Curtis-Smith v Secretary, Department of Social Services

REASONS FOR JUDGMENT 1 This judgment deals with a statutory appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") against a decision of the Administrative Appeals Tribunal ("the AAT"). Such an appeal is only available on a question of law. The appeal was, by consent, argued in writing and without an oral hearing. 2 The questions of law were identified as follows: 1. Whether the heading "General rule" to section 29 of the Social Security (Administration) Act 1999 is such that the application of section 29 is not mandatory on all claims for a social security payment, but discretionary. 2. Whether the discretion is limited to the statutory exemptions to the application of Section 29 as set out in sections 30, 30A, 31, 31A, and 32. 3. Whether the claim of the Applicant for an aged pension, subjectively assessed, is eligible to be an exemption to the provisions of section 29. (Emphasis in original.) 3 The first question of law may be answered at once, and without reference to the particular circumstances of the appellant. 4 Section 29 of the Social Security (Administration) Act 1999 (Cth) ("the SS (Administration) Act") provides: Subdivision H - Residence requirements for claimants 29 General rule (1) Subject to sections 30, 30A, 31, 31A and 32, 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) Subject to sections 30, 30A, 31, 31A and 32, 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 30, 30A, 31, 31A and 32 deal with matters which are not relevant to the present case, or to the circumstances of the appellant.] 5 The heading to s 29 of the SS (Administration) Act, read with the terms of s 29, does not signify that a general discretion exists to depart from the statutory direction in s 29. 6 Whether read with the assistance of its heading or not, s 29 is plainly a general rule to which specific statutory exceptions are made. If none of the stated exceptions apply, the general rule must be observed. Section 29 erects a statutory prohibition on a claim for a social security payment (s 29(1)) and specifies that a non-complying claim is taken not to have been made (s 29(2)). 7 The first suggested question of law must, therefore, be answered against the appellant. As will be seen, that is a complete answer to his claim, as the AAT correctly found. 8 No answer need be given to the second question of law, because the exceptions mentioned in ss 30, 30A, 31, 31A and 32 are not relevant to the present case. 9 The third question of law is poorly expressed, but I will regard it as intending to raise the question of whether on the findings made by the AAT, the appellant's claim before the AAT satisfied s 29 of the SS (Administration) Act or whether the AAT otherwise made an apparent error of law in rejecting the claim. 10 Consideration of those matters will require an explanation of the nature of the claim and the reasons for its rejection. In that discussion the findings of fact made by the AAT are not open to challenge. 11 The appellant was born in Melbourne in 1943, was educated in Melbourne and graduated from Melbourne University in 1970. He practised as a solicitor in Victoria until he retired in 2002. 12 In 2002, the appellant relocated to the Philippines, where he now lives. 13 On 7 February 2013, while on a visit to Australia, the appellant made a claim for an age pension. As he was in Australia when the claim was made, the requirement of s 29(1)(b) of the SS (Administration) Act was satisfied. 14 On various dates in February, April and May 2013, the appellant was advised that his claim had been denied because he had not responded to correspondence or had failed to properly complete supporting material or because (incorrectly) he was not in Australia when the claim was made. On 17 August 2013, a reviewing officer confirmed rejection of the claim because some outstanding information had not been provided. It is not necessary on this appeal to consider whether any of these explanations was inadequate because the appellant exercised a statutory right to have rejection of the claim reviewed. 15 On 4 October 2013, the appellant appealed to the Social Security Appeals Tribunal ("the SSAT") which, on 9 December 2013, rejected the appeal. The conclusions of the SSAT were stated as follows: 55. On balance, the Tribunal is satisfied that Mr Curtis-Smith has not resided in Australia since about 2002 and has only come to Australia for short visits. His permanent home is in the Philippines. As he is not residing in Australia, he is not an Australia resident as defined in subsection 7(2) of the Act. 56. The Tribunal concludes that Mr Curtis-Smith was not an Australian resident when he claimed age pension. Therefore, applying subsection 29(2), his claim for age pension is taken not to have been made. Mr Curtis-Smith cannot be paid age pension and, the decision by Centrelink to reject his claim for age pension is therefore correct. 16 The appellant then appealed to the AAT for review of the decision of the SSAT. That application for review was rejected on 17 March 2015 for the same reason, namely that the appellant did not satisfy the requirement of s 29(1)(a) because he was not an Australian resident when he lodged his claim. It is from that decision that the present appeal has been brought. 17 The term "Australian resident" which is used in s 29(1)(a) is given a defined meaning by s 7 of the Social Security Act 1991 (Cth) ("the SS Act") which provides: 7 Australian residence definitions (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. (Emphasis in original.) 18 The AAT considered the matters referred to in s 7(3) of the SS Act and concluded, having done so, that the appellant was not an Australian resident. 19 It appears that the appellant and his wife commenced to live apart at least after she moved separately to the Philippines in 1997. The appellant remained in Australia. He gave evidence to the AAT that he visited his wife and their children regularly in the Philippines. When the appellant retired in 2002, he relocated to the Philippines but in that same year, on his evidence, his wife was repatriated to Australia for medical reasons where she thereafter remained, while he remained living in the Philippines. 20 In late 2002, the appellant commenced a de facto relationship in the Philippines, which was thereafter maintained, two children being born. 21 From time to time, the appellant visited Australia and, the AAT accepted, stayed with his estranged wife when he did so. The AAT found that between 30 April 2003 and 15 February 2013 - i.e. in substance over the 10-year period before making his claim for an age pension - the appellant spent 3% of his time (111 days) in Australia. 22 The AAT gave consideration to claims by the appellant about the extent of his claimed beneficial interest in the property at which his estranged wife resided but, on the evidence before the AAT, rejected the appellant's claim to have any beneficial interest in that property. 23 More generally, and apart from those specific findings, the AAT dealt, one by one, with each of the elements referred to in s 7(3) of the SS Act. It is not necessary to discuss those matters in detail. That aspect of the AAT's decision and reasons was not challenged in the appellant's written submissions. 24 Rather, the focus of the appellant's argument was on the contention that s 29(1)(a) (and its incorporated definition of "Australian resident" from s 7) did not apply to his case at all because he "is an exception to that 'General rule' by reason of a number of subjective matters, amounting to special circumstances …". Thus, the argument came full circle and returned to the proposition in the first suggested question of law. 25 The appellant argued in his written submission that he should be regarded as a personal exception to the operation of s 29 of the SS (Administration) Act (i.e. as an exception to the "General rule") because social security legislation is "remedial or beneficial" legislation and because he otherwise satisfies the conditions stated in s 43 of the SS Act for the grant of an "age pension", namely that he has reached "pension age" (in his case 65) and that he was (before he left Australia for the Philippines) an Australian resident for longer than 10 years. 26 This argument is misconceived. The appellant's circumstances do not represent an "exception" which avoids the application of s 29 of the SS (Administration) Act. Before a claim under s 43 of the SS Act requires consideration, the requirements of s 29 of the SS (Administration) Act must be satisfied. Section 29 imposes a statutory condition which precluded consideration of the appellant's claim to be entitled to an age pension under s 43 unless that statutory condition was satisfied. The appellant was required to demonstrate that he was an Australian resident at the time he applied for an age pension. He failed to do so. 27 No error on a question of law in the decision of the AAT has been shown. I reject the appellant's arguments of law to that effect. 28 The appeal must be dismissed. The appropriate order is that the appeal be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.