Abdou and Secretary, Department of Family and Community Services

[2003] AATA 731

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 731

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1574

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOSEPH ABDOU

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date1 August 2003

PlaceSydney

Decision The decision under review is affirmed.

[sgd]  Mr S. Webb, Member 

CATCHWORDS

SOCIAL SECURITY - Newstart Mature Age Allowance - cancellation of Allowance - Australian residency requirements - not an Australian resident - decision affirmed

LEGISLATION

Social Security Act 1991 sections 7, 660YBA

Social Security (Administration) Act 1999 section 29

AUTHORITIES

Hafza v Director-General of Social Security (1985) 6 FCR 444

Re Distefano and Secretary, Department of Family and Community Services (AAT 11080, 19 July 1996)

Re Maniatis and Secretary, Department of Family and Community Services (1999) AATA 89

Re Galati and Director General of Social Security (1984) 6 ALD 538

Re Secretary, Department of Family and Community Services and Papagiannis (1999) 56 ALD 765

Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177

REASONS FOR DECISION

1 August 2003 Mr S. Webb, Member        

1.      This application by Mr Joseph Abdou (“the Applicant”) is for review of the decision of the Social Security Appeals Tribunal (“the SSAT”), dated 4 October 2002, to affirm the decision of an authorised review officer (“the ARO”), dated 3 September 2002, to cancel his Newstart Mature Age Allowance (T26).

2.      The Applicant gave oral evidence and represented himself at the hearing in this matter in Sydney on 6 June 2003.  The Secretary, Department of Family and Community Services (“the Respondent”) was represented by Mr Emerson Thistlethwaite from Centrelink’s Advocacy and Administrative Law team.

3.      The following materials were placed in evidence before the Tribunal.

ExhibitDescription

T1 to T31Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

A1Centrelink Mature Age Allowance statement dated 19 February 2001.

A2Centrelink letter dated 5 February 2001.

A3Centrelink note dated 31 January 2002.

R1Respondent’s Statement of Facts and Contentions dated 15 May 2003.

issues

4.      The issues before the Tribunal are:

(a)whether the Applicant was an Australian resident during the period from 1 August 2002 to 1 December 2002; and

(b)whether the decision to cancel the Applicant’s Newstart Mature Age Allowance was the correct and preferable decision.

legislation

5.      The relevant legislation in this matter is the Social Security Act 1991 (“the Act”), especially sections 7 and 660YBA, and the Social Security (Administration ) Act 1999 (“the SSA Act”), especially section 29.

evidence of the applicant

6.      The Tribunal had before it statements by the Applicant (T4, T20) who also gave oral evidence.

7.      The Applicant told the Tribunal that he migrated to Australia in 1957 from Lebanon.  He said he worked in a glass factory during the day and as a musician at night for a period of about 20 years and subsequently operated a market stall at the Flemington and Wollongong markets for about ten years.  He explained that he kept his stock in a warehouse next to his residence in Smithfield, where he lived at that time with his wife and three children.  The Applicant informed the Tribunal that his warehouse was burgled in 1986 and he lost $20,000 worth of stock that was not insured.  He said he reported the matter to the police, but nothing was done despite his neighbour witnessing the burglary and identifying the culprits.  The Applicant said that he purchased additional stock and continued to trade, albeit with difficulty.

8.      The Applicant told the Tribunal he and his wife divorced in 1985 and his wife returned to Lebanon with the three children.  He said the Smithfield house had been sold and the assets  divided between them in 1986.  He informed the Tribunal that he moved to Brisbane after the settlement and purchased a six-bedroom house, where he lived alone for a period while operating a market stall in Brisbane.  He said he could not cope and sold the house, placing the sale proceeds in a Citibank term deposit investment account.  The Applicant told the Tribunal he went to Asia and Lebanon in 1987 for a one-year period, living on the interest from his investment account. He gave evidence that since 1987 he has only returned briefly to Australia, staying in guesthouses. He said he is able to “forget the pain of the divorce” when he is a tourist travelling overseas.

9.      The Applicant informed the Tribunal that interest rates reduced in 1995 and he visited Darwin with the intention of purchasing a property, but found it too hot.  He said he travelled to Hobart and purchased a four-bedroom house on the Derwent River and a villa home site in Bridgewater instead.  He said he lived in the house while he refurbished it.  The Applicant said that he suffered from arthritis and rheumatism in the Tasmanian winter of 1995 and was granted a Disability Support Pension.  He told the Tribunal that he returned to Sydney in December 1995 to celebrate Christmas with his friends.  On his return to Tasmania he said he found that his house had been burgled.  He reported the matter to the police but nothing was done despite the culprit being identified.  He gave evidence that he placed the house on the market in early 1996 and continued to reside there until the onset of winter in 1996. 

10.     The Applicant told the Tribunal that he informed Centrelink that he intended to go overseas in 1996 and was informed he could do so for a one-year period.  He related that he did so and spent “two or three months in Lebanon and nine or ten months in South East Asia” where he was “always with women”..  The Applicant informed the Tribunal that he was given a slip by the Glenorchy Centrelink office on which was written the date by which he was required to return.  At the time, he said, he had transferred his money from the Citibank term deposit account to an account with the ANZ Bank.  The Applicant told the Tribunal that he had arranged with a real estate agent for the house to be rented while he was away and for the rental monies to be deposited into his ANZ bank account.  He said he was very disappointed to find on his return to Australia in 1997 that no rent had been paid.  He said that the tenants had ruined his house and would neither pay rent nor vacate the premises.  The Applicant explained that he sought reparations from the real estate agent and attempted to recover the outstanding rent in the Hobart Small Claims Court without success.  He said he moved back into the house once the tenants were evicted and commenced refurbishment works again.  He said he continued to reside in the house until it was sold in 1998.

11.     The Applicant told the Tribunal that he returned to Sydney in 1998 after the sale of his house in Tasmania and lived with his sister for a while, before moving into a guesthouse in Villawood.  He informed the Tribunal that he has a brother who lives in Bankstown.  The Applicant gave evidence that neither his sister nor his brother will speak with him.

12.     The Applicant told the Tribunal that since 1998 he has spent most of the time overseas, returning to Australia only once or twice each year.  He gave evidence that prior to each departure he has informed Centrelink of his plans and has been provided with a date by which he must return (Exhibit A3).  He stated that he has always returned by the date specified by Centrelink and has sought Centrelink’s permission before making further travel plans.

13.     The Applicant informed the Tribunal that in 2001 he purchased and furnished an apartment in Lebanon, where he resides, alone, when he is in Lebanon.  He explained he has family in Lebanon and “wants to leave this country and go back home” to Lebanon as soon as possible.  He gave evidence that he last voted in an Australian election in 1997.  The Applicant told the Tribunal that his ANZ Bank account remains open and Centrelink payments comprise his sole income.  He informed the Tribunal that he has friends in Australia.  He stated that he is aware of other people living in Lebanon who receive Australian pensions and would like to do the same.

14.     The Applicant informed the Tribunal that his 32-year old son is qualified as a lawyer and is living in Australia.  He explained that one of his daughters is married and also living in Australia.  The Applicant gave evidence that neither of his children will speak to him or have anything to do with him and he does not know where they live nor have any contact with them.  He explained that his problems were the product of a police conspiracy that he did not understand.

submissions

15.     The Tribunal carefully considered all of the evidence, the submissions of the parties, relevant caselaw and legislation.

16.     The Applicant submitted that the decision to cut off his Newstart Mature Age Allowance was unfair, contending that he had complied with Centrelink’s instructions.  In his submission, the Applicant noted that he had received information from Centrelink concerning his ability to travel overseas without adversely affecting his Centrelink payments (Exhibit A2), specifically in relation to the dates of departure and return in 2002 (Exhibit A3).  He submitted that he believed what he was told, travelled overseas and returned to Australia within the specified time. 

17.     The Applicant submitted that on 29 July 2002 a Centrelink officer told him, following his return to Australia on 27 July 2002, that he could again leave Australia and travel overseas.  It was his contention that he believed the Centrelink officer and purchased a return ticket for air travel to Malaysia and Lebanon departing on 2 or 3 August 2002 and returning six months thereafter.  Subsequently, on presenting his ticket of passage to Centrelink on 1 August 2002, the Applicant claims he was told that his Newstart Mature Age Allowance would be cut-off because he was not a resident of Australia.  This, he contended, was unfair and contradicted previous information provided to him verbally and in writing by Centrelink.  The Applicant stated he had not been given formal written notification of the decision nor the reasons for it by Centrelink and contended this, too, was unfair. 

18.     The Applicant submitted that he decided to remain in Australia until he was granted an Age Pension and cancelled his ticket, incurring a cancellation fee of $280.  This, he submitted, was unfair because he had acted on the basis of Centrelink’s advice and, consequently, incurred a fee to his financial detriment.  He submitted that the cancellation fee should be reimbursed to him by Centrelink.

19.     The Applicant submitted that he did not know that it was necessary to be a resident of Australia to receive Centrelink payments as he had not been informed of this requirement.  He contended that he knew of other people living in Lebanon who were drawing Australian Centrelink payments without difficulty and did not understand why he should be singled out and treated differently from others.

20. Mr Thistlethwaite, for the Respondent, submitted that the Applicant did not satisfy the Australian residency requirements pursuant to section 660YBA of the Act during the relevant period, in consequence of which he was not qualified for Mature Age Allowance during that period. He contended that Centrelink payments are not payable to persons who are not Australian residents pursuant to section 29 of the SSA Act.

21. Mr Thistlethwaite contended that the Applicant cannot be considered to be an Australian resident during the relevant period pursuant to subsection 7(2) of the Act. He submitted that the Applicant resided in temporary guest house accommodation during the relevant period (T2 folios 4 and 5, T23 folio 78) and maintained a permanent home in Lebanon (T4 folio 9, T8 folio 16, T9 folio 19, T12 folio 33 and T23 folio 78). He noted that the Applicant was not on speaking terms with his sister and brother in Australia during and after the relevant period, and chose to stay in a guesthouse rather than with his family members in Australia.

22.     Mr Thistlethwaite submitted that the Applicant has no business, financial or employment ties with Australia other than a single ANZ Bank account into which his pension is paid and his only assets in Australia were two vacant blocks in Tasmania, which he intended to sell.  He contended that the Applicant frequently travelled outside Australia, spending most of his time overseas, and had clearly expressed his intention to return to his home in Lebanon as soon as possible. 

23.     In the Respondent’s submission, the sole purpose of the Applicant’s time spent in Australia was to ensure that he continued to receive Centrelink payments.

findings and consideration of the issues

24.     The Tribunal makes the following findings of fact:

(a)The Applicant was granted Australian citizenship on 28 January 1963 (T15, folio 49).

(b)The Applicant migrated to Australia from Lebanon in 1957 (T19, folio 72) and worked until 1987.

(c)The Applicant has a son and a daughter living in Australia with whom he has no contact.

(d)The Applicant has a brother and a sister living in Sydney with whom he has difficulty communicating.

(e)The Applicant owns vacant land in Bridgewater Tasmania that he intends to sell.  He has no other assets or investments in Australia.

(f)The Applicant operates a single ANZ Bank account in Australia into which his Centrelink payments are deposited.

(g)The Applicant was not employed during the relevant period and had no business interests in Australia during the relevant period.

(h)The Applicant owns a unit in Lebanon that he retains as his own residence.  

(i)The Applicant was granted a Mature Age Allowance on 1 February 2001.

(j)On 31 January 2002 the Applicant informed Centrelink of his intention to travel overseas and was informed by a Centrelink Officer that he could do so without affecting his Mature Age Allowance so long as he returned by 29 July 2002 (Exhibit A3). 

(k)The Applicant returned to Australia on 27 July 2002 and informed Centrelink on 29 July 2002 (T3).

(l)On 1 August 2002 the Applicant returned to Centrelink with his travel ticket and was advised that his Mature Age Allowance would be cut-off because he did not satisfy the residence requirements of section 7 of the Act (T5, folios 10 and 11). Centrelink wrote to the Applicant on 1 August 2002 and informed him his Mature Age Allowance was cancelled (T6, folios 12 to 13a).

(m)The Applicant cancelled his travel ticket, incurring a cancellation fee of $280, and remained in Australia.  The Applicant has not departed Australia since his return on 27 July 2002, despite his stated intention to do so at the earliest opportunity.

25.     The Tribunal notes that the Applicant was not cooperative during the hearing, giving his evidence selectively and by turns attempting to cajole or criticise the Tribunal in response to questioning.

26. The first issue for the Tribunal to determine is whether the Applicant qualified for a Mature Age Allowance during the period from 1 August 2002 to 1 December 2002 pursuant to section 660YBA of the Act. In order to so qualify the Applicant must be an Australian resident.

27. Section 7 of the Act provides:

“SECTION 7  Australian residence definitions
…

7(2)      An Australian resident is a person who:

(a)     resides in Australia; and

(b)is one of the following:         

(i)      an Australian citizen;

(ii)     the holder of a permanent visa;

(iii)    a special category visa holder who is a protected SCV   

holder.

…

7(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:

(a)   the nature of the accommodation used by the person in

Australia; and

(b)the nature and extent of the family relationships the person has in Australia; and

(c)the nature and extent of the person's employment, business or  

financial ties with Australia; and

(d)the nature and extent of the person's assets located in Australia; and

(e)        the frequency and duration of the person's travel outside Australia; and

(f)        any other matter relevant to determining whether the person intends to remain permanently in Australia.”

28. As the Applicant is an Australian citizen it is necessary to determine whether or not he resides in Australia pursuant to subsection 7(2) of the Act. For this purpose the Tribunal turns to consider the Applicant’s circumstances in relation to the matters set out at subsection 7(3) of the Act.

(a) the nature of the accommodation used by the person in Australia;

29.     The Tribunal accepts the Applicant’s evidence that he resides in temporary accommodation in the form of a room in a guesthouse, or a boarding house or a cheap hotel when he is in Australia and so finds.

(b) the nature and extent of the family relationships the person has in Australia;

30.     The Tribunal has found as a fact that the Applicant has a sister, a brother and two adult children living in Australia.  The Applicant gave evidence, which the Tribunal accepts, that he has no contact with his children and his relationships with his sister and brother have broken down.   The Applicant gave evidence that he has family in Lebanon.

(c) the nature and extent of the person's employment, business or financial ties with Australia;

31.     The Tribunal has found as a fact that the Applicant was not employed and had no business interests in Australia during the relevant period.  His financial interests in Australia during the relevant period were confined to his Mature Age Allowance and subsequently the Age Pension, which are paid into an ANZ Bank account the Applicant retains for the purpose.  The Tribunal finds that the Applicant has no other financial ties with Australia. 

(d) the nature and extent of the person's assets located in Australia;

32.     The Applicant’s only asset located in Australia is a vacant piece of land in Bridgewater, Tasmania.  The Applicant gave evidence that he has been attempting to sell this property since 1998, but without success.  There is insufficient evidence before the Tribunal to permit findings on this point.  Nonetheless the Tribunal accepts the Applicant’s claim that he intends selling the land, which is undeveloped and vacant.

(e) the frequency and duration of the person's travel outside Australia;

33.     The Tribunal accepts the Applicant’s evidence that he left Australia in 1987, after separating from his wife, and returned to Australia in 1995 when interest rates declined.  The evidence is that he purchased a house in Tasmania but found the winter cold caused him to suffer from rheumatism and arthritis, in consequence of which he claimed and was granted a Disability Support Pension in 1995. 

34.     The Tribunal has no reason to doubt the Applicant’s evidence that he placed his house in the hands of a real estate agent and left Australia in the winter of 1996 with approval from the Glenorchy Centrelink office to spend up to one year overseas, travelling to South East Asia and to Lebanon.  The Tribunal finds that the Applicant returned to Australia in late 1997 and remained in Tasmania until he was able to sell his house in early 1998, whereupon he moved to Sydney and stayed with his sister for a time.  The evidence is, and the Tribunal finds, that the Applicant departed Australia on 25 October 1997 (T18, folio 62) and 26 February 1998 (T18, folio 61).  The Applicant’s evidence was that since 1998 he has spent more time out of Australia than in Australia, only returning “once or twice each year”.  The Tribunal so finds.

35.     The Tribunal finds that the Applicant departed Australia on 24 February 2001 and returned on 11 August 2001, he departed Australia again on 19 August 2001 and returned on 20 January 2002 and subsequently departed Australia on 31 January 2002 and returned on 29 July 2002 (T19 folio 73) with the intention of departing again on 2 or 3 August 2002. 

(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.

36.     The evidence is that Centrelink informed the Applicant that he could travel overseas for period of up to 26 weeks while receiving his Mature Age Allowance (Exhibit A2).  The Tribunal finds that the Applicant informed Centrelink officers on each occasion of his travel plans prior to departure and was provided with a date by which he should return in order to ensure continuity of his Centrelink payments (Exhibit A3).  There is no evidence to indicate that the Applicant failed to return by the nominated date on each occasion and the Tribunal is satisfied that he complied with the advice he received from Centrelink officers.

37.     The Applicant’s unequivocal evidence was that he wanted to return to Lebanon at the earliest opportunity.  He stated “I want to leave this country as soon as possible and go back home”.  There is no doubt in the Tribunal’s mind that the Applicant’s brief visits to Australia, at least since 1998, were made in order to enable continuity of Centrelink payments.

38.     The Tribunal is satisfied that the Applicant has established a home in Lebanon where he has family and he owns the unit in which he lives.  The Tribunal does not accept the Applicant’s claims that his frequent travel overseas is, in effect, a holiday.  The Applicant’s claim that he engages in “tourist holidays” in South East Asia may be true, but his passport records suggest his visits to South East Asian countries are made in the context of his travels between Australia and Lebanon (T18).

39.     The Applicant has remained in Australia since Centrelink’s decision to cancel his Mature Age Allowance.  He is currently in receipt of the Age Pension, having been recognised on appeal as a returning resident, in consequence of which he must remain in Australia for a period of two years in order to remain eligible.  The Applicant’s decision to remain in Australia for the purpose of qualifying for the Age Pension must be weighed against his stated intention to return to Lebanon.

40.     The Tribunal is mindful of the authorities concerning questions of residence and notes the words of Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444 when considering the meaning of “usual place of residence” under the Social Security Act 1947 at FCR 449 to 450:

“As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever.

…

Physical presence and intention will coincide for most of the time.  But few people are always at home.  Once a person has established a home in a particular place, even involuntarily (see Inland revenue Commissioners v Lysaght (1928) AC 234 at 248 and Kiel v Kiel [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent.  The test is whether the person has retained a continuity of association with the place Levene v Inland Revenue Commissioners (1928) AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 and 149 together with an intention to return to that place and an attitude that the place remains “home” (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght and the reference by Williams J to “a home or homes” – and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises.  But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.”

41.     The Respondent relied on the cases of Re Distefano and Secretary, Department of Family and Community Services (1996) AATA 11080 and Re Maniatis and Secretary, Department of Family and Community Services (1999) AATA 99/0089. Notwithstanding that both cases may be distinguished on the facts, both deal with pertinent issues that are of relevance in the present case. In Distefano’s case the only continuity of association with Australia found on the evidence was the applicant’s periodic return to Australia from time to time for the purposes of demonstrating residence. A similar pattern of association is found on the evidence in the present case. In Maniatis’ case, the applicant intended to return to Greece after a temporary visit to Australia for the purpose of applying for a disability support pension. In the instant case the Applicant stated that he intended to return to Lebanon at the earliest opportunity once granted the Age Pension.

42.     The general concepts set out in Hafza (supra) are applicable when considering questions concerning residence under the Act. Turning first to the question of intention, the Tribunal has found as a fact that the Applicant intended returning to Lebanon at the date of the first decision in this matter and remains consistently of that mind. It is a fact, however, that he has not departed Australia since returning on 29 July 2002, but continues to reside in temporary accommodation. Physical presence, however, is not sufficient to establish Australian residency. The Tribunal notes that the Applicant referred to Lebanon as “home” and did not at any time refer to Australia as home. It is relevant that he owns a unit in Lebanon, and there is no evidence that he intends to sell it, but resides in temporary accommodation in Australia.

43.     It must be accepted, however, that the Applicant has an on-going association with Australia.  He owns land in Tasmania, even though his evidence was that he intends to sell this land.  He claims to have friends in Sydney and to be well known in the Sydney Lebanese community, however there was no evidence before the Tribunal to corroborate this claim.  While he has no contact with his children in Australia, he has a sister and a brother living in Sydney and other family living in Lebanon.  Taking these factors into account, the Tribunal is satisfied that the Applicant has an on-going association with Australia.  There is no evidence and it does not follow, however, that the Applicant intends to return to Australia at some point in the future on a permanent basis nor that he considers Australia to be “home”.  The Applicant’s statements to the Tribunal and the preponderance of the evidence indicate an unambiguous and contrary intention.

44.     The Tribunal is satisfied that the Applicant is present in Australia for the purpose of bringing himself within the legislative qualifying criteria for the Age Pension.  This is not a relevant consideration for present purposes: Re Galati and Director General of Social Security (1984) 6 ALD 538.

45.     Despite the applicant’s physical presence in Australia, the Tribunal finds that at the date of the original decision in this matter and at all relevant times the Applicant’s intention was to satisfy Centrelink’s requirement that he return to Australia every six months for the purpose of continuing his Centrelink payments and then return to his home in Lebanon.  The Respondent submitted that the Applicant’s claim that he intends residing in Australia permanently should be considered in the light of the decision in Re Maniatis (supra). The fact is the Applicant neither made nor asserted such a claim before the Tribunal and communicated his intention and strong desire to return to Lebanon very clearly. Even had he done so, this would not carry much weight in the absence of evidence pursuant to section 7(3) of the Act concerning the arrangement of the Applicant’s affairs to that end. There is no such evidence before the Tribunal.

46.     While the Tribunal is sympathetic to the Applicant’s claims that he merely followed advice from Centrelink and should not be unfairly penalised for it, there is no relief for the applicant in the circumstances.  The Applicant has maintained a peripatetic existence pursuing activities outside Australia since 1988 and has purchased a unit in Lebanon that is his home.  In the case of Re Secretary, Department of Family and Community Services and Papagiannis (1999) 56 ALD 765 it was said at p. 771 that “[t]he best proof of a person’s intentions is their overt acts.”  In the case at hand the Tribunal places emphasis on the Applicant’s repeated statements concerning his intention and desire to return “home” to Lebanon; Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177.

47.     Considering all of the evidence, the submissions of the parties, the relevant legislation and caselaw, the Tribunal is satisfied the Applicant cannot be considered as “residing in Australia” during the relevant period.

48. In consequence, the Tribunal finds that the Applicant was not a resident of Australia pursuant to subsection 7(2) of the Act and was not, therefore, qualified for a Mature Age Allowance pursuant to section 660YBA of the Act.

49.     This being the case, the decision under review must be affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member

Signed:           C. Gregson
  Associate

Date/s of Hearing  6 June 2003
Date of Decision  1 August 2003
Solicitor for the Applicant          Self-Represented
Advocate for the Respondent   Mr E. Thistlethwaite