Baccon and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1271

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1271

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/817

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUNEE BACCON

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Rear Admiral A Horton AO, Member  

Date1 May 2007  

PlaceSydney

Decision The decision under review is affirmed.

..................[sgd].........................

Rear Admiral A Horton AO
  Member

CATCHWORDS

SOCIAL SECURITY – age pension – frequency and duration of travel outside Australia – intention to remain permanently in Australia – 10 year qualifying residency requirement – receipt of partner allowance before reaching pension age – decision under review affirmed.

Social Security Act 1991; sections 7, 43

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

REASONS FOR DECISION

1 May 2007 Rear Admiral Tony Horton, Member       

1.      Mrs Sunee Baccon lodged a claim for the age pension on 4 February 2005.  The claim was rejected by Centrelink on the basis that she did not meet the 10 year qualifying residency requirement: vide subsection 7(5) of the Social Security Act 1991 (the Act). The decision was based on the evidence before Centrelink that she first arrived in Australia in 1996.

2.      Review by the Administrative Appeals Tribunal (the Tribunal) was undertaken on the papers at the request of Mrs Baccon, and as agreed by the Respondent (formerly the Secretary, Department of Family and Community Services).  The Tribunal had before it evidence that Mrs Baccon first arrived in Australia in May 1988, and found on 13 January 2006 that Mrs Baccon was eligible for the age pension.

3.      The Respondent appealed this decision to the Federal Court, the decision being set aside and the matter being remitted to the Tribunal for determination according to law.

4.      Of relevance, Mr Baccon has represented his wife throughout the history of this claim.  Whilst he provided much written material, particularly prior to the Tribunal decision in 2006, there was no input directly from Mrs Baccon.  As noted, that decision was made on the papers, and the Tribunal observed “…Suffice that whilst Mr Baccon provides much background, I am left with the task of endeavouring to ascertain the circumstances of Mrs Baccon by drawing on the largely unsubstantiated recollections of her husband”. In this hearing before me, Mrs Baccon gave oral evidence by telephone from Thailand.  I accept the advice from Mr Baccon that she is in very poor health; this seemed evident when giving her evidence, but nonetheless such evidence through an interpreter was relatively clear, and provided relevant responses to the questions put to her.  

ISSUES  

5.      The issues in this matter are as follows:

(a)When did Mrs Baccon first arrive in Australia and what were her movements in and out of Australia thereafter?

(b)Did Mrs Baccon meet the criteria for an Australian resident (subsections 7(2) and (3) of the Act) in the period until 4 February 2005?

(c)If so, did Mrs Baccon have 10 years qualifying Australian Residence (subsection 7(5) of the Act) in the period until 4 February 2005?

(d)If not, can Mrs Baccon benefit (subsection 43(1)(c) of the Act) from having a partner allowance prior to reaching age pension age?

6.      There is no issue as to Mrs Baccon being eligible by age for the pension at the date of claim.  She became eligible at the age of 62 and ½ in June 2004.  There is no issue in respect of citizenship (as may be required under subsection 7(2) of the Act), this having been granted in 1991.  There is no proposal before me that Mrs Baccon might have a qualifying residence exemption (subsection 43(1)(b) of the Act).  

DECISION    

7.      For the reasons hereafter stated, I conclude that:

(a)Mrs Baccon first arrived in Australia on 18 May 1988, travelling on a Thai passport issued in her maiden name (Chuto) and covered by an Australian visa issued by the Australian Embassy, Bangkok;

(b)Mrs Baccon subsequently left Australia on 1 June 1990, returning for periods of 4 months and 3 months in 1991 and 1992 respectively, and for lesser periods in 1994, 1996, 1997, 2000, 2001, 2002, 2004 and 2005.  At all other times she lived in Thailand unless travelling elsewhere. 

(c)Notwithstanding the oral evidence of Mrs Baccon, and the contentions of her husband, Mr Tom Baccon, who also provided much documentation in her support, there is no evidence from the Department of Immigration and Citizenship (formally the Department of  Immigration and Multicultural Affairs) to support the contention that Mrs Baccon has been an Australian resident for a continuous period of not less than 10 years (subsection 7(5)(a)) or in the alternative, she has aggregated periods exceeding 10 years, one of which must be at least 5 years or more (subsection 7(5)(b));

(d)Mrs Baccon does not meet the criteria for an Australian resident.  In particular, she has had no financial or property assets in Australia since about 1994;  no recent or current business ties;  the frequency and duration of living outside Australia is greatly in excess of her periods in this country; family relationships are evident but have been insufficient to lead her to spend other than brief periods in Australia (subsection 7(3));

(e)There is insufficient evidence to suggest that she intends to remain permanently in Australia.  In reaching that conclusion, I have paid due and proper regard to her state of health;

(f)Mrs Baccon cannot benefit from the provisions of subsection 43(1)(c) of the Act, in that she was not in receipt of partner allowance “immediately” before reaching pension age.   

8.      Mrs Baccon is therefore not eligible for the age pension.

MATERIAL

When did Mrs Baccon first arrive in Australia and what were her movements in and out of Australia thereafter?

9.      The Tribunal, in 2006, had benefit of an extract of movement records from the then Department of Immigration and Multicultural Affairs (DIMIA) (DIMIA Movements Record of 21 October 2005 – Exhibit R3) which updated earlier documentation before Centrelink.  Contrary to that earlier documentation, it also reflected arrivals and departures in Australia of Mrs Baccon in her maiden name.  Hence a first arrival date of 18 May 1988 – as against the previously believed first arrival of 26 February 1996 – was established, Mrs Baccon travelling on a Thai passport in her maiden name, with a visa issued by the Australian Embassy in Bangkok.  This date was not disputed by Mr Baccon – indeed he had argued for such an earlier arrival date, albeit he confirmed that the Thai passport of his wife – which might have clarified the matter - was no longer available.  

10.     A further updated record by the now Department of Immigration and Citizenship (DIAC) was tabled by Ms Watson, for the Secretary, Department of Families, Community Services and Indigenous Affairs (DFCSIA) (formerly Department of Family and Community Services).  (IMR Section report dated 22 February 2007 – Exhibit R4).  This record identified previously undisclosed movements between 1 June 1990 and 26 February 1996, they being marked with an asterisk below and reflecting only short periods in Australia. The movement records now before the Tribunal are as follows:

Arrive	Depart	Period of Time in Australia
18 May 1988	1 June 1990	2 years, 14 days
*8 January 1991	*21 May 1991	4 months, 13 days
*12 November 1991	*5 February 1992	2 months, 24 days
*12 February 1994	*22 February 1994	10 days
26 February 1996	19 March 1996	22 days
2 September 1997	2 October 1997	30 days
24 August 2000	15 September 2000	22 days
28 June 2001	2 July 2001	4 days
10 September 2002	29 September 2002	19 days
2 February 2004	16 February 2004	14 days
2 February 2005	28 February 2005	26 days

11.     Mr Baccon submitted that these later records included in exhibit R4 were fraudulent.  “They had nothing to do with Sunee Baccon at all”, he stated, the passport number as shown – M59257 – not being hers.   The argument of Mr Baccon is that his wife was generally in Australia throughout that period.  The records being questioned refer to a passport in the name of Chuto.  The Thai passport issued to Mrs Baccon in her maiden name of Chuto is numbered M059257 (T documents at T5).  Mr Baccon remained adamant that the absence of the number 0 was evidence of fraudulent entry.

12.     Ms Watson referred me to the visa number also recorded on the movement record, this being 524 – 22887.  That visa number defines that type of visa.  It is recorded on the photocopy of the Thai passport of Mrs Baccon at T5.  Thus the only discrepancy is the absence of the 0 in the passport number.  With that exception, the passport number accurately reflects the passport issued to Mrs Baccon (as Ms Chuto) by the Thai authorities and the identification of the visa issued by the Australian authorities.  I note that the visa is given an “end” date of 21 March 1992, but was still being recorded on subsequent uses of the Thai passport.  Ms Watson advised that the visa is essentially a permanent residence visa and therefore it continues to be valid. I accept this explanation.

13.     Mr Baccon, on behalf of his wife, questioned the authority or appropriateness of the Respondent being able to table yet a further movement record from DIAC.  As this hearing was “de novo” or “from the beginning” this new evidence was accepted; and the document was properly served on Mrs Baccon.  As to the origin of the updated document, I considered it appropriate to obtain a formal endorsement of the authenticity of these revised DIAC records, and subsequent to the hearing, such an endorsement by an officer of the Border Systems and Data Initiatives section of DIAC was provided by the Respondent.

14.     In a letter of 27 September 2005 (Exhibit A1), Mr Baccon contended that his wife was present in Australia for much greater periods in each year - up to 10 months – from 1996 until the date of claim.  He further stated at the hearing that his wife left Australia in 1990 (which is recorded in the DIAC record) “for 6 months.  She came back and before that she never left.  She never left Australia. She had 8 and a half years in Australia”.   

15.     In oral evidence, Mrs Baccon stated that she had left Australia for “not more than 6 months” about the time she gained citizenship, returning to look after her mother-in-law, and living in the latter’s home until she and her husband built their own.  This seems to contradict her evidence that they had stayed in his mother’s house until they commenced travelling in 1996.

16.     Mrs Baccon was quite adamant, and I have no reason to feel that she did not understand the questions, albeit the telephone connection was causing problems, that she always travelled with her husband.   Ms Watson referred to the records of movement of Mr Baccon, which were not before the Tribunal, showing he had travelled out of Australia on numerous occasions in the period prior to 1996, including for one year from April 1992, and that the movement records indicated that he was out of the country “almost the same amount of time” as shown in the movements records (Exhibit R4) of Mrs Baccon.     

17.     The immigration records of Mrs Baccon do not support the contention of Mr Baccon that his wife lived in Australia for lengthy periods from 1996 until 2005.  Nor do they support the contention of Mr Baccon that his wife was present in Australia from late 1990 until 1996 when they started travelling.  The evidence of Mrs Baccon was that she always travelled with him. 

18.     In the circumstances, I accept that the records now before me at Exhibit R4 – ranging from 18 May 1988 to 31 December 2006 – are a true record of the movements of Mrs Baccon in and out of Australia.  In doing so, I am concluding that Mrs Baccon was not in Australia for the majority of the period between 1 June 1990 and 4 February 2005.

Did Mrs Baccon meet the criteria for an Australian resident (subsections 7(2) and (3) of the Act) in the period until 4 February 2005?

19.     Subsection 7(2) requires that the person “reside in Australia”, and subsection 7(3) provides guidance as to issues that must be considered.  The meaning of “reside” in this context is not defined in legislation, but in Hafza v Director General of Social Security (1985) 6 FCR 444 at 449, Wilcox J 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 for ever… Physical presence and intention will coincide most of the time.  But few people are always at home. Once a person has established a home in a particular place…a person does not necessarily cease to be resident because he or she is physically absent. The test is whether a person has retained a continuity of association with the place… together with the intention to return to that place and an attitude that that place remains “home”.

20.     Prior to the hearing, and at the direction of the Tribunal,  Ms Watson sought comment from Mr Baccon as to a number of the guidance criteria that are addressed in subsection 7(3) (Letter to Mr Baccon of 20 November 2006 – Exhibit R1).  The response (Exhibit A2 dated 24 November 2006) predominantly referred to previous correspondence and documentation already before the Tribunal.   

21.     The guidance in subsection 7(3) is followed thus:

Nature of the accommodation used by Mrs Baccon in Australia        

22.     Mrs Baccon gave evidence that she and her husband lived in Coonamble when she first arrived in Australia.  Initially that was in the home of Mr Baccon’s mother – where Mrs Baccon looked after her mother-in-law, and then they built their own home.  Documents before the Tribunal for the original review on the papers, including the T documents, give two addresses, both being in Coonamble. These include a bank statement in mid 1990 which gives an address of Yarran Street and a letter to Mrs Baccon of 20 October 1994 in respect of a share in settlement of the sale of a Reid Street property.  Neither document provides evidence of Mrs Baccon’s abode at the respective time.  In an earlier letter, Mr Baccon stated that they started traveling when the Reid Street property was sold, this being prior to October 1994.  In the ensuing 10 years, when in Australia, Mrs Baccon variously stayed in the home of Mr Baccon’s father – her oral evidence – Mr Baccon’s brother’s home at Hamlyn Terrace – his evidence in A2, or with Mrs Baccon’s daughter in Queensland.  Nothing hangs on the uncertainties as to where they stayed at any point in time, the fact being that Mrs Baccon has not owned property in Australia since 1994 at the latest.

Nature and extent of family relationships     

23.     As referred to above, Mrs Baccon has a daughter in Queensland.  There is no evidence before me, either by way of documentation or orally, to suggest that the relationship is other than “normal” that is, there is no suggestion that it is an especially strong relationship such as to have significant bearing on Mrs Baccon’s presence in Australia.  Mrs Baccon and her husband give their Australian address as Hamlyn Terrace, the home of Mr Baccon’s brother.  Mrs Baccon and her husband live with her son in Bangkok, he being the owner of the home.  It seems evident that there is a strong relationship with her son, but I think it likely that her present poor health is a contributory factor. 

Employment, business or financial ties in Australia

24.     No further substantive evidence, to that obtained from the T documents and documentation provided by the Applicant for the original review on the papers, was adduced during the hearing.  Mrs Baccon was issued with a New South Wales Business Registration Number on 25 January 1992, with an expiry date of 10 February 1994.  The Place of Business was given as Reid Street Coonamble, with an “Other Place of Business” at Yarran Street.  The purpose of the business is not addressed, nor is there evidence before me as to the success or otherwise of that business.  There is no evidence of any subsequent businesses.  There is no evidence of any employment considerations in Australia. 

25.     No oral evidence has been adduced as to ongoing financial interests in Australia, other than is shown in the bank statement earlier referred to.  That document shows receipt of two Department of Social Security payments attributable to (as marked in ink) Sunee Baccon.

Nature and extent of Assets in Australia

26.     There is no evidence as to any assets, be they financial or by way of property or other tangible assets, in Australia during the period under consideration, with the exception of the Reid Street, Coonamble house, sold prior to 20 October 1994.

Frequency and duration of travel outside Australia 

27.     This matter has been adequately addressed in the first issue, the detail being in the IMR report (Exhibit R4).  That record, which I accept, indicates that aside from the initial two years in Australia from May 1988, Mrs Baccon has only been in Australia intermittently, and then for generally short periods.

Matters relevant to determining whether the person intends to remain permanently in Australia

28.     This question relates to the period leading up to the date of claim, that is, 4 February 2005.  I emphasise that timescale because the present illness of Mrs Baccon may well influence the current situation.

29.     In oral evidence, when asked whether she lived in her son’s home in Bangkok, Mrs Baccon responded “Yes”.  In respect of the period from 1996, she stated that she lived in her son’s home except for an occasion of visiting England with her husband.  That she has never bought property or other assets in Australia since the sale of Reid Street, is indicative, in my view, of no intent to remain permanently in this country.  So too, the intermittent short visits might be assessed in the same way.

30.     Whilst Mrs Baccon concluded her evidence by stating she would prefer to “come back” except that this was precluded by her illness, and I accept that situation, I must conclude that such a position in respect of the claim before me cannot be seen as realistic given the evidence as to her movements and time in Thailand, and the responses to the questions and considerations in the above paragraphs.  Thus I find that Mrs Baccon does not meet the criteria for an Australian resident as required under subsections 7(2) and (3) of the Act.

Did Mrs Baccon have 10 years qualifying Australian residence (subsection 7(5) of the Act) in the period to 4 February 2005?

31. Having failed to meet the Australian resident requirement, Mrs Baccon cannot meet the 10 year Australian residency requirement of subsection 7(5) of the Act. That subsection requires her to be “an Australian resident for a continuous period of not less than 10 years” or, if during more than one period, “at least one of those periods must be of 5 years or more, and the aggregate of those periods must exceed 10 years”.       

32.     The failure to meet the Australian resident requirement negates the need to consider this issue.

Can Mrs Baccon benefit (subsection 43(1)(c) of the Act) from having a partner allowance prior to reaching age pension age?

33.     Mrs Baccon became eligible by age for the age pension in June 2004.  The record and evidence is that she was in receipt of a carer allowance in respect of Mr Baccon’s mother when living at Coonamble in the 1988-1990 period.  Evidence now placed before me by Ms Watson is to the effect that she was in receipt of a partner allowance in 2001, such an allowance being cancelled in May 2001.  Mr Baccon did not dispute this date. The circumstances of the cancellation are not relevant to this matter.

34.     What is relevant is that the legislation requires Mrs Baccon to have been in receipt of this allowance “immediately before reaching that (pension) age.”  Ms Watson submitted that cancellation of her partner allowance in May 2001, that is some 3 years prior to Mrs Baccon reaching pension age, did not meet the “immediate” test. 

35.     I concur with this interpretation.  “Immediately” must be read in its ordinary meaning, that is “without intervening medium or agent”, with “no object or space intervening” (Macquarie Dictionary).  The legislation allows for no concession or flexibility in this regard.  In conclusion, Mrs Baccon cannot benefit from the legislation and in respect of this legislation, is not eligible for the age pension.

DECISION 

36.     For the reasons I have addressed, Mrs Baccon is not eligible for the age pension and the decision of the Social Security Appeals Tribunal of 30 May 2005 is affirmed. 

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A Horton, AO, Member.

Signed: ............[sgd].............
  Associate

Date/s of Hearing  22 March 2007
Date of Decision       1 May 2007
Representative for the Applicant    Mr T Baccon   
Solicitor for the Respondent          Ms D Watson of the Australian Government   Solicitor