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Rosehart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 699 (11 September 2009)

Last Updated: 14 September 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1380

GENERAL ADMINISTRATIVE DIVISION
)

Re
MITCH ROSEHART

Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal
Dr K S Levy, RFD, Senior Member

Date 11 September 2009

Place Brisbane

Decision
The Tribunal affirms the decision under review.

...............[Sgd]...............................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Portability – Meaning of “Australian resident” – Determined by the statutory test – Involves physical presence and intention to treat place as home – Applicant not an Australian resident for the period under review – Disability Support Pension not payable for that period – Decision affirmed.


Social Security Act 1991 (Cth), ss7(2), 7(3), 1220


Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630

Hazfa v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444

Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217

LK v Director-General, Department of Community Services (2009) 253 ALR 202

Re Downey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 287

Re Goodfellow and Department of Social Security (AAT 8296, 8 October 1992)

Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)

Re Yeomans and Secretary, Department of Family and Community Services [2002] AATA 346; (2002) 68 ALD 701


REASONS FOR DECISION


11 September 2009
Dr K S Levy RFD, Senior Member

INTRODUCTION

  1. The applicant in this matter is Mr Mitch Rosehart who has been on a long term disability support pension (“DSP”). After approximately 3½ years out of Australia, during which time he did not qualify for that pension, he re-entered Australia on 14 June 2008 and re-applied to be granted that pension. It was granted on 19 June 2008. On 4 September 2008, he again left Australia and stayed in the Philippines for three months until 3 December 2008, when he returned to Australia.
  2. This application is concerned with the cessation of DSP for the period 4 September 2008 to 3 December 2008 while Mr Rosehart was absent from Australia.

ISSUE

  1. The question for determination by the Tribunal is whether Mr Rosehart ceased to be an Australian resident within two years of resuming Australian residency on 14 June 2008, ie. whether he ceased to be an Australian resident when he left Australia for the period 4 September 2008 to 3 December 2008.

BACKGROUND

  1. Mr Rosehart is an Australian citizen who was 55 years of age at the time of this application. He was first granted DSP in 1991 and remained on that benefit except for a period when he ceased to be an Australian resident and was ineligible. He was ineligible from March 2005 until he returned to Australia on 14 June 2008 (he was in the Philippines during that time). His pension was reinstated with effect 19 June 2008. He then left Australia three months later, on 4 September 2008, and returned to Australia on 3 December 2008. He has subsequently been absent from Australia to visit the Philippines for a similar period, from 12 February 2009 to 12 May 2009.
  2. Mr Rosehart was self-represented. The respondent was represented by its advocate, Ms Jasmine Forsyth.

EVIDENCE

  1. Mr Rosehart explained that his current application was inextricably linked to a former application, which was rejected by the Tribunal, and relied on evidence relating to his absence from Australia for the period 9 December 2004 until 14 June 2008.
  2. While that evidence does not seem to be directly relevant to the present application, it is background information necessary to understand Mr Rosehart’s present circumstances.
  3. The essential facts are that Mr Rosehart, his then wife and his children departed Australia for the Philippines on 9 December 2004. He had a return ticket to return to Australia in early January 2005. His wife and children returned but he remained in the Philippines. He told the Tribunal that he originally stayed on to assist his then father-in-law, who was gravely ill and dying.
  4. There were other intervening factors which Mr Rosehart says prevented his return. He had been assaulted at a New Year’s Eve party in January 2005 and had his watch stolen (worth $800). A dog bit him, which he said caused other medical problems and which prevented travel. He referred also to having loaned $8,000 to his in-laws in the Philippines for the purpose of purchasing a business, which ultimately did not eventuate. He had loaned other money to his in-laws in the Philippines, as well having financed a sister-in-law to come to Australia to be educated some time previously. A further reason he remained in the Philippines was that he discovered that his wife had purchased a property there in her name only. Mr Rosehart said he needed to remain there to protect his rights.
  5. During 2005, Mr Rosehart stayed in the Philippines with his in-laws for most of the time. His father-in-law survived for about nine months. His mother-in-law and some of his wife’s siblings lived there also. Mr Rosehart says he and his wife separated after his wife returned to Australia. Centrelink records show that his former wife had provided information that they had separated when she returned to Australia in January 2005.
  6. In cross-examination, Mr Rosehart agreed that he now has another female companion in the Philippines. The respondent suggested the female companion was his fiancée. Mr Rosehart stated that he met her in about 2006. He also maintained that the main reason for his non-return to Australia was because he was required to be there to answer matters in litigation about the criminal matter in which he was involved (the assault on him in January 2005) and a civil action he had taken out against his former wife in relation to an alleged fraudulent property transaction. In addition, Mr Rosehart says that health problems and lack of money prevented his return.
  7. In providing evidence in examination-in-chief and in cross-examination, Mr Rosehart told the Tribunal that he had tried earnestly to return to Australia and even sought the assistance and funding from the Australian Embassy. Documents were provided to the Tribunal showing that the Consular Office of the Department of Foreign Affairs and Trade in the Philippines first became aware of Mr Rosehart in February 2007. It is apparent that Mr Rosehart’s sister in Victoria had endeavoured to send him money to assist him with basic cost of living but could no longer provide money to assist him to return to Australia. The Consular Office also declined to assist. Ultimately, Mr Rosehart’s sister mortgaged her home to bring him back to Australia in June 2008. He then stayed with her for a three month period. His DSP since then has been paid to him through his sister’s bank account.
  8. Mr Rosehart’s financial circumstances have substantially deteriorated over recent years. While he was on DSP prior to leaving Australia, he had a small catering business. Evidence shows that the last profit and loss account prepared for that business was for the financial year ending 30 June 2002. In addition, Centrelink was advised on 23 October 2003 that the business was no longer operating. In his statement dated 27 June 2008 (T documents, folio 68), Mr Rosehart confirmed that he had no assets, no house, no car and no money in his name. This was the result of him being in the Philippines for the period December 2004 to June 2008, during which time he divorced. Prior to leaving Australia, he and his wife had a house at Yatala over which he had a mortgage. His wife sought a property settlement in 2007, by which time his mortgage and credit card debts had grown. The bank closed his accounts and he has not since been able to open a bank account or have credit cards.
  9. Mr Rosehart gave evidence that the $8,000 he loaned to his in-laws was ultimately used by them to renovate a unit for his brother-in-law, who had had a stroke. While his in-laws received rent from units they owned, that income went to pay for his former father-in-law’s health costs. He said that ultimately his in-laws denied that he had lent them money, that they assaulted and then evicted him from their home. Mr Rosehart’s divorce in Australia and the sale of his home proceeded in his absence.
  10. Mr Rosehart says it was always his intention to return to Australia. He has provided a number of medical certificates from the Philippines and a statement from the Eagleby Medical Centre certifying to treating him since the mid-1990s.

SUBMISSIONS

  1. Mr Rosehart has provided very extensive written submissions about the case law and how it might apply to his circumstances. He suffers from a panic disorder but was able to provide considerable material in support of his case. Mr Rosehart submitted that, as a matter of statutory interpretation, s 1220 of the Social Security Act 1991 (“the Act”) was not intended to apply to his circumstances as he did not immigrate to Australia.
  2. The respondent’s submissions were that Mr Rosehart did not have sufficient connection with Australia to satisfy the statutory provisions pertaining to Australian residency for the period 4 September 2008 to 3 December 2008. Ms Forsyth submitted that Mr Rosehart was more closely tied to the Philippines: he had a fiancé there and an equitable interest in property there. She submitted he had no interest in Australia over that period. She also submitted there was no physical presence showing residency in Australia. She referred to the case of Re Downey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 287 which, she submitted, distinguishes the nature of Mr Rosehart’s absence from Australia from that of Mr Downey. In particular, she said Mr Rosehart had no close association in Australia because he was estranged from his wife, his house had been sold and his business was stopped in 2003. It was submitted he had a greater association with the Philippines during the relevant period.

CONSIDERATION

  1. I have considered all of the relevant law and the evidence submitted by the parties. In coming to a final determination, I have been mindful that Mr Rosehart has indicated he was very anxious about the hearing. I also note that he has made an extraordinary effort in preparing written submissions and other materials, which were tendered on the morning of the hearing. Mr Rosehart has, since the completion of the hearing, also submitted numerous other documents, which he said were not available to the Tribunal but were with his appeal to the Social Security Appeals Tribunal. On checking those documents, I am satisfied that the Tribunal did have access to copies of them and I have taken account of all that material.
  2. The question for the Tribunal is whether Mr Rosehart qualifies for portability of his DSP for the period of his absence from Australia from 4 September 2008 until 3 December 2008. This question must be answered by considering his submissions in the context of the statutory and common law authorities governing his circumstances.

THE LEGISLATION

  1. The statutory provision which governs the question submitted to the Tribunal is contained in s 1220(1) of the Act. This provides as follows:

No portability where claim based on short residence

             (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, or is transferred to:

                              (i)  an age pension; or

                             (ii)  a disability support pension; or

                            (iii)  a bereavement allowance; and

                     (e)  after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, 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.


  1. Critical to a determination of s 1220(1) of the Act is whether Mr Rosehart was “an Australian resident”. That term is amplified in s 7(2) and (3) of the Act as follows:

     (2)  An Australian resident is a person who:

                     (a)  resides in Australia; and

                     (b)  is one of the following:

                              (i)  an Australian citizen;

                             (ii)  the holder of a permanent visa;

                            (iii)  a special category visa holder who is a protected SCV holder.

(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.


  1. “Residence” is a notion different to that of “domicile”, of which the latter was formerly referred to in Social Security and Taxation legislation. A person could have been domiciled in one country even though that person may “reside” there very little: Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217 per Viscount Cave LC; Re Goodfellow and Department of Social Security (AAT 8296, 8 October 1992). “Domicile” is a common law concept where a person’s intention is a more decisive factor in determining place of abode: LK v Director-General, Department of Community Services (2009) 253 ALR 202 at 210-211 [24]. However, “an Australian resident” is to be determined by the statutory test set out in s 7(3) of the Act. The factors shown there are not intended to be exhaustive: Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992).
  2. One of the well entrenched measures of residence, as contemplated by these provisions, is that it involves “two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being ... a change of intention may be decisive of the question whether residence in a particular place has been maintained”: Hazfa v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 449-450 per Wilcox J. Whether a person changes his or her intention and whether that intention is formed is not always easily discernible.
  3. Mr Rosehart’s evidence was that he went to the Philippines for a holiday with his family for about one month. As it happened, his wife and children returned as planned but he stayed on there. Indeed, he stayed on there for three and a half years. He and his wife separated almost immediately on her return to Australia. Mr Rosehart advised Centrelink of his formal separation in February 2005. I note his evidence that he stayed on in the Philippines initially to assist his father-in-law, although it is apparent that his mother-in-law and his former wife’s siblings were clearly there in support at that time.
  4. I note also the Centrelink records, which reveal that Mr Rosehart indicated on 2 March 2005 that he did not intend to return to Australia. Those records show that Mr Rosehart also made an earlier enquiry, on 7 December 2004, when he enquired about portability of his DSP. I have considered the medical evidence he has submitted in some detail. I note the report by Dr Mieka Tabart, medical advisor for Health Services Australia, who on 18 April 2006 provided an analysis of the various medical reports and concluded that while Mr Rosehart had a number of serious conditions, he was unable to travel to Australia only on 2 March 2005 and on 12 and 13 March 2005. There is also some suggestion in Dr Tabart’s report that asthma attacks may have prevented travel until March 2005. However, I have also taken account of the fact that a report of 7 April 2005 also referred to asthma and the exacerbation of his anxiety and that travel was inadvisable at that time.
  5. Most of the other medical reports date from much later: when Mr Rosehart had gastro enteritis (11 April 2007); a statement from the Eagleby Medical Centre on 1 August 2007 referring to Mr Rosehart’s historical medical conditions from mid-1996 to late 2004; and reports where he presented to the hospital in the Philippines in October and December 2007 and in January/February of 2008. I also note of the evidence presented that the assault on Mr Rosehart occurred in January 2005, when he became involved in a fracas between a person and his brother-in-law. I also note that the first indication of the civil action commencing was in about August of 2006. While he returned to the Philippines from February to May 2009, the civil action had been abandoned in January 2009.
  6. I do not accept that Mr Rosehart remained in the Philippines principally for legal reasons in 2005 or the first half of 2006. I make the following findings of fact:
  7. I turn now to the application of the evidence to s 7(3) of the Act.

Section 7(3)(a): Nature of accommodation used by Mr Rosehart in Australia

  1. Prior to December 2004, Mr Rosehart had a home at Yatala in Queensland. He had a mortgage and other debts. While he remained in the Philippines and was subsequently divorced in mid-2007, he had no accommodation in Australia. There is no evidence that he took any significant interest in the property settlement for his divorce. After his return to Australia, he stayed with his sister in Melbourne for three months. Currently, although he has had addresses on the Gold Coast, his accommodation situation appears tenuous.

Section 7(3)(b): Nature and extent of family relations Mr Rosehart has in Australia

  1. Mr Rosehart has a sister in Melbourne and two brothers. He says he remains in contact with his siblings by telephone. He did maintain contact with his sister while he was in the Philippines and lived with her for three months on his return to Australia in 2008. He and his wife separated in January 2005 and were divorced in 2007. He has two children by his former marriage but there is no reference to contact with them since they returned to Australia in early 2005. He conceded he has had a female friend in the Philippines at least since 2006 and has returned there to visit her since he returned to Australia in June 2008.

Section 7(3)(c): Nature and extent of Mr Rosehart’s employment, business and financial ties

  1. Mr Rosehart has been on DSP since 1991. He had a small catering business in Australia as well but that ceased to operate in 2003. He told the Tribunal that his wife also operated the business. She advised Centrelink in February 2005 that she was not working.

Section 7(3)(d): The nature and extent of Mr Rosehart’s assets located in Australia

  1. It appears that since Mr Rosehart’s divorce and property settlement in mid-2007, he has had no assets, either property or cash, in Australia. That situation appears to remain extant.

Section 7(3)(e): The frequency and duration of travel outside Australia

  1. The evidence available shows Mr Rosehart left Australia in December 2004 to travel to the Philippines and returned to Australia in June 2008. Since that time, he has remained in Australia for approximately three months at a time and then travelled to the Philippines for approximately three months at a time on two occasions. He travelled to the Philippines from 4 September 2008 to 3 December 2008, and from 12 February 2009 to 12 May 2009.

Section 7(3)(f): Any other matter relevant to determining whether Mr Rosehart intends to remain permanently in Australia

  1. The Act refers to the notion of “an Australian resident” (at s 1220(1)) in determining whether a person is “residing in Australia” (see s 7(3)). But the latter subsection requires the Tribunal to take account of any matter relevant to determining whether a “person intends to remain permanently in Australia”. Intention is therefore a relevant consideration, but not necessarily a simple matter to determine in cases such as this one. Intentions may be ambiguous, particularly where a person intends to reside in a country only when certain conditions precedent exist. In some cases, it is not possible to determine a person’s intention to live permanently in Australia or in another country: LK v Director-General, Department of Community Services (2009) 253 ALR 202 at 212 [29]. There is nothing to indicate that Mr Rosehart does not now intend abiding by his stated intention of residing permanently in Australia. Merely because he leaves Australia temporarily because of a friendship in the Philippines does not nullify that intention. Such travel certainly is not evidence that he does not intend to remain in Australia permanently. Indeed, one might expect he would intend to remain in Australia permanently, even if he has occasional trips overseas. He is an Australian citizen.
  2. Mr Rosehart also submits, however, that the legislation was not intended to apply to him because he is an Australian citizen. That argument is not sustainable on an ordinary reading of the statutory test, which is concerned with whether someone is an Australian resident, not with whether someone is an Australian citizen. In any event, the provisions discussed above have applied previously to Australian citizens. The respondent referred me to Re Downey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 287, where the applicant in that case worked in Vietnam and did so as he had business interests there and working in Vietnam and Cambodia was the best way to endeavour to recover money owed to him. In that case, there was no evidence of any attachment to that country other than the work the applicant could find there. He did not acquire any property or other assets there and he maintained strong family relationships in Australia. He also maintained a “continuity of association” with Australia and with his family in Australia by participating in the Australian Chamber of Commerce in Vietnam. That justified him being classified as “an Australian Resident” although absent from Australian. Similarly, in Re Yeomans and Secretary, Department of Family and Community Services [2002] AATA 346; (2002) 68 ALD 701, the applicant was successful but only on the basis of a discretion of the then s 1220(3) of the Act, a provision which was repealed on 20 September 2000 and is of no assistance in the present case.

DOES MR ROSEHART SATISFY THE FACTORS IN S 7(3) OF THE ACT?

  1. It has previously been found that Mr Rosehart was not an Australian resident for the period March 2005 to June 2008. That is relevant to the decision under review in determining the application of s 1220 of the Act.
  2. The most significant facts which point to (or detract from), finding in favour of Mr Rosehart include:
  3. I find that, at the start of his family holiday in December 2004, Mr Rosehart clearly had an expectation that he would extend his stay in the Philippines. Whether or not it was a crystallised view at that time I do not make a firm finding, but I do find that he had such a view by March 2005. Mr Rosehart experienced other difficulties as time progressed (such as lack of funds to return to Australia) but these were a result of his own earlier choices. The earlier decision determining he was not an Australian resident for the period prior to September 2008 is plainly correct. That is a fundamental premise for the starting point of the period under review.
  4. Mr Rosehart has submitted very lengthy submissions and authorities. It is not necessary to deal with every aspect of the evidence or those submissions as much of it is subsumed in findings already made in the previous application and/or in the reasons provided above: see the Full Court of the Federal Court decision of Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630. After taking account of all of the evidence, I find that Mr Rosehart was not residing in Australia for the period under review. He is an Australian citizen but was not an Australian resident during the period 4 September 2008 to 3 December 2008 as he does not satisfy the elements of s 7(3) of the Act to any sufficient extent. It is difficult to accept that someone can be an Australian resident while concurrently resident in another country. That is particularly so if it is for an extended period, unless some of the factors of s 7(3) of the Act can be shown to exist in a substantial way. Such is not the case here. Section 1220 of the Act therefore applies to Mr Rosehart.
  5. The decision under review must therefore be affirmed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member.


Signed:..........................[Sgd]....................................................

Mátyás Kochárdy, Research Associate


Date of Hearing 29 July 2009

Date of Decision 11 September 2009

Applicant was self-represented

Solicitor for the Respondent Jasmine Forsyth, Departmental Advocate


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