The Chief Executive of The Ministry of Social Development v Greenfield

• Jurisdiction: New Zealand
• Judge: White J
• Judgment Date: 12 December 2014
• Neutral Citation: [2014] NZCA 611
• Docket Number: CA351/2014
• Court: Court of Appeal
• Date: 12 December 2014

BETWEEN

The Chief Executive Of The Ministry Of Social Development

Appellant

and

Dawn Lorraine Greenfield

Respondent

[2014] NZCA 611

Court:

Wild, Whiteand French JJ

CA351/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court (“HC”) decision which held that the respondent was eligible for New Zealand superannuation — the respondent was a NZ missionary who had lived in Singapore since 1993 with her husband and who paid tax there — had made short visits to NZ at least once a year — her application for superannuation was declined by the appellant on the ground she did not meet the requirement in s8(a) New Zealand Superannuation and Retirement Act 2001 (“NZSRA”) (ordinarily resident in New Zealand on the date of application) — whether the respondent had to show that her settled life was in NZ and absences were temporary, in order to be “ordinarily resident” in NZ — whether s10 NZSRA (periods of absence as missionary also not counted) was directed towards determining residence requirements in s8(b) NZSRA (both resident and present in New Zealand for aggregate periods of not less than 10 years since attaining the age of 20 years) and s8(c) NZSRA (also both resident and present in New Zealand for aggregate periods not less than 5 years since attaining the age of 50 years).

Counsel:

M J Andrews and N E Gray for Appellant

P D McKenzie QC and A J McGurk for Respondent

• A The High Court erred in answering the following questions of law “Yes” when in both cases the answer should have been “No”

  • (i) Question: Did the Social Security Appeal Authority (the Authority) err in law by holding that a missionary must show that her settled life is in New Zealand and absences from New Zealand are temporary, in order to be “ordinarily resident” in New Zealand [under s 8(a) of the New Zealand Superannuation and Retirement Act 2001]?

  • Answer: No.

  • (ii) Question: Did the Authority err in law in its application of the meaning of “ordinarily resident in New Zealand” to Mrs Greenfield's situation?

  • Answer: No.

• B The appeal is allowed.

• C There is no order for costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by White J)

Introduction

1 The respondent, Mrs Greenfield, is a New Zealand missionary who with her husband has lived in Singapore since 1993. Her 2012 application for New Zealand superannuation was declined by the appellant, the Chief Executive of the Ministry of Social Development (the Chief Executive), on the ground that in terms of s 8(a) of the New Zealand Superannuation and Retirement Act 2001 (the Act) she was not “ordinarily resident” in New Zealand.

2 The Chief Executive's decision was upheld by a Benefits Review Committee and by the Social Security Appeal Authority (the Authority). 1

3 To assist Mrs Greenfield to exercise her right of appeal to the High Court on questions of law under s 12Q of the Act, the Authority posed the following three questions for the Court:

• (1) Did the Authority err in law when holding s 10 of the Act is directed towards determining residence requirements in s 8(b) and (c) of the Act?

• (2) Did the Authority err in law by holding that a missionary must show that her settled life is in New Zealand and absences from New Zealand are temporary, in order to be considered “ordinarily resident” in New Zealand?

• (3) Did the Authority err in law in its application of the meaning of “ordinarily resident in New Zealand” to Mrs Greenfield's situation?

4 With the parties in agreement that the first question should be answered “Yes”, the High Court after deliberation answered all the questions “Yes”. 2 By consent, leave to appeal to this Court in respect of the three questions was granted by the High Court. 3

5 As the parties remain in agreement that the first question should be answered “Yes”, it is only necessary for us to answer the second and third questions.

Factual background

6 The undisputed factual background is conveniently summarised in the Authority's decision:

[3] The appellant [Mrs Greenfield] and her husband are missionaries. They have lived in Singapore since 1993. They work for an international missionary organisation.

[4] The appellant attained the age of 65 years on 1 February 2012.

[5] She made application for New Zealand Superannuation on 9 March 2012 during the course of a visit to New Zealand. In her application the appellant noted that she did not normally live in New Zealand. Her application was declined.

[6] The appellant meets the eligibility requirements for New Zealand Superannuation that she has lived in New Zealand for 10 years since attaining the age of 20 years and five years since attaining the age of 50 years. Her application was declined because it was considered that she did not meet the requirement of s 8(a) of the New Zealand Superannuation and Retirement Income Act 2001 namely that she be ordinarily resident in New Zealand on the date of her application.

[7] The appellant confirmed in evidence to the Authority that the base for her work is in Singapore but that she and her husband travel to other countries in South East Asia on a regular basis. They have residence in Singapore and renew their visas every five years. They are eligible to apply for Singapore citizenship but as they intend to return to New Zealand when they finish their missionary work they have not done so. Their present Singaporean residence visa has two more years to run.

[8] The appellant and her husband pay tax in Singapore and non resident tax on their income from New Zealand in New Zealand. They are required to declare their income from New Zealand in Singapore.

[9] They live in rented accommodation in Singapore. They could have purchased property in Singapore but chose not to do so. Until 2006/2007 they retained ownership of their family home at Bucklands Beach in Auckland. Around 2006/2007 they sub-divided their land at Bucklands Beach. They sold part but retained a section with a small house on it. They use this property when they are in New Zealand. The appellant said that she and her husband endeavour to return to New Zealand at least once a year, usually for a period of approximately three weeks. The appellant and her husband have children living in New Zealand. In 2009 the appellant spent the year in New Zealand when her daughter had her second child.

[10] The appellant said that whilst their work in Singapore was originally supported by people in New Zealand, the project they are involved in is now supported by people and organisations from a variety of countries.

[11] The appellant and her husband retain their doctor in New Zealand the telephone him from Singapore for advice if required. In 2003 when the appellant broke her leg badly she flew to New Zealand for treatment and remained in New Zealand for three months while it healed.

[12] The appellant said that she and her husband have always intended to retire in New Zealand. They are currently training their replacements in Singapore. However when they are replaced in their present position there is a possibility they may more to the Myanmar border to build up the leadership for their work in that are rather than return to New Zealand.

The statutory provisions

7 The relevant statutory provisions are contained in Part 1 of the Act under the heading “Entitlements to New Zealand Superannuation” and the subheading “Standard New Zealand superannuation entitlements.”

8 The starting point is s 7(1) which provides that the age qualification for New Zealand superannuation is 65 years.

9 Then s 8, which is the crucial provision in this case, provides:

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.

10 Then there are two provisions that deal with periods of absence that are not counted for the purpose of determining the period an applicant has been present in New Zealand under s 8(b) and (c). The first of these provisions is s 9 which excludes, from the period an applicant has been present in New Zealand, any period of absence:

• (a) for the purpose of obtaining any special medical or surgical treatment or vocational training;

• (b) serving as a mariner on any New Zealand registered or owned ship engaged in the New Zealand trade;

• (c) serving as a member of any naval, military or airforce of any Commonwealth country or in any war in which New Zealand forces were involved; and

• (d) serving in any capacity as an accredited volunteer appointed by Volunteer Service Abroad Inc.

Those exceptions apply only if the Chief Executive is satisfied the applicant remained ordinarily resident in New Zealand during the absence.

11 The second of these provisions is the one that applies to a missionary. It is s 10 which provides:

10 Periods of absence as missionary also not counted

• (1) In determining the period an applicant has been present in New Zealand, no account is taken of any period of absence while engaged in missionary work outside New Zealand as a member of, or on behalf of, any religious body or, as the case may be, during any period that the applicant was absent from New Zealand with his or her spouse or partner while that spouse or partner was engaged in that missionary work.

• (2) Subsection (1) applies only if the chief executive is satisfied that the applicant was either born in New Zealand or was ordinarily resident in New Zealand immediately before leaving New Zealand to engage in the missionary work or, as the case may be, to...