Faizer and Anor v Commissioner of State Revenue [2023] QCAT 135

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Zaheera Faizer and Anor v Commissioner of State Revenue [2023] QCAT 135 PARTIES: ZAHEERA FAISER AND MOHAMED MUBEEN TUAN FAIZER (applicant) v COMMISSIONER OF STATE REVENUE (respondent) APPLICATION NO/S: GAR251-21 MATTER TYPE: General administrative review matters DELIVERED ON: 19 April 2023 HEARING DATE: 12 July 2022 HEARD AT: Brisbane DECISION OF: Member Carrigan ORDERS: The Tribunal orders that the decision of the Commissioner of State Revenue made on 26 February 2021 is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – FIRST HOME OWNER GRANT – whether – where applicants were mother and son – whether a couple satisfies the eligibility requirements for joint applicants First Homeowners and Other Home Owners Grants Act 2000 (Qld), s 25Q, s 59, s 60(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 24 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms. Hartridge instructed by the Commissioner of State Revenue. -- 1 of 8 -- 2 REASONS FOR DECISION [1] On 26 February 2021 the delegate of the Commissioner of State Revenue (Commissioner) refused to approve the payment of a HomeBuilder Grant1 to Zaheera Faiser and Mohamed Mubeen Tuan Faizer (Applicants). [2] Zaheera Faiser and Mohamed Mubeen Tuan Faizer are mother and son respectively and were joint applicants for the HomeBuilder Grant. [3] On 6 April 2021 the Applicants filed in the Tribunal an Application to review the decision of 26 February 2021 (the proceedings). [4] The issue in the proceedings is whether the Applicants were eligible for the grant of the HomeBuilder Grant. Background Facts [5] On 4 June 2020 a HomeBuilder Grant of $25,000 was announced by the Australian Government available to eligible owner-occupiers to construct a new home or substantially renovated an existing home for contracts entered into between 4 June 2020 and 31 December 2020. [6] On 15 June 2020 the Applicants entered into a Queensland Law Society Contract to purchase 480m² of vacant residential land at 4 Alfred Rose Crescent, Collingwood Park for $197,000.00.2 [7] On 19 June 2020 Zaheera Faiser contacted a customer service officer of the Commissioner to discuss an application for the HomeBuilder Grant. She says that the officer confirmed that she and her son, Mohammed Mubeen Tuan Faiser, were eligible for the Grant. [8] Zaheera Faiser says she and her son relied on this confirmation and on 19 August 2020 signed a contract with Bella QLD Properties for the construction of a new home on the vacant residential land for a contract price of $229,532.97. [9] On 2 July 2020 the Treasurer of the State of Queensland, the Honourable Cameron Dick MP, signed the National Partnership Agreement (NPA) for the HomeBuilder Grant. This Agreement was to give effect to the arrangements between the Commonwealth and State and Territory Governments whereby the Commonwealth was to fund the Grants in arrears made by the States and Territories to eligible owner-occupiers. The NPA also provided that where an owner-occupier recipient is later found to be ineligible for a HomeBuilder Grant, the State or Territory will repay the Commonwealth any funding recovered.3 Schedule A to the NPA provided for various terms, conditions, eligibility criteria and relevant principles for the Grant. Specifically it provided that a grant of $25,000 is for eligible owner-occupiers to build the new home or substantially renovated an existing home. Clause 13 provided that the eligible owner-occupier (s) will be natural person (s) who is/are listed on the 1 HomeBuilder Grants are paid to eligible applicants pursuant to the First Home Owner Grant and Other Home Owner Grants Act 2000 (Qld) (the (FHOG Act). 2 s 21 documents filed by the Commissioner on 12 May 2021 at pages 80 – 117. 3 National Partnership Agreement clause 28. -- 2 of 8 -- 3 certificate of title of the property and resides or intends to reside at the property. That clause also provided: 13.2 Applicants must be either a single natural person, or two natural persons in a couple. [10] On 30 July 2020 the Australian Government Treasurer and the Minister for Infrastructure and Planning approved an Administrative Direction (Australian Government HomeBuilder Grant – Queensland) to establish the basis for the administration of the HomeBuild Grant. That Administrative Direction set out the eligibility criteria for applicants and other arrangements for obtaining a Grant and so far as is relevant in these proceedings clause 21, 25 and 35 are as follows; 21. An applicant for a grant must satisfy all of the following criteria set out below. 25. A joint application can only be made by two persons if they are spouses as at the contract commencement date of the eligible transaction. 35. A spouse is a person who is; a. married; or b. a de facto partner; or c. a civil partner. [11] On 31 July 2020 the Applicants were registered as joint tenants of the Collingwood Park land. [12] On 20 August 2020 amendments were made to the FHOG Act to insert Part 3B and other provisions. Part 3B contain the provisions for HomeBuilder Grants including the eligibility provisions such as section 25Q which provided; (1) A person who is eligible to apply for a home builder grant under the home builder direction may apply for the grant. (2) An application for a home builder grant must comply with the home builder direction. (3) an applicant for a home builder grant is entitled to be paid the grant if – (a) the applicant or, for a joint application, each of the applicants, complies with the eligibility criteria for the grant under the home builder direction; and (b) the transaction for which the grant is sought is an eligible home builder transaction; and (c) the relevant requirements in relation to the eligible home builder transaction have been met. [13] The Dictionary in the Schedule to the FHOG Act defines the term “home builder direction” as meaning the Administrative Direction made by the relevant Minister and called “Australian Government HomeBuilder Grant – Queensland.” [14] On 29 August 2020 the Applicants made an Online Application for a HomeBuilder Grant. That Application “Eligibility Criteria” requested the following information; are you or will you be listed on the title as joint owners of the property as a couple?. -- 3 of 8 -- 4 [15] The Applicants responded “Yes” to the request for the above information. [16] On 5 February 2021 the delegate of the Commissioner informed the Applicants by letter that their Application had been considered and based on the information provided they had not satisfied the eligibility criterion in clause 1.b of the Administrative Direction. The Applicants were informed they were not eligible to receive the Grant. [17] On 7 February 2021 the Applicants submitted a letter of objection to the refusal of the Grant. They informed the Commissioner that the Applicants had to apply as mother and son as her husband, Tuan Kitchil Tuan Faiser, had just started working on a casual basis and was not eligible to be a party to apply for the home loan through the financial institution for the purchase of their home. They also referred to their telephone call of 19 June 2020 when they spoke to the customer service consultant who confirmed that they could apply as a couple. Accordingly they still intended to proceed with their Application for the HomeBuilder Grant. [18] On 26 February 2021 the Commissioner informed the Applicants by letter that their objection had been reviewed and based on the information available a decision had been made to confirm the earlier decision of the Commissioner of 5 February 2021 to refuse payment of the Grant. The basis of that refusal was that the Applicants did not satisfy the eligible criteria for joint applicants who must be spouses within the meaning of that term in the Administrative Direction. [19] Applicants who are dissatisfied with the Commissioners decision may apply, within 60 days of receipt of that decision for a review by the Tribunal in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the FHOG Act.4 [20] On 6 April 2021 the Applicants filed in the Tribunal an Application to review the decision of the Commissioner made on 26 February 2021. They asserted that the decision was wrong because their Application for the Grant was based on information provided by the customer service consultant which was provided prior to the changes relating to eligibility made in 30 July 2020”. In their application they also said; Furthermore on 19 June 2020, the term couple wasn’t limited to only married persons or those in civil relationship. Therefore, as confirmed over the phone on 19 June 2020 by the officer attached to the Office of State Revenue, I agreed to the contract as a couple with my son Mohamed Mubeem Tuan Faiser. The term couple in the Oxford dictionary is two individuals. Hence, I feel that I have been unfairly treated and discriminated. The Application is made in the Review Jurisdiction of the Tribunal. [21] On 12 July 2022 the Tribunal conducted a hearing of the Application. The relevant evidence relied upon was the various facts and circumstances which were before the Commissioner as is set out above in the “Background Facts”. There was additional evidence relied upon by the Applicant by way of a medical certificate and a copy of the. “Homebuilder” grant announcement of 4 June 2020. The Commissioner did not object to this additional evidence being part of the review by the Tribunal. The 4 FHOG Act s 59. -- 4 of 8 -- 5 Tribunal is required to review the Application by way of a reconsideration of the evidence that was before the Commissioner unless the Tribunal considers it necessary to allow new evidence.5 The Tribunal allowed the additional evidence by the Applicants to be included in the material being considered in the review. [22] The Tribunal is to decide the Application based upon the same law as applied when the Commissioner made the decision of 26 February 2021.6 [23] The grounds on which the Tribunal can review this Application are limited to the grounds of the relevant objection unless the Tribunal otherwise decides. The relevant objection is the objection to the decision of the Commissioner made on 26 February 2021.7 The Applicant’s grounds are those set out in its letter of objection dated 7 February 2021. [24] The Tribunal is required to conduct the review by way of a fresh hearing on the merits and to produce a decision that is the correct and preferable decision.8 [25] The statutory functions of the Tribunal’s review jurisdiction requires that the Tribunal may;9 (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the Tribunal considers appropriate. The Applicants Grounds of Objection. [26] On 7 February 2020 the Applicants objected to the initial decision of the Commissioner to refuse the Grant. That objection referred to the following grounds; (a) the Applicants have been deceived by the State to build the new home and in applying for the HomeBuilder Grant of $25,000.00 (b) on 19 June 2020 the Applicants called the Office of State Revenue at 1:55pm and spoke to a customer service consultant regarding their eligibility who repeatedly confirmed that they could apply as the couple (mother and son) as the Applicant mother’s husband was not eligible for a home loan from a financial institution; (c) the Applicants relied upon the confirmation from the customer service consultant and went ahead with their decision to build a new home and signed the building contract on 19 June 2020; (d) the Applicants have acted bona fide in accordance with their eligibility criteria as a couple (relying on the definition of couple in the Oxford Dictionary) but the definition of that term has now been changed by the Commissioner; 5 FHOG Act s 60(2)(a). 6 FHOG Act s 60(2)(b). 7 FHOG Act s 60(3) &(5). 8 QCAT Act s 20. 9 QCAT Act s 24. -- 5 of 8 -- 6 (e) the Applicants had to borrow $25,000.00 from friends in May 2022 to pay towards the initial contract deposit on the understanding that the amount would be repaid. That has left the applicants in debt as a result of the refusal of the Grant. (f) In denying the Applicants the Grant, they have been discriminated against and deprived of those funds. (g) The Applicants request a reconsideration of the refusal of the grant on compassionate grounds and to approve their application. What is the Correct and Preferable Decision on the Applicants Application for a Grant? [27] In conducting the review the Tribunal is to have regard to the facts and circumstances that were available to the Commissioner at the time of the decision, including any new evidence, and it must apply the law as at the date of the Commissioner’s decision. [28] The Applicants requested the review be on compassionate grounds. It is not controversial that the Applicants acted at the time in a bona fide way to give effect to the policy behind the HomeBuilder Grant. However, it is the case that at that time, and it is still the case now, any Application for a Grant needs to be in accordance with the law and to meet the various requirements including the eligibility criteria. [29] The Applicants contend that they sought information and were advised by the customer service consultant that as mother and son they could apply for the Grant. That advice is not contested by the Commissioner in these proceedings and who submits that any such advice at that time was irrelevant as the terms on which the Grant was to be made had not been determined. The Applicants further argue that they were deceived by this advice. However, it was not argued before the Tribunal that any such uncontested advice in some way could override the requirements for a Grant specified in the legislation. That is, the customer service consultant has not been shown to be in any position of authority to determine rights and entitlements of members of the public which is not in accordance with legislation. His advice could not override the terms of the entitlement to a Grant specified in legislation, albeit that the legislation was still some weeks or months away from being enacted. No doubt the customer service consultant had a role of providing information to the public about the Grant but at all material times any advice would have been subject to the legislative requirements for the Grant. In the circumstances it is the legislation and not the advice from a customer service consultant which determines the entitlement to a Grant. To that extent, the advice is irrelevant when considered in the context of what is required according to the legislation. Accordingly, the Tribunal is unable to find on these uncontested facts that the customer service consultant on 19 June 2020 in some way bound the Commissioner, and therefore the State of Queensland, to make a Grant to the Applicants in the sum of $25,000.00. [30] The Applicants entered into a building contract on 19 June 2020 in reliance upon the advice of that date from the customer service consultant. The entry into that contract is supported by the evidence and the Applicants reliance on the advice is not contested by the Commissioner. The Commissioner however argues on similar grounds already referred to above that it is the statutory criteria which the facts have to be applied to which determines the entitlement to the Grant. The Applicants did not apply for the Grant until 29 August 2020 by which time: -- 6 of 8 -- 7 (a) the National Partnership Agreement had been signed by the Queensland Treasurer on 2 July 2020; (b) the Administrative Direction had been made on 30 July 2020 following the agreement between the Federal Treasurer and the relevant Federal Minister; (c) the Applicants became the registered proprietors of their land at Collingwood Park on 31 July 2020; and (d) amendments inserting Part 3B to the FHOG Act containing the eligibility requirements in particular s 25Q came into effect on 20 August 2020. [31] At the time the Applicants applied on 29 August 2020 all relevant requirements for the entitlement to a Grant were in place and were already known, or should have been known, by any Applicants. While the Applicants rely on events that occurred on 19 June 2020 particularly as it was on that date that they entered into a building contract, the Commissioner nevertheless argues that at the date of their Application the eligibility entitlements were in force in the legislation and would have demonstrated to them, or should have been known to them, the criteria which was required to be met to qualify for the Grant. [32] The Tribunal accepts that the entitlement to a Grant is to be determined according to the applicable legislation or relevant statutory instruments applying in the circumstances. It also accepts that when the Applicants lodged the Online Application for the Grant with the Commissioner all relevant legislation had been established and was in place so that entitlements could be assessed at the time of the application, rather than at the time of entry into the contract on 19 June 2020. At that later date an announcement of the availability of a Grant had not been made. 19 June 2020 is not the relevant date to assess entitlements but is one of factual steps undertaken by the Applicants towards obtaining the Grant. The Tribunal accepts the submissions of the Commissioner that relate to this issue and rejects the Applicants contention which places reliance upon events that occurred earlier on 19 June 2020. [33] The Applicants also argue that they are entitled to the Grant as they are a “couple” within the meaning of that term defined in the Oxford Dictionary. However, entitlement is to be determined upon the proper construction of the terms in the Administrative Direction and not the meaning referred to in the Oxford Dictionary. This is a statutory requirement of s 25Q of FHOG Act. Clause 25 of the Administrative Direction specifies that a joint application can only be made by two persons if they are spouses at the contract commencement date of the eligible transaction. The term “spouse” is defined in clause 35 to mean a person who is married, or a de facto partner, or a civil partner. [34] The Applicants do not contender that they come within the two earlier categories of the definition of the term “spouse”. To meet the eligibility requirements for a spouse they would need to constue the term “a civil partner” in clause 35 as including a “couple”. Their reliance upon the Oxford Dictionary may well contain the terms they refer to, however it is the meaning of the term “civil partner” which has to be considered. The Administrative Direction in clause 35 specifically indicates that the meaning of “civil partner” adopts the same meaning as is set out in s 32DA of the Acts Interpretation Act 1954 (Qld)(AIA) which excludes a person who is related by family to the other person where they would be within a prohibited relationship within the meaning of section 23B of the Marriage Act 1961(Cwth). Schedule 1 of the AIA provides that a “civil partner” means a person who is a party to a civil -- 7 of 8 -- 8 partnership registered under the Civil Partnership Act 2011 (Qld). Pursuant to s 5 of the Civil Partnership Act 2011 a person cannot enter into a civil partnership with a proposed partner who is a “lineal ancestor” or “lineal descendant”. The use of the term “couple” in the context adopted by the Applicants does not satisfy criteria of a civil partner in the definition of “spouse” in clause 35 of the Administrative Direction. The Tribunal finds that the Applicants reliance on the term “couple” to mean mother and son does not come within the meaning of a person who is a “civil partner” in clause 35D [35] The Applicants may well refer to paragraph 13.2 in Schedule A to the NPA for its reference to eligibility for “two natural persons in a couple”. That Agreement does not define the term “couple” which is left to the Administrative Directions made at the end of July 2020. However, that is not the end of the matter. Any applicant, including the Applicants, applying for a Grant must comply with s 25Q of the FHOG Act. As has been already stated above, s 25Q makes it a requirement that to be eligible for the Grant there must be compliance with the Administrative Direction. [36] The Tribunal accepts the submissions of the Commissioner that the Applicants do not meet the eligibility criteria as joint applicants for a Grant as set out in the Administrative Directions and finds they do not come within the meaning of the definition of “spouse”. The Tribunal rejects the Applicants submissions that as a “couple” they satisfy the eligibility requirements in clauses 21, 25 and 35 of the Administrative Directions. [37] For these reasons the Tribunal concludes that the Applicants are not eligible for a HomeBuilder Grant by reason of the non-compliant with s 25Q of the FHOG Act as they do not satisfy the eligibility requirements for “joint applicants” in clause 25 and 35 of the Administrative Direction. [38] The Tribunal orders by way of a review of the Commissioner’s decision of 26 February 2021 that the decision is confirmed. -- 8 of 8 --