Mentink v Secretary, Department of Social Services

Federal Court of Australia (Full Court)|2016-03-16|Before: Perry JJ

The appeal is dismissed.
The appellant is to pay the respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 INTRODUCTION [1] 2 RELEVANT LEGISLATIVE PROVISIONS [4] 2.1 The relationship between the Social Security Act and the Administration Act [4] 2.2 Grant and cancellation of a social security payment [8] 2.3 Qualifications for a social security payment [12] 2.4 Whether a social security payment is payable [18] 3 BACKGROUND [24] 3.1 Suspension of the age pension [24] 3.2 The AAT decision [28] 3.3 The decision of the primary judge [33] 3.4 The grounds of appeal [35] 4 CONSIDERATION [37] 4.1 Alleged failure to deal with issues of construction (grounds 1, 2 and 3) [37] 4.2 Proper construction of relevant provisions of the Administration Act and Social Security Act [38] 4.3 Whether it was open to the AAT to affirm the decision to suspend, as opposed to cancel, the payments (ground 4) [48] 4.4 Costs [52] 5 CONCLUSION [53]

INTRODUCTION 1 This appeal concerns the proper construction of the general eligibility criterion for a social security payment prescribed by s 29(1)(a) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) that a person be an Australian resident in the context of a claim for an age pension. The appellant, Mr Mentink, contends that the definition of Australian resident in ss 7(2) and (3) of the Social Security Act 1991 (Cth) (the Social Security Act), which requires an intention to remain permanently in Australia, is displaced by a contrary intention insofar as an age pension is concerned. That contrary intention is said to be evident from the unlimited portability of an age pension under ss 1214 and 1217 of the Social Security Act. In Mr Mentink's submission, his eligibility for the age pension could not therefore be affected by the question of whether or not he intended to remain permanently in Australia. 2 For the reasons set out below, the primary judge rightly rejected that construction and dismissed Mr Mentink's appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against the decision of the Administrative Appeals Tribunal (the AAT). 3 The parties were agreed that the relevant provisions in both the Administration Act and the Social Security Act are those which were in force as at 27 April 2012.

2.1 The relationship between the Social Security Act and the Administration Act 4 It is convenient first to place the construction issue in its legislative context including, as the construction issue spans the Administration Act and Social Security Act, the relationship between those two laws. 5 The Social Security Act was a consolidation of some eight earlier laws. While the intention was to make the Act more accessible to those without legal training, its complexity and prolixity attracted judicial criticism (e.g. Blunn v Cleaver (1993) 47 FCR 111 at 127-128). Subsequently, the Administration Act was enacted so as consolidate the administration provisions of the Social Security Act and reduce the size of that Act. As explained in the outline in the Explanatory Memorandum to the Social Security (Administration) Bill 1999, the Social Security (International Agreements) Bill 1999 and the Social Security (Administration and International Agreements) (Consequential Amendments) Bill 1999: The Social Security (Administration) Bill 1999 consolidates all the machinery and most of the administrative provisions relating to social security. In doing so, it effects a major reduction in the length and complexity of the social security laws. For example, under this Bill there will only be one section dealing with claims rather than one claim section for each payment type as well as other claims for other benefits such as concession cards. 6 Nonetheless, despite these laudable aims, the Social Security Act remains a highly complex piece of legislation, as Weinberg J observed in Secretary, Department of Family and Community Services v Geeves [2004] FCAFC 166; (2004) 136 FCR 134 at 144 [37]-[40]. 7 The Administration Act, together with the Social Security Act and any other Acts expressed to form part of the social security law, comprise the "social security law" (s 23(17), Social Security Act and ss 3(3) and 4, Administration Act) and are intended to operate in conjunction with each other. For example, as explained below, the Administration Act contains general criteria governing when a claim for a social security payment may be made while the Social Security Act prescribes criteria applicable to a particular social security payment. Consistently with this aim, s 3(2) of the Administration Act, which is important here for reasons later apparent, provides that an expression used in the Social Security Act has the same meaning when used in the Administration Act unless a contrary intention appears.

2.2 Grant and cancellation of a social security payment 8 Under s 11 of the Administration Act, a person who wants to be granted a social security payment must make a claim in accordance with Div 1 of Pt 3 of the Administration Act. An age pension is a social security payment (see the definitions of "social security payment" and "social security pension" in s 23, Social Security Act). 9 Section 37(1) of the Administration Act provides that, subject to an exception not relevant here, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that: (a) the claimant is qualified for the social security payment; and (b) the social security payment is payable. (emphasis added.) 10 Conversely under s 80(1) of the Administration Act: If the Secretary is satisfied that a social security payment is being, or has been, paid to a person: (a) who is not, or was not, qualified for the payment; or (b) to whom the payment is not, or was not, payable; the Secretary is to determine that the payment is to be cancelled or suspended. (emphasis added.) 11 It is apparent from the terms of these provisions that they do not admit of any discretion in the grant or cessation of payments once the relevant criteria are met.

2.3 Qualifications for a social security payment 12 The circumstances in which a claim can be made are limited by s 29 of the Administration Act. Specifically, s 29(1) provides that, subject to ss 30, 30A, 31, 31A and 32 of the Administration Act, a claim can be made only by a person who: (a) is an Australian resident; and (b) is in Australia. 13 Conversely under s 29(2) (and again subject to the same statutory exceptions) "a claim made at a time when the claimant is not an Australian resident … is taken not to have been made." (emphasis added). No issue arose as to the applicability of any of the express statutory exceptions to s 29. 14 The term "Australian resident" is defined in s 7(1) of the Social Security Act to "ha[ve] the meaning given by subsection (2)", unless the contrary intention appears. Subsection (2), in turn, provides that an Australian resident is a person who "resides in Australia" and is (relevantly) an Australian citizen. 15 Subsection 7(3) of the Social Security Act prescribes a number of considerations to which the decision-maker must have regard in deciding whether a person resides in Australia. That section provides: 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. 16 Subsection (f) suggests that the question of whether the person intends to remain permanently in Australia is, at the least, a relevant factor in determining whether she or he is residing in Australia: Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773; (2006) 43 AAR 144 (Baccon) at 147 [15] (Branson J). That being so, the other factors in s 7(3) make it clear that an assessment of residency for the purposes of the Act must take into account factors which are objectively ascertainable and demonstrative of the closeness of the person's connection with or ties to Australia. As such an analogy may be drawn with the common law concept of residence: see further below at [47]. 17 The circumstances in which a person qualifies specifically for an age pension are set out in s 43 of the Social Security Act, namely, that the person has reached pension age and, relevantly, has 10 years qualifying Australian residence. The latter criterion is met relevantly if, and only if, the person has, at any time, been an Australian resident for a continuous period of not less than 10 years (s 7(5), Social Security Act). As the primary judge found, there seemed to be no issue that Mr Mentink satisfied this criterion (reasons below at [18]).

2.4 Whether a social security payment is payable 18 A social security payment becomes payable to a person on a start day determined in accordance with ss 41 and 42 of the Administration Act. An age pension is not payable where the rate would be nil (s 44, Social Security Act). 19 The question of whether a social security payment is "payable" to a person when she or he is absent from Australia (described in the Social Security Act as the "portability of social security payments") is dealt with in Div 2 of Pt 4.2 of Ch 4 of the Social Security Act. Relevantly, s 1213 of Div 2 provides that: This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if: (a) immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or (b) during the period of absence, the person's claim for such a payment is granted under the Social Security (Administration) Act 1999. 20 As to subs (a), Column 2 of the table at the end of s 1217 includes an age pension and a person is taken to be receiving a payment from the earliest day on which the payment is payable to the person even if the first instalment is not paid until a later day (s 23(2), Social Security Act). It was not in issue that Div 2 of Pt 4.2 of Ch 4 of the Social Security Act applied to Mr Mentink at the time that the original decision to suspend his age pension was made on the assumption that he was eligible in the first place (reasons below at [25]). 21 Section 1214(1) of the Social Security Act provides that, where a person's "maximum portability period" for a social security payment of which they are in receipt is for an "unlimited period", the person's right to continue to be paid the payment is not affected merely by their absence from Australia. Relevantly, column 5 of the table at the end of s 1217 provides that the maximum portability period for the age pension is an "unlimited period". 22 However, it is significant that s 1214(2) provides that s 1214 is "subject to section 1220". Section 1220, which has the heading "No portability where claim based on short residence", in turn relevantly provides that: (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 ...: (i) an age pension; …. (e) after the pension or allowance is granted… 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. 23 It follows that, where the criteria in s 1220(1)(a) to (f) inclusive are met, s 1220(1) displaces s 1214(1). In other words, where s 1220 applies, no social security payment is payable to the person for the period of her or his absence from Australia. In this regard, we agree with the AAT's explanation at [33] of its reasons that "[s]ection 1220 of the [Social Security] Act is intentionally designed to prevent a person from becoming an Australian resident following a period of non-residency and then quickly qualifying for age pension and then leaving Australia to live overseas with a social security benefit."

3.1 Suspension of the age pension 24 Mr Mentink applied for a social security payment in the form of an age pension under Div 1 of Pt 3 of the Administration Act and s 23 of the Social Security Act on 5 March 2012, the day before his 65th birthday. The application was approved by the Department of Human Services (as it then was) (the Department) on 23 March 2012, and took effect from 6 March 2012. 25 Following the grant of the age pension, Mr Mentink was absent from Australia from 27 April 2012 to 6 August 2012. As a result, on 27 April 2012, the Department suspended Mr Mentink's age pension (the original decision). Thus in a communication to Mr Mentink of that date, the Department advised that: Your Age Pension has been stopped because you left Australia within two years of your most recent return. Please contact us if you return to Australia. Centrelink has based this decision on information provided by you and/or Australia's immigration department. 26 It is not in issue that in so finding, the Department found that s 1220 of the Social Security Act applied (reasons below at [10] and [36]). As the primary judge explained at [37]: … the decision-maker considered that Mr Mentink was a person who was once an Australian resident; then ceased to be an Australian resident; and then again became an Australian resident. The decision-maker took the view that within a period of two years after Mr Mentink had again become an Australian resident, he was granted an age pension and, after having been granted that pension but before the end of a period of two years, Mr Mentink "left Australia" (and the factor at s 1220(1)(f) was satisfied). In reliance upon those considerations, a decision was made to "stop" social security payments referable to the age pension. 27 The Department's original decision was affirmed by an Authorised Review Officer on 27 June 2012 and by the Social Security Appeals Tribunal (the SSAT) on 20 August 2012.

3.2 The AAT decision 28 Mr Mentink sought review of the SSAT decision in the AAT on 7 September 2012. On 28 March 2013 the AAT affirmed the decision of the SSAT to suspend the age pension. 29 In its reasons at [2], the AAT identified two issues for determination, namely: (1) There is a preliminary issue of whether the applicant was an "Australian resident" at 5 March 2012, the date of the application for age pension; and (2) Was he an "Australian resident" at any time during the time of absence from Australia from 27 April 2012 to 6 August 2012? 30 The AAT made the following findings of fact at [20]: (1) Mr Mentink claimed aged pension on the day before he turned 65 years of age; (2) The application was approved with affect from 6 March 2012; (3) He returned to Indonesia for the period 27 April 2012 to 6 August 2012; (4) He had travelled outside of Australia for approximately six years of the previous nine years of his life; (5) He has been under close scrutiny both in Australia and in Asian countries since he was convicted of a number of serious offences; and (6) It is unlikely that Mr Mentink's wife and stepson would wish to immigrate to Australia. (errors in original.) 31 At [15]-[17] of its reasons, the AAT pointed to the requirements that: (1) to lodge a valid claim for a social security payment the applicant must be an "Australian resident" (s 29(1)(a), Administration Act); (2) where the Secretary has knowledge that the applicant is not or is no longer qualified for the social security payment, the Secretary must cancel or suspend the payment; and (3) payments for periods when a person is outside Australia must cease where the criteria in s 1220 of the Social Security Act are met. 32 The AAT ultimately affirmed the decision to suspend the age pension under s 80 of the Administration Act on the ground that, having regard to each of the factors in s 7(3) of the Social Security Act, Mr Mentink was not an Australian resident at the date of his application or claim for an age pension on 5 March 2012 and, as a result, was not an Australian resident at any time during his absence from Australia from 27 April 2012 and 6 August 2012. Thus, the AAT concluded at [38] that "[a]s Mr Mentink does not satisfy the legislative requirements, he was not eligible for age pension for the periods under review" (emphasis added).

3.3 The decision of the primary judge 33 In his Amended Notice of Appeal from the AAT, Mr Mentink identified four grounds of review, namely: (1) The Tribunal erred in law by failing to recognise in respect of s29 of the Social Security Administration Act (1999) the Parliament's intention that s29 enunciate a general rule exceptions to which are not exhaustively defined by ss30, 30A, 31, 31A and 32. (2) The Tribunal erred in law by failing to recognise the generality of s7 of the Social Security Act (1991) and not giving effect in s7(1) to the words "unless the contrary intention appears", such contrary intention being expressed by the Parliament in enacting s1217 of the Social Security Act. (3) The Tribunal erred in law by failing to find that s7 of the Social Security Act cannot be invoked to defeat the parliament's intention in s1217 and that this is particularly so considering the widely accepted principle that the said Act is beneficial legislation. (4) The Tribunal denied the Appellant procedural fairness by failing in its reasons for decision to identify the above issues of law as arising from the Appellant's written and oral submissions. (errors in original.) 34 The primary judge rejected each of these grounds and dismissed the appeal. As to the first ground, the primary judge held that s 29 of the Administration Act is subject in terms only to the operation of ss 30, 30A, 31, 31A and 32 of that Act. With respect to ground 2, his Honour held that there was nothing in the legislation which "suggests any contrary intention concerning the application of the defined terms set out in s7" (reasons below at [89]). Ground 3 was held to add nothing of substance to ground 2. In this regard, in effect his Honour held that Mr Mentink's reliance upon s 1217 of the Social Security Act failed to appreciate that that provision was definitional only and " does not operate as a conferral provision in its own right" (at [93]). Nor did the primary judge consider that there was any merit in the fourth ground as to an alleged breach of procedural fairness. Finally, the primary judge held that the AAT was entitled to affirm the decision under review standing in the shoes of, and exercising all of the powers conferred on, the decision-maker under s 43 of the AAT Act and therefore to affirm the suspension decision under s 80 of the Administration Act as opposed to s 1220(1) of the Social Security Act (reasons below at [108]-[109]).

3.4 The grounds of appeal 35 The notice of appeal raises a number of grounds of appeal which can be summarised as follows. (1) The primary judge denied Mr Mentink procedural fairness: (a) by failing to address the following question: "Given the indefinite portability overseas of the age pension afforded by s1217 [of the Social Security Act], can s7 and s29 [of the Administration Act] operate to deny the age pension for the reason that the claimant of the age pension does not intend to remain or reside permanently in Australia and in fact intends to avail himself of portability?"(ground 1); (b) by failing to address the construction of s7(3)(f) of the Social Security Act (ground 2); (c) by appearing to advert to, but in fact ignoring, the same question which the appellant had raised in written submissions and stressed in oral submissions before the AAT and his Honour (ground 3). (2) It was irrational to affirm the AAT's decision to suspend the payment as "[b]y affirming the suspension of payment the Tribunal and [the primary judge] affirmed the ongoing existence and validity of the claim made on 5 March 2012" (ground 4). 36 In addition to seeking orders setting aside the judgment below and the AAT's decision and remitting the matter to the AAT to be determined according to law, the appellant seeks: 1. A declaration or ruling of law with the effect that the age pension claimant who has qualified residentially under s43 of the Social Security Act 1991 need not demonstrate in accordance with s7 of the said Act evidence of any intent to remain or reside permanently in Australia for the reason that ss1214 and 1217 arouse the contrary intent in s7(1). 2. A declaration or ruling of law with the effect that given the rousing of the contrary intent in s7(1) the particular provisions of s7(3) as imparted to s29(1)(a) have no significance beyond requiring an age pension claimant to be in Australia with a right to permanent residence on the day of claim. (errors in original.)

4.1 Alleged failure to deal with issues of construction (grounds 1, 2 and 3) 37 It is apparent from the reasons of the primary judge that his Honour did in fact deal with the issues of construction raised by Mr Mentink. There was no breach of procedural fairness, as alleged by grounds 1, 2 and 3 and, in any event, the issues of construction are considered by this Court in these reasons thereby remedying any such breach. As such, the real issue is the substantive one of statutory construction.

4.2 Proper construction of relevant provisions of the Administration Act and Social Security Act 38 Mr Mentink's submissions on the construction issues can be summarised as follows. (1) The factors in s 7(3) of the Social Security Act, being directed towards ascertaining whether a person intended to remain permanently in Australia for the purposes of the definition of "Australian resident", should be read as subject to a contrary intention in common with s 7(1). (2) A contrary intention that the "definition" in s 7(3) of the Social Security Act does not apply to an age pension for the purposes of s 29(1) of the Administration Act is evident from the fact that the maximum portability period for an age pension is unlimited by virtue of s 1217 of the Social Security Act. In other words, the fact that the entitlement of a person in receipt of an age pension to continue to be paid the pension is not affected by that person's absence from Australia irrespective of the length of the absence (s 1214, Social Security Act) evinces an intention that a person's eligibility to receive the age pension in the first place should not be affected by whether that person intends permanently to reside in Australia. (3) In those circumstances the term "Australian resident" in s 29(1) of the Administration Act should bear its ordinary (non-legal) meaning and is therefore satisfied by the mere temporal presence in Australia of the person. 39 It would appear that Mr Mentink submits in the alternative that the statutory exceptions to the requirement of residency in s 29(1) are not exhaustive. The argument would seem to be that a further exception should be inferred from (again) the unlimited portability of an age pension once it has been granted. 40 In our view, neither construction is correct. 41 Starting with the alternative construction argument, we agree with the primary judge that s 29 of the Administration Act is subject only to the operation of ss 30, 30A, 31, 31A and 32 of that Act. Section 29(1) provides that subject to those provisions, a claim "may only be made" by a person who is an Australian resident and is in Australia (emphasis added). The use of the word "only" makes it clear that there are no other persons who can make a claim. The need to establish both connecting factors in subs (1) is reinforced by s 29(2) which provides that a claim made where either factor is not present "is taken not to have been made" (see also reasons below at [83]). Furthermore, s 11 of the Administration Act provides that a person who wants to be granted a social security payment "must make a claim" in accordance with Div 1 of Pt 3 in which s 29 appears, effectively closing the door to any argument that a claim may be made in other circumstances (emphasis added). 42 Nor do we consider that there is anything in the legislation which suggests that the factors set out in s 7(3) of the Social Security Act for determining whether a person is residing in Australia have been displaced by a contrary intention. 43 First, s 7(3) of the Social Security Act sets out various factors to which regard must be had not merely for the purposes of s 7(2) but for the purposes of the Act. However, in the context of s 7(2), we consider that s 7(3) has a dual function. It gives content to the definition of "Australian resident" in s 7(1) and (2) (Baccon at 147 [14]) and at least to this extent may be described as definitional in character. However, s 7(3) also has a substantive operation in that it prescribes those factors which a decision-maker "must" take into account in determining whether or not a person "is residing in Australia" and is relevantly therefore an "Australian resident" for the purposes of the Act. As is apparent from the use of the word "must", the failure to have regard to those factors in determining whether a person is an Australian resident is an error of law which vitiates the decision: Baccon at 150 [38] (Branson J). As such, in our view neither the text nor the purpose of s 7(3) suggest an intention that a decision-maker can disregard the factors in s 7(3) in determining whether a person is residing in Australia for the purposes of the definition of an Australian resident in s 7(2). We are reinforced in this view by the fact that, unlike s 7(2) (which links with s 7(1)), s 7(3) is not expressed to be subject to a contrary intention. 44 Secondly, by virtue of s 3(2) of the Administration Act, the expression "Australian resident" as defined in ss 7(1) and (2) of the Social Security Act has the same meaning in the Administration Act, including in s 29(1)(a). Nor was the contrary suggested. Equally and notwithstanding its substantive operation, we consider that Parliament intended that s 3(2) of the Administration Act would pick up s 7(3) of the Social Security Act so as to give content to the expression "Australian resident" also in the context of s 29(1)(a) of the Administration Act. In this regard, we have already pointed to the fact that s 7(3) has a definitional aspect. In line with this construction, s 7(3) also appears in Pt 1.2 of Ch 1 of the Social Security Act which is headed "definitions" - a heading which forms part of the Act pursuant to s 13(2)(d) of the Acts Interpretation Act 1901 (Cth). Moreover, while not part of the Social Security Act, the heading to s 7, namely "Australian residence definitions", lends further weight to this construction (s 15AB(2)(a), Acts Interpretation Act). Furthermore, given the legislative history of the Social Security Act and the Administration Act (see above at [5]), it is highly unlikely that the Parliament intended that the concept of "Australian resident" in s 29(1)(a) would be assessed differently merely because that section appears in the Administration Act rather than the Social Security Act. It is not surprising, therefore, that the authorities have considered that s 29(1)(a) of the Administration Act is given a "defined" meaning by s 7(3) of the Social Security Act: e.g. Curtis-Smith v Secretary, Department of Social Services [2015] FCA 1115 (Curtis-Smith) at [17] and [24] (Buchanan J). 45 Thirdly, and that being so, there is no foothold in the language of the Administration Act for interpreting the requirement in s 29(1)(a) insofar as it applies to an age pension differently from other pensions. In its terms, s 29(1) sets down a general rule applicable to all pensions subject to specified exceptions, as is reinforced by s 11 of Div 1 of Pt 3 of the Administration Act. In this regard, the language used by the Parliament is the surest guide to legislative intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). 46 In the fourth place, contrary to Mr Mentink's submission, it cannot be said that a construction requiring that a person reside in Australia when she or he makes a claim for the age pension but that, once granted, the pension has unlimited portability, gives rise to arbitrary or irrational consequences which the Parliament cannot have intended. It is perfectly consistent, in our view, with the beneficial nature of the Administration Act for the Parliament to prescribe more stringent conditions for a person to qualify for a social security payment, than it prescribes for a person to retain her or his entitlement. Such a scheme represents a balance struck by the Parliament between different considerations such as protection of the elderly reliant upon the age pension from disentitlement through absence, as opposed to limiting those entitled to a taxpayer funded pension in the first place to citizens with a demonstrated and enduring connection to Australia. 47 Further and in any event, we do not accept Mr Mentink's submission that if "resident" is given its ordinary meaning, mere temporal presence in Australia would suffice to establish residency. For example, "resident" is defined in the Macquarie Dictionary as relevantly "someone who resides in a place", while "reside" is defined to mean "to dwell permanently or for a considerable time; have one's abode for a time", and "reside in" as "to abide, lie, be present habitually in" (Macquarie Dictionary online edition, https://www.macquariedictionary.com.au viewed 24 February 2016): see also Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 519-520 (Gummow J). Similarly, at common law residence means "physical presence in a particular place and the intention to treat that place as home" or, where the person is physically absent, "a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains 'home'": Hafza v Director-General of Social Security (1985) 60 ALR 674 at 680 (Wilcox J); see also Baccon at 146 [8]-[9]. Thus, while the precise meaning of expressions such as "resident" and "reside in" will be affected by the legislative context in which they appear, the consistent theme is that of a real and enduring connection between a person and a place. Transient physical presence, on the other hand, is effectively a denial of any such connection.

4.3 Whether it was open to the AAT to affirm the decision to suspend, as opposed to cancel, the payments (ground 4) 48 Finally, Mr Mentink submits that the finding by the AAT that he was not eligible for the age pension was inconsistent with the AAT's decision to suspend, rather than cancel, the payment on the ground that suspension assumed the validity of the payment. To the extent, if any, that the submission invites an inference to be drawn that a valid claim was made from the decision to suspend rather than cancel the payment, the submission would ignore the AAT's reasons for decision. From a practical perspective, therefore, the point of the submission is not clear. Irrespective of whether or not the payment was suspended or cancelled, Mr Mentink will not receive the payment. 49 As to the point of construction, s 80 is expressed in terms which might suggest that, irrespective of whether the decision-maker decides that the person was not qualified for the payment or that the payment was not payable, she or he has the option of either cancelling or suspending a payment. However, we consider that, sensibly read, the intention was that a payment would be cancelled where the person was not qualified for the payment, and suspended where the person was qualified but the payment was nonetheless not payable in the circumstances. That understanding of s 80 accords with the different substantive effect of cancellation as opposed to suspension. As Davies J held in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 346: A decision suspending a pension has an ongoing effect and the suspension may be terminated at any appropriate time. It may well be within the ambit of the Tribunal's decision to terminate a suspension if the facts before the Tribunal showed that the pension or benefit ought to have been suspended only up to a particular date. A decision cancelling a pension does not have ongoing effect in that way. A decision cancelling a pension or benefit brings to an end the entitlement to a pension or benefit. Entitlement to the pension or benefit only revives on the lodgement of a proper claim for the grant of the pension or benefit. 50 Given that the AAT found that Mr Mentink was not an Australian resident, it followed under s 29 of the Administration Act that he was not entitled to make a claim for the age pension and his claim was to be treated as if it had not been made. While s 29 does not in terms describe the requirement to be an Australian resident as a qualification, nonetheless the section limits the persons who may make a claim and as a matter of substance if a person cannot meet the prescribed requirements, that person cannot qualify for a social security payment. To this extent, with respect, we take a different view from the primary judge at [108] who found that the AAT was entitled to affirm the suspension of Mr Mentink's age pension because it was satisfied that the payment was not payable. In those circumstances and on the construction of s 80 which we favour, the AAT should have cancelled the payment. In this regard, the AAT was entitled under s 43(1) of the AAT Act to affirm, vary, or set aside and substitute its own decision for, the decision under review. 51 However, neither party before the AAT, the Court below or on the appeal argued that the AAT's decision to suspend the age pension should have been substituted by a decision to cancel it. Furthermore, as the respondent submitted, a suspension carries no greater prejudice to Mr Mentink than a cancellation. In those circumstances, it would not be appropriate to grant relief consequential on the erroneous decision by the AAT to affirm the decision to suspend (rather than to cancel) the payment.

4.4 Costs 52 The parties addressed the issue of costs orally. Mr Black, who appeared for the respondent, submitted that costs should follow the event. Mr Mentink submitted that if he was unsuccessful there should be no order as to costs because his appeal raised a significant issue of law and was in the public interest. Although it may be accepted that resolution of the issues of statutory construction in this appeal are likely to have a wider significance than just for Mr Mentink, we consider that the proceedings were primarily brought by him with his personal financial interests in mind. There is no sufficient reason to depart from the ordinary principle that costs should follow the event.

CONCLUSION 53 For the reasons set out above, the appeal should be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier, Griffiths and Perry.

Social Security (Administration) Act 1999(Cth)ss 3, 4, 29(1)(a), 37(1), 80(1)

Social Security Act 1991(Cth)ss 7, 23, 1213, 1214, 1217, 1220

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