Downey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 287
•10 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 287
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° 2007/2010
GENERAL ADMINISTRATIVE DIVISION ) Re
PATRICK CORNELIUS DOWNEY
Applicant
And
SECRETARY,
DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date10 April 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Downey did not cease to be an Australian resident between 15 February 2002 and 24 March 2006 and that the provisions of Section 1220 of the Social Security Act 1991 do not apply in this case. . . . . . . . [Sgd] . . . . . . . . .
Mr C Ermert
Member
SOCIAL SECURITY – age pension – whether applicant ceased to be Australian resident – resides in Australia – nature of accommodation, family relationships, employment, business or financial ties, assets located in Australia, travel outside Australia, other matters determining intention to remain permanently in Australia - decision set aside
Social Security Act 1991
Hazfa v Director-General of Social Security (1985) 6 FCR 444
REASONS FOR DECISION
10 April 2008 Mr C. Ermert, Member
INTRODUCTION
1. Mr Downey migrated to Australia in 1955, at the age of 17, and his family followed him five years later. Mr Downey worked in Australia until 1993. During this period Mr Downey married and had children. He also completed his National Service in the Australian Army and was involved in a number of community activities in Australia.
2. In August 1993 Mr Downey travelled to South East Asia for work. From then until early 2002, Mr Downey returned to Australia a number of times to be with his wife and family. On 15 February 2002 Mr Downey again left Australia and did not return until 24 March 2006. During that time he undertook business ventures and employment in Vietnam and Cambodia. As a result of one failed venture he lost about US$77,000 after which he stayed in Vietnam to recover his financial position.
3. On 30 March 2006 Mr Downey contacted Centrelink, the service delivery provider for the respondent, to claim age pension which was granted from that date.
4. On 18 April 2006 Mr Downey again left Australia for Vietnam. Centrelink cancelled his age pension payments on 4 July 2006 as he had left Australia within two years of his most recent return. This decision was affirmed by an Authorised Review Officer on 2 November 2006 and by the Social Security Appeals Tribunal (SSAT) on 24 April 2007. This matter is an application for a review of the SSAT decision.
THE HEARING
5. At the hearing Mr Downey represented himself. The respondent was represented by Ms Kayren Paul, a Centrelink advocate. I had before me the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents), the Secretary’s Statement of Facts and Contentions dated 28 September 2007 and two submissions from Mr Downey dated 10 July 2007 and 12 August 2007.
THE ISSUE
6. Section 1220(1) of the Social Security Act 1991 (the Act) provides that if a person:
· ceases to be an Australian resident, and
· again becomes an Australian resident, and
· is granted an age pension, and
· leaves Australia within 2 years
then the pension is not payable during any period which the person is out of Australia. In this case the respondent does not dispute that Mr Downey was an Australian resident up to 15 February 2002, the date on which he left Australia for work in Vietnam. There is no dispute that Mr Downey was an Australian resident from the date of his return on 24 March 2006 and that he was eligible and indeed received age pension payments from that date. There is also no dispute that Mr Downey left Australia again on 18 April 2006. The issue to be determined is whether Mr Downey ceased to be an Australian resident between 15 February 2002 and 24 March 2006.
LEGISLATION
7. Australian resident is defined in Section 7(2) of the Act which states:
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.”
Consideration
8. It is not in dispute that Mr Downey is the holder of a permanent residency visa and has been since 1955. The matter remaining to be determined for application of Section 7(2) of the Act is whether, between 15 February 2002 and 24 March 2006, Mr Downey resided in Australia. Section 7(3) of the Act sets out the factors which need to be considered in determining if a person is residing in Australia:
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.
9.I will consider each factor in turn.
Accommodation in Australia
10. The respondent contends that between 15 February 2002 and 24 March 2006 Mr Downey did not have accommodation in Australia.
11. Mr Downey’s evidence was that he used to own a property in Pakenham Upper. He said:
… our marriage was breaking up. She had previously lived in Perth and wanted to go back to Perth to live, so we came to an arrangement that we would sell the property at Pakenham Upper and buy a property or a home in Perth, which we did, with the intention that that would save the marriage but it didn’t. So, I lost – that’s when I lost the home. … in the divorce settlement I signed it over to my wife; my ex wife I should say. …And can you remember when you signed it over? … I am going to say 2004 (Transcript page 10).
12. In his application for review of the SSAT decision, Mr Downey wrote … I essentially lost my last home … in a divorce settlement, and have not been able to recover my financial position sufficiently to be able to acquire another home, as yet. (T1, page 4).
13. I accept the evidence of Mr Downey that he owned a home in Australia until 2004 and that while it was his intention to again own a home in Australia he found it beyond his financial means after his divorce settlement.
Family Relationships
14. The respondent contends that, although Mr Downey has family in Australia he did not visit them between 15 February 2002 and 24 March 2006. Consequently, the nature of his family relationships in Australia should not carry much weight in determining if he was an Australian resident during this period.
15. In his application for review of the SSAT decision, Mr Downey wrote: I chose Australia as my country as a 17 year old, and was followed 5 years later by my Mother & Father, Sister and Brother. My father died in 1998, but he and all my immediate family, and in turn their families are now Australian, as are my 3 children and their children. (T1, page 4).
16. Mr Downey gave evidence that his son is aged 45 and he has two daughters aged 42 and 40, with whom he has very good relationships – I live with the youngest daughter (Transcript page 11). His evidence was that, while he was overseas, he maintained contact with his children by telephone, letter and email.
17. I reject the respondent’s contention on this issue. I accept Mr Downey’s evidence of the extent of his family resident in Australia and the contact he maintains with them. On the basis of the evidence, I find that Mr Downey has strong family relationships in Australia.
Employment, Business or Financial Ties
18. Relevant to this issue Mr Downey stated in his application for review of the SSAT … during this full period I was the owner and director of Standow Pty Ltd, a company incorporated in Australia … The fact that it has now been de-registered by ASIC, is another story, but obviously directly related to the fact that I did not have the funds to pay the annual fees to maintain its registration”. In relation to continued involvement in Australian-related activities while working overseas Mr Downey said I did this to the maximum extent possible, and in fact was not only a founding member, but was a member of the Australian Chamber of Commerce in Vietnam ever since its formation up until 2006 (T1, page 4).
19. In his oral evidence Mr Downey said that he lived in Vietnam for work reasons but gave no further evidence of employment, business or financial ties with Australia relevant to the period between 2002 and 2006. Although he had done some work for an Australian company, Pacific Asia Industries Pty Ltd, he said that work stopped in about March 2000.
20. The respondent contends that Mr Downey has not demonstrated that he maintained any employment, business or financial ties with Australia during the relevant period.
21. From the evidence I find that Mr Downey’s employment, business and financial ties with Australia were very limited in nature and extent.
Assets located in Australia
22. Mr Downey’s evidence on this issue was that his company, Standow Pty Ltd, was owed about US$77,000 from a joint venture. However, he had no way of taking action to recover the money. In regard to other assets he said: … only personal belongings … as a result of my divorce settlement I didn’t have much or any assets left (Transcript page 11).
23. The respondent contends that there is no evidence that Mr Downey maintained any assets in Australia during the relevant period.
24. From the evidence I find that Mr Downey had no assets other than personal belongings in Australia during the relevant period.
Travel outside Australia
25. The respondent contends that Mr Downey remained outside Australia for a continuous period of at least four years between 15 February 2002 and 24 March 2006. Further, the respondent notes that Mr Downey stated on his claim form, in April 2006, that he lived and worked in Vietnam from August 1993.
26. Mr Downey’s evidence was that during the relevant period he was living mainly in Vietnam with some work-related short stays in Cambodia. He said that he remained in Vietnam to try and recover the money owed to him from the failed joint venture and that it was more appropriate to do this closer to where his loss occurred. Mr Downey said that the real issue that prevented him from returning to Australia was affordability. He said that he had greater opportunities for earning money in Vietnam than Australia; where, because of his age, he would have difficulties finding employment.
27. When asked about his accommodation while in Vietnam he described living in a number of places, shared units and houses with companies paying the rent.
28. There is no dispute that Mr Downey spent the four years from 2002 to 2006 outside Australia, mainly in Vietnam and that he did not return to Australia during that time. It is clear that he was working in Vietnam and Cambodia. However, there is no evidence that he was there for reasons other than work. There is no evidence of any attachment to the area other than the work he could find there. He acquired no property and occupied only work-related accommodation while living in the area.
29. On this issue I find that Mr Downey spent all of the four years in question outside Australia and that he could not afford return to Australia during that time. However, there is no evidence of any longer term attachment to the area.
Other Relevant Matters
30.As part of his evidence Mr Downey made the following relevant statements:
… since I arrived in Australia of my own volition as a migrant by myself at 17 years of age, I have considered myself an Australian. I have represented myself as an Australian. I served in the National Service here. I have competed for Australia in Veteran’s Athletics. I am an Australian
… the reason for me not coming back to Australia … wasn’t because I didn’t want to come back but purely for financial reasons
… we got duded by Cambodian partners and effectively lost the project … February, March 2003 … In losing the project I lost a lot of money … had invested some money in this project which in the end amounted to about 77,000 US dollars and effectively I had lost that money as a result of what had happened
I always wanted to come back
For 50-odd years I have considered myself to be an Australia (sic)
31. These statements are consistent with the whole of his submissions to the SSAT and his evidence to this Tribunal and were not challenged by the respondent. I accept Mr Downey’s evidence that he has always considered himself to be an Australian and that he always wanted to come back to Australia but could not do so for financial reasons; and I find accordingly.
Summary of Findings
32. After considering the factors required by Section 7(3) of the Act I have found the following to apply between 15 February 2002 and 24 March 2006:
· Mr Downey owned a home in Australia until 2004; and that while it was his intention to again own a home in Australia, he found it beyond his financial means after his divorce settlement;
· Mr Downey has strong family relationships in Australia;
· Mr Downey’s employment, business and financial ties with Australia were very limited in nature and extent;
· Mr Downey had no assets other than personal belongings in Australia during the relevant period;
· Mr Downey spent all of the four years in question outside Australia and that he could not afford to return to Australia during that time however there is no evidence of any longer term attachment to the area; and
· Mr Downey has always considered himself to be an Australian and he always wanted to come back to Australia but could not do so for financial reasons.
33. I next had regard to the judgement of the Federal Court in Hazfa v Director-General of Social Security (1985) 6 FCR 444.
34. In his judgment in the matter of Hazfa Wilcox J said at paragraphs 13-14:
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. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation; 64 CLR. at 249, by Williams J:
"The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."
14. Physical presence and intention will coincide 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 at 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) AC 217 at 225 and Judd v. Judd (1957) 75 WN (NSW.) 147 at 149 -- together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (No 3) (1969) 16 FLR. 231 at.236 It is important to observe firstly, that a person may simultaneously be a resident in more than one place -- see the facts of Lysaght and the reference by Williams J. to "a home or homes" -- and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
35. In the present case Mr Downey has retained a continuity of association with Australia through the maintenance of contact with his family and his participation in the Australian Chamber of Commerce in Vietnam. He has also consistently expressed his intention to treat Australia as home and has not changed that intention. Following the reasoning of Wilcox J, I find that Mr Downey did not necessarily cease to be a resident of Australia because he was physically absent from Australia for the period in question.
36. Taking these findings as a whole, I find that during the relevant period Mr Downey was residing in Australia in the terms of Section 7(3) of the Act. It follows that Mr Downey did not cease to be an Australian resident at any time between 15 February 2002 and 24 March 2006 in the terms of Section 1220 of the Act. The effect of this decision is that Mr Downey is eligible for the payment of age pension for the period of his absence from Australia and Mr Downey is therefore successful in his appeal.
DECISION
37. The Tribunal sets aside the decision under review and in substitution decides that Mr Downey did not cease to be an Australian resident during the period 15 February 2002 to 24 March 2006 and that the provisions of Section 1220 of the Act do not apply in this case.
I certify that the thirty-seven [37] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C Ermert, Member
(sgd) . . . . . . . . . . . . . . . . .
ClerkDate of Hearing: 19 February 2008
Date of Decision: 10 April 2008
Advocate for the applicant: Mr Patrick Downey, self represented
Advocate for the respondent: Ms Kayren Paul, Centrelink Legal Services
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