Al Zamal and Secretary, Department of Social Services (Social services second review)

[2017] AATA 2193

Al Zamal and Secretary, Department of Social Services (Social services second review) [2017] AATA 2193 (16 November 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2453

Re:Khalifa Al Zamal

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:16 November 2017

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 19 April 2017 is affirmed.

...............[sgd].........................................................

Professor R McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of disability support pension – whether applicant was an Australian resident – nature of accommodation – nature and extent of family relationships – nature and extent of employment, business or financial ties – nature and extent of assets – frequency and duration of travel outside Australia – any other relevant matter – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 7, 94, 1215, 1217, 1218AAA

Social Security (Administration) Act 1999 (Cth) s 80

CASES

Re Clifopoulos and Secretary, Department of Social Security [1994] AATA 282

REASONS FOR DECISION

Professor R McCallum AO, Member

16 November 2017

BACKGROUND

1. The Applicant, Mr Khalifa Al Zamal, was formerly a citizen of Kuwait.

2. Mr Al Zamal was granted a Refugee (Subclass 866) visa on 16 July 1998, and he became an Australian citizen on 9 August 2000.

3. Mr Al Zamal commenced receiving the Disability Support Pension (DSP) from 21 June 2007.

4. In his evidence before the Tribunal, Mr Al Zamal said that he was hit by a car in 2002 which brought about his permanent mental health and musculo-skeletal conditions.

5. Since 2011, Mr Al Zamal has made frequent visits to Kuwait to spend time with family members.

6. On 31 May 2016, Mr Al Zamal departed Australia for Kuwait and did not return to Australia until 28 August 2016.

7. On 31 May 2016, Mr Al Zamal’s DSP was suspended by the Department of Human Services, which is better known as Centrelink. It appears this suspension was because Mr Al Zamal had spent more than 28 days outside Australia in the last 12 months, and thus could no longer receive DSP because he did not have permanent portability of his DSP: see sections 1215, 1217 and 1218AAA of the Social Security Act 1991 (Cth) (the SS Act).

8. Just after returning to Australia, Mr Al Zamal visited Centrelink on 29 August 2016 to inquire about the suspension of his DSP.

9. On 31 August 2016, Centrelink cancelled Mr Al Zamal’s DSP because it determined that he was no longer an Australian resident.

10. Mr Al Zamal sought review from an Authorised Review Officer (ARO), however on 19 October 2016 the ARO affirmed Centrelink’s decision.

11. Mr Al Zamal sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT), which is known as an AAT first review (AAT1).

12. On 19 April 2017, the AAT1 affirmed Centrelink’s decision.

    THE RELEVANT LEGISLATION

13. In the matter before me, the relevant provisions are contained in the Social Security (Administration) Act 1999 (Cth) (the Administration Act), and in the SS Act.

14. Mr Al Zamal’s DSP was cancelled from 31 August 2016. The power to cancel a social security payment, which covers DSP, is found in section 80(1) of the Administration Act which provides as follows:

    80  Cancellation or suspension determination

    (1)       If the Secretary is satisfied that a social security payment is being, or has   been, paid to a person:

    (a)       who is not, or was not, qualified for the payment; or

    (b)       to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

15. Therefore, I am required to determine whether on 31 August 2016, Mr Al Zamal’s DSP was correctly cancelled because on that date he was not an Australian resident.

16. Section 94 of the SS Act sets out the qualifications for DSP. In Mr Al Zamal’s circumstances, section 94(1)(ea) relevantly provides as follows:

    94  Qualification for disability support pension

    (1)       A person is qualified for disability support pension if:

    …

    (ea)     one of the following applies:

    (i)       the person is an Australian resident;

    (ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

    (ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

17. For the sake of completeness, I note that Mr Al Zamal did not suggest that subparagraphs (ia) or (ii) of section 94(1)(ea) were applicable to him.

18. For the purposes of social security law, an Australian resident is relevantly defined in section 7 of the SS Act as follows:

    7  Australian residence definitions

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

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

    …

    (2)       An Australian resident is a person who:

    (a)       resides in Australia; and

    (b)       is one of the following:

    (i)        an Australian citizen;

    …

    (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.

    THE ISSUE BEFORE THE TRIBUNAL

19. Mr Al Zamal is an Australian citizen and thus he satisfies section 7(2)(b)(i) of the SS Act.

20. However, Mr Al Zamal must also satisfy section 7(2)(a) of the SS Act by showing that on 31 August 2016, he was a person who is residing in Australia.

    THE HEARING

21. Mr Al Zamal attended the hearing and represented himself. He gave evidence by affirmation with the assistance of an interpreter in the Arabic language.

    CONSIDERATION

22. The issue before the Tribunal is whether Mr Al Zamal’s DSP was correctly cancelled on 31 August 2016.

23. Centrelink asserts that on that date, Mr Al Zamal was not residing in Australia in accordance with section 7(2)(a) of the SS Act.

24. The opening words of section 7(3) of the SS Act require me, when determining whether Mr Al Zamal resided in Australia on 31 August 2016, to “have regard to” a series of matters which are enunciated in six paragraphs which are set out in section 7(3) of the SS Act. In other words, I am required to have regard to the matters specified in section 7(3) paragraphs (a) to (f) of the SS Act.

25. I appreciate that the words “have regard to” do not limit my inquiry to these six paragraphs. Rather, I am required to examine all relevant matters concerning whether or not Mr Al Zamal was residing in Australia on 31 August 2016. These relevant matters obviously include the ordinary concept of residence.

26. In Re Clifopoulos and Secretary, Department of Social Security [1994] AATA 282, Deputy President McDonald explained the approach to be taken when interpreting section 7(3) of the SS Act. Deputy President McDonald said:

    17. The principles set out above [that is in section 7(3) of the SS Act] codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that onstitute the criteria will vary in each case. In the end, as is apparent from the wording in section 7(3)(f), the criteria are there to guide the decision-maker in determining the person’s intention as to the place of residence. As was submitted by Mr Kearney, when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant’s accommodation outside Australia.

27. It is easiest to begin by examining the evidence, having regard to the matters in these six paragraphs.

    The nature of the accommodation used by the person in Australia

28. In his evidence before the Tribunal, Mr Al Zamal said that he does not own any property in Australia.

29. Mr Al Zamal said that he rents a granny flat from a friend and he lives in the granny flat when he is in Australia.

30. There is a letter before the Tribunal from Nejatali Roytevand Ghyashvand, dated 19 October 2017, stating that Mr Al Zamal is a tenant and a residential address is set out in the letter. I accept that Mr Al Zamal is the tenant of the granny flat.

31. Mr Al Zamal said that there is no formal lease between himself and the landlord. It is an arrangement between friends.

32. Mr Al Zamal said that he pays $150 a week rent. He added that he pays the rent when he is in Kuwait. He stated that he would usually pay the rent in advance before leaving for Kuwait.

33. Mr Al Zamal produced a bank statement listing transactions for the period 6 November 2017 to 1 June 2016. From 1 June 2016 to 31 August 2016, there were no large withdrawals of money to cover rental payments in advance.

34. Mr Al Zamal said that his friend is flexible about the payment of rent.

35. From the evidence before me, I find that it is likely that Mr Al Zamal only pays rent, if at all, when he is staying in the granny flat.

36. In cross-examination, Mr Al Zamal was asked why his residential address was not the address of the granny flat. Mr Al Zamal said that it was easier for him to use the address of a friend as his residential address.

    The nature and extent of the family relationships the person has in Australia

37. In his evidence, Mr Al Zamal said that he has no family members in Australia. His family is in Kuwait.

38. Dr Samir Benjamin, who is Mr Al Zamal’s consultant psychiatrist, wrote two letters which are before the Tribunal.

39. In his letter to Centrelink dated 31 August 2016, Dr Benjamin wrote in part as follows:

    This is to advise that Mr Al Zamal was referred to me for psychiatric treatment on 20 August 2004. He was diagnosed with Chronic Major Depressive Disorder and Personality Disorder. He was prescribed psychotropic medications in this regard.

    Over the past 12 years or so, Mr Al Zamal attended psychiatric consultations every three to six months. He lived alone in Sydney and he felt lonely and unsupported. He travels to Kuwait on regular basis to be with his family for social and psychological support. He continued on his medications while overseas but he returned to Australia, every three months, to see me, get his medications and maintain his health care benefits.

40. A letter to the Tribunal dated 18 October 2017 reads in part as follows:

    Mr Al Zamal was referred to me for psychiatric treatment on 20 August 2004. He suffers with Chronic Depressive Disorder and Personality Disorder. He was prescribed medications and he also received psychotherapy for these conditions. Over the past 13 years, Mr Al Zamal continued to attend psychiatric consultations at my room in Parramatta. He has been attending consultations every three months on average, since 2006.

    Mr Al Zamal does not have family in Australia, which negatively impacted on his psychological wellbeing. He travelled to Kuwait, where most of his family reside, to avoid social isolation. He returned to Australia, approximately every three months. I last saw Mr Al Zamal on 18 October 2017.

    The nature and extent of the person’s employment, business or financial ties with Australia

41. It appears that Mr Al Zamal arrived in Australia on or shortly after 16 July 1998. Mr Al Zamal was granted a Refugee (Subclass 866) visa on 16 July 1998.

42. In his evidence, Mr Al Zamal said that before the car accident in 2002, he did undertake work and study in Australia. Since the car accident, Mr Al Zamal said that he has not undertaken work in Australia.

43. There are letters before the Tribunal from the ANZ Bank and from the Commonwealth Bank of Australia. I accept that Mr Al Zamal has two bank accounts in Australia. His DSP was paid into one of those bank accounts.

44. I do not give great weight to the fact that Mr Al Zamal has two Australian bank accounts as they are easy to open. Mr Al Zamal required at least one bank account to receive his DSP.

45. Mr Al Zamal gave no evidence about any other business transactions in Australia.

    The nature and extent of the person’s assets located in Australia

46. The only assets which Mr Al Zamal has in Australia are the two bank accounts. In his evidence, Mr Al Zamal said that he did own the furniture in the granny flat, namely, a bed and a fridge etc.

47. In cross-examination, Mr Al Zamal was taken to paragraph 5 of the decision of the AAT1 where it is recorded that Mr Al Zamal said that the owner of the granny flat owned the furniture in the granny flat.

48. Mr Al Zamal responded that he was tired during the AAT1 hearing.

49. While nothing much turns on the ownership of a small amount of furniture in the granny flat, I incline to the view that the furniture is owned by the landlord.

    The frequency and duration of the person’s travel outside Australia

50. In his evidence before the Tribunal, Mr Al Zamal said that he travels frequently to Kuwait to visit his family. He added that this family contact assists his mental health. This is confirmed by the letters from Dr Benjamin which are quoted above.

51. Mr Al Zamal’s travel records are before the Tribunal. They are contained in the documents prepared by Centrelink pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and they are colloquially known as the T Documents.

52. Document T11 details Mr Al Zamal’s travel outside Australia.

53. From these records, it is clear that over the last few years, Mr Al Zamal spends most of his time outside Australia in Kuwait. He visits Australia for a week or two every three months, although on several occasions he has remained in Australia for a couple of months. This pattern of travel is confirmed by the two letters from Dr Benjamin which are quoted above.

54. I find that Mr Al Zamal spends most of his time in Kuwait, and that he returns to Australia to obtain psychiatric treatment and to continue to receive his DSP.

    Any other matter relevant to determining whether the person intends to remain permanently in Australia

55. A relevant matter is that Mr Al Zamal returns to Australia for his psychiatric treatment which may not be so readily available outside Australia.

    FINDINGS

56. From the evidence which I have set out above, I find that on 31 August 2016, Mr Al Zamal was not residing in Australia pursuant to section 7(2)(a) of the SS Act.

57. I give great weight to the fact that Mr Al Zamal spends the majority of his time outside Australia. He resides in Kuwait where most of his family members live. He has no family members in Australia.

58. I give weight to the fact that Mr Al Zamal has not worked in Australia since 2002.

59. I give weight to the fact that Mr Al Zamal owns no residential property in Australia. His rental arrangements concerning his occupation of the granny flat are at best rather informal.

60. I appreciate that Mr Al Zamal wishes to live most of his life in Kuwait to be with his family members. However, he cannot receive DSP if he no longer resides in Australia unless he obtains permanent portability of his DSP.

61. If Mr Al Zamal decides in the future to reside in Australia, he may apply for DSP.

    DECISION

62. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 19 April 2017 is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated: 16 November 2017

Date(s) of hearing:	8 November 2017
Applicant:	In person
Solicitors for the Respondent:	Ms G Doyle, Sparke Helmore