This is more interesting.
Evetts and Secretary, Department of Social Services (Social services second review) [2015] AATA 535 (22 July 2015)
Division
GENERAL DIVISION
File Number(s)
2014/6737
Re
Adrian Evetts
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Professor R McCallum AO, Member
Date
22 July 2015
Place
Sydney
The decision under review is affirmed.
............................[sgd]............................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY - Age pension - portability - exceptions to general portability rule - no portability where claim based on short residence - whether applicant departed Australia within two years of being granted age pension - applicant departed Australia within two year period - decision under review affirmed
LEGISLATION
Social Security (Administration Act) 1999 (Cth) s 29
Social Security Act 1991 (Cth) ss 7, 1220(1)
CASES
Re Dracup and Secretary to the Department of Social Security [1985] AATA 292
Re Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22 (1990) 21 FCR 193
REASONS FOR DECISION
Professor R McCallum AO, Member
22 July 2015
INTRODUCTION
The Applicant, Mr Adrian Evetts, was born in the United Kingdom and immigrated to Australia in 1979. Mr Evetts is an Australian citizen. He left Australia in 1999 and settled in Indonesia.
On 2 June 2013, Mr Evetts returned to Australia, and on 4 June 2013 he inquired about his eligibility to receive the Age Pension. Mr Evetts reached pensionable age in 2005.
On 10 June 2013, Mr Evetts applied for the Age Pension, and on 12 July 2013 he was granted the Age Pension from 4 June 2013.
On 17 July 2013, Mr Evetts returned to Indonesia. On 17 July 2013, an employee of Centrelink decided to suspend Mr Evetts' age pension from 17 July 2013. His pension was cancelled by Centrelink on 16 October 2013.
Mr Evetts sought review from an Authorised Review Officer and then from the Social Security Appeals Tribunal (SSAT), but the decisions to suspend and to cancel his Age Pension were confirmed. Mr Evetts appeals to this Tribunal.
THE ISSUE BEFORE THIS TRIBUNAL
The issue before me is whether Centrelink was correct to suspend and then to cancel Mr Evetts’ Age Pension.
THE LEGISLATION
In Mr Evetts' circumstances, the relevant provisions are to be found in the Social Security (Administration Act) 1999 (Cth) (the Administration Act), and the Social Security Act 1991 (Cth) (the SS Act).
Section 29 of the Administration Act requires that applicants for social security payments must be Australian residents and they may only apply when they are in Australia. Section 29 does contain several exceptions, however, none are applicable to Mr Evetts.
Section 29 relevantly provides:
(1) ...A claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) ...A claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
Sections 1214 to 1217 of the SS Act contain general portability rules. Once an Age Pension has been granted to a recipient, the recipient may leave Australia for another country and still receive the Age Pension.
However, there are several exceptions to this general portability rule. In Mr Evetts' circumstances, the only relevant exception is set out in subsection 1220(1) of the SS Act.
Subsection 1220(1) of the SS Act alters the general portability rule in the following circumstances. Where persons who have been residing outside Australia return to Australia and obtain the Age Pension, the unlimited portability rule will not apply if they depart Australia within two years of their return.
Subsection 1220(1) of the SS Act relevantly provides:
(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;
... 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.
A similar provision to subsection 1220(1) of the SS Act was section 83AD of the Social Security Act 1947 (Cth). In Re Dracup and Secretary to the Department of Social Security [1985] AATA 292, Senior Member J.B.K. Williams CBE commented on section 83AD as follows.
The Senior Member said:
As I read s.83AD, the legislative intention underlying it is to prevent people formerly residing in Australia and who would not qualify for the grant of age pension by reason of not being physically present in Australia (see s.21(1)) from making fleeting return visits to Australia in order to qualify for a grant, and then departing again for overseas.
I agree with the comments of the Senior Member. In my view these comments equally apply to subsection 1220(1) of the SS Act.
In determining whether the exception in subsection 1220(1) applies to Mr Evetts, it is necessary to set out the relevant residence provisions which are contained in section 7 of the SS Act.
Section 7 relevantly provides:
Section 7 Australian residence definitions
...
(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 EVIDENCE
Mr Adrian Evetts participated in the hearing by telephone from Indonesia. I asked Mr Evetts a number of times whether he wished to give sworn evidence over the telephone. Each time I asked him this question he said that he did not wish to give sworn evidence. Mr Evetts said that he wished to rely upon the documents which he had forwarded to the Tribunal.
The Tribunal had before it the following documents:
Mr Evetts’ application to this Tribunal dated 21 December 2014;
Mr Evetts’ submissions dated 3 February 2015;
Mr Evetts' evidence document filed 18 May 2015;
the Respondent's Statement of Facts, Issues and Contentions filed 5 June 2015;
the Respondent's Statement of Issues dated 30 January 2015; and
the documents prepared by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) which are known as the T documents. The T documents contained the decision of the SSAT dated 6 November 2014 and posted on 10 November 2014.
The date of the hearing was 26 June 2015. On 24 June 2015, Mr Evetts sent an email to the Tribunal. I admitted this email into evidence as Exhibit A1.
Mr Evetts did give evidence by telephone to the SSAT. In its decision dated 6 November 2014, the SSAT summarised Mr Evetts's evidence as follows at paragraphs 17-19:
Mr Evetts stated that he decided to reside in Indonesia in 1999 as it was obvious to him that he did not have enough savings to retire in Australia when he turned 65 and he needed to find a cheaper place to live. He sold all of his property and closed all bank accounts and credit cards. He maintained health insurance but after four years he cancelled his insurance as he discovered it did not cover anything as he was not covered by Medicare. He has married an Indonesian national and has had two children. Mr Evetts stated he has established "a foot-print, and a way of life with family, extended family, friends and my lifelong musician hobby". His daughter-in-law (son deceased) and two grandchildren live in Western Australia.
Mr Evetts does not dispute that he was living in Indonesia immediately prior to his arrival in Australia on 2 June 2013.
Mr Evetts stated that when he came to Australia on 2 June 2013 it was with the intention of trying to establish whether or not it was viable for him to move back to Australia. He had not actually made the decision to move at this point. When asked why he had stated on his application form that he was residing permanently in Australia he explained that the questions were confusing and that he was looking to move to Australia over the next few years. After he had been in Australia a few weeks it became obvious to him that he could not afford to live in Australia.
THE CONTENTIONS OF MR EVETTS
At the hearing, Mr Evetts said that when he attended the Centrelink office, the subsection 1220(1) of the SS Act exception to the general portability rules was never explained to him and he felt aggrieved by this failure. The Respondent said that material on the compensation scheme which covers such situations had been forwarded to Mr Evetts. In Mr Evetts’ evidence document dated 18 May 2015, Mr Evetts wrote that:
1. I have submitted a Compensation Application to Centrelink posted by certified mail on 28 April to the address given in the instructions form provided with the application form. The claim is for All Age Pension payments not received because of the suspension. Centrelink are therefore aware of my grounds for appeal.
2. I have also requested Commonwealth Ombudsman to deliberate on Centrelink's ill considered grounds for suspension and to overturn Centrelink’s suspension and cancellation decision with the powers vested in the Ombudsman's office. After 21 months of appeal I believe I have the right to appeal to the Ombudsman because of the inadequacies of the bureaucratic system that the Government of Australia presides over...
Mr Evetts’ application for compensation is dealt with by a separate body and is not a matter for this Tribunal. Mr Evetts’ application to the Commonwealth Ombudsman is a matter for the Ombudsman.
At the hearing, Mr Evetts also said that the rules of estoppel prevented Centrelink from cancelling his Age Pension.
In brief, the contentions of Mr Evetts which are set out in the documents which he has forwarded to the Tribunal are as follows.
In his application to this Tribunal dated 21 December 2014 which is T1 in the T documents, Mr Evetts sets out grounds for his appeal at some length. Mr Evetts writes as follows:
Family - 1 girl age 13 to previous Indonesian wife and 1 infant girl born ... 2014 to current Indonesian wife plus one 14 year old son from wife's previous marriage. All on my Indonesian Family Card
First claim for Age Pension - June 2013, 8 years after retirement age.
Medical Condition - Spasmodic Torticollis. Treated in Indonesia at my expense.
Reason for Appeal
Single or married I would be unable to survive in Australia on an age pension of A$1,790.02 / month (as allocated to me by CentreLink). This amount of pension would not support life at an 'adequate standard of living' and a life of dignity that Australia has committed to provide her citizens under the Universal Declaration of Human Rights. But A$1,790.02 / month will support me in Indonesia and more so if I don't have to fly back and forth to Australia at the prescribed frequency to retain age pension rights.
Appeal
This appeal is to request AAT to review my request for reinstatement of Age Pension payments while I continue living in Indonesia and without need to return to Australia for a continuous 2 year residential qualifying period and without a 13 week maximum overseas travel limitation forever thereafter. This appeal follows a Centrelink review and SSAT Appeal both of which were rejected. Despite these past requests for review being based on humanitarian grounds they were rejected on legal grounds and the human rights aspects were ignored.
This request to AAT for review is also on Human Rights grounds. While Australia lacks its own Bill of Rights it has signed and ratified the following international and United Nations Human Rights treaties and conventions and this appeal is based on these.
1. The Universal Declaration of Human Rights
2. International Covenant on Economic, Social and Cultural rights.
Mr Evetts’ application document continues by giving further details about Australia's international human rights obligations.
Mr Evetts’ submissions dated 3 February 2015, comprise a chain of emails headed "Disaster for Denmark". Mr Evetts writes as follows:
This is in no way intended as material support for my claim for age pension but it is indicative of where Australia is headed. 4% of the Danish population that is Muslim are drawing 40% of the countries social benefits budget. Beware Australia this is the direction in which you are headed whilst true Australian citizens making legitimate claims for Aged Pension and support are denied their rightful entitlements so the immigrants can get their hands on tax payers money.
As Mr Evetts made clear the material in this email chain is not relevant to his circumstances.
Mr Evetts evidence document dated 18 May 2015, comprises of a cover letter and a lengthy attachment which Mr Evetts describes in the cover letter as follows:
...I have provided the Ombudsman with a copy of my answer to question number 10 of the Compensation Application form which is essentially the basis of my appeal to the AAT.
However while the above mentioned document is still true the document I submit herewith (attached) has been changed to clarify and reinforce the legal aspects for the appeal against Centrelinks decision without changing the underlying legal grounds for the appeal.
The new evidence I submit for this appeal is legal and not on humanitarian grounds because it seems Australia has no sincere commitment to its obligations under the Universal Declaration of Human Rights and other conventions of human rights when it comes to their own citizens. The attached document should be seen as the grounds for my appeal.
In the attached document which is Mr Evetts' appeal to this Tribunal, Mr Evetts writes as follows:
This claim is based on Centrelink's legal Liability under the Law of Estoppel
I know that I am entitled to Age Pension because it was granted on 12 July 2013 and the entitlement backdated to 4 June 2013 and paid to the amount of A$2,431.93 in two separate payments up to and including 16 July 2013. But on 17 July 2013 when I left Australia payments were suspended under 'Former / Returning Residents Provisions', which had never been explained to me and were unknown to me at that time (a failure by Centrelink to conform to a reasonable standard of duty of care).
In spite of three interviews with CentreLink during June and July of 2013 and specifically the last interview that was at my request to advise CentreLink of my pending departure from Australia on 17 July 2013, the Former / Returning Resident Provisions were never explained or even touched on in this or previous interviews. At the last interview I asked the CentreLink officer (name forgotten) about portability he gave an affirmative answer. Added to this the portability of Age Pension was confirmed on CentreLink Victoria Park WA office PA system while I was in the waiting area waiting for the last interview and there were no exceptions or conditions added. With two affirmative Centrelink sources confirming portability I had no reason to doubt the portability of my Age Pension and I acted in reliance of what I believed was true when departing for Indonesia to be with my family.
The question might be asked as to why I did not return to Australia as originally intended. The reason is that having become aware of the provisions previously unexplained relating to Former / Returning Residents and that Age Pension would be suspended with every absence from Australia my plan to set up home in Australia became financially senseless.
The purpose of this claim for compensation is to get AAT and CentreLink's acceptance that under the Law of Estoppel Centrelink cannot impose an additional provision after an alleged breach of that provision and penalize me and accordingly I trust Centrelink will accept this claim for compensation and additionally reinstate my entitlement to portable Age Pension payments from the end date of the claim for compensation (16 April 2015).
After detailing the circumstances of his wife and two children in Indonesia, Mr Evetts summarises the legal rules of estoppel.
Mr Evetts sent to the Tribunal an email dated 24 June 2015, which I admitted into evidence as Exhibit A1. In this email, Mr Evetts, inter alia, raises a new ground of appeal asserting that he has never lost his Australian residence. Mr Evetts writes as follows:
Facts
The Respondent is relying on proving that from 1999 to present except for a short period in June and July 2013 I resided in Indonesia. The establishment of this fact is the key to their (CentreLink's) case and it is imperative for them to prove this in order that the provisions applicable to Former Residents / Returning Residents will apply under the Social Security Act. If this is not proven to then the Former / Returning residents provision cannot apply and their case with be null and void. Comment: 1. I have never admitted to Indonesian residency. I have stated that I lived in Indonesia but under a temporary (paid for)Indonesian Retirement Visa that does not grant temporary or permanent residency. It is an annually renewable visa now with a cheaper five year option. 2. As I can return to Australia at any time without visa or application for residency it stands to reason my Australian residency was never revoked. Therefore during my absence I continued to be an Australian resident but I was living abroad in a foreign country on a temporary visa of that country.
On Sunday 28 June 2015, that is two days after the hearing, Mr Evetts sent a further email to the Tribunal. In the email, Mr Evetts referred me to an article by Dr Michael Spence titled "Australian Estoppel and the Protection of Reliance" which is to be found in (1997) 11 Journal of Contract Law p 203. I agreed to accept the email and had it forwarded to the Respondent. I have read the article by Dr Michael Spence.
THE CONTENTIONS OF THE RESPONDENT
At the hearing, the Respondent said that the Respondent was content to rely upon the Respondent's Statement of Facts, Issues and Contentions filed 5 June 2015 and the Respondent's Statement of Issues dated 30 January 2015. In brief, the Respondent contended that subsection 1220(1) of the SS Act applied to the circumstances of Mr Evetts, and accordingly the decision under review should be affirmed.
CONSIDERATION
The issue before me is whether I should affirm or set aside the decision of the SSAT. The decision of the SSAT was that Centrelink was correct to suspend and later to cancel Mr Evetts Age Pension as it was no longer payable by virtue of subsection 1220(1) of the SS Act.
The primary argument of Mr Evetts is that the rules of estoppel preclude Centrelink from suspending and later from cancelling his Age Pension. The article by Dr Michael Spence examines the development of the Australian doctrine of estoppel at Common Law and in Equity. The author does not discuss in the text whether or to what extent representations on the future exercise of statutory powers will found an estoppel.
In my view, the rules of estoppel have no application to the operation of subsection 1220(1) of the SS Act. It is clear that the rules of estoppel cannot fetter the future exercise of discretionary powers reposed in persons by statute. See Re Minister of Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] FCA 22 (1990) 21 FCR 193. Put another way, even where a representation is relied upon, it cannot prevent the future exercise of discretionary powers which are set out in statutes.
In any event, subsection 1220(1) of the SS Act bestows no discretionary powers upon Centrelink. It provides that where the circumstances of a recipient of social security conform to its requirements, the social security payment is no longer payable to the person. In other words, it is a self executing power which provides that the Age Pension is no longer payable where the circumstances of the recipient bring that person within the criteria of this provision. Any representations that subsection 1220(1) will not apply to a recipient of the Age Pension are null and void.
Australia has ratified the International Covenant on Economic, Social and Cultural Rights. This Covenant has not been enacted into domestic law, and can have no application to the operation of subsection 1220(1) of the SS Act.
The matter which I am required to decide is whether the circumstances of Mr Evetts' case fall within subsection 1220(1). If they come within this subsection, I shall affirm the decision under review. If not, I shall set aside the decision under review.
I have set out subsection 1220(1) earlier in these reasons. To determine whether Mr Evetts comes within its provisions, I must examine the six following issues.
First, was Mr Evetts an Australian resident within the meaning of paragraph 1220(1)(a) of the SS Act? It is clear that Mr Evetts resided in Australia from 1979 to 1999.
Second, Did Mr Evetts cease to be an Australian resident within the meaning of paragraph 1220(1)(b) of the SS Act? Mr Evetts left Australia in 1999 and commenced living in Indonesia. I have set out above the relevant portions of section 7 of the SS Act which deals, inter alia, with Australian residence for the purposes of the SS Act. Having regard to the test for deciding whether or not a person is residing in Australia which is set out in subsection 7(3) of the SS Act, I find that Mr Evetts was not residing in Australia before 2 June 2013. Either shortly before or shortly after leaving Australia for Indonesia in 1999, Mr Evetts sold all of his property and closed his bank accounts and credit cards. In other words, he has no assets in Australia. He has an Indonesian family, for since moving to Indonesia he has married and has fathered two children and has built a life for himself in that country. I note that Mr Evetts' widowed daughter in law and her two children live in Perth, however, in my considered judgement, these family relationships do not outweigh his lack of assets in Australia and his marriage, parenting and life in Indonesia.
Third, did Mr Evetts again become an Australian resident within the meaning of paragraph 1220(1)(c) of the SS Act? Mr Evetts returned to Australia on 2 June 2013. I find that Mr Evetts did again become an Australian resident.
Fourth, Did Mr Evetts apply for and receive the Age Pension within two years after again residing in Australia within the meaning of paragraph 1220(1)(d) of the SS Act? Mr Evetts applied for the Age Pension on 10 June 2013, and he was granted the Age Pension on 12 July 2013. I find that Mr Evetts received the Age Pension within two years of being resident in Australia.
Fifth, did Mr Evetts depart Australia after he had received the Age Pension within two years of again being an Australian resident within the meaning of paragraph 1220(1)(e) of the SS Act? Mr Evetts departed Australia and returned to Indonesia on 17 July 2013. I find that Mr Evetts did leave Australia within two years of again becoming an Australian resident.
Sixth, was financial assistance payable to Mr Evetts in respect of his absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953 within the meaning of paragraph 1220(1)(f) of the SS Act? In my view, this paragraph of subsection 1220(1) is inapplicable to Mr Evetts . There is no evidence before me of this type of financial assistance being payable to Mr Evetts.
I find that subsection 1220(1) of the SS Act applies to Mr Evetts, and accordingly I find that Centrelink was correct to suspend and later to cancel Mr Evetts' Age Pension.
DECISION
I affirm the decision under review.
I certify that the preceding 51 (fifty one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
.....................[sgd]...................................
Associate
Dated 22 July 2015
Date(s) of hearing
26 June 2015
Date final submissions received
29 June 2015
Solicitors for the Respondent
Department of Human Services
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www.austlii.edu.au/au/cases/cth/AATA/2015/535.html
