Farah and Secretary, Department of Family and Community Services

[2005] AATA 328

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 328

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/1173

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SAAD FARAH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date13 April 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – application for special benefit – whether applicant a resident – decision affirmed

Social Security Act 1991 s7(2) and s7(3)

Hafza v Director-General of Social Security (1985) 60 ALR 674

Re Kyvelos and Director-General of Social Services 3 ALN N120

REASONS FOR DECISION

13 April 2005 Mr John Handley, Senior Member

1.      The applicant applies to review a decision made by the Social Security Appeals Tribunal (“SSAT”) on 29 July 2004.  The SSAT then decided to affirm a decision made by an Authorised Review Officer (“ARO”) of Centrelink on 19 March 2004 to reject the applicant’s claim for special benefit.

2.      The hearing was listed in Melbourne on 30 March 2005.  Mr Farah appeared unrepresented with his wife and with the assistance of an Arabic speaking interpreter.

3.      The circumstances giving rise to the application may be briefly summarised as follows.

4.      Mr Farah is presently 75 years of age having been born on 1 January 1930 in Egypt.  He first arrived in Australia on 8 October 1994 upon an Assurance of Support signed by his son.  He received special benefit upon the expiry of the Assurance of Support until April 1998 and again from May 1998 to August 1999.  On 21 July 1999, Mr Farah was granted Australian Citizenship.

5.      Mrs Farah is a disability support pensioner and by virtue of that pension, Mr Farah received Partner Allowance (“PA”) between August 2000 and December 2000 and from September 2001 until November 2002.  The Social Security Act 1991 (“the Act”) was amended in 2002 and from that year PA has not been payable.

6.      Between 1994 and 2003, Mr Farah spent some time in Australia and some time overseas.  On 16 December 2003 he returned to Australia and on 18 December 2003 he claimed special benefit.  The benefit then claimed was denied upon the basis that Mr Farah was not a “resident” of Australia.  It is against that decision that an appeal was lodged with the SSAT.  The SSAT affirmed the decision to reject the claim.  The decision of the SSAT is the subject of this review.

7. The applicable legislation is found at sections 7(2) and (3) of the Social Security Act 1991 (“the Act”) which are reproduced 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.

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.

8.      As may be seen from the above, the word “resides” is not defined by the legislation but is to be considered having regard to the criteria found in s7(3). So far as s7(2) is concerned, Mr Farah is an Australian citizen but the conjunctive construction of that sub-section requires a finding that he resides in Australia. The criteria in sub-section (3) is to be considered in making that finding. It is not exhaustive and reference to other decisions is permissible.

9.      Mr Farah said that on all of the occasions when he returned to Australia immediately prior to December 2003, he had initially stayed with his adult son in Mentone for two or three days.  He and his wife then moved out and obtained rented accommodation elsewhere.  In December 2003, he decided to stay with his son pending the outcome of the application then made for special benefit before making a commitment to rent property.  He said that he was financially insecure and the only income then available to he and his wife was the Disability Support Pension (“DSP”) paid to Mrs Farah from Centrelink.  However tension emerged between Mr Farah and his daughter-in-law and when his son (living in Canada) learnt of that tension, Mr and Mrs Farah were invited to stay with him (in Canada). 

10.     Mr Farah and his wife left Australia in February 2004 and were away from Australia until 4 November 2004.  Between February and November they stayed in Canada for about two months and the remainder of the time they returned to live in Egypt.  Whilst in Egypt contact was made with the owner of a block of units in Mentone and upon learning that they could obtain a 12 month lease of a one bedroom unit at $585.00 per month, Mr and Mrs Farah returned to Australia in November 2004 and have remained as tenants of that unit.

11.     Mr Farah said that he and his wife now intend to remain in Australia permanently.  The current lease will expire in October 2005 but Mr Farah said that he did not know that he could obtain a lease for longer than a 12 month period.  He said that it is his intention to renew the lease upon its expiry.  The rent is being met out of the DSP paid to Mrs Farah.  Other day to day living expenses are obtained from loans to Mr Farah by his sons.

12.     Mr Farah said that he had left Australia on many occasions since he first arrived in 1994 because he has been unable to cope with Australian winters.  He said that he has returned to a “more tropical” climate and has spent a great deal of time outside of Australia in Egypt.  He said that over the years he has become used to Australian weather and is confident that he now will be able to remain living permanently in Australia.

13.     The only family of Mr Farah in Australia is his adult son who is a medical practitioner in Mentone.  The applicant’s son is married and there are two children aged 19 and 12 years.  Mr Farah said that he sees his son on a daily basis and has contact with his grandchildren on most week-ends.  Mr Farah is also a member of the Coptic Church in Moorabbin.  By that association he has a number of friends and is a member of some social groups attached to the church.  Mr Farah’s only family, other than his son in Melbourne is his other son and a brother who both live in Canada.  Mrs Farah has a sister who lives in Canada and another sister who lives in Italy

14.     Mr Farah has not ever worked in Australia.  He was last employed in Lagos in Nigeria until he retired in 1994.  He has no business or financial interest or commitment within Australia.  He is the joint holder of a bank account with his wife into which her DSP is paid.  He has no other bank accounts in Australia.  He continues to hold a bank account in Egypt which currently has a deposit of 19 Egyptian pounds.  Mr Farah said that on current exchange rates the deposit in Egypt is equivalent of about four or five Australian dollars.

15.     Mr and Mrs Farah continue to rent an apartment in Alexandria in Egypt which they said is rented at five Egyptian pounds per month.  Mr Farah said that he and his wife have rented the apartment since 1959.  Apparently by Egyptian tenancy laws, the rent is fixed for so long as Mr and Mrs Farah remain the tenants.  They intend to retain the lease over that property.

16.     Mr and Mrs Farah reside in the rented accommodation in Mentone over which they obtained a lease from November 2004.  The unit is fully furnished by furniture that they have owned for many years and which had been in storage at their son’s house.  They have recently purchased a refrigerator and a DVD player.  The telephone is connected to the unit.  They do not possess a motor car.

17.     Mr Farah said that he intends to stay in Australia because of conflict in the Middle East.  He said that he felt insecure on his most recent return to Egypt.  He also regards access to medical treatment in Australia as being superior to elsewhere.

18.     An examination of relevant dates indicates that from 20 January 1995, Mr Farah has been outside of Australia during the following dates:

20/1/95 to 4/10/97

11/4/98 to 9/5/98

13/8/99 to 9/8/00

14/9/00 to 4/9/01

2/4/02 to 16/12/03

22/2/04 to 4/11/04

19.     An examination of the above dates indicates that in the period 20 January 1995 until 16 December 2003 (when the current claim for special benefits was made), Mr Farah was outside of Australia for 342 weeks.  The total period of time between 20 January 1995 and 16 December 2003 was 421 weeks.  Immediately prior to the application on 18 December 2003, Mr Farah had been outside of Australia from 2 April 2002 a total of 91 weeks.  He was away from Australia for 50 weeks between 14 September 2000 and 4 September 2001 and for virtually 12 months between 13 August 1999 and 9 August 2000.  In fact he had only been in Australia for approximately six weeks before he returned overseas on 14 September 2000.  This represents an absence from Australia of approximately 80 per cent of the time from January 1995.  I note the primary decision maker found an absence also of 80 per cent from September 2000 (T11, p54).

20.     Whilst a person may simultaneously reside in more than one place, they must retain a continuity of association with Australia.  The issue of residence was discussed by Wilcox J in the context of family allowance payments in the decision of Hafza v Director-General of Social Security (1985) 60 ALR 674. Wilcox J indicated the approach which should be taken when he decided (pages 680-1):

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 FC of T(1941) 64 CLR 241 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 settlement 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.’

21.     At December 2003, Mr Farah had previously resided in rented accommodation on the limited occasions that he had been present in Australia.  His family relationships within Australia consist of an adult son and daughter-in-law and two grandchildren.  He has not ever worked in Australia, has no business or financial commitment within Australia and is the joint holder of a bank account with his wife into which his wife’s DSP has been paid.  Mr Farah’s only assets in Australia are items of household furniture.  Mr Farah is a member of the Coptic Church at Moorabbin and has friends by his association with the church.  At December 2003, Mr Farah said that he was leaving Australia during winter because he could not cope with cold weather.

22.     Upon the above circumstances I could not be satisfied that Mr Farah was a resident of Australia at December 2003.  After examining the occasions on which he was living in Australia at those dates, the nature of the stays are more in the nature of being a visitor rather than as a resident.  It could not be found that Mr Farah treated Australia as his home (refer Hatza) in December 2003.  The frequency and duration of his absence does not permit a finding that he was a resident.  That he would leave Australia to avoid Melbourne winters suggests an avoidance, rather than residence; if a warmer climate was sought and he truly considered Australia his home, he could have demonstrated a continuity of association with Australia by moving to Queensland.  I also have some doubt about this explanation for leaving Australia because he left in the Australian summer of February 2004 and moved to Canada, when it was then in winter.  Additionally, there is nothing that would allow a finding that whilst outside Australia, Mr Farah considered Australia as his home (Re Kyvelos and Director-General of Social Services 3 ALN N120)

23.     I acknowledge that Mr Farah has been an Australian citizen since 21 July 1999 but the criteria applicable to citizenship are different to the criteria applicable to residency.  I am aware that Mr Farah has applied again for special benefit since his return to Australia in 2004.  A decision on that application has not yet been made.  Having regard to what has been learnt in these proceedings, the expressed intention by Mr and Mrs Farah to remain permanently in Australia, his lease of 12 months over a domestic property and his apprehension of a return to the Middle East may cause his current application to succeed. 

24.     Upon the application made in December 2003, based on the circumstances then existing and pre-existing, I cannot be satisfied at that date that Mr Farah was then residing in Australia.

25.     In all of the circumstances the decision under review must be affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Alice Beattie
  Associate

Date of Hearing  30 March 2005
Date of Decision  13 April 2005
Solicitor for the Applicant          Nil (Self Represented)
Departmental Advocate            Mr W Zita