Arthur and Secretary, Department of Family and Community Services
[2005] AATA 481
•27 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 481
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1236
GENERAL ADMINISTRATIVE DIVISION ) Re JACQUELINE ARTHUR Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal M A Griffin, Member Date27 May 2005
PlaceSydney
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that as of 26 February 2001 Ms Arthur was resident in Australia and temporarily absent.
[sgd] M A Griffin
Member
CATCHWORDS
SOCIAL SECURITY – Parent Payment refused by Centrelink – whether Applicant is a Protected Special Degree Visa Holder – definition of Australian resident – decision set aside
LEGISLATION
Social Security Act 1991 ss 7, 500
CASE LAW
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Schlageter v Secretary, Department of Social Security (AAT 1988, 7 February 1985)
Kaopari Rubber Estates Limited v FC of Taxation (1941) 64 CLR 241
Inland Revenue Commissioners v Lysaght [1928] AC 234
Keil v Keil [1947] VLR 383
Levene v Inland Revenue Commissioners [1928] AC 217
Judd v Judd (1957) 75 WN (NSW) 147
Norman v Norman (1969) 16 FLR 231
REASONS FOR DECISION
27 May 2005 M A Griffin, Member This is a review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 6 September 2004 (T2) which affirmed a decision of an authorised review officer on 6 May 2004 (T21) to reject Ms Arthur’s claim for Parenting Payment Single.
BACKGROUND
1. Ms Arthur is a New Zealand citizen. She is single. Her daughter was born in Australia on 16 November 2003. On 18 November 2004 Ms Arthur made a claim for Parenting Payment Single. The claim was refused on the grounds that Ms Arthur was not a Protected Special Category Visa holder.
ISSUE
2. The issue is whether Ms Arthur is a Protected Special Category Visa holder as defined in the Social Security Act 1991 (“the Act”).
Legislation
3. Section 500 of the Act provides that in order to qualify for Parenting Payment, a person must be an Australian resident.
4. Section 7 of the Act defines Australian resident as follows:-
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.
Note: For holder, permanent visa and special purpose visa see subsection (1).
5. Subsections 7(2A) to 7(2D) provide for the meaning of a Protected Special Category Visa (SCV) holder. Subsection 7(2D) is the relevant provision for Ms Arthur’s application. It provides:
7(2D) A person who, on 26 February 2001:
(a) was residing in Australia; and
(b) was temporarily absent from Australia; and
(c) was not receiving a social security payment;
is a protected SCV holder at a particular time if:
(d) the time is during the period of 12 months beginning on 26 February 2001; or
(e) the time is after the end of that period, and either:
(i) at that time, a determination under subsection (2E) is in force in respect of the person; or
(ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.
6. Subsections 7(3) of the Act sets out the factors that must be taken into account when deciding whether a person is residing in Australia. It provides as follows:
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.
Evidence
7. Ms Arthur was born and raised in New Zealand. Her father died when she was quite young. She has no siblings and lived with her mother. Her mother had a brother who lived and continues to live in Sydney. Ms Arthur first came to Australia at age 15 to visit her uncle in Sydney. At that time due to her mother’s domestic circumstances, Ms Arthur was in an abusive domestic relationship. She said that her uncle rescued her from this situation and brought her to Sydney at age 15. She holidayed here and returned to New Zealand and she and her mother were essentially estranged thereafter.
8. After working for some time in New Zealand Ms Arthur came to Sydney in 1992 at the age of 22 to live. She obtained employment in the publishing industry with the firm Hodder Headline. She worked for Hodder Headline in Sydney until 1996. At that time she went to England for a working holiday. She said that she had a grandparent’s entry certificate to the United Kingdom which allowed for a four year stay, rather than the normal two year stay. She holidayed and worked in England and returned to New Zealand in 1997, due to her mother’s illness. She stayed in New Zealand for a time to care for her mother and then returned to England. Whilst in England she secured employment with the parent company of Hodder Headline.
9. In January 2001 Ms Arthur returned to Sydney to seek employment with a view to settling permanently in Sydney. She entered into several interviews and obtained a job offer with the firm Publicity Matters. The principal of Publicity Matters was a former work colleague from Hodder Headline. She departed Australia for England on the 7 February 2001. Her intention was to give notice with her English employer and make arrangements for her return to Australia to take up the position with Publicity Matters. She made arrangements with a friend to share her accommodation in Coogee upon her return and she made arrangements with other friends to recover important personal items that she had left in their care.
10. Upon return to England she did give notice to her English employer. However in late March the principal of Publicity Matters advised her that she would not be able to start in the position in April/May as originally forecast and it would have to be delayed until November. Consequently her plans altered and she was able to withdraw her notice of termination with her English employer. On 28 October 2001 Ms Arthur returned to Australia to commence work with Publicity Matters. At some time thereafter, she again took up employment with Hodder Headline and remains in part-time employment. After her return to Australia, Ms Arthur did take up residence with the friend in Coogee and did collect the various personal items that she had left with other friends.
CONSIDERATION OF ISSUES
11. The six factors set out in subsection 7(3) of the Act are as follows:
Nature of Accommodation
12. After her return to Australia in January/February 2001, Ms Arthur resided with friends. She was also living in share accommodation in England. The Respondent referred to the matter Re Schlageter v Secretary, Department of Social Security (AAT 1988, 7 February 1985) where the Tribunal found at paragraph 9:
“For a person to be residing in a country, he must have a settled home in that country. It must not be his only home, but have some degree of permanence.”
13. In Tribunal decisions in this area of the law reference has been made to Hafza v Director-General of Social Security (1985) 6 FCR 444 and the decision of Wilcox J, where his Honour said:
“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. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v FC of T (1941) 64 CLR 241 at 249, by Williams J: “The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.”
14. Ms Arthur had accommodation in Britain and she had arranged for permanent accommodation with her friend in Coogee as of 26 February 2001. Although presence and intention will coincide for most of the time, 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; Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. It is whether or not the person has retained a continuity of association with the place. (Levene v InlandRevenue Commissioners [1928] AC 217 at 225; Judd v Judd (1957) 75 WN (NSW) 147 at 149), together with an intention to return to that place and an attitude that that place reminds them of “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 in particular, the reference by Williams J to a “home or homes”) and, secondly that the application to 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 residence of a place where a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, and a change of intention may be decisive of the question whether residence in a particular place has been maintained.
Family Relationships
15. As at 26 February 2001 Ms Arthur’s mother continued to reside in New Zealand. Their relationship had been one essentially of estrangement since Ms Arthur was a teenager. She had however visited her mother during a period of serious illness. Her uncle lived with his family in Sydney, his family consisting of a wife and twin daughters, some few years younger than Ms Arthur. Ms Arthur had and maintains a close relationship with her uncle and his family. Ms Arthur has no siblings or any other family members in New Zealand.
Employment, Business or Financial Ties
16. In February 2001, Ms Arthur had no significant business or financial ties with Australia. However she had employment relationships in Australia of longstanding and regular continuance. She had been employed by the firm Hodder Headline since 1992. She had continued to be in employment with the parent company of Hodder Headline whilst living in the United Kingdom on her working holiday. The T-documents contain a statutory declaration from her employer at Hodder Headline, giving the intention to re-employ Ms Arthur when she returned, as envisaged, to live in Sydney after her trip to the United Kingdom. In fact she obtained and took up a position with her former colleague at Hodder Headline in Publicity Matters and then returned to the job with Hodder Headline.
Extent of the Person’s Assets Located in Australia
17. As of February 2001, the only assets Ms Arthur had in Australia were two items of personal significance that she had left with friends. These items were a teak walnut dresser and a large painting. Ms Arthur said she had been living in share accommodation throughout her time in Australia and in the United Kingdom and had not accumulated any substantial personal assets. She said that it was understood she would obtain domestic items, such as cutlery and crockery from her group of friends upon her return to Australia and that this is in fact what happened.
Frequency and Duration of Travel Outside of Australia
18. As of February 2001, Ms Arthur had spent the previous three years living and working in the United Kingdom. On 7 February 2001 she returned to the United Kingdom until October 2001 and since that time she has lived and worked in Sydney.
19. Mr Zhang for the Respondent referred to two migration cards completed by Ms Arthur on her departure from Australia in 1997 and her return in January 2001. In each of those cards she ticked the box which was marked visitor or temporary entrant. Ms Arthur in response said that essentially she hadn’t really paid much attention to the cards and her intention always was to return and permanently settle in Australia.
Any Other Matter Relevant to Determining Whether the Person Intends to Remain Permanently in Australia - Background
20. Ms Arthur described a very close relationship with her uncle and his family. She said that following the birth of her own daughter she and her mother had reconciled and her mother now resides with her in Australia and helps with the care of her daughter. Ms Arthur said that it was always her intention to live permanently in Sydney and that had been the case since she first visited Australia at the age of 15. As soon as she was financially able to do so she came to Australia at the age of 22, with a view to settling here permanently. She said that she had gone to England to live and work as part of the adventure “that most other young Australians” undertake. She said that like most other young Australians she just wanted to gain the life and work experience in the United Kingdom and return to live permanently in Sydney.
21. Ms Arthur described a lifestyle not untypical of a person travelling to the United Kingdom, living in share accommodation, both in Australia and in the United Kingdom, without accumulating substantial assets in the course of this lifestyle. Ms Arthur was an impressive witness, she was forthright and open in her evidence and responded frankly to questions put to her. The Tribunal accepts her as a witness of truth.
22. I have had close regard to the factors set out in subsection 7(3) of the Act and to the case law. The evidence shows that Ms Arthur had lived for some years out of Australia; she had little by way of financial ties, business ties or personal assets in Australia and had not worked in Australia for several years. The evidence shows that she had lived something of an itinerant lifestyle in the United Kingdom; however, she had maintained a permanence of employment. Moreover, that employment was a continuation of a well established and longstanding employment relationship with the publishing industry and in particular with Hodder Headline’s group. Furthermore, Ms Arthur had obtained an offer of employment in the publishing industry with a colleague from Hodder Headline and after her return to Australia she renewed her employment with Hodder Headline and continues in that employment to this day.
23. In Hafza, Cox J made the point “that as a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home”…….His Honour went on to say “the test is whether the person has retained a continuity of association with the place, together with an intention to return to that place and an attitude that place remains home”.
24. The evidence before me shows that Ms Arthur has had a continuing familial association with Australia of a very close nature, continuing employment association with Australia of a longstanding and close nature and substantial friendships in Australia which she has considered to be her home. Under these circumstances I am satisfied that as of 26 February 2001, Ms Arthur had retained a continuity of association with Australia with an intention to return to Australia and an attitude that Australia remained her home. From this evidence I find that as of 26 February 2001 Ms Arthur was resident in Australia and temporarily absent.
DECISION
25. The decision under review is set aside and in substitution thereof the Tribunal decides that as of 26 February 2001 Ms Arthur was resident in Australia and temporarily absent.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin
Signed: N.Kinchin .....................................................................................
AssociateDate/s of Hearing: 3 May 2005
Date of Decision: 27 May 2005
Solicitor for the Applicant: Self-represented
Advocate for the Respondent : Mr Andrew Zhang
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