FEDERAL COURT OF AUSTRALIA

Mentink v Secretary, Department of Social Services [2018] FCA 1660

ORDERS

THE COURT ORDERS THAT:

1.    The title of the respondent nominated in the application as “Secretary, Department of Human Services” be amended so as to read “Secretary, Department of Social Services”.

2.    The application is dismissed.

3.    The applicant pay the respondent’s costs of and incidental to the application.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    The applicant appeals to this Court in its original jurisdiction under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) on contended questions of law arising out of a decision of the Administrative Appeals Tribunal (the “Tribunal”) by which the Tribunal affirmed the administrative decision under review. The decision under review concerns a decision of the Department of Social Services, as varied by an Authorised Review Officer, to raise, and recover, an “age pension debt” from the applicant of $8,075.44 which had also been the subject of a decision of the Social Security Appeals Tribunal affirming the decision of the Authorised Review Officer.

2    A preliminary issue raised by the respondent’s submissions is that the notice of appeal filed by the applicant erroneously names the respondent as “Secretary, Department of Human Services”. The respondent submits that the Court should make a direction amending the name of the respondent to “Secretary, Department of Social Services”. The Court will so order.

3    For the reasons given below, the application should be dismissed.

Factual background

4    The applicant departed Australia on 9 November 2008. After spending a period of 1,209 days overseas, he returned to Australia on 2 March 2012, and on 5 March 2012 he lodged a claim for the age pension. In that claim form, next to a box with the words “residence” was the statement “I am living in Australia on a permanent basis”. The claim was granted with effect from 6 March 2012, being the applicant’s 65th birthday. However, on 27 April 2012, the applicant departed from Australia and a decision was made by the Department of Social Services (the “Department”), through an administrative decision made by “Centrelink” on 27 April 2012, to suspend payment of the applicant’s age pension. That decision was made on the basis that the applicant had left Australia within a period of two years of having returned to Australia, and having become, by reason of his return to Australia, an Australian resident (so far, at least, as the Department understood at that point in time). This suspension decision was reviewed by an Authorised Review Officer, the Social Security Appeals Tribunal (Review Number B050104) the AAT ([2013] AATA 184), this Court (Mentink v Secretary, Department of Social Services (2015) 26 AAR 205), and the Full Court of the Federal Court (Mentink v Secretary Department of Social Services (2016) 238 FCR 1).

5    On 6 August 2012, the applicant returned to Australia, and on 7 August 2012 made another claim for age pension. In the applicant’s claim form he indicated that he was living in Australia on a permanent basis in the same manner as described above at [4] of these reasons. On 8 August 2012, he made a written statement containing the words “I hereby declare my intent to remain in Australia”. On 21 August 2012, the applicant made a further supplementary written statement:

I declare my intent to remain permanently in Australia. I declare my intent, in the event of illness or death of my wife Berta Niat Jarut or my son Yosep Freinademetz Nelsen Siburian in Indonesia or of catastrophic events such as fire, or earthquake or volcanic eruption directly affecting my wife and son in Indonesia to remain permanently in the territory of Australia.

6    On 24 August 2012, a decision was made by Centrelink to grant the applicant the age pension. On 16 September 2012, the applicant departed from Australia and his age pension was suspended by Centrelink. The applicant returned to Australia again on 14 December 2012 and contacted Centrelink on 17 December 2012 enquiring about the age pension. On 17 December 2012, a decision was made by Centrelink to cancel the applicant’s age pension. On 18 December 2012, a decision was made by Centrelink to reinstate the applicant’s age pension from the date that he had returned to Australia, namely, 14 December 2012. On 19 December 2012, the applicant completed another claim form for age pension. Once again, the statement “I am living in Australia on a permanent basis” appeared on that form. On 20 February 2013, he departed Australia and payment of his age pension was again stopped by Centrelink. On 22 May 2013 the age pension was cancelled.

7    On 17 May 2013, the applicant returned to Australia. On or about 5 June 2013, he wrote a letter responding to a Centrelink request of 5 June 2013, discussing certain matters under a heading “evidence of intention to reside permanently in Australia”. The applicant set out his family circumstances in Australia; the fact that he was not employed in Australia; his address and living situation; and a statement of his assets in Australia and overseas. On 13 June 2013, the applicant had a discussion with a Centrelink officer at the Capalaba Centrelink Service Centre. A file note of that conversation which was before the Tribunal records as follows:

Customer advised verbally that he has NO intention to remain in Australia, and only comes back and forth for the 13 weeks period to be able to get the pension. He advised that he is still living with his partner overseas and has a family and home to support over there, and if he did not get the Age pension from Australia he would have not mean to support himself or family.

[errors in original]

8    On 14 June 2013, the applicant submitted a document to Centrelink entitled “Statement Regarding my Partner Status”.

9    On 14 June 2013, a decision was made by Centrelink to raise and recover from the applicant an “age pension debt” due to the applicant “not being residentially qualified to claim Age Pension …”: File Note, T 42, p 184, dated 14 June 2013. The amount originally calculated was $8,285.44 being the total amount of age pension paid to the applicant from 6 March 2012 to 19 February 2013. The applicant sought internal review of that decision and on 2 July 2013 an Authorised Review Officer substantially affirmed the debt (the “ARO decision”), with the exception of excluding a $210.00 “clean energy offset” that the officer considered was not recoverable. The total amount recoverable was $8,075.44. On 26 November 2013, the Social Security Appeals Tribunal affirmed the Authorised Review Officer’s decision. On 29 April 2014, the AAT affirmed the decision under review.

Legislative provisions

10    The “social security law” comprises the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) and the Social Security Act 1991 (Cth) (1991 Act), as well as any other Act expressed to form part of the social security law (s 3(3) Administration Act; s 23(17) 1991 Act).

11    Under s 11 of the Administration Act, a person who wants to be granted a social security payment must make a claim for the payment in accordance with Division 1 of Part 3. An age pension is a social security payment (s 23 of the 1991 Act).

12    Under s 37 of the Administration Act, a claim for a social security payment is to be granted if the Secretary is satisfied that the claimant is qualified for the social security payment, and the social security payment is payable. As far as qualification is concerned, s 43 of the 1991 Act provides that a person is qualified for an age pension if the person has reached pension age, and the person satisfies one of the enumerated qualification criteria listed in s 43(1)(a), (b), (c) or (d). Section 23(5A) of the 1991 Act defines the pension age for a person born on or before 30 June 1952 as 65 years of age. There is no dispute that the applicant has reached the pension age and satisfies one of the enumerated criteria.

13    The following provisions determine when a claim is payable. Section 41 of the Administration Act provides the following:

41      Commencement

(1)    Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment

14    To determine the “start day” for the applicant (who applied early), regard is had to clause 4 of Schedule 2 of the Administration Act which provides the following:

4    Start day—early claim

(1)    If:

(a)    a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)    the person is not, on the day on which the claim is made, qualified for the payment; and

(c)    assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)    the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

15    Subdivision H of Division 1 of Part 3 of the Administration Act is entitled, “Residence requirements for claimants”. In that subdivision, s 29 provides:

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.

16    Sections 30, 30A, 31, 31A and 32 are not presently relevant.

17    To determine whether a person is an “Australian resident”, s 7 of the 1991 Act sets out the following definition:

7    Australian residence definitions

(1)    In this Act, unless the contrary intention appears:

Australian resident has the meaning given by subsection (2).

(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.

    Note: For holder and permanent visa see subsection (1)

(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.

18    Once an age pension has been granted, its ongoing payment becomes subject to the “portability” rules in Part 4.2 of the 1991 Act. Although these provisions are not relevant to the Tribunal’s decision under review, it is necessary to canvass them as the applicant referred to them in his written submissions.

19    Section 1213 of the 1991 Act provides that:

1213 Persons to whom Division applies

This Division applies to a person during a period (the period of absence) throughout which the person is continuously absent from Australia, if:

(a)     immediately before the period of absence commenced, the person was receiving a social security payment (the payment) mentioned in column 2 of the table at the end of section 1217; or

(b)    during the period of absence, the person’s claim for such a payment is granted under the Social Security (Administration) Act 1999.

20    Column 2 of the table at the end of s 1217 includes an age pension.

21    Section 1214 of the 1991 Act provides:

1214 Some payments generally portable with no time limit

(1)    If the person’s maximum portability period for the 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.

Note 1:    Section 1217 defines the person’s maximum portability period for the payment.

Note 2:    However, the person’s rate of payment may be affected after 26 weeks—see Division 3.

(2)     This section is subject to section 1220.

[emphasis added]

22    Section 1220 of the 1991 Act is titled “No portability where claim based on short residence”, it provides that:

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 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.

23    The unlimited portability of the age pension provided for in s 1214 is expressly made subject to s 1220(2), such that where the criteria in s 1220(1) are met, s 1220 displaces s 1214 and the age pension is not payable to the person for the period of their absence from Australia (Mentink v Secretary, Department of Social Services (2016) 238 FCR 1, 7 [23]). As the Full Court of the Federal Court citing the AAT decision below stated in Mentink “[s]ection 1220 of the [1991] Act is intentionally designed to prevent a person from becoming an Australian resident following a period of non-residency and then quickly qualifying for age pension and then leaving Australia to live overseas with a social security benefit”.

24    Section 80 of the Administration Act provides for the cancellation or suspension of a social security payment, where payment has been made to a person who was not qualified to receive the payment, or the payment was not payable. Section 1223 of the 1991 Act provides that, subject to that section, if a social security payment is made and the person who obtained the benefit of the payment was not entitled to it for any reason, then the amount of the payment is a debt due to the Commonwealth.

25    The effect of these legislative provisions is that the applicant is required to be an Australian resident, on the day that the claim is taken to have been made, and, if the applicant has ceased to be an Australian resident and then later becomes an Australian resident within two years of making a claim for the pension, for the two years after the applicant becomes an Australian resident he or she must remain in Australia for the age pension to continue being payable.

The decision of the AAT

26    The Tribunal identified the issue as follows:

At issue is whether the applicant was an “Australian resident” when he was paid age pension. This is because a person has to be an Australian resident when they lodge a claim for a social security benefit.

27    The Tribunal recited the definition in s 7 of the 1991 Act and identified that it was not in issue that prior to the applicant’s initial claim for age pension he was an Australian citizen. The Tribunal stated that the applicant did not give oral evidence and did not want to be cross-examined. The Tribunal noted the applicant’s submission “the tenor of which” was that his prior statements about his intention to permanently reside in Australia were true when they were made, but he had subsequently changed his mind. The Tribunal recognised that the consideration of the question of whether the applicant was a resident required determining whether the applicant could be regarded as a person who resides in Australia (s 7(2) of the 1991 Act).

28    The Tribunal then considered the various factors in s 7(3) to determine whether the applicant was an Australian resident for the “relevant period” which the Tribunal defined as from 6 March 2012 until 19 February 2013.

29    The Tribunal considered the nature of the applicant’s accommodation in Australia, and considered the fact that the applicant had in three claim forms listed a Brisbane suburban address as being his home address. The Tribunal did not accept that the Brisbane suburban address was his home address, because on 1 June 2012 the applicant sent an email to the Minister in which he indicated that the Brisbane address was for “contact only” and that he had an Indonesian address.

30    The Tribunal found that the applicant did not have a close relationship with his family members in Australia, and considered that this was a neutral factor.

31    The Tribunal found that the fact that the applicant has no assets in Australia except for cash held in an Australian bank account indicated that the applicant was not an Australian resident.

32    The Tribunal found that the applicant’s long periods outside of Australia were not indicative of the applicant being an Australian resident.

33    In considering other factors relevant to whether the applicant intended to remain permanently in Australia, the Tribunal considered the fact that the applicant had indicated (by ticking the relevant box) on an incoming passenger card that he did not intend to live in Australia for the following 12 months. The Tribunal notes the fact that the applicant had made statements to Centrelink on 6 March 2012, 9 March 2012 and 31 May 2012 which were inconsistent with his being an Australian resident.

34    The Tribunal did not accept that the declarations made by the applicant were probative of his intention to reside in Australia permanently.

35    The Tribunal accordingly concluded that for the relevant period the applicant was not an Australian resident and was therefore not qualified to receive the age pension.

The appeal to this Court

36    The applicant’s notice of appeal raised four grounds of appeal:

1.     The Tribunal erred in law by failing to recognise in respect of s29 of the Social Security Administration Act (1999) the Parliament’s intention that s29 enunciate a general rule exceptions to which are not exhaustively defined by ss 30, 30A, 31, 31A and 32.

2.     The Tribunal erred in law by failing to recognise the generality of s7 of the Social Security Act (1991) and not giving effect in s7(1) to the words “unless the contrary intention appears”, such contrary intention being expressed by the Parliament in enacting s1217 of the Social Security Act.

3.     The Tribunal erred in law by failing to find that s7 of the Social Security Act cannot be invoked to defeat the Parliament’s intention in s1217 and that this is particularly so considering the widely accepted principle that the said Act is beneficial legislation.

4.     The Tribunal denied the Appellant procedural fairness by failing in its reasons for decision to identify the above issues of law as arising from the Appellant’s written and oral submissions, by failing to declare that a question of law had been raised, by failing to decide the question of law or to refer the question of law to the Federal Court pursuant to s45 of the Administrative Appeals Tribunal Act 1975.

[errors in original]

37    Grounds 1, 2, and 3 are identical to the first three grounds in the applicant’s amended notice of appeal from the Tribunal’s decision to suspend the applicant’s age pension that was the subject of the proceedings in Mentink v Secretary Department of Social Services (2015) 66 AAR 205 (see [77]). Excluding the words commencing after “by failing to declare” in the third line, ground 4 is identical to ground 4 of the notice of appeal in that earlier proceeding. The applicant’s construction of the statute, which informs the first three grounds of the notice of appeal, was unambiguously rejected by this Court, and on appeal by the Full Court in Mentink v Secretary Department of Social Services (2016) 238 FCR 1. It is unnecessary to say anything further on the proper construction of the statute, other than to reiterate the Full Court’s conclusions that there is nothing in the legislation which suggests that the factors set out in s 7(3) of the 1991 Act have been displaced by a contrary intention ((2016) 238 FCR 1 [42]), and that this outcome is consistent with the beneficial nature of the legislation ((2016) 238 FCR 1 [46]).

38    The Notice of Appeal also raises six questions of law said to arise from the appeal:

1.    Does s29 of the Social Security Administration Act 1999 authorize the Respondent to decide whether a person claiming a benefit was “Australian resident” at any time prior to the day on which the claim is lodged?

2.    Does s7(3) of the Social Security Act 1991 authorize the Respondent, acting in accordance with s29 of the Social Security Administration Act, to have regard to the matters (a) to (e) and any other matter for any purpose other than deciding whether the claimant intends, on the day the claim is lodged, to remain permanently in Australia?

3.    Does the right to unlimited overseas portability of the age pension offered by s1217 of the Social Security Act 1991 give rise to the contrary intention in s7(1) with the result that if he is in Australia on the day of the claim the claimant may be taken to be resident in Australia during the day on which the claim is lodged?

4.    How do the above issues, however they are determined by the Court, direct the Respondent in administering s1220 of the Social Security Act 1991?

5.    Given the provisions of s3 of the Social Security Administration Act 1999, does the conditional “contrary intention” clause of s7(1) of the Social Security Act 1991 import into s29 of the Social Security Administration Act 1999 and offer an age pension claimant relief from the requirement to intend to remain permanently in Australia on the day the claim is lodged, or to remain or reside in Australia during any subsequent period?

6.    If no such relief is possible in law, does the inconsistency in the legislation, namely that an age pension claimant be refused the benefit under one section of the act on the ground that he intends to claim the indefinite overseas portability offered by another section of the same act, raise a matter of the very constitution of Australia?

[errors in the original]

39    Questions 1 and 2 allude to the issue of the relevant timeframe considered by the Tribunal which is considered below. It should be noted that question 2 is premised on the erroneous assumption that the factors in s 7(3) are directed towards “deciding whether the claimant intends, on the day the claim is lodged, to remain permanently in Australia”, when in fact the factors in s 7(3) are directed towards determining whether the applicant is an Australian resident on the day that the claim has been lodged, or has taken to have been lodged, one factor of which is the applicant’s intention to remain permanently in Australia. Questions 3 and 5 raise issues of statutory construction that have already been answered by the Full Court in Mentink v Secretary Department of Social Services (2016) 238 FCR 1. Question 4 does not arise out of the Tribunal’s decision, and as the respondent correctly submits, appears to impermissibly seek a broad and hypothetical enquiry as to the construction and operation of the statutory provisions (Haritos and Another v Federal Commissioner of Taxation (2015) 233 FCR 315 at [93] (Haritos)). Question 6 raises an issue of the constitutionality of the provisions. No notice has been given to the Attorneys-General of the Commonwealth and of the States under s 79B of the Judiciary Act 1903 (Cth). The constitutionality of the legislative provisions was not further pursued in the applicant’s written submissions.

40    As the jurisdiction of this Court is conferred by s 44 of the AAT Act, the subject matter of the appeal is limited to the questions of law raised in the notice of appeal (Haritos at [85]). However, the issue of whether a question of law is raised must be treated as “one of substance”, and accordingly if there is any doubt, the Court has a duty to satisfy itself that there is, in fact, a question of law by considering the alleged questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision (Haritos at [94]). It is appropriate during this enquiry to have regard to the applicant’s written submissions in identifying whether a question of law is raised. In Haritos the Court also cited with approval the observations of Wigney J in P v Child Support Registrar (2013) 62 AAR 17 at [53]:

A question which is inelegantly drafted may none the less be a question of law which attracts the jurisdiction of this court if its purport is tolerably clear having regard to the context in which it appears: Ergon Energy Corp Ltd v Commissioner of Taxation (2006) 153 FCR 551; 232 ALR 652; 94 ALD 1; [2006] FCAFC 125 at [51]. In an appropriate case the court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary Department of Education, Employment and Workplace Relations v Ergin (2010) 119 ALD 155; [2010] FCA 1438 at [11]; Rana at [16]; Goodricke v Comcare (2011) 122 ALD 546; [2011] FCA 694 at [14]–[22]. An appropriate case may arise where, as here, an applicant is unrepresented and where it is possible to discern a question which, if properly framed, could found the jurisdiction of the court: Hoe v Manningham City Council [2011] VSC 37 at [6]–[7]; Kolya v Tax Practitioners Board (2012) 87 ATR 474; [2012] FCA 215 at [8] (Kolya).

41    The applicant submitted 46 pages of written submissions. These submissions have been considered in their totality, and have been carefully and thoroughly examined to determine whether they raise any purported errors of law on the part of the Tribunal. The submissions commence with a summary of the applicant’s contentions and the factual background of the matter, and then proceed to raise various issues with aspects of the earlier procedural history of the matter, including the ARO decision, the SSAT decision, the primary decision of this Court and the decision of the Full Court affirming the earlier decision of the Federal Court which in turn affirmed the challenged decision of 27 April 2012 to suspend the applicant’s pension. The submissions also raise issues with aspects of the ARO decision and the SSAT decision to affirm the decision to raise and recover the age pension debt from the applicant. None of these issues agitated by the applicant have any relevance to the decision of the AAT to affirm the decision to raise and recover the debt. This Court only has jurisdiction under s 44(1) of the AAT Act to consider whether the Tribunal’s decision to affirm the decision to raise and recover the debt gives rise to questions of law which, when answered, might reveal an error of law requiring correction by the Court. The applicant raises issues about his accommodation in Australia, makes submissions on the case of Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059, and makes some comments about a Tribunal requiring evidence of intent and the respondent’s power to waive the right to recover a debt under s 1237AAD of the 1991 Act. None of these issues raised or comments raise give rise to any question of an error of law on the part of the Tribunal.

42    The applicant contends for the following purported errors of law arising out of the reasoning of the Tribunal.

43    First, the applicant contends that:

… the Tribunal’s statement of facts, purporting as it did to set out the history of three separate claims and the relevant issues, was inexcusably lacking. In particular, paragraph 6 relies on the record created by a Centrelink officer on 13 June 2013, saying that the appellant had “advised that officer that he had no intention to reside in Australia” … Reliance on that evidence is unconscionable.

44    No further elaboration is given as to the basis on which the applicant asserts that reliance on that evidence was “unconscionable”, nor as to how the Tribunal’s statement of facts was “lacking”. By this contention, the applicant might be intending to suggest that a question of law arises for the purposes of s 44(1) as to whether the Tribunal was entitled to have regard to the record created by the Centrelink officer on 13 June 2013. The Tribunal was entitled to have regard to the entry and the contention does not raise or demonstrate an error of law.

45    Second, the applicant submits that the Tribunal erred in identifying “payments made under three claims”, when in fact there were only two claims (5 March 2012 and 7 August 2012) that were granted by the respondent. The applicant submits that the Tribunal erroneously considered that the decision made on 19 December 2012 to reinstate his age pension was the granting of a new claim. It is clear from reading the Tribunal’s reasons as a whole that no such error is made. At para 5 of the Tribunal’s reasons, the Senior Member identifies the nature of the decision made: “on 18 December 2012, a decision was made to reinstate age pension from the date that [the applicant] returned to Australia”. At para 16 where the Tribunal refers to “three claims”, it is in the following context:

The applicant has in three claims, dated 5 [M]arch [2012], 7 August 2012 and 19 December 2012, listed a Brisbane suburban address as being his home address. I do not accept that this Brisbane suburban address is the home address of the applicant because on 1 June 2012 he sent an email to the Minister in which he indicated that he had an Indonesian address and stated that the Brisbane address was for “contact only”. This evidence does not indicate that the applicant is an Australian resident.

46    It is clear that the word “claim” in this context, is not referring to three separate claims that have been granted by the respondent, but rather, three claim forms that were filled out by the applicant. The fact that the Tribunal member clearly articulated the history of the claims, including the reinstatement of the applicant’s pension on 19 December 2012, supports this reading of the Tribunal’s reasons. The applicant’s second submission has failed to establish any error on the part of the Tribunal.

47    Third, the applicant submits that the Tribunal fell into error when it framed the issue for the review as follows at para 9:

At issue is whether the applicant was an “Australian resident” when he was paid age pension. This is because a person has to be an Australian resident when they lodge a claim for a social security benefit.

48    The applicant takes issue with the Tribunal framing the issue as one of whether he was an Australian resident when he was paid the age pension, rather than when he lodged a claim for the age pension. The applicant argued that this purported error resulted in the Tribunal considering whether the applicant remained a resident throughout the relevant period, rather than whether he was a resident on the dates that he lodged his claims.

49    The respondent in written submissions conceded that the relevant test was whether the applicant was a resident when the claim was lodged, and that the issue as stated by the Tribunal of whether the applicant was an Australian resident “when he was paid” the age pension was stating the issue “too broadly”. In response, the respondent submits that firstly, the Tribunal’s finding that the applicant was not an Australian resident for the relevant period subsumes a finding that he was an Australian resident for the dates upon which he lodged his claims and thus there is no legal error, and secondly, that in so far as the applicant has demonstrated a legal error, it is a “harmless” or “trivial” legal error “that had no bearing on the Tribunal’s decision”.

50    From the outset it should be noted that the “relevant period”, as understood by the Tribunal, included the dates on which both claims were lodged. That is so due to the operation of cl 4 of Schedule 2 of the Administration Act which deems the date on which the claim was made to be the first day on which the person was qualified to receive the payment. Therefore, although the claim was lodged by the applicant on 5 March 2012 (one day earlier than the date on which he was entitled to receive the payment), cl 4 operates to deem the claim to have been made on 6 March 2012, the day on which the applicant was entitled to receive the payment.

51    The question that then arises is whether the Tribunal fell into legal error by considering the residency status of the applicant for the “relevant period” rather than on the specific dates that the applicant lodged, or was deemed to have lodged, the claim. If the Tribunal has fallen into error, a subsequent question arises as to whether the error is material (Hyundai Automotive Distributors Australia Pty Ltd v Australian Customs Service (1998) 81 FCR 590, 599). For an error to be material, it must have deprived the applicant of the possibility of a successful outcome had the error not occurred (House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112, 121 [31]-[32]).

52    At para 23 of the Tribunal’s reasons, the Tribunal concluded:

After considering the evidence before me I have concluded that for the relevant period the applicant was not an Australian resident and was therefore not residentially qualified to receive the age pension.

[emphasis added]

53    Contrary to the respondent’s submissions, the finding that the applicant was not an Australian resident for the entirety of the “relevant period” does not necessarily entail a finding that the applicant was not a resident on the particular dates upon which the applicant lodged, or was deemed to have lodged, the claim. For example, a finding that the applicant was not an Australian resident across the relevant period might be consistent with the notion that he was not a resident on some days of the relevant period on the one hand (which might be thought to be sufficient to disqualify him from receiving the age pension) but nevertheless a resident on other days which, if so, would entitle the applicant to be characterised as an Australian resident and therefore residentially qualified to receive the age pension. In other words, the Tribunal appears to have approached the matter on the basis that the question is one of whether the applicant was or was not an Australian resident for the relevant period rather than whether the applicant was or was not an Australian resident on the particular day that the applicant lodged, or was deemed to have lodged, the claim. In considering the nature of the applicant’s accommodation at para 15 of the reasons; the frequency and duration of travel outside Australia at para 20; and other matters relevant to determining whether the applicant intended to remain permanently in Australia, in paras 21 and 22; the Tribunal appears to have considered the factual circumstances of the applicant’s residency status for the period as a whole.

54    The ambiguity in whether the Tribunal considered the applicant’s residency status for the entire period as a whole, or for each day comprising the whole period means that it cannot be said that the error did not deprive the applicant of the possibility of a finding that he was a resident for the dates of 6 March 2012 and 7 August 2012.

55    Where an error is identified in the Tribunal’s reasoning leading to its decision, one possibility is to order that the decision be set aside and the case be remitted to the Tribunal to be heard and decided again. However, this Court has power under s 44(7) of the AAT Act to make findings of fact which are not inconsistent with findings of fact made by the Tribunal if it appears to the Court that it is convenient for the Court to make findings of fact having regard to the seven factors set out at s 44(7)(b). While a Court must exercise care to ensure that the power under s 44(7) is not exercised so as to “usurp the function of the tribunal” (Spaul v Comcare (2012) 57 AAR 352 at [23]), the guiding principle is that explained in Repatriation Commission v Butcher (2007) 94 ALD 364:

In cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome.

56    In this case, it is clear from the facts as the Tribunal has found them, that had the Tribunal applied the correct legal test, the only conclusion that was “reasonably open” (McKenzie v Repatriation Commission (No 2) [2014] FCA 1007), or that the Tribunal could “properly find” (Hall v Repatriation Commission [2007] FCA 2109 at [3]) was that the applicant was not a resident on the dates of 6 March 2012 and 7 August 2012.

57    If a person is physically absent for periods of time, they must maintain “a continuity of association with the place ... together with an intention to return to that place and an attitude that that place remains ‘home’” (Hafza v Director-General of Social Security (1985) 6 FCR 444, 449), if they are to retain their residency status. The facts found by the Tribunal clearly negative any suggestion that the applicant had a continuing association with Australia such that the applicant was a resident on 6 March 2012 or 7 August 2012. At para 16 of the reasons, the Tribunal made a finding that the Brisbane address specified by the applicant in the claim forms of 5 March 2012 and 7 August 2012 was not his home address as the applicant had written to the Minister, at a later stage, indicating that the address was for “contact only” purposes. At para 18, the Tribunal found that there was no evidence of the applicant having any employment, business or financial ties with Australia. At para 19, the Tribunal found that the applicant has no assets in Australia, other than cash in a bank account. At para 20 the Tribunal found that the applicant was in Australia for short periods of time. At para 21, the Tribunal remarked that the applicant had indicated on his incoming passenger card that he did not intend to live in Australia for the following 12 months. At para 22, the Tribunal quoted passages of a letter that the applicant wrote on 6 March 2012 to a Centrelink manager in which he made remarks that he is resident in Indonesia. At para 25, the Tribunal rejected the proposition that the applicant’s declarations regarding his intention to reside in Australia permanently were probative of his actual intention to reside in Australia permanently.

58    A finding by this Court that the appellant was not a resident on the specific dates of 6 March 2012 or 7 August 2012 is not inconsistent with any factual finding made by the Tribunal. Having regard to the factors set out in s 44(7)(b) of the AAT Act, I am satisfied that it is convenient for the Court to make such a finding. Given the futility of remitting the matter back to the AAT when there is only one outcome that is reasonably open to, or could be properly reached by, a differently constituted Tribunal, it is necessary for this Court to make the factual finding. The finding is open having regard to facts already found by the Tribunal. The expeditious and efficient resolution of the whole of this matter and considerations of delay and expense to the parties make it convenient for the Court to make the finding.

59    Accordingly I find that the applicant was not a resident on the dates of 6 March 2012 or 7 August 2012, and the claims made on those dates are taken not to be made in accordance with s 29(2) of the Administration Act. The applicant conceded that the payments of the age pension made on invalid claims may give rise to a debt.

60    It follows that the application is to be dismissed with costs.

61    This is a matter in which the parties agreed that the questions in issue were to be decided on the papers having regard to the Court record and the written submissions of the parties. That being so, it became necessary to adopt a constructive date of hearing for the matters on the papers. Final submissions were lodged on 10 May 2018. It would not have been possible to allocate a date of hearing until the conclusion of the August appeals. Constructively, a date of 1 September 2018 was allocated as a date for commencement of the consideration of the issues. That consideration has resulted in the decision published today.

Associate:

Dated:    1 November 2018