Bay and Secretary, Department of Employment, Education, and Workplace Relations

[2011] AATA 118

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 118

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2807

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FARID BAY

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date23 February 2011  

PlaceSydney

Decision The decision under review is affirmed.   

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

Ms N Bell, Senior Member  

CATCHWORDS  - Social Security – Newstart Allowance – residency requirement

Social Security Act 1991

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      After a five month absence from Australia, Mr Bay returned from Indonesia and lodged a claim for Newstart Allowance on the day after his return.  Mr Bay’s claim was rejected on the basis that he is not resident in Australia. (Section 593 Social Security Act 1991)

2.      Section 7 of the Act provides for definitions of Australian residence. In particular, subsection 3 sets out the matters to which a decision maker must have regard when determining whether a person is residing in Australia.  Those matters 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

3.      Little has changed in Mr Bay's circumstances since the Social Security Appeals Tribunal found in May 2010 that Mr Bay's accommodation consists of  lodgings with friends; he has a brother and 3 children of a previous marriage living in Australia; his mother, wife and 5 young children are living in Indonesia; he is unemployed and has no business or financial ties in Australia; he has no assets in Australia and since 2002 he has spent considerably more of his time in Indonesia than in Australia.

4.      Mr Bay said he is still living with the friends he lived with when he returned to Australia in February 2010.  He said he borrows from friends in order to pay for his lodgings.  He has not looked for more permanent accommodation because he has no income.

5.      Mr Bay said he sees his brother every weekend and a statement from his brother, Farid Bay, confirmed this.  Mr Bay said he is very involved with his children who live in Australia and sees them almost every day, driving them to and from their schools and university. This was largely confirmed by a statement from his 3 children.

6.      Mr Bay said he has had only one month of employment since arriving in Australia in February last year. However, he said he had recently been to an interview for a full-time grounds maintenance job and expects to be confirmed in the position once he has submitted his resumé.  He said he has applied for a lot of jobs over the last year.  He has not yet completed the taxi driving course he commenced in 2010 because he failed the English test and cannot afford to retake it.

7.      Mr Bay’s only asset is an old car, worth about $200, that was given to him by a friend.

8.      Mr Bay has frequently travelled back to Indonesia since he first arrived in Australia in 1979. Department of Immigration and Citizenship records indicate the following arrivals and departures:

Arrived 2 December 1979 7 August 1980 24 February 1982 12 February 1986 23 December 1987 Not found 9 July 1993 16 September 1996 28 July 2001 25 July 2002 8 November 2003 12 June 2006 24 September 2008 25 February 2010 Departed 2 June 1980 22 August 1981 22 December 1985 6 September 1987 14 May 1988 3 April 1993 11 August 1996 15 February 1997 21 June 2002 7 November 2002 12 June 2005 24 September 2007 27 February 2009 Approx. Stay (months) 7 12 34 20 5 37 5 11 4 20 15 5 12

9.      In the last 10 years Mr Bay has spent 55 out of a possible 120 months in Australia.

10.     In 2008, when Mr Bay was last in Australia, he made a statement to Centrelink that he intended to remain in Australia permanently.  Less than 5 months after making that statement he left Australia for Indonesia for 12 months.  Mr Bay said he had to return because he was asked to do so by his wife and children.  He said he looked for work in Indonesia but found none. When I asked Mr Bay whether he intends now to remain in Australia permanently he answered that he does, but if something urgent arises in Indonesia he will return there. In particular, he said that his wife is having great difficulty with their 10 year old son who is refusing to attend school.

11.     Mr Bay has not yet lodged forms for sponsorship of his wife and 5 children to Australia. He said he has an appointment with an immigration advice centre later this month and showed the bundle of forms he had obtained from the Department of Immigration and Citizenship.  I note that in May 2010, Mr Bay told the Social Security Appeals Tribunal that he intended to apply to sponsor his family to Australia.  I also note that some 9 months have passed and he has not progressed this at all.  Mr Bay said he has been unable to find the $1750 required to lodge the application.

12.     Mr Bay has pointed to the possibility of a full time job and the forms he has obtained, but not yet completed, for sponsorship of his wife and five children in Indonesia.  These are still only possibilities.  His relationship with his brother and with his older children living in Australia appears to be closer with more frequent contact, but his wife and minor children remain in Indonesia.  Mr Bay said he is aware that the process of sponsoring people can take a long time.

13.     Mr Bay appears to have one foot in Australia and the other in Indonesia. He has stated his intention to reside here on a permanent basis before but the pattern over the last ten years has displayed firmer ties with Indonesia than with Australia.  His wife and children are there.  He has a home, with his mother, wife and children there.  In Australia he has a brother and older children but no permanent home, no job and no assets.

14.     If matters improve for Mr Bay and he is successful when he provides his resume to his prospective employer and he is able obtain a permanent home and begin the process of sponsoring his family to Australia, then he will be able to point to clearer indications that he resides in Australia.  It is open to Mr Bay to apply for a benefit or pension at any time.

decision

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

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

Dates of Hearing  16 February 2011
Date of Decision  23 February 2011
Representative for the Applicant Unrepresented
Solicitor for the Respondent       Mr James Larcombe, Centrelink Legal Services