertain whether a person is residing in Australia:
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.
Findings of Fact
I make the following findings of fact in relation to the evidence:
(1)Mr Mentink claimed aged pension on the day before he turned 65 years of age;
(2) The application was approved with affect from 6 March 2012;
(3)He returned to Indonesia for the period 27 April 2012 to 6 August 2012;
(4)He had travelled outside of Australia for approximately six years of the previous nine years of his life;
(5)He has been under close scrutiny both in Australia and in Asian countries since he was convicted of a number of serious offences; and
(6)It is unlikely that Mr Mentink’s wife and stepson would wish to immigrate to Australia.
Was Mr Mentink an “Australian resident” at the time of his application for age pension?
Determination of this issue is important as it determines the applicant’s eligibility for age pension and portability of that pension overseas. Under s 1217 of the Act, it is apparent that he would have indefinite portability unless the more demanding requirements of s 1220 apply, which would require him to be resident in Australia for a period of two years after again satisfying the requirements of being an “Australian resident” after having previously ceased to have that status.
The relevant factors in sub 7(3) of the Act which determine whether he ceased to be an “Australian resident” are examined below.
Factor (a) – The nature of accommodation used in Australia
Mr Mentink has at times stayed with his mother and sister when he has returned to Australia. Of more recent times during his visits to Australia, he has stayed in a separate structure on land owned by a friend in a suburb of Brisbane. He advised Centrelink that he commenced living at that address on 3 March 2012 and that he was not living away from his “normal address”. However, on 9 March 2012 he referred, in an email, to his address in Indonesia where he lived with his wife and stepson.
That property in Indonesia was paid for by the applicant although it is registered in his wife’s name. He estimated the value of his property and effects there to be of the order of $20,000 US dollars. He does not own any property in Australia. He confirmed in oral evidence that where he temporarily stays in suburban Brisbane is the address of a friend.
The applicant described his financial circumstances and that he could not now afford to own a property in Australia as well as the home he maintains in Indonesia. He also said that he could not realistically expect that his friend would accommodate him free of charge for a two year period. The evidence shows that he was fortunate to have a friend who would accommodate him for the period March to April 2012.
I find that as Mr Mentink has spent the majority of his time during the past nine years out of Australia, and comparing the form of accommodation he has in Indonesia as opposed to in Australia, there is a compelling case that he is not an “Australian resident” for the purposes of Factor (a).
Factor (b) – the nature and extent of the family relationships in Australia
The applicant told the Tribunal he has no children and his relationships with his mother and sister are not very strong. He referred to regarding his relationship with his wife and stepson as being a stronger bond. He had never been previously married and he aspires to continue his family relationship in Indonesia in this last phase of his life. In a letter to the Minister for Human Services dated 16 May 2012, he refers to living in “difficult circumstances” and that a family life is “simply no longer possible for me in Australia”. He also refers to his wife having no income to support her son other than his income support.
This evidence demonstrates his desire for living in Indonesia and a factual position and consequently this points to him being a non-resident of Australia for Factor (b).
Factor (c) – The nature and extent of the persons employment, business or financial ties in Australia
The applicant has a bank account in Australia and also an account in Indonesia. He has at least what would be regarded as an equitable interest in property in Indonesia as well as a car and some household contents worth perhaps no more than $5,000. The house and land and his car are both registered in the name of his wife in Indonesia. He admitted to virtually no assets in Australia other than his bank account which he has drawn on for his living expenses in Indonesia for the majority of the time over the past few years.
Again, the facts in Factor (c) are more suggestive of him not being “an Australian resident”.
Factor (d) – The frequency and duration of the persons travel outside Australia
The extent of Mr Mentink’s travel outside of Australia has been listed earlier. He has usually been absent for periods in excess of three months at a time and was absent for almost three and a half years prior to his return to Australia and his application for age pension. The weight of evidence tends to indicate he was not “an Australian resident” for the purposes of Factor (d).
Factor (e) – Any other matter relevant to determining whether he intends to remain permanently in Australia
Mr Mentink describes what he has regarded as being a difficult life, in part caused by his monitoring by Australian Federal Police while he has been overseas. His present circumstances are that his wife and son are unlikely to move permanently to Australia. Consequently, if he is not regarded as being an Australian resident immediately prior to his application for age pension being approved, his only option to satisfy s 1220 of the Act would be for him to live continuously in Australia for a minimum of two years. If he did not do so, then his pension would cease for any periods he was outside of Australia.
While Mr Mentink has presented, in some respects, a case showing a degree of personal hardship. On the basis of the legal criteria for determination of Australian residence, it is difficult for him to be regarded as an Australian resident prior to his return to Australia on 2 March 2012. Had he not been absent from Australia for such extended periods over the previous nine years, he might otherwise have been regarded as satisfying the definition of Australian residence when he recommenced to reside in Australia in March 2012. Unfortunately, that is the law as it applies to his background and circumstances. Section 1220 of the Act is intentionally designed to prevent a person from becoming an Australian resident following a period of non-residency and then quickly qualifying for age pension and then leaving Australia to live overseas with a social security benefit.
The respondent referred me to authorities pointing to the fact that a mere statement of intention of being a resident is not conclusive and that together with an inability to obtain a permanent visa in another country does not lead to the conclusion that a person is a resident of Australia (see Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059; and Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726.) I agree with those submissions. While the common law in some areas can use a number of criteria for assessing whether a person is resident, under the relevant statutory law the assessment is constrained by the prescribed statutory criteria in sub 7(3) of the Act. Based on the facts presented by the applicant, regrettably, he has not satisfied that definition
In this case sub 29(1) of the Administration Act is also relevant and provides that a claim can only be made by a person who is an Australian resident and is also residing in Australia. While Mr Mentink is an Australian citizen and was physically present in Australia at the time he turned 65 years of age (albeit for only a few days), the statutory criteria in sub 7(3) of the Act mitigates against him being “an Australian resident”, and I find as a fact that he was not an “Australian resident”. Consequently, he does not meet the pre-condition in sub 29(1) of the Administration Act and, as a result, the threshold requirement that he had a valid claim is not satisfied.
It would appear that until he can again be regarded as “an Australian resident” and is not constrained by the prescriptive requirements of s 1220 of the Act, Mr Mentink will not qualify for age pension.
I must therefore answer the issues for determination as follows:
·Issue 1 – At the date of application for age pension on 5 March 2012, Mr Mentink was not “an Australian resident”.
·Issue 2 – As a consequential effect of the finding in Issue 1, Mr Mentink was not “an Australian resident” at any time during the period of absence from Australia between 27 April 2012 and 6 August 2012.
DECISION
I find as follows:
1.The section 35 Order made during the hearing over Mr Mentink’s evidence remains extant until further notice; and
2.As Mr Mentink does not satisfy the legislative requirements, he was not eligible for age pension for the periods under review. The decision under review is therefore affirmed.
I certify that the preceding 38 (thirty –eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy, RFD
........................[SGD]........................................
Associate
Dated 28 March 2013
Date of hearing 6 February 2013 Applicant In person Solicitors for the Respondent Joe Guthrie, departmental advocate
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