An appeal against a decision of a Benefits Review Committee [2015] NZSSAA 100 (11 December 2015)
Last Updated: 26 May 2016
[2015] NZSSAA 100
Reference No. SSA 132/15
IN THE MATTER of the Social Security Act 1964
AND
IN THE MATTER of an appeal by XXXX of Auckland against a decision of a Benefits Review Committee
BEFORE THE SOCIAL SECURITY APPEAL AUTHORITY
Ms M Wallace - Chairperson
Mr K Williams - Member
HEARING at AUCKLAND on 1 December 2015
APPEARANCES
The appellant in person
P Siueva for Chief Executive of the Ministry of Social Development
DECISION
Introduction
[1] The appellant appeals against a decision of the Chief Executive upheld by a Benefits Review Committee to suspend payment of New Zealand Superannuation to the appellant from 12 August 2015 on the basis that the appellant had failed to apply for a pension from the Central Provident Fund Board of Singapore .
[2] The issue in this case is whether it was appropriate to exercise the discretion in s 69G of the Social Security Act 1964 to suspend payment of New Zealand Superannuation to the appellant when he failed to take reasonable steps to apply for a pension from the Central Provident Fund Board.
Background
[3] The appellant and his wife and two sons emigrated to New Zealand in 2000. The appellant’s sons were aged 8 and 10 years when they arrived in New Zealand. The appellant was granted New Zealand citizenship in 2004. He remains a citizen of Singapore .
[4] The appellant turned 65 years of age on 25 November 2014. He made an application for New Zealand Superannuation which was granted.
[5] The appellant disclosed in his application that he had lived in Singapore for
50 years and eight months prior to emigrating to New Zealand. He was requested to make an application for a pension from the Central Provident Fund Board in Singapore .
[6] The appellant contacted the Ministry and advised that he objected to applying for a pension from the Central Provident Fund Board and explained his reasons for this. There were a number of communications between the appellant and Ministry staff over the issue. Ultimately, on 12 June 2015 the Chief Executive wrote to the appellant advising that if he had not made an application for his Singapore pension by
3 July 2015, his New Zealand Superannuation would be suspended.
[7] On 20 July 2015 the Chief Executive suspended the appellant’s New Zealand Superannuation, effective from 12 August 2015. The appellant was advised of this decision.
[8] The appellant sought a review of the decision. The matter was reviewed internally and by a Benefits Review Committee. The Benefits Review Committee, by a majority, upheld the decision of the Chief Executive. The appellant then appealed to this Authority.
[9] When he first contacted the Ministry about this matter, Ministry records suggest that the appellant put forward the view that it was discriminatory to require people from countries that paid pensions, such as Singapore , to be required to apply for those pensions, which were then deducted from their entitlement to New Zealand Superannuation.
[10] The appellant explained both at the hearing of this matter before the Authority and in his later submissions to the Ministry, that his concern about applying for a pension in Singapore was that it would make the Singapore authorities aware of the whereabouts of himself and his sons.
[11] The appellant says his concern about the Singapore authorities locating him relates to his concern about the requirements of the compulsory military service legislation in Singapore known as the Enlistment Act, and in particular the impact this legislation might have on his sons’ careers. The appellant explained that one of the reasons for the family emigrating to New Zealand was that his sons were struggling with the need in Singapore to be fluent in a second language. He and his wife feared that the boys would not meet the entrance criteria for university because of this. In New Zealand both boys have attended university and appear to be set to have successful careers. His sons are now aged 25 years and 23 years and have spent much of their lives in New Zealand, although the elder son is no longer living in New Zealand. The appellant is concerned as to how his sons may be affected if his whereabouts became known to the Singapore authorities. He suggested that his sons may be forced to go back to Singapore to complete military service and could be prosecuted as enlistment defaulters.
[12] The appellant submitted that the right to require a person to apply for an overseas pension was discretionary. In the circumstances outlined, he should not be required to apply for a Singapore pension.
Decision
[13] Section 69G of the Social Security Act 1964 requires every applicant for New Zealand Superannuation to establish to the satisfaction of the Chief Executive that they and their spouse or partner have taken all reasonable steps to obtain any overseas pension or benefit to which they may be entitled, to or that may be granted to either of them.
[14] Section 69G(2) and (3) gives the Chief Executive a discretion to give written notice to an applicant for New Zealand Superannuation to take all reasonable steps to obtain an overseas pension, to which that person may be entitled, within a specified period.
[15] Section 69G(4) provides that where a person does not comply with the notice given by the Chief Executive under s 69G(2) or (3), the Chief Executive may:
(a) refuse to grant the benefit applied for by the applicant;
(b) suspend from such date as the Chief Executive determines, the benefit granted to the beneficiary until either:
(i) the beneficiary provides information establishing to the satisfaction of the Chief Executive that he has taken all reasonable steps to obtain any overseas pension that he may be entitled to; and
(ii) the benefit is terminated under subsection (5);
whichever first occurs.
[16] Section 69G(5) provides that where the benefit has been suspended under subsection (4) the Chief Executive may, not less than 40 working days after the suspension, terminate the benefit from such date as the Chief Executive determines.
[17] The appellant did not suggest that he had not received written notice as required under s 69G(2). Nor did he suggest that he had taken reasonable steps to obtain a pension from Singapore .
[18] Rather, he says that the Chief Executive has a discretion to give the notice requiring steps to be taken under s 69G(2) or (3) and a discretion to suspend or terminate his benefit. In his case, he should not be required to make an application and his benefit should not therefore be suspended.
[19] The appellant says that the government in Singapore has a large computer which links all of its government departments, and if he were to make an application for a pension in Singapore his current whereabouts would be disclosed. The appellant claims that if this occurred, there may be significant repercussions for his sons who have apparently not registered for or undertaken military service in Singapore .
[20] The appellant says that neither he nor his sons have returned to Singapore since they left in 2000. He does not intend to return to Singapore and he has advised his sons not to return to Singapore .
[21] The appellant was completely unable to explain what action the Singapore authorities might be able to take against him or his sons if they became aware of his residence in New Zealand.
[22] The Singapore Enlistment Act provides that a person who is a citizen of Singapore or a permanent resident who is not less than 16 years and six months of age, must register for military service. Failure by a person subject to the Act to present himself for registration may result in a fine not exceeding SGD10,000 or a
term of imprisonment not exceeding three years, or both. The court may also order that the person present himself for registration for National Service by a particular date, and an additional penalty applies if that person fails to register for service.
[23] The Act further provides that:
• Every person who is fit for National Service and enlisted on or after
1 January 1971 is liable to render full-time service for a period not exceeding two years (with certain exceptions).
• A person who is subject to the Act and has been registered, or a child over the age of 13 years, must obtain an exit permit to remain outside Singapore and is required to return to Singapore before the expiry of the period for which he was allowed to stay outside Singapore .
[24] As the appellant was over the age of 50 years and his sons were both under the age of 13 years at the time they came to New Zealand, we infer that the appellant and his sons were not required to obtain exit permits before leaving Singapore .
[25] A ministerial statement on National Service defaulters by the then Minister for Defence in Singapore , posted on 16 January 2006, announces a tougher stand to be taken against those who default on National Service obligations. The statement includes the following information:
• The constitution prevents a person from avoiding military service by renouncing their citizenship.
• Those who have emigrated at a young age and have not enjoyed substantial socio-economic benefits are allowed to renounce their citizenship without serving National Service.
• Pre-enlistees who go overseas for an extended period are required to post a bond. Since 1992 the bond quantum has been set at SGD75,000 or half the combined income of the parents, whichever is higher.
• The penalties for defaulting under the Enlistment Act were to be increased and in future, prosecutors would be asking for terms of imprisonment to be imposed in serious cases. A serious case includes those who default on their full-time National Service responsibilities for two years or longer from the time they were required to register or enlist, or from the time their exit permits expired.
[26] The Constitution of Singapore makes it clear that a person cannot renounce citizenship of Singapore while they are subject to the Enlistment Act unless certain conditions set out in the Constitution have been complied with.1
[27] It is unclear how the appellant disclosing his presence in New Zealand would impact on either himself or his sons. The appellant himself is no longer subject to the Enlistment Act. He did not produce any evidence that the Singapore Government has ever sought extradition outside Singapore for a breach of the Enlistment Act. There was no evidence from either of the appellant’s sons about their position or whether they are still citizens of Singapore . One of the appellant’s sons no longer lives in New Zealand, in any event.
[28] As a Commonwealth country, no extradition treaty is required for an application for extradition to be made by the Government of Singapore in respect of someone living in New Zealand, but an application can only be made for an extraditable offence. Such an offence must be one that constitutes an offence in New Zealand and in
respect of which there is a penalty of at least one year’s imprisonment.2
We are
unaware of any equivalent New Zealand offence to a breach of the Singapore
Enlistment Act as there is no compulsory military service in New Zealand.
[29] We conclude that the possibility of either of the appellant’s sons being extradited to Singapore from New Zealand as a result of a breach of the Enlistment
Act, is remote.
[30] We are not satisfied that there is any real danger or disadvantage to either the appellant or his sons if the appellant’s whereabouts were to become known to the Government of Singapore .
[31] A further matter to be taken into account by the Chief Executive in requiring a person to apply for an overseas pension will be the prospects of the person being granted a pension. The appellant first advised the Ministry in a phone conversation on
20 November 2014 that he knew he did not have any entitlement to a Singaporean pension. He later advised that his pension fund with the Central Provident Fund Board was about SGD10,000 before he left for New Zealand. He stated that he had worked as a cashier at a hotel and then as a conscript in the army. For much of his working life he had worked as a contractor or a subcontractor and did not have to contribute to the Central Provident Fund. When questioned about his work history at
the hearing before the Authority, the appellant said that he had had an apprenticeship
1 Found at
www.statutes.age.gov.sg.
2 See Extradition Act 1999, section 4..
as an aircraft mechanic. There appear to be some discrepancies in the appellant’s explanations, but in any event the point is that the appellant does have a Central Provident Fund Board account and it is reasonable to infer he may be entitled to a pension from the fund. The Ministry note that the age of eligibility for payment from that fund is 62 years. The appellant is now over 62 years of age.
[32] As stated above, the Chief Executive has a discretion to give notice requiring steps to be taken to obtain a pension. He also has a discretion to suspend a benefit when a notice has not been complied with.
[33] Taking into account all the circumstances outlined, we are satisfied that the Chief Executive was correct to exercise his discretion to give a notice to the appellant requiring him to take steps to test his eligibility for a pension from Singapore within a certain timeframe and to suspend the appellant’s New Zealand Superannuation payments when he failed to take reasonable steps to apply for that pension.
[34] The appeal is dismissed.
DATED at WELLINGTON this 11th day of December 2015
Ms M Wallace
Chairperson
Mr K Williams
Member
