Arvanitis and Secretary, Department of Family and Community Services

[2005] AATA 1103

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1103

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/628 & V2005/629

GENERAL ADMINISTRATIVE  DIVISION		)
Re		HRISTOS ARVANITIS and MILITSA ARVANITIS

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date8 November 2005

PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED at all relevant times the applicants were residents of Australia and are each entitled to age pension.

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

Senior Member

SOCIAL SECURITY – age pension – whether applicants residents of Australia – both lived in Australia from 1963 and 1964 until 1983 – both returned to Greece to care for elderly parents and returned in 2004 and 2005 – connection with Australia continued whilst in Greece – decision set aside

Social Security (Administration) Act 1999 (Cth) s 29

Social Security Act 1991 (Cth) s 7 (2) and s 7 (3)

Hafza v Director-General of Social Security (1985) 60 ALR 674

REASONS FOR DECISION

8 November 2005 Mr John Handley, Senior Member           

1.      The applicants are both citizens of Australia.  They are both living in Australia.  They have been denied Age Pension (“AP”) because the respondent decided that they were not residents of Australia.  The Social Security Appeals Tribunal (“SSAT”) agreed with that decision and affirmed it on 16 June 2005.  This review concerns a challenge to the decision made by the SSAT.

2.      Some of the facts are not in dispute and they briefly can be summarised as follows.

3.      Mrs Arvanitis is presently 63 years of age and Mr Arvanitis is presently 66 years of age.  They both arrived in Australia in 1963 and 1964 respectively and were married in 1966.  They have one child, a son, who was born also in 1966 and who is presently 39 years of age.  He resides in Greece.  Mr and Mrs Arvanitis became Australian citizens in 1979 but returned to Greece in 1983.  Mr Arvanitis returned to Australia in July 2004 and Mrs Arvanitis returned to Australia in February 2005.  They both made applications for AP within a few days of returning.  Mr Arvanitis was paid AP until March 2005 when his qualification was revoked and Mrs Arvanitis’ claim was rejected.  The respondent decided that they were not residents of Australia and it followed from that decision that they did not qualify for payment.

the legislation

4. Section 29 of the Social Security (Administration) Act 1999 provides that a claim for a social security payment can only be made by a person who is an Australian resident and who is in Australia.  The Social Security Act 1991 (“the Act”) relevantly defines “Australian resident” at s 7 (2) as a person who resides in Australia and who is an Australian citizen.  The expression “resides in Australia” is not defined but s 7 (3) records the following criteria namely:

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.

the applicants’ evidence

5.      Prior to 1983, the applicants lived and worked in Australia.  They purchased a home in suburban Melbourne.  In 1983, Mrs Arvanitis learnt that her parents were in perilous health and they were both blind.  She returned to Greece to care for them.  Because it was intended that her return to Greece would be for a short time, Mr Arvanitis remained in Australia and continued to work.  Approximately 10 months later he learnt that his parents were unwell and he was asked by other family members to return to Greece to care for them.  Mr Arvanitis learnt that his sister, who had previously been caring for his parents, had suffered a stroke and could no longer care for them.  It was anticipated that he would be living in Greece for some time whilst caring for his parents and the applicants decided to sell their home in Melbourne.  Mr Arvanitis’ parents died in 1989 and 1996 respectively.  Mrs Arvanitis’ parents died in 1991 and 2001 respectively.

6.      The applicants intended to return to Australia in 2001 but at or about that time, their adult son had commenced divorce proceedings.  He had married in December 1999 but the marriage was of short duration and a separation commenced with his wife leaving the matrimonial premises.  At the commencement of the divorce proceedings his wife could not be located and it was believed that she had returned to her native Russia.  In order to achieve a divorce under Greek law, evidence was needed from persons who knew of the relationship and who could attest that there had been a separation.  For reasons which were not immediately apparent, to the applicants or to me, those proceedings did not conclude until 2005.  The applicants learnt (later) that it was not necessary for both of them to give evidence and it was decided that Mr Arvanitis would return to Australia.  He did so in 2004 and shortly entered into a lease of 12 months for an apartment in Preston, in suburban Melbourne.  Mrs Arvanitis stayed in Greece to give evidence on behalf of her son and upon that evidence being given and the divorce proceedings concluding, she made arrangements to return to Australia.

7.      Whilst residing in Greece Mr and Mrs Arvanitis lived in an apartment that they owned with their son.  Their son continues to live in that apartment.  It is intended that he will return to live in Australia and upon doing so, the apartment will be sold and the funds will be transferred to Australia.  The applicants said that they have not yet sold the apartment because their son is unemployed and has no other place to live in Greece.  The lease of the premises in Preston has been forfeited because neither of the applicants are receiving a pension from Centrelink.  They presently reside with friends and family members in Melbourne.

8.      The applicants said that after they returned to Greece in 1983 they continued to hold and renew their Australian passports.  They also maintained their registration on the Australian Electoral Rolls and voted at each Australian State and Federal election.  They did not vote in Greek elections.  Mr Arvanitis continued to renew his Victorian Drivers’ Licence by forwarding a photograph to a relative in Melbourne on each occasion that the licence was due for renewal.  They have allowed their Greek passports to lapse and have not renewed them.

9.      The applicants did undertake some casual or part-time work in Greece but do not qualify for a Greek pension.

10.     Mr Arvanitis said that he returned to Australia in 2004 in order to obtain accommodation for he and his wife in anticipation that she would shortly follow him.  Mr Arvanitis said that he is unable to work presently by reason of a coronary illness and produced a medical certificate at the hearing in evidence of his incapacity.  The applicants said that they intend to remain in Australia and live the rest of their lives here.

11.     The respondent submitted that the applicants continue to own assets which remain in Greece namely the flat, household effects, a motor car and monies in a joint bank account.  Whilst it would appear that the applicants brought only their clothing with them to Australia in 2004 and 2005 respectively, Mr Arvanitis notified the review officer and the SSAT that he had transferred $3,500 to Australia but had not disclosed those funds when he claimed the pension.  Mr Arvanitis had resided in Australia for 19 of his 66 years only and Mrs Arvanitis had resided in Australia for 20 of her 63 years.  They have dual citizenship between Australia and Greece and their claims for AP in Australia were each made within a matter of days of arrival in 2004 and 2005 respectively.  Both persons do not qualify for any Greek pension.  Whilst Mrs Arvanitis said that she remained in Greece to give evidence for her son in his divorce proceedings, it appears from the T‑documents (T13) that she had booked her ticket to return to Australia in August 2004 and no satisfactory explanation was given as to why she did not return to Australia until February 2005.

12.     On balance it was submitted that the applicants became residents of Greece in 1983 and have retained a continuity of association with Greece, and not Australia, since then.  It was submitted that by reason of the location of major assets in Greece, there is a degree of association with that country and not with Australia.  On balance it should be found that the applicants were not residing in Australia in July 2004 or at February 2005.

conclusion and reasons for decision

13.     In Hafza v Director-General of Social Security (1985) 60 ALR 674 Wilcox J discussed the meaning of the word “residence”.  His Honour decided:

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.…

14.     His Honour then examined a number of other decisions and discussed the concepts, which he regarded as being relevant, of the coincidence between physical presence and intention to regard a place as home; residence not necessarily ceasing by absence; continuity of association; possibility of simultaneous residence in more than one place and whether there is an intention to return to a former place.

15. In the context of this and other similar applications, regard must also be had to the criteria found at s 7 (3) of the Act. The criteria then listed are not discretionary or given as examples. The word “must” as it appears dictates the obvious parliamentary intention.

16.     The submissions of the respondent are not without some merit.  It may be thought that retaining real estate, a bank account with funds, a motor car and furniture in Greece point to an association with that country inconsistent with residence in Australia.  Additionally, having returned to Greece and resided for more than 25 years in the country of their birth and where relatives continue to reside might also point to residence not existing in Australia.

17.     On balance however I think the case put on behalf of the applicants is correct and preferable and I am satisfied that at relevant dates they have resided in Australia.

18.     Mr Arvanitis returned to Australia before his wife with the intention of obtaining accommodation for both of them.  He entered into a 12 month lease.  He also acquired some items of furniture.  The respondent was apparently content that he was a resident because upon his application he was ultimately granted AP.

19.     Obviously they were both residents prior to 1983.  They were working and living in Australia and owned real estate.  They returned to Greece, independently of each other, to care for elderly, infirm parents.  Upon the demise of their parents they returned to Australia, save for a short delay associated with the divorce proceedings initiated by their son.  I am satisfied that whilst Mr and Mrs Arvanitis were living in Greece they retained an intention to always return to Australia.  That they continued to maintain their registration on the Australia Electoral Rolls and voted at Australian elections points to this.  Additionally I note that Mr Arvanitis maintained a Victorian Drivers’ Licence and they both maintained a current Australian passport.  Indeed they did not renew their Greek passport and allowed it to lapse.  They did not vote in Greek elections, whilst living in Greece.  These features suggest a connection with Australia, (of which they were citizens) and not with Greece.

20.     I accept that the evidence giving by Mr and Mrs Arvanitis concerning the retention of the real estate in Greece to be truthful, it being a place of residence of their son.  I accept also that it is intended at the end of this year when his divorce is approved by Greek authorities that the real estate will be sold and he will return to live in Australia and the proceeds of sale will be transferred.  This is demonstrative in my view of an intention to return to Australia and permanently reside with his parents who, in my view, have formed the intention of permanently residing in Australia.  It would appear from their evidence that by reason of the death of their respective parents, for whom they returned to Greece to care, that it is now their intention to live the rest of their lives in Australia. 

21.     I am satisfied that upon the proceeds of the sale of the Greek apartment being transferred to Australia, the applicants will be able to obtain accommodation of their own as opposed to sharing accommodation with friends or relatives.

22.     By reason of the applicants applying for AP the criteria under s 7 (3) of the nature and extent of their employment, business or financial ties has a diminished relevance as opposed to persons applying for another type of benefit.  I accept by reason of the applicants’ ages and their respective health that it is unlikely that they will ever again engage in employment or in a business, but upon the transfer to Australia from funds in Greece and the use of those funds for acquisition of a place of residence, they will have a financial connection to Australia.  I accept that there are other assets outside Australia but on the evidence heard, the items of furniture and the motor car are of little value.

23.     I note that the applicants recently qualified for a Medicare Card and a Seniors Card.  Those elements continue to tip the scales in their favour and on balance for the above reasons I am satisfied that on 17 July 2004 and on 28 February 2005, Mr and Mrs Arvanitis respectively were residing in Australia.  They were in those circumstances Australian residents and at the date of their respective claims they were in Australia.  It follows that they are entitled to a social security payment, in this case being Age Pension.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

Signed:         .....................................................................................
  Associate

Date of Hearing  5 October 2005
Date of Decision  8 November 2005
Solicitor for the Applicant          Self Represented
Departmental Advocate            Ms K Paul