Chowdhury and Secretary, Department of Family and Community Services

[2005] AATA 589

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1357

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAHFUZ CHOWDHURY

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date20 June 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

............................................

Ms R Hunt

Senior Member

CATCHWORDS

SOCIAL SECURITY - Application for certificate of Australian residence –Applicant temporarily absent – Meaning of “residence” - Applicant did not establish residence in Australia - section 7 Social Security Act 1991 - Applicant not a resident of Australia.

LEGISLATION

Social Security Act 1991 s7

CASES

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

Levene v Inland Revenue Commissioner [1928] AC 217

Taslim and Secretary, Department of Family and Community Services [2004] AATA 28

Patel and Secretary, Department of Family and Community Services [2004] AATA 791

REASONS FOR DECISION

20 June 2005	Robin Hunt, Senior Member
SUMMARY

1.                 The documents before the Tribunal show that on 20 September 2004, the Social Security Appeals Tribunal (SSAT) affirmed the decision of a delegate of the Secretary and the reconsideration decision of an authorised review officer, that Mr Chowdhury was not eligible to receive a certificate of Australian residence. The Tribunal has affirmed the decision and finds that Mr Chowdhury is not eligible to receive the certificate he seeks. The reasons are set out below.

EVIDENCE

2.                 Mr Chowdhury gave sworn oral evidence to the Tribunal at a hearing on 31 May 2005. He told the Tribunal that he had been intending a permanent move to Australia since 2001 and had been living here with his wife since 18 February 2004. He considered that he had come to live here permanently on 29 April 2001 but had travelled in and out of Australia several times since then. Mr Chowdhury opened an Australian bank account and thought he had about $5,000 in the account when he was seeking to qualify for residency in Australia in 2001.  Also before the Tribunal is Mr Chowdhury’s letter, dated 25 February 2004, to Centrelink saying he came to live permanently in Australia on 29 April 2001. In that letter he says evidence of his intention includes his various registrations in Australia, such as his job seeker number, his tax file number, his Commonwealth Bank account and his driver’s licence as well as his sale of household goods in Auckland. In the same letter, as discussed below, he refers to other evidence of his intention to live permanently in Australia after he completed his training in Auckland on 24 November 2004.  

3.                 Mr Chowdhury told the Tribunal that when he intended to become a resident of Australia in 2001, he brought some of his personal belongings to Australia with him at this time, although his wife was unable to accompany him. The plan was for her to join him later. Mr Chowdhury said he was never told that he needed to remain in Australia to establish permanent residency status. He told the Tribunal that he had made enquiries in New Zealand in early 2001. He had thought that he would be granted a certificate of Australian residence on the basis that he was a New Zealand citizen, as long as he signalled his intention. He came to Australia on 29 April 2001 and lodged his application on 3 May 2001. He was living with a relative while he was in Australia. This relative provided some written information about the arrangement to the Tribunal. Mr Chowdhury had to leave Australia shortly afterwards, on 7 May 2001, to go to Bangladesh because his mother was ill. He then returned to New Zealand and undertook medical training. He came back to  Australia on 15 May 2003 for 9 days to sit his medical exams. He also returned on 24 November 2003 for six days to sit more exams and then he went to Bangladesh on 30 November 2003 to visit his mother, who was seriously ill again. Mr Chowdhury and his wife stayed with his mother in Bangladesh for three months. Mr Chowdhury produced medical certificates showing that his mother was hospitalised in 2001 and 2003. Mr Chowdhury returned to Australia with his wife on 18 February 2004 and he has remained in Australia since.

4.                 Centrelink rejected Mr Chowdhury’s application on 26 February 2004. Mr Chowdhury told the Tribunal that he had thought his application would be successful due to  a letter he received  from Centrelink, dated 1 June 2001, a copy of which was before the Tribunal. This letter indicated that his application for a certificate of Australian residence, made on 3 May 2001, would be reconsidered if he returned to Australia before 26 February 2004 and demonstrated that he had commenced to reside in Australia before 26 May 2001. Mr Chowdhury thought he had commenced to reside in Australia on 29 April 2001 when he came here to make his residency application.

5.                 Mr Chowdhury also disputed some of the findings of the SSAT. He said he had left a lot of money in his Australian bank account when he departed in 2001, although the SSAT found it was a small amount. He also denied that he knew that the law in relation to a New Zealander obtaining Australian residency was about to change when he applied. The SSAT had found he had no close relatives in Australia. Mr Chowdhury told the Tribunal at the hearing that he did have relatives in Australia. He considered his Australian cousins to be close relatives. He further said that he was studying with a group in New Zealand for his medical exams but did not have an “established study group” in New Zealand. He planned to come back to Australia to work and he thought his skills obtained in New Zealand would be useful here.  Mr Chowdhury told the Tribunal that he had only one examination left to complete his medical degree. He had to pass his clinical examination which covered a wide range of areas of medical practice. Mr Chowdhury said that he had enrolled in New Zealand for an overseas trained doctors’ program around January 2001. He enrolled in the course in New Zealand as it was a course that was accepted in Australia. He didn’t enrol into an equivalent program in Australia because he was not then accepted as an Australian resident and would have had to wait two years until he gained residency before he could apply. Rather than wait and delay his studies by two years, he decided to commence the course in New Zealand in July 2001. He knew that the course would continue into 2003 but had nevertheless formed the intention to reside in Australia.

6.                 Mr Zhang, the advocate for the Respondent, told the Tribunal that Centrelink accepted that Mr Chowdhury was a permanent resident from the date of his arrival in February 2004 but not prior to this date. Indications of Mr Chowdhury’s intentions at the time of his arrival in February 2004 include copies of a notice to his landlord given on 31 October 2003 for departure on 24 November 2003. As well, Mr Chowdhury sold his motor vehicle as shown on a notice of change of ownership stamped by New Zealand Post on 12 November 2003 and a letter from the purchaser of the same date. In addition, Mr Chowdhury’s motor vehicle insurer noted termination of the policy on that date. Another person wrote on 15 November 2003 that he had purchased Mr Chowdhury’s freezer, vacuum cleaner and iron with stand as he and his wife were moving to Australia. Before the Tribunal was a copy of a bank statement showing that Mr Chowdhury and his wife closed their joint bank account in New Zealand on 18 November 2003. Further, Mr Chowdhury closed his credit card account with ANZ in New Zealand which was acknowledged by the bank in writing on 19 November 2003. The President of the Auckland University Students’ Association also wrote on 20 November 2003 that he was aware that Mrs Chowdhury intended to complete her degree in Australia. A removalist’s shipping document shows that Mr and Mrs Chowdhury shipped 18 items from New Zealand to Australia and paid the invoice on 21 November 2003.

LEGISLATION

7. Section 7(2) of the Social Security Act 1991 (the Act) defines an Australian resident for the purpose of social security laws. Section 7(2)(a) of the Act requires a person to reside in Australia and paragraph (b) requires the person to be an Australian citizen or to hold certain types of visa. An Australian resident who is not a citizen must be the holder of a permanent visa or a special category visa (SCV) as a protected SCV holder. Further tests related to whether a person is a SCV holder are set out under subsections (2A) to (2G). Provisions in section 7(3) of the Act set out factors determining whether a person is residing in Australia. These 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. “

CONSIDERATION

8. As Mr Chowdhury is not an Australian citizen, he must hold either a permanent visa or a SCV as a “protected SCV holder” in accordance with paragraph (iii) of section 7(2) of the Act to become an Australian resident. There is nothing before the Tribunal to suggest that Mr Chowdhury was a permanent visa holder at the time of his application or the string of refusal decisions made in relation to his application. He has not claimed to be a protected SCV holder and there is no evidence that he is such a visa holder.

9.                 Mr Chowdhury claims that he formed the intention to move to Australia in 2001 and started to rearrange his affairs in New Zealand in anticipation before he came here in April 2001. I accept that he did form this intention and did make some arrangements towards establishing himself in Australia in due course. However, neither Mr Chowdhury nor his wife was actually physically in Australia for more than a few days until February 2004. By contrast, there is a great deal of evidence that the couple planned to remain here in 2004.  

10.               It is not in dispute that Mr Chowdhury, as a New Zealand citizen, holds a “special category visa” issued under section 32 of the Migration Act. However, to be a “protected SCV holder”, he must satisfy further provisions. A legislative change occurred on 30 March 2001 which affected New Zealand citizens claiming social security payments after 26 February 2001. The amendments received the Royal Assent on 30 March 2001. Mr Chowdhury entered Australia and made his application in April 2001 after these dates.

11. Further subsections of section 7 deal with the circumstances in which a person may be a protected SCV holder. Subsections (2A), (2B), (2C), (2D) and (2E) all require an applicant to be in Australia or residing in Australia on 26 February 2001 or temporarily absent on that day along with additional requirements. Subsections (2C)(a) and 7(2E)(b), however, allow the Secretary to determine a person to be residing in Australia if he or she commenced or recommenced residing in Australia during the 3 months commencing on 26 February 2001. As Mr Chowdhury was not physically present in Australia but in Bangladesh or living in New Zealand after his return from Bangladesh on 25 May 2001, I have turned to subsection 7(3) as a next step.

12. Provisions in section 7(3) set out factors determining whether a person is residing in Australia. The first test requires a decision maker to take regard to the nature of the accommodation in Australia. Mr Chowdhury did not establish his own household but stayed for one week with a relative from 29 April 2001. He did not travel to Australia again until 15 May 2003 when he stayed for another 9 days and sat some medical exams, departing on 24 May 2003. His wife was still overseas in New Zealand. Mr Chowdhury came back again for 6 days from 24 November 2003 and departed on 30 November 2003 when he went to Bangladesh for 3 months with his wife. Their rental tenancy was not terminated until 24 November 2004. They came to Australia together on 18 February 2004 and have remained here since. On the basis of these facts, I find that Mr Chowdhury’s accommodation arrangements did not indicate that he was a resident in Australia until 18 February 2004. This approach is consistent with the approach of Dr M Thorpe, the Presiding Member in Taslim and the Secretary [2004] AATA 28. As well, while the unfortunate illness of his mother may have called him away from Australia sooner than he intended, there is evidence to suggest that Mr Chowdhury did not plan to spend much time in Australia during 2001. He spent a brief period here in April 2001 and then travelled to Bangladesh. On 30 July 2001, he commenced a course in New Zealand that was expected to finish in January 2003. In my view, all of these matters suggest that Mr Chowdhury did not consider Australia his home until February 2004. There was no continuity of association with Australia in comparison with his pattern of behaviour in New Zealand, where his wife was studying at Auckland University and where he was also enrolled in a medical course for 18 months. His behaviour was not indicative of any habitual treatment of Australia as his home. See Hafza v Director –General  of Social Security (1985) 6 FCR 444, where Wilcox J referred to the importance of where a person eats and sleeps, has a usual or settled abode and habitually lives. These elements are missing in Mr Chowdhury’s case in February 2001 and in the following 3 months. Also see the comments of Viscount Cave in Levene v Inland  Revenue Commissioner [1928] AC 217 as to the word “reside” meaning to “dwell permanently or for a considerable time”.

13.               The next factor to be considered under subsection 7(3) is the nature of family relationships. Mr Chowdhury’s evidence is that his wife was living in New Zealand except when she was with him in Bangladesh. He gave evidence that some cousins live in Australia and that his mother was in Bangladesh.  Mr Chowdhury did have family ties in Australia but his ties in New Zealand and Bangladesh were closer than those in Australia.

14.               As to employment, business and financial ties in Australia, Mr Chowdhury provided evidence that he had been seeking work in Australia but failed to produce evidence that he had established any employment or business ties in Australia. He registered as a person looking for work and obtained a tax file number. He had a bank account in Australia since May 2001. He also had a joint bank account with his wife in New Zealand and a credit card with a bank in New Zealand. He was studying with a view to qualify as a medical practitioner in Australia as well as in New Zealand. In my view, during 2001, the much greater balance of Mr Chowdhury’s business affairs was in New Zealand where he was studying towards his degree.

15.               As to assets, the evidence before me is that he had few assets as he was a student. His only asset in Australia of any consequence was his bank account but he had accounts in New Zealand at the same time. He brought some personal belongings with him to Australia and sold goods in New Zealand in 2001 and again in 2003. He had an informal arrangement to live with his cousin and pay board when in Australia but had a lease which required the giving of notice to the landlord in New Zealand. On balance, Mr Chowdhury’s limited assets were mainly based in New Zealand.

16.               I next looked at the frequency and duration of Mr Chowdhury’s travel outside Australia. The Respondent noted that Mr Chowdhury lived in Australia for a year in 1993. He arrived in Australia again for a short period in April 2001 as detailed above. He next arrived for a few days in May 2003 and November 2003. In February 2004, he came to live in Australia permanently with his wife. The evidence before the Tribunal does not indicate frequent travel to Australia and duration of stay in Australia prior to February 2004.

17. Other matters which Mr Chowdhury put to the Tribunal were that he was not advised about the need to stay in Australia in 2001 when he first signalled his intention to migrate permanently to Australia. He told the Tribunal that he wasn’t given any information about what was required to establish residency. However, lack of information does not enable the Tribunal to overlook the usual tests of residency. As explained by Mr Zhang, the advocate for the Respondent, there isn’t an exhaustive definition for “residency”. The Respondent normally assesses whether residency has been satisfied by what a reasonable person, who intended to become a resident of Australia, would do. While Mr Chowdhury may have intended to migrate once he was able, he has demonstrated no continuity of presence in Australia beyond his short visits. He left his wife behind when he came here until 2004. He moved in with a cousin and went back to New Zealand to study. Taking this and the above discussion of relevant factors into account, I find that Mr Chowdhury, during the period of 3 months from 26 February 2001 and at the time of his application on 5 May 2001, was not residing in Australia, in terms of subsection 7(2C) or section 7(3). Bearing all these factors in mind, I am not satisfied that Mr Chowdhury was residing in Australia prior to 18 February 2004. It follows that Mr Chowdhury is not eligible to receive a certificate of Australian residence.

DECISION

18.     The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 31 May 2005 

Date of Decision: 20 June 2005               

Solicitor for the Applicant: Self   
Solicitor for the Respondent: Mr Andrew Zhang