Christopher SCIBERRAS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 413

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 413

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4755

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Christopher SCIBERRAS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Prof T Sourdin, Member

Date4 June 2010

PlaceSydney

Decision The decision under review is affirmed.

..............[SGD]...................

Prof T Sourdin, Member

CATCHWORDS

SOCIAL SECURITY– Newstart allowance – Australian resident – Applicant living and studying overseas – Decision under review affirmed.

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999

REASONS FOR DECISION

4 June 2010 Prof T Sourdin, Member    

INTRODUCTION

1. Christopher Sciberras, applied for a Newstart allowance on his return to Australia for a brief time while undertaking studies in Ireland in 2009. The Department did not grant Mr Sciberras’s Newstart allowance because they found that he did not meet the definition of an Australian resident pursuant to the Social Security Act (‘the Act’). The Social Security Appeals Tribunal (‘the SSAT’) agreed with this decision. I also agree with the decision to reject the claim made by Mr Sciberras for Newstart allowance.

2. To successfully apply for a Newstart allowance, an applicant must meet certain criteria. Some of those criteria relate to citizenship and residence. There appears to be no dispute that Mr Sciberras is an Australian citizen. However, there is an issue about whether Mr Sciberras was an Australian resident at the time his application was made. The decision of Centrelink of 24 June 2009 was made after considering the Australian resident definitions in Section 7 of the Act. The SSAT also considered this definition carefully after hearing evidence from Mr Sciberras. At the hearing of this matter, I also carefully checked the history given by Mr Sciberras to the SSAT. This was largely agreed to by Mr Sciberras.

3.      Mr Sciberras was born in Malta on 27 April 1965. He arrived in Australia in 1982. He became an Australian citizen that year and lived in Australia until 29 July 1996 apart from a short visit overseas. After he left Australia in July 1996 and he did not return until nearly 13 years later in 8 June 2009. 

4.      He applied for Centrelink benefits (Newstart allowance) on 22 June 2009 and left Australia to continue with his studies overseas in Ireland August 2009.

ISSUES

5. The issue for determination is whether Mr Sciberras is an ‘Australian resident’ as defined by Section 7 (2) of the Act.

Facts

6.      The facts of this matter are not complex and are largely not in dispute.  The Applicant lives in Ireland and is studying in Dublin. The applicant married in late 2008. His wife, who is Chinese, resides with him in Dublin. She is not working in Dublin and Mr Sciberras says that she has a temporary six month visa.

7.      During the short period of less than two months that the applicant has been in Australia in the past 14 years, he has stayed with his mother. He currently resides in Dublin and the AAT hearing was conducted via telephone at 4 pm on 24 May to ensure that the applicant’s University examinations in relation to the course he is undertaking and the time difference between Dublin and Sydney did not impact upon his attendance.

8.      The applicant has some family in Australia including a mother, sister, uncle and cousins. The applicant does not work in Australia and has no financial ties to Australia. He has no bank accounts in Australia. He said in the hearing that he may have a superannuation account in Australia from 1996 relating to his work in Australia up to and including that year. He has current bank accounts in Europe and has part time work in Ireland which he undertakes while studying full time in Ireland.

SUBMISSIONS

9.      At the hearing of the matter, the respondent relied upon its statement of Facts Issues and Contentions dated 9 April 2010. I also invited Mr Sciberras to lodge additional material within one week following the hearing. The AAT received an email from Mr Sciberras on 26 May 2010 and I will refer to this below. Mr Sciberras was unrepresented at the hearing and Ms Warner Knight appeared for the Respondent.

10.     The material received by the AAT via email, on 26 May 2010 is reproduced below:

I like to confirm my position with regards to Centrelink’s statement that I am considered not an Australian resident. I do not agree with this statement and thus I fully consider myself a full Australian Citizen and full resident under the Australian Act shown to me from the AAT records sent or posted to me. 

Therefore I am fully entitled for Centerlink social payments under the prescribed Act for the only duration I was in Australia. I am also entitled for all damages caused by Centrelink’s illegal refusal to assist me in finding a job and the damages caused to my relationship between my wife and me. Centerlink used the residence property clause section discriminately against me to destroy my marriage.

In my case, whether I have a property in Australia or not is completely irrelevant to my claim as a citizen for social allowance. The fact Centerlink used such discriminating point put me in a helpless person position in front of my wife as an incapable husband thus undermining my marriage. The Police forces criminals has been using such tactic to spread rumours about my financial weakness to possible future wives to destroy my relationship, which my financial weakness was caused by the police in the first place by destroying my jobs and my studies to destroy any relationships and deny me the right to have a family.

Centerlink deliberately tried to falsify my application under section T9 of the AAT in particular were the statement appears contradicting my statement stating not looking for work which clearly if I trusted Centerlink such a statement would have gone unnoticed and thus Centerlink would not have paid me any social payments or assisted me in finding work.

Centerlink clearly were given legal written and signed statements by me both on the application and attached, clearly stating by me the human right crimes committed by the Australian police forces and EU police forces, which clearly mentions the destruction of my jobs, studies and relationships for more than 20 years and despite these serious legally written claims Centerlink made no effort to make any concessions within my social claim to Centerlink, infect Centerlink kept on deceiving me by telling me I had no rights to  social claims due to my residency basis which is wrong.

Centerlink has a clear duty of care towards it citizens under the Australian Act especially citizens in my situation, yet Centerlink supported the police criminals by not assisting me as a victim of more than 20 years of crimes against me and infect helped the police criminals by applying discriminating tactics against me to deny me my rights to seek work assistance and denying me financial assistance.  I was further advised by Centrelink’s staff that since I do not qualify for social security payments that I need not fill in the job search book.

Under these circumstances of Centrelink’s decisions to deny me social security, clearly showed to me that I had no rights whatsoever to apply for any further compensation at the time of my first application. It seems now that I have to be back in Australia to reapply for compensation, which will cost me several thousand dollars. This was clearly a deliberate ploy by Centerlink to mislead me and discriminate against me to cause direct and indirect further harm in order to support government criminals to destroy innocent people as per my document to the in International Criminal court 2006(T4. Therefore I want to seek compensation from Centerlink as a result of their deliberate corrupt and discriminating behaviour towards me to cause me harm. I would like also Centrelink’s staff to be investigated for their corrupt and discriminating behaviour towards me.

I was sworn in for the ATT hearing, yet none of Centrelink’s staff responsible were present at neither the SSAT nor the ATT hearings to give any evidence. Centrelink’s representative at the hearing was neither sworn in. I consider this matter totally a disadvantage to me and thus discriminating towards me. So far it can clearly been seen that both Tribunals systems the SSAT and the ATT Tribunal systems favour Centerlink and thus its corrupt nature to support the destruction of innocent people which is clearly contrary to Centrelink’s duty of care towards the Australian people in particular to crime victims and the poor.

I see no issue with the Act prescribed to me for the hearing of the AAT on the 24thMay 2010 in my case. If Centrelink’s staff and their legal representation had an issue with the Act in my case, I cannot see such an issue is to blame for Centrelink’s corrupt behaviour in applying the Act discriminatingly.

As far as the residence, issue if a person has a tent or a house or neither has both to live in, Centerlink or any Government Department has no right to apply the Act in a discriminate way against Australian Citizens like in my case especially who is poor as a result of gross human right crimes that span more than 20 years and thus as a result own no property whatsoever thus denying me social benefits or job assistance. Centerlink is acting illegally and wrong towards me, the Social Appeals Tribunal supports the legal wrongs of Centerlink, which is illegal and if the AAT hands down a decision in favour of Centerlink it would also be legally wrong under the Australian Act. Therefore the ATT should act legally according to its powers given to it, and all points made by me should be clearly stated by the ATT were it has powers or were it has no power to intervene within each of my points made prior to the hearing, at the hearing and from this correspondence. [SIC]

11.     At the hearing, Mr Sciberras submitted that he was not able to return to Australia earlier because the police had caused him difficulties. He believed that he should be entitled to return to Australia and have the Newstart allowance. In his view Centrelink was required to look at these actions and that these are relevant factors that Centrelink should consider. Mr Sciberras noted that Centrelink was there to ”help people out” and he did not think that Centrelink had fulfilled their obligations. Mr Sciberras thought that Centrelink was doing harm by not writing a letter to assist him to find a job.

12.     Mr Sciberras also said that some material which was relied upon by the SSAT was incorrect. In particular, he said at the hearing that on his brief return to Australia he was not on a holiday but was looking for a job. He also said that he would have returned to Australia permanently at that time if he had failed his examinations in relation to his studies in Ireland. He did not fail his examinations and returned to Dublin after approximately two months in Australia.

13. Ms Warner Knight indicated that Centrelink applied the criteria which are set out in the Act, as was their duty.

CONSIDERATION

14.     In considering the questions for determination, the relevant statutory provisions are:

Social Security Act 1991 No. 46, 1991

Australian residence definitions

7. (1) In this Act, unless the contrary intention appears:

"Australian resident" has the meaning given by subsection (2);

"qualifying Australian residence" has the meaning given by subsection (5).

Australian residentperson

(2) An is a who:

Australia

(a)  resides in ; and

(b)  is one of the following:

Australian

(i)    an citizen;

person

(ii) a who is, within the meaning of the Migration Act 1958,
             the holder of a valid permanent entry permit;

personreturn

(iii)  a who has been granted, or who is included in, a
             endorsement, or a resident visa, in force under that
              Act;

return

person

(iv)   a who:

exempt non-citizen

(A)  is, for the purposes of that Act, an ;
                   and

Australia

(B)  is likely to remain permanently in .

Note: "exempt non-citizen" is defined in section 5 of the Migration Act 1958:

it covers non-citizens who are diplomats, members of armed forces, ships' crew
members and others and, under section 7 of the Act, do not
need an entry permit or entry visa to enter .

exempt non-citizensAustralia

person

(3) In deciding for the purposes of this Act whether or not a is
, regard must be had to:

residing in Australia

personAustralia

(a)  the nature of the accommodation used by the in ; and

person

(b)  the nature and extent of the family relationships the has in
       ; and

Australia

person

(c)  the nature and extent of the 's employment, business or
       financial ties with ; and

Australia

personAustralia

(d)  the nature and extent of the 's property located in ;
       and

personAustralia

(e)  the frequency and duration of the 's travel outside ;
       and

person

(f)  any other matter relevant to determining whether the intends to
       remain permanently in .

Australia

Social Security (Administration) Act 1999

29 General Rule
(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
   (a) is an Australian resident; and
   (b) is in Australia.
(2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

15.     In relation to the evidence, the parties were not ad idem on a number of issues.  Mr Sciberras did not fully address the residence requirement in his application or at the hearing although the written material he sent in after the hearing addressed some of the criteria. At the hearing, he said that he was an Australian citizen and that he should therefore be entitled to the Newstart allowance.

16.     Ms Warner Knight said that in relation to the legislation, Mr Sciberras did not satisfy the factors which are necessary to establish residence. In reply, Mr Sciberras said that he cannot meet the criteria because of the police actions taken against him and considered that the legislation was therefore discriminatory.

17.     I must consider each of the factors set out in the legislation.

18.     It is clear that citizenship is not sufficient to meet the requirements under the legislation and that there are also criteria that must be considered to determine whether a person is “residing in Australia”.

19. As the Respondent has done, I now turn to each of the factors under Section 7, in turn:

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

The respondent has noted that during his brief return to Australia Mr Sciberras resided with his mother. He had been away from Australia for almost 13 years when he returned to Australia for a period of approximately two months and Mr Sciberras did not attempt to rent other premises and nor does he own residential premises in Australia.

(b) the nature and extent of the family relationships the person has in Australia; and

Both Mr Sciberras and the Respondent agreed that Mr Sciberras has some family in Australia. He has a mother, sister, uncle and cousins in Australia. He had been absent from Australia for almost 13 years when he returned in June 2009. He married overseas in September 2008 and his wife was still living in China in September 2009. His wife now lives with him in Dublin on a temporary visa

(c) the nature and extent of the person's employment, business or financial ties with Australia; and

Mr Sciberras has lived, worked and studied overseas since July 1996. He said that he was looking for work in Australia when he made his Newstart application on 22 June 2009. He also clearly had strong ties to Ireland at that time. He said in evidence that he intended to return to Ireland to continue his studies if he passed his University examinations (which he did). He had overseas bank accounts and pension accounts. He may have had a small amount of superannuation in an Australian account however he provided no details of this. I find that he had significant ties outside Australia and minimal ties within Australia.

(d)  the nature and extent of the person's property located in Australia; and

Mr Sciberras has no property located within Australia and there is no evidence that he moved any property to Australia.

(e)  the frequency and duration of the person's travel outside Australia; and

Mr Sciberras was absent from Australia for approximately 13 years. He returned to Australia for approximately two months. It is clear that he has lived and travelled outside Australia for all but a period of approximately two months since 1996.

(f)  any other matter relevant to determining whether the person intends to remain permanently in Australia.

Mr Sciberras says that he has been victimised by the Police and that as a result he has largely lived outside of Australia. He says that this is a factor that the Tribunal should consider. I have referred to this below as it does not seem to relate to these legislative criteria other than to note that Mr Sciberras considered that this was an ongoing issue that meant that it would be difficult for him to return to Australia. Putting these matters to one side, Mr Sciberras said in evidence that he returned to Australia during his study break from his studies in Ireland. It was his intention to return to Ireland and continue with his studies if he passed his exams. It cannot be said that at the time that he made the application for a Newstart allowance that he intended to permanently remain in Australia.

20.     I am required to consider all of these factors when determining whether or not Mr Sciberras could be said to be “residing in Australia” when he made his Centrelink application. He made that application on 22 June 2008 some 14 days after his return to Australia after an absence of almost 13 years. I find that he could not be said to be “residing in Australia” at that time as a result of the consideration of the all of the factors above and after considering the evidence of Mr Sciberras. I therefore find that the decision to refuse the Newstart allowance was correct.

21.     I turn now to a final matter raised by Mr Sciberras which is referred to above. Essentially Mr Sciberras says that he is poor and has no property in Australia because of ‘human rights abuses.’ He also says in his written material that he is a victim who has suffered as a result of the behaviour of the Australian authorities and that these matters should be considered when considering whether his application for a Newstart allowance could be successful. In terms of this submission, the legislation sets out criteria that must be applied when considering whether Mr Sciberras was ”residing in Australia” at the relevant time (22 June 2008). Mr Sciberras may be submitting that his circumstances have resulted in the criteria that are to be considered not being met. The role of the Tribunal and the original decision maker is to consider the criteria when making a decision about the Newstart allowance. Mr Sciberras does not meet the criteria and therefore is not eligible for a Newstart allowance.

CONCLUSION

22.     For the above reasons stated above I determine as follows: The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Prof T Sourdin, Member.

Signed: .....................[SGD].....................................................
           Research Associate

Date/s of Hearing  24 May 2010
Date of Decision  4 June 2010
Self Represented Applicant

Solicitor for the Respondent  Elizabeth Warner Knight