Todd and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 5 (8 January 2010)

Last Updated: 18 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2030

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LILY TODD

Applicant

And

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

Respondent

DECISION

Tribunal

The Hon R J Groom (Deputy President)

Date 8 January 2010

Place Hobart

Decision

The decision under review is affirmed.

(Sgd Hon R J Groom]
Deputy President

CATCHWORDS

SOCIAL SECURITY - portability of age pension - applicant a former Australian resident who returned to Australia from Fiji - applicant returned to Fiji before expiration of 12 months - whether reasons for leaving arose out of circumstances not reasonably foreseen at date of arrival in Australia - decision affirmed

Social Security Act 1991, ss 1220(1), (3) and Clause 129 of Schedule 1A

Guide to Social Security Law, s 7.1.4

Re Elia Pasini and Director-General of Social Services [1982] AATA 28

Re Erasti Petropoulos and Director-General of Social Security [1984] AATA 334

Formosa v Secretary Department of Social Security [1988] FCA 291; (1988) 15 ALD 657 at 664-5

REASONS FOR DECISION

8 January 2010

The Hon R J Groom (Deputy President)

1. The issue in this application is whether the applicant, Mrs Todd, is entitled to the benefit of an Australian age pension whilst she continues to reside in Fiji.

BACKGROUND

2. Mrs Todd was born in Fiji on 8 August 1936. On 12 November 1955 she married Mr Harry Ware Todd, an Australian citizen.
3. Following their marriage Mr and Mrs Todd lived in Fiji as well as in various other countries. They resided together in Australia from January 1960 until May 1989, a period in excess of 29 years. They then returned to live in Fiji.
4. The political climate in Fiji began to deteriorate significantly and in May 1998 Mr and Mrs Todd decided that they should sell their house in Suva Fiji and return to live in Australia. The political and economic uncertainty affected house prices in Fiji and they had to reduce their price to sell the house. In December 1999 they sold the house to Mr Myron Yalo under a terms contract. $7,000.00 was to be paid each month until completion. Unfortunately Mr Yalo failed to pay his instalments in a timely manner. This failure caused Mr and Mrs Todd a great deal of trouble and concern.
5. During 2000 Mr and Mrs Todd received advice from a friend in Fiji that they may be entitled to an Australian age pension. Mrs Todd made enquiries of Centrelink and was informed that they could well be entitled to such a pension. On 31 August Mr and Mrs Todd travelled to Australia for the purpose of applying for a pension and also to see family members residing in Australia. It is conceded by the respondent that on 31 August 2000 Mrs Todd once again became an Australian resident.
6. On or about 6 September 2000 Mr and Mrs Todd attended the Centrelink office in Port Macquarie New South Wales and made an application in writing for an Australian age pension. The pension was granted and backdated to 25 August 2000.
7. The Todd's departed Australia for Fiji on 26 October 2000. They were next in Australia from 19 October 2001 until 2 November 2001. They then again returned to Fiji. Mr and Mrs Todd visited Australia on several occasions in 2002 and 2003.
8. Mr Todd fell seriously ill initially with a heart condition and then cancer. He died on 10 May 2004.
9. Mrs Todd continued to receive the age pension until it was cancelled on 27 February 2009. It was then determined by Centrelink that Mrs Todd has been overpaid since 26 October 2000. It was decided that a debt of $95,899.79 was repayable by her. $87,042.25 of that debt was waived.
10. An appeal by Mrs Todd to the Social Security Appeals Tribunal resulted in an affirmation of the decision to cancel the pension but also in a decision waiving the remainder of the debt.
11. The respondent has confirmed that repayment of the debt or any part of it is no longer in issue. The only issue for consideration by this Tribunal is the cancellation of Mrs Todd's pension.
12. It is noted that Mrs Todd has no entitlement to a Fijian age pension. Up until the time when her Australian pension was cancelled it was her only regular source of income.

THE LEGISLATION

13. At all relevant times the Social Security Act 1991 ("the Act") provided as follows:

"Section 1220
No portability where claim based on short residence
1220(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 12 months 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 12 months, the person leaves Australia; and
(g) there is no determination in respect of the person under subsection (3);
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
...
1220(3) The Secretary may determine that subsection (1) or (2) is not to apply to a person if the Secretary is satisfied that the person's reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to or arrived in Australia".

14. An amendment to the Act took effect from 20 September 2000. The amendment extended the period in section 1220 to two years and removed the discretionary power set out in subsection 1220(3). Clause 129 of Schedule 1A of the Act created a savings provision so that the earlier provisions of the Act applied to Mrs Todd even though she had left Australia after the 20 September 2000. Clause 129 provides as follows:

"Despite the amendments of section 1220 of this Act made by the Social Security and Veterans' Entitlements Legislation Amendment (Miscellaneous Matters) Act 2000, that section, as in force immediately before 20 September 2000, continues to apply to a pension or allowance granted before 20 September 2000 as if those amendments had not been made".

Mrs Todd had been granted her pension on or about 6 September 2000. It took effect on and from 25 August 2000.

15. It is conceded by the respondent that the applicant satisfies the essential qualifications for an Australian age pension as set out in section 43 of the Act. The only question for consideration is the portability of Mrs Todd's entitlement to a pension whilst she is resident in Fiji. If Mrs Todd returned and became a resident of Australia she would be entitled to claim and receive the age pension.

MEANING OF "REASONABLY FORESEEN"

16. It has been previously been held by this Tribunal that the test in section 1220(3) of the Act is subjective. (See Re Elia Pasini and Director-General of Social Services [1982] AATA 28 and Erasti Petropoulos and Director-General of Social Security [1984] AATA 334). However the inclusion by the legislature of the word "reasonably" has a purpose. That purpose is clearly to introduce an element of objectivity. The test is not limited to what the applicant actually foresaw but what she ought reasonably to have foreseen.

REASON FOR LEAVING AUSTRALIA

17. The Tribunal is satisfied on the evidence that when Mr and Mrs Todd left Fiji to travel to Australia on 31 August 2000 it was plainly intended to be a temporary visit principally to apply for the Australian age pension. When speaking of this visit Mrs Todd said in oral evidence as follows:

"We came to find out if we were eligible for the pension".

Mr and Mrs Todd also used the visit to Australia to catch up with family members who resided here and also to investigate where they might live when they eventually made a permanent move to Australia. As at the 31 August 2000 Mr and Mrs Todd had not packed their belongings and made all the necessary arrangements to permanently reside in Australia or indeed to reside here for any extended period.

18. The evidence indicates that the main reason for leaving Australia on the 26 October 2000 was to pack up their belongings at their flat in Fiji. In some of the evidence reference is also made to Mr Yalo and his failure to pay instalments for the house and the fact that he was then in Fiji and this provided an opportunity for Mr and Mrs Todd to "confront" him about his failure to comply with the terms of the contract.
19. It is interesting that in the applicant's Statement of Facts and Contentions at paragraph 3.6 it states:

"On 26 October 2000 Lily and Harry returned to Fiji to pack their belongings to live in Australia".

and at 4.6:

"On 26 October 2000, Harry and Lily returned to Fiji to pack for the move to Australia. They did not anticipate taking long".

In the timeline attached to the applicant's Statement of Facts and Contentions it says:

"26 October 2000 - Left Australia for Fiji to pack up ..."

In her proof of evidence which she confirmed as true and accurate when giving oral evidence, Mrs Todd said at paragraph 5:

"... when we left Fiji we still did not know that we would get the pension so naturally had to return to Fiji - 26 October, 2000 - to pack up. At this time also, Myron Yalo was defaulting on his payments re the house; July, August, September 2000 and we needed to sort that out as well. Our intention was to do just that and return to Australia asap".

20. Mr Michael Todd said in his proof of evidence, which he also affirmed as true and accurate, at paragraph 32:

"My parents went back to Fiji on the 26 October, 2000. They did not know that there were restrictions on them about leaving Australia. They were returning to Fiji to pack and to finalise things over there re house payments and to return to Australia to live".

21. In his proof of evidence Mr Patrick Todd said as follows at paragraph 12:

"By the end of the second week in October he was in default again, and we heard from a family friend that he was in Fiji. They thought that they would return to pack up and confront Mr Yalo at the same time".

22. In her closing submission Ms Rattray for the applicant emphasised that the reason for Mr and Mrs Todd's return to Fiji was the opportunity to confront Mr Yalo. Ms Rattray said:

"To confront Myron Yalo with the failure by him to make payments and to try and establish some form of satisfactory payment regime with him".

CONCLUSION

23. After considering all of the evidence before it the Tribunal is satisfied that the departure from Australia on 26 October 2000 was reasonably foreseeable. As acknowledged by Mrs Todd the trip to Australia was for a specific purpose, namely to apply for the Australian age pension. The visit was obviously to be of limited duration. It was plainly evident that Mr and Mrs Todd would have to return to Fiji. If they then wished to move to Australia permanently then all of their personal belongings would have to be packed up and transported to Australia and other necessary arrangements made. The need to leave Australia within a limited space of time was clearly reasonably foreseeable when Mr and Mrs Todd arrived in Australia on 31 August 2000.
24. The Tribunal is not satisfied that the sudden receipt of advice that Mr Yalo, who spent much of his time working in Papua New Guinea, was then present in Fiji and this provided an unforeseeable opportunity to "confront" him was the reason for the return. Indeed it is noted that Mr Yalo had made payments of $12,000.00 (Fijian) on 6 September 2000, that he had made a further monthly payment of $4,000 (Fijian) (then an agreed amount of each instalment) on 17 October, nine days before Mr and Mrs Todd departed for Fiji. The Tribunal is not satisfied on all of the evidence that the presence of Mr Yalo in Fiji was the reason for Mr and Mrs Todd's return trip to that country.
25. It is accepted by the Tribunal that Mr and Mrs Todd were not properly informed about the rules relating to portability. They did not receive complete and accurate information. This is most unfortunate. If they had been properly informed they may well have been able to make arrangements to stay in Australia for the then requisite 12 month period. Mr and Mrs Todd had lived in Australia for many years and had paid their taxes so they were otherwise entitled to an Australian age pension. This case highlights the importance of Part 7.1.4 of the Guide to the Social Security Law and in particular the following:

"Answering enquiries from former residents
If people overseas ask about getting a pension on return to Australia, great care should be taken to give them complete and accurate information about the residence provisions and their subsequent portability entitlements".

26. Failure to give proper advice n these circumstances does not enliven the rules relating to estoppel by conduct. The authority of the decision maker cannot be extended by the mechanism of estoppel beyond that given by the relevant legislation. (See Formosa v Secretary Department of Social Security [1988] FCA 291; (1988 15 ALD 657 at 664-5).
27. The Tribunal therefore finds that the reason for leaving Australia arose from circumstances that could reasonably be foreseen when Mrs Todd returned to Australia on 31 August 2000. It is therefore not open to the Tribunal to exercise the discretion in section 1220(3) of the Act.

DECISION

28. The Tribunal affirms the decision under review.
    

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing 26 November 2009

Date of Decision 8 January 2010

Solicitor for the Applicant Ms N Rattray, Ms A Moore, Hobart Community Legal Service

Solicitor for the Respondent Mr B Sparkes, Centrelink Legal Services