FEDERAL COURT OF AUSTRALIA

Mentink v Secretary, Department of Social Services [2015] FCA 473

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The parties are directed to file and serve written submissions in relation to the question of costs, within three weeks.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This proceeding concerns an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) arising out of a decision of the Administrative Appeals Tribunal (the “Tribunal”) by which the Tribunal, constituted by Senior Member Dr K S Levy RFD, decided that “[a]s Mr Mentink [the appellant] does not satisfy the legislative requirements, he was not eligible for [an] age pension for the periods under review” and thus the “decision under review is therefore affirmed”. As to the proper description of the respondent, an order was made on 22 May 2014 that the name of the respondent be amended from Secretary, Department of Families, Housing, Community Services and Indigenous Affairs to “Secretary, Department of Social Services”.

2    Mr Black, counsel for the respondent, observes in his written submissions, correctly in my view, that the decision of the Tribunal is “expressed in a somewhat unorthodox manner” having regard to the decision the subject of review before the Tribunal. Counsel for the respondent also says that notwithstanding that matter, it is clear that the Tribunal understood that it was affirming the original decision of the respondent made under s 80 of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) to suspend payment of age pension payments to Mr Mentink for the period the subject of the decision under review.

3    The Tribunal observes (and finds) that Mr Mentink applied for an age pension on 5 March 2012, the day before his 65th birthday. The application was approved (on 23 March 2012) with effect from 6 March 2012: paras 1 and 20 of the decision. The Tribunal observes that Mr Mentink returned to Australia on 2 March 2012 and that prior to his return on that date, he had spent a great deal of time out of Australia. The Tribunal observes that during a period of eight years and eight months immediately prior to 2 March 2012, Mr Mentink had been absent from (that is, physically outside of) Australia for the following periods, as described at para 4 of the Tribunal’s reasons:

•    4 June 2003 – 27 December 2003 (6½ months)

•    27 March 2005 – 17 April 2005 (3 weeks)

•    Unknown – 30 December 2006 (? 1 week to 18 months?)

•    16 March 2007 to 17 March 2007 (2 days)

•    19 March 2007 to 7 August 2008 (1 year, 4 months)

•    9 November 2008 to 2 March 2012 (3 years, 5 months)

4    The Tribunal observes that on 27 April 2012, Mr Mentink left Australia (to return to Indonesia) and returned to Australia on 6 August 2012 approximately three and a half months later. At para 4, the Tribunal also notes that Mr Mentink left Australia on 16 September 2012 and returned on 14 December 2012 constituting an absence of approximately three months.

5    The Tribunal notes that on 27 April 2012 “the department” (then called the Department of Human Services) suspended Mr Mentink’s age pension from 27 April 2012 to the end of the period of Mr Mentink’s immediate absence from Australia (which was 6 August 2012): para 1.

6    Mr Mentink sought review of the suspension decision before a Departmental officer. He then sought review before an “Authorised Review Officer” who reviewed and approved the decision on 27 June 2012. He then sought review before the Social Security Appeals Tribunal (the “SSAT”) which reviewed and affirmed the decision on 20 August 2012.

7    On 7 September 2012, Mr Mentink sought review of the SSAT decision before the Tribunal.

8    Section 179(1) of the Administration Act provides that an application may be made to the Tribunal to review the SSAT decision. The SSAT decision is taken to be, where it has affirmed a decision (of an Authorised Review Officer) “that decision as affirmed” [emphasis added]: s 179(2)(a). Similarly, when an Authorised Review Officer affirms an earlier decision (in this case the suspension decision), the Authorised Review Officer’s decision is taken to be the suspension decision as affirmed: s 142(4)(a) of the Administration Act.

9    Although each respective decision so affirming the preceding decision is a decision of the particular decision-maker or decision-making body, the content of the decision is that reflected in the decision, as affirmed.

10    In substance then, the materials show that the content of the decision as affirmed, under review before the Tribunal, was a decision of the respondent to suspend payment to Mr Mentink of a social security pension in the form of an age pension on the footing that Mr Mentink had “left Australia” on 27 April 2012. Mr Mentink was out of Australia until 6 August 2012. The affirmed original decision was expressed in these terms in a communication to Mr Mentink:

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.

11    The background to the way in which the question of the suspension of Mr Mentink’s pension arose is this.

12    Mr Mentink arrived in Australia on 2 March 2012. It will be necessary to examine the Tribunal’s observations and findings concerning Mr Mentink’s overseas movements later in these reasons. On 5 March 2012, Mr Mentink made a claim for a social security payment under Div 1 of Pt 3 of the Administration Act: see 11(1), s 16(1) of the Administration Act.

13    A social security payment is defined to include a social security pension which, in turn, is defined to include an age pension: see s 23 of the Social Security Act 1991 (Cth) (the “1991 Act”). Unless a contrary intention appears, an expression used in the 1991 Act has the same meaning when used in the Administration Act.

14    By s 37 of the Administration Act, subject to matters not presently relevant, the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that Mr Mentink is qualified for the social security payment and the social security payment is payable: see s 37(1)(a) and (b).

15    Mr Mentink’s claim for a social security payment in the form of an age pension under the 1991 Act and the Administration Act was accepted and granted presumably because the Secretary by his delegate reached the relevant state of statutory satisfaction as to the two s 37(1) factors.

16    As to a claimant’s qualification for a social security payment in the form of an age pension, s 43 of the 1991 Act provides that a person is qualified for an age pension if the person has reached “pension age” (65 years of age in Mr Mentink’s case) and any one of four factors identified in s 43(a) to (d) of that Act applies. The relevant factor in Mr Mentink’s case was whether he had “10 years qualifying Australian residence”. A person has 10 years qualifying Australian residence if, and only if, the person has, at any time, been an Australian resident for a continuous period of not less than 10 years (or another alternative factor not presently relevant): see s 7(5) of the 1991 Act.

17    There is no issue about whether Mr Mentink is an Australian citizen.

18    Moreover, there seems to be no issue that Mr Mentink is a person who has been an Australian resident for a continuous period of not less than 10 years.

19    Apart from the question of qualification for an age pension, a claim for a social security payment (including a social security pension in the form of an age pension) may only be made by a person who is an Australian resident and who is in Australia: see s 29(1) of the Administration Act. I will set out the terms of s 29 of the Administration Act as Mr Mentink makes submissions about the construction and operation of that provision having regard to the qualifying introductory words in each subsection. Section 29 is in these terms:

29    General rule

(1)    Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:

(a)    is an Australian resident; and

(b)    is in Australia

(2)    Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

                                [emphasis added]

20    An Australian resident is, relevantly for present purposes, a person who resides in Australia and who is an Australian citizen: see s 7(2) of the 1991 Act.

21    By operation of s 7(3) of the 1991 Act, in deciding whether or not a person is “residing” in Australia, “regard must be had” to the following considerations:

(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.

22    Section 80(1) of the Administration Act provides that if the Secretary is satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment; or to whom the payment is not, or was not, payable; the Secretary is to determine that the payment is to be cancelled or suspended.

23    Part 4.2 of Ch 4 of the 1991 Act addresses the topic of “Overseas portability”.

24    For the purposes of Pt 4.2, a claim in relation to a social security payment includes a claim that is taken to have been made under a provision of the Administration Act. Division 2 of Pt 4.2 addresses the topic of “Portability of social security payments”. Division 2 applies to a person during a period (called the “period of absence”) throughout which the person is continuously absent from Australia if, relevantly, immediately before the period of absence commenced, the person was receiving a social security payment (called “the payment”) mentioned in column 2 of the table at the end of s 1217 of the 1991 Act: see s 1213 of the 1991 Act.

25    Column 2 of the table mentioned in s 1217 includes an age pension.

26    As to the notion of receiving a social security payment, s 23(2) provides that a person is taken to be receiving a payment under the 1991 Act from the earliest day on which the payment is payable to the person even if the first instalment of the payment is not paid until a later date and by s 23(4) a person is taken to be receiving a social security payment until the latest day on which the payment is payable to the person even if the last instalment of the payment is not paid until a later date.

27    Thus, Div 2 of Pt 4.2 of the 1991 Act applied to Mr Mentink.

28    Section 1214(1) of the 1991 Act provides that if a person’s “maximum portability period” for a social security payment is an “unlimited period”, the person’s right to continue to be paid the payment throughout the period of absence is not affected merely by the absence.

29    Section 1214(2) of the 1991 Act provides that s 1214 is “subject to section 1220”.

30    Section 1214 of that Act invites the question of what is a person’s maximum portability period.

31    That question is answered by s 1217(1) of the 1991 Act which provides that the person’s maximum portability period for the relevant payment is the period referred to in column 5 of the table at the end of s 1217 which is applicable to the payment specified in column 2 of the table and the class of persons to which the person belongs, as specified in column 3 of that table.

32    Applying that formula to the table at the end of s 1217 of that Act, the position is this: the person’s maximum portability period for an “age pension” (column 2) is for “all persons” (column 3) an “unlimited period” (column 5). It follows therefore that if, after applying the formula, the person’s maximum portability period for the social security payment in the form of an age pension is an unlimited period, the person’s right to continue to be paid the payment throughout the period of absence is not affected merely by that person’s absence from Australia: s 1214(1).

33    Section 1214 of the 1991 Act, however, is subject to s 1220 of that Act.

34    Section 1220(1) of that Act is in these terms:

1220    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 Australia resident, the person is granted … an age pension; … and

(e)    after the pension … 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 … based on that claim is not payable to the person during any period during which the person is outside Australia.

                [emphasis added apart from the heading]

35    The basis of the claim for social security payments was Mr Mentink’s claim made under s 11(1) of the Administration Act for age pension social security payments. If s 1220 is engaged by reason of each of the factors at (a) to (f) being satisfied, an age pension is “not payable” to Mr Mentink during any period during which he is outside Australia as s 1214(1) is subject to s 1220(1).

36    As can be seen from the terms of the original decision (see [10] of these reasons), Mr Mentink’s age pension was “stopped” because he had left Australia within two years of his “most recent return”. Plainly enough, the original decision was based upon the application of s 1220 of the 1991 Act.

37    In other words, for the purposes of the original decision, 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. That was the suspension decision. That was the decision which was affirmed by the Authorised Review Officer and then affirmed by the SSAT. That was the decision which was the subject of the review before the Tribunal.

38    As mentioned at the outset of these reasons, the decision of the Tribunal is expressed in a somewhat unorthodox manner because the terms of the decision are that because Mr Mentink did not “satisfy the legislative requirements”, he was “not eligible” for an age pension “for the periods under review”. Thus, the “decision under review” was “therefore affirmed”. Section 1220 of the 1991 Act is not concerned with eligibility and its application as a basis for suspending Mr Mentink’s pension was entirely dependent upon whether the section was engaged having regard to whether each of the factors at (a) to (f) of s 1220 were satisfied.

39    If all of those integers at (a) to (f) were properly engaged with the result that the claim for age pension social security payments was not payable (and the Secretary was satisfied as to that matter), the Secretary was required by s 80(1) of the Administration Act to either cancel or suspend the payment to Mr Mentink of age pension payments.

40    If, however, those integers were not engaged because Mr Mentink had not again become an Australian resident upon his return to Australia, then s 1220 was not enlivened and any suspension decision (being the content of the affirmed decision the subject of review before the Tribunal) based upon it was made in excess of the power conferred by s 1220. However, if Mr Mentink was not an Australian resident (for the purposes of the 1991 Act and the Administration Act) when he made the claim for a social security pension in the form of an age pension on 5 March 2012, s 29 of the Administration Act (subject to Mr Mentink’s construction point) has the effect that Mr Mentink’s claim for an age pension is “taken not to have been made”: see s 29(2) of the Administration Act and [19] of these reasons.

41    Section 43(1) of the AAT Act is in these terms:

Tribunal’s decision on review

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

42    According to the last sentence of para 2 of the decision, the Tribunal made a decision to affirm the decision under review. The first sentence of para 2 of the decision seems to be an explanation of the basis upon which the Tribunal affirmed the decision under review although, of course, the Tribunal’s reasons for decision (the “Tribunal’s reasons”) are the real source of that explanation and the amplification of what was intended to be conveyed by the first sentence of para 2 of the decision.

43    At para 2 of the Tribunal’s reasons, the Tribunal understood the decision under review to raise two issues for determination. The Tribunal put it this way at para 2:

2.    The following issues are raised for determination:

(1)    There is a preliminary issue of whether the applicant was an “Australian resident” at 5 March 2012, the date of the application for [an] 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?

44    In framing the issues in this way, the Tribunal seemed to regard Issue 1 for the purposes of the review as a question of whether Mr Mentink had “again become”, on 5 March 2012, an Australian resident for the purposes of s 1220(1)(c) of the decision made in reliance upon s 1220(1). If not an Australian resident on 5 March 2012, the Tribunal seems to be also (or more particularly) asking itself a very different question on review of whether Mr Mentink qualified at all for an age pension because although he was in Australia, he may, or may not, have been an Australian resident on 5 March 2012. That question, of course, was not a part of the decision under review (and affirmed by the Tribunal on review).

45    The second issue, as framed, seems to suggest that the Tribunal may have regarded, for the purposes of the review, the phrase “you left Australia” (see [10] of these reasons) as requiring an answer to the question of whether Mr Mentink had ceased to be an Australian resident at any point during the period of his absence from Australia in the period 27 April 2012 to 6 August 2012. Again, the Tribunal may have seen itself as examining, on review of the decision, that question with a view to determining whether Mr Mentink continued to qualify for an age pension as opposed to whether the decision to exercise the power under s 1220(1) ought to be affirmed, varied or set aside, having regard to the merits.

What did the Tribunal decide?

46    At paras 6 and 7 of the Tribunal’s reasons, the Tribunal notes Mr Mentink’s evidence that after difficulties in finding employment in Australia due to his having been “convicted of certain offences”, he then “spent considerable time overseas”. The Tribunal notes Mr Mentink’s evidence concerning events in Thailand and Indonesia in 2007 and 2008; close monitoring of him by the Australian Federal Police; and attempts by the Indonesian Police to deport him from that country.

47    The Tribunal also notes at para 7 the emphasis in Mr Mentink’s evidence that the periods of time that he spent in Australia in “the past decade” had not been “rewarding” for him and he now thought of himself as a citizen of the world.

48    At para 8, the Tribunal notes Mr Mentink’s evidence that he met a woman in Singapore (although the Tribunal does not make any observations about the time frame) who lived in Indonesia. They discussed marriage. Mr Mentink returned to Indonesia because this woman acted as his sponsor. He returned to Indonesia in November 2008. He remained there for three years and five months until 2 March 2012: see [3] of these reasons. Mr Mentink married this woman. She speaks little English. She has a profoundly deaf son: para 10 of the Tribunal’s reasons.

49    The Tribunal also notes Mr Mentink’s evidence that he is not an Indonesian citizen. He cannot own property in Indonesia. However, he has purchased (for $10,000) a property in Indonesia in his wife’s name.

50    All of these preliminary matters seem to be directed to the question of whether Mr Mentink was, on 5 March 2012, an Australian resident.

51    At para 13, the Tribunal more particularly identifies that Mr Mentink’s evidence noted at para 13(a) to (c) of the Tribunal’s reasons goes to an assessment of whether or not at 5 March 2012 “or at any subsequent time during his absence from Australia from 27 April 2012 to 6 August 2012”, Mr Mentink was an Australian resident.

52    As to that assessment, the Tribunal notes at para 13 Mr Mentink’s evidence that: he has a mother and a sister living in Australia; sometimes on return to Australia he stays with them; they are not supportive of him; more recently, he has stayed with a friend; it is unlikely that his wife and stepson would wish to live in Australia; without the Australian age pension he will not be able to afford to live in Indonesia for the rest of his life; he is not permitted to work in Indonesia as a condition of his visa; life for him is frugal in Indonesia; and he expressed concern about the prospect of living apart from his wife and stepson, neighbours, friends, the family dog, home workshop and his books.

53    Having noted this evidence, the Tribunal made a number of findings at para 20 some of which have already been mentioned in these reasons. Those findings include findings that Mr Mentink returned to Indonesia on 27 April 2012 and remained there until 6 August 2012; he has travelled outside of Australia for approximately six of the previous nine years of his life; and it is unlikely that his wife and stepson would wish to immigrate to Australia.

54    The Tribunal then addresses Issue 1 as framed by it of whether Mr Mentink was an Australian resident on 5 March 2012 when he applied for the age pension. As to that, the Tribunal then addresses each of the factors set out in s 7(3) of the 1991 Act (as to which, see [21] of these reasons).

Consideration s 7(3)(a)

55    As to the nature of the accommodation used by Mr Mentink in Australia (Consideration (a)), the Tribunal observes at para 23 that during recent visits to Australia, Mr Mentink has stayed in a structure on land in Brisbane owned by a friend. The Tribunal also notes that Mr Mentink had advised Centrelink that he had commenced living at that address on 3 March 2012 and that he was not living away from what he seemed to describe as his “normal address” [the Tribunal’s emphasis]. However, the Tribunal also notes that on 9 March 2012, Mr Mentink referred in an email to his address in Indonesia “where he lived with his wife and stepson”: see para 23 of the Tribunal’s reasons.

56    The Tribunal notes again at para 24 that Mr Mentink does not own any property in Australia. The Tribunal notes further aspects of the Indonesian property: para 24.

57    At para 25, the Tribunal notes Mr Mentink’s evidence that having regard to his financial circumstances he cannot now afford to own a property in Australia as well as the Indonesian property and he cannot realistically expect that his friend would accommodate him free of charge for a period of two years in Brisbane.

58    As to Consideration (a), the Tribunal makes this finding at para 26:

I find that as Mr Mentink has spent the majority of his time during the past nine years out of Australia, and comparing the form of accommodation he has in Indonesia as opposed to in Australia, there is a compelling case that he is not an “Australian resident” for the purposes of Factor [Consideration] (a).

Consideration 7(3)(b)

59    As to the nature and extent of the family relationships the person has in Australia (Consideration (b)), the Tribunal notes at para 27 that Mr Mentink has no children; his relationships with his mother and sister “are not very strong”; his bond with his wife and stepson are “stronger”; and he aspires to continue his “family relationship” in Indonesia “in the last phase of his life”. The Tribunal notes Mr Mentink’s observation in a letter to the Minister for Human Services that a family life is simply no longer possible for him in Australia and that his wife and stepson have “no income … other than his income support”: para 27.

60    As to Consideration (b), the Tribunal makes this finding at para 28:

This evidence demonstrates his desire for living in Indonesia and a factual position and consequently this points to him being a non-resident of Australia for Factor [Consideration] (b).

Considerations 7(3)(c) and 7(3)(d)

61    As to nature and extent of the person’s employment, business or financial ties in Australia (Consideration (c)) and the nature and extent of the person’s assets located in Australia (Consideration (d)), the Tribunal notes at para 29 that Mr Mentink has at least what would be regarded as an equitable interest in the property in Indonesia as well as personal items such as a car and some household items to a value of no more than $5,000. The Tribunal also notes that the Indonesian property and Mr Mentink’s car are both registered in his wife’s name in Indonesia. The Tribunal also notes Mr Mentink’s evidence to the effect that he has “virtually no assets in Australia other than his bank account which he has drawn on for his living expenses in Indonesia for the majority of the time over the past few years”.

62    At para 29 (and also at para 25) of the Tribunal’s reasons, the Tribunal makes observations about the nature, extent and location of Mr Mentink’s assets and, in particular, the circumstance that Mr Mentink has virtually no assets in Australia other than his bank account upon which he relies for living expenses. The Tribunal also notes in its reasons that Mr Mentink’s wife and stepson are also reliant upon Mr Mentink’s support in that regard. At para 25 of the Tribunal’s reasons, the Tribunal notes Mr Mentink’s evidence that he could not now afford to own a property in Australia as well as the Indonesian property (which is in his wife’s name).

63    In the Tribunal’s reasons, Dr Levy fails to correctly isolate as an entirely separate “Factor” heading in the course of the discussion, the Consideration at s 7(3)(d) of the 1991 Act. Nevertheless, I am satisfied that this error is simply a mis-description by omission of the heading. The Tribunal’s reasons, as a matter of consistency of treatment, ought to have recited as an introduction to a discussion of Mr Mentink’s assets generally and, in particular, his assets in Australia, the heading: “Factor (d) – The nature and extent of the person’s assets located in Australia”.

64    It is perfectly clear, however, from the Tribunal’s reasons that the Tribunal took that matter into account.

65    The mis-description has a compounding consequence because the Consideration at s 7(3)(e) of the 1991 Act is incorrectly described as “Factor (d)” in the Tribunal’s reasons although the discussion at para 31 of the reasons is concerned with the subject matter of s 7(3)(e). Similarly, the Consideration at s 7(3)(f) of the 1991 Act is described in the Tribunal’s reasons as “Factor (e)” although the discussion at paras 32 and 33 and also in some respects at para 34 concern the subject matter of s 7(3)(f). These errors of mis-description and omission of a separate heading concerning the subject matter of s 7(3)(d) do not support the contention that the Tribunal failed to address the content of each of the matters at s 7(3) of the 1991 Act.

66    However, while the Tribunal has considered the nature and extent of Mr Mentink’s assets both generally, and specifically those assets located in Australia, the Tribunal makes the following observation referable to Consideration (c) or “Factor (c)” at para 30:

Again, the facts in Factor [Consideration] (c) are more suggestive of him not being “an Australian resident”.

Consideration 7(3)(e) (described as “Factor (d)” in the Tribunal’s reasons introducing para 31)

67    As to the frequency and duration of the person’s travel outside Australia, the Tribunal notes at para 31 that the extent of Mr Mentink’s travel outside of Australia is that reflected at para 4 of the Tribunal’s reasons (see [3] of these reasons). The Tribunal observes that Mr Mentink has usually been absent from Australia for periods in excess of three months at a time and that he was absent from Australia for almost three and a half years prior to his return to Australia on 2 March 2012 and his subsequent application for an age pension on 5 March 2012.

68    As to Consideration (d), the Tribunal makes this finding at para 31:

The weight of evidence tends to indicate [that Mr Mentink] was not “an Australian resident” for the purposes of Factor [Consideration] (d).

Consideration 7(3)(f) (described as “Factor (e)” in the Tribunal’s reasons immediately introducing para 32)

69    As to whether there is any other matter relevant to determining whether Mr Mentink intends to remain permanently in Australia, the Tribunal notes at para 32 Mr Mentink’s evidence concerning what he describes as a “difficult life” for him in part caused, in his view, by monitoring of him by the Australian Federal Police while overseas. The Tribunal notes Mr Mentink’s evidence that his present circumstances are that his wife and stepson are unlikely to move permanently to Australia. The Tribunal then makes this observation at para 32:

Consequently, if he is not regarded as being an Australian resident immediately prior to his application for age pension being approved, his only option to satisfy s 1220 of the Act would be for him to live continuously in Australia for a minimum of two years. If he did not do so, then his pension would cease for any periods he was outside of Australia.

70    At para 33, the Tribunal makes this finding:

On the basis of the legal criteria for determination of Australian residence, it is difficult for him to be regarded as an Australian resident prior to his return to Australia on 2 March 2012. Had he not been absent from Australia for such extended periods over the previous nine years, he might otherwise have been regarded as satisfying the definition of Australian residence when he recommenced to reside in Australia in March 2012. Unfortunately, that is the law as it applies to his background and circumstances.

71    At para 34, the Tribunal makes this observation in response to some propositions put to the Tribunal by Mr Mentink:

While the common law in some areas can use a number of criteria for assessing whether a person is resident, under the relevant statutory law the assessment is constrained by the prescribed statutory criteria in sub 7(3) of the Act. Based on the facts presented by the applicant, regrettably, he has not satisfied that definition.

72    At para 35, the Tribunal expresses this observation about some of the statutory provisions:

In this case sub 29(1) of the Administration Act is also relevant and provides that a claim can only be made by a person who is an Australian resident and is also residing in Australia. While Mr Mentink is an Australian citizen and was physically present in Australia at the time he turned 65 years of age (albeit for only a few days), the statutory criteria in sub 7(3) of the Act mitigates against him being “an Australian resident”, and I find as a fact that he was not an “Australian resident”. Consequently, he does not meet the precondition in sub 29(1) of the Administration Act and, as a result, the threshold requirement that he had a valid claim is not satisfied.

73    As to s 1220, the Tribunal said this at para 36:

It would appear that until he can again be regarded as “an Australian resident” and is not constrained by the prescriptive requirements of s 1220 of the Act, Mr Mentink will not qualify for [an] age pension.

74    At para 37, the Tribunal answered the questions it posed for itself in this way. As to Issue 1, the Tribunal found that at the date of Mr Mentink’s application for an age pension (5 March 2012), Mr Mentink was not “an Australian resident”.

75    As to Issue 2, the Tribunal said this at para 37:

As a consequential effect of the finding in Issue 1, Mr Mentink was not “an Australian resident” at any time during the period of absence from Australia between 27 April 2012 and 6 August 2012.

76    At para 38, the Tribunal records its decision (also described at para 38 as a finding), in the way described earlier, that is:

2.    As Mr Mentink does not satisfy the legislative requirements, he was not eligible for [an] age pension for the periods under review. The decision under review is therefore affirmed.

77    Mr Mentink, by his amended notice of appeal, asserts four questions of law arising out of the Tribunal’s decision for determination by this Court. They are these:

1.    The Tribunal erred in law by failing to recognise in respect of s 29 of the [Administration Act] the Parliament’s intention that s 29 enunciate a general rule exceptions to which are not exhaustively defined by ss 30, 30A, 31, 31A and 32.

2.    The Tribunal erred in law by failing to recognise the generality of s 7 of the [1991 Act] and [by] not giving effect in s 7(1) to the words “unless the contrary intention appears”, such contrary intention being expressed by the Parliament in enacting s 1217 of the [1991 Act].

3.    The Tribunal erred in law by failing to find that s 7 of the [1991 Act] cannot be invoked to defeat the Parliament’s intention in s 1217 and that this is particularly so considering the widely accepted principle that [the 1991 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.

78    The respondent has put on a notice of objection to the competency of the appeal. The respondent contends that Mr Mentink’s amended notice of appeal does not state a precise question or questions of law as required by r 33.12(2)(b) of the Federal Court Rules 2011.

79    I propose to examine each of Mr Mentink’s four grounds on an assumption that each ground raises a question of law going to the construction of the relevant provisions of the Act.

The first ground

80    As to the first ground of appeal, Mr Mentink contends that although s 29 of the Administration Act establishes what is described as a “general rule”, subject to the operation of ss 30, 30A, 31, 31A and 32 of that Act, those sections do not exhaustively describe the field of qualification upon the operation of s 29 and thus the general rule is also subject to other exceptions.

81    Mr Mentink’s proposition seems to be that having regard to the provisions governing a person’s qualification for an age pension and in particular s 43 of the 1991 Act which provides that a person is qualified for an age pension if the person has reached pension age and one of the four factors identified in s 43(a) to (d) applies, the generality of the rule contained in s 29 cannot operate to deprive a person from making a claim for a social security payment once that person has established a qualification for the age pension.

82    Having regard to the principles to be applied in construing the legislation derived from Project Blue Sky Inc v Australian Broadcasting Authority (Project Blue Sky) (1998) 194 CLR 355 and thus considerations going to the text of the section, context and legislative purpose (Project Blue Sky at [78]), I do not accept Mr Mentink’s proposition as to construction.

83    Section 29 is described as a “general rule” of application subject, in terms, only to the qualification reflected in the text of the section, namely, the operation of ss 30, 30A, 31, 31A and 32 of that Act. The context and legislative purpose of s 29 of the Administration Act is to make clear that a claim for a social security payment can only be made by a person who is both an Australian resident (as that term is understood for the purposes of the Administration Act and the 1991 Act) and who is in Australia. In order to reinforce those critical connecting factors, s 29(2) makes plain that a claim made when the claimant is not an Australian resident or not in Australia is taken not to have been made.

The second ground

84    As to the second ground of appeal, Mr Mentink says that the Tribunal fell into error of law by failing to properly construe s 7 of the 1991 Act and by failing to give effect to the proper meaning of s 7(1) of that Act.

85    Further, having regard to those matters, the Tribunal fell into error by failing to recognise that s 1217 of the 1991 Act expresses a “contrary intention” such that the meaning to be given to relevant terms in s 7(1) do not apply so as to diminish the operation of s 1214 having regard to the definition of “maximum portability period” in s 1217 of the 1991 Act.

86    As mentioned earlier, s 7 of the 1991 Act contains a number of definitions of terms used in the 1991 Act and those terms have the same meaning for the purposes of the Administration Act. Section 7(1) provides that the defined terms have the relevant meaning “unless the contrary intention appears” which, of course, means unless a contrary intention appears by reason of considerations of text, context and legislative purpose: Uelese v Minister for Immigration and Border Protection [2015] HCA 15, French CJ, Kiefel, Bell and Keane JJ at [42]. Also, attributed legislative intention is a conclusion arising from the application of accepted rules of construction, both common law and statutory: Queensland v Congoo [2015] HCA 17, French CJ and Keane J at [36].

87    Section 7(1) of the 1991 Act provides that the term “Australian resident” has the meaning given to it by s 7(2) and as already mentioned an Australian resident is a person who “resides” in Australia and is, relevantly, an Australian citizen. In deciding, for the purposes of the 1991 Act (and also the Administration Act), whether or not a person is residing in Australia, regard must be had to the six factors recited in s 7(3) of the 1991 Act (as to which, see [21] of these reasons).

88    The point of construction contended for by Mr Mentink seems to be that in applying the general rule contained in s 29 of the Administration Act, the notion of whether a person is an Australian resident and the notion of whether a person is residing in Australia is to be determined otherwise than by reference to the defined terms because the text, context and legislative purpose of the 1991 Act and the Administration Act suggest that the phrase “unless the contrary intention appears” is properly engaged. Thus, a different meaning is to be given to those terms with the result that it is sufficient to establish the notion of “residing” by demonstrating that the claimant for the pension is physically present in Australia.

89    The second feature of this ground is that having regard to the conferral of broad portability contained within s 1214 of the 1991 Act as explained in s 1217(1) of that Act, the legislation exhibits a contrary intention such that the general rule contained in s 29 should not apply to constrain the entitlement of a person to receive payment of the age pension for an unlimited period of absence.

90    There is nothing in s 29 of the Administration Act or Pt 4.2 of the 1991 Act and, in particular, s 1214 and s 1217 that suggests any contrary intention concerning the application of the defined terms set out in s 7 of the 1991 Act.

The third ground

91    The third ground of appeal is that the Tribunal fell into error of law by failing to find that s 7 of the 1991 Act cannot be invoked to defeat the Parliamentary intention made clear in s 1217 of the 1991 Act having regard to an underlying principle of construction to be applied to both the 1991 Act and the Administration Act that the legislation is beneficial legislation.

92    It should be noted that s 1217 is a provision which seeks to give meaning to particular phrases used in operative provisions of the legislation.

93    Section 1217 does not operate as a conferral provision in its own right. Relevantly, it seeks to define the terms maximum portability period, portability period, and allowable absence for the purposes of particular provisions of the legislation. Section 1214 of the 1991 Act is the operative provision which seeks to make clear that if a person’s maximum portability period for the payment of an age pension is an unlimited period, the person’s right to continue to be paid the payment throughout the period of absence is not affected merely by the absence. As to these provisions, see [23] to [35] of these reasons.

94    Plainly enough, the legislation is to be construed beneficially.

95    Nevertheless, the beneficial construction finds its heartland in the text, context and legislative purpose of the legislation. In this sense, it is correct to say that Ground 3 of the amended notice of appeal adds nothing of substance to the contentions reflected in Ground 2.

The fourth ground

96    As to the fourth ground of appeal, Mr Mentink contends that the Tribunal denied him procedural fairness by failing to identify in its reasons for decision the issues of law he agitated before the Tribunal both in his written and oral submissions and in failing to address those contentions in its reasons for decision.

97    There is no doubt that a failure to provide an applicant before the Tribunal with procedural fairness raises a question of law.

98    In the course of its reasons for decision, the Tribunal makes many references to the evidence given by Mr Mentink and particularly notes the Tribunal’s understanding of the effect of that evidence. The Tribunal examines that evidence in the context of the identification of the statutory provisions it discusses at paras 15 to 19 of the reasons. The Tribunal also discusses the burden of Mr Mentink’s evidence in the context of an assessment of the six factors required to be taken into account by operation of s 7(3) of the 1991 Act.

99    It is true to say that the Tribunal does not, in terms, identify each of the contentions of Mr Mentink reflected in the four grounds of appeal (although, of course, expressed now as failures by the Tribunal to recognise the true position contended for by Mr Mentink as a matter of law). Nevertheless, it seems to me that the Tribunal has sought to analyse the factual and legal content of whether Mr Mentink is a person who was an Australian resident for the purposes of the 1991 Act and the Administration Act on 5 March 2012 when he made a claim for an age pension and whether he was an Australian resident at any time during his period of absence from Australia between 27 April 2012 and 6 August 2012.

100    The fundamental challenge made by Mr Mentink to the decision under review before the Tribunal was, first, the notion that the defined terms “Australian resident” in s 7(1) and s 7(2) of the 1991 Act and the related question of the considerations required to be taken into account in determining the notion of “residing in Australia” (for the purposes of the definition of “Australian resident” in s 7(2)), were to be displaced by the beneficial construction to be attributed to the legislation, and second, the notion that the qualifying phrase “unless the contrary intention appears” was properly engaged such that those defined terms were displaced by the text, context and legislative purpose.

101    I accept the contention of the respondent that the Tribunal’s reasons demonstrate that the Tribunal identified the legislative provisions it regarded as relevant and identified the facts it regarded as relevant to the application, construction and operation of those provisions. I am not satisfied that the appellant has made good the proposition that the Tribunal fell into error by failing to afford him procedural fairness on the footing contended, or otherwise.

102    There is, however, a broader question to consider which is not raised by the appellant but which needs to be addressed.

103    As mentioned earlier, the decision the subject of the review was a decision to suspend the payment to Mr Mentink of social security payments in the form of an age pension on and from 27 April 2012 on the footing that Mr Mentink had left Australia. The source of the power relied upon to suspend social security payments to Mr Mentink was s 80(1) of the Administration Act having regard to what was described as the “returning resident” provision which was a shorthand way of describing the relevant application of s 1220 of 1991 Act.

104    An examination of the decision under review having regard to s 1220 would have required an examination of whether each of the six integers set out in s 1220(1) were satisfied and thus whether s 1220(1) was engaged with the result that social security payments in the form of an age pension were not payable during any period of Mr Mentink’s absence from Australia.

105    If the Tribunal had reached a conclusion that Mr Mentink was a person who, having been an Australian resident then ceased to be an Australian resident and then again became an Australia resident, and then left Australia within two years of the grant of the age pension (granted within the relevant period), the statutory conclusion would have arisen that payments in the form of an age pension would not be payable during the period that Mr Mentink was outside Australia.

106    However, the Tribunal did not review the decision to suspend Mr Mentink’s payments having regard to those considerations.

107    Rather, the Tribunal reviewed the decision to suspend payments to Mr Mentink on the footing of whether, upon review, Mr Mentink was an Australian resident at 5 March 2012 and whether he was an Australian resident at any time during his time of absence from Australia from 27 April 2012 to 6 August 2012. They were the perceived issues to be examined upon review of the decision. The Tribunal reached a conclusion that 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 “consequential effect” of the finding (so described) Mr Mentink was not an Australian resident at any time during the period of his absence from Australia between 27 April 2012 and 6 August 2012. Thus, the Tribunal affirmed the suspension decision which was the decision under review.

108    The Tribunal was entitled to affirm the decision under review standing in the shoes of and exercising all of the powers conferred on the decision-maker: s 43(1) of the AAT Act. The Tribunal was entitled to affirm the exercise of a power under s 80(1) of the Administration Act to suspend social security payments to Mr Mentink on the footing that the Tribunal was satisfied that a social security payment is not, or was not, payable to Mr Mentink. Having regard to the findings of the Tribunal, the Tribunal was satisfied of that matter notwithstanding that the state of satisfaction is described a little elliptically by the introductory phrase adopted by the Tribunal at para 2 of the decision, in these terms: “As Mr Mentink does not satisfy the legislative requirements …”. Further, although the findings of fact make it plain that Mr Mentink had ceased to be an Australia resident and had not again become an Australian resident by 5 March 2012 with the result that s 1220(1) of the 1991 Act was not engaged, the Tribunal was entitled to affirm the suspension decision on the footing that on the findings of fact before the Tribunal the suspension decision was a proper exercise of the power under s 80(1) as the claim was not payable having regard to the operation of s 29 of the Administration Act.

109    The Tribunal was entitled to affirm the decision under review having regard to any power conferred upon the decision-maker. Once the Tribunal reached its findings as described in these reasons, the Tribunal was entitled to affirm suspension of the payment of social security payments to Mr Mentink for the period the subject of the decision.

110    Accordingly, the appeal must be dismissed.

111    The parties will be requested to put on short submissions in relation to the question of costs, within three weeks.

Associate:

Dated:    18 May 2015