Begaj and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 826
•22 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 826
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1049
GENERAL ADMINISTRATIVE DIVISION ) 2011/1194 Re Destan BEGAJ Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Ms J F Toohey, Senior Member Date22 November 2011
PlaceSydney
Decision The decisions under review are affirmed. ....................[sgd]......................
J F Toohey
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – portability period – whether grounds to extend the portability period – age pension – whether applicant an Australian resident – whether applicant had intention to treat Australia as home – decisions under review affirmed.
Social Security Act1991 ss 7, 43, 1218AA, 1218C
Social Security (Administration) Act 1999 ss 28, 29
Secretary, Department of Families, Community Services and Indigenous Affairs v Baccon [2006] FCA 773
Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745
Re Wybrow and Secretary, Department of Social Security [1992] AATA 315
REASONS FOR DECISION
22 November 2011 Ms J F Toohey, Senior Member 1. This matter concerns the payment of disability support pension to Mr Destan Begaj while he was overseas from April 2008 to October 2010, and his application for age pension on his return.
Background
2. Mr Begaj was born in 1945 in what is now Kosovo. He came to Australia in 1973 and at some later point was granted Australian citizenship. In 1981, he was granted a disability support pension.
3. In 1983, Mr Begaj returned to Kosovo. As they stood at that time, the rules regarding portability of pensions allowed him to receive the disability support pension for as long as he was overseas. He married in Kosovo in 1985. He and his wife had seven children.
4. Mr Begaj returned to Australia in 2001 with four of their children. His wife could not obtain a visa for Australia and stayed behind with the remaining children. A fifth child came to Australia the following year, and another the year after that. In 2005, one of the children in Australia became ill and all the children returned to Kosovo to be with their mother.
5. Between 2004 and 2007, Mr Begaj went to Kosovo four times. He would generally leave Australia around April or May each year and return around November or December. In 2006, while he was Kosovo, his wife obtained a visa and came to Australia with two of the children and they stayed with relatives in Perth for approximately six months. Mr Begaj was unwell and did not accompany them.
6. Over the years, the Social Security Act1991 (SS Act) has been amended several times to limit the portability of pensions with discretion to extend the period in limited circumstances only. The amendments are outlined below. Their effect was that Mr Begaj’s pension was cancelled twice, and suspended once, while he was in Kosovo between 2004 and 2007. Payments recommenced each time he returned to Australia.
7. In April 2008, Mr Begaj went back to Kosovo. Before leaving Australia, he spoke twice to Centrelink about the effect of his absence on his pension. Centrelink records show that, in February 2008, he advised Centrelink that he wanted to go to Kosovo for an indefinite period and be paid while there, and he needed money to bring his family back to Australia. An officer advised him that Centrelink would not provide assistance to bring his wife and children to Australia, and he could only be paid the pension for 13 weeks while overseas.
8. On 10 April 2008, Mr Begaj contacted Centrelink and advised that he planned to leave for Kosovo on 17 April 2008. An officer advised him that the maximum portability period was 13 weeks, and his pension would not be payable after 17 July 2008. Centrelink notes show that Mr Begaj advised he would return before that date. Mr Begaj denies this but I have no reason to doubt the record.
9. Shortly before 17 July 2008, Mr Begaj telephoned Centrelink from Kosovo and asked for his portability period to be extended on medical grounds. He faxed medical certificates to support his request but Centrelink was not satisfied that they brought him within any of the exceptions to the 13-week rule.
10. On 17 July 2008, Centrelink wrote to Mr Begaj at his last-known address in Sydney advising that his pension had been suspended. On 16 October 2008, when Mr Begaj had not sought review of the suspension, Centrelink sent a letter to his Sydney address advising that his pension had been cancelled..
11. Centrelink heard nothing further from Mr Begaj until February 2009 when Mr Behar Zogiani, representing Mr Begaj, called from Kosovo to inquire about his pension. In May 2009, Mr Zogiani followed up his call with a letter asking for the cancellation decision to be reviewed. On 25 May 2009, Centrelink wrote to Mr Begaj at the address in Kosovo given by Mr Zogiani, advising that the decision had been affirmed. Mr Begaj says he did not receive this letter but he agrees that the address Mr Zogiani gave Centrelink was correct.
12. Mr Begaj returned to Australia in October 2010. By that time, he had reached age pension age and was no longer eligible to apply for a disability support pension (see s 28 of the Social Security (Administration) Act 1999 (SSA Act)). On 29 October 2010, he applied for the age pension. Centrelink rejected his claim on the ground that he did not have the necessary intention to reside in Australia permanently in order to qualify for the age pension.
13. In February 2011, the Social Security Appeals Tribunal (SSAT) affirmed the decisions to cancel Mr Begaj’s disability support pension while he was overseas, and to refuse his claim for age pension.
14. Mr Begaj seeks review of the SSAT’s decisions. He attended a hearing before this tribunal where he was assisted by an interpreter and by Mr Robert Scogg who has known him since he returned to Australia in October 2010.
The issue
15. I have to decide:
(i)whether the 13-week portability period that applied when Mr Begaj went to Kosovo in April 2008 should be extended;
(ii)whether Mr Begaj’s application for age pension should be granted.
16. The first question requires me to decide whether any of the exceptions to the 13-week rule apply to Mr Begaj.
17. The second question requires me to decide whether Mr Begaj was an Australian resident, as that term is defined in the Act, when he applied for the age pension.
Portability periods: relevant legislation
18. The background to the portability policy is relevant to understanding why Mr Begaj’s absences have affected his pension differently at different times over the years, and why he finds the decisions about his payments confusing.
19. When the policy was introduced in 1973, portability of social security payments was generally indefinite, without additional residence requirements; a pension payable in Australia was generally payable overseas.
20. The rules have undergone extensive revision since 1973, in part to reflect that Australia’s income support system is based on residency rather than contribution. Up until 2000, the changes were often ad hoc and inconsistent. Changes since 2000 have made for greater consistency, at the same time reducing portability periods generally, including for the disability support pension. In broad terms, as they affected Mr Begaj, the changes have been as follows.
21. In November 1991, a 12-month limitation period was imposed on certain disability support pensions. Those granted before November 1991 were subject to different rules. In September 2000, the rules for all pensions were simplified and made more consistent. Generally, there was a 26-week portability period for temporary absences and, subject to certain requirements, indefinite portability for permanent absences. In July 2004, the portability period for temporary absence was reduced to 13 weeks for most pensions including disability support pension.
22. In 2008, unlimited portability of disability support pensions applied only in cases of terminal illness: s 1218AA, SS Act. As there is no suggestion that Mr Begaj had a terminal illness, this provision is not relevant.
23. As at April 2008 (and still), the portability period during a temporary absence could be be extended if the Secretary was satisfied that a person was unable to return to Australia because of an event which occurred, or began, while he or she was away. The events are of the kind ordinarily beyond a person's control and, relevant to Mr Begaj, include a serious illness of the person or a family member of the person, and the hospitalisation of the person or a family member of the person: s 1218C, SS Act.
Should Mr Begaj’s portability period be extended?
24. Mr Begaj has suffered from a depressive illness for approximately 30 years. It is apparently the reason he was receiving a disability support pension. He says he was unable to return to Australia in July 2008 because he suffered an exacerbation of his illness.
25. A report from the psychiatric clinic where Mr Begaj was treated in Kosovo in 2008 shows that he was admitted on 15 May and discharged on 2 June. The report notes that he was brought in by family members because of an aggravation of the condition for which he had been treated and regularly hospitalised since 1982; he was treated with medication and psychotherapy; he was discharged in a “satisfactory recovered state” with a recommendation that he “take his therapy regularly and visit the Neuropsychiatrist”.
26. A report dated 15 May 2010 from a neuropsychiatrist in Kosovo shows that Mr Begaj was still being treated at that time with medication. There is no evidence that he was hospitalised again for his condition.
27. Mr Begaj says he could not return to Australia after he was discharged in June 2008 because his doctors advised he should stay with his family and continue to take his medication. He says he and his wife did not have enough money for her and the children to accompany him to Australia and he had no choice but to return alone in October 2010.
28. Even if Mr Begaj required continuing medical treatment and was not particularly well when he was discharged in June 2008, the medical evidence does not support the conclusion that his illness or hospitalisation made him unable to return to Australia by 17 July 2008 or at any later time. He had travelled between Kosovo and Australia many times since his illness first developed and there is nothing to suggest that it affected his ability to travel. He did not consult his doctors about returning, and there is nothing to suggest that, if he had done so, they would have said he should not travel.
29. In January 2009, Mr Begaj broke his leg. It was in a cast and he was unable to walk for three months. A medical report dated 30 April 2009 confirms this. However, the SS Act makes clear that, for a portability period to be extended, the relevant event must occur or begin while a person is away during that 13-week period.An event which occurs or begins after that period, even if it would otherwise qualify a person for an extension, cannot ground an extension.
30. I am not satisfied that there is any ground on which the portability period that applied when Mr Begaj went overseas in April 2008 should be extended. It follows that I must affirm the decision of the SSAT.
The claim for age pension: relevant law
31. To qualify for the age pension, a person must, when he or she reaches age pension age, have ten years qualifying Australian residence: ss 43(1) and 7(5), SS Act. It is not in dispute that Mr Begaj satisfies this requirement.
32. A claim for a social security payment may only be made by a person who is an Australian resident who is residing in Australia: s 29, SSA Act. There are some exceptions to this rule but none that applies to Mr Begaj.
An Australian resident includes someone who resides in Australia and is an Australian citizen: s 7(2) SS Act. Section 7(3) provides that, in deciding whether or not a person is residing in Australia, regard must be had to the following:
(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.
33. In Secretary, Department of Families, Community Services and Indigenous Affairs v Baccon [2006] FCA 773 (21 June 2006) Branson J said at [7]:
Residence, like domicile, is a factor that connects a person with a place. It is not a term of art; the precise meaning of expressions such as ‘resident’, ‘resides in’ and ‘is residing in’ in legislation will depend upon the context provided by, and the purpose of, that legislation.
As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-General of Social Security (1985) 6 FCR 444; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70 at [36]).
Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450).
Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place (Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places.
34. In Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745 at [17] the Tribunal described its task in applying s 7(3) as follows:
The principles set out above codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that constitute the criteria will vary in each case. In the end, as is apparent from the wording in section 7(3)(f), the criteria are there to guide the decision-maker in determining the person’s intention as to the place of residence. As was submitted by [the Department], when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant’s accommodation outside Australia.
35. Absence from Australia for an extended period is not necessarily inconsistent with residence. In Re Wybrow andSecretary, Department of Social Security [1992] AATA 315, an absence from Australia for eight years except for one brief period did not preclude a finding that the applicant remained resident in Australia; the Tribunal was satisfied that the applicant had retained his connections to Australia and had only ephemeral connections to Japan.
36. Merely expressing an intention to reside in a particular place will not be sufficient. Whether the statement in fact reflects an intention to treat Australia as home, and whether an applicant is in fact residing in Australia at the time, has to be assessed in light of all the evidence about the applicant’s circumstances. No one factor is likely to be determinative.
Was Mr Begaj an Australian resident when he claimed the age pension
37. Mr Begaj’s principal grievance is with Centrelink’s decision to refuse his claim for age pension (rather than with the refusal to extend his portability period). He finds it difficult to understand how he could “lose his residency” after all this time, especially when he is an Australian citizen. However, “residing in Australia” for the purposes of the SS Act is not the same as a person’s citizenship or immigration status.
38. Mr Begaj says Australia is his home and he intends to remain here. However, when all of the matters to which regard must be had are considered, I am not satisfied that he was residing in Australia when he applied to the age pension.
39. Mr Begaj returned to Australia in October 2010 with little more than the clothes he was wearing. He has no permanent accommodation in Australia. He lives in a boarding house and relies on charity, and help from people like Mr Scogg. Other than a bank account, he has no assets in Australia and no financial ties here. He has no income. After his claim for age pension was refused, he applied for special benefit but Centrelink refused his application because special benefit has the same residence requirement as an age pension. There is no other social security payment for which he might qualify. Not surprisingly, he has no employment. His situation is clearly dire.
40. The only family Mr Begaj has in Australia are nieces and nephews in Perth with whom he has little or no contact. His immediate and extended family, and friends, are all in Kosovo. His family home, where he lives with his wife and children each time he returns, is in Kosovo.
41. Since 1983, Mr Begaj has spent the greater part of his time in Kosovo. He was there for 18 years until 2001. His longest stay in Australia since 1983 was two and a half years between November 2001 and May 2004. Since May 2004, he has spent at least half of each year in Kosovo. Although he has now been in Australia for over a year, his connection with Australia appears to have become more tenuous with time. He maintains that Australia is his home and he wants to die here but, had he followed his usual pattern, he would have returned to Kosovo around mid-2011. The manner in which he arrived suggests that is what he would have done. It is not really clear why he did not. It may have been because of these proceedings, or because he misunderstands the significance of his “residency”. In any event, I am not satisfied it was because he intended to treat Australia as his home.
42. For many years, Mr Begaj has wanted his wife and children to live in Australia with him. There is apparently no form of social security payment available to him in Kosovo. He came back here in October 2010 in the hope that his family would be able to join him; he believes they would have a better life, and more opportunities, here. However, even leaving aside the financial obstacles, it is not actually clear that they intend, or want, to join him. His wife has never accompanied him to Australia. I understand that circumstances have made that difficult because, for many years, she was unable to obtain a visa and, when she did, he could not accompany her because he was unwell. They are not wealthy and cannot afford to travel often. However, there is no evidence that she has tried to obtain another visa to join him, or even that she wants to live here. There is no evidence that any of the children have tried to join him, and the fact that they all returned to Kosovo in 2005 strongly suggests they regard it as their home.
43. At the hearing, Mr Begaj said that he and his wife are now separated. However, it is clear that what he meant by that is that they are physically apart. When asked if he would return to live with his wife and children in the family home if he went back to Kosovo, he said that he would. I am satisfied that all of his important family relationships and his family home are in Kosovo, and that he has neither in Australia.
44. It appears that Mr Begaj remains in Australia because he believes it is the only way that his family might have the chance of joining him and having what he considers a better life, and his desire is understandable. However, taking into account all of his circumstances, I am not satisfied that he was residing in Australia in October 2010 when he applied for the age pension. It follows that I must affirm the decision of the SSAT.
Conclusion
45. Mr Begaj’s circumstances are dire. He is an elderly man with a long-standing psychiatric illness. He speaks little English. He has no income at all. He is separated from his family. Without the help of people like Mr Scogg, it is difficult to know how would survive. However, unfortunately for him, I am not satisfied that his portability period should have been extended, or that he qualified for the age pension when he applied. I affirm the decisions under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of J F Toohey, Senior Member.
Signed: ...................[sgd].........................................................
Casey Comans, AssociateDate of Hearing 04 November 2011
Date of Decision 22 November 2011
Advocate for the Applicant Mr Robert ScoggSolicitor for the Respondent Ms Hannelore Schuster
DHS Legal Service Division
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