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

Asaad and Secretary, Department of Social Services (Social services second review) [2017] AATA 2173 (15 November 2017)
Division:GENERAL DIVISION
File Number(s): 2014/2228
Re:Michael Asaad
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:15 November 2017
Place:Sydney

The decision under review, that is, the decision of the Social Security Appeals Tribunal dated 31 March 2014 is affirmed.
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Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Age Pension – residence requirements – whether the applicant meets the residency requirements – applicant does not meet the residency requirements – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
15 November 2017
BACKGROUND

The Applicant, Mr Michael Asaad, applied for the Age Pension on 3 September 2013. On 24 October 2013, the Department of Human Services, which is better known as Centrelink, refused Mr Asaad’s claim on the grounds that he did not meet the residency requirements for the Age Pension.
Mr Asaad sought review from an Authorised Review Officer (ARO), however, on 27 February 2014 the ARO affirmed the original decision.
Mr Asaad sought review from the Social Security Appeals Tribunal (SSAT). On 31 March 2014, The SSAT affirmed the decision not to grant Mr Asaad the Age Pension.
THE HEARING
Mr Michael Asaad attended the hearing and represented himself. He was accompanied by his wife, Ms Antoinette Asaad.
Michael Asaad and Antoinette Asaad gave sworn evidence.
As well as the oral evidence, many documents were put into evidence by the parties.
THE RELEVANT LEGISLATION
In the matter before me, the relevant provisions are to be found in the Social Security (Administration) Act 1999 (Cth) (the Administration Act), and in the Social Security Act 1991 (Cth) (the SS Act).
Section 29 of the Administration Act sets forth the general residency rule for applicants for social security payments. It provides as follows:
29 General rule
(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a)Is an Australian resident; and
(b)Is in Australia.
(2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
In Mr Asaad’s circumstances, sections 30, 30A, 31, 31A and 32 are not relevant.
Mr Asaad complied with section 29(1)(b) of the Administration Act as he was in Australia on 3 September 2013 when he applied for the Age Pension.
Section 7 of the SS Act specifies who will be an Australian resident for the purposes of social security law. In Mr Asaad’s circumstances, section 7 relevantly provides as follows:
7 Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
…
qualifying Australian residence has the meaning given by subsection (5).
(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.
(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.
(5) A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australia resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i)     at least one of those periods is 5 years or more; and
(ii)    the aggregate of those periods exceeds 10 years.
Section 43(1) of the SS Act sets out the qualifications for the Age Pension. In Mr Asaad’s circumstances, section 43(1) relevantly provides as follows:
43Qualification for age pension
(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a)The person has 10 years qualifying Australian residence
Therefore, in order to receive Age Pension Mr Asaad must comply with the requirements in both section 29 and in section 43 of the SS Act.
CONSIDERATION
The issue before the Tribunal is whether Mr Asaad qualified for the Age Pension within the claim period, which is the thirteen week period commencing on 3 September 2013 and concluding on 3 December 2013 (see schedule 2 clause 4(1) of the Administration Act).
On 12 August 2013, Mr Asaad was granted a subclass 801 Partner (Residence) Visa by what is now called the Department of Immigration and Border Protection. A subclass 801 visa is a permanent visa.
This means, that on 12 August 2013 Mr Asaad complied with section 7(2)(b)(ii) of the SS Act. However, his compliance with this subparagraph does not give Mr Asaad the required ten years qualifying Australian residence as required by section 43(1)(a) of the SS Act when read with section 7(5) of the SS Act.
For the sake of completeness, I note that it was not suggested before the Tribunal that Mr Asaad has ever been granted a special category visa holder who is a protected SCV holder pursuant to section 7(2)(b)(iii) of the SS Act. Briefly put, this category of visa is given to refugees and to members of their families.
Mr Asaad does not satisfy the ten years Australian residence requirement, if his case is assessed by considering only his permanent visa, as he has not been a permanent visa holder for ten years. On 12 August 2013, Mr Asaad received his permanent visa. From 12 August 2013 to the end of the claim period on 3 December 2013, Mr Asaad only had four and a half months Australian residence. Therefore, it is necessary to determine whether he is an Australian citizen by birth which would enable him to meet the ten year Australian residence requirement.
Mr Asaad asserts that he is an Australian citizen by birth, that he complies with section 7(2)(b)(i) of the SS Act, and accordingly, has ten years qualifying Australian residence as required by section 43(1)(a) of the SS Act.
I further note that it was not suggested before the Tribunal that Mr Asaad had applied for Australian citizenship by conferral.
If I find that Mr Asaad was born in Australia and is an Australian citizen by birth, it will be necessary to determine whether Mr Asaad was an Australian resident during the claim period pursuant to section 29(1)(a) of the Administration Act, when read with section 7 of the SS Act.
If I find that Mr Asaad was not born in Australia, it will not be necessary for me to determine whether he was an Australian resident during the claim period.
Was Mr Asaad Born in Australia?
The answering of this question requires me to examine the oral evidence of Michael Asaad and Antoinette Asaad, and to read and decipher the many documents before the Tribunal.
Ms Antoinette Asaad gave evidence before the Tribunal. She said that she married Mr Michael Asaad in 1986. There are seven children of the marriage. Ms Asaad said that she first met Mr Asaad in 1985 in Australia.
In his evidence before the Tribunal, Mr Asaad said that he believed that he was born at the Cottage Hospital, New Norfolk, Tasmania on 24 April 1938. In support of this view, he noted the photocopy of a baptism certificate signed on behalf of the Anglican Diocese of Tasmania, Parish of New Norfolk on 21 February 1939.
This baptism certificate which is before the Tribunal, records the baptism of Michael Boghdadi Asaad on 21 February 1939.
Mr Asaad said that when he was about three years old, his parents left for overseas and that he was then taken care of by a Lebanese family in Campsie and later in Moree in New South Wales.
He was asked by the Tribunal why he had such a strong accent, given that he was born in Australia. Mr Asaad said that his accent was because he lived on a farm at Moree with Arabic speaking people. Mr Asaad said that he did not go to school, and that he only learned to read and write when he was an adult.
Mr Asaad said that his parents were now deceased.
Mr Asaad said that he travelled to America in 1975, 1979-1980, 1985 and 1987. As he did not have an Australian passport, he said that he travelled on Australian travel documents which were only valid for six months. He said that he no longer had these travel documents.
Mr Asaad said that he had to use Australian travel documents because he could not get an Australian passport without a birth certificate. He said that he learned that the record of his birth had been destroyed in a fire at the Cottage Hospital New Norfolk and in the office of the Registrar of Births, Deaths and Marriages.
In cross-examination, Mr Asaad was asked whether he had any records of the fire or fires which destroyed the records of his birth. He said that he had no records.
Mr Asaad was asked whether the Tasmanian Registry of Births, Deaths and Marriages had his birth certificate in its records. He said that the Registry did not have his birth certificate.
Mr Asaad agreed that he was not listed as a person who was baptized at St Matthew’s Church. However, he claimed that he was baptized at another associated church.
On 11 March 1992, the Tasmanian Registry of Births, Deaths and Marriages issued a “Certificate of No Record” stating that there is no record of the birth of Michael Boghdadi Asaad during the period 1936 to 1940.
On 5 May 1992, the Magistrates Court of Tasmania, on the basis of a statutory declaration by Mr Asaad, together with accompanying documents, issued an Order that the Registrar of Births, Deaths and Marriages register Mr Asaad’s birth as having taken place on 24 April 1938 at the Cottage Hospital, New Norfolk Tasmania.
On 18 May 1992, Mr Asaad’s birth was duly registered.
In his evidence before the Tribunal, Mr Asaad said that he first obtained an Australian passport on 27 August 1998.
While the evidence is a little unclear, it appears that when Mr Asaad applied to renew his Australian passport and what is now named the Department of Immigration and Border Protection investigated his right to hold an Australian passport.
Mr Asaad stated in his evidence that in 2010 he was taken into custody and spent three months in detention in Villawood. He said that in 2011 he received a bridging visa, and in August 2012 he received a permanent visa.
On 4 March 2010, the Tasmanian Registry of Births, Deaths and Marriages cancelled Mr Asaad’s birth registration.
In his evidence, Mr Asaad agreed that he has not sought a court review of the decision to cancel his birth registration.
In his evidence, Mr Asaad admitted to the following criminal convictions.
He stated that he was first sent to prison in 1992 and served 11 months in jail. From the evidence of Ms Antoinette Asaad, it was a conviction for a drug offense in NSW.
Mr Assad said in his evidence that he was next convicted in Queensland in 2006-2007 for fraud regarding shares and he served four months in prison.
He said that he was next convicted for doing business whilst bankrupt in 2009 and served five months in jail.
On 16 May 2016, Mr Asaad was sentenced to a term of imprisonment by a judge sitting in the District Court of Queensland for identity fraud with respect to social security payments. Put briefly, the evidence before the jury was that Mr Michael Assad was Mr Rick Michaels who had arrived in Australia in 1985 on a Canadian passport. Mr Rick Michaels had constructed the identity of Mr Michael Asaad and had fraudulently obtained social security payments.
In his evidence before the Tribunal, Mr Asaad agreed that the Queensland District Court jury had concluded that he was Rick Michaels.
Finally, in response to a notice to produce pursuant to section 192 of the Administration Act, Mr Robert Wallace, Director of Business Services/Registrar of the Anglican Diocese of Tasmania wrote a letter dated 30 October 2017. In this letter, Mr Wallace stated that the Baptism certificate dated 21 February 1939, that is, the certificate recording the baptism of Michael Asaad was not genuine.
Having regard to the evidence before me, I am not satisfied that Mr Michael Asaad was born in Australia.
In particular, I place weight on the letter of Mr Robert Wallace dated 30 October 2017 that the Anglican Diocese of Tasmania does not regard the baptismal certificate as genuine.
I give weight to the fact that there is no contemporaneous record in the Tasmanian Registry of Births, Deaths and Marriages of the birth of Michael Asaad in 1938 or in 1939.
I give great weight to the conviction of Mr Asaad for identity fraud with respect to social security payments in the District Court of Queensland. It is clear that the jury was of the view that Mr Michael Asaad had not been born in Australia because he was Mr Rick Michaels who had arrived in Australia in 1985 on a Canadian passport.
Accordingly, I find that Mr Asaad did not meet the residency requirements for the Age Pension.
DECISION
The decision under review, that is, the decision of the Social Security Appeals Tribunal dated 31 March 2014 is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate
Dated: 14 November 2017

Date(s) of hearing: 7 November 2017

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

[2017] AATA 2173

15 November 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date(s) of hearing:	7 November 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services