Ciammaruconi and Secretary, Department of Social Services (Social services second review)

[2016] AATA 908

Ciammaruconi and Secretary, Department of Social Services (Social services second review) [2016] AATA 908 (15 November 2016)

Division	GENERAL DIVISION
File Number(s)	2016/1668
Re	Renato Ciammaruconi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A F Cunningham
Date	15 November 2016
Place	Hobart

The decision under review is affirmed.

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Senior Member A F Cunningham

CATCHWORDS

Social Security-age pension-overseas applicant-applicant not an Australian resident at time of claim-decision under review affirmed.

LEGISLATION

Social Security Act 1991 (the Act)

Social Security Administration Act 1999 (Administration Act)
Social Security International Agreements Act 1999 (International Agreements Act)
Administrative Appeals Tribunal Act 1975
Income Tax Assessment Act

CASES

Drake and Minister for Immigration and Ethnic Affairs 1979 2 ALD 60

Maha Hafza v Director-General of Social Security [1985] 60 ALR 674 (Wilcox J)
Baccon (2006) AATA 146 [8]-[9]
Mentink (2016) FCAFC 39

Stevens and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) AATA 675

SECONDARY MATERIALS

Guide to the Social Security Law

REASONS FOR DECISION

Senior Member A F Cunningham

1. The applicant seeks the review of a decision of the Social Services and Child Support Division (Tier 1 review) dated 29 February 2016 which affirmed a decision of Centrelink to reject his claim for age pension on the basis that he was not an Australian resident at the time of the claim.

2. The applicant attended the hearing by way of telephone link to India and was represented by Alasdair Dougall.  Brian Sparkes appeared on behalf of the respondent.

3. The T- documents were tendered in evidence pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.  A number of documents in the form of annexures to the Applicant's Submissions were tendered on behalf of the Applicant. The Applicant did not give evidence at the hearing.

   THE ISSUE

4. The sole issue for determination by the Tribunal is whether the applicant was an Australian resident at the time of his claim for age pension on 25 August 2015. It was accepted that the applicant otherwise meets the qualification requirements for age pension including that he was in Australia at the time of lodging the claim.

   BACKGROUND

5. There was no dispute as to the following facts most of which are confirmed by the documentation contained in the T- documents.

6. The applicant turned pension age on 29 August 2015. The applicant is an Australian citizen, was born in Italy and arrived in Australia on or about 20 February 1979. The applicant departed Australia on 9 May 2009 and has mainly lived in India since that date.

7. Prior to lodging his claim for age pension, the applicant returned to Australia on two occasions namely on 8 February 2011 departing on 15^th February 2011 and again on 6 February 2013 departing on 18 March 2013. The applicant returned to Australia on 22 August 2015, lodged his claim for age pension on 25 August 2015 and then departed on 3 September 2015.

8. In his claim for age pension the applicant stated that he lived in India since 2009.

   LEGISLATION

9. The relevant law is contained in the Social Security law and in particular the Social Security Act 1991 (the Act); the Social Security Administration Act 1999 (Administration Act) and the Social Security International Agreements Act 1999 (the International Agreements Act). This latter Act did not come into effect until 1 January 2016 and therefore has no relevance to the applicant’s claim for age pension.

10. Section 29 of the Administration Act provides that a claim for a Social Security payment may only be made by a person who:

    (a)        is an Australian resident; and

    (b)        is in Australia.     

    Subsection 29 (2) provides that 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.

11. The definition of Australian resident is contained in subsection 7 (2) which reads as follows:

    “7(2) An Australian resident is a person who:

    (a)  resides in Australia; and

    (b)  is one of the following:

    (i)  an Australian citizen;

    (ii)  the holder of a permanent visa;

    (iii) a special category visa holder who is a protected SCV

    holder.

12. Subsection 7 (3) provides as follows:

    “7(3) 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

    (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.

    CONTENTIONS

13. It was submitted on behalf of the applicant that the applicant satisfies the Australian residency requirement for whilst he had departed Australia in 2009, it was always his intention to return to live in Australia in retirement. It is contended that the applicant’s absence from Australia was temporary and that he had maintained connections with Australia where he has now purchased a residence.

14. Mr Sparkes submitted that the applicant was not an Australian resident at the time of making his claim for age pension although he may have had intentions to return to reside in Australia at some time in the future.

15. Detailed written submissions were received on behalf of the applicant which included a number of annexures in support. The annexures were tendered as evidence on the proviso, as submitted by Mr Sparkes, that the Tribunal note that some of the statements made in the statutory declarations were expressed as opinions and did not constitute factual evidence.   Gregory Fowler, the brother of the applicant's wife, states in his statutory declaration that he and his family have maintained constant contact with the applicant and his wife during their absence from Australia through email, phone and skype as well as personal visits when they were residing in Darwin.

1. It was submitted that following the applicant’s retirement in Australia due to health reasons, he and his wife commenced a pilgrimage to the Sai Baba Ashram (spiritual hermitage or monastery) in Andra Pradesh, India in April 2009.

2. The applicant and his wife sold their home and furniture in Darwin in order to fund their pilgrimage. Items of personal value were placed in storage units in the Northern Territory. Between April 2009 and February 2013 the applicant and his wife were granted six month tourist visas whilst in India. At the expiration of each visa the applicant and his wife departed India for the purpose of reapplying for a new Tourist Visa outside of the country. Whilst waiting for the visas to be processed they travelled to various countries including Malaysia, Thailand, Spain, Lao and Egypt.

3. On 10 April 2013 the applicant was granted a temporary residential permit by the Government of India with an expiration date of 9 April 2018. While in India the applicant and his wife purchased an apartment which they planned to sell when they returned to Australia. On the 22 December 2015 the applicant and his wife finalised their purchase of residential property in Queensland which they hold as joint tenants.

   CONSIDERATION

4. The factors listed under subsection 7 (3) of the Act are to be considered in deciding whether a person was residing in Australia at the time of the claim. The policy in the Guide to the Social Security Law at 3.1.1.10 provides guidance of the residency requirements under the Act. In Drake and Minister for Immigration and Ethnic Affairs 1979 2 ALD 60 the Full Federal Court held that consideration can be given to relevant government policy where it is not inconsistent with the legislation.

   Nature of Accommodation

5. The Guide states that:

   “People who spend a considerable time overseas will need to provide evidence

   that they still maintain strong connections to Australia. One consideration is the

   nature of the accommodation used by the person in Australia and overseas. The

   aim is to establish that the person has more settled or permanent accommodation

   in Australia than in any other country and that they have made arrangements for

   an extended period of accommodation in Australia.…”

6. The evidence before the Tribunal is that the applicant did not purchase a residence in Australia until December 2015 although he and his wife had been investigating the purchase of property from around 2011. During his brief visits to Australia following his departure in 2009, the applicant generally stayed in a hotel or with family members/friends. The applicant had jointly purchased an apartment in India in 2015 which he states it was his intention to sell when he returned to Australia.

7. The Guide states that having legal title to a house in which a person ordinarily lives is a good indication that the person resides in that country. Whilst the applicant may have been searching for a property to purchase in Australia, the evidence is that at the time of the claim the applicant did not have any accommodation of his own in Australia and did not purchase a property in Australia until some time after his claim for age pension was rejected. On the other hand he did own property in India in 2015.

8. For these reasons the Tribunal does not consider that the evidence with respect to accommodation in Australia is supportive of his claim for Australian residency.

   Family Relationships in Australia

9. The applicant’s family in Australia comprises his brother-in-law, his brother-in-law’s wife and their three children. It is contended on behalf of the applicant that he and his wife returned to Australia on three occasions to visit the family. It is noted however that the first visit in February 2011 was for a period of only seven days and the second visit some two years later, was for a period of several weeks. On the third occasion the applicant lodged his claim for age pension and was in Australia for a period of 12 days.

10. In the circumstances the Tribunal does not consider that the nature of the applicant’s family relationships in Australia is strong enough to support his claim for Australian residency.

    Nature and Extent of Employment, Business or Financial Ties in Australia

11. The applicant has not worked in Australia since May 2009 when he retired due to ill health after 30 years of employment in Australia. His financial ties with Australia at the time of his claim were in the form of two bank accounts with Westpac, with a balance of over $300,000 from which funds were withdrawn to cover living expenses in India. The applicant also maintained a term deposit in the sum of over $600,000 for the purpose of purchasing a house upon their return to Australia.

12. The evidence was that during his absence from Australia the applicant was required to lodge an annual tax return and paid tax to the Australian Government. On 21 November 2013 a Certificate of Residency under the Income Tax Assessment Act was issued to the applicant which stated that he was a resident of Australia for income tax purposes within the meaning of the Australia-India Convention and liable to pay Australian income tax in accordance with the requirements of the Income Tax Assessment Act.

13. All this evidences however, is that the applicant derived income from funds held in bank accounts and a term deposit in Australia which required him under the Income Tax Legislation to pay tax to the Australian Government.

14. The Tribunal does not find that the evidence with respect to this criterion assists the applicant in establishing Australian residency.

    Nature and Extent of Assets

15. The evidence was that the assets held by the applicant in Australia comprised miscellaneous personal items of no great monetary value which were held in storage. It was submitted on behalf of the applicant that leaving many items of significant sentimental value in storage in Australia was evidence that he maintained a strong connection to Australia and that he viewed Australia as his home.

16. The Tribunal does not dispute the applicant’s intention to return to Australia to reside at some time in the future however the issue for determination is whether he was an Australian resident at the time of his claim for age pension. Of relevance is the fact that the applicant jointly purchased an apartment in India in which he resided and which he still owns.

17. The Tribunal does not consider that the evidence regarding this criterion assists the applicant in establishing Australian residency.

    Frequency and Duration of Travel Outside Australia

18. The evidence is that between his departure in February 2009 and the date of claim, the applicant resided outside of Australia and returned for three short periods including the 12 day period in 2015 when he returned for the purposes of lodging his claim for age pension.

19. The Secretary submitted that in this 6.5 year period, the applicant has spent about 2.5% of the time in Australia and 97.5% of his time outside Australia.

20. As stated in the Guide under this criterion “Taken in isolation, a three-year continuous absence would be regarded as an upper limit to still being considered as residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person readily spends more than six months a year outside Australia, then their residency in Australia is questionable.

    The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence. For example, a person working on an 18 month overseas contract posting would still be considered to reside in Australia as long as they have demonstrated ongoing physical ties to Australia and a commitment to return to Australia at the end of the posting".

    It is not uncommon for a person to remain overseas for a lengthy period of time and state that they intend to return to Australia to live at some uncertain, future date. In general when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person’s “intent” becomes less of a factor as the length of the absence increases. A person’s physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.”

21. It was submitted on behalf of the applicant that his intention of returning to Australia to reside is evidence of his temporary residence in India and maintenance of his Australian residency. It was contended that the applicant always regarded himself as an Australian resident whilst in India and that the purpose of his trip to India was for a spiritual pilgrimage. The applicant did not have permanent residency whilst in India and his temporary residency expires in 2018. Mr Dougall advised that the applicant retracted the statement in his application for age pension that he was a resident in India at the time after receiving legal advice.

22. Mr Dougall referred the Tribunal to the decision of the Full Federal Court in Mentink (2016) FCAFC 39 where it said in paragraph 47 after considering the definition of the terms “resident” and “reside” in the Macquarie Dictionary:

    “… Similarly, at common law residence means “physical presence in a particular

    place and the intention to treat that place as home”, or where the person is

    physically absent, “a continuity of association with the place… together with an

    intention to return to that place and an attitude that that place remains “home”:

    Hafza v Director-General of Social Security (1985) 60 ALR 674 at 680 (Wilcox J);

    see also Baccon AATA146 [8)-(9]. Thus, while the precise meaning of expressions

    such as “resident” and “reside in” will be affected by the legislative context in which

    they appear, the consistent theme is that of a real and enduring connection

    between and person and a place. Transient presence, on the other hand, is

    effectively a denial of any such connection.”

23. Mr Dougall also referred to a statement of Wilcox J in the decision of Hafza at 18-20 that the intention of the absentee is of considerable importance and contended that at all times the applicant retained a continuity of association with Australia and an intention to return to Australia to live.

FINDINGS

1. As stated above, the Tribunal does not consider that the expression of an intention to return to Australia to live at some time in the future is sufficient to establish the applicant’s residency in Australia at the time of lodging his claim for age pension.  The Tribunal considers that there is objective evidence that is inconsistent with the applicant’s claim of Australian residency. For instance, the applicant’s joint purchase of an apartment in India and sale of his Australian residence; his infrequent return visits to Australia for short durations; and most importantly the period of his absence from Australia at the time of the lodgement of his claim namely, some 6 ½ years.

2. As stated in the extract from the Guide referred to above, a 3 year continuous absence would be regarded as an upper limit to still being considered to be residing in Australia unless there are special circumstances delaying a return. There is no evidence that the applicant was prevented from returning to Australia to reside at any time. In fact he seems to have postponed his return to Australia and there is no evidence of any plan to return to reside in Australia on a specific date.

3. Mr Dougall referred to the fact that the applicant was only recently granted temporary residence in India. The absence of permanent residency in another country however, does not on its own establish residency in Australia. (See Stevens and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2013) AATA 675.

4. There is no evidence before the Tribunal of a time when the applicant’s physical presence and intention to reside in Australia were in conjunction. As Wilcox J said in Hafza at paragraph 13:

   “As a general concept residence includes two elements: physical presence in a

   particular place and the intention to treat that place as home; at least for the time

   being, not necessarily forever”.

   And at paragraph 14:

   “Physical presence and intention will coincide for most of the time” but not always.

   “The test”, he said “… Is whether the person has retained a continuity of

   association with the place… together with an intention to return to that place and

   an attitude that that place remains “home”

5. It is the Tribunal’s conclusion that the evidence does not support a finding that at the time of his claim for age pension, the applicant retained a continuity of association with Australia despite a stated intention to return to Australia at some time in the future. The Tribunal does not accept that the applicant’s absence from Australia constituted a temporary absence and nor could be concluded on the objective evidence as outlined above, that the applicant’s usual place of residence at the time of his claim was Australia.

6. The Tribunal concludes that the applicant was not an Australian resident at the time of his claim for age pension and for this reason he did not qualify for age pension at the time of his claim on 25 August 2015. Accordingly the decision under review is affirmed.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A F Cunningham

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Administrative Assistant

Dated

Date of hearing	11 October 2016
Applicant’s Representative:	Mr Alasdair Dougall
Respondent’s Representative	Mr Brian Sparkes, FOI and Litigation Branch