Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon

Federal Court of Australia|2006-06-21|Before: Branson J

INTRODUCTION 1 On 4 February 2005 Mrs Sunee Baccon lodged with Centrelink a claim for an age pension. Mrs Baccon was qualified for an age pension only if she had '10 years qualifying Australian residence' (s 43(1)(a) of the Social Security Act 1991 (Cth)). To have 10 years qualifying Australian residence it was necessary for Mrs Baccon to have been an Australian resident for a continuous period of not less than 10 years or for periods that aggregate more than 10 years with one of those periods being five years or more (s 7(5) of the Act). 2 Mrs Baccon first came to Australia in 1988. She remained here for approximately two years. Thereafter she spent 19 weeks in Australia with her longest stay being four weeks in 1997. 3 Centrelink rejected Mrs Baccon's claim for an age pension. Its decision was affirmed by an authorised review officer and by the Social Security Appeals Tribunal. However, the Administrative Appeals Tribunal, which by consent conducted its review of the decision of the Social Security Appeals Tribunal on the papers, decided that Mrs Baccon was entitled to an age pension on the basis that she had been an Australian resident for a continuous period of not less than 10 years. 4 The Secretary of the Department of Families and Community Services and Indigenous Affairs seeks an order of the Court setting aside the decision of the Administrative Appeals Tribunal and remitting the matter for determination according to law. The Secretary places reliance on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). 5 Mrs Baccon did not file an appearance as required by the Federal Court Rules. Her husband, Mr Baccon, wrote to the Court from an address in Thailand indicating that she would not attend the hearing. The Secretary was given leave to proceed in her absence (O 32 r 2(1)(d) of the Federal Court Rules). 6 For the reasons given below I propose to make the orders sought by the Secretary.

the nature of residence 7 Residence, like domicile, is a factor that connects a person with a place. It is not a term of art; the precise meaning of expressions such as 'resident', 'resides in' and 'is residing in' in legislation will depend upon the context provided by, and the purpose of, that legislation. 8 As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director‑General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70 at [36]). 9 Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person's residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450). 10 Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place (Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places.

residence for the purpose of the social security act 11 Pensions and other benefits under the Social Security Act are, of course, not available to everyone. A recipient of benefits paid for by Australian taxpayers is expected to have a connection with Australia. The necessary connection in the case of pensions and benefits payable under the Social Security Act, generally speaking, involves Australian residence. 12 A person who has reached pension age is qualified for an age pension if he or she satisfies any of the criteria specified in s 43(1) and (1A). As mentioned above, the criterion which the Tribunal found that Mrs Baccon satisfied was that she had '10 years qualifying Australian residence' (s 43(1)(a)). 13 Section 7(5) of the Act provides: 'A person has 10 years qualifying Australian residence if and only if: (a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or (b) the person has been an Australian resident during more than one period and: (i) at least one of those periods is 5 years or more; and (ii) the aggregate of those periods exceeds 10 years.' (emphasis in original) 14 Section 7(3) of the Act recognises that an element of judgment is involved in determining whether or not a person is residing in Australia. The subsection requires a decision‑maker who must make the determination to have regard to the following factors: '(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.' 15 As s 7(3)(f) reveals, for the purposes of the Act, it is, at the least, a relevant factor in determining whether a person is residing in Australia that he or she intends to remain permanently in Australia. 'Permanently' in this context does not mean forever, and it does not mean without ever leaving Australia whether for business or recreational purposes. It requires the person to have an enduring commitment to Australia as home (Taslim). 16 It seems to me that it may be arguable that, in the context of the Act, a person cannot be an Australian resident and the resident of another country at the same time. Alternatively, it may be arguable that, in the context of the Act, a person cannot have been an Australian resident for any continuous period if he or she has, during that period, been a resident of, and resident in, another country. However, the Secretary did not advance either of these arguments and I need not consider their merit. 17 The Secretary submitted that, if a person becomes a resident of a country other than Australia, this is an indication that his or her 'continuous period' of Australian residence may have ended or been interrupted. Subject to the observations in [16], I accept the validity of this submission.

is the decision of the TRIBUNAL affected by legal error? 18 Although the Secretary has formulated an extensive list of legal errors which he contends affect the decision of the Tribunal, at the heart of his case is the allegation that the Tribunal did not have regard to the factors identified in s 7(3) of the Act, either at all or in the way required by the Act, in determining whether Mrs Baccon had 10 years qualifying Australian residence. 19 The written reasons for decision of the Tribunal refer to each of the factors identified in s 7(3). Can it nonetheless be said, as the Secretary in effect contended, that the Tribunal did not have regard to those factors in deciding whether Mrs Baccon had 10 years qualifying Australian residence? To answer this question it is necessary to examine the reasons for decision of the Tribunal to see how it dealt with each of them.

Nature of Mrs Baccon's accommodation in Australia 20 The Tribunal noted that in the early years Mrs Baccon lived in Coonamble and for some period, perhaps until late 1994, Mrs Baccon owned a home in Coonamble. The Tribunal then referred to an assertion made by Mr Baccon in a letter that he and his wife had lived with Mr Baccon's brother at two different addresses and that although they do not own their own property they 'have the right to use free for life'. 21 The Tribunal's reasons for decision under this heading conclude: 'While I am conscious of the fact that almost all correspondence from Mr and Mrs Baccon in the last two years has originated from Thailand, there is no evidence on the papers to suggest that the homes in Australia did not, and do not, exist, and are not used from time to time.' 22 It was relevant for the Tribunal to determine whether Mrs Baccon had a home in Australia which she used from time to time. However, the Tribunal was required to do more than that. The Tribunal was required to have regard to the nature of the accommodation used by Mrs Baccon in Australia for the purpose of identifying what light, if any, the nature of that accommodation threw on whether she had 10 years qualifying Australian residence. 23 The nature of the exercise that the Tribunal was required to undertake may be illustrated by two hypothetical situations. If a decision-maker were to find, for example, that a person had, during a particular period, when in Australia, lived in a home which he or she owned and which was always available for his or her use, the decision-maker might well be satisfied that the nature of the accommodation used by the person in Australia was consistent with that person residing in Australia throughout that period. Alternatively, if a decision‑maker were to find that during a particular period the person, when in Australia, stayed in hotels or in a family member's guest bedroom, the decision‑maker might consider that the nature of the accommodation used by the person in Australia did not suggest that the person was at that time residing in, as opposed to merely visiting, Australia. 24 In every case it is for the decision-maker to work out what, if anything, the nature of the accommodation used by the person in Australia during a particular period reveals about whether the person was residing in Australia during that period. However, the decision‑maker must consider this question. In determining whether a person had 10 years qualifying Australian residence, the decision-maker must have regard to the nature of the accommodation used by the person in Australia over the whole of the period on which reliance is placed. The nature of that accommodation, which could have varied from time to time, might suggest that the person was residing in Australia for none or some or all of that period. 25 I conclude that the Tribunal failed to have regard to the nature of the accommodation used by Mrs Baccon in the sense required by s 7(3). I further conclude that the Tribunal determined that Mrs Baccon had been an Australian resident for a continuous period of not less than 10 years without considering the nature of the accommodation used by her in Australia throughout that period.

Nature and extent of Mrs Baccon's family relationships in Australia 26 The Tribunal noted that Mrs Baccon apparently has a daughter who now lives in Queensland but no other family members who live in Australia. It does not appear that there was any material before the Tribunal which disclosed how long Mrs Baccon's daughter has lived in Australia. The Tribunal made no finding that her daughter had lived in Australia throughout the period that it found that Mrs Baccon had been an Australian resident. 27 The Tribunal's reasons for decision do not suggest that it gave consideration to the relevance of the limited nature and extent of Mrs Baccon's family relationships in Australia for the purpose of identifying what light, if any, they threw on whether she had 10 years qualifying Australian residence. 28 Again the nature of the task that the Tribunal was required to undertake may be illustrated by hypothetical examples. If a decision-maker were to find, for example, that all of a person's immediate and extended family lived, and had lived for a continuous period of not less than 10 years, in Australia and that the person maintained a close and mutually supportive relationship with them throughout that period, the decision-maker might well think that the nature and extent of the person's family relationships in Australia suggest that the person was residing in Australia during the whole of that period. Alternatively, if a decision-maker were to find that a person, at a particular period of time, had no family members in Australia, but extensive and close family relationships in another country, the decision-maker might be less inclined to conclude that the person was residing in Australia during that period of time. 29 I conclude that the Tribunal failed to have regard to the nature and extent of Mrs Baccon's family relationships in Australia since 1988 for the purpose of determining whether she had 10 years qualifying Australian residence.

Nature and extent of Mrs Baccon's employment, business or financial ties with Australia 30 The Tribunal noted that there was no evidence that Mrs Baccon was employed in Australia or retained any business ties with Australia although it considered the absence of employment or business ties to be not unusual for a person of retirement age. The Tribunal also observed that details of Mrs Baccon's financial ties with Australia were sparse. 31 Again, the Tribunal's reasons for decision do not suggest that it gave consideration to the nature and extent of Mrs Baccon's employment, business and financial ties with Australia since 1988 for the purpose of determining whether she had 10 years qualifying Australian residence.

Nature and extent of Mrs Baccon's assets located in Australia 32 The Tribunal noted that Mrs Baccon presently has no assets - although it later referred to household contents having a market-value of $5000. I think that it may be inferred that these household contents are owned by Mrs Baccon jointly with her husband and that they are located in Thailand. 33 The Tribunal's reasons for decision do not disclose that it gave consideration to the nature and extent of Mrs Baccon's assets, if any, located in Australia since she first came to this country in 1988. I conclude that the Tribunal failed to have regard to the nature and extent of Mrs Baccon's assets located in Australia for the purpose of determining whether she had 10 years qualifying Australian residence.

Frequency and duration of Mrs Baccon's travel outside Australia 34 The Tribunal noted that since 1990 Mrs Baccon has lived outside Australia except for periods in the order of two to four weeks which occurred about every 18 months. However, the Tribunal's reasons for decision do not suggest that it gave consideration to the relevance of Mrs Baccon's living pattern to its determination of whether she had 10 years qualifying Australian residence. In particular, the Tribunal made no reference to the fact that since 1990 Mrs Baccon does not appear to have travelled outside of Australia in the sense of travelling from an Australian base; rather she seems to have travelled to Australia. The legislative requirement for a decision-maker to have regard to a person's travel outside Australia reflects an assumption that an Australian resident will ordinarily be based in Australia. 35 I conclude that the Tribunal failed to have regard to the frequency and duration of Mrs Baccon's travel outside of Australia for the purpose of determining whether she had 10 years qualifying Australian residence.

Any other matter relevant to determining whether Mrs Baccon intends to remain permanently in Australia 36 The Tribunal expressed the view that Mr Baccon's Australian age pension is a consideration in forming an opinion as to whether Mrs Baccon intends to reside permanently in Australia. It did not indicate how Mr Baccon's age pension threw light on whether Mrs Baccon intends to reside permanently in Australia. Having qualified for, and been granted, an age pension Mr Bacon is not required to reside in Australia for the pension to be payable (Chapter 4, Part 4.2, Division 2 of the Act). 37 I conclude that by attaching weight to the fact that Mr Baccon receives an age pension, the Tribunal took into account a factor that was irrelevant to determining whether Mrs Baccon had 10 years qualifying Australian residence.

conclusion 38 I conclude that the decision of the Tribunal is affected by legal error. In particular, I find that the Tribunal misconstrued s 7(3) of the Act and failed to have regard to the matters identified in s 7(3) for the purpose of deciding whether Mrs Baccon at the time of her application for an age pension had 10 years qualifying Australian residence. Additionally, I find that the Tribunal had regard to an irrelevant consideration in deciding that Mrs Baccon had 10 years qualifying Australian residence.

39 The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for determination according to law. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 21 June 2006 Counsel for the Applicant: Mr G T Johnson

Solicitor for the Applicant: Australian Government Solicitor

The Second Respondent filed a submitting appearance.

Date of Hearing: 29 May 2006

Date of Final Submissions: 2 June 2006

Date of Judgment: 21 June 2006

Social Security Act 1991(Cth)ss 7(3), 7(5)

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