Post by Banjo on Jan 15, 2018 13:17:21 GMT 7
Administrative Appeals Tribunal of Australia
22 December 2017
The Applicant, Mr ........, seeks review of two decisions of the Social Services & Child Support Division of this Tribunal made on the same date — 25 May 2017.
The first decision affirms a decision of an authorised review officer (ARO) of the Department of Human Services (Department) to reject his claim for Newstart Allowance on the basis that he was not an Australian resident at the time of lodging his claim.
The second decision affirms a decision of an ARO of the Department to reject his claim for Age Pension on the same basis.
The central issue therefore is whether such decisions should be affirmed or not on the ground that the Applicant, at the time of lodging his claims for benefits, was or was not an Australian resident.
It appeared to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. The parties consented to a review of the decision in their absence. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal conducted the review on the papers. However, it is my opinion that this is not a desirable way to proceed and it would have been helpful to hear from the parties in person on a number of matters. Ultimately, it was necessary to proceed in this manner as the Applicant was living in the Philippines and unable to attend the hearing in person.
The hearing in this matter has been conducted “on the papers” with no witnesses giving evidence. I do have, however, documents lodged with the Tribunal by both parties. I have the Respondent’s Statement of Facts and Contentions and I have the Applicant’s Submissions.
I have carefully read the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975AAT Act and the documentation provided by each side.
I understand each party’s position but it would have been helpful to hear from them in person on a number of matters. I must indicate my view that generally a hearing “on the papers” is not a desirable way to proceed. In this matter, the Applicant, I note, was living in the Philippines and unable to attend the hearing in person.
The need for the Applicant to be a resident at the time of lodging a claim arises under social security law. The Applicant must meet residency requirements set out in the Social Security Act 1991 (Cth) (1991 Act). These are set out in s 43(1) and s 593 of the 1991 Act. Australian residency must have been for 10 years in order to qualify (see s 43 (1)(a) of the 1991 Act). That is, unless the exemption from the residence requirement set out in s 7(7) of the 1991 Act applies.
The Social Security (Administration) Act 1999 (Cth) (1999 Act) is also relevant in this regard. The residency requirement is set out in s 29 of the 1999 Act. Furthermore, there is a definition of Australian resident in s 7(2) of the 1991 Act and considerations to be taken into account in determining whether a person resides in Australia are set out in s 7(3) of the 1991 Act.
The Respondent argues that the decisions under review should be affirmed on the ground that the Applicant did not satisfy residency requirements. It is not denied by the Respondent however that the Applicant is an Australian citizen.
The Applicant submits that at the time of applying for social security benefits I was living in Australia with the intention to bring my family at a later stage (Dec 2017). At an earlier point, he suggests he could have been a resident at that time of both Australia and the Philippines.
There is no doubt, in my view, especially in light of the Respondent’s concession, that at the time he applied for the benefits, the Applicant was an Australian citizen. I am unable to say whether at that time he was living in Australia—as he contends—but I am prepared to accept that at the time he was within Australia.
A person being within Australia at some particular time may not necessarily be living here at that time. But even living here at a particular time may not mean a person is residing here at that time. That may be so even if they are an Australian citizen.
Residency, as such, includes two elements as is submitted to me. They are physical presence in a particular place and the intention to treat that place as home at least for the time being, not necessarily forever. See Re Maha Hafza v Director-General of Social Security [1985] FCA 164 at [13] per Wilcox J. There is a notion of permanence involved; ‘permanently’ requires the person to have an enduring commitment to Australia as home. See Secretary ,Department of Families and Community Services and Indigenous Affairsv Baccon [2006] FCA 773 at [15] per Branson J. It was in that case that Branson J spoke of a person allegedly being resident of two countries. Her Honour indicated however that she was not inclined to favour this view and did not take the matter further.
Based on the materials presented to me, I am not satisfied that at the time he applied for social security benefits the Applicant was a resident in Australia and satisfied the residency requirement. It follows that I cannot be satisfied the Applicant meets the 10 year requirement of Australian residency. However, I am satisfied on the materials that he is not exempted from having to meet that requirement.
Considering the matters in s 7(3) of the 1999 Act, it is significant in my view to note the Applicant has spent little time in Australia going back to 2010. In the period leading up to October 2016 the substantial part of his time has been spent outside the country. Indeed, he left Australia for the Philippines on 12 December 2016 and has not returned since.
This is understandable, I consider, because it seems clear that he maintains a second family outside Australia, in the Philippines.
His wife, ....., is Filipino and he married her in the Philippines. He has two minor children by her who live there with her. He has not in fact applied for a permanent visa for Riza to this point it seems. But Riza was given a temporary visa to enter Australia.
The Applicant has sold his property in Hampton, Victoria, and has applied the proceeds to his superannuation fund. The Applicant holds no job in Victoria.
In October 2016, the Applicant entered into a short term residential lease of six months but terminated that lease early on 31 December 2016. A lease is only a contractual arrangement that does not give rise to any inference of intended permanency—particularly if it happens to get terminated.
The Applicant claims he has a permanent address in Australia at 302/358A South Road Moorabbin Vic 3189, Australia. This is the address which appears on the front of his submissions in this matter. However, those submissions were faxed from the Philippines.
That address, he explains, is the place where a daughter of his first marriage resides. She lives there alone, he says, but he stays with her from time to time and he has shared that address with [her] many times over the last few years.
There is a significant difference in residing somewhere with an intention of permanency and residing there as a place to stay. I consider the Applicant’s case fits into the latter category. He has stayed with his daughter at the Moorabbin address many times over the years and may still do so in the future; but the premises are otherwise occupied by his daughter alone, who lives there on a permanent basis.
The fact is the Applicant does not live at that address on a permanent basis and that is critical. He does not reside there in any meaningful sense. If he was asked where he now lived---when he has no physical property himself in Australia—he would say, I am satisfied, that it is in the Philippines with his wife and two young children.
In those circumstances it does not seem credible to maintain a view that the Applicant resides in Australia. Nor is any compromise available in my view. There is strictly nothing in my view of a permanent nature tying the Applicant into having residency in Australia.
The Applicant, I am satisfied, has residency in the Philippines. It is as if he has left Australia and returns every now and again for some purpose or other.
In all the circumstances, I find the Applicant was not a resident of Australia when he applied for his social security benefits under the Act.
CONCLUSION
For the reasons I have given, the decisions under review must be affirmed.
www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/2749.html
22 December 2017
The Applicant, Mr ........, seeks review of two decisions of the Social Services & Child Support Division of this Tribunal made on the same date — 25 May 2017.
The first decision affirms a decision of an authorised review officer (ARO) of the Department of Human Services (Department) to reject his claim for Newstart Allowance on the basis that he was not an Australian resident at the time of lodging his claim.
The second decision affirms a decision of an ARO of the Department to reject his claim for Age Pension on the same basis.
The central issue therefore is whether such decisions should be affirmed or not on the ground that the Applicant, at the time of lodging his claims for benefits, was or was not an Australian resident.
It appeared to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. The parties consented to a review of the decision in their absence. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal conducted the review on the papers. However, it is my opinion that this is not a desirable way to proceed and it would have been helpful to hear from the parties in person on a number of matters. Ultimately, it was necessary to proceed in this manner as the Applicant was living in the Philippines and unable to attend the hearing in person.
The hearing in this matter has been conducted “on the papers” with no witnesses giving evidence. I do have, however, documents lodged with the Tribunal by both parties. I have the Respondent’s Statement of Facts and Contentions and I have the Applicant’s Submissions.
I have carefully read the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975AAT Act and the documentation provided by each side.
I understand each party’s position but it would have been helpful to hear from them in person on a number of matters. I must indicate my view that generally a hearing “on the papers” is not a desirable way to proceed. In this matter, the Applicant, I note, was living in the Philippines and unable to attend the hearing in person.
The need for the Applicant to be a resident at the time of lodging a claim arises under social security law. The Applicant must meet residency requirements set out in the Social Security Act 1991 (Cth) (1991 Act). These are set out in s 43(1) and s 593 of the 1991 Act. Australian residency must have been for 10 years in order to qualify (see s 43 (1)(a) of the 1991 Act). That is, unless the exemption from the residence requirement set out in s 7(7) of the 1991 Act applies.
The Social Security (Administration) Act 1999 (Cth) (1999 Act) is also relevant in this regard. The residency requirement is set out in s 29 of the 1999 Act. Furthermore, there is a definition of Australian resident in s 7(2) of the 1991 Act and considerations to be taken into account in determining whether a person resides in Australia are set out in s 7(3) of the 1991 Act.
The Respondent argues that the decisions under review should be affirmed on the ground that the Applicant did not satisfy residency requirements. It is not denied by the Respondent however that the Applicant is an Australian citizen.
The Applicant submits that at the time of applying for social security benefits I was living in Australia with the intention to bring my family at a later stage (Dec 2017). At an earlier point, he suggests he could have been a resident at that time of both Australia and the Philippines.
There is no doubt, in my view, especially in light of the Respondent’s concession, that at the time he applied for the benefits, the Applicant was an Australian citizen. I am unable to say whether at that time he was living in Australia—as he contends—but I am prepared to accept that at the time he was within Australia.
A person being within Australia at some particular time may not necessarily be living here at that time. But even living here at a particular time may not mean a person is residing here at that time. That may be so even if they are an Australian citizen.
Residency, as such, includes two elements as is submitted to me. They are physical presence in a particular place and the intention to treat that place as home at least for the time being, not necessarily forever. See Re Maha Hafza v Director-General of Social Security [1985] FCA 164 at [13] per Wilcox J. There is a notion of permanence involved; ‘permanently’ requires the person to have an enduring commitment to Australia as home. See Secretary ,Department of Families and Community Services and Indigenous Affairsv Baccon [2006] FCA 773 at [15] per Branson J. It was in that case that Branson J spoke of a person allegedly being resident of two countries. Her Honour indicated however that she was not inclined to favour this view and did not take the matter further.
Based on the materials presented to me, I am not satisfied that at the time he applied for social security benefits the Applicant was a resident in Australia and satisfied the residency requirement. It follows that I cannot be satisfied the Applicant meets the 10 year requirement of Australian residency. However, I am satisfied on the materials that he is not exempted from having to meet that requirement.
Considering the matters in s 7(3) of the 1999 Act, it is significant in my view to note the Applicant has spent little time in Australia going back to 2010. In the period leading up to October 2016 the substantial part of his time has been spent outside the country. Indeed, he left Australia for the Philippines on 12 December 2016 and has not returned since.
This is understandable, I consider, because it seems clear that he maintains a second family outside Australia, in the Philippines.
His wife, ....., is Filipino and he married her in the Philippines. He has two minor children by her who live there with her. He has not in fact applied for a permanent visa for Riza to this point it seems. But Riza was given a temporary visa to enter Australia.
The Applicant has sold his property in Hampton, Victoria, and has applied the proceeds to his superannuation fund. The Applicant holds no job in Victoria.
In October 2016, the Applicant entered into a short term residential lease of six months but terminated that lease early on 31 December 2016. A lease is only a contractual arrangement that does not give rise to any inference of intended permanency—particularly if it happens to get terminated.
The Applicant claims he has a permanent address in Australia at 302/358A South Road Moorabbin Vic 3189, Australia. This is the address which appears on the front of his submissions in this matter. However, those submissions were faxed from the Philippines.
That address, he explains, is the place where a daughter of his first marriage resides. She lives there alone, he says, but he stays with her from time to time and he has shared that address with [her] many times over the last few years.
There is a significant difference in residing somewhere with an intention of permanency and residing there as a place to stay. I consider the Applicant’s case fits into the latter category. He has stayed with his daughter at the Moorabbin address many times over the years and may still do so in the future; but the premises are otherwise occupied by his daughter alone, who lives there on a permanent basis.
The fact is the Applicant does not live at that address on a permanent basis and that is critical. He does not reside there in any meaningful sense. If he was asked where he now lived---when he has no physical property himself in Australia—he would say, I am satisfied, that it is in the Philippines with his wife and two young children.
In those circumstances it does not seem credible to maintain a view that the Applicant resides in Australia. Nor is any compromise available in my view. There is strictly nothing in my view of a permanent nature tying the Applicant into having residency in Australia.
The Applicant, I am satisfied, has residency in the Philippines. It is as if he has left Australia and returns every now and again for some purpose or other.
In all the circumstances, I find the Applicant was not a resident of Australia when he applied for his social security benefits under the Act.
CONCLUSION
For the reasons I have given, the decisions under review must be affirmed.
www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2017/2749.html
