Post by Banjo on Apr 23, 2014 9:11:55 GMT 7
Ray and Secretary, Department of Social Services [2014] AATA 227 (16 April 2014)
Last Updated: 22 April 2014
[2014] AATA 227
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2013/0085
Re
Paul Ray
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Regina Perton, Member
Date
16 April 2014
Place
Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that Mr Ray met residence requirements at the time of cancellation of disability support pension. The Tribunal remits the matter to the Secretary for consideration of any other outstanding issues.
.......................[sgd].................................................
Regina Perton, Member
SOCIAL SECURITY – disability support pension – cancellation on residency grounds – whether applicant a resident of Australia at the time of cancellation – decision set aside and remitted for consideration of any other outstanding issues
Social Security Act 1991 s 7
REASONS FOR DECISION
Regina Perton, Member
16 April 2014
Mr Paul Ray has been splitting his time between Indonesia and Australia over recent years. In Australia he has siblings and children, now adults. In Bali where he spent much of his time over the past decade, he has a now estranged wife, a young biological son and an unofficially adopted teenage step daughter.
Mr Ray had been receiving disability support pension (DSP) since 2003. For many years, he returned to Australia for periods of time to meet the requirements which were then in place for DSP recipients who were spending considerable time overseas. The requirements for such DSP recipients have tightened up in recent years.
On 13 March 2012 Centrelink, which administers DSP for the respondent, cancelled Mr Ray’s DSP on the basis that he was not a resident of Australia.
On 14 June 2012 Mr Ray contacted Centrelink concerning the cancellation of DSP and was advised to lodge a fresh application if he wished to reclaim DSP. On 25 June 2012 Mr Ray lodged the relevant claim form. On 9 July 2012 Centrelink advised Mr Ray that his fresh claim for DSP had been rejected because he did not meet residence requirements for grant of the payment.
Mr Ray later applied for new start allowance (NSA) which was initially refused but later granted.
While Mr Ray acknowledges that he may not have been eligible for DSP in relation to the application lodged in June 2012 due to provisions other than the residence provisions (those relating to 18 months on a program of support), he believes that he met the residence requirements in March 2012 and June 2012.
PRELIMINARY ISSUE
A preliminary issue before the Tribunal is whether it is able to review the cancellation of DSP in March 2012. Notice of the cancellation was sent to Mr Ray’s last advised address in Australia. He did not specifically lodge a document seeking review. However, his evidence to the Tribunal indicates that he was seeking review of the cancellation when he contacted Centrelink on 14 June 2012.
In the Secretary’s Statement of facts and contentions dated 25 October 2013, comments in relation to this issue are as follows:
32. Mr Ray was advised of the decision to cancel payment of disability support pension by notice dated 13 March 2012. This notice was sent to Mr Ray’s last advised address and is taken to have been received when the letter would have been delivered in the ordinary course of the post.
33. The Secretary has long taken a broad approach to the question of what constitutes a request for a review of a decision.
...
36. Despite the absence of the use of the word ‘review’ by Mr Ray in his dealings with Centrelink on his return to Australia in June 2012, the Secretary accepts Mr Ray always disagreed with the decision that he was no longer a resident of Australia and it was his intention to have that part of the decision to cancel his disability pension reviewed.
...
38. If the Tribunal accepts that Mr Ray’s contact with Centrelink on 14 June 2012 can be accepted as a request for review under section 109 of the Administration Act, the request will have been made within 13 weeks of being given a notice of the decision. Consequently, any favourable decision following a review would be the date of the effect of the original decision (that is from the date of cancellation).
The Tribunal accepts that Mr Ray was seeking review of the cancellation decision when he contacted the Department. The Tribunal is also satisfied that the Social Security Tribunal (SSAT) concentrated on residence in its review which was relevant to both the cancellation and the fresh application for DSP. The Tribunal finds that it is appropriate to consider whether Mr Ray met residence requirements for DSP in the application for review before it.
WAS MR RAY A RESIDENT OF AUSTRALIA AT THE DATE OF CANCELLATION OF DSP?
Australian resident is defined in section 7 of the Social Security Act 1991 (the Act).
(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.
The nature of the accommodation used by the person in Australia
When Mr Ray returned to Australia, he usually stayed with his sister and his son. Both his son and his sister were living in accommodation provided by the Ministry of Housing (MOH). There are rules which govern how long guests can stay in another person’s MOH accommodation before the tenant is required to pay extra rent. Mr Ray would usually spend three days per week at each of the residences with the remaining day with various friends.
He now shares accommodation with his son and has officially become an MOH tenant.
Mr Ray gave evidence that he also tried living in Darwin and stayed there for a time. While the climate was better for his health than Melbourne, he had difficulty finding affordable accommodation and missed his relatives and friends in Melbourne.
The nature and extent of family relationships the person has in Australia
Mr Ray grew up and lived in the Port Melbourne area. He provided the Tribunal with many interesting anecdotes about his family history and that of the area. Mr Ray stated he has at least 100 family members in Melbourne most of whom live in the Port Melbourne area. These include aunts, uncles and cousins.
Mr Ray’s son lives in Melbourne. He now shares a home with him. Mr Ray’s mother died in 2009. Prior to her death, Mr Ray was back in Australia for several months at a time caring for her.
The nature and extent of the person’s employment, business or financial ties with Australia
Mr Ray is not employed in Australia or Indonesia nor is he in business. He did not have financial ties with Australia beyond some possessions and the pension prior to the cancellation of his DSP.
The nature and extent of the person’s assets located in Australia
Mr Ray has a collection of furniture and rare books in Australia, much of which had been in his mother’s house. The collection is now stored at his son’s home. Mr Ray said that he had many books, thousands of records, hundreds of photo albums, an Edwardian sideboard, 30 to 40 kerosene lamps and about 80 boxes of family possessions.
He does not own any property here or in Indonesia. In Indonesia, he has minimal assets.
The frequency and duration of the person's travel outside Australia
Mr Ray has been a frequent visitor to Bali for many years. In a statement dated 4 October 2013, Mr Ray said he visited Indonesia because the warmer weather, easier access to treatment and ability to swim in warm waters helped him significantly. He stated that:
11. Prior to September 2010, I travelled back to Indonesia periodically. I was experiencing problems with serious neck and back injuries sustained from a car accident in about 1987 or 1988. My doctors suggested a warmer climate would provide some relief, so I periodically returned to Indonesia for this reason.
Centrelink has provided details of Mr Ray’s travels outside Australia in the nine years prior to the cancellation. He was granted DSP in September 2003 and since then has travelled outside Australia 18 times. The time outside Australia usually was just under 3 months although there were some longer stays. The time spent back in Australia varied between a week and six months. On a number of occasions, he spent four or five months back here.
Mr Ray told the Tribunal that he travelled to Bali on tourist visas of one or two months’ duration and on some occasions entered on social visas sponsored by his Indonesia partner, Siti. He told the Tribunal that the social visa allowed three months’ stay in Indonesia. A return ticket to Australia was required for all the visas. Mr Ray said that when he held tourist visas, he could get extensions of time in certain circumstances.
Any other matter relevant to determining whether the person intends to remain permanently in Australia.
Mr Ray started visiting Bali in the mid-1970s. In 2004 he met an Indonesian woman, Siti, whom he subsequently married on 26 June 2006. He told the Tribunal that his mother had urged him to marry Siti. In Bali Mr Ray lived in a boarding house by himself in Legian. Siti lived some distance away in another region, about an hour’s ride by motor bike. Mr Ray said that he was not able to live with Siti as she is living in a traditional village where Westerners are generally not allowed to stay. Mr Ray said that his mother had left Siti some money in her will. There was also a trust set up for the children but Siti has apparently now spent all the money as well as sold the motor bike.
Mr Ray returned to Australia on 29 June 2006 and stayed for just over five months. He was caring for his mother at that time as she was suffering from a number of serious conditions and became bedridden in 2007 or 2008. Mr Ray lived with his mother on and off for about 40 years. He stated that he had lived in a bungalow at the back of his mother’s house more often that he had lived anywhere else.
Mr Ray told the Tribunal that he is now separated from Siti. She bore his child, a son, on 25 June 2011. The couple were not living together at that time. Siti’s daughter by another father is now about 14 or 15 years old. Mr Ray cares about Siti’s daughter and is concerned about her welfare as well as that of his son.
There were severe storms and flooding in the early months of 2012 in Bali. Mr Ray said that the children were unwell and he tried to find Siti and the children during that period but was unable to do so. He spent longer than the anticipated time in Bali before his return to Australia on 6 June 2012 as he was trying to ensure that they were safe and well. Siti changed her telephone number several times and it was difficult to trace her and the children.
Mr Ray stated that:
24. I always wanted to bring my family in Indonesia to Australia, as this is and always has been home to me. I have informally adopted Siti’s daughter, but wanted to do so formally under Australian law.
25. I also wanted to have my son registered as a citizen by descent, and went to the Australian Embassy a few times to try and organise this. However I was not able to complete the paperwork as a professional witness was required, and I was unable to organise this.
The respondent’s advocate, in her written submission and oral presentation, conceded that most of the criteria are equivocal about whether Mr Ray might be regarded as being a resident of Australia or a resident of Indonesia. The Tribunal concurs that this is a case where the outcome is finely balanced.
At the time of the cancellation of DSP, Mr Ray had separated from his wife. He told the Tribunal that he had always viewed himself as living in Australia but only visiting Indonesia. Mr Ray has many relatives in Australia including siblings and a son who was experiencing difficulties following the death of his son’s partner. Mr Ray’s assets in Australia were more substantial than those in Indonesia where he had nothing much at all. On most occasions when he returned to Australia after becoming eligible for DSP, Mr Ray spent some months here although there were two or three shorter stays.
Taking into account the whole of the evidence and the relevant legislation, the Tribunal finds that Mr Ray was an Australian resident at the time of cancellation of DSP on 13 March 2012.
There may well be other matters to be considered in relation to Mr Ray’s eligibility for DSP at the time of cancellation. The Tribunal remits the application to enable the respondent to consider any outstanding issues.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mr Ray met residence requirements at the time of cancellation of disability support pension. The Tribunal remits the matter to the Secretary for consideration of any other outstanding issues.
www.austlii.edu.au/au/cases/cth/aat/2014/227.html
Last Updated: 22 April 2014
[2014] AATA 227
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2013/0085
Re
Paul Ray
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Regina Perton, Member
Date
16 April 2014
Place
Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that Mr Ray met residence requirements at the time of cancellation of disability support pension. The Tribunal remits the matter to the Secretary for consideration of any other outstanding issues.
.......................[sgd].................................................
Regina Perton, Member
SOCIAL SECURITY – disability support pension – cancellation on residency grounds – whether applicant a resident of Australia at the time of cancellation – decision set aside and remitted for consideration of any other outstanding issues
Social Security Act 1991 s 7
REASONS FOR DECISION
Regina Perton, Member
16 April 2014
Mr Paul Ray has been splitting his time between Indonesia and Australia over recent years. In Australia he has siblings and children, now adults. In Bali where he spent much of his time over the past decade, he has a now estranged wife, a young biological son and an unofficially adopted teenage step daughter.
Mr Ray had been receiving disability support pension (DSP) since 2003. For many years, he returned to Australia for periods of time to meet the requirements which were then in place for DSP recipients who were spending considerable time overseas. The requirements for such DSP recipients have tightened up in recent years.
On 13 March 2012 Centrelink, which administers DSP for the respondent, cancelled Mr Ray’s DSP on the basis that he was not a resident of Australia.
On 14 June 2012 Mr Ray contacted Centrelink concerning the cancellation of DSP and was advised to lodge a fresh application if he wished to reclaim DSP. On 25 June 2012 Mr Ray lodged the relevant claim form. On 9 July 2012 Centrelink advised Mr Ray that his fresh claim for DSP had been rejected because he did not meet residence requirements for grant of the payment.
Mr Ray later applied for new start allowance (NSA) which was initially refused but later granted.
While Mr Ray acknowledges that he may not have been eligible for DSP in relation to the application lodged in June 2012 due to provisions other than the residence provisions (those relating to 18 months on a program of support), he believes that he met the residence requirements in March 2012 and June 2012.
PRELIMINARY ISSUE
A preliminary issue before the Tribunal is whether it is able to review the cancellation of DSP in March 2012. Notice of the cancellation was sent to Mr Ray’s last advised address in Australia. He did not specifically lodge a document seeking review. However, his evidence to the Tribunal indicates that he was seeking review of the cancellation when he contacted Centrelink on 14 June 2012.
In the Secretary’s Statement of facts and contentions dated 25 October 2013, comments in relation to this issue are as follows:
32. Mr Ray was advised of the decision to cancel payment of disability support pension by notice dated 13 March 2012. This notice was sent to Mr Ray’s last advised address and is taken to have been received when the letter would have been delivered in the ordinary course of the post.
33. The Secretary has long taken a broad approach to the question of what constitutes a request for a review of a decision.
...
36. Despite the absence of the use of the word ‘review’ by Mr Ray in his dealings with Centrelink on his return to Australia in June 2012, the Secretary accepts Mr Ray always disagreed with the decision that he was no longer a resident of Australia and it was his intention to have that part of the decision to cancel his disability pension reviewed.
...
38. If the Tribunal accepts that Mr Ray’s contact with Centrelink on 14 June 2012 can be accepted as a request for review under section 109 of the Administration Act, the request will have been made within 13 weeks of being given a notice of the decision. Consequently, any favourable decision following a review would be the date of the effect of the original decision (that is from the date of cancellation).
The Tribunal accepts that Mr Ray was seeking review of the cancellation decision when he contacted the Department. The Tribunal is also satisfied that the Social Security Tribunal (SSAT) concentrated on residence in its review which was relevant to both the cancellation and the fresh application for DSP. The Tribunal finds that it is appropriate to consider whether Mr Ray met residence requirements for DSP in the application for review before it.
WAS MR RAY A RESIDENT OF AUSTRALIA AT THE DATE OF CANCELLATION OF DSP?
Australian resident is defined in section 7 of the Social Security Act 1991 (the Act).
(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.
The nature of the accommodation used by the person in Australia
When Mr Ray returned to Australia, he usually stayed with his sister and his son. Both his son and his sister were living in accommodation provided by the Ministry of Housing (MOH). There are rules which govern how long guests can stay in another person’s MOH accommodation before the tenant is required to pay extra rent. Mr Ray would usually spend three days per week at each of the residences with the remaining day with various friends.
He now shares accommodation with his son and has officially become an MOH tenant.
Mr Ray gave evidence that he also tried living in Darwin and stayed there for a time. While the climate was better for his health than Melbourne, he had difficulty finding affordable accommodation and missed his relatives and friends in Melbourne.
The nature and extent of family relationships the person has in Australia
Mr Ray grew up and lived in the Port Melbourne area. He provided the Tribunal with many interesting anecdotes about his family history and that of the area. Mr Ray stated he has at least 100 family members in Melbourne most of whom live in the Port Melbourne area. These include aunts, uncles and cousins.
Mr Ray’s son lives in Melbourne. He now shares a home with him. Mr Ray’s mother died in 2009. Prior to her death, Mr Ray was back in Australia for several months at a time caring for her.
The nature and extent of the person’s employment, business or financial ties with Australia
Mr Ray is not employed in Australia or Indonesia nor is he in business. He did not have financial ties with Australia beyond some possessions and the pension prior to the cancellation of his DSP.
The nature and extent of the person’s assets located in Australia
Mr Ray has a collection of furniture and rare books in Australia, much of which had been in his mother’s house. The collection is now stored at his son’s home. Mr Ray said that he had many books, thousands of records, hundreds of photo albums, an Edwardian sideboard, 30 to 40 kerosene lamps and about 80 boxes of family possessions.
He does not own any property here or in Indonesia. In Indonesia, he has minimal assets.
The frequency and duration of the person's travel outside Australia
Mr Ray has been a frequent visitor to Bali for many years. In a statement dated 4 October 2013, Mr Ray said he visited Indonesia because the warmer weather, easier access to treatment and ability to swim in warm waters helped him significantly. He stated that:
11. Prior to September 2010, I travelled back to Indonesia periodically. I was experiencing problems with serious neck and back injuries sustained from a car accident in about 1987 or 1988. My doctors suggested a warmer climate would provide some relief, so I periodically returned to Indonesia for this reason.
Centrelink has provided details of Mr Ray’s travels outside Australia in the nine years prior to the cancellation. He was granted DSP in September 2003 and since then has travelled outside Australia 18 times. The time outside Australia usually was just under 3 months although there were some longer stays. The time spent back in Australia varied between a week and six months. On a number of occasions, he spent four or five months back here.
Mr Ray told the Tribunal that he travelled to Bali on tourist visas of one or two months’ duration and on some occasions entered on social visas sponsored by his Indonesia partner, Siti. He told the Tribunal that the social visa allowed three months’ stay in Indonesia. A return ticket to Australia was required for all the visas. Mr Ray said that when he held tourist visas, he could get extensions of time in certain circumstances.
Any other matter relevant to determining whether the person intends to remain permanently in Australia.
Mr Ray started visiting Bali in the mid-1970s. In 2004 he met an Indonesian woman, Siti, whom he subsequently married on 26 June 2006. He told the Tribunal that his mother had urged him to marry Siti. In Bali Mr Ray lived in a boarding house by himself in Legian. Siti lived some distance away in another region, about an hour’s ride by motor bike. Mr Ray said that he was not able to live with Siti as she is living in a traditional village where Westerners are generally not allowed to stay. Mr Ray said that his mother had left Siti some money in her will. There was also a trust set up for the children but Siti has apparently now spent all the money as well as sold the motor bike.
Mr Ray returned to Australia on 29 June 2006 and stayed for just over five months. He was caring for his mother at that time as she was suffering from a number of serious conditions and became bedridden in 2007 or 2008. Mr Ray lived with his mother on and off for about 40 years. He stated that he had lived in a bungalow at the back of his mother’s house more often that he had lived anywhere else.
Mr Ray told the Tribunal that he is now separated from Siti. She bore his child, a son, on 25 June 2011. The couple were not living together at that time. Siti’s daughter by another father is now about 14 or 15 years old. Mr Ray cares about Siti’s daughter and is concerned about her welfare as well as that of his son.
There were severe storms and flooding in the early months of 2012 in Bali. Mr Ray said that the children were unwell and he tried to find Siti and the children during that period but was unable to do so. He spent longer than the anticipated time in Bali before his return to Australia on 6 June 2012 as he was trying to ensure that they were safe and well. Siti changed her telephone number several times and it was difficult to trace her and the children.
Mr Ray stated that:
24. I always wanted to bring my family in Indonesia to Australia, as this is and always has been home to me. I have informally adopted Siti’s daughter, but wanted to do so formally under Australian law.
25. I also wanted to have my son registered as a citizen by descent, and went to the Australian Embassy a few times to try and organise this. However I was not able to complete the paperwork as a professional witness was required, and I was unable to organise this.
The respondent’s advocate, in her written submission and oral presentation, conceded that most of the criteria are equivocal about whether Mr Ray might be regarded as being a resident of Australia or a resident of Indonesia. The Tribunal concurs that this is a case where the outcome is finely balanced.
At the time of the cancellation of DSP, Mr Ray had separated from his wife. He told the Tribunal that he had always viewed himself as living in Australia but only visiting Indonesia. Mr Ray has many relatives in Australia including siblings and a son who was experiencing difficulties following the death of his son’s partner. Mr Ray’s assets in Australia were more substantial than those in Indonesia where he had nothing much at all. On most occasions when he returned to Australia after becoming eligible for DSP, Mr Ray spent some months here although there were two or three shorter stays.
Taking into account the whole of the evidence and the relevant legislation, the Tribunal finds that Mr Ray was an Australian resident at the time of cancellation of DSP on 13 March 2012.
There may well be other matters to be considered in relation to Mr Ray’s eligibility for DSP at the time of cancellation. The Tribunal remits the application to enable the respondent to consider any outstanding issues.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mr Ray met residence requirements at the time of cancellation of disability support pension. The Tribunal remits the matter to the Secretary for consideration of any other outstanding issues.
www.austlii.edu.au/au/cases/cth/aat/2014/227.html
