Alfred Frenzel and Secretary, Department of Social Services
[2015] AATA 71
•11 February 2015
[2015] AATA 71
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4670
Re
Alfred Frenzel
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 11 February 2015 Place Brisbane The decision under review is affirmed.
............................[Sgd]............................................
Senior Member A C Cotter
CATCHWORDS
SOCIAL SECURITY – Age Pension – whether Australian resident for purposes of pension payment – extended periods living outside Australia – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 43
Social Security (Administration) Act 1999 (Cth) s 29
CASES
Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773
Clifopoulos and Secretary, Department of Social Security [1994] AATA 282
REASONS FOR DECISION
Senior Member A C Cotter
11 February 2015
On 16 May 2014, the applicant, Mr Alfred Frenzel, applied to Centrelink for the age pension.
By letter dated 29 May 2014, Centrelink advised Mr Frenzel that he could not be paid the age pension because he was not living in Australia on a permanent basis. That decision was affirmed by an Authorised Review Officer on 23 June 2014. Although that decision was subsequently set aside by the Social Security Appeals Tribunal (“SSAT”) and another decision was substituted for it, the practical effect was the same: the SSAT concluded that Mr Frenzel was not an Australian resident when he made his claim and therefore, did not satisfy the residence requirements under the relevant legislation.
Mr Frenzel has sought a review of that decision.
BACKGROUND
Mr Frenzel was born in Germany on 6 September 1929. He is 85 years of age. He migrated to Australia in 1957 and became an Australian citizen in 1964.[1] He holds a current Australian passport.[2]
[1] Exhibit 1, pp 55-58.
[2] Ibid 135.
In his claim for age pension, Mr Frenzel stated that he had lived in Australia from March 1957 until October 1984, and then in the Philippines from October 1984 until 15 May 2014.[3] In correspondence to the tribunal dated 11 September 2014, Mr Frenzel stated that he worked in Papua New Guinea from 1975 until his move to the Philippines in 1984.[4]
[3] Ibid 59.
[4] Ibid 204.
In 1996, Mr Frenzel married Elenita Navarro, a Filipina.[5] They have a son, Alfred Maurice Navarro Frenzel, who was born in the Philippines on 1 February 2000. He is an Australian citizen by descent and holds a current Australian passport.[6] Since at least 2007, the three of them have lived in a property owned by Mrs Frenzel’s relatives in Davao City in the Philippines.[7]
[5] Ibid 149.
[6] Ibid 145-6.
[7] Ibid 6.
According to Centrelink records, Mr Frenzel was in Australia for the following periods: 26 October 1994 to 23 December 1994; 11 April 2008 to 20 May 2008 (when he was accompanied by his wife and son); and 4 July 2008 to 30 July 2008.[8]
[8] Ibid 216.
On the second of those occasions, Mr Frenzel was paid an age pension from 11 April 2008 until 22 May 2008, when it was suspended following his departure overseas.
Mr Frenzel then returned to Australia on 4 July 2008. While he was in Australia on that occasion, Centrelink determined that he was not an Australian resident and cancelled his pension.
Mr Frenzel returned to the Philippines on 30 July 2008. Following his challenge to Centrelink’s determination, the SSAT substituted a decision to the effect that he was a resident who was temporarily absent.[9] He was paid arrears of the pension for the period he was in Australia during July 2008, but the pension was again suspended from 31 July 2008 while he was outside Australia.[10]
[9] Ibid 24-30.
[10] Ibid 24-30, 215.
He did not return to Australia again until May 2014. In the intervening period, he wrote several times to the relevant Ministers and to Prime Ministers Rudd and Gillard concerning his entitlement to the age pension. In support of his application for review by the tribunal, Mr Frenzel produced, among other things, the first page of a letter from the Department of Human Services which summarised, from the department’s perspective, the status of his pension in the interim:[11]
Under social security law, your Age Pension is not payable outside of this country until you have lived in Australian [sic] for two years. As you returned to the Philippines on 30 July 2008, within the two year residency period, your payments were stopped immediately upon your departure.
In order to have your payments restored, you would need to return to Australia and once again prove that you are residing in the country in order to be able to lodge a claim for Age Pension. Should you be able to do this, you may be granted Age Pension again under the same former residency provisions. This would again mean that your pension would not be payable outside the country until you have been living in Australia for two years.
[11] Ibid 162; the copy of the letter bears no date, but from its content it is clear that it was written after 1 April 2011.
The next time Mr Frenzel came to Australia was when he arrived in Perth on 16 May 2014. His Incoming Passenger card indicated that he intended to remain in Australia for one year and that his main reason for coming to Australia was “business” and “other”. He gave as his intended address in Australia the address of a friend in Wilson, a Perth suburb.[12]
[12] Ibid 218.
In his evidence at the hearing (given by telephone from the Philippines), Mr Frenzel explained that he was ill on the flight to Australia and that the Incoming Passenger card was completed for him by a neighbouring passenger. He confirmed, however, that it was completed in accordance with his instructions and that he signed the card.
After being met by his friend at Perth Airport early on the morning of 16 May,
Mr Frenzel was taken straight to the Centrelink office in Perth. There his friend completed the application for age pension on Mr Frenzel’s instructions. At the hearing, Mr Frenzel confirmed that he signed the form. It was then lodged at the Perth Centrelink office.[13] In the application form, Mr Frenzel’s permanent address was given as an address in Carnarvon, Western Australia,[14] as opposed to the Wilson address given earlier in the day when he arrived in Perth. In response to the question whether he was living in Australia permanently, the “No” box was ticked.[15] Both his wife and son remained in the Philippines.[16]
[13] Ibid 121.
[14] Ibid 55.
[15] Ibid 57.
[16] Ibid 55-7.
The application indicated that Mr Frenzel was sharing his accommodation with a friend. He was to pay $200.00 per week, commencing 15 May 2014. Although there was no current tenancy agreement, the form indicated that he was going to make one on 29 May 2014.[17] Mr Frenzel has produced a copy of a Periodic Tenancy (No Fixed Term) agreement between him and his friend, Giordano Guglielmana, and his wife, Elizabeth, dated 19 May 2014. It was expressed to be from 16 May 2014 until the agreement was terminated, however, either Mr or Mrs Guglielmana had hand written the words “till 28 July 14” underneath that section.[18] The agreement confirms the weekly rent was $200.00, with two weeks’ advance rental and a bond the equivalent of four weeks’ rental to be paid on or before 20 May 2014.
[17] Ibid 68-9.
[18] Ibid 198-201 and Mr Frenzel’s oral evidence by phone.
On 14 July 2014, Mr Frenzel departed Australia. His Outgoing Passenger card was this time completed by his friend’s wife, who accompanied him on the flight to the Philippines. He confirmed during his evidence that it was completed on his instructions and signed by him. Parts of the card had been completed and then crossed out, but
Mr Frenzel confirmed that the section he meant to answer was section D, intended for visitors or temporary entrants departing Australia. That section noted Mr Frenzel’s country of residence was the Philippines. Significantly, the sections intended to be completed by departing Australian residents were crossed out.[19]
[19] Ibid 219.
THE LEGISLATIVE FRAMEWORK
The relevant legislative provisions are to be found in ss 7 and 43 of the Social Security Act 1991 (Cth) (“Act”) and s 29 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”).
The advocate for the respondent, the Secretary of the Department of Social Services (“Secretary”), acknowledged that Mr Frenzel meets the requirements under s 43 of the Act (dealing with qualifications for age pension).[20]It is therefore not necessary, for present purposes, to consider that provision in any detail.
[20] Exhibit 2 [26].
However, s 29 of the Administration Act also needs to be satisfied. It provides that, subject to the certain provisions (which are not presently relevant), a claim for a social security payment may only be made by a person who is an Australian resident and who is in Australia. It is not in dispute that Mr Frenzel was in Australia at the time he applied for the age pension. The question is therefore whether he was also an “Australian resident” at that time.
Section 7(2) of the Act states that an “Australian resident” is a person who “resides in Australia” and who comes within one of three specified categories (one of which - being an Australian citizen - Mr Frenzel satisfied). Therefore, the only live issue to be considered is whether Mr Frenzel resided in Australia at the time of making the application.
The general nature of residence was discussed by Branson J in Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 [8]-[9]:
As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70 at [36]).
Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450).
Section 7(3) of the Act sets out factors to which regard must be had in deciding, for the purposes of the Act, whether or not a person is residing in Australia. They are:
(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.
While those factors are largely self-explanatory, the remarks of Branson J in Baccon are worth noting:
As s 7(3)(f) reveals, for the purposes of the Act, it is, at the least, a relevant factor in determining whether a person is residing in Australia that he or she intends to remain permanently in Australia. ‘Permanently’ in this context does not mean forever, and it does not mean without ever leaving Australia whether for business or recreational purposes. It requires the person to have an enduring commitment to Australia as home (Taslim).[21]
[21] Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 [15].
The Secretary’s statement of facts and contentions[22] referred to an earlier decision of the tribunal in Clifopoulos and Secretary, Department of Social Security [1994] AATA 282, in which the tribunal discussed the application of these statutory factors:
[17] The principles set out above 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 [sic.] 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.
[22] Exhibit 2 [30].
CONSIDERATION
Having described the legislative framework, I turn to consider Mr Frenzel’s circumstances, having regard in particular to the factors set out in s 7(3) of the Act.
Accommodation in Australia
The plans for Mr Frenzel’s accommodation in Australia appear to have changed virtually overnight. In his Incoming Passenger card completed on 16 May 2014, an address in Perth was listed as his intended address in Australia, yet by the time his application form for the age pension was completed later that day, that plan had altered significantly. The application form revealed that he was planning to stay with a friend in shared accommodation in Carnarvon, which is some 900 kilometres north of Perth. At that stage, there was no formal rental agreement, but Mr Frenzel indicated that he planned to enter into one on 29 May 2014. However, he appears to have at least agreed the amount of rental ($200.00 per week) which he says he started paying from 15 May 2014.[23]
[23] Exhibit 1, p 68.
The agreement Mr Frenzel produced to the tribunal is a Periodic Tenancy (No Fixed Term), meaning that it could be terminated at any time in accordance with its terms. However, as mentioned earlier, there is even some doubt about that, with the agreement bearing a handwritten notation “till 28 July 2014”. The agreement provided that the rental was $200.00 per week paid two weeks in advance, with a bond the equivalent of four weeks’ rental payable on or before 20 May 2014. That means that Mr Frenzel was required to pay $1,200.00 up front or within the first week of the tenancy. In evidence at the hearing, he confirmed that payment was made by him.
During his oral evidence, Mr Frenzel also described his accommodation in Carnarvon. The house consisted of four bedrooms, one for each occupant, with shared cooking facilities. He previously told the SSAT that there was a shared bathroom and communal lounge with a television. His bedroom contained a single bed, a small desk and some cupboards.[24]
[24] Exhibit 1, p 6.
Mr Frenzel told the tribunal that he would rather have stayed in Perth than go to Carnarvon, which was remote and far from any facilities. He said there were only “plantations” there and that it would have been impossible to bring his wife and son there. He therefore only planned to stay there for six to eight weeks, which was borne out by the short term nature of the tenancy.
In short, Mr Frenzel’s accommodation arrangements displayed no intention of his residing permanently in Australia; on the contrary, they give every indication of a short term ‘fix’. He was in shared accommodation, which itself would have likely been unsuitable for a family. Within a day of arriving, he found himself in a remote part of Australia, with few facilities, which he acknowledged would not be good for his wife and son. The tenancy itself was short term, and gave Mr Frenzel little security or certainty of tenure beyond, at best, six to eight weeks.
That is to be contrasted with Mr Frenzel’s living arrangements in the Philippines where, since at least 2007, he and his wife and son have been residing in premises owned by his wife’s relatives.[25] Personally, he has resided in the Philippines since 1984.
[25] Exhibit 1, p 6.
Family relationships in Australia
Mr Frenzel told the tribunal that he has no family in Australia. He has one older sister, who resides in the United States. His parents being deceased, he has no family in Germany. By way of contrast, he has resided in the Philippines with his now wife, a Filipina, since 1992.[26] Their son was born in 2000 and they have resided as a family in the Philippines since that time.
[26] Ibid p 62.
Employment, business or financial ties in Australia
Apart from a bank account with the ANZ Bank at Robina in Queensland, Mr Frenzel has no financial ties with Australia; his Income and Assets Statement completed on 16 May 2014 discloses no such ties[27] and he did not offer any other evidence in that regard. He was last employed in Australia over 30 years ago.
[27] Ibid 77-92.
Mr Frenzel has an Australian Tax File Number and a Medicare card, but neither of those, without more, are sufficient evidence of his intentions as regards residence.
Mr Frenzel told the tribunal that he has no assets in the Philippines, as the local law places restrictions on foreigners owning property or running businesses.
Assets located in Australia
As mentioned already, the income and assets statement completed in conjunction with Mr Frenzel’s application shows that his only asset in Australia was the balance of $105.00 in a bank account he has with the ANZ Bank at Robina,[28] a fact confirmed in his evidence to the tribunal. He bought a house at Kippa-Ring in Queensland in 1981[29] and sold it some 10 years later so that he had money to live on in the Philippines.
[28] Ibid 77-92.
[29] Exhibit 2, pp 15-16.
Mr Frenzel’s Incoming Passenger card declared that he was bringing into Australia AUD $10,000.00 or more in Australian or foreign currency equivalent.[30] When questioned on that, Mr Frenzel denied bringing money into the country; rather, he said that he had money on a card to pay for expenses. He said that the amount was closer to $5,000.00. Even if that amount were not used to make the advance payments for the rental accommodation, it is a very modest amount for someone contemplating setting up home and incurring normal ongoing living expenses for any significant period of time. Apart from that, there was no indication as to where future funds might come from, or how he intended to support himself while in Australia once those funds were depleted.
[30] Exhibit 1, p 218.
While the position in the Philippines does not appear to be significantly different (given the restrictions on foreign ownership), Mr Frenzel at least has the backing of his wife’s family, whereas he has no such support in Australia.
Frequency and duration of travel outside Australia
Apart from some short visits in 1994 (about two months) and in 2008 (two visits, each of about four or five weeks), Mr Frenzel has lived outside Australia for at least 30 years, and closer to 40 years if his period of employment in Papua New Guinea is taken into account.
Other relevant matters
It is significant that in his Incoming Passenger card, Mr Frenzel indicated that he only intended to stay in Australia one year.[31] That is further reinforced by the answers given in his application for age pension, completed later the same day, in which he denies living in Australia permanently, and his Outgoing Passenger card, in which he was described as a visitor or temporary resident departing Australia and having his residence in the Philippines.[32]
[31] Ibid.
[32] Ibid 219.
Mr Frenzel describes the reference to one year in the incoming passenger card as an error. He told the tribunal that his airline ticket was originally purchased by his son using money that he had been given by his aunt, Mr Frenzel’s sister. The ticket was a return ticket, and purchased because it was cheaper than purchasing two one way tickets. Under the airline’s rules, he could obtain a refund on the unexpired portion of the return ticket if he cancelled it within 12 months. In answering the question on the card, he was focused on that time requirement. In evidence, he said that what he meant to say was that he intended to stay two years so that he could claim the pension. While that reasoning appears flawed (in that he seems to have confused the general residency requirements for the pension with the more specific rules regarding portability of pensions once granted), it underscores Mr Frenzel’s primary motivation for this visit – not to set up home or settle in Australia, but to spend the time he considered necessary in order to obtain the pension. That is reinforced by his application form and Outgoing Passenger card, discussed already. Further, during cross-examination on the residency question contained in the former document, he maintained that his answer was correct; he stated that he did not want to stay permanently in Australia, as he had his family in the Philippines. Rather, his intention was that if he obtained the pension, he would seek to bring them to Australia then.
That intention is highlighted by the circumstances surrounding Mr Frenzel’s trip. After arriving in Perth early on the morning of 16 May, he was taken immediately to the Centrelink office so that he could lodge his application form without delay. He was then transported to Carnarvon where he had short term accommodation which would have been unsuitable for a family, both because of its nature and location.
Notwithstanding his stated intention to stay two years so that he could obtain the pension, Mr Frenzel left Australia after only two months. The Centrelink decision was conveyed in a letter of 29 May 2014 and the Authorised Review Officer made his decision on 23 June. Significantly, Mr Frenzel lodged his appeal to the SSAT and departed Australia some three weeks later. Again, that highlights the intention behind the visit to Australia on this occasion; being initially unsuccessful in his application for the pension, he decided to return to his family and home in the Philippines.
It also appears from documents submitted by Mr Frenzel to the tribunal that the Filipino authorities likewise consider him to be residing permanently in the Philippines. An order issued by the Bureau of Immigration within the Philippines Department of Justice on 3 April 2008 states that he “is registered as a permanent resident under Sec. 13(a) and the holder of ICard No F6811”.[33] That is supported by a certification by the same bureau dated 5 August 1992, which confirms Mr Frenzel as having an “Immigrant Certificate of Residence (ICR) No 240517 dated 18 May 1984 and Alien Certificate of Registration (ACR) No. 359783 dated 18 May 1984”.[34] Mr Frenzel also produced his Alien Certificate of Registration number ICR 240517 issued by the Philippines Bureau of Immigration. It shows that he holds a s 13A visa which is valid permanently.[35] Finally, Mr Frenzel produced a Community Tax Certificate dated 21 January 2014, which appears to evidence a tax payment on his part.[36] Together, those documents illustrate that Mr Frenzel enjoys, and has enjoyed for some 30 years, a degree of permanency of residence in the Philippines formally recognised by the Filipino authorities.
[33] Exhibit 2, p 29.
[34] Exhibit 7.
[35] Exhibit 4.
[36] Exhibit 5.
CONCLUSION
Based on my consideration of the factors discussed above, I am not satisfied that
Mr Frenzel resided in Australia at the time he submitted his application for age pension. His statements and actions at the time did not display any intention on his part to treat Australia as his home; indeed, they indicated the contrary - that it was his intention to return to his family and home in the Philippines once he had completed what he understood to be the necessary formalities to claim the pension in Australia.
I therefore do not consider that Mr Frenzel satisfied the necessary criterion in s 29(1)(a) of the Administration Act, in that at the relevant time he was not a person who was an Australian resident. In accordance with s 29(2), his claim for the age pension is taken not to have been made. The decision under review is therefore affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of ...............................[Sgd].........................................
Associate
Dated 11 February 2015
Date(s) of hearing 27 and 28 January 2015 Applicant In person Solicitors for the Respondent Mr Rick McQuinlan
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