Baccon and Secretary, Department of Family and Community Services
[2006] AATA 19
•13 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 19
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/796
GENERAL ADMINISTRATIVE DIVISION ) Re SUNEE BACCON Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON AO Date13 January 2006
PlaceSydney
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that the Applicant is eligible for the age pension, the date of effect being 4 February 2005.
[Sgd] REAR ADMIRAL A R HORTON AO
CATCHWORDS
SOCIAL SECURITY – eligibility for age pension – age qualification – Australian citizen - Australian resident criteria - requirement for qualifying Australian residency – periods of residence in Australia as recorded by Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) – adequacy of supporting documentation before the Tribunal –– decision set aside– applicant eligible for age pension
Social Security Act 1991 – sections 7(2), 77(5), 29, 43
Australian Citizenship Act 1948 – section 13
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Schlageter and Secretary of Department of Social Security (1985) 26 SSR 317
Re Hibbert and Secretary of Department of Social Security (1990) 58 SSR 791
Re Wybrow and Secretary of Department of Social Security (1992) 71 SSR 1025
Re Yatikkata and Secretary, Department of Family and Community Services (2004) 6 ALD 262
REASONS FOR DECISION
13 January 2006 REAR ADMIRAL A R HORTON AO 1. The consideration of this matter has been conducted on the papers, as requested by Mrs Sunee Baccon at a Tribunal conference on 10 October 2005, and as agreed by the advocate for the Secretary, Department of Family and Community Services (“the Respondent”).
2. On 13 September 2004 Mrs Baccon lodged a claim for age pension with Centrelink. This claim was denied as she was not present In Australia at that time as required under the provisions of section 29(1) of the Social Security Act 1991 (“the Act”). On 4 February 2005, Mrs Baccon lodged another claim whilst present in Australia. Centrelink rejected this latter claim on the basis that Mrs Baccon did not meet the 10 year qualifying residency requirement vide section 7(5) of the Act This decision was affirmed by an Authorised Review Officer (“ARO”) on 22 March 2005 and the Social Security Appeals Tribunal (“SSAT”) on 30 May 2005.
DECISION UNDER REVIEW
3. The decision of the SSAT, dated 30 May 2005, that Mrs Baccon does not meet the residency requirements for the age pension by this Tribunal is the decision under review by this Tribunal.
ISSUES
4. The issue for consideration before me is whether Mrs Baccon has 10 years qualifying Australian residence which would make her eligible for receipt of the age pension. In deciding this I must consider whether:
(a)Mrs Baccon has been an Australian resident for a continuous period of 10 years or for an aggregate of periods succeeding 10 years, at least one period being of 5 years or more.
LEGISLATION
5. The relevant legislation is section 7 and 43 of the Social Security Act 1991. Section 43 of the Act addresses the qualifications for age pension and relevantly states:
“43(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;
(b) the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.”
6. 10 years qualifying Australian residence is defined in subsection 7(5) of the Act, which states:
“7(5) A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian 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.”
EVIDENCE
7. I had before me the T-documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) Movement Records of Mrs Baccon. In addition, Mrs Baccon’s husband, Mr Thomas Baccon, has provided letters and attachments dated 3 June 2005, 18 July 2005, 27 September 2005, 12 November 2005 and 1 December 2005. Unfortunately the papers include little direct input from Mrs Baccon herself. 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.
8. An example of the sometimes vague nature of Mr Baccon’s written evidence is as follows; in a letter to the Tribunal dated 27 September 2005, he states that to the best of his knowledge and based on stamps in his passport “It would seem that in (1988 to 1996 in Aust) 9 years, we were in Australia for …” and here he lists various months of residency in Australia for each year from 1996 to 2005, for a total in that period of 68 months. He acknowledges that the passport of Mrs Baccon is of no help as it has “nothing in it”. In response to a letter to Mrs Baccon from Centrelink dated 1 March 2005, which requests details of Australian Residence in order to assess eligibility for the age pension, and which states “please advise details, and provide proof, of all departures and arrivals to and from Australia from 20 March 1988 to date”, Mr Baccon replied on 11 March 2005, that “I could do it but I wont, there is no law in Australia that will give you that right”.
dimia movement record
9. The DIMIA Movement Record details, together with my calculations of periods of residence in Australia, is as follows:
Arrive Depart Period in residence
18 May 1988 1 June 1990 2 years
26 February 1996 19 March 1996 3 weeks
2 September 1997 2 October 1997 4 weeks
24 August 2000 15 September 2000 3 weeks
28 June 2001 2 July 2001 1 week
10 September 2002 29 September 2002 3 weeks
2 February 2004 16 February 2004 2 weeks
2 February 2005 28 February 2005 3 weeks
10. Assuming these records to be correct and complete, Mrs Baccon first arrived in Australia almost 17 years prior to lodging the claim under review. From those records, she has actually been physically present in this country for a total of less than two and a half years; the longest period being two years, but most other periods being a matter of a few weeks.
11. Mr Baccon, in his written evidence, disputes the DIMIA records outlining Mrs Baccon’s movement to and from Australia. In a letter of 17 November 2005, as in other letters, Mr Baccon disputes the records of DIMIA in respect of when his wife arrived in, and departed from, Australia. His reference in that letter to his wife leaving Australia in 1990 and returning in 1991 is unclear, but I assume his position is that his wife remained in Australia throughout that period. The DIMIA record referred to above shows that Mrs Baccon left Australia on 1 June 1990, and did not return until 26 February 1996.
CONSIDERATION
is mrs baccon an australian resident?
12. In order to determine whether Mrs Baccon has 10 years qualifying Australian residence pursuant to section 43(1) of the Act and defined at section 7(5) it must first be established that Mrs Baccon has been an ‘Australian resident’ for the required length of time.. Australian resident is defined at section 7(2) of the Act as a person who resides in Australia and is an Australian citizen, the holder of a permanent visa or a protected special category visa holder.
is mrs baccon an australian citizen?
13. Firstly, it is clear from the evidence and is accepted as fact by me that Mrs Baccon is an Australian citizen and has been since 1991. A letter from the Council of the Shire of Coonamble, dated 27 March 1991 and addressed to Mrs Baccon at Yarran Street Coonamble advises that her Certificate of Australian Citizenship has been received, and will be presented on 10 April 1991 or at another time if that date is not convenient (T8). Suffice that the letter from the Council does confirm, by reference to the issue of the Certificate of Australian Citizenship, that Mrs Baccon had met the relevant legislative criteria as defined in section 13 of the Australian Citizenship Act1948. An undated copy of Mrs Baccon’s Certificate of Australian Citizenship is at T30.
resident in australia
14. Section 7(3) of the Act provides guidance as to issues that must be considered when deciding whether a person resides in Australia and provides a non-exhaustive list of factors to consider 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.”
15. The following paragraphs considers each of these factors in turn:
· nature of the accommodation used by mrs baccon in Australia
16. The evidence before me as to the nature of accommodation in Australia is that provided by Mr Baccon. That evidence is that in the early years, Mrs Baccon lived in Coonamble, wherein for some period she acted as a carer for her mother-in-law. For some period, and perhaps until late 1994, she owned a home in that town, the reasons for sale, as given by Mr Baccon, being because they commenced travelling. At a later time, vide Mr Baccon’s letter of 7 July 2005, they lived with his brother at Sutherland, and more recently their residence has been at Hamlyn Terrace. The evidence (from the age pension claim) is that they do not own their property but “have the right to use free for life”. Whilst I am conscious of the fact that almost all correspondence from Mr and Mrs Baccon in the last two years has originated from Thailand, there is no evidence on the papers to suggest that the homes in Australia did not, and do not, exist, and are not used from time to time.
· nature and extent of the family relationships mrs baccon has in Australia
17. In a letter dated 9 June 2004 to the Assistant Secretary, International Branch of the Respondent, Mr Baccon stated that Mrs Baccon has a daughter in Australia. The only evidence regarding Mrs Baccon relationship with her daughter is a comment in a letter from Mr Baccon to Luke Carter dated 12 November 2005 that “My wife Sunee Baccon will be in Australia for Xmas and the New year I am not sure when she will be back in Thailand she will be staying with her daughter in QLD she owns a restaurant there”. No details are known other than that the daughter now resides in Queensland. The papers make no other reference to family or the extent and nature of family relationships. From the DIMIA movement records, it may be inferred that Mrs Baccon’s physical relationships in Australia are limited at most to annual visits of a few weeks.
18. In her age pension claim of 4 February 2005, Mrs Baccon stated that she had been in receipt of a social security benefit (carer pension) within the previous 10 years. In a letter in support of this claim, Mr Baccon stated that Mrs Baccon had cared for his mother, Mrs P A Baccon, living at Coonamble, for about two years from 1988 – 1990.
· nature and extent of mrs baccon's employment, business or financial ties with Australia
19. There is no evidence that Mr and Mrs Baccon are employed or retain any business ties in this country. The former is in receipt of superannuation benefits and the age pension, and it is assumed that he has therefore left the work force.
20. There is no evidence of a business being conducted by Mrs Baccon. In a letter of 9 June 2004 to the Respondent (T14), Mr Baccon refers to Mrs Baccon’s Business Registration Number. A copy of a Certificate of Registration was forwarded to the Tribunal by Mr Baccon on 17 June 2005, showing an issue date of 25 January 1992 and an expiry date of 10 February 1994. The Principal Place of Business is given as Reid Street, Coonamble, with an Other Place of Business as Yarran Street Coonamble. There is no evidence before me as to what that business was, or was to be, or whether it actually existed or eventuated.
21. However, it is appropriate to take account of Mr and Mrs Baccon’s ages when considering the issue of employment and business. As both Mr and Mrs Baccon are of retirement age, it is not unusual that they have no employment or business ties in Australia at this time in their life.
22. Details of Mrs Baccon’s financial ties with Australia are sparse. Reference has been made in the papers to a bank account (Commonwealth Bank) in 1990. The claim for age pension refers to a different numbered joint account, a minimal account balance being shown in an ‘Income and Assets’ form of 4 February 2005.
23. In addition, at Tp17 is a bank statement for June 1990, which indicates two fortnightly social security pensions, attributable (by an ink entry) to Sunee Baccon. This bank account (which is not that referred to in the claim for the Age Pension) is in joint names. It could be that Mr Baccon was in receipt of a social security payment at that time, although there is no evidence to that effect. But if so, it was certainly not the age pension (which he is now in receipt of) as he would not have been age eligible. Thus the benefit might well have been that paid to Mrs Baccon.
· nature and extent of mrs baccon's assets located in Australia
24. Mrs Baccon falls short in the matter of assets, having none herself and none in conjunction with her husband. Mrs Baccon’s Income and Assets’ claim form dated 4 February 2005 shows that Mr and Mrs Baccon do not own their home and have no property or assets, no shares or investments, no insurance policies that can be cashed in, no income other than that already referred to and no vehicles. The only identifiable asset is $5000 in respect of market value of household contents. The evidence on the papers is that they do not pay rent for the premises at Hamlyn Terrace, having “the right to use free for life”.
25. The records indicate that Mr and Mrs Baccon were using a Coonamble address in mid 1990 (T7). Mr Baccon further advised that Mrs Baccon previously owned a home in Reid Street Coonamble, this being sold when they started travelling. Under a cover letter dated 18 July 2005 Mr Baccon, forwarded a letter, dated 20 October 1994, addressed to Mrs Baccon from Wal Browne and Company, solicitors of Coonamble, in respect of her share of a property settlement. In the cover letter, Mr Baccon stated that this settlement was in respect of the sale of the property at Reid Street, Coonamble.
· frequency and duration of the person's travel outside Australia; and
26. The frequency and duration of travel outside Australia may be derived from the DIMIA movement records. It reveals that since 1990 (that is two years after first arrival) she has lived outside Australia, except for periods in the order of two to four weeks which occurred about every 18 months.
27. On 13 October 1987 Mrs Baccon was issued with a Thai passport (Tp14). On 15 March 1988 she married Mr Thomas Baccon at the Australian Embassy, Bangkok. On 4 May 1988 Mrs Baccon was issued an Australian visa for multiple return travel in her maiden name. (Tp15) which was stamped for entry by Immigration Australia, on 18 May 1988. This date stamp accords with the DIMIA Movement Record (R1) which shows that Mrs Baccon first arrived in Australia on 18 May 1988.
28. On 13 October 1991, Mrs Baccon was issued with an Australian Passport by the Australian Embassy in Bangkok. This would seem to confirm that she was in Thailand at that time, and it accords with the DIMIA record that she was absent from Australia. It should be noted at this point that there is a significant discrepancy in respect of the date apparently stamped in Mrs Baccon’s passport of 26 February 1988, some three months before approval of the visa and three months prior to the record of entry retained by DIMIA. There is no explanation before me in respect of this discrepancy.
· any other matter relevant to determining whether the person intends to remain permanently in Australia
29. That Mr Baccon has an Australian age pension is a consideration in forming an opinion as to whether Mrs Baccon intends to reside permanently in Australia. In his letter of 27 September 2005 to the Tribunal, Mr Baccon referred to annual periods ranging from one to 10 months, and averaging some six months, when he claims he was in Australia based on stamps in his passport. He claims that Mrs Baccon “was with me”, but the evidence provided by DIMIA clearly indicates that this was not the case. I cannot accept that the DIMIA records could be so grossly in error.
case law
30. The cases of Hafza v Director-General of Social Security (1985) 6 FCR 444, Re Schlageter and Secretary, Department of Social Security (1985) 26 SSR 317 and Re Wybrow and Secretary, Department of Social Security (1992) 71 SSR 1025 provide further assistance in defining ‘resident’ in Australia. In Hafza at 449 Wilcox J said:
“….As a general concept residence includes two elements: physical presence in the 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 for 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 an intention to return to that place and an attitude that that place remains home.”
31. In Re Schlageter it was stated that “It is well established that [residence] does not bear any technical or special meaning and is to be given its ordinary English meaning. For a person to be residing in a country, he must have settled in that country. It need not be his only home, but it must have some degree of permanence”.
32. In the more recent decision of Wybrow it was held that the definition of residing in Australia “compels a decision maker to pay some regard to the enumerated factors”. In this case the tribunal found that whilst the applicant had been in Japan for eight years except for one brief period, he remained resident in Australia because of his continuing connections to Australia and his ephemeral connections to Japan.
FINDINGS
33. The original decision in this matter and the subsequent affirmations of that decision by an ARO and the SSAT were predicated on the belief that Mrs Baccon did not arrive in Australia prior to 1996, and hence the 10 year qualifying Australian residency criteria could not be met. The evidence before me is clear that Mrs Baccon first arrived in 1988, and probably on 18 May, that is, almost 17 years prior to the lodgement of the claim for age pension under consideration.
34. Clearly, Mrs Baccon has not been physically present in Australia for 10 consecutive years. However, this fact does not preclude a finding that Mrs Baccon was resident in Australia. Taking into consideration the abovementioned factors, I find that Mrs Baccon has strong ties to Australia and taking into consideration the circumstances as a whole I find that Mrs Baccon has been resident in Australia since 18 May 1988.
35. In respect of the interpretation of “qualifying Australian residence” at subsection 7(5), the Guide to the Social Security Act at 2.2.2.30 accepts that temporary absences from Australia do not interrupt the accumulation of the required periods of residency. Case law is not particularly helpful in the determination of what latitude in respect of temporary absences is considered appropriate. The decision in Re Hibbert and Secretary, Department of Social Security (1990) 58 SSR 791 reflects the view that an absence of whatever duration may not be held to be temporary if all ties with Australia, such as the sale of home and assets, have been severed. Re Yatikkaya and Secretary, Department of Family and Community Services (2004) 76 ALD 262 reflects the view that a prolonged absence from Australia for the particular purpose of looking after close relatives must have some definitive end date if it is to be considered temporary; an extension of the absence thereafter may not necessarily be considered of a temporary nature. There is no evidence that Mrs Baccon has been outside of Australia looking after a close relative.
36. Taking account of case law, and drawing on Re Hafza, I find that Mrs Baccon fulfils the requirements of section 7(5)(a) of the Act in respect of being an Australian resident for a continuous period of not less than 10 years, and hence is eligible for the age pension pursuant to section 43(1) of the Act. My decision is not taken lightly, as concern must be expressed at the minimal periods Mrs Baccon has spent in Australia since 1990 (or maybe 1994), albeit they occurred reasonably regularly. I also take account of her relationship with her husband and the income he receives from Australian sources, his lengthy periods in Australia which were not challenged by the Respondent, that she has taken Australian citizenship, that she continues to have family resident in Australia, and that the existence of a family home in this country, however briefly it may be used, has not been challenged.
37. The decision under review is therefore set aside and Mrs Baccon is found to be eligible for the age pension, the date of effect being 4 February 2005 when her claim was lodged.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO
Signed: A. Krilis
AssociateDate/s of Hearing On the papers, 12 December 2005
Date of Decision 13 January 2006
Representative for the Applicant Tom Baccon
Representative for the Respondent Luke Carter
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