Cooper and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1839

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1839

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3580

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM DERMOTT COOPER

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal G.D. Friedman, Senior Member

Date5 October 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

SOCIAL SECURITY - age pension - qualification - whether a resident of Australia

Social Security Act 1991 s 7(2) and s 7(3)

Social Security (Administration) Act 1999 s 29(1)

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

Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)

REASONS FOR DECISION

5 October 2007  G.D. Friedman, Senior Member

1.      William Cooper was born in Australia in 1933 and applied for age pension on 12 April 2007.  Centrelink refused his application because he was not considered to be an Australian resident at the time of his application.  On 9 July 2007 the Social Security Appeals Tribunal affirmed the decision and on 2 August 2007 Mr Cooper sought review of the decision by this Tribunal.

2.      With the consent of the parties, the Tribunal decided to make a decision on the review application without holding a hearing.  

ISSUE

3.      The issue before the Tribunal is whether Mr Cooper was an Australian resident at the time of his application for age pension.

WHAT IS THE MEANING OF AUSTRALIAN RESIDENT?

4. Section 29(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a claim for a pension or benefit may only be made by a person who is in Australia and is an Australian resident.

5.        The term Australian resident is defined in s 7(2) of the Social Security Act 1991 (the Act):

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.

Section 7(3) of the Act sets out the criteria to which regard must be had in deciding whether a person is residing in Australia:

(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.

WAS MR COOPER AN AUSTRALIAN RESIDENT AT THE DATE OF APPLICATION?

6.        Mr Cooper is an Australian citizen.  He resides in Guadalupe, Mexico with his partner who is a Mexican citizen.  Mr Cooper lives in his partner’s house.  His two adult children also live in Mexico.  In evidence to the Social Security Appeals Tribunal Mr Cooper stated that he retired from the workforce in 1991 and has lived in Mexico since 1990, returning to Australia each year for family and medical reasons.  His visits typically last several months and he usually stays with his sister on her property in Clarkefield, Victoria.  He retains some personal possessions at the property.  Mr Cooper explained that in 2005 he and his former wife sold the family home in Melbourne and his share of the proceeds was about $200,000, which is invested in a term deposit in Australia.  He has no other significant assets in Australia or Mexico.

7.        In relation to future residence Mr Cooper said that his partner has no wish to live in Australia, and they have no intention of residing permanently in Australia.  However he considers himself a permanent resident who spends part of his time in this country but most of the time in Mexico.  His first grandchild is due to be born in Mexico in October 2007.  Mr Cooper told the Social Security Appeals Tribunal that refusal of his application for age pension has necessitated the use of his term deposit for everyday living expenses.  He stated that if he had known about the residence requirements of the age pension he would have ensured that he remained in Australia for longer periods.

8.        In Hafza v Director-General of Social Security (1985) 6 FCR 444 Wilcox J held that the test of residence is whether a person has retained a continuity of association with a place together with an intention to return to that place and an attitude that the place remains home.  In Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992) the Tribunal referred to the observations in Hafza and noted that the factors in s 7(3) are required to be taken into account, although they are not exhaustive.

9. The Tribunal has considered each of the factors in s 7(3) of the Act:

(a)       the nature of the accommodation used by the person in Australia;

Mr Cooper has no permanent accommodation in Australia.  He and his partner live in the house owned by her in Mexico, and he has greater accommodation stability in Mexico compared to Australia. 

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

Mr Cooper has a sister in Australia.  His partner and two adult children live in Mexico, so he has stronger family relationships in Mexico than he has in Australia.

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

Mr Cooper retired from the workforce in 1991.  Other than the term deposit he has no current or future business, employment or financial ties to Australia.   

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

Mr Cooper has provided evidence of any assets to the value of $200,000 located in Australia.  He has a small amount of assets in Mexico.  

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

Mr Cooper has lived in Mexico since 1990, and since 2000 has visited Australia each year for several months. 

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

Mr Cooper has stated that his partner does not wish to live here and they do not intend to reside permanently in Australia.  His children live in Mexico.  

10. The Tribunal acknowledges that since 2000 Mr Cooper has returned to Australia for an extended stay with his sister each year for family and medical reasons and that the bulk of his assets remain in Australia in the form of a term deposit. However, in his application for age pension and in proceedings before the Social Security Appeals Tribunal, Mr Cooper stated that he considers his home to be in Mexico. His partner and children reside there. In assessing his circumstances against the criteria in s 7(3) of the Act, the Tribunal concludes that Mr Cooper has been living in Mexico for nearly 17 years and, on balance, his connection with Mexico is stronger than his connection with Australia, and he has no intention to reside permanently in Australia.

11. For these reasons the Tribunal finds that, at the time of his application for age pension, Mr Cooper was not a person residing in Australia for the purposes of s 7(2)(a) of the Act, and was not an Australian resident for the purposes of s 7(2) of the Act. Consequently, under s 29(1) of the Administration Act, he was not able to make a claim for age pension.

DECISION

12.      The Tribunal affirms the decision under review.

I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)            Mara Putnis

Associate

Date of hearing:  Not applicable: decision on the papers

Date of decision:  5 October 2007