Alexander and Repatriation Commission

[2006] AATA 156

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 156

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/223

VETERANS’ APPEALS DIVISION		)
Re		MICHAEL ALEXANDER

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date24 February 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..............................................

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – entitlement to service pension – whether veteran was an Australian citizen or resident at time of application

Veterans’ Entitlements Act 1986 s 43

Migration Act 1958 s 8

Re Allen and Department of Foreign Affairs (1986) 11 ALD 28

Re Ptohopoullos and Repatriation Commission (1989) 10 AAR 463  

REASONS FOR DECISION

24 February 2006   Deputy President P E Hack SC

Introduction

1.The applicant in this matter is Mr Michael Alexander. He is the son of Mr Michael Stefanaras who died in Brisbane on 19 November 2003. The applicant applies in his capacity as legal personal representative of Mr Stefanaras.

2.The decision in issue is the decision of the delegate of the respondent Commission made on the 11 January 2005 by which the delegate affirmed an earlier determination of the respondent that Mr Stefanaras had been overpaid an amount of $114,890.32 for all of the period from 6 September 1988, when an aged service pension was granted to him, to 27 November 2003 when it was ceased in consequence of his death.

3.The respondent’s decision, and its case at the hearing, was that Mr Stefanaras was not entitled to claim, or to be paid, the aged service pension, because, put in its simplest form, he was not an Australian citizen or resident at any material time.

Factual Background

4.There is no great dispute between the parties regarding the facts. What follows in paragraph 5 to 20 is, I consider, either common ground between them or established by the material.

5.Mr Stefanaras was born on 21 November 1921 on Rhodes. He served in the Australian Citizen Military Forces from 18 August 1942 to 11 June 1946 and saw active service in New Guinea.

6.Mr Stefanaras became a naturalised British subject and a citizen of the Commonwealth of Australia on 16 December 1946. At some time thereafter, and by reference to his passport E 201008 and the entries in it, probably in July 1958, Mr Stefanaras travelled to the United States of America. It seems likely that he took up residence in that country. He became a naturalised citizen of that country on 13 December 1968.

7.So far as the material shows Mr Stefanaras next came to Australia some 30 years later on 25 August 1988.

8.On 6 September 1988 Mr Stefanaras, who was then aged 66 years, notified the Department of Veterans Affairs, Queensland of a desire to lodge a claim for aged service pension. A formal claim in the prescribed form was completed and lodged with the Department on 22 September 1988. In it, Mr Stefanaras gave his residential address as 15 Vulture Street, West End and his postal address as 10 Harriet Street, West End. I was told by Mr Shepley of counsel who appeared for the applicant that the residential address was that of Mr Stefanaras’ sister and the postal address was that of his brother. (Ms King, who appeared for the respondent, agreed to my acting on that statement as being evidence.) In answer to questions posed in the document he indicated,

·      that he owned or was purchasing the home in which he lived, and,

·that he had a total of $71,512.98 in two bank accounts at the Commonwealth Bank at West End.

9.At the time when the application was lodged Mr Stefanaras provided to the Department a signed note in these terms,

“Beginning of October 1, 1988, I will be out of the country for a period of 7-8 months.

Also, the cash deposited with the Commonwealth Bank of Australia is designated for the purchase of a house upon my return.”

10.A service pension was granted to Mr Stefanaras and was paid from 6 September 1988, initially at the rate of $116.00 per fortnight. Mr Stefanaras was notified of the grant by letter dated 6 October 1988.

11.Within the records of the Department is a change of address notification dated 13 April 1992 that records a telephone conversation with Mr Stefanaras in which he changed his address from 10 Harriet Street, West End to 6 Sector Street, Coorparoo. That address, I was told, again without objection, was that of Mr Alexander.

12.By letter dated 28 August 1995 Mr Stefanaras notified the Department that the bank account, which, at the time of application for a pension, had had a balance of $60,000.00, then had a balance of $2,933.72. That prompted the Department to enquire as to the fate of the balance. A Departmental officer was able to speak to Mr Stefanaras’ son Michael (presumably the present applicant) on 9 October 1995. The note for file records the applicant as saying that Mr Stefanaras had loaned him the money which had been used to help in the son’s business.

13.There is a further file note dated 1 February 1996 in which the applicant was again spoken to and asked to provide a letter,

“…stating who owns the house in which both the son and veteran live in, what the money was used for ($57,067) and whether the veteran has given his son any other monies”.

The note records “the son” as saying that he would do so.

14.There is a file note of a conversation said to have occurred the following day when the “son rang regarding the ‘loan’” and stated,

“It definitely was not a loan”.

In the same conversation it was said that Mr Stefanaras was in Greece as it was said that his brother there was dying. Apparently no letter was received from Mr Stefanaras or from the applicant and accordingly by letter dated 13 September 1996 a formal enquiry was made of Mr Stefanaras in which he was asked to advise whether the money was a gift or a loan. He was also asked whether he or his son owned the property in which both of them currently resided.

15.On 15 May 1996 the file note records that “the son” rang and advised that the money was to be regarded as a gift as he had no intention of returning the money and that the house was owned by the son and his wife. Mr Stefanaras was paying no board.

16.Following the death of Mr Stefanaras on 19 November 2003 the Department received an anonymous notification that Mr Stefanaras had been living in the United States since 1956 and had applied for a service pension whilst on holidays in Australia. The Department made various enquiries following receipt of that notification.

17.The enquiries with the Commonwealth Bank revealed that account number 41315002757 in the name of Mr Stefanaras had been opened on 29 August 1988 and was still open in February 2004.

18.Enquiries with the Department of Immigration and Multicultural Affairs (and subsequent enquiries) show that the only records of Mr Stefanaras’ movements into and out of Australia from 1988 onwards were as follows,

·on 25 August 1988 Mr Stefanaras arrived in Brisbane on QF26 using travel documents issued by the United States of America. On his passenger card for that entry he described himself as a visitor and temporary entrant intending to stay in Australia for 30 days. He gave the United States of America as his residence;

·on 27 September 1988 Mr Stefanaras departed Australia on QF25. Mr Stefanaras completed a passenger card for that departure that was consistent with his entry card. In particular he described himself as a visitor or temporary entrant departing;

·on 17 August 1997 Mr Stefanaras arrived in Brisbane on QF95. On this occasion he described himself on his entry card as a resident returning to Australia;

·on 21 September 1997 Mr Stefanaras departed Australia. He reverted to the description of “Visitor or temporary entrant departing”;

·on 5 September 2000 Mr Stefanaras arrived in Australia describing himself as a visitor or temporary entrant intending to stay in Australia for one month;

·on 2 October 2000 Mr Stefanaras departed Australia. On that occasion, on the immigration control card signed by him, Mr Stefanaras describes himself as visitor or temporary entrant departing Australia;

·on 27 October 2003 Mr Stefanaras arrived in Australia on QF26. On that occasion he identified himself as a visitor or temporary entrant intending to stay in Australia for a period of 3 months and described his country of residence as being the United States of America.

I should add that on every entry and departure card one of the descriptions was that of Australian resident. With one exception, Mr Stefanaras chose not to describe himself as such.

19.In light of the information then available[1] the Department concluded that Mr Stefanaras was not an Australian resident at the time in which the pension had been granted and determined that there had been an overpayment in the sum of $114,890.32. That determination was made on 17 February 2004.

Because the applicant was believed to be the executor of Mr Stefanaras’ estate the Department wrote to him, by letter dated 17 February 2004, setting out the terms of the determination and the reasons for it.

[1] The passenger cards for 25 August 1988, 27 September 1988, 17 August 1997, 21 September 1997 and 5 September 2000 were not, at that time, available to the Department

20.By letter dated 17 May 2004 the applicant sought a review of the Department’s decision in relation to the overpayment. That review was undertaken on 11 January 2005 and it is from that determination that these proceedings arise.

The Legislation

21.At the time of Mr Stefanaras’ application for a service pension s 43 of the Veterans’ Entitlements Act 1986 set out the requirements for a claim. Importantly, s 43(4) provided,

“(4) Subject to sub-section 63(4), a veteran is not eligible to lodge a claim for a service pension unless the veteran is an Australian resident and is in Australia.”

22.     The term “Australian resident” was defined within s 35 of the Act as meaning,

“a person who resides in Australia and who is:

(a) an Australian citizen;

(b) a person who has been granted, or who is included in:

(i) an entry permit (not being a temporary entry permit) in force under the Migration Act 1958; of

(ii) a return endorsement, or a resident return visa, in force under the Migration Act 1958; or

(c) a person to whom Division 1 of Part II of that Act does not apply because of sub section 8(1) of that Act, being a person who is likely to remain permanently in Australia.”

23.Mr Shepley concedes that Mr Stefanaras was not an Australian citizen in September 1988. That concession is, I consider, rightly made given that on 13 December 1968 Mr Stefanaras became a naturalized citizen of the United States of America. Section 17 of the Nationality and Citizenship Act 1948 then provided,

“An Australian citizen of full age and of full capacity, who, whilst outside Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen.”

24.In Re Allan and Department of Foreign Affairs (1986) 11 ALD 28 at 32 the Tribunal said of the word “formal” in s 17 that it was,

“intended to import a requirement of the voluntary act being done in deliberate compliance with the rules applied by the other country in respect of acquisition of its citizenship.”

I respectfully agree. As it seems to me, the inevitable conclusion to be drawn from the fact of Mr Stefanaras’ acquisition of United States citizenship is that it was voluntary in the sense that he made application for citizenship and formal in the sense that it was done in compliance with the laws in force in the United States for the acquisition of citizenship. There is no suggestion that at any time thereafter he re-acquired Australian citizenship.

25.It is not suggested in the present case that the matters in paragraph (b) of the definition of Australian citizen were satisfied. Rather, Mr Shepley relies upon paragraph (c) as having application to Mr Stefanaras.

26.It is thus necessary to consider the terms of the Migration Act 1958. As at September 1988 Division 1 of Part II of that Act required immigrants to be the holder of an entry permit and dealt with the consequences of a failure to have a valid entry permit. Section 8 (1) then provided,

“(1)     Nothing in this Division applies in relation to the entry into Australia of an immigrant being –

(a)a member of the armed forces of the Crown entering Australia in the course of his duty, not being a person in respect of whom a declaration is in force under sub-section (2);

(b)a diplomatic or consular representative of a country other than Australia, a member of the staff of such a representative or the spouse or dependent relative of such a representative;

(c)a person included in the complement of a vessel of the regular armed forces of a government recognized by the Commonwealth entering Australia with leave from that vessel during that vessel’s stay in a port, not being a person in respect of whom a declaration is in force under the next succeeding sub-section;

(d)a member of the crew of any other vessel entering Australia with leave from that vessel during the vessel’s stay in a port, where the master of the vessel has duly complied with the provisions of Division 3 of this Part that are applicable upon arrival of the vessel at that port, not being a person in respect of whom a declaration is in force under the next succeeding sub-section; or

(e)a person who –

(i)  is for the time being exempted, by instrument under the hand of the Minister, from the requirements of this Division relating to entry permits; or

(ii) is included in a class of persons who are for the time being so exempted,

not being a person in respect of whom a declaration is in force under the next succeeding sub-section.”  

27.Division 1 of Part II had the general effect of requiring immigrants to have a valid entry permit but where the immigrant answered one of the descriptions set out in paragraphs (a) to (e) of s 8(1) Division 1 of Part II had no application. Thus, in order to satisfy the test of Australian resident under paragraph (c) of the definition Mr Stefanaras (a) had to be a person who resided in Australia; (b) had to be a person who answered one of the descriptions in paragraphs (a) to (e); and, (c) had to be a person likely to remain permanently in Australia.

Was Mr Stefanaras An Australian Resident

28.On the evidence, Mr Stefanaras did not answer any of the requirements of the definition of Australian resident in paragraph (c).

29.First, I do not consider that he was a person who resided in Australia. When he arrived in Australia on 25 August 1988 Mr Stefanaras described himself on an official document as a visitor or temporary entrant intending to stay for 30 days. He gave the United States as his place of residence. When he departed on 27 September 1988 he described himself in similar terms. I am unable to accept that the evidence supports the conclusion that when he made application for a service pension he was then a person who resided in Australia.

30.I accept that the passage of time makes the applicant’s task of obtaining evidence of Mr Stefanaras’ residence in 1988 difficult. Nonetheless there is a considerable degree of evidence that supports the conclusion that he was not residing in Australia at the time. That evidence includes,

·the earlier grant of U S citizenship,

·the absence of Mr Stefanaras from Australia for the entirety of the period from June 1958 until what appears to be his first visit in 30 years when he arrived on 25 August 1988,

·his passenger entry card of 25 August 1988 and departure card of 27 September 1988,

·the fact that Mr Stefanaras only stayed from 25 August 1988 until 27 September 1988 (a period of just over 30 days) and appears not to have returned to Australia until August 1997 when he visited for a little over a month, a further visit for about four weeks in September 2000 and final visit when he arrived on 27 October 2003 and stayed until his death one month later.

31.I am conscious of the fact that Mr Stefanaras had two bank accounts in Australia with balances in excess of $71,000.00 and that he had close relatives in Brisbane with whom I am prepared to infer he had, at least in August/September 1988 a close relationship. I am conscious as well that at times when Mr Stefanaras was not in this country according to the Immigration Department records there were withdrawals, and in some case significant withdrawals, from his bank account. But I do not accept that the fact of a withdrawal, even a large withdrawal, leads necessarily to the conclusion that the account holder was present in the country; rather as it seems to me, the only conclusion to be drawn is that Mr Stefanaras executed a withdrawal slip or other form of authority to the bank.

32.Indeed there is much about the transactions on the bank account, so far as they are known, that supports the proposition that Mr Stefanaras was not a resident during the time when records are available. But, ultimately the bank account transactions do not, in my view aid in reaching a conclusion on whether Mr Stefanaras was residing in Australia when he applied for a war service pension in September 1988. That is so because they post-date the application.

33.That question needs to be determined be reference to evidence of that time. In my view the evidence leads only to the conclusion that Mr Stefanaras was not at the relevant time, residing in Australia. Evidence of subsequent events merely confirms the correctness of that conclusion.

34.In reaching that conclusion I gratefully adopt the analysis of Senior Member Allen in Re Ptohopoullos and Repatriation Commission (1989) 10 AAR 463. In that case the learned Senior Member concluded, correctly in my respectful view, that what was required for the purposes of the Veterans’ Entitlement Act was something more than a temporary period sufficient to apply for and obtain a pension without more. The present case is one where that description is apt, on the evidence, to the position of Mr Stefanaras.

35.But beyond that Mr Stefanaras did not answer any of the descriptions in paragraphs (a) to (e) of s 8(1) of the Migration Act.

36.And, on the evidence that I set out, I am satisfied that Mr Stefanaras never intended to reside in Australia and could not be regarded as a person who was likely to remain in Australia.

37.Mr Shepley relied upon the fact that the Department granted the service pension as demonstrating the fact that the Department must have been satisfied that Mr Stefanaras met the requirement of being an Australian citizen. I cannot accept that. In circumstances where Mr Stefanaras described himself as residing at an address in West End there was nothing apparent in his application that would have required the matter to be considered.

38.It follows that in my view Mr Stefanaras was not an Australian resident, as defined, and was not eligible to lodge a claim for a service pension when he did so.

39.     I affirm the decision under review.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Robert Hayes, Associate

Date of Hearing  15 February 2006
Date of Decision  24 February 2006
Counsel for the Applicant         Mr J Shepley  

For the Respondent                  Ms K King and Mr T Harrison, Departmental Advocates