Ahmed and Secretary, Department of Family and Community Services

[2005] AATA 19

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 19

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/825

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ABU AHMED

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO

Date11 January 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Rear Admiral A R Horton AO, Member  

CATCHWORDS

SOCIAL SECURITY – Legislation in respect of Australian residency – New Zealand citizen – residence qualifications post 26 February 2001 – requirement to be a protected special category visa holder – consideration as to whether Applicant commenced residing in Australia during period of 3 months beginning 26 February 2001 – consideration of whether Applicant’s period in Australia from 21 May 2001 to 17 June 2001 met residency requirements – residence qualifications not satisfied – decision affirmed that Applicant is not qualified for an Australian Residence Certificate – decision under review affirmed. 

Migration Act 1958 – section 32

Social Security Act 1991 – section 7

Taslim v Secretary, Department of Family and Community Services [2004] FCA 789

Re Taslim and Secretary, Department of Family and Community Services [2004] AATA 28 (16 January 2004)

Re Schlageter and Secretary to the Department of Social Security (AAT 1988, 7 February 1985)

Re Mengi and Director-General of Social Security (AAT 1842, 25 October 1984)   

REASONS FOR DECISION

11 January 2004   REAR ADMIRAL A R HORTON AO        

1.      This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 15 June 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink on 19 February 2004 that rejected a claim for a certificate of Australian residence by Dr Abu Ahmed (“the Applicant”) in that he was not a protected Special Category Visa (“SCV”) holder as required under the Social Security Act 1991 (“the Act”).

2. Dr Ahmed, a New Zealand citizen, arrived in Australia on 21 May 2001, remaining in this country until his return to New Zealand on 17 June 2001. The decision of the Tribunal is that Dr Ahmed did not commence residing in Australia during this period, as required under subsection 7(2C) of the Act, as further interpreted under subsections 7(2E) and 7(3) and hence he is not a protected SCV holder and accordingly does not meet the criteria for an Australian resident as defined in subsection 7(2) of the Act.

3. At the hearing, Dr Ahmed was self represented. Ms Jane Green appeared for the Secretary, Department of Family and Community Services (“the Respondent”). The Tribunal was assisted by Mr Sirajul Haque, an interpreter fluent in the Bengali language. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T docs), and a Statement of Facts and Contentions by the Respondent dated 16 December 2004 (Exhibit R1) with a letter of 28 August 2001 from Centrelink to Mr Ahmed being attached. 

BACKGROUND AND LEGISLATION

4.        Dr Ahmed arrived in New Zealand from Bangladesh in 1996, having previously qualified as a medical practitioner.  On 21 May 2001 he travelled to Australia on a one-way air ticket, where he lived in sub-let accommodation in Sydney.  In this period, he obtained various documents, registered for work, obtained a tax file number and enrolled to study for the Australian Medical Council (“AMC”) examination, in order to gain the necessary qualifications to enable him to practice medicine in Australia.  His wife and child remained in New Zealand, the former having applied for a Subclass 461 (New Zealand citizen sponsored temporary residence visa) through the Australian High Commission on 18 May.  At that time, their daughter was some five months old.

5.        On 17 June 2001, Dr Ahmed returned to New Zealand.  He subsequently visited Australia for 9 days in May 2003 and 4 days in September 2003.  The former visit was to sit the AMC Part 1 exam which he passed and which gave him the authority to undertake certain tasks in the hospital environment, the second occasion being an interview for a training position in Adelaide.  With his wife and daughter he arrived in Australia on 7 October 2003 and settled in Adelaide.  Employment was not forthcoming on completion of his training program and the family moved to Sydney in early 2004.

6. In order to qualify for various social security benefits, an Applicant must be an Australian resident, the criteria being in section 7 of the Act, the relevant subsections in respect of this matter being:

“SECT 7

Australian residence definitions [see Note 10]

7(1)      In this Act, unless the contrary intention appears:

Australian resident has the meaning given by subsection (2).          

holder, in relation to a visa, has the same meaning as in the Migration Act 1958.

permanent visa, special category visa, special purpose visa, temporary visa and visa have the same meaning as in the Migration Act 1958.

protected SCV holder has the meaning given by subsections (2A), (2B), (2C) and (2D).

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(2C)A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

(a)       the time is during the period of 3 years beginning on 26 February 2001; or

(b)       the time is after the end of that period, and either:

(i) a determination under subsection (2E) is in force in respect of the person; or

(ii)       …

7(2E)A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

(a)       …

(b) the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

7(2F) If a person makes an application under subsection (2E), the Secretary must make the determination if:

(a) the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and

(b) the application was made within whichever of the following periods is applicable:

(i)        …

(ii) if paragraph (2E)(b) applies to the person—the period of 3 years beginning on 26 February 2001.

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.”

7. Dr Ahmed is not an Australian citizen and not the holder of a permanent visa, but as a New Zealand citizen, he is a SCV holder. He is not a protected SCV holder under subsections 7(2A) and 7(2B) of the Act as he had never landed in Australia prior to 21 May 2001. Whilst his SCV allows him to remain and work in Australia indefinitely, he is not eligible for social security benefits pursuant to a policy change introduced by the governments of Australia and New Zealand from 26 February 2001, unless he is a protected SCV holder, or has been granted a “status” certificate by Centrelink in accordance with a “savings provision of three months”  from 27 February 2001, as incorporated  in that decision by governments.  Dr Ahmed must therefore seek consideration for such a certificate, the Australian Residence Certificate, in accordance with the provisions of subsections 7(2E)(b), 7(2F)(b)(ii) and 7(3) as detailed in paragraph 6 above.   

EVIDENCE 

8.        Dr Ahmed gave evidence that his purpose in migrating to Australia was to obtain recognition of his medical qualifications in a reasonable time, that he had a number of friends living in Australia, and because of the quality of life.  

9.        In a submission by him to the SSAT, he referred to his decision in December 2000 to migrate to Australia.  An itinerary prepared by Guru Travel International in respect of proposed air travel (T2 page 9d) dated 11 December 2000 refers to a flight for Dr Ahmed and his wife on 17 February 2001.   His submission states that this flight was deferred as his wife was “in her late pregnancy and later, the child had acute health problems”.  A second itinerary by Guru Travel International dated 3 May 2001 (T21 page 91) refers to ticketing arrangement for Mr Ahmed, Mrs Prodhan (as his wife was then known) and their daughter to travel to Australia on 23 May.    

10.     In any event, Dr Ahmed arrived in Australia on his own on 21 May 2001 to commence the necessary processes because his wife was unable to travel whilst awaiting approval for the Subclass 461 visa.  Such a visa was recommended by the Australian High Commission, as a visitor visa would only have a three months validity, but was not applied for until 18 May, three days before Mr Ahmed’s  departure. 

11.      Prior to his arrival in Sydney, Dr Ahmed cancelled the lease of the property in which he was living in Auckland, his wife and daughter being accommodated by an uncle.  He also closed a bank account in New Zealand.  In Sydney he was accommodated in a sub-let situation at Surry Hills, where he paid the tenant for his board and lodging.  He gave evidence that it was not logical to consider permanent accommodation at this time, pending resolution of future employment and the location of such employment.  He opened an Australian bank account, depositing about $1000.  He obtained a NSW driving licence and a tax file number, registered for employment, and enrolled with the AMC for recognition of his medical qualifications, his initial approach to AMC being on 22 May.   It is assumed that he sought verification of his residency status from Centrelink in this period, the Centrelink letter of 28 August 2001 at Exhibit R1 stating that he was not eligible.

12.      The High Commission in Wellington required a number of actions from both he and his wife in order to consider the visa application, and hence he decided that an early decision was unlikely.  Further, there was no immediate prospect of employment and he returned to New Zealand on 17 June 2001, resuming the lease on the earlier rented property.  His evidence was that at the same time, child support payments, which had ceased when he travelled to Australia, were resumed.  His evidence was also that had employment in Australia been forthcoming in that first visit, he would have stayed.

13.      Mrs Ahmed was granted her visa on 21 December 2001, at which time the family could have taken up residence in Australia.  This did not happen, Dr Ahmed stating that his wife was then involved in a number of courses relating to child care in order that she might work in that industry.  He himself undertook employment as he could find it, including taxi driving, and studied for the AMC examinations.   He did not consider that he had any obligation to move to Australia at that time, as he was yet to be granted the authority to practice medicine in this country and from discussions with Centrelink International New Zealand office staff, was of the view that he had until 21 February 2004 to take up permanent residence.    

14.      A Centrelink file note of 28 August 2001 states “…rejection letter (of residency) sent as claimant departed  Australia.  17/06/01. Re-consider issue of certificate if claimant returns and reclaims before 26/2 04.”    Dr Ahmed could not recall whether he had received such a letter, but he was aware from his discussions with Centrelink staff that “there would be no problems if he returned by 21 February  2004”.

15.      Dr Ahmed received advice from AMC in July 2003 that he had passed the first series of examinations, and he applied for various positions within the hospital environment.  At this time he was using a friend in Queensland as a post box.  In September 2003 he attended an interview in Australia, and the following month moved with his family to Adelaide.  He was unable to find suitable employment after an initial training period where he acted in an “observation” capacity, and the family moved to Sydney, where he has been able to utilise the facilities of Westmead Hospital to assist his studies for full recognition by AMC.  Dr Ahmed has an uncle in Sydney as well as many friends.  He advised the Tribunal that he has now gained employment in a Melbourne hospital, and will be entitled to a provider number.

16.      Reference was made in earlier documentation and in the SSAT decision, to some $25,000 being invested in a flower business in New Zealand at the time of Dr Ahmed’s first visit to Australia.  Dr Ahmed stated that his involvement in this business had concluded some time earlier and the money had been returned to Bangladesh to await a permanent move to Australia.

SUBMISSIONS

17.      Dr Ahmed stated that he had provided all relevant information as required by Centrelink in respect of obtaining permanent residency status, such information and submissions now being before the Tribunal.  Dr Ahmed further referred to the circumstances of two friends of his who had been granted permanent residency, and whose circumstances were, in his view, similar to his situation, and this reflected different interpretations of the legislation by different officers in Centrelink.  He further considered the advice that there would be no problems provided he returned to Australia before 26 February 2004 to have given him the flexibility to return at an opportune time within that timescale.  

18.      In response, Ms Green stated that consideration by Centrelink staff of applications for permanent residency would be based on the particular circumstances of the Applicant, and the circumstances in the cases referred to by Dr Ahmed may well have been different to those of Dr Ahmed.  Ms Green submitted that in the light of the tightened legislation from 26 February 2001, subsection 7(2E)(b) was relevant to the circumstances of Dr Ahmed, in that it provided a 3 month “window of opportunity” from 26 February 2001 in which Dr Ahmed must have commenced residency. Subsection 7(3) defined the criteria that must be considered when deciding whether a person is residing in Australia, and in the view of the Respondent, the evidence of Dr Ahmed did not meet that criteria.

19.      The Respondent addressed each of these criteria in a Statement of Facts and Contentions (Exhibit R1).  In respect of the nature of accommodation, it was submitted that there was no permanence in the arrangements made in May 2001, citing Re Taslim and Secretary, Department of Family and Community Services [2004] AATA 28 (16 January 2004) wherein the Tribunal, in finding against the Applicant, stated that “the term residence encompasses temporal and emotional factors. Thus to establish residence there must be a physical presence in the particular place as well as the intention to treat that place as ‘home’”, that decision being upheld by Beaumont J in Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 (22 June 2004).

20.      The Respondent also referred the Tribunal to Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985), wherein the Tribunal found “…for a person to be residing in a country, he must have a settled home in that country.  It need not be his only home, but it must have some degree of permanence”.  In the case of Dr Ahmed, the Respondent considered there was no indication of an intent to purchase property or to establish any form of lease.  Further the sale of some items of furniture did not, in itself, indicate an immediate intention to establish a permanent home in Australia. In the view of the Respondent, the evidence indicated that in May 2001, Dr Ahmed was a resident of New Zealand, visiting Australia.

21.      The Respondent also drew on Re Mengi and Director-General of Social Security (AAT 1842, 25 October 1984), which called for the whole environment, in respect of family, to be considered.   In the case of Dr Ahmed, the Respondent submitted that there was no evidence of family ties in Australia in May 2001, the strongest ties being to his wife and child in New Zealand. 

22. As to other factors in subsection 7(3), the Respondent submitted that in May 2001, Dr Ahmed had no business ties in Australia, and the opening of a bank account with limited resources and no other assets was not evidence of permanent residency at that time. Nor was registration as a job seeker, and the obtaining of a driving licence evidence of permanent residency. His subsequent visits to Australia until taking up permanent residency in October 2003, were limited to 2 occasions for a total of 13 days. The Respondent accepted that Dr Ahmed may have had plans to eventually reside in Australia, but he was not doing so in May 2001. Finally, the Respondent suggested that the nature and timing of his visit to Australia on 21 May 2001, and the transactions that took place at that time, indicated no long term planning and preparation to settle permanently in Australia.

ANALYSIS AND DECISION

23.      The circumstances in Re Taslim (supra) are quite similar to those in this matter.  Indeed Mr Taslim arrived in Australia on the same day as Dr Ahmed, although his subsequent stay was much shorter (6 days).  As did Mr Taslim, Dr Ahmed lived in temporary accommodation during his visit to Australia, in his case it being in a sub-let arrangement with a tenant in a residence at Surry Hills.  It might be argued that it is unreasonable to expect him to be in a position to arrange permanent accommodation without knowledge of likely employment and the area in which this might be obtained.  In the view of the Tribunal such an argument merely emphasises, when other factors are considered, that no realistic planning for permanent residency in Australia had taken place.

24.      In his evidence, Dr Ahmed referred to the need to obtain appropriate authority to practice his profession in Australia.  He referred to obtaining relevant information from the AMC website, yet he did not apply to AMC until 22 May 2001, the day after he arrived in Australia.  Notwithstanding the travel itineries prepared by Guru Travel International, the application by his wife for a subclass 461 visa was not submitted until three days before his departure for Australia, this again seemingly reflecting a “last minute” approach to the issue of establishing Australian residency.  That his daughter had been born earlier that year, and had health problems has no real bearing on the matter, his family being unable to travel to Australia  in the absence of an appropriate visa.   The Tribunal gives little weight to the decision to give up the lease of his rental accommodation in Auckland, particularly noting that this lease was renewed on his return on 17 June 2001. 

25.      Whilst in Australia for that visit, there is no evidence before the Tribunal of the attempts by Dr Ahmed to obtain employment.  Registration as a job seeker in itself is no evidence that he actively sought employment.   Nor is the transfer of limited funds to Australia, and the Tribunal notes the evidence of Dr Ahmed that he retained a considerable sum in Bangladesh.  Dr Ahmed had no assets in Australia.  He gave evidence that he had numerous friends in Australia, but at the time, his family continued to reside in New Zealand, and on receipt of his wife’s visa in December 2001, the family did not seek to take up residence in Australia.  That Dr Ahmed chose to use an intermediary in Queensland to receive mail on his behalf, with whatever delays this might entail, would seem to further confirm that he was in no hurry to seek residency in Australia.  Of relevance is that there was no specific requirement for Dr Ahmed to remain in New Zealand whilst preparing for AMC examinations, and such preparation could equally have been made whilst resident in Australia.  

26.      In Re Taslim, the Tribunal did not consider a note on file stating “27/5/01. Reconsider issue of Certificate if claimant returns and reclaims before 26/02/04” to be relevant. As referred to in paragraph 14 above, a similar note by the same author (Christian Elliston) is on Dr Ahmed’s file. The evidence of Dr Ahmed was to the effect that from discussions with Centrelink staff he believed there would be no problems if he returned to Australia by 26 February 2004, and planned accordingly. The Tribunal is unable to accept this explanation, as the letter to him from Centrelink of the same date (Exhibit R1) specifically states that following assessment, he does not satisfy the definition of an Australian resident as defined under social security law at any time between 26 February 2001 and 26 May 2001. Subsection 7(2F) of the Act permits a claim in respect of the 3 month period from 26 February 2001 to be made in the subsequent 3 years, but it is reasonable to assume that the primary decision would hold unless new evidence was to hand.

27. On the evidence before it, the Tribunal is satisfied that Dr Ahmed did not commence residing in Australia during the period of 3 months beginning 26 May 2001. His visit was of a temporary nature, and the circumstances of that visit do not meet the requirements that must be considered as defined in subsection 7(3) of the Act. He cannot be considered a protected special category visa holder and hence he is not qualified for an Australian Resident Certificate.

28.      The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Neil Glaser
  Associate

Date of Hearing  21 December 2004 
Date of Decision  11 January 2005
Representative for the Applicant               Self-represented   
Advocate for the Respondent                    Ms Jane Green