Rowe v Commissioner of State Revenue

[2023] QCAT 46

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rowe & Anor v Commissioner of State Revenue [2023] QCAT 46

PARTIES:

ROBERT JAMES ROWE

(First Applicant)

MILLY eLISABETH rOWE

(Second Applicant)

v

Commissioner of State revenue

(respondent)

APPLICATION NO/S:

GAR211-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 February 2023

HEARING DATE:

8 August 2022

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Fitzpatrick

ORDERS:

The decision of the Commissioner of State Revenue made on 29 January 2021 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – FIRST HOME OWNER GRANT – whether eligibility criteria met – where an applicant was not an Australian citizen – where Commissioner has no discretion

First Homeowners and Other Home Owners Grants Act 2000 (Qld), s25, s59, s60

Human Rights Act 2019 (Qld), s8, 13, 15, 58

Queensland Civil and Administrative Tribunal Act (Qld), s18, s19, s24

APPEARANCES & REPRESENTATION:
Applicants:	Self-represented
Respondent:	F Lubett Counsel for the Respondent.

REASONS FOR DECISION

1. The applicants, Robert James Rowe and Milly Elisabeth Rowe (Rowes) seek the Tribunal’s review of a decision of the Commissioner of State Revenue made 29 January 2021. By that decision an earlier decision made 11 December 2020 was confirmed, whereby the Commissioner refused payment to the Rowes of a HomeBuilder Grant pursuant to the First Home Owners and Other Home Owners Grant Act 2000 (Qld) (FHOG Act).

2. The Tribunal has jurisdiction to review the decision under s59 of the FHOG Act and sections 17 and 18 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

3. Section 60 of the FHOG Act provides that the Tribunal must:

   (a)hear and decide the review of the decision by way of a reconsideration of the evidence before the Commissioner when the decision was made, unless QCAT considers it necessary in the interests of justice to allow new evidence; and

   (b)decide the review of the decision in accordance with the same law that applied to the making of the original decision.

4. Further, the grounds on which the application for review is made, are limited to the grounds of objection made to the Commissioner, unless the Tribunal otherwise orders.

5. No new evidence was sought to be relied upon, and no further objection was sought to be made.

6. The Grant is a sum of $25,000.00 offered by the Federal Government to stimulate the Australian residential construction industry in the wake of the Covid-19 pandemic. Relevantly the Grant was available to eligible home owner-occupiers who contracted to buy a house and land package to a value of not more than $750,000. The contract for such work must have been executed between 4 June 2020 and 31 December 2020. The application for the Grant must have been made on or before 31 December 2020 or by a later extended date.

7. On 20 August 2020 the FHOG Act was amended to provide for the operation of the Grant scheme in Queensland. Pursuant to s25P of the FHOG Act the Commissioner is responsible for administering the Grant in Queensland.

Reasons for refusal of the Grant

1. The Commissioner refused the Rowes’ application because they did not meet the eligibility criteria set out in the Australian Government HomeBuilder Grant – Queensland administrative direction approved on 30 July 2020 (the Direction).

2. The relevant criterion is:

   Criterion 3 – applicant to be an Australian citizen

   31. An applicant, or if there are joint applicants – both applicants, must be an Australian citizen as at the date the application is made.

The Objections

1. The Rowes do not deny that Mrs Rowe was not an Australian citizen as at the date of the application for the Grant on 18 August 2020.

2. Their objections to the Commissioner’s first decision are set out in a letter dated 20 December 2020,[1] namely:

   (a)They entered into a comprehensive home building contract on 29 June 2020 following the Federal government’s publicity campaign in June 2020.

   (b)Although the grant was announced on 4 June 2020 online applications were not available until 9 August 2020.

   (c)The only information available at the time was on the Queensland Treasury website. There was no mention of couples being ineligible if one is an Australian citizen and the other is a permanent resident.

   (d)The contract was entered quickly so that evidence of the progress payment under the contract for the laying of the foundations could be provided at the time of the application, as required.

   (e)There has been no reference made to paragraph 31 of the Administrative Direction or any link to a copy of this document throughout the entire application process.  This document, which clearly spells out the eligibility criteria for the Grant, was not made freely available to the public at the time of the initial launch of the scheme and is still not easily accessible to the general public.  In contrast the Administrative Direction that establishes the basis for the Regional Home Building Boost Grant is and was much more easily accessible.  It also has very relaxed eligibility criteria around citizenship for couples.

   (f)The omission of eligibility criteria in the initial media release for the Grant, including misleading information on the website itself has cost them dearly.

   (g)Had the issue of Mrs Rowe not being an Australian citizen been brought to their attention earlier, they would have had more time to rectify the situation, including steps for Mrs Rowe to become an Australian citizen and obtain the Grant. It took 4 months for their application to be processed and then declined, affecting their options to attend to citizenship for Mrs Rowe or to re-apply with Mr Rowe as sole owner of the property.

   (h)Mr and Mrs Rowe are retired pensioners with no income streams left and they were counting on the Grant to finance finishing touches to the property. To deny the Grant when they are most reliant on the government for support is “unpatriotic” or “unconstitutional” and is a flagrant form of “discrimination”. Mr Rowe’s point is that he is an Australian citizen and should be entitled to the benefits available to Australian citizens and that he should not be treated differently because he is married to a permanent resident.

   [1] Section 21 documents, page 66-70.

3. The key problem for Mr and Mrs Rowe is that they entered into a contract for the construction of a house before they knew the eligibility criteria for the Grant. They contend that at the time the contract was entered into the Direction had not been published and they could have no way of knowing that they were not eligible for the Grant.

4. I accept that the construction contract was entered on 29 June 2020. The Federal Government specified that the first date for contracts to be entered was 4 June 2020. The eligibility criteria set out in the Direction was not approved or published on the Commissioner’s website until 30 July 2020. However, the information was available by the time of the application on 18 August 2020.

The Commissioner’s Response

1. The Commissioner says that:

   (a)The law which applied at the date of the original decision on 11 December 2020 is the FHOG Act, current as at 20 August 2020.

   (b)As at 11 December 2020 the FHOG Act and Direction set out the eligibility criteria, which was applied by the Commissioner.

   (c)The Commissioner has no discretion to depart from the Act and Direction.

   (d)The application period for the Grant was extended to 14 April 2021 enabling the Rowes to reapply if they subsequently met the criteria. The Rowes had several months to do so after being advised of the original decision.

   (e)It was incumbent on Mr and Mrs Rowe to ensure they met the eligibility criteria as at the date of their application. They could have read the Direction before making the application. They were in any event on notice as to the citizenship issue because they were asked for evidence of citizenship as part of the application.

   (f)It is an irrelevant consideration for the Commission and for the Tribunal to take into account that Mr and Mrs Rowe were not aware of the eligibility criteria.

Consideration

1. One cannot doubt the unfairness to the Rowes in entering into a construction contract, expecting to be able to access the Grant based on information available at the time the contract was entered, but only later finding out that they did not meet the eligibility criteria. Given that the Federal government plainly intended access to the scheme to be limited that should have been apparent to people when entering contracts, not just when making application for the Grant.

2. However, in conducting this review I am bound to stand in the shoes of the Commissioner and to apply the law that applied at the time of the decision.

3. The law at the time of the decision does not include any discretion on the part of the Commissioner to take into account unfair circumstances. It is a simple question of whether the eligibility criteria are met or not.

4. Plainly the eligibility criteria were not met.

Human Rights considerations

1. The Tribunal is acting in an administrative capacity and is bound to comply with the Human Rights Act 2019 (Qld) (HR Act) in conducting this Review. It is bound to consider Mr and Mrs Rowe’s human rights, relevantly the right to recognition and equality before the law[2]. Further, as required by section 48 of the Act the Tribunal must interpret statutory provisions to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.

   [2]Human Rights Act 2019 (Qld), s15.

2. I have received no submissions from the parties in relation to human rights.

3. Arguably, any decision of the Tribunal confirming the decision of the Commissioner limits Mr Rowe’s right to equal treatment with other Australian citizens making an application for a Grant under the FHOG Act because of the citizenship status of his wife, and limits Mrs Rowe’s right to equal treatment because of her status as a permanent resident. Any limitation of Mr and Mrs Rowe’s human rights arises from the terms of the FHOG Act, such that the Commissioner and the Tribunal in the Commissioner’s stead, could not make a different decision.[3]In that circumstance any limitation of Mr and Mrs Rowe’s human rights is reasonable and justified within the terms of the HR Act.[4]

   [3] Ibid. s58(2).

   [4] Ibid. s8(b).

4. As to s48 of the HR Act, the purpose of the relevant provisions of the FHOG Act is for the administration of a scheme for the provision of home builder grants in limited specified circumstances. There is no ambiguity in the Act which might engage s48 of the HR Act.

Conclusion

1. For these reasons the decision of the Commissioner is confirmed.