Athanasiadis and Secretary, Department of Employment and Workplace Relations

[2006] AATA 874

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2006/409

GENERAL ADMINISTRATIVE DIVISION

Re:         CHRISOSTOMOS ATHANASIADIS

Applicant

And:SECRETARY,

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             12 October 2006

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) Regina Perton
  Member

SOCIAL SECURITY – Newstart Allowance – qualification – Australian citizen - whether residing in Australia – decision under review affirmed

Social Security Act 1991 ss 7(2), 7(3), 593

Hafza v Director-General of Social Security (1985) 6 FCR 444

REASONS FOR DECISION

12 October 2006  Regina Perton, Member

1.      Centrelink administers social security payments for Government agencies including the Department of Employment and Workplace Relations.  Most people who do not have regular dealings with Centrelink do not realise that Australian citizenship does not automatically entitle a person to social security benefits such as Newstart Allowance (NSA) or Age Pension if they return to Australia after living overseas for a considerable period.  The applicant in this case, Mr Chrisostomos Athanasiadis, is one of those affected by this legislation.

2.      Mr Athanasiadis is a 64 year old Australian citizen.  He was born in Greece in 1941 and migrated to Australia in 1966.  He worked at various jobs before running a restaurant for several years.  He married in 1972 and he and his wife have two children who are now in their early thirties.  In 1984 he returned to Greece with his wife and children.  Prior to departure, they sold their Australian home and half the restaurant business.  In 1987 Mr Athanasiadis returned to Australia alone to sell the remaining part of his business.  He then returned to Greece in 1988 or 1989.  He did not return to Australia again until 2 October 2005.  His wife and children did not return to Australia with him. 

3.      Mr Athanasiadis lodged an application for NSA with Centrelink in early November 2005.  He was paid NSA backdated to 26 October 2005.  Mr Athanasiadis initially enquired about making a claim for NSA on 5 October 2005.  Centrelink sent him the pertinent application form on that day advising him that if he lodged the form within 2 weeks, NSA would be paid as from 5 October 2005.  However, Mr Athanasiadis did not lodge the form by the date specified.  He subsequently made another enquiry and was sent a fresh form on 26 October 2005, which he lodged within the following two weeks, namely on 2 November 2005.  He was therefore paid NSA  from 26 October 2005. 

4.      Mr Athanasiadis was unhappy that his payments of NSA had not been backdated further.  He lodged a request for review by an Authorised Review Officer (ARO) on 16 November 2005.  On 18 November 2005, an ARO decided that Mr Athanasiadis was not entitled to receive payments prior to 26 October 2005. 

5.      On 22 November 2005, it was decided that Mr Athanasiadis was not eligible to be paid NSA at all.  His NSA payments were cancelled on the basis that he did not meet residency requirements set out in the Social Security Act 1991 (the Act).  

6.      Mr Athanasiadis lodged an application for review with the Social Security Appeals Tribunal (SSAT) on 1 December 2005 regarding both the cancellation and start date decisions.  On 18 January 2006, an ARO determined that the decision to cancel Mr Athanasiadis’s NSA payments was correct.  On 23 March 2006, the SSAT affirmed the decisions under review. 

7.      Mr Athanasiadis lodged an application for review with the Tribunal on 17 May 2006.  The Tribunal extended the time for lodgement of the application for review with the consent of Centrelink.

8.      The major issue for the Tribunal in this matter is whether Mr Athanasiadis met the residency requirements for NSA as at 26 October 2005; and hence, whether his NSA should have been cancelled.  If the Tribunal were to decide that he met the residency requirement and that the payment should not have been cancelled, it would then need to consider whether payments could have been backdated to a date earlier than 26 October 2005.   

EVIDENCE

9.      Mr Athanasiadis told the Tribunal that he had arrived in Australia in 1966.  He came on a temporary basis to play professional soccer in Adelaide.  He liked Australia so much that he decided to stay permanently.  He became an Australian citizen in October 1979.  After working for others for a time, he opened up and operated a restaurant in Collingwood, which became, and still remains, one of the better known Greek restaurants in Melbourne.  He married in 1972 and has a son and a daughter.  He initially returned to Greece in 1984 because his mother was ill.  He said that after his mother’s death in 1989 he had wanted to return to Australia but his wife, who is also of Greek origin, wanted to stay in Greece.  He therefore yielded to her wishes.  His children are now adults and his relationship with his wife had deteriorated so he decided to return to Australia.  After his return to Australia in October 2005, his wife contacted him to say she was leaving him for someone else.  She has now moved to England with her new partner.  Mr Athanasiadis and his wife are not yet divorced.  His children now aged 30 and 32 respectively, are both single and remain in the house he and his wife own in Greece.  He said that his daughter is considering returning to Australia soon.

10.     Mr Athanasiadis indicated that in the 18 years between 1966 and 1984, he did not apply for any Government assistance.  He pointed out that he had worked hard including delivering bread and working in mines and factories, sustaining injuries whilst doing so but he kept on going.  In his restaurant, he had provided employment for a significant number of people.  He said that he would rather be working than claiming NSA but it has been harder to get work than he anticipated given his age and health.

11.     Mr Athanasiadis stated that his parents are deceased as are three of his six siblings.  He is the youngest in the family, with his two remaining siblings being 72 and 82 years old respectively.  They live in Greece and he does not see much of them.  In Australia, he has an uncle, a cousin and many close friends, including his best man and the godfather of his children as well as his own godchildren. 

12.     In Greece Mr Athanasiadis became involved in a business for a while but unfortunately things went wrong and he lost a considerable amount of money.  He and his wife own a house worth around 75,000 euros.  He does not want to sell the house.  He is now in a very difficult financial situation.  He has borrowed money from friends and continues to look for work.  His health has deteriorated, partly due to the stress of his situation. 

13.     Mr Athanasiadis provided a number of documents to the Tribunal, including copies of his application for electoral enrolment lodged in June 2006; his Victorian driver’s licence obtained in July 2006; his children’s baptismal certificates showing they were born and baptised in Australia; a certificate of membership of the Thessaloniki Association; letters showing he had been assisted financially by friends since his return to Australia; a letter showing the rental he is paying for his present accommodation in Melbourne; and letters of general support from friends in Melbourne. 

14.     Mr Athanasiadis stated that he is not able to read and write in English; so a friend assisted him to complete the relevant Centrelink forms.  He was not able to read the instructions independently.  He said that he would not have appealed against the starting date for NSA had he understood the rules for such a pension.  He bought a one-way ticket to Australia.  He indicated that he intends to remain in Australia for the rest of his life.  He has recently applied for age pension, for which he becomes eligible in November 2006.

15.     A friend of many years standing, Con Spyridis, accompanied Mr Athanasiadis to the hearing and confirmed many of the details provided by Mr Athanasiadis.

CONSIDERATION OF THE ISSUES

16. Section 593 of the Act provides that a person may only become eligible for NSA if he is an Australian resident. The term Australian resident is defined in s 7(2) of the Act:

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.

17. Section 7(3) of the Act sets out the criteria to which regard must be had in deciding whether 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.

18. The Tribunal has considered each of the factors listed in s 7(3) of the Act:

(a)       the nature of the accommodation used by the person in Australia

At the time of lodging his claim for NSA, Mr Athanasiadis was staying with an uncle and paying no rent.  From November 2005, he rented a room with its own facilities for $105 per week.  He does not own property in Australia.

(b)the nature and extent of the family relationships the person has in Australia

Mr Athanasiadis has an uncle, cousins and friends, including his best man and godparents of his children as well as his godchildren in Australia.  His two adult children and wife, from whom he is now separated, were all in Greece at the time of claim for NSA.

(c)the nature and extent of the person's employment, business or financial ties within Australia

Mr Athanasiadis worked in Australia from 1966 to 1984 and returned for a time to work in and dispose of his restaurant.  The restaurant he helped to establish is still operating but he no longer has an interest in it.  At the time of his claim, he had a small amount of money in an Australian bank account.  He has reactivated his Australian contacts since returning to Australia; but at the time of the claim had not worked or operated a business in Australia for almost two decades.

(d)       the nature and extent of the person's assets located in Australia

The applicant had his personal possessions and a small bank balance in Australia at the time he lodged his claim.  

(e)       the frequency and duration of the person's travel outside Australia

Mr Athanasiadis arrived in Australia in 1966 at the age of 24.  He became an Australian citizen in 1979.  He remained in Australia for 18 years until 1984.  He moved to Greece in 1984, returning in the late 1980s to sell the remainder of his Australian assets and returned to Greece soon thereafter.  He did not return to Australia until early October 2005. 

(f)Any other matter relevant to determining whether the person intends to remain permanently in Australia

Mr Athanasiadis is an Australian citizen.  His most recent arrival in Australia was less than a month before the start date of his NSA payments.  Mr Athanasiadis indicated that it is his intention to remain in Australia for the rest of his life.  He stated that he had stayed away for so many years because he ceded to the wishes of his wife and children.  Since cancellation of the claim, he has re-enrolled to vote, obtained a Victorian driver’s licence and provided other evidence of his wish to remain in Australia.

19.     This matter involves the balancing of various factors.  Factors that support the Mr Athanasiadis’s submission that he resided in Australia at the time of the claim for NSA include his purchase of a one-way ticket to Australia and his resumption of old friendships.  On the other hand, Mr Athanasiadis had been out of Australia for over 17 years until some three weeks before the deemed start date of his NSA on 26 October 2005. 

20.     In Hafza v Director-General of Social Security (1985) 6 FCR 444, the Federal Court found that a relevant factor in relation to residence is the retention of a continuity of association with a place. At the time of Mr Athanasiadis’s claim, he had returned to Australia after an absence of some 17 or 18 years and had only been back for a month. His family remained in Greece as did his assets. He was in temporary accommodation with relatives. He was resuming contact with friends after a long break. While the Tribunal accepts that Mr Athanasiadis had at that time, and still has, a genuine intention to remain in Australia, a subjective intention to reside in Australia is insufficient for a determination of residency. The criteria in s 7(3) need to be considered objectively.

21. Given the applicant’s lack of assets in Australia, when compared to those in Greece, the temporary nature of his accommodation in Australia at that time, his having spent most of the previous two decades outside Australia and his being back in Australia a very short time before lodging the application, the Tribunal finds that Mr Athanasiadis was not a person residing in Australia for the purposes of s 7(2) and s 593 of the Act on the deemed claim date of 26 October 2005. Therefore, the decision to cancel his NSA payments was appropriate.

22.     Having decided that Mr Athanasiadis did not meet the residency requirements for NSA as at 26 October 2005, there is no reason for the Tribunal to consider whether the claim should have been backdated. 

23.     As was indicated to Mr Athanasiadis at the hearing, the Tribunal may well have taken a different view if it were assessing his situation in October 2006.  However, it is the facts as at October 2005 which are relevant to this decision.

DECISION

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of

Ms Regina Perton, Member

(sgd)     Ursula Noyé

Clerk

Date of Hearing:  12 September 2006

Date of Decision:  12 October 2006
Advocate for applicant:                Self-represented
Solicitor for respondent:              Ms Holly Weston, Phillips Fox