Firdousi and Secretary, Department of Family and Community Services
[2005] AATA 1304
•14 December 2005
CATCHWORDS – SOCIAL SECURITY – special category visa – Australian residence – whether applicant an Australian resident for the purposes of the Act – whether protected special category visa holder – meaning of “reside” – whether applicant residing in Australia at requisite time – decision affirmed.
Administrative Appeals Tribunal Act 1975 s. 37
Bankruptcy Act 1966 s. 43
Income Tax Assessment Act 1922 s. 5A
Social Security Act 1947 s. 103
Social Security Act 1991 ss. 7 and 23
Federal Commissioner of Taxation v Miller (1946) 73 CLR 93
Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774
Hafza v Director-General of Social Security (1985) 60 ALR 674
Inland Revenue Commissioners v Lysaght [1928] AC 234
Levene v Inland Revenue Commissioners [1928] AC 217
Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194
DECISION AND REASONS FOR DECISION [2005] AATA 1304
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/404
GENERAL ADMINISTRATIVE DIVISION )
Re KHADIM FIRDOUSI
Applicant
AndSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 14 December 2005
Place: Melbourne
Decision:The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 1 April 2005.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr Khadim Firdousi is a New Zealand citizen but he wants to be regarded as an Australian resident for the purposes of the Social Security Act 1991 (“Act”). On 30 October 2003, he applied for a residence certificate on the basis that he was a protected special category visa holder. That required him to have been residing in Australia on 26 February 2001 even if temporarily absent from it on that day. Before that day, Mr Firdousi had been in Australia for some 17 days with the intention of making it his home. On 10 February 2001, he had returned to New Zealand to care for his sick wife but other family circumstances led to his not returning to Australia until October 2003. I have decided that Mr Firdousi was not a “resident” in Australia on 26 February as that word is used in the Act. Therefore, I affirmed the decision of the Social Security Appeals Tribunal dated 1 April 2005 affirming a decision made by a delegate of the Secretary dated 3 November 2003.
BACKGROUND
The parties did not disagree on the facts in this case. Their disagreement centred on the application of the law to those facts. In light of that and on the basis of the evidence Mr Firdousi gave in this case, I have made the findings of fact set out in the following paragraphs.
On the basis of the evidence of an undated letter written by Mr Amjad Qureshi[1] and supported by a letter dated 1 April 2005 by Mr Nohammed Ishaq Mughal,[2] I find that Mr Qureshi and Mr Firdousi have known each other for the past 15 years. I also find that, in late 1999, they and a few friends decided that they would migrate to Australia.
[1] Exhibit C
[2] Exhibit B
Mr Firdousi owned a taxi in New Zealand but he sold it when he decided to move to Australia. He and his wife also put their house on the market on 24 January 2001. That was the day on which Mr Firdousi travelled to Australia on a one-way ticket. His wife and children remained in New Zealand. He stayed at the house of friends, who had travelled to Australia from New Zealand some time earlier. Mr Firdousi had a room for which he paid his friends $50 each week while he lived there. The arrangement was that he could stay for two weeks.
Mr Firdousi was issued with a Woolworths Ezy Card on 31 January 2001. He unsuccessfully applied for a position as a kitchen hand with a restaurant and was advised of that in a letter dated 7 February 2001. He was told in a letter dated 6 February 2001 that there was no position for him at another restaurant.
Unfortunately, his wife became ill and Mr Firdousi had to return to New Zealand to care for her.[3] She telephoned him with that news on or about 8 February 2001. He bought a return ticket to New Zealand and travelled there on 10 February of that year. Mr Firdousi left some clothes and his driver’s licence at his friends’ house. On the day that his wife telephoned him, 8 February 2001, he lodged a tenancy application with a real estate agent. On the basis of the agent’s letter, I find that he told the agent that he intended to leave Australia and would return in April 2001.[4] Mr Firdousi applied to the Australian Taxation Officer for a Tax File Number before he left for New Zealand and was issued with one in a letter dated 12 February 2001. I also find that, before he left, Mr Firdousi had applied to the Health Insurance Commission for Medicare Enrolment. The Commission questioned his entitlement in a letter dated 22 March 2001.
[3] Supported by a letter from Mrs Firdousi’s general practitioner in Australia, Dr Sherif, dated 3 March 2004: Exhibit D
[4] Documents lodged under s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) at 23: Exhibit 1
Mr Firdousi’s ticket that he used to travel to New Zealand specified a return date of 11 June 2001 but that was only a date he had nominated when he bought it.[5] He was unable to return by that time as his wife remained under treatment and had to be taken to the doctor each alternate day. Their house remained unsold as the market was slow. He signed a fresh authority to market on 28 February 2001. Mr Firdousi believed that the family could move to Australia together after the sale of the house.
[5] Exhibit E
While waiting to sell the house and for his wife to recover her health, Mr Firdousi worked in New Zealand as a taxi driver. He did so as he needed to pay the mortgage. Mr Firdousi did not buy a taxi on that occasion but worked as a taxi driver. Mr and Mrs Firdousi eventually signed the contract for the sale of their house on 30 May 2002.
Before settlement of the sale took place, Mr Firdousi received a message that his father in Pakistan was seriously ill. He travelled to Pakistan and spent time with his father. Settlement of the sale of his house took place on 16 August 2002.[6] Mr Firdousi’s wife and children arrived in Australia two days later on 18 August 2002. They stayed with family friends but later, on 13 September 2002, they leased a house. The children attended school. By that time, Mr Firdousi had returned to New Zealand but he had to return to Pakistan when his father died on 20 August 2002.[7] He had to arrange his father’s funeral and attend to other rituals and religious activities. After completing them, Mr Firdousi travelled to Australia on 19 October 2002.
[6] Exhibit A
[7] Exhibit F
Mr Firdousi applied for a health care card on 26 November 2002. A little less than a year later, on 30 October 2003, he applied for a residence certificate.
CONSIDERATION
The term “Australian resident” is defined in s. 7(2) of the Act as:
“… 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.”
As Mr Firdousi is neither an Australian citizen nor the holder of a permanent visa, he must look to s. 7(2)(b)(iii). As a New Zealand citizen, he is a special category visa holder (“SCV holder”) and so satisfies the first requirement of that provision. The question in this case is whether he satisfies the second i.e. whether he is a “protected SCV holder” (emphasis added). The answer depends on the application to the facts of this case of four sub-sections: ss. 7(2A) to 7(2D). Each prescribes the circumstances in which a person is a protected SCV holder.
I will begin with s. 7(2A), which provides that:
“A person is a protected SCV holder if:
(a)the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or
(b)the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.
Its two requirements are expressed in the alternative. Mr Firdousi does not satisfy the first paragraph as he was not present in Australia on 26 February 2001. He does not satisfy the second as he had been in Australia for fewer than 20 days and certainly not for 12 months before that date.
Section 7(2B) provides that:
“A person is a protected SCV holder if the person:
(a)was residing in Australia on 26 February 2001; and
(b)was temporarily absent from Australia on 26 February 2001; and
(c)was a special category visa holder immediately before the beginning of the temporary absence; and
(d)was receiving a social security payment on 26 February 2001; or
(e)returned to Australia before the later of the following:
(i)the end of the period of 26 weeks beginning on 26 February 2001;
(ii)if the Secretary extended the person’s portability period for the payment under section 1218C – the end of the extended period.”
Unlike s. 7(2A), the requirements of s. 7(2B) are cumulative. Unless each is satisfied, Mr Firdousi will not be a protected SCV holder according to its terms. For that reason, I will go straight to the requirements of s. 7(2B)(d). He does not meet its requirements as he was not receiving a social security payment on 26 February 2001.[8]
[8] A “social security payment” is defined in s. 23(1)
Section 7(2C) provides that:
“A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:
(a)the time is during the period of 3 years beginning on 26 February 2001; or
(b)the time is after the end of that period, and either:
(i)a determination under subsection (2E) is in force in respect of the person; or
(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.”
This section needs to be broken into its components. The first and pivotal component is that a person must have commenced or re-commenced residing in Australia during the three month period beginning on 26 February 2001. Only if that is the case, is it relevant to go on to consider whether the person comes within either of paragraphs (a) or (b) of the section.
Section 7(3) provides that:
“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 the 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 the 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]
[9] Section 7(4) of the Act specifies that residence in certain external Territories is taken to be residence in Australia but its provisions and related provisions in s. 7(4AA) are not relevant in this case.
In so far as they are relevant, the ordinary meaning of the word “reside” include:
“... b Dwell permanently or for a considerable time, have one’s regular home in or at a particular place. ...” (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
“... 1. to dwell permanently or for a considerable time; have one’s abode for a time: he resided in Box Hill. ...” (The Macquarie Dictionary, revised 3rd edition, 2001)
That word was considered by the High Court in Federal Commissioner of Taxation v Miller.[10] Citing Levene v Inland Revenue Commissioners[11] and Inland Revenue Commissioners v Lysaght,[12] Dixon J concluded that, putting aside special meanings given to it by Parliament, the word “reside” does not have any special or technical meaning.[13] It then “… is essentially a question of fact whether a man does or does not comply with its meaning.”[14] As Rich J put it, there is “… nothing … to suggest that the question whether … [a person] was a resident is other than one of degree and therefore of fact.”[15]
[10] (1946) 73 CLR 93
[11] [1928] AC 217 at 222
[12] [1928] AC 234
[13] see also Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 197 per Lockhart J.
[14] [1928] AC 234 per Lord Buckmaster cited with approval by Dixon J at (1946) 73 CLR 93 at 103.
[15] (1946) 73 CLR 93 at 101
Some assistance is also gained from the dissenting speeches of Viscount Cave LC and Viscount Sumner in the cases of Levene and Lysaght. Each explored the tensions between the concepts of “resident” and “ordinarily resident”. Although this case is concerned simply with “reside” unqualified by any adjective, it is useful to consider its meaning both when qualified by words such as “ordinarily” or “habitually” as well as when unqualified in order to understand its nuances.
In the case of Levene v Commissioners of Inland Revenue, Viscount Cave had said:
“The expression ‘ordinary residence’ is found in the Income Tax Act 1806 and occurs again and again in the later Income Tax Acts, where it is contrasted with the usual or occasional or temporary residence; and I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.”[16]
[16] [1928] AC 217 at 225
In Lysaght, Viscount Cave said:
“... on the view which in that case I have taken as the meaning of those expressions, there appears to me to be no reason whatever for holding that the respondent is resident or ordinarily resident in this country. It is true that he comes here at regular intervals and for recurrent business purposes; but these facts, while they explain the frequency of his visits, do not make them more than temporary visits or give them the character of residence in this country. That he has a small account at a bank in Bristol - doubtless for use during his visits to this country - and a club in London to which he hardly ever goes, appear to me to be trivial circumstances which cannot affect the decision. If the respondent is held to reside here and to be taxable accordingly, there would appear to be no reason why those many foreigners who periodically visit this country for business purposes, and having concluded their business go away, should not be made subject to a like burden.”[17]
Viscount Sumner observed in his speech that:
“Grammatically the word ‘resident’ indicates a quality of the person charged and is not descriptive of his property, real or personal. To ask where he has his residence is often a convenient form of inquiry but only as leading to the question, ‘then where is he resident himself?’”[18]
In keeping with that thought, Viscount Sumner continued:
“... although setting up an establishment in this country, available for residence at any time throughout the year of charge, even though used but little, may be good ground for finding its master to be ‘resident’ here, it does not follow that keeping up an establishment abroad and none here is incompatible with being ‘resident here’, if there is other sufficient evidence of it. One thinks of a man’s settled and usual place of abode as his residence, but the truth is that in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question. For income tax purposes such meanings are misleading. Residence here may be multiple and manifold. A man is taxed where he resides. I might almost say he resides wherever he can be taxed.”[19]
[17] [1928] AC 234 at 240
[18] [1928] AC 234 at 244
[19] [1928] AC 234 at 244-5
The principles in Levene and Lysaght were considered in the context of the expression “usual place of residence” in the context of s. 103(1) of the Social Services Act 1947 by Wilcox J in Hafza v Director-General of Social Security.[20] His Honour canvassed a number of the earlier authorities considering both residence and abode. He said:
“ There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. 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 Limited v The Federal Commissioner of Taxation (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 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.’
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] VLR 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 Commissioners of Inland Revenue [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 (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.”[21]
[20] (1985) 60 ALR 674
[21] (1985) 60 ALR 674 at 680-681
Finally, I will refer to the case of Re Taylor; Ex parte Natwest Australia Bank Ltd[22] in which Lockhart J considered the expression “ordinarily resident” in the context of s. 43(1)(b)(i) of the Bankruptcy Act 1966. The issue was whether Mr Taylor had committed an act of bankruptcy while ordinarily resident in Australia. A person may have two places of residence and, although he or she may not be physically present in both at the same time, may be said to live in both at the same time. His Honour continued:
“… People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree.
To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word ‘ordinarily’ connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of ‘ordinary residence’ for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression ‘ordinarily resident in’ connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene (supra) and Lysaght (supra). As Lord Warrington said in Levene (at 232): ‘ “Ordinarily resident” means according to the way a man's life is actually ordered.’ The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231.”[23]
[22] (1992) 37 FCR 194
[23] (1992) 37 FCR 194 at 198
It is clear from these authorities that the notion of “reside” and “ordinarily reside” have common elements when used in ordinary language. Both require that there be some physical presence and some intention to live or dwell in a place. The difference between them comes from differences of degree. That is to say, it comes from differences of degree in physical presence and differences of degree of intention. A person who, for example, lives or dwells continuously, or relatively so, in a place and intends to do so may be said to be ordinarily resident in that place. A person who lives or dwells in a place for only a short period and who intends nothing else may be said to be resident, but not ordinarily resident, in that place for that period. Given the myriad of ways in which people arrange their affairs, it is impossible to go beyond generalities when considering the meaning of the words in the absence of any particular context. It is impossible to point to the precise degree at which a person will be said to be a resident in a place, as opposed to a visitor, and the precise point at which a person will not only be resident in a place but also ordinarily resident there. Once the words are interpreted in a particular factual context, it may be possible to draw on that context to point to the degree with some precision.
The context in this case is that of s. 7(2C) but, on a wider scale, that of ss. 7(2A) to 7(2D).[24] Section 7(2C) refers only to the word “residing” without more. By way of contrast, ss. 7(2B) and (2D) as well as s. 7(2E), to which I will come shortly, refer to a person who was both “residing in Australia” and “temporarily absent from Australia” on 26 February 2001. Section 7(2A) makes no reference to residence but to a person’s being “in Australia” on 26 February 2001 or to the person’s being “in Australia” for 12 months, or for periods, totalling 12 months in the period of two years before 26 February 2001. Clearly then, the section is drawing a distinction between a person who was “in Australia” and a person who was “residing in Australia” but “temporarily absent from Australia”. It is doing so in a context in which a person who has been “in Australia” for 12 months, or for periods, totalling 12 months in the period of two years before 26 February 2001 could, in ordinary language, be thought to be resident, or even ordinarily resident, in Australia during those periods. Certainly, it may be that such a person might be thought to be “residing in Australia” had that person been absent from Australia on 26 February 2001 and so meet one of the criteria in ss. 7(2B), (2D) or (2E). In drawing the distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough. That does not mean that a person must necessarily be in Australia for any substantial period before being considered to reside here. Residence of the type required by s. 7 must start somewhere and, provided the evidence otherwise points to it, a person could be regarded as resident in Australia even if physically present only for a short period. As these matters are frequently judged in retrospect rather than at the time, residence over that short period can be assessed in light of a person’s subsequent actions.[25]
[24] Section 7(2D) is set out at [33] below.
[25] I note that this context may include events that occur after the period ending on 26 February 2001 as well as before. In Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774 at 778, Dixon J decided that a taxpayer was a resident in the Northern Territory within the meaning of s. 5A of the Income Tax Assessment Act 1922 (Cth) while also a resident of Western Australia. He had some regard to the taxpayer’s having negotiated for the lease of a flat in Darwin after the end of the financial year he was considering:
That suggestion is underlined when regard is had to ss. 7(2B)(b), (2D)(b) and (2E)(b). The reference to being “temporarily absent from Australia” in relation to a person who “was residing in Australia” suggests that the intention required of the person is to be resident in Australia when not “temporarily absent from” it. Having regard to the ordinary use of the expressions “resident” and “ordinarily resident”, that suggests that the word “resident” is used in the provisions in the Act in a manner more closely aligned with the expression “ordinarily resident” than with the expression “resident” as they are commonly used. That is to say, the degree of physical presence and of intention to live or dwell in a place before there can be a finding that a person resides in Australia will be drawn more closely aligned to the degree that would be required of a person’s being ordinarily resident than might be required in another context.
That conclusion is further underlined when regard is had to s. 7(3) of the Act. It specifies a number of matters to which a decision-maker must have regard in deciding whether or not a person is residing in Australia. I refer in particular to the criteria in ss. 7(3)(e) and (f) i.e. the frequency and duration of a person’s travel outside Australia and whether the person intends to remain permanently in Australia. Both suggest that the concept of residency in s. 7 is directed to a person’s main or primary residence being in Australia or, putting it another way, to that person’s being ordinarily resident in Australia.
I am satisfied that, in one sense, Mr Firdousi resided in Australia from 24 January 2001 until he left on 10 February 2001. He lived here for some 17 days and, during that time, he took steps to find a job and to register his presence with agencies such as the Health Insurance Commission and the Australian Taxation Office. Mr Firdousi opened a bank account. His home during that period was temporary but that home was simply intended as a stop gap measure until he found more permanent accommodation. All of those matters point to Mr Firdousi’s taking steps to establish a permanent home and life in Australia. They are consistent with Mr Firdousi’s intention to do just that. At the same time, I find that he maintained a residence in New Zealand. It was a residence that he wished to sell but in which, in the meantime, his wife and children lived. It was a residence in which much of his property remained even though he had a small amount in Australia.
Mr Firdousi, I find, intended to sell his New Zealand residence and intended to leave that country permanently and to bring his family to Australia to live. As it turned out, he was not able to sell his residence until the end of May 2002. That was more than a year after he had returned home to care for his very ill wife. Even then, he did not return to Australia until 19 October 2002. In that time, he had spent time in Pakistan first tending to his sick father and then arranging his funeral and affairs. During all of this time, Mr Firdousi no longer had a room at his friend’s house in Australia. Some of his personal goods remained in storage on his friend’s property.
Having regard to all of the matters, I am not satisfied that Mr Firdousi was residing in Australia for those 17 days in 2001 in the sense required by the Act. Although he had both physical presence in Australia at that time coupled with an intention to make Australia his home or the place where he ordinarily lived. He had not, however, made good his intention at that time. Although he had made arrangements to cut his ties with New Zealand, they remained in the form of his family and his property. He was a man caught between two homes while he worked towards having only one. His efforts to have only one did not bear fruit for some 20 months after he first tried to make Australia his home. Although Mr Firdousi had lived in Australia before 26 February 2001 and had some of his belongings here, I am not satisfied that he resided here in the sense that word is used in s. 7 of the Act. I am not satisfied that he could be said to reside in Australia but be only temporarily absent from it on 26 February 2001.
Section 7(2D) provides that:
“A person who, on 26 February 2001:
(a)was residing in Australia; and
(b)was temporarily absent from Australia; and
(c)was not receiving a social security payment;
is a protected SCV holder at a particular time if:
(d)the time is during the period of 12 months beginning on 26 February 2001; or
(e)the time is after the end of that period, and either:
(i)at that time, a determination under subsection (2E) is in force in respect of the person; or
(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.”
Although an alternative is presented in the fifth requirement of s. 7(2D), its five requirements are cumulative. In view of my previous conclusion regarding the meaning of “reside”, I find that Mr Firdousi was not residing in Australia on 26 February 2001 for the purposes of s. 7(2D).
The final provisions to which I must have regard are ss. 7(2E) and (2F), which provide:
“7(2E) A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:
(a)the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or
(b)the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.
7(2F) If a person makes an application under subsection (2E), the Secretary must make the determination if:
(a)the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and
(b)the application was made within whichever of the following periods is applicable:
(i)if paragraph (2E)(a) applies to the person – the period of 12 months beginning on 26 February 2001;
(ii)if paragraph (2E)(b) applies to the person – the period of 3 years beginning on 26 February 2001.”
At the time that he made his application for a residence certificate on 30 October 2003, Mr Firdousi was residing in Australia in the requisite sense of that word. He was also in Australia at the time. Therefore, he was entitled to apply for a determination under s. 7(2E). Entitlement to apply is one thing but entitlement to the determination is another. In view of my earlier findings and conclusion, Mr Firdousi could not be a person who met the description in either ss. 7(2E)(a) or (b). He was not a person residing in Australia on 26 February 2001 although temporarily absent on that day. Having not done so and having left Australia before 26 February 2001 without returning to Australia until October 2002, I am not satisfied that he was in Australia let alone commenced, or recommenced, residing in Australia during the period of three months beginning on 26 February 2001.
In view of that conclusion, s. 7(2F) does not impose any obligation on a decision-maker to make a determination. While expressed in terms of an obligation to make a determination when the criteria specified in s. 7(2E) are met and the application is made within specified time limits, there is a question whether s. 7(2F) gives a decision-maker a discretion to make a determination in other circumstances. Those other circumstances might include those in which the application for a determination were made outside the time limits in s. 7(2F)(b). This is not the case in which to decide that question for there is a more fundamental question that needs to be asked and answered. That is whether s. 7(2F) gives the decision-maker a discretion to decide whether to make a determination even if the person does not satisfy the requirements of either ss. 7(2E)(a) or (b). Certainly, the decision-maker must make such a determination if a person does satisfy them but it is the directive nature of the provision that raises the question. I do not think that the section does give such a discretion. The determination that is to be made is to the effect that the person does meet the requirements of either ss. 7(2E)(a) or (b). Given what the determination stands for, there cannot be a discretion to make it if it would not accurately reflect the person’s circumstances.
For these reasons, I do not consider that Mr Firdousi meets any of the requirements of being an Australian resident within the meaning of the Act. Therefore, I affirm the decision of the Social Security Appeals Tribunal dated 1 April 2005.
I certify that the thirty-eight preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Hearing 25 July 2005
Date of Decision 14 December 2005
For the Applicant selfSolicitor for the Respondent Ms K. Navarro, departmental advocate
Centrelink Legal Services Branch
“I think that I am entitled to take into account the fact that he negotiated for and took a lease of a flat in Darwin although the lease was after the period with which the appeal is concerned. …
… It is true that the most permanent arrangements were made outside this period. But the English cases show that events which occurred before and after a given period may be considered as throwing light on and disclosing the significant habits and conduct within the period.”
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