Clarke v Commissioner of State Revenue [2014] QCAT 589

CITATION: Clarke v Commissioner of State Revenue [2014] QCAT 589 PARTIES: Roisin Patricia Clarke (Applicant) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: GAR449-13 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 18 November 2014 DELIVERED AT: Brisbane ORDERS MADE: The decision to disallow an objection to the decision to not approve the First Home Owner’s Grant is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – FIRST HOME OWNER GRANT – whether eligibility criteria met – where application made without evidence of permanent residence – where permanent residence not established when application made – where marital status changed before becoming permanent resident – where applicant provided permanent residence visa after marital status changed – where spouse held prior relevant interest in property and had previously received grant – NEW EVIDENCE – whether in interests of justice to consider new evidence – where no prejudice to applicant – where new evidence cogent and probative – ESTOPPEL – whether Commissioner estopped from reassessing eligibility for grant – where no detriment to applicant – where Commissioner’s initial assessment of eligibility based on incorrect information -- 1 of 7 -- 2 First Home Owner Grant Act 2000 (Qld), s 10, s 12, s 13, s 14, s 60 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20, s 23 Metropolitan Transit Authority (Vic) v Waverley Transit Pty Ltd [1991] 1 VR 181 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION What is this Application about? [1] Strict statutory criteria apply to the First Home Owner’s Grant. An applicant for the grant must be an Australian citizen or permanent resident.1 An applicant’s spouse must also not have previously been paid the grant2 or resided in a property in which they held an interest.3 [2] On 30 September 2009, Ms Roisin Patricia Clarke applied for the First Home Owner Grant.4 Ms Clarke was not married at that time. However, Ms Clarke did not provide evidence of permanent residence or citizenship at that time. Instead, Ms Clarke did not prove permanent residence until 22 February 2010. [3] In the meantime, on 25 October 2009 – between applying for the grant on 30 September 2009 and providing evidence of permanent residence on 22 February 2010 – Ms Clarke married Mr Scott Allan. [4] On 23 January 2010, the Commissioner of State Revenue notified Ms Clarke that she is ineligible for the grant because of Mr Allan being her spouse. On 16 March 2010, Ms Clarke objected on the basis that Mr Allan was not her spouse when she applied for the grant on 30 September 2009. [5] The Commissioner then paid the grant of $21,000.00 to Ms Clarke after deciding she was eligible on 23 March 2010. However, on 6 August 2013 the Commissioner determined that Ms Clarke was not eligible because Mr Allan was her spouse as at 22 February 2010. Ms Clarke objected. The Commissioner disallowed Ms Clarke’s objection. 1 First Home Owner Grant Act 2000 s 12(1). 2 Ibid s 13(1). 3 Ibid s 14(4). 4 Application for First Home Owner Grant signed by Roisin Clarke on September 2009. -- 2 of 7 -- 3 What is the Tribunal’s jurisdiction? [6] The Tribunal may exercise its review jurisdiction if a person has applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.5 Ms Clarke claims that because the Commissioner did not lodge a review with the Tribunal within 60 days, the Commissioner’s office has exceeded the timeframe to contest the issue again. [7] The Commissioner is not required to and did not apply to review its own decision. Rather, Ms Clarke has applied to the Tribunal to review the Commissioner’s decision of 31 October 2013 to disallow her objection to repay the grant. The Tribunal may therefore confirm, amend or set aside the Commissioner’s decision and substitute a new decision.6 Can the Tribunal consider new evidence of Ms Clarke’s residence status? [8] Ms Clarke argues that the Commissioner’s reliance upon her permanent resident visa showing she was not a permanent resident until 9 December 2009 is a “new investigation” and “contrary to the rules”. [9] However, the Tribunal is statutorily mandated to decide the review by reconsidering the evidence before the Commissioner when the decision was made.7 The Tribunal may also consider new evidence if it is in the interests of justice.8 [10] It is in the interests of justice for the Tribunal to consider new evidence of Ms Clarke’s residence status when she applied for the grant. The Tribunal considering Ms Clarke’s permanent resident visa does not prejudice Ms Clarke. This is because she submitted it to her financier as the Commissioner’s agent on 22 February 2010 – she was therefore aware of its existence well before the Commissioner filed it in the Tribunal on 10 March 2014. [11] Moreover, the Tribunal has earlier directed that the Commissioner may introduce Ms Clarke’s permanent resident visa into evidence.9 Ms Clarke has been given a reasonable opportunity to reply. Ms Clarke sought six months ‘to conduct the necessary research into gaining the archived documentation from both the Australian and Canadian governments that will exonerate and disprove the false assertion of the respondent’.10 It is now over six months but Ms Clarke has not filed this evidence. 5 Queensland Civil and Administrative Tribunal Act 2009 s 18(1). 6 Ibid s 23(2). 7 First Home Owner Grant Act 2000 ss 60(1), (2)(a). 8 Ibid s 60(2)(a). 9 Tribunal Directions dated 16 April 2014 at paragraph 2. 10 Application for Miscellaneous Matters filed by Roisin Clarke dated 20 March 2014 at Annexure A, paragraph 13. -- 3 of 7 -- 4 [12] Ms Clarke’s permanent resident visa is cogent and probative because it shows that Ms Clarke was not a permanent resident until 9 December 2009 – after her application for the grant on 22 September 2009. Is the Commissioner estopped from reassessing eligibility for the grant? [13] Ms Clarke cites Metropolitan Transit Authority (Vic) v Waverley Transit Pty Ltd11 as authority for the proposition that the Commissioner is estopped from reassessing her eligibility for the grant. Ms Clarke contends that this is because the Commissioner had already considered whether Mr Allan was her spouse in ruling her eligible for the grant on 23 March 2010. [14] In Waverley, the company acted to its detriment by pursuing rationalisation and incurring substantial expenditure in reliance upon an expectation created by the Authority that it would automatically renew the company’s insurance licence.12 Unlike that company, Ms Clarke did not alter her position to her detriment in reliance upon the Commissioner’s ruling of 23 March 2010. Instead, she received a benefit – payment of the grant. This helped her build a house. Estoppel fails for this reason alone. [15] Further, in making the ruling of 23 March 2010, the Commissioner relied upon an incorrect date provided by Ms Clarke. In her most recent communication prior to the Commissioner’s ruling on 23 March 2010 and after she married Mr Allan, Ms Clarke provided her marital status as at 30 September 2009 – when she first applied for the grant: I submitted my first home owner’s grant application to Commonwealth bank with the building contract and all supporting documents on 30th September 2009. At that time Scott Allan was not my spouse as per the definition Home Owner Grant Act 2000 s 9(2). … He was not my spouse as defined by the First Home Owner Grant Act 2000 at the time of application to the bank on 30 September 2009.13 [16] Ms Clarke cannot rely upon her previous marital status before she became a permanent resident on 9 December 2009. That would effectively mean backdating her status to retrospectively comply with the eligibility criteria. The legislation does not allow retrospective compliance. [17] Moreover, an application for grant is not made until the Commissioner or her agent receives the completed application.14 This means that Ms Clarke did not “apply” for the grant until she completed her application with her permanent resident visa on 22 February 2010. Although Mr Allan was not her spouse when she “applied” for the grant on 30 September 2009, he was her spouse by the time she provided her completed application on 22 February 2010. 11 [1991] 1 VR 181. 12 Ibid at page 205. 13 Letter Roisin Clarke to Commissioner of State Revenue dated 16 March 2010. 14 Public Ruling FHOGA010.1.1 at paragraph 6. -- 4 of 7 -- 5 [18] Ms Clarke therefore incorrectly referred the Commissioner to her marital status as at 30 September 2009. Because Ms Clarke was not a permanent resident when she “applied” for the grant on 30 September 2009, Ms Clarke was not eligible at that time15 – regardless of her marital status at that time. [19] This does not mean that Ms Clarke has not acted in good faith. Ms Clarke may have honestly believed that her marital status as at 30 September 2009 was the appropriate date. That is understandable given that is when she (erroneously) believed she had “applied” for the grant. [20] However, it does mean that the Commissioner’s decision of 23 March 2010 was based on incorrect information – Ms Clarke’s marital status at an improper date. The Commissioner cannot be estopped from reassessing eligibility when the initial assessment is based on incorrect information.16 Estoppel is based on equity. Equity cannot foster a culture of incomplete or incorrect disclosure – the purpose of a review is to be ultimately right, not consistently wrong. [21] Moreover, the Commissioner’s approval of the grant to Ms Clarke on 23 March 2010 appears not to have considered evidence of Ms Clarke’s residence when she applied for the grant on 30 September 2009. The legislation imposes a criterion of permanent residence. The Commissioner cannot approve a grant in circumstances not permitted by the First Home Owner Grant Act 2000. Is Ms Clarke eligible for the First Home Owner Grant? [22] The difficulty for Ms Clarke is that she is unable to establish her eligibility for the First Home Owner’s Grant on 30 September 2009 or on 22 February 2010. On 30 September 2009, she met spousal requirements but not residence requirements. On 22 February 2010, she met residence requirements but not spousal requirements. [23] Both Ms Clarke and the Commissioner, at least initially, focused only on Ms Clarke’s marital status and only when she originally applied for the grant on 30 September 2009. However, marital status is relevant only to one criterion to determine eligibility for the grant. [24] An applicant for the grant must also be an Australian citizen or permanent resident.17 In her original application of 30 September 2009, Ms Clarke 15 First Home Owner Grant Act 2000 s 12(1). 16 As part of her application, Ms Clarke declared that she would undertake to notify the Commissioner of any notifiable event in writing relevant to the requirements of the First Home Owner Grant Act 2000 within 14 days – see Declaration of Roisin Clarke dated 30 September 2009 at paragraph 6. That includes her marital status when her completed application was lodged on 22 February 2010. 17 First Home Owner Grant Act 2000 s 12(1). -- 5 of 7 -- 6 attached a copy of her provisional resident visa.18 This visa only permitted her to remain in Australia until her permanent visa application had been decided or withdrawn. Ms Clarke therefore did not provide evidence of citizenship or permanent residence in her application on 30 September 2009. [25] Ms Clarke did not become a permanent resident until 9 December 2009. She did not provide evidence of that permanent residence until 22 February 2010. Ms Clarke was therefore not a permanent resident and not eligible when she applied for the grant on 30 September 2009. [26] By the time Ms Clarke submitted her permanent resident visa showing permanent residence from 9 December 2009 on 22 February 201019, Ms Clarke had married Mr Allan. An applicant for the grant is ineligible if:  The grant was paid to the applicant’s spouse under an earlier application;20and  The applicant’s spouse has held a relevant interest in residential property after 1 July 2000 and resided in that property.21 [27] Mr Allan held a prior interest in residential property at 502 Moggill Road, Indooroopilly22 and had resided in that property. The Commissioner had previously paid the grant to Mr Allan for that property. Ms Clarke was therefore ineligible because of her marital status by the time she became a permanent resident on 9 December 2009 and certainly when she provided evidence of that permanent residence on 22 February 2010.23 What is the correct and preferable decision? [28] The Tribunal is statutorily mandated to produce the correct and preferable decision24 by way of a fresh hearing on the merits.25 The Commissioner’s decision of 31 October 2013 correctly considered whether the grant had been paid in accordance with all eligibility criteria under the legislation26 – both Ms Clarke’s residence status and marital status at the proper time. [29] The Commissioner’s decision of 31 October 2013 disallowing Ms Clarke’s objection is therefore correct and preferable. 18 Certified Copy of Australian Provisional Resident Visa dated 6 September 2009 marked as Annexure A to the Respondent’s Submissions filed 9 May 2014. 19 Certified Copy of Australian Resident Visa dated 22 February 2010 marked as Annexure B to the Respondent’s Submissions filed 9 May 2014. 20 First Home Owner Grant Act 2000 s 13(1). 21 Ibid s 14(4). 22 Land Title Search dated 29 April 2013. 23 Public Ruling FHOGA010.1.1 at paragraph 4. 24 Queensland Civil and Administrative Tribunal Act 2009 s 20(1). 25 Ibid s 20(2). 26 First Home Owner Grant Act 2000, section 10(1)(a) and Public Ruling FHOGA010.1.1 at paragraph 4. -- 6 of 7 -- 7 What are the appropriate Orders? [30] The appropriate Order is that the decision to disallow an objection to the decision to not approve the First Home Owner’s Grant is confirmed. -- 7 of 7 --