Sanmugasundaram v Secretary, Department of Family and Community Services [2005] FCA 258

FEDERAL COURT OF AUSTRALIA

Sanmugasundaram v Secretary, Department of Family and Community Services

[2005] FCA 258 BUVANENTHARAN SANMUGASUNDARAM v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES N 1779 OF 2004 JACOBSON J 8 MARCH 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1799 of 2004

On appeal from the Administrative Appeals Tribunal

BETWEEN: BUVANENTHARAN SANMUGASUNDARAM

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 10 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant is to pay the respondent's costs in the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1799 of 2004

On appeal from the Administrative Appeals Tribunal

BETWEEN: BUVANENTHARAN SANMUGASUNDARAM

APPLICANT

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: JACOBSON J

DATE: 10 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is, or purports to be, an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The decision was given by the Tribunal constituted by a senior member on 5 November 2004. The Tribunal affirmed a decision of the Social Security Appeals Tribunal ("the SSAT") dated 3 June 2004. The SSAT determined that the applicant was not an Australian resident within the meaning of s 7 of the Social Security Act 1991 (Cth) ("the Act"). 2 Section 7(2) of the Act provides that:- "An Australian resident is a person who: (a) resides in Australia; and (b) is one of the following: (i) an Australian citizen; (ii) the holder of a permanent visa; (iii) a special category visa holder who is a protected SCV holder." 3 I will set out the relevant provisions of the Act later, but it is sufficient to say that upon the matters raised before the Tribunal, the question of whether the applicant was a resident depended upon whether he was residing in Australia during the five day period from 15 May 2001 to 19 May 2001. 4 The relevant provisions of the Act are as follows. "7.(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. 7.(2A) A person is a protected SCV holder if: (a) the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or (b) the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day. 7.(2B) A person is a protected SCV holder if the person: (a) was residing in Australia on 26 February 2001; and (b) was temporarily absent from Australia on 26 February 2001; and (c) was a special category visa holder immediately before the beginning of the temporary absence; and (d) was receiving a social security payment on 26 February 2001; and (e) returned to Australia before the later of the following: (i) the end of the period of 26 weeks beginning on 26 February 2001; (ii) if the Secretary extended the person's portability period for the payment under section 1218C—the end of the extended period. 7.(2C) A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if: (a) the time is during the period of 3 years beginning on 26 February 2001; or (b) the time is after the end of that period, and either: (i) a determination under subsection (2E) is in force in respect of the person; or (ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder. 7.(2D) A person who, on 26 February 2001: (a) was residing in Australia; and (b) was temporarily absent from Australia; and (c) was not receiving a social security payment; is a protected SCV holder at a particular time if: (d) the time is during the period of 12 months beginning on 26 February 2001; or (e) the time is after the end of that period, and either: (i) at that time, a determination under subsection (2E) is in force in respect of the person; or (ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder. 7.(2E) A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that: (a) the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or (b) the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001. 7.(2F) If a person makes an application under subsection (2E), the Secretary must make the determination if: (a) the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and (b) the application was made within whichever of the following periods is applicable: (i) if paragraph (2E)(a) applies to the person—the period of 12 months beginning on 26 February 2001; (ii) if paragraph (2E)(b) applies to the person—the period of 3 years beginning on 26 February 2001. The Secretary must give a copy of the determination to the person. 7.(2G) The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection (2B). If the Secretary is required to make such a determination: (a) the determination must state that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; and (b) the determination must be made within the period of 6 months of the person's return to Australia; and (c) a copy of the determination must be given to the person. 7.(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." 5 The Tribunal set out the relevant background facts at [2] to [7] of the decision. The background facts can be stated shortly. 6 The applicant was born in Sri Lanka but he subsequently became a resident of New Zealand. He became a citizen of New Zealand shortly before he arrived in Australia. He is married with three children. He arrived in Australia on 15 May 2001 without his wife and children. He remained in Australia for five days from 15 May 2001 to 19 May 2001 when he returned to New Zealand. 7 During those five days the applicant opened a bank account with Westpac, applied for a taxfile number from the Australian Tax Office, signed a residential lease relating to premises at Bombay Street, Lidcombe and tried to get a job. He also applied to Centrelink for a certificate of Australian residence. 8 In his statement filed in support of the application made to the Tribunal he stated that his only purpose for arriving in Australia was to live here permanently. The applicant returned to New Zealand on 19 May 2001. The Tribunal referred at [4] to the reasons which the applicant gave for his return to New Zealand. These were as follows: firstly, that a burglary took place at his residence in New Zealand while he was present in Australia; secondly, that his wife had been undergoing medical treatment and he could not stay away because he had to take her for treatment; thirdly, his wife and children wanted to receive their New Zealand citizenship, they not being New Zealand citizens at that time. 9 On 1 April 2002 the applicant returned to Australia, accompanied by his wife and children. By that time the other members of his family had obtained their New Zealand citizenship for which they had been waiting at the time when the applicant was present in Australia in May 2001. Prior to the applicant's return to Australia from New Zealand in April 2002, Centrelink had sent the applicant a letter about his application for Australian residency. The Tribunal referred to this at paragraph 3 and summarised the relevant part of the letter. "Our information is that you have left Australia. As you are no longer in Australia we are unable to process your claim for the Certificate of Australian Residence. Your application may be reconsidered if you return to Australia and reclaim before 26 February 2004 and can demonstrate that you commenced to reside in Australia before 26 May 2001." (emphasis added) 10 The applicant contacted Centrelink within a day or two of his return to Australia in April 2002 but he was told that his application had been rejected. Nevertheless, he and his family remained in Australia from April 2002 to the time of the hearing. The Tribunal notes in [10] that in cross-examination the applicant agreed that before coming to Australia in May 2001, a friend had told him about the proposed changes to Australia's security laws that would affect New Zealand citizens in Australia. 11 The Tribunal found that the applicant knew that he should come to Australia before 26 May 2001 in order that he not jeopardise his eligibility for social security payments in Australia. The Tribunal referred at [10] and [11] to other evidence given by the applicant. It is unnecessary to set out what the Tribunal recorded about that evidence at [10] and [11]. 12 However, at [12], the Tribunal referred to inconsistent evidence given by the applicant in the Tribunal and the SSAT about his knowledge of whether his friend, Mr Manogharan, the person named at the lessor of the Lidcombe premises, owned that property. The Tribunal then turned to a consideration of whether the applicant was an Australian resident. It set out the provisions of s 7(2) of the Act, noted that he was not an Australian citizen or the holder of a permanent visa but that he, was as a New Zealand citizen, a Special Category Visa ("SCV") holder. 13 The Tribunal then proceeded to determine whether the applicant was a protected SCV holder within the various subsections of s 7 of the Act. The essential question which the Tribunal determined was whether the applicant commenced to reside in Australia within three months from 26 February 2001, ie, by 26 May 2001 under s 7(2C) of the Act. The Tribunal said, at paragraph 20 that the applicant maintained that on coming to Australia in May 2001, he intended to stay here alone until his family left New Zealand and joined him but that he unexpectedly had to return to New Zealand. 14 The Tribunal referred to the applicant's claim that before doing so he had taken certain action, namely, opening a bank account, obtaining a tax file number, finding a property to lease and setting about getting a job. It noted the applicant's claim that this demonstrated his intention to reside in Australia. The Tribunal then referred to the test of residency stated by Beaumont J in Taslim v Secretary, Department of Family and Community Services, [2004] FCA 789 ("Taslim") at [36] as follows:- "…the term 'residence' encompassed both temporal and emotional factors, so that, relying on the ordinary dictionary meaning, there must be both a physical presence in the particular place, as well as the intention to treat that place as 'home'. In my view, this was, in law, a correct analysis of the term in the present context". 15 The Tribunal noted at [21] that s 7(3) of the Act sets out a non-exhaustive list of matters to be taken into account in deciding whether a person is resident in Australia. The Tribunal proceeded to discuss the evidence relating to each of the paragraphs in s 7(3). 16 At [22] the Tribunal dealt with the nature of the applicant's accommodation. It found that the applicant did not give the address of the Lidcombe property as his address to Westpac or to the Australian Tax Office. The Tribunal was not satisfied that the tenancy agreement was genuine. The Tribunal noted that there was no change in the family's living arrangements in New Zealand prior to April 2002. That is to say the family continued to live at the address in New Zealand where the applicant had been living prior to his arrival in Australia in May 2001. 17 The finding that the tenancy agreement was not genuine was a strong adverse factual finding on a matter directly relevant to the question of whether the applicant was resident in Australia. 18 At [23] the Tribunal dealt with the question of family ties. It found that the applicant's immediate family did not accompany him to Australia, choosing to remain in New Zealand because they wanted to obtain New Zealand citizenship. The Tribunal found that the applicant's ties in May 2001 were much closer to New Zealand than to Australia. 19 At [24], the Tribunal dealt with the issue of the applicant's employment. The Tribunal found that the applicant came to Australia without any employment having first been arranged here. It found that although the applicant told his New Zealand employer that he was coming to Australia to settle, on his return to New Zealand in May 2001 he resumed his former employment in that country. The Tribunal inferred that the applicant did not take any formal steps to end his employment arrangements in New Zealand. The Tribunal found that there was no evidence that the applicant had any business ties to Australia. 20 At [25] the Tribunal dealt with the question of the applicant's assets. It found that the applicant did open a bank account with Westpac in May 2001, but it went on to find that he also kept open a joint account with his wife in New Zealand. It found that he left his car in New Zealand even though his wife does not drive. The Tribunal found there was no evidence that the car would be sold while the applicant was in Australia. The Tribunal observed that this factor also militated against finding a connection with Australia. 21 At [26] the Tribunal dealt with the length of the applicant's physical presence in Australia. It found that the applicant visited Australia for only five days in May 2001. It found that for the balance of the three-month period from 26 February to 26 May 2001 the applicant was living in New Zealand. The Tribunal found that until the applicant settled in Australia in April 2002 the five-day visit to Australia had been the applicant's only visit to this country. 22 The essence of the Tribunal's decision is to be found at [28]:-. "The question remains: was the applicant residing in Australia within that period? Taking account of the factors set out in s 7(3), I am satisfied that he was not residing in Australia in that period. His presence in Australia was limited to the five day visit in May 2001. Consequently, I find as a fact that he did not then commence to reside here. He returned to New Zealand after that brief visit, where he remained for almost a year. Moreover, contrary to his assertion, I am not satisfied that he had the intention of residing in Australia on arrival on 15 May 2001. I have come to that conclusion based on the inconsistencies in the applicant's evidence about the tenancy agreement with Mr Manogharan; the nature of his wife's upper limb symptoms which he thought affected her right arm and hand; the timing of the discussion with his wife regarding the prowler incident; the joint account that he kept open in New Zealand and his reason for leaving the car behind in New Zealand." 23 Accordingly, the Tribunal found at [29] that the applicant did not satisfy the provisions of s 7(2C) of the Act and that he was not a protected SCV holder. The Tribunal held therefore that the applicant was not covered by 7(2)(b) and that he was not an Australian resident as defined in s 7(2). The Tribunal found that the decision of Centrelink not to grant the applicant a certificate of Australian residence was correct and it affirmed the decision of the SSAT which was under review. 24 The applicant raised one further issue in the Tribunal which the Tribunal dealt with at [27]. This was that the letter of 15 August 2001 induced the applicant to stay in New Zealand. The Tribunal accepted that the letter referred to s 7(2F)(b)(ii) of the Act, but it found that the effect of this, as with s 7(2C), was that the application of the subsections depended on whether the applicant could establish that he was residing in Australia in the three months from 26 February 2001, that is to say in the present case between 15 May 2001 and 19 May 2001. 25 Section 44 of the AAT Act confers jurisdiction on the Federal Court in relation to appeals "on a question of law". In Collector of Customs v Pozzolanic Enterprises Pty Limited (1993) 43 FCR 280 at 286, a Full Court observed that:- "The limitation of the jurisdiction to the resolution of questions of law imposes a significant constraint upon the role of the Court in reviewing decisions of the Tribunal. The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law.." 26 The existence of a question of law has been said to be not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself, see TNT Skypack International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J; see also Birdseye v Australian Securities and Investment Commission (2004) 76 ALD 321 at [11] per Branson and Stone JJ. 27 In Barghouthi v ING Custodians Pty Limited [2003] FCA 1272, Allsop J said, in relation to an appeal under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth), which is in similar terms to s 44(1) of the AAT Act:- "The appeal to this Court is not an opportunity to revisit a decision of the Tribunal involving questions of fact and law, if some gateway of legal error is able to be opened. The appeal is on a question of law." (emphasis in the original judgment) 28 The notice of appeal is said to raise seven questions of law. It is unnecessary to set out the seven questions said to be raised. They appear in the paragraphs numbered 2(a) to 2(g) of the notice of appeal, but it is plain that no question of law is raised. This is hardly surprising, because the question which the Tribunal determined was itself one of fact; see Commissioner of Taxation v Miller (1946) 73 CLR 93 at 104 per Dixon J. 29 The application set out five grounds of appeal. Two further grounds of appeal were added by an amended notice of appeal filed on 25 February 2005. None of the grounds of appeal uses the language of a question of law. Rather, each ground (with the exception of ground 6) raises what are said to be errors in the findings of the Tribunal. Ground 6 is that the Tribunal failed to conduct the hearing according to law and hence committed jurisdictional error. 30 There is nothing whatsoever in this ground because it is plain that a hearing was conducted and that the applicant appeared and gave evidence. Accordingly, I need say nothing further about that ground. It is unnecessary to set out the detail of each of the remaining grounds. The application can be disposed of by considering each of the points succinctly and effectively put to me this morning by counsel for the applicant. 31 Four points were made. The first was that the Tribunal did not correctly apply the test stated by Beaumont J in Taslim because it considered only the applicant's physical presence without considering the question of the Tribunal's intention to treat Australia as his home. However, it seems to me that not only did the Tribunal correctly state and understand the test, it also correctly applied it. 32 The Tribunal did so in a number of paragraphs of its decision. It did so at [20] when it referred to the applicant's claim that he intended to reside in Australia and it also did so in [21] to [26] when it dealt with the non-exhaustive list of matters in s 7(3) of the Act. The Tribunal also addressed the question of intention at [28]. 33 All of the matters appearing in s 7(3) and the evidence which the Tribunal considered in relation to them went to the question of the applicant's intention. The Tribunal properly directed itself to those factual matters and rejected the applicant's evidence on them. These were all pure questions of fact for the Tribunal which, as I have said, made a strong finding against the applicant on the issue of the genuineness of the residential tenancy lease. 34 In [28] the Tribunal expressly found, contrary to the applicant's assertion, that he did not have the intention of residing in Australia on 15 May 2001. The effect of the Tribunal's finding, though not expressly stated, was that the only purpose of the applicant's arrival in Australia on 15 May 2001 was to try to obtain residency before the changes to the law came into effect on 26 May 2001. The SSAT had found at [40] as follows:- "The tribunal finds that the principal and possibly only reason for Mr Sanmugasundaram's travel to Australia on 15 May 2001 was an attempt by him to establish his residency in Australia before the legislative changes that effected New Zealand citizens travelling to Australia after 26 May 2001." 35 On a fair and beneficial reading of the Tribunal's reasons, in accordance with well-known authority, the effect of the Tribunal's finding was to the same effect as the finding made by the SSAT. 36 The second point made by the applicant was that the Tribunal failed to consider the significance of the applicant's return to Australia from New Zealand on 1 April 2002. However, this was a question of fact for the Tribunal. In any event, the short answer to the submission is that the question before the Tribunal was what was the applicant's intention in the period from 15 May 2001 to 19 May 2001. The Tribunal made a strong finding that the applicant did not intend to reside in Australia in that period. The applicant's return to Australia in April 2002 was therefore not relevant to the consideration of the question of the applicant's intention during the period to which I have referred in May 2001. 37 The third point was that no weight was given to the factors relied on by the applicant in the Tribunal. Reference was made to an internal Centrelink document which referred back to a telephone interview which took place on 18 May 2001. The note says that the applicant advised that he was in Australia to reside permanently, that he was actively seeking employment, that he had taken a 12 month lease on a property and that he had made a number of other statements in an attempt to prove he was in Australia to take up residence. 38 In my opinion it is plain that the Tribunal considered the evidence going to the various factors stated in s 7(3) of the Act and determined them adversely to the applicant. The question of what weight was to be given to the factors was a matter within the discretion of the Tribunal. In any event, the question of what weight is to be given to discretionary factors raises no ground of reviewable error; see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 42. 39 The fourth point was that the letter of 15 August 2001 is said to have misled the applicant into returning to New Zealand and remaining there until he came back to Australia in April 2002. The letter was said to create the impression that the applicant had until 26 February 2004 to re-apply. Counsel for the applicant did not point to any evidence to make good the submission that the applicant was misled but the short answer to the submission is that the applicant had already departed from Australia on 19 May 2001 thus the letter of 15 August 2001 could not have induced the applicant to leave Australia. It might, on one view, be thought to have induced him to stay longer in New Zealand but by then it was too late because the question was whether the applicant intended to reside in Australia in May 2001. 40 There was one final submission made on behalf of the applicant. This was that in [2], the Tribunal said, referring to the applicant: "He is a resident of New Zealand and became a citizen of New Zealand on 2 April 2001." 41 It was said that this might suggest that the Tribunal had already formed a view that the applicant was not a resident of Australia because he was being treated as a resident of New Zealand. However, this statement by the Tribunal was made in setting out the background to the matter before the Tribunal had considered the question which it had to determine of whether the applicant was resident in Australia. In my view, nothing turns on the use of the present tense. The Tribunal probably meant to speak in the past tense. In any event, it was not a ground of the application that the statement by the Tribunal revealed a reasonable apprehension of bias. 42 Moreover, there was not a scintilla of evidence to suggest that the Tribunal member approached the question with a closed mind. The authorities indicate that it is only in the rarest cases that bias can be demonstrated solely from the published reasons for decision; see von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] – [38] 43 Accordingly, the orders I will make are that the application be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.