Curtis-Smith and Secretary, Department of Social Services [2015] AATA 152 (17 March 2015)

Last Updated: 17 March 2015

[2015] AATA 152

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2014/0076
Re	James Curtis-Smith
	APPLICANT
And	Secretary, Department of Social Services
	RESPONDENT

DECISION

Tribunal	Dr T Nicoletti, Senior Member
Date	17 March 2015
Place	Sydney

The decision under review is affirmed.

.......................[sgd].................................................
Dr T Nicoletti, Senior Member

CATCHWORDS

SOCIAL SECURITY – pensions – age pension – whether the applicant was required to be an Australian resident when he made a claim for age pension - whether applicant was an Australian resident – decision affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 7, 23, 43

Social Security (Administration) Act 1999 (Cth) ss 3, 29, Sch 1

REASONS FOR DECISION

Dr T Nicoletti, Senior Member


17 March 2015

1. Mr Curtis-Smith has applied to the Tribunal for review of the Social Security Appeals Tribunal’s (SSAT) decision to affirm the decision of an Authorised Review Officer (ARO) at Centrelink to reject his claim for age pension.
2. At the time Mr Curtis-Smith made his claim for age pension on 7 February 2013 he was of age pension age. He was in Australia when he lodged this claim.
3. Following the lodgement of his claim Centrelink requested that Mr Curtis-Smith provide further information and to complete additional forms. On two occasions, Mr Curtis-Smith was informed that his claim for age pension had been rejected because he had not provided all the requested information.
4. On 29 May 2013, Mr Curtis-Smith’s claim for age pension was rejected on the basis that he was not in Australia at the time he lodged the claim. There is a reference in the documents to Mr Curtis-Smith having lodged another claim form on 3 May 2013, when he was located in the Philippines, and it appears that this may have been treated as a new claim, as opposed to being submitted to provide information that was missing when the first claim form was lodged.
5. On 17 August 2013, the ARO affirmed the decision to reject Mr Curtis-Smith’s claim for age pension. The ARO decided to treat the second claim form as a request for a review, as opposed to a new claim. The ARO affirmed the decision to reject Mr Curtis-Smith’s claim for age pension because without the outstanding Private Trust and Company form it was not possible to determine whether he was entitled to age pension and that it was payable.
6. On 9 December 2013, the SSAT affirmed the ARO’s decision and decided that Mr Curtis-Smith’s application was correctly rejected because he was not an Australian resident.

ISSUES

7. The issues the Tribunal must decide are:
   • (a) whether the applicant was required to satisfy s 29 of the Social Security (Administration) Act 1999 (the Administration Act); and
   • (b) if so, whether the Applicant was an Australian resident when he made his claim for age pension.
8. The Respondent concedes that Mr Curtis-Smith satisfies the criteria in s 43(1) of the Social Security Act 1991 (the Social Security Act) to qualify for the age pension, although this is irrelevant if he was not an Australian resident when he made his claim. Accordingly, it is not necessary for this Tribunal to consider whether Mr Curtis-Smith meets the requirement to have a “10 years qualifying Australian residence”.

WHETHER THE APPLICANT WAS REQUIRED TO SATISFY SECTION 29 OF THE ADMINISTRATION ACT

9. Division 1 of Part 3 of the Administration Act concerns the provision of benefits and includes provisions that prescribe how claims for social security benefits are to be made and time limits for claims. Subdivision H is concerned with residence requirements for claimants and commences with the following “general rule” in section 29:

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.

10. Sections 30, 30A, 31, 31A and 32 of the Administration Act are not applicable to the circumstances of this case.
11. The applicant contends that the reference to section 29 as a “general rule” means that the rule is not one of universal application and, on that basis, Mr Curtis-Smith did not “have to prove the requirement that he is an Australian resident”. In the alternative, the applicant submitted that if the Tribunal determined that the applicant bore the onus of proving that he was an Australian resident, it must be guided by the provisions in sub-section 7(3) of the Social Security Act.
12. I note that section 3 of the Administration Act provides, relevantly:

...
(2) Unless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act.
...

13. The Dictionary in Schedule 1 of the Administration Act indicates that a reference to the “1991 Act” means the Social Security Act.
14. In section 23 of the Social Security Act, a “social security payment” is defined to include a “social security pension” and an “age pension” is defined as being a “social security pension”.
15. Thus, reverting to the terms of section 29, I am satisfied that a person who submits a claim for an age pension must be an Australian resident (cf section 29(1)(a) of the Administration Act) and be in Australia (cf section 29(1)(b) of the Administration Act) during the relevant period, being the time from the date the claim was made until 13 weeks after the claim was made.
16. I am satisfied that Mr Curtis-Smith was in Australia at the time his claim for an age pension was submitted to the Department. In that regard, section 29(1)(b) of the Administration Act is satisfied.
17. In determining whether Mr Curtis-Smith was an Australian resident at the time the claim was made, I must have regard to section 7 of the Social Security Act.

WHETHER THE APPLICANT WAS AN AUSTRALIAN RESIDENT WHEN HE MADE HIS CLAIM FOR AGE PENSION

18. Section 7 of the Social Security Act 1991 provides, relevantly:
    • (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.

19. As Mr Curtis-Smith is an Australian citizen, the only issue I am required to determine is whether Mr Curtis-Smith is an Australian resident. That requires me to have regard to the matters set out in sub-section 7(3) of the Administration Act, which are considered in detail below.

The nature of the accommodation used by the applicant in Australia

20. Mr Sweet, counsel for the applicant, submitted that the accommodation used by Mr Curtis-Smith in Australia is that in which his “lawful wife”, Ms Carmencita Ojales Curtis-Smith, resides together with his son, Thomas Curtis-Smith. He further submitted that the residence occupied by Ms Ojales Curtis-Smith and her son (referred to as “the Mill Park property”) was the “family home which is visited from time to time by Mr Curtis-Smith’s children who live in Australia, and from time to time by those who live overseas”.
21. Notwithstanding Mr Sweet’s assertions about the accommodation used by Mr Curtis-Smith in Australia and the reference to Ms Curtis-Smith as his “lawful wife”, Mr Curtis-Smith admitted he had a de facto wife, Ailyn Arceo, with whom he commenced a relationship and co-habitated with in late 2002, firstly in rented accommodation and then in a property purchased by Ms Arceo in the Philippines. It is also noted from Mr Curtis-Smith’s immigration records that between 30 April 2003 and 15 February 2013, Mr Curtis-Smith spent only 111 days in total in Australia, which means that he only “resided” in Australia for 3% of the time during that period.
22. Having regard to the above, the evidence indicates that Mr Curtis-Smith was in the fortunate position of having an amicable arrangement with his former/estranged wife, Ms Curtis-Smith, from whom he had separated in 1997, whereby he would be accommodated at the Mill Park property on the occasions he visited Australia. I will not be drawn into the otherwise disturbing suggestion by Mr Sweet that Mr Curtis-Smith was maintaining two separate relationships, and the inference that this was the basis upon which Mr Curtis-Smith was able to assert that the Mill Park property was his marital home.

The nature and extent of the family relationships the applicant has in Australia

23. Mr Curtis-Smith’s estranged wife, Ms Ojales Curtis-Smith, lived in the Mill Park property and now lives in the Richmond property together with her and Mr Curtis-Smith’s son, Thomas. Mr Curtis-Smith stated that on the occasions he had visited Australia, he was accommodated at those properties.
24. Mr Curtis-Smith also said that two of the five children from his first marriage, Kathleen and Margaret, live in Australia and he has visited them from time to time during his visits to Australia.

The nature and extent of the applicant’s employment, business or financial ties with Australia

25. Mr Sweet contended that Mr Curtis-Smith still had financial ties with Australia through the existence of a superannuation fund he had in Australia, which was administered by one of the partners from his former law firm.
26. Mr Curtis-Smith stated in cross-examination that he also paid all of the outgoings in respect of the Mill Park property, including the annual rates, insurance and utility bills. He also provided Ms Ojales Curtis-Smith with a weekly allowance and paid all the school fees and school requirements for Thomas.
27. However, Mr Curtis-Smith stated that as a result of the sale of the Mill Park property and subsequent purchase of the Richmond property, his daughter Anne would assume payment of all the outgoings in respect of the property, but Mr Curtis-Smith would maintain payment for Thomas’ school fees and outgoings. Mr Curtis-Smith also noted that he had retained his health insurance membership with Medibank Private, which covered Ms Ojales Curtis-Smith, Thomas and himself, and he would continue to pay the monthly premiums on that policy.

The nature and extent of the applicant’s assets located in Australia

28. The applicant contended that the assets he had in Australia comprised clothing and personal effects at the property, and his interest in the superannuation fund administered by his previous law firm.
29. Mr Curtis-Smith also alleged, in his affidavit evidence, that he had an interest in the Mill Park property, which he said in cross-examination arose from him being a beneficiary of a resulting trust arising by law in respect of the Mill Park property. He referred to a deed that he had entered into with his daughter Anne on 29 November 2007, in which he alleged that there was a declaration of trust by Anne and an acknowledgement by him of the existence of the trust.
30. However, the deed to which Mr Curtis-Smith referred in cross-examination stated, relevantly:

“4. From the date of purchase of the property and at the direction and request of my father, I hold 44.73% in trust for my mother for her lifetime and then or at such earlier time as my mother directs for myself, my sister and my brother as tenants in common and equal shares.

5. My father, by his execution of this deed, verifies so far as he is able, so far as he is concerned the contents of this deed.”

31. Based on the deed as executed, there is no evidence that Mr Curtis-Smith held any beneficial interest in the Mill Park property at any time between the time it was purchased until it was sold. When this was put to Mr Curtis-Smith, he argued that even though the resulting trust was not documented in the deed, it nevertheless operated by law.

The frequency and duration of the applicant’s travel outside Australia

32. Mr Sweet contended that during the time he practised as a solicitor, Mr Curtis-Smith was involved in agriculture and travelled outside Australia regularly, including during the period of time he was resident in Australia. Mr Curtis-Smith noted that he had been “outside Australia now for some years”, but nevertheless asserted that he has always considered Australia to be his home and his home address to be the Mill Park property address in Australia. Mr Curtis-Smith maintained this assertion even when it was pointed out to him that he had been in Australia, on average, only 11 days a year between April 2003 and February 2013.

Any other matter relevant to determining whether the person intends to remain permanently in Australia

33. Mr Sweet contended that Mr Curtis-Smith regards Australia as his home and promotes Australia in the Philippines. He serves in an honorary capacity, having been approached to do so, as a consular warden for the Australian Embassy in the Philippines, which involves him attending to a range of duties, including regular calls from the Australian Embassy to deal with Australians who are stranded or have come into difficulty in the Pampanga Province where Mr Curtis-Smith lives. Mr Sweet contended that this was a relevant matter in determining whether Mr Curtis-Smith intended to remain permanently in Australia.

CONSIDERATION

34. The evidence indicates that Mr Curtis-Smith separated from his estranged wife, Ms Ojales Curtis-Smith, in 2001 and commenced a de facto relationship with Ms Arceo in late 2002, with whom he has lived in the Philippines since that time.
35. Immigration records indicate that from April 2003 until February 2013, Mr Curtis-Smith was in Australia for a total of 111 days, representing only 3% of the time during that period. I accept that each time he visited Australia, he was accommodated at his former/estranged wife’s Mill Park property, which was recently sold.
36. I do not accept Mr Curtis-Smith’s assertions that his residence in the Philippines is not his permanent address and he has always regarded Australia as his residence and the Mill Park property as his “family home”. Indeed, given that Mr Curtis-Smith gave evidence that he has been living in the Philippines in a de facto relationship with Ms Arceo since 2002, during which time two children (one deceased) of the relationship were born, I find his assertions that the Mill Park property is his family home rather objectionable.
37. I am satisfied that Mr Curtis-Smith has not been an Australian resident since late 2001, and was not a resident at the time the claim was made, nor during the relevant period 13 weeks thereafter.

DECISION

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr T Nicoletti, Senior Member

............................[sgd]............................................
Associate

Dated 17 March 2015

Dates of hearing	30 October and 28 November 2015
Counsel for the Applicant	Mr R Sweet
Solicitors for the Respondent	Dr S Thompson, of Sparke Helmore