Wilfred Mentink and Secretary, Department of Social Services
[2014] AATA 249
[2014] AATA 249
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6856
Re
Wilfred Mentink
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 29 April 2014 Place Brisbane The Tribunal affirms the decision under review.
..........................Sgd...........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
PENSIONS AND BENEFITS – Age pension – Age pension debt raised against applicant - Whether applicant was an Australian resident during the relevant period – Whether age pension paid to applicant constitutes a debt – Whether debt has to be repaid – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) s 29
CASES
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
29 April 2014
INTRODUCTION
Mr Mentink ("the applicant") seeks the review of a decision to raise and recover an
age pension debt of $8,285.44 in respect of payments of age pension which were made to him from 6 March 2012 to 19 February 2013 ("the relevant period").
BACKGROUND
The applicant departed Australia on 9 November 2008. He returned to Australia on
2 March 2012. On 5 March 2012 he claimed age pension, and in that claim he stated that he was living in Australia on a permanent basis. On that day he was granted age pension. On 23 March 2012 he was advised that as a returning resident he needed to remain in Australia for a minimum of 2 years, and if he went overseas within the next two years his age pension would cease being paid. That the applicant received this advice was apparent from his email of 4 April 2012 in which he referred to the returning resident rule.
On 27 April 2012 the applicant departed from Australia and payment of his age pension was stopped because he had departed within two years of his again becoming a resident. On 31 May 2012 the applicant sent an email in relation to his age pension being stopped. On 27 June 2012 an Authorised Review Officer affirmed the decision to suspend the applicant's age pension. On 11 July 2012 the applicant appealed to the SSAT which, on 30 August 2012, affirmed the decision to suspend the payment of age pension. The SSAT concluded that the applicant was not entitled to age pension as he was not an Australian resident when he made his claim. The decision to suspend payment of age pension was affirmed by this Tribunal on 28 March 2013.
On 6 August 2012, the applicant returned to Australia. On 7 August 2012 he completed a claim for age pension, and in the claim form he indicated he was living in Australia on a permanent basis. On 8 August 2012 he made a statement in which he declared: “I hereby declare my intention to reside permanently in Australia". On 21 August 2012 the applicant made a further statement to clarify his intentions and in which he stated:
I declare my intent to remain permanently in Australia. I declare my intent, in the event of illness or death of my wife Berta Niat Jarut or my son Yosep Freinademetz Nelsen Siburian in Indonesia or of a catastrophic events such as fire, or earthquake or volcanic eruption directly affecting my wife and son in Indonesia to remain permanently in the territory of Australia.
On 24 August 2012 a decision was made to grant him age pension.
On 16 September 2012 the applicant departed from Australia and his age pension was then stopped. On 14 December 2012 he returned to Australia. On 17 December 2012 he contacted Centrelink about claiming age pension; he was then issued a claim for age pension. On 18 December 2012, a decision was made to reinstate age pension from the date that he returned to Australia. On 19 December 2012 he completed a claim form for age pension. In that claim form he indicated that he was living in Australia on a permanent basis. On 20 February 2013 he departed Australia and payment of his
age pension was then stopped.
On 17 May 2013 the applicant returned to Australia. On or about 5 June 2013 he wrote a letter which is headed “Evidence of intention to reside permanently in Australia”.
On 13 June 2013 he had discussions with a Centrelink officer in which he advised that officer that he had no intention to reside in Australia. A file note of that conversation is in evidence.
On 14 June 2013 a decision was made to raise and recover an age pension debt against the applicant. This debt is in the amount of $8,285.44 which is the total amount of
age pension which has been paid to the applicant from 6 March 2012 to
19 February 2013. The applicant sought internal review of that decision. On 2 July 2013 an Authorised Review Officer varied the decision by reducing the debt to $8,075.44.
On 26 November 2013 the SSAT affirmed the decision.
LEGISLATION
The relevant legislation is the Social Security Act 1991 (Cth) ("the Act") and the
Social Security (Administration) Act 1999(Cth) ("the Administration Act).
WHETHER THE APPLICANT WAS AN AUSTRALIAN RESIDENT
At issue is whether the applicant was an “Australian resident” when he was paid
age pension. This is because a person has to be an Australian resident when they lodge a claim for a social security benefit. There are certain exceptions to that requirement which have no application to the applicant: see s 29 of the Administration Act.
The term "Australian resident" is defined by s 7(2) of the Act which provides:
(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.
There is no issue that prior to his initial claim for age pension the applicant was an Australian citizen.
Section 7(3) of the Act provides:
(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.
The applicant elected not to give oral evidence before this Tribunal and he stated that he did not want to be cross-examined. The tenor of the submission made by the applicant was that whenever he made those statements he correctly identified his intention at that time but that his intention about being a permanent resident of Australia may have changed. The applicant has made a number of statements about his being a permanent resident. There is a statement on an online form dated 5 March 2012 as follows: “I am living in Australia on a permanent basis”. On 8 August 2012, he made a signed statement in which he declared: “I hereby declare my intention to reside permanently in Australia". There is a statement on an online form dated 19 December 2012 as follows: “I am living in Australia on a permanent basis”. On or about 5 June 2013 he wrote a letter which is headed “Evidence of intention to reside permanently in Australia”. I appreciate that the wording on the online form may not perfectly represent the words made by the applicant, but the applicant did not contest the accuracy of the statements in the online forms.
In any event, apart from these online forms, the applicant has made other statements indicating his intention to permanently reside in Australia.
I have to determine whether the applicant was an Australian resident during the period from 6 March 2012 until 19 February 2013. In considering whether the applicant can be regarded as an Australian resident I have to consider whether the applicant can be regarded as a person who “resides in Australia” (s 7(2) of the Act). The physical presence of a person in a particular place is one indication of residence.[1] The evidence before me is that at this time the applicant was present in Australia for short periods of
time: 2 March 2012 to 27 April 2012; 6 August 2012 to 16 September 2012; and
14 December 2012 to 20 February 2013. This does not indicate that during the relevant period the applicant resided in Australia.
[1] Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 at [8] per Branson J.
I am also required to consider the matters mentioned in s 7(3) of the Act, which are outlined below.
The nature of accommodation used in Australia
There is no cogent evidence of the nature of the accommodation used by the applicant in Australia. In his online claim that he submitted on 5 March 2012, the applicant gave an address in a Brisbane suburb as being his home address, he also stated that he had started living at that address on 3 March 2012. On 1 June 2012 the applicant informed the Minister that the Brisbane address was for “contact only – electoral address”.[2] In his online claims that he submitted on 7 August 2012 and 19 December 2012 the applicant gave that same Brisbane suburban address as his home address. In his claim for
age pension dated 19 December 2012,[3] the applicant stated that the Brisbane suburban address was the home of a long-term friend and that he was living temporarily at that address. In that claim he also advised that on the next day he would move to the
Darling Downs to live at an address of another long-term friend. He does not pay rent for that accommodation.
[2] See exhibit A, page 80.
[3] See exhibit A, page 166.
I have considered the evidence that is before me as to the nature of the accommodation used by the applicant. The applicant has in three claims, dated 5 March 2014,
7 August 2012 and 19 December 2012, listed a Brisbane suburban address as being his home address. I do not accept that this Brisbane suburban address is the home address of the applicant because on 1 June 2012 he sent an email to the Minister in which he indicated that he had an Indonesian address and stated that the Brisbane address was for “contact only”. This evidence does not indicate that the applicant is an Australian resident.
The nature and extent of the family relationships in Australia
The evidence before me discloses that the mother and sister of the applicant reside in Australia. His mother or sister has not provided any statement. The applicant informed this Tribunal that he did not have a close relationship with these family members.
This factor alone is neutral in whether the applicant is an Australian resident.
The nature and extent of employment, business or financial ties with Australia
There is no evidence of the applicant having any employment, business or financial ties with Australia. This evidence does not indicate that the applicant is an Australian resident.
The nature and extent of the assets located in Australia
The applicant has stated that apart from cash held in Australian banks he has no assets in Australia. This indicates that the applicant is not an Australian resident.
The frequency and duration of travel outside Australia
The evidence before me is that during the relevant period the applicant was present in Australia for short periods of time. On 27 April 2012 he left Australia and returned on
6 August 2012. He again left Australia on 16 September 2012 and returned on
14 December 2012. This is not indicative of the applicant being an Australian resident.
Any other matter relevant to determining whether the applicant intended to remain permanently in Australia
On 2 March 2012, the applicant indicated on an incoming passenger card that he did not intend to live in Australia for the following 12 months.
The applicant has during the relevant period indicated that he is a resident of Indonesia. On 6 March 2012 the applicant wrote a letter to a Centrelink manager in which he remarked:
In assuming … the responsibilities of a family (in an Indonesian context, quite different from the Australian) and residing in Indonesia I have discovered a rich and fulfilling way to live out the final phase of a life which had hitherto been notably lacking in social support and network, and completely unfulfilling – in Australia.
In a document dated 9 March 2012 he stated that an Indonesian address was “our address”. In communication with Centrelink dated 31 May 2012, the applicant stated:
How would you feel if at the commencement of your retirement you were forced by circumstances to separate from your wife of just three years, your new family, your new home and all of your effects and comforts of life simply because of a rule that was never intended to apply in you circumstances – to merely exist in a place for two years?
On 1 June 2012 the applicant sent an email to the Minister which gave his address as being an Indonesian address, and on that email he then indicated that the Brisbane suburban Australian address was for “contact only – electoral address”.
After considering the evidence before me I have concluded that for the relevant period the applicant was not an Australian resident and was therefore not residentially qualified to receive age pension.
I have earlier mentioned that in all three claim forms for age pension the applicant listed a Brisbane suburban address as being his home address. I do not accept that this address was ever his home address having regard to his email of 1 June 2012 to the Minister in which he indicated that he had an Indonesian address and that the Brisbane address was for “contact only”.
I do not accept that the declarations made by the applicant are probative of his intention to reside in Australia permanently.
The applicant does not have permanent residency status in Indonesia. However, this of itself does not establish that he is an Australian resident.[4]
[4] See Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726.
WHETHER AGE PENSION WHICH HAS BEEN PAID CONSTITUTES A DEBT
As the applicant was not an Australian resident and not qualified for age pension during the period from 6 March 2012 to 19 February 2013, he was not entitled to receive the payments which were made to him.
WHETHER THE DEBT HAS TO BE REPAID
I now have to consider whether the debt has to be repaid.
Section 1237A(1) of the Act provides:
(1)... the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
This provision is inapplicable as there is no evidence of any administrative error on the part of the Commonwealth.
Section 1237AAD of the Act provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
I decline to exercise discretion under s 1237AAD as the applicant declined the opportunity to give evidence and be questioned about any special circumstances.
I can also write off the debt under s 1236 of the Act which allows the Secretary to write off a debt where any of the following circumstances apply:
(1A) …
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
On the evidence before me I am not satisfied that any of the grounds under s 1236 of
the Act are established.
As my reasons are a matter of public record I have decided not to disclose the addresses given by the applicant to protect his privacy.
DECISION
I affirm the decision under review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ..........................Sgd...........................................
Associate
Dated 29 April 2014
Date of hearing 3 April 2014 Applicant In person Solicitors for the Respondent Rick McQuinlan, Department of Human Services
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