Hashim v Chief Commissioner of State Revenue - [2020] NSWCATAD 67 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

Hashim v Chief Commissioner of State Revenue

[2020] NSWCATAD 67

NCAT Administrative and Equal Opportunity|2020-02-05

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Court

NCAT Administrative and Equal Opportunity

Decision date

2020-02-05

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

What is this matter about?

This matter concerns attempts made by the applicant Mr Ahmad Hashim and his wife Ms Husnia Abbassi to obtain a First Home Owner Grant ("FHO Grant") under the relevant provisions of the First Home Owner Grant (New Homes) Act 2000 (NSW) ("the FHOG Act") and a corresponding stamp duty exemption, known as the First Home Buyers Assistance Scheme duty exemption ("the FHB duty exemption"), under the Duties Act 1997 (NSW) ("the Duties Act").
They sought that grant and that exemption in respect of the purchase of a residential home unit property at Mays Hill in Western Sydney ("the Mays Hill property"), which was to be used as their home. They sought the FHB duty exemption in respect of the stamp duty that otherwise would be payable on the contract for the sale of the Mays Hill property to Mr Hashim ("the Contract for Sale") dated 12 October 2018 ("the Contract Date") and on the related memorandum of transfer of title ("the Transfer").
Ms Abbassi was born in Afghanistan. She came to Australia in about August 2004 as a young child with her parents. She is now and was at all relevant times an Australian citizen. Mr Hashim was also born in Afghanistan. He came to Australia in 2015 on a spouse visa. He is not an Australian citizen. He asserts that he is a permanent resident of Australia but the Respondent, the Chief Commissioner of State Revenue, ("the Chief Commissioner") disputes that.
The Chief Commissioner made two decisions which Mr Hashim seeks to have reviewed by this Tribunal, namely: 1. a decision on 11 December 2018 to reject an application, made by Mr Hashim only, for an FHO Grant ("the FHOG decision"); and 2. a decision on 5 June 2019 to revoke the FHB duty exemption which had previously been granted and to assess Mr Hashim as liable for stamp duty in the sum of $22,913.10 including interest ("the Duty decision").
My role was to decide: 1. whether the FHOG decision was the correct and preferable one (in which case it would be affirmed) or alternatively whether it should be set aside or varied, or whether I should make any of the orders available under sections 63 and 65 of the Administrative Decisions Review Act 1997 ("the ADR Act") in respect of it; and 2. whether the stamp duty assessment arising from the Duty decision should be confirmed or revoked or alternatively whether it should be set aside or varied, or whether I should make any of the orders available under section 101 of the Taxation Administration Act 1966 (NSW) ("the Administration Act") in respect of that decision.

[6]

Identification of the real issues

On my analysis, there were 3 real issues, as follows: 1. whether, as Mr Hashim asserts, he is a permanent resident of Australia and entitled on that basis to be treated by the Chief Commissioner as eligible for a FHO Grant. For convenience I shall refer to that as "the permanent residency issue"; 2. whether the Duty decision (that is, the decision on 5 June 2019 to revoke the FHB duty exemption previously granted and to assess Mr Hashim as liable for stamp duty of $22,913.10, with interest accruing) was correct and should be confirmed. For convenience I shall refer to that as "the duty exemption issue"; and 3. whether, in deciding either of the preceding issues, I should take into account and give effect to what is asserted by the solicitor for Mr Hashim to be the policy of the New South Wales Government concerning housing affordability, or any other government policy, in observance of the requirements of sub-section 64 (1) of the ADR Act. For convenience of reference I shall refer to that issue as "the Government policy issue". That sub-section requires the Tribunal, in determining any application for administrative review under that Act, to: ".. give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case."
A fourth potential issue, the issue of Ms Abbassi's ownership of the Mays Hill property, arose because the Second FHOG application was based on the assertion that she was a joint owner of that property. I describe the issue as "potential" because it was not pressed at the hearing and it appeared from what was said by Mr Hashim's solicitor late in the hearing that the issue had been abandoned. However, lest there be any doubt about whether it was intended completely to abandon the issue, I have dealt with it below. For convenience of reference I have referred to it as "the issue of Ms Abbassi's ownership".

[11]

The issue of Ms Abbassi's ownership

Mr Hashim as sole applicant lodged with the Office of State Revenue on or about 19 November 2018 an application for an FHO Grant ("the First FHOG Application"). That application was rejected on 11 December 2018. However, on or about 15 January 2019 Mr Hashim and Ms Abbassi as joint applicants lodged with the Chief Commissioner's office a second application for a FHO Grant ("the Second FHOG Application").
That application was made jointly by Mr Hashim and Ms Abbassi because the Chief Commissioner had rejected the First FHOG Application on the ground that the Mr Hashim as a sole applicant did not satisfy the permanent residency test. Mr Hashim and Ms Abbassi sought to overcome that rejection by adding Ms Abbassi, who was an Australian citizen, to the application. It was that action which gave rise to the issue of Ms Abbassi's ownership, in the following way.
On 26 April 2019 the Chief Commissioner rejected the Second FHOG Application on the ground that although Ms Abbassi was an Australian citizen and therefore satisfied the permanent residency test, she was not an owner of the property and therefore not a purchaser under the Contract for Sale or a transferee the Transfer.
As I read Mr Hashim's amended Application, he appeared to seek a review of that rejection by the Chief Commissioner of the Second FHOG Application.
Mr Hashim's case, as reflected in his amended Application, his written submissions and the oral submissions of his solicitor at the hearing, is that Ms Abbassi, by her monetary contributions to the payment of the 10% deposit under the Contract for Sale and by non-monetary contributions (which I understood to consist chiefly of the undertaking of childcare and domestic obligations at the Mays Hill property) had obtained an equitable interest in that property. In the alternative Mr Hashim contends that an interest in the property (which I took to be asserted as a 50% interest) was held by Mr Hashim on trust for Ms Abbassi, so that she: 1. was a joint owner of the property and thereby at least a purchaser (if not a transferee) for the purposes of Division 1 of Part 8 of the Duties Act (which deals with the availability of the FHB duty exemption); and 2. had a "relevant interest" in land (being the Mays Hill property) for the purposes of s5 (2) of the FHOG Act and was therefore an "owner" or a "home owner" in respect of that property for the purposes of s 5 (1) of that Act; 3. and was therefore eligible for a FHOG Grant.
Each of those contentions was rejected by the Chief Commissioner, who submitted that Ms Abbassi was never registered as a proprietor of the Mays Hill property, had no interest as a purchaser recorded in the Contract for Sale or any other relevant document and that there was no reliable evidence that she had obtained an equitable interest or any ownership or title by reference to her alleged contributions referred to at [27] or indeed any reliable evidence that she had made those contributions as asserted. The Chief Commissioner drew my attention to certain declarations and acknowledgements, some of them under oath, made in the course of the applications for an FHO Grant, to the effect that Ms Abbassi had no interest in the property and was not an owner of it.
However, as noted at [14] above, late in the hearing Mr Hashim through his solicitor appeared to abandon this issue of Ms Abbassi's ownership. Mr Hashim's solicitor confirmed that he did not rely on his previous contention that Ms Abbassi, by her contributions to the deposit monies and by other non-monetary contributions, had obtained an equitable interest in the Mays Hill property. He conceded that Ms Abbassi did not have any "relevant interest in land" in respect the property as at the date of the Contract for Sale, as that term is defined in s5 (2) of the FHOG Act.
Nevertheless, lest there be any doubt about whether it was intended completely to abandon the issue, I consider it below, commencing at [69].

[12]

Documentary material and submissions considered

I considered all the documentary material which was provided as part of the Tribunal's file, including all pleadings and written submissions lodged by the respective parties up to the hearing date and three bundles of documents ("the section 58 documents")., each produced at a different stage, produced by the Commissioner and filed pursuant to section 58 of the ADR Act.
I also considered the documentary material, a copy of which was handed up and marked for identification at the hearing, which comprised: 1. a letter dated 25 November 2019 from Mr Hashim's solicitor to the Crown Solicitor (representing the Chief Commissioner) incorporating an extract from a "Housing Affordability Report" by Mr Glenn Stevens AC (Marked by me as MFI-A1); and 2. an information document issued by the Department of Home Affairs of the Australian Government (extracted on 29 January 2020 from: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-offshore/prov, which included a description of the purpose and the rights attaching to a subclass 309 Partner (Provisional) visa. For convenience of reference I will refer to that document as "the 309 Visa information bulletin"
At the conclusion of the hearing it was arranged for the solicitor for Mr Hashim to email to the Registry for my attention and to the Crown Solicitor a copy of a further policy document issued by the Government of New South Wales on which he relied for the purposes of the government policy issue. I subsequently received a link to a 24 page document entitled "Housing Affordability: report to the Premier" by Glenn Stevens AC published on 22 May 2017. I took this to be the full version of the "Housing Affordability Report" referred to at [32] (1). I shall refer to the document as "the Stevens Report". I considered that document.
At the hearing I heard and considered detailed oral submissions by the solicitor for Mr Hasim, Mr Parashar and by Ms Morgan, a Solicitor Advocate from the Crown Solicitor's Office appearing for the Chief Commissioner. I consulted, as necessary, a List of Authorities from the Crown Solicitor, which was handed up without objection.

[13]

Statutory elements of the FHOG Decision

Section 7 of the FHOG Act sets out the elements of entitlement to a first home owner grant. Such a grant is payable on an application under the Act if: 1. the applicant (or, subject to any contrary provisions, if there are two or more applicants, each applicant) complies with the "eligibility criteria" set out in sections 8 to 12; 2. the transaction for which the grant is sought is an eligible transaction which has been completed; and 3. the total value does of that transaction not exceed the eligibility cap for the type of grant available in respect such a transaction.
It is accepted by the Commissioner that the Contract for Sale of the Mays Hill property was an eligible transaction and that total value of the transaction did not exceed the eligibility cap.
Turning then to the "eligibility criteria" as set out in detail in sections 8 to 12, the relevant criterion was the requirement in section 9 (referred to in the Act as "Criterion 2") that the applicant for a grant must be an Australian citizen or permanent resident. That section provides as follows: "(1) Subject to subsection (2), an applicant for a first home owner grant must be an Australian citizen or a permanent resident on the commencement date of the eligible transaction. (2) if an application is made by joint applicants and at least one (but not all) of the applicants complies with the requirement to be an Australian citizen or permanent resident, the non-complying applicant or applicants are exempted from compliance with the requirement."
Mr Hashim claimed to be a permanent resident. The Chief Commissioner disputed that. It will be recalled that Mr Hashim was the sole applicant in the First FHOG Application and that he and Ms Abbassi were the joint applicants only under the Second FHOG Application.
Mr Hashim's position on this aspect, confirmed by his solicitor at the hearing was as follows: 1. Mr Hashim came to Australia on a Partner Visa in April 2015. That visa allowed him to stay in Australia indefinitely and to work, purchase property, have access to full Medicare benefits and receive the same entitlements as a permanent resident. 2. Mr Hashim applied to convert his partner visa to a permanent visa in March 2016. 3. The Department of Home Affairs website was understood by Mr Hashim to indicate that once a person has applied for such a conversion he or she will be considered for a permanent resident visa. 4. Having heard nothing to the contrary, Mr Hashim when making the First FHOG Application in November 2018 assumed that he was a permanent resident of Australia. 5. He has since that time regarded himself as a permanent resident. 6. Mr Parashar asserted that Mr Hashim understands that he enjoys the same benefits and privileges as a permanent resident and should therefore be treated as one. It is conceded that he has only ever held a subclass 309 Partner (provisional) visa, which I have referred to as "a Class 309 visa" and has at no stage held a permanent Partner visa (subclass 100), which I have referred to as " a Class 100 visa".
The term "permanent resident" is defined for the purposes of the FHOG Act, in section 3 (1) of that Act as meaning: "(a) the holder of a permanent visa within the meaning of section 30 of the Migration Act 1958 of Commonwealth, or (b) a New Zealand citizen who holds a special category visa within the meaning of section 32 of the Migration Act 1958 of the Commonwealth."
Section 30 of the Migration Act is in the following terms: "30 Kinds of visas (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. (2)A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a)during a specified period; or (b)until a specified event happens; or (c)while the holder has a specified status."
The 309 Visa information bulletin commences with a section headed "Overview", which is clearly designed to set out the basic characteristics of the visa. It commences with the heading "Stay", which is clearly an abbreviated reference the rights which the visa grants to stay in Australia. That section reads: "Temporarily, until we decide your permanent Partner (Migrant) visa (subclass 100) application or the application is withdrawn."
On page 3 of the bulletin there is a heading "With this visa you can" and the first bullet point under that reads: "..stay in Australia until we decide your permanent Partner (Migrant) visa (subclass 100) or the application is withdrawn…"
The next heading is "How long can you stay?" and the explanation under that commences: "Stay on the visa until we decide your permanent visa (subclass 100) application or you withdraw that application. For most applicants, this stay is from 15 to 24 months. In some circumstances, including where you have been in a long-term relationship before you apply, you might not stay on the 309 visa at all. We might grant you the permanent visa immediately after we grant the temporary 309 visa." (Emphasis added)
The only available proper and reasonable construction of the material I have cited in [42] to [44] is that: 1. there are two distinct classes of visa, namely the Class 309 visa and the Class 100 visa; 2. only the Class 100 visa is a "permanent visa" within the meaning in section 30 of the Migration Act, because only that type of visa allows a person to remain in Australia indefinitely; and 3. if a person holds a class 309 visa it is only upon conversion of that visa into a class 100 visa that the person becomes entitled to remain in Australia indefinitely and therefore to be holding a visa which is a "permanent visa " within the meaning of section 30. The 309 Visa does allow the holder to remain in Australia, but only while the holder has a specified status (the holding of that visa) or until a specified event happens; namely until the Minister or the Department decides the holder's permanent Partner (migrant) visa (subclass 100) application or the application is withdrawn
Mr Hashim held only a 309 Visa. He was not entitled to stay indefinitely in Australia.
Mr Hashim's solicitor asked me to take into account the fact that Mr Hashim at all relevant times believed that he held a visa which entitled him to stay in Australia indefinitely or "permanently" and that he was therefore a permanent resident and that because he believed he had all the benefits and privileges of permanent residency, he should be regarded as being a permanent resident.
But unfortunately, quite simply he was not a permanent resident. The visa which he held was not a permanent visa and certainly not "a permanent visa within the meaning of section 30 of the Migration Act".
He was not therefore a "permanent resident" as that term is defined in section 3 of the FHOG and for that reason not entitled to a first home owner grant because he did not meet eligibility criterion 2 set out in section 9 of that Act.

[19]

The government policy issue

Section 64 of the ADR Act sets out the circumstances in which the tribunal is required to give effect to Government policy. (Section 64 is set out in full in the Appendix to these reasons). It will be seen that the section opens with a general requirement for the Tribunal to give effect to any relevant Government policy in force at the time of the administratively reviewable decision, except to the extent that the policies contrary to law or produces an unjust decision.
Subsections (2) and (3) relate to the production of a Ministerial certificate which is taken to be evidence of the Government policy concerned and the Tribunal is required to take judicial notice of the contents of the certificate. No such certificate produced to me.
By operation of subsection (5), the term "government policy" when used in section 64 means a policy adopted by the Cabinet, the Premier or any other Minister that is to be applied in the exercise of discretionary powers by administrators.
The policy material produced on behalf Mr Hashim consisted of the 309 Visa Information Bulletin and the Stevens Report referred to at [32] above
I was not directed to any specific part of the documents produced in support of the asserted government policy. As I understood the written and oral submissions made on Mr Hashim's behalf, it was contended that the policy of the NSW Government as reflected particularly in the Stevens report was, to use Mr Parashar's words: ".. to help people like Mr Hashim own their own home."
I did not understand the contention to be developed with any greater particularity than that.
I reject the contention.
I do not agree that the proper application of section 64 of the ADR Act requires me: 1. to read into the policy documentation with which I have been provided a clear government policy in force to the effect that people in the position of Mr Hashim should be assisted to own their own home; or 2. to give effect to any such policy in circumstances where the applicant for benefits under the scheme (including the FHO Grant itself and the duty exemption) clearly fails to meet the statutory criteria for the grant of such assistance, as laid down by or with the authority of Parliament; and 3. it must be the case that a statement of government policy, especially one in such general terms as contended on Mr Hashim's behalf, cannot absolve an applicant for a government grant or concession from the strict imposition of the terms of a taxing statute by placing some sort of gloss on the statutory criteria governing the the grant or concession. An addition factor in this case was that the relevant "hurdle" to the grant was imposed by reference to a Commonwealth statute. The work of that Commonwealth statute, the Migration Act, is to give meaning to the phrase "permanent visa", being a component of the definition of "permanent resident" for the purposes of the FHOG Act.
On that basis I could not be satisfied that there is any "relevant government policy" in place, as required by s64(1) of the ADJR Act; nor any "relevant government policy" in place, as required by s64(1) of the ADJR Act and even if I am wrong as to that, the giving of effect to the broadly expressed government policy contended for by Mr Hashim cannot and does not undermine the validity of the Chief Commissioner's decisions and assessment which are the subject of the application.

[20]

The issue of Ms Abbassi's ownership

As noted previously, it appears that the applicant Mr Hashim abandoned any reliance on this issue, but for completeness and in case there is any lingering doubt as to whether such abandonment was intended, I deal with it briefly here.
The starting point must be that Mr Hashim through his solicitor did not demonstrate a course of dealings by Ms Abbassi and Mr Hashim whereby particular monetary contributions were paid by her to him (or to any joint account) and thereafter used expressly for the purpose of payment of the deposit or in some other way related to the obligation under the Contract for sale to pay the purchase price. In correspondence from Mr Hashim's solicitor to the Chief Commissioner it was claimed that "evidence was held" which established that Ms Abbassi disposed of multiple motor vehicles registered in her name and that the solicitor had: "… been informed by (Ms Abbassi) that all the proceeds generated were deposited into her husband's bank account in preparation for the purchase."
But, the documentary material to which I was referred does not establish that such monetary contributions were paid as part of the deposit or otherwise towards the purchase price.
Similarly, it was asserted by Mr Hashim's solicitor in correspondence dated 20 August 2019 that Ms Abbassi: "…is positively contributing by looking after their child so that Mr Hashim can work and earn money to pay the loan instalments."
Those non-monetary contributions are not quantified and the is no clear demonstration that they were intended by the parties to be the foundation of an equitable interest by Ms Abbassi in the Mays Hill property.
Significantly, both Mr Hashim and Ms Abbassi initially made declarations relating to the availability of the FHO Grant that clearly indicated that Mr Hashim was the sole purchaser of the property and denied the existence of any trust relationship in respect of the purchase. Additionally: 1. Mr Hashim expressly confirmed in his FHO Grant application that he was not a trustee and that he would obtain a 100% interest in the property; 2. those details were confirmed by way of Mr Hashim's statutory declaration made under the Oaths Act 1900 and dated 25 October 2018,. It seems unlikely that these important details were provided or mis-described unintentionally or without full understanding, because Mr Hashim seems to have had the benefit of legal advice or at least legal guidance in completing the declaration: it is witnessed by his solicitor; and 3. Ms Abbassi provided a statutory declaration as part of the First FHOG application, which included a declaration that she had: "…never owned residential property in Australia either solely or with someone else"
I note in particular that it was not until after the first FHOG application had been rejected by the Chief Commissioner that it was asserted by Mr Hashim and Ms Abbassi that she in fact had been a joint purchaser of the Mays Hill property and that she held and equitable interest in the property.
In those circumstances I must exercise substantial caution in accepting in any unqualified manner the statements by Mr Hashim or Ms Abbassi which assert that she made contributions to the purchase price for the Mays Hill property or which assert her ownership or equitable interest in that property. That is because such statements appear to be self-serving statements relevant directly to the issue of the validity of the Second FHOG Application and which therefore go directly to the resolution of the issue of Ms Abbassi's ownership and also to the duty exemption issue. In Warriewood Pty Ltd v FCT 93 ATC 4653, Lockhart J observed that: "Statements by taxpayers.. must be scrutinised with care, weighed against the objective facts and inferences to be drawn from the taxpayer's activities generally.
In that matter, Justice Lockhart also relied particularly on the observations and findings of the High Court in Pascoe v Commissioner of Taxation (1956) 30 ALJ 402 at 403, per Fullagar J, that statements of the kind described above must "be considered most closely and received with the greatest caution".
I conclude that Ms Abbassi did not make any "contribution" in such a way or of such magnitude to be regarded as having an equitable interest in the Mays Hill property.
There was nothing before me to indicate the existence of a resulting trust and nothing which persuaded me that to the extent that Ms Abbassi did in fact provide any part of the purchase money she intended to create a trust relationship. Both Mr Hashim and Ms Abbassi made declarations which denied the existence of a trust relationship in respect of the purchase.
But even if I am wrong in all the above conclusions and in fact Ms Abbassi did obtain an equitable interest in the Mays Hill property, that does not: 1. make her an owner of the land in fee simple 2. give her any "relevant interest" in the property for the purposes of s5 of the FHOG Act; or 3. make her an "owner" or a "transferee" for the purposes of Division 1 of the Duties Act (which relates to the "first home-new home" exemption and concession scheme)
The result is palpably clear. Ms Abbassi failed the eligibility criteria in the FHOG Act and was not within the class of persons who can benefit from the FHO duty exemption.

[28]

71 Restrictions on eligibility--previous ownership of residential property or first home concession 1. A purchaser or transferee under an agreement or transfer may apply under the scheme, but will be eligible only if the purchaser or transferee is a first home owner. 2. A "first home owner" is an individual: 1. who has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner, and 2. whose spouse (if any) has not at any time owned residential property in Australia (either solely or with someone else) and has not previously been a party to an application under the scheme that was approved by the Chief Commissioner. 1. For the purpose of this section, a person is the "spouse" of another person if: 1. they are legally married, or 2. they are living together as a couple in a de facto relationship. 1. If the Chief Commissioner is satisfied that, at the time of making an application under the scheme, a purchaser or transferee: 1. is legally married but not cohabiting with the person to whom the applicant is legally married, and 2. has no intention of resuming cohabitation, the person to whom the purchaser or transferee is legally married is not to be regarded as the applicant's spouse. 1. For the purpose of determining eligibility, the ownership at any time of residential property, or a previous application under the scheme, is to be disregarded if the residential property owned by the purchaser or transferee is or was vested in the purchaser or transferee on trust, or as an executor under a will, or the application was made by the purchaser or transferee in his or her capacity as trustee or executor. 2. The fact that a purchaser or transferee under an agreement or transfer is not a first home owner does not prevent the agreement or transfer from being eligible under the scheme if: 1. one or more of the purchasers or transferees under the agreement or transfer is a first home owner, and 2. the total ownership share in the property to which the application relates that is being acquired by purchasers or transferees who are not first home owners does not exceed 5%. Note : A purchaser or transferee is not considered to be a first home owner unless both the purchaser or transferee, and his or her spouse (if any), have not owned residential property before. See subsection (2). 1. For the purposes of this section, a person who is, or has at any time been, the holder of a leasehold interest granted by the Commonwealth in residential property in the Australian Capital Territory is taken to own or have owned that residential property.

Hashim v Chief Commissioner of State Revenue

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