Bingren Chen Huijun Zhang and Secretary, Department of Social Services
[2014] AATA 457
[2014] AATA 457
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5341
2013/5539
Re
Bingren Chen
Huijun Zhang
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date 8 July 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS – SOCIAL SECURITY – Special Benefit – applicants Chinese citizens – permanent residents – whether applicants were Australian residents at date of application – applicants spend majority of time in China – limited assets in Australia – assets in China – decision under review affirmed
Legislation
Social Security Act 1991 ss 7(2), 7(3), 729
Cases
Hafza v Director-General of Social Security (1985) 6 FCR 444
Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241
Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745
Begaj and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 826
REASONS FOR DECISION
Senior Member J Toohey
8 July 2014
Background
Mr Chen and Ms Zhang are husband and wife. They are both 79 years old. They are Chinese citizens. They first came to Australia in 2000. They have been permanent residents since September 2004.
In October 2009, Mr Chen and Ms Zhang were granted Special Benefit. Their payment was cancelled in April 2010 because they had been away from Australia for longer than the allowable portability period.
On 27 May 2013, Mr Chen and Ms Zhang applied for Special Benefit again. Centrelink rejected their application on the ground that they were not Australian residents at that time. In September 2013, the Social Security Appeals Tribunal agreed with Centrelink.
I have to decide if Mr Chen and Ms Zhang were Australian residents when they applied for Special Benefit in May 2013. If they were, they were eligible for Special Benefit; if not, then they were not eligible, and Centrelink’s decision was correct.
Mr Chen and Ms Zhang have been in China since 31 March 2014. They attended a hearing by telephone and spoke through an interpreter.
Who is eligible for Special Benefit?
The legislation concerning eligibility for Special Benefit is contained in the Social Security Act 1991 (the Act).
To be eligible for Special Benefit, a person must be an Australian resident, or hold a certain kind of visa (which neither Mr Chen nor Ms Zhang hold): s 729.
Who is an Australian resident?
An Australian resident is a person who resides in Australia and is either an Australian citizen, or a permanent resident, or holds a special category of visa: s 7(2). Mr Chen and Ms Zhang are not Australian citizens and nor do they hold a special category of visa.
Section 7(3) of the Act states that, when deciding if Mr Chen and Ms Zhang are residing in Australia, I must have regard to all of the following:
(a)the nature of the accommodation used by them in Australia;
(b)the nature and extent of the family relationships the person has in Australia; and
(c)the nature and extent of their employment, business or financial ties with Australia;
(d)the nature and extent of their assets located in Australia;
(e)the frequency and duration of their travel outside Australia; and
(f)any other matter relevant to determining whether they intend to remain permanently in Australia.
Being a resident means being physically present in a place and intending to treat that place as home, at least for the time being, although not necessarily forever: Hafza v Director-General of Social Security (1985) 6 FCR 444, per Wilcox J at 449-450; and see Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241.
In Hafza, Wilcox J said:
Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place -- even involuntarily : see Commissioners of Inland Revenue v. Lysaght (1928) AC 234 a p 248 and Keil v Keil (1947) VR 383 -- a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place -- Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) AC 217 at p 225 and Judd v. Judd (1957) 75 WN (N.S.W.) 147 at p 149 -- together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (1969) 16 F.L.R. 231 at p.236.
What this means is that a person may be away from a place, but still be a resident if she or he intends that place to be home, at least for the time being. Each case must be decided on its merits and the relevance and importance of the factors in s 7(3) will vary in each case. The criteria are there to guide the decision-maker in determining the person’s intention as to the place of residence: Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745; see also Begaj and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 826.
Were Mr Chen and Ms Zhang Australian residents when they applied for Special Benefit in May 2013?
Since they became permanent residents in September 2004, Mr Chen and Ms Zhang have spent approximately one-third of their time in Australia; the rest they have spent in China. When in China, they stay for long periods. Their pattern each year since May 2007 has been to spend about ten months of the year in Australia, after which they return to China the following March, staying there for about 14 months. Their movements since September 2004 have been as follows:
7 September 2004 – 25 December 2004 China
26 December 2004 – 27 September 2005 Australia
28 September 2005 – 12 May 2007 China
13 May 2007 –27 March 2008 Australia
28 March 2008 – 30 May 2009 China
31 May 2009 – 29 March 2010 Australia
30 March 2010 - 15 May 2013 China
16 May 2013 – 30 March 2014 Australia
31 March 2014 – present ChinaWhen they are in Australia, Mr Chen and Ms Zhang live with their son and daughter-in-law and their children. They pay $140 each week for accommodation and food. When they are in China they live with family members there. They own no real estate in Australia. When they are in China they live with Mr Chen’s older brother.
Not surprisingly, given their age, neither Mr Chen nor Ms Zhang is employed. However, nor do they have any business or financial ties in Australia. Their only income is a monthly pension from China which they have not had transferred to Australia. It appears from what Mr Chen told the Social Security Appeals Tribunal that he has a retirement fund in China. Other than an Australian bank account which they opened in May 2013 and which had a balance of approximately $2000 in September 2013, their assets, such as they are, are in China.
Mr Chen and Ms Zhang both have medical conditions that require treatment. Ms Zhang has a thyroid condition that is currently being diagnosed. Mr Chen has a lower back condition which requires physiotherapy. They have received some treatment in Australia but prefer the treatment that is available in China.
Mr Chen says he and Ms Zhang returned to China because they cannot afford the high cost of living in Sydney, they speak little English and face a language barrier here, they wish to undergo medical treatment in China, they have relatives and friends in China who can help them financially, and they have an age pension there. Whether they return to Australia will depend on their health.
Mr Chen says he and Ms Zhang came to Australia with plans to stay here with their son. However, circumstances, in particular their health, mean they have no choice but to return to China.
Conclusion
I accept that Mr Chen and Ms Zhang came to Australia originally with plans to make it their home. However, as Mr Chen says, their circumstances changed. Taking into account all of their circumstances, I am not satisfied they were residing in Australia in May 2013 when they applied for Special Benefit. I am not satisfied that they regarded Australia as their home at that time or intended to make it their home. I am not satisfied that the nature and strength of their relationship to, or association with, Australia was such that they can be said to have been residing in Australia at that time.
For these reasons I affirm the decision that Mr Chen and Ms Zhang were not Australian residents when they applied for Special Benefit on 27 May 2013.
1. I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 8 July 2014
Date(s) of hearing 4 July 2014 Representative for the Applicants Mr Chen Solicitor for the Respondent Ms Freda Taah
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