El-Ahmad and Department of Family and Community Services
[2001] AATA 209
•20 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 209
ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V00/1283
GENERAL ADMINISTRATIVE DIVISION)
Re: FATEN EL-AHMAD
Applicant
And: SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mrs H.E. Hallowes, Senior Member
Date: 20 March 2001
Place: Melbourne
Decision:The decision under review is affirmed.
(sgd) H.E. Hallowes
Senior Member
SOCIAL SECURITY — family allowance — whether an inhabitant of Australia — whether Australian resident — whether resides in Australia — applicant born in Australia but departed overseas with parents aged 12 years — married — return to Australia for birth of baby — relevance of applicant's intention — delay in lodging application for review
Social Security Act 1991 ss.7, 23, 838
Social Security (Administration) Act 1999 ss.85, 109
Social Security Act 1947
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Houcher and Director-General of Social Security (1984) 5 ALN N449
Re Galati and Director-General of Social Security (1984) 6 ALD 538
REASONS FOR DECISION
20 March 2001 Mrs H.E. Hallowes, Senior Member
Mrs El-Ahmad seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 18 September 2000. The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services ("the Secretary") ("the department") to cancel payment of family allowance paid to Mrs El-Ahmad which, in the Secretary's opinion, had been paid to her through administrative error following her claim for family allowance, lodged with Centrelink on 11 May 1999. Mrs El-Ahmad's son was born on 1 May 1999.
On her claim form for family allowance Mrs El-Ahmad provided details of a bank account in her name into which she wanted her family allowance paid. She provided an address in Lalor. She did not provide a tax file number to Centrelink. In response to question 20, "Do you intend to remain in Australia permanently?", the "No" box was ticked. Mrs El-Ahmad and her husband signed the claim form on 4 May 1999. When speaking to the Tribunal Mrs El-Ahmad said that her auntie filled in the claim form on her behalf after asking her various questions. She said that she had been staying at her auntie's house during the time she was in Australia, having arrived from Lebanon on 20 February 1999. She told the Tribunal that, before completing the claim form, her auntie had asked her whether she was "going outside Australia", rather than whether she intended to remain in Australia "permanently". She did not hear her auntie say the word "permanently". In the Tribunal's opinion, if Mrs El-Ahmad's memory is correct with respect to the question her auntie asked, the Tribunal would expect her response to be "yes" if it was her intention to remain in Australia permanently.
Following her claim for family allowance, Mrs El-Ahmad was advised, by letter sent to the address in Lalor:
You will be paid $99.00 for Ahmad every second Thursday, starting on 20 May 1999. The $99.00 arrears we owe you were sent on 14 May 1999.
Further letters were sent to Mrs El-Ahmad at Lalor on 14 May 1999 when Mrs El-Ahmad was advised:
You will be paid $23.70 for Ahmad every second Thursday, starting on 20 May 1999.
We cannot pay you the maximum amount of Family Allowance any more.
This is because you and your partner are no longer getting an income support payment (such as a pension or allowance) from Centrelink. While you or your partner were getting this payment, you were paid Family Allowance without having to give us details of your income or assets.
and again on 19 May 1999 when she was advised:
You will be paid $99.00 for Ahmad every second Thursday, starting on 3 June 1999. The $150.60 arrears we owe you were sent on 21 May 1999. Please read the back of this letter. It will tell you about your future fortnightly payments. It will also tell you about your social security rights and when you have to contact us.
Each letter advised Mrs El-Ahmad that:
. . . Remember, if you do not ask for the decision to be reviewed within 13 weeks of being told about it, you can only get back payment of Family Allowance from the date you ask. . . .
On 24 May 1999 a decision was made to cancel "YAL" and Mrs El-Ahmad's address was altered to Brunswick. Mrs El-Ahmad departed Australia on 27 May 1999 with her husband and baby. She apparently left behind a "PPP claim" but it was noted in her records on the Centrelink computer that Mrs El-Ahmad would be "absent more than 13 weeks".
On 15 June 1999 Mrs El-Ahmad's husband applied to the Australian Embassy in Beirut to migrate to Australia. On 16 June 1999 Centrelink received a letter from Mrs El-Ahmad, advising:
. . .
I do not give permission to anyone in Australia to take my money and letters only Houda Saleh. Her address is 122B Edwards Street Brunswick postcode 3056 phone number is 43810569. This phone number is a silent number.
My Reference number is 790079271A.
The Bankcard is with Houda Saleh and she is the only one who knows my pin number. If you would like to speak to me tell Houda Saleh and she would tell me what time and what day to wait for you to call me.Mrs El-Ahmad was advised by letter dated 17 June 1999, sent to her at the Brunswick address, that payment of family allowance was restored to her. On 17 June 1999 and 23 June 1999 Mrs El-Ahmad's sister-in-law, Mrs H. Saleh, who assisted Mrs El-Ahmad at the hearing, attended Centrelink to query Mrs El-Ahmad's payments. Payment of family allowance to Mrs El-Ahmad was cancelled on 23 June 1999.
A decision was made that Mrs El-Ahmad had been overpaid family allowance of $1094 between 14 May 1999 and 1 July 1999 which was a debt due to the Commonwealth. Mrs El-Ahmad returned to Australia on 17 July 2000 as soon as her husband had been granted a temporary visa. It appears that she went to Centrelink on 20 July 2000, and asked for the decision with respect to the cancellation of her family allowance to be reconsidered. On 25 July 2000 an authorised review officer ("ARO") affirmed the decision that Mrs El-Ahmad was not entitled to be paid family allowance after her departure from Australia and that she owed a debt to the Commonwealth of $1094.40 which was waived as it was found to be solely due to administrative error. Mrs El-Ahmad was further advised by the ARO by letter dated 8 August 2000:
. . . I have used Sections 85, 109 and 237 of the Social Security Administration Act 1999.
Section 85 says that if a person's FPA is cancelled and it is subsequently decided that the person is entitled to be paid FPA, the person's FPA is to be restored. Section 109 talks about when a decision made under Section 85 takes effect. It says that if a person is told about a decision in writing and does not ask for the decision to be reviewed within 13 weeks of being told about it, back payment can only be made from the date the person did ask about it.
Section 237 says that a person is taken to have been notified of a decision if notice of it is sent by pre-paid post to the person's last known address.
In your case your FPA was cancelled from 1 July 1999. You were sent a letter on 23 June 1999 telling you of the decision to cancel your FPA.
You told me that you were told by Centrelink that you could go overseas and be paid FPA for 6 months when you lodged your claim for FPA in May 1999. However, your FPA was cancelled from 1 July 1999 because it was considered that you did not intend to reside permanently in Australia.
The letter telling you of the cancellation was sent to 122B Edward Street, Brunswick, the address you had asked Centrelink to send your mail to. The earliest record that I can find of you contacting Centrelink and querying the cancellation was in July 2000. As that is not within 13 weeks of being told about the cancellation the legislation does not allow a decision to be made to pay you FPA back to July 1999.The above findings of fact are based on the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") and statements made by Mrs El-Ahmad and her sister-in-law, Mrs Saleh, at the hearing. Ms E. King, an advocate with Centrelink, appeared for the Secretary at the hearing and she provided the Tribunal and Mrs El-Ahmad with a statement of the Secretary's case in which she referred to relevant sections of the Act and the Social Security (Administration) Act 1999 ("the Administration Act"). The Act provides, so far as relevant:
838(1) A person is qualified for family allowance if:
(a)the person has at least one FA child; and
(b)the person is an inhabitant of Australia; and
. . .
23(1) In this Act, unless the contrary intention appears:
. . ."inhabitant of Australia" means:
(a)an Australian resident; or
(b)the holder of a temporary visa declared in writing by the Minister to be an approved visa for the purposes of this definition;
. . .
7(2) An Australian resident is a person who:
(a)resides in Australia; and
(b)is one of the following:
(i)an Australian citizen;
. . .
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.
Ms King referred the Tribunal to the decision of the Federal Court in Hafza v Director-General of Social Security (1985) 6 FCR 444 where the Court considered the words "usual place of residence" under the Social Security Act 1947 and the meaning of "temporary absence" from Australia. Wilcox J said, at page 450, that:
. . . a mere temporary absence from a country would ordinarily not cause a person to cease to be a resident in that country; . . .
He went on to say:
The subject legislation was designed to provide social welfare benefits to the custodians of children, people having the expense of their maintenance and education. The scale of the benefits provided by the Act reflects, no doubt amongst other things, the cost of maintaining and educating children in Australia. It is not difficult to see reasons of administrative convenience for maintaining benefits for people who are absent from the country only for a short period; . . .
And:
The matter is not free from difficulty but the considerations to which I have referred lead me to the conclusion that "usual place of residence" should be accorded a narrower construction than would be provided by answering the question whether the endowee remained a "resident" of Australia, in the general law sense.
His Honour considered a person who may be overseas to fulfil a particular purpose in considering those people whose absence may be found to be "temporary".
In this application the Tribunal must consider whether or not Mrs El-Ahmad was an inhabitant of Australia after she left on 27 May 1999. To satisfy that provision, she must be an Australian resident, subsection 7(2) of the Act providing that she must be a person who "resides in Australia". In considering that issue the Tribunal must have regard to the factors in subsection 7(3) of the Act (see paragraph 8). In Hafza Wilcox J agreed with what had been said by the Tribunal in Re Houcher and Director-General of Social Security (1984) 5 ALN N449, at page 452, that a person's intentions must be ascertained objectively from all the evidence.
The applicant told the Tribunal that Australia was her country. She was born in Australia in 1982, departing with her parents to live in Syria in 1994. She married and became pregnant. She lived with her husband and her husband's brother in a house the two brothers owned in Lebanon. Her husband also has a half interest in a milk bar with his brother in Lebanon. He worked as a tailor. Her parents continue to live in Syria where she has friends, but all her other relatives are in Australia. Before coming to Australia in February 1999, she and her husband had used an agent to facilitate their travel. Her husband travelled on a three-month visitor's visa and the agent suggested that, once in Australia, her husband would be able to stay. She said that they had travelled on one-way tickets and she brought all her clothes with her with the intention of staying in Australia following the birth of her child. She had arranged for her family allowance to be paid into a bank account here. The family has no bank account in Lebanon, although her husband still owns half of the house where they lived and half of the milk bar as his brother does not have the money to buy their share. When in Australia Mrs El-Ahmad went with her husband to the Department of Immigration and Multicultural Affairs, but he was told that he had to return to Lebanon in order to obtain another visa. They had therefore returned to Lebanon but she had left clothes with her sister-in-law, because she intended to return to Australia. They did not return to Australia until 17 July 2000 because her overseas marriage was not recognised under Australian law as she was under age at the time and it was necessary for her to obtain a Magistrate's approval of her under age marriage. Permission to enter Australia again had only been granted following review by the Migration Review Tribunal.
Mrs Saleh told the Tribunal that Centrelink should have made a payment of family allowance into Mrs El-Ahmad's bank account within days of Mrs El-Ahmad's departure from Australia. When she accessed Mrs El-Ahmad's bank account shortly thereafter no payment had been made into the account. She therefore waited a few days, but on her third attempt to obtain funds to send to Mrs El-Ahmad in Lebanon, as Mrs El-Ahmad's baby was sick and she needed the money to pay for his care, she was unable to retrieve Mrs El-Ahmad's card from the automatic teller machine. She therefore went to Centrelink to ask why family allowance had not been credited to Mrs El-Ahmad's bank account. The staff at Centrelink would not talk to her and asked that Mrs El-Ahmad telephone them. She had provided Mrs El-Ahmad with the name of the officer and a telephone number to call, but did not know how she would have the money to telephone Centrelink from overseas.
Mrs Saleh's evidence satisfies the Tribunal that Mrs Saleh, who told the Tribunal that she was in frequent telephone contact with Mrs El-Ahmad, had advised her that she was no longer being paid family allowance. Centrelink records indicate that Mrs Saleh attended at a regional office on 23 June 1999 with respect to the payment of family allowance to Mrs El-Ahmad.
Ms King put to the Tribunal that Mrs El-Ahmad was not qualified for family allowance when she lodged her claim as she was not an inhabitant of Australia, as she was not a person who "resides in Australia". She noted that, for the duration of Mrs El-Ahmad's stay in Australia in the first half of 1999, Mrs El-Ahmad had lived with her auntie, rather than the family arranging their own accommodation. She also noted that Mrs El-Ahmad's parents live in Syria, although she acknowledged that most of her extended family live in Australia. Ms King put to the Tribunal that Mrs El-Ahmad had no employment, business or financial ties with Australia in 1999. She did have an Australian bank account. Mrs El-Ahmad had signed her claim form for family allowance in which she indicated that she did not, at that time, intend to remain permanently in Australia, even though her evidence to the Tribunal was that her auntie had answered the questions on the form.
The SSAT, in recording the evidence provided at the hearing, wrote:
when she claimed family allowance she ticked 'no' to the question whether she intend [sic] to remain permanently in Australia because she always knew that she was going back to Lebanon with her husband so that he could change his visa;
. . .
her sister-in-law told her that her payments had been cut off and gave her a number to ring;
she rang Centrelink straight away and was told that when she came back to Australia she would be paid six months' family allowance;
this happened a couple of days after she left Australia;
. . .
Having considered the evidence before it, the Tribunal finds that, following the birth of her baby, Mrs El-Ahmad intended to stay with her husband, and therefore to return to their home in Lebanon with the intention that they would, if her husband were successful in obtaining a visa, return to Australia permanently. They made no arrangements for permanent accommodation in Australia. They had no employment, business or financial ties with Australia, nor assets located here.
In Re Galati and Director-General of Social Security (1984) 6 ALD 538 the Tribunal considered whether the applicant was residing in Australia in order to qualify for age pension. The Tribunal considered whether the applicant had a "settled or usual abode" in Australia. To some extent, earlier decisions of the Tribunal with respect to the meaning of "Australian resident", "resides" and "residing" have been supplanted by the factors which the Tribunal must now consider under subsection 7(3) of the Act. The Tribunal has no doubt that, following the birth of her baby, Mrs El-Ahmad had the intention of becoming an Australian resident if her husband was allowed to remain here permanently. However, until the Department of Immigration and Multicultural Affairs gave him that permission, she returned to reside with him in their home in Lebanon. She was therefore not qualified to be paid family allowance under section 838 of the Act.
Even if the Tribunal is wrong in its findings of fact with respect to this application, no payment could be made to Mrs El-Ahmad as subsection 109(2) of the Administration Act provides:
109(2) If:
(a)a decision (the original decision) is made in relation to a person's social security payment; and
(b)a notice is given to the person informing the person of the original decision; and
(c)more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d)the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
The Tribunal is satisfied, relying on the evidence of Mrs Saleh, that Mrs El-Ahmad had been given notice of the original decision and, in any event, the Act deems notice to have been given to her as it was sent to the address she provided to Centrelink for the purpose of notices. The Tribunal finds that Mrs El-Ahmad applied for review of the original decision more than 13 weeks after notice of the decision was given to her. Subsection 109(2) of the Administration Act must therefore apply.
It is for the above reasons that the decision under review will be affirmed.
I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Membersigned: Catherine Thomas
Personal AssistantDate of Hearing: 07.03.01
Date of Decision: 20.03.01
Solicitor for the Applicant: NIL — IN PERSON
Solicitor for the Respondent: Ms E. King, Departmental Advocate
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