If I live on a New Zealand registered ship, is it considered…

Sorry will try to get better reference

S AND K V THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV 2011-
485-60 19 May 2011
ORDER PROHIBITING DISCLOSURE OF NAME OF APPELLANTS.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2011-485-60
IN THE MATTER OF an appeal by way of case stated from the determination of the Social Security Appeal Authority at Wellington under s12Q of the Social Security Act 1964
BETWEEN S AND K Appellants
AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 13 May 2011
Counsel: B Castelino for appellants U Jagose and T Bromwich for respondent
Judgment: 19 May 2011 at 1pm
JUDGMENT OF FAIRE J
This judgment was delivered by me on 19 May 2011 at 1pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Castlefinn Law Ltd, PO Box 76 234, Manukau
Crown Law, PO Box 2858, Wellington 6140
The appeal
[1] This is an appeal by way of case stated under s 12Q of the Social Security Act 1964 against a determination of the Social Security Appeal Authority dated 21 June 2010.
[2] The appellants first arrived in New Zealand in March 1998. They have been away from New Zealand for varying periods since that time. In March 2008 they were granted New Zealand superannuation, apparently on the basis that they met the residential requirements of being both resident and present in New Zealand for 10 years since the age of 20. That decision was subsequently determined to be in error. The first-named appellant’s benefit was suspended in June 2008 and the second-named appellant’s benefit was suspended in August 2008. The Authority determined that the appellants were not eligible for superannuation paid either in New Zealand or Australia.
The statutory basis for this appeal
[3] Section 12Q of the Social Security Act 1964 provides that any party to a proceeding before the Social Security Appeal Authority who considers that the Authority’s determination is erroneous in point of law may appeal to the High Court by way of case stated for the opinions of the court on a question of law only.
The question of law
[4] The questions of law specified by the Authority for the court’s consideration are:
a. Did the Authority err in law in its interpretation of the phrase ―both resident and present in New Zealand‖ as it appears in ss 8(b) and (c) of the New Zealand Superannuation and Retirement Income Act 2001?
b. Did the Authority err in law in its finding that Fowler v the Ministry of Social Welfare (1984) NZAR 347 does not assist in interpreting the phrase ―both resident and present in New Zealand‖?
c. Was there any evidence for the Authority to conclude that, as at 11 August 2008, the appellants had not been resident and present in New Zealand for 10 years in the context of s 8(b) of the New Zealand Superannuation and Retirement Income Act 2001?
Background
[5] The appellants are a married couple. At the time of the Authority’s decision on 21 June 2010 the first-named appellant was aged 80 years and the second-named appellant was aged 76 years.
[6] The appellants first arrived in New Zealand on 16 March 1998. The first-named appellant was then aged 67 and the second-named appellant was aged 63. The appellants have since left New Zealand on a regular basis for varying periods. That is understandable. When they came to New Zealand they had one son who lived in New Zealand and one son who lived in Australia.
[7] The appellants were granted New Zealand citizenship on 20 November 2001.
[8] On 20 February 2008 the appellants applied for New Zealand superannuation. This was granted to both appellants on 12 March 2008.
[9] Following a review of the appellants’ entitlement to New Zealand superannuation it was determined that the appellants had been granted New Zealand superannuation from 12 March 2008 in error. The reason for that conclusion was that the appellants had not been both resident and present in New Zealand for 10 years in the aggregate. The first-named appellant’s New Zealand superannuation was suspended from 11 June 2008. The second-named appellant’s superannuation was suspended from 20 August 2008.
[10] When carrying out its review, the Ministry relied on dates contained in the New Zealand Custom’s Service records relating to the appellants’ movements in and out of New Zealand. They demonstrate that as at 20 February 2008, when the
appellants first lodged their application for New Zealand superannuation, the first-named appellant had been in New Zealand for six years, nine months, 25 days and the second-named appellant had been in New Zealand for seven years, nine days. The appellants do not dispute that position.
The statutory framework
[11] The New Zealand Superannuation and Retirement Income Act 2001 sets out who is entitled to receive New Zealand superannuation. The Social Security Act 1964 and the Social Welfare (Reciprocity with Australia) Order 2002 are also relevant in this case.
[12] There are three qualifying requirements before a person is entitled to New Zealand superannuation:
(a) The age qualification, namely having attained the age of 65 years;1
(b) The immigration status qualification, which prevents a person from receiving a benefit if that person is unlawfully resident or present in New Zealand;2 and
(c) The residential qualification.
[13] It is common ground that the appellants meet the age qualification and the immigration status qualification. What is in issue in this proceeding is whether they meet the residential qualification.
[14] The residential qualification of New Zealand superannuation is set out in s 8 of the New Zealand Superannuation and Retirement Income Act 2001. Section 8 provides:
1 Section 7, New Zealand Superannuation and Retirement Income Act 2001.
2 Section 74A, Social Security Act 1964.
8 Residential qualification for New Zealand superannuation
No person is entitled to New Zealand superannuation unless the person—
(a) is ordinarily resident in New Zealand on the date of application for New Zealand superannuation; and
(b) has been both resident and present in New Zealand for a period or periods aggregating not less than 10 years since attaining the age of 20 years; and
(c) has also been both resident and present in New Zealand for a period or periods aggregating not less than 5 years since attaining the age of 50 years.
[15] The residential qualification is a mandatory requirement. There are several statutory exceptions to the requirement, none of which are relevant to the actual determination made by the Authority in this case. For the avoidance of doubt, I do mention that the Authority made reference to the possible application of s 9(1)(a), which provides for situations where a person is absent for the purpose of special medical or surgical treatment. Although the first-named appellant did travel to India and did undergo medical treatment in that country, that did not occur in the period which is under consideration. For that reason, I do not consider that specific issue any further.
[16] For the purposes of ascertaining periods of residence it is necessary to take into consideration the agreements New Zealand had entered into with other countries. Those agreements are given effect to by an Order-in-Council pursuant to s 9 of the Social Welfare (Transitional Provisions) Act 1990. Of potential relevance to this case is the Social Welfare (Reciprocity with Australia) Order 2002. Article 8 of Schedule 1 provides:
Article 8—Totalisation for New Zealand
1. In determining whether a person meets the residential qualifications for a New Zealand superannuation or a veteran's pension, the competent institution of New Zealand shall deem a period of Australian working age residence to be a period during which that person was both a New Zealand resident and present in New Zealand.
…
4. The minimum period of working age residence in New Zealand to be taken into account for the purposes of paragraph 1 shall be 12 months, of which at least 6 months must be continuous.
Article 5(5) of the Schedule defines ―working age residence‖ as follows:
Working age residence in relation to a person means a period of residence between the ages of 20 and 64 years inclusive (being a maximum of 45 years) but does not include any period deemed pursuant to Article 8 or Article 12 to be a period in which that person was an Australian resident or a New Zealand resident.
The appellants’ case
[17] Mr Castelino submitted that it would be unfair to apply both s 8(b) and (c) to the appellants in this case. That interpretation, in my view, is not open to the appellants. The reasons that I come to that conclusion are those which were carefully advanced by Ms Bromwich in her submissions, which I find compelling.
[18] I consider each question.
Did the Authority err in law in its interpretation of the phrase “both resident and present in New Zealand” as it appears in ss 8(b) and (c) of the New Zealand Superannuation and Retirement Income Act 2001?
[19] The Authority, in interpreting these words emphasised that they have distinctly different meanings. The Authority said:
[25] To be present in New Zealand means to be here in New Zealand, not absent from it. To be resident in New Zealand means to have one’s ―home‖ in New Zealand on a long term basis as opposed to simply being a visitor.
[26] The use of both ―resident‖ and ―present‖ in s 8(a) and s 8(b) acknowledges that a person can be resident in, but absent from New Zealand. Likewise a person can be present in New Zealand but not resident here. The use of the two separate words in our view requires that an applicant meet both the criteria of residence and presence.
[20] That Authority observed that it was:
[27] … in no doubt that the use of the word ―present‖ requires an individual to have been actually in New Zealand for the required period unless
a relevant exception applies.
[21] Ms Bromwich referred to two decisions of the Social Security Appeal Authority where a similar approach had been adopted.3 I accept Ms Bromwich’s submissions that the Authority’s interpretation of the phrase ―both resident and present in New Zealand‖ is correct. It is consistent with the natural meaning of the words ―resident‖ and ―present‖.
[22] Ms Bromwich analysed the legislative history of s 8. She noted that, apart from dicta of the Authority, she had been unable to find any relevant jurisprudence on the meaning of the phrase ―both resident and present‖ as they appear in ss 8(b) and 8(c) of the New Zealand Superannuation and Retirement Income Act 2001. She noted that the phrase appears in other statutes, including ss 28 and 29 of the Social Security Act 1964, and in ss MC5 and MD7 of the Income Tax Act 2007. She had been unable to locate any decision interpreting the phrase in respect of those sections either.
[23] The word ―resident‖ is not given a comprehensive definition. It is defined so as to exclude persons being unlawfully resident in New Zealand in s 3 of the Social Security Act 1964. The word ―present‖ is not defined in the legislation.
[24] The requirement that an applicant be present as well as resident in New Zealand for a prescribed amount of time was first inserted in s 8 of the Social Security Amendment Act 1987. At that time the residential qualification for ―national superannuation‖ was set out in s 14 of the Social Security Act 1964. Immediately prior to the enactment of the Social Security Amendment Act 1987, s 14 of the Social Security Act 1964 provided:
14. Residential qualification for national superannuation
(1) No person shall be entitled to national superannuation unless he is ordinarily resident in New Zealand on the date of his application for national superannuation and has resided in New Zealand for a period or periods aggregating not less than 7 years during the period of 10 years immediately preceding the date of such application, and his total period or periods of residence in New Zealand since attaining the age of 16 years aggregate not less than 10 years:
3 Decision No 80/2006, 9 November 2006 and Decision No36/2008, 20 June 2008.
Provided that such period of 7 years shall be reduced by one year in respect of each 10 years of residence in New Zealand after the applicant attained the age of 16 years.
[25] The 1987 Amendment Act amended the requirement by adding the additional requirement of ―presence‖.
[26] In the introductory speech to the Bill that became the 1987 Amendment Act, the then Minister of Social Welfare explained the reason for clause 3 of the Bill which became s 8 of the Act as follows:
Clause 3 clarifies an issue relating to residential qualifications for national superannuation. Eligibility for national superannuation is based on residence in New Zealand. In calculating the period of residence the department has always taken into account the period the person was physically present in New Zealand, and not any periods of absence overseas. There has recently been a question about what the law actually provides. In order to clarify the intention of the legislation, the requirement has been inserted that the person is present as well as resident in New Zealand.
[27] The recent question would appear to be a reference to the decision Fowler v Ministry of Social Welfare4 and its application in the national superannuation context by the Authority.5
[28] In Fowler v the Ministry of Social Welfare the court had to determine the qualifying requirements for a widow’s benefit. One of the requirements was that the applicant ―had resided continuously‖ in New Zealand for five years. The Authority found that, while the appellant had been ordinarily resident in New Zealand for the past five years, the three trips that she had away (of six months, four months and one month, respectively) broke the continuity of her residence in New Zealand and hence she did not satisfy the requirements of that section.
[29] In the High Court Casey J held that the Authority had erred. He noted that the dictionary meaning of ―reside‖ includes ―having one’s home in a place or to dwell permanently there‖:6
4 Fowler v Ministry of Social Welfare (1984) 4 NZAR 374.
5 Social Security Appeal Authority Decision 23/86 (1986) 6 NZAR 107.
6 Above, n 4 at 348.
―Residence‖, of course, involves concepts of intention and personal physical presence at a dwelling place, but, as I have said before, it is generally accepted as unaffected by only temporary absence.
Casey J rejected the Ministry’s submission that the addition of the word ―continuously‖ indicated Parliament’s intention to alter the ordinary concept of residence by making it clear that a continuous physical presence in New Zealand was required. He held that Parliament was:7
doing no more than speaking about a continuous five-year period of residence as that term has always been understood, involving an ability for a resident to absent himself or herself temporarily without affecting its character.
[30] Casey J noted that if Parliament had intended that an applicant needed to be present in New Zealand then it would have made that requirement explicit. He said:8
If Parliament meant to interfere with the ordinary and long-accepted concept of residence to that extent, one would have expected it to have made this clear in quite specific terms by the addition of words requiring that the person must remain personally present in New Zealand for the whole of that period. It has not done so.
[31] In decision SSA 23/86 delivered on 17 June 1986 the Authority applied Casey J’s interpretation of the concept of residence to the residential qualification for national superannuation in s 14(1) of the Social Security Act 1964.9 Referring to Fowler the Authority said:10
Casey J came to the conclusion that a person could meet the test of being ―continuously resident‖ even though he or she might absent himself or herself temporarily. It seem to us that it is appropriate to apply the same interpretation to the words ―has resided‖, and that an applicant for national superannuation can reasonably be regarded as having been resident in New Zealand during any period or periods when he or she was temporarily absent for the purposes of a holiday.
[32] A year after that decision, Parliament enacted the 1987 Amendment Act. When one considers the Minister’s explanation in the Hansard excerpt to which I have made reference, it appears that in enacting s 8 Parliament was following
7 Ibid, 349.
8 Ibid.
9 Social Security Appeal Authority Decision 36/86 (1986) 6 NZAR 107.
10 Ibid, 108.
Casey J’s advice ―to make this clear in quite specific terms by the addition of words requiring the person must remain personally present in New Zealand‖.
[33] The requirement of residence and presence has remained in the legislation since the 1987 amendment.
[34] Ms Bromwich submitted that when one considers the legislative history, the Authority’s interpretation of the phrase ―both resident and present‖ is correct. I accept Ms Bromwich’s summary of the position in her written submissions, which was as follows:
40.1 As Casey J held in Fowler, to be ―resident‖ in a country means to have one’s home, or dwell permanently, there, involving concepts of intention and physical presence. Temporary absences from the place where one has one’s home will not affect the fact of residence: Fowler v Ministry of Social Welfare (1984) 4 NZAR 347 at 348, 349. The definition of ―resident‖ in s 3 of the Social Security Act 1964 excludes from the standard meaning of the word those situations where an individual is unlawfully resident in New Zealand. Thus, in the context of subs 8(b) and (c) of the NZSARIA, to be ―resident‖ in New Zealand means to lawfully have one’s home, or dwell permanently, here.
40.2 The word ―present‖ is defined in the Concise Oxford Dictionary as ―being in the place in question‖: The Concise Oxford Dictionary (Clarendon Press, Oxford, 1990), 942. In other words – and as the Minister’s explanation in the Hansard except quoted above makes clear – to be ―present‖ is to be physically present.
[35] The result, then, is by requiring a person to be both resident and present in New Zealand for the prescribed periods, a person must both lawfully have his or her home in New Zealand and be physically present in New Zealand for the specified periods.
[36] Accordingly, the answer to the first question contained in the case stated is ―No‖.
Did the Authority err in law in its finding that Fowler v the Ministry of Social Welfare does not assist in interpreting the phrase “both resident and present in New Zealand”?
[37] The short answer to this question is that the appellants’ case is not assisted by Fowler v Ministry of Social Welfare. The case, however, does give helpful guidance and can properly be applied in interpreting the meaning of both ―resident‖ and ―present in New Zealand‖. Having said that, the Authority’s analysis of the position discloses no error in law in its approach to Fowler v Ministry of Social Welfare.
[38] For that reason, I conclude that the answer to the second question is ―No‖.
Was there any evidence for the Authority to conclude that, as at 11 August 2008, the appellants had not been resident and present in New Zealand for 10 years in the context of s 8(b) of the New Zealand Superannuation and Retirement Income Act 2001?
[39] There is no issue here. It was common ground that at the date on which the appellants’ New Zealand superannuation payments were suspended they had not been both resident and present in New Zealand for 10 years as required by s 8(b) of the New Zealand Superannuation and Retirement Income Act 2001.
Do any of the exceptions apply?
[40] Ms Bromwich helpfully analysed the position under the Social Welfare (Reciprocity with Australia) Order 2002. The relevant articles of the order are referred to in [16] of this judgment. Article 8(1) does not apply to the appellants. The first time that the first-named appellant is recorded as departing for Australia was in March 1999, when he was 68 years of age. He was therefore too old for his stay to fall within the definition of ―working age residence‖ as set out in Article 5(5) of the Order.
[41] The second-named appellant possibly had two periods of working age residence in Australia. The first was a period of 85 days from 1 April 1998 to 25 June 1998 when she was 63 years of age. The second was a period of 76 days
from 5 September 1999 to 20 November 1999 when she turned 65 years. If those periods are added together she had 161 days of working age residence in Australia. However, by virtue of Article 8(4) of Schedule 1 those days cannot be taken into account for the purposes of Article 8(1) as they amount to less than 12 months. Ms Bromwich was correct in her submission that the Order does not assist the appellants.
[42] Reference was also made to s 9(1). This concerns the first-named appellant’s absence between 20 November 2008 and 8 March 2009. It therefore is not relevant to the questions raised in the appeal. It may well have to be considered at a later time if the first-named appellant qualifies on an aggregate basis for the residential requirements contained in s 8 of the New Zealand Superannuation and Retirement Income Act 2001. It is not relevant, however, for the purposes of determining whether the Authority erred in the law in the decision it gave in this case.
Conclusions
[43] I conclude, therefore, that the appeal must be dismissed and I so order.
Costs
[44] Counsel for the respondent indicated that no applications for costs would be made on the respondent’s behalf. That is not surprising having regard to the financial position of the appellants as indicated to the court through their counsel. Accordingly, no order for costs is made.
_____________________
JA Faire J