Fletcher and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 353

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 353

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/838

GENERAL ADMINISTRATIVE DIVISION		)         No 2008/34
Re		MERANIA FLETCHER

Applicant

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

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date2 May 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]...........................

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Entitlements – family tax benefit – applicant has a Family Tax Benefit child – applicant not resident in Australia at dates of claim – decisions under review affirmed. 

A New Tax System (Family Assistance) Act 1999 (Cth) ss 3, 21, 22
Social Security Act 1991 (Cth) s 7
Guide to Social Security Law Version 1.135 (7 April 2008)

Re Maha Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82.

REASONS FOR DECISION

2 May 2008 Mr RG Kenny, Member      

Background

1.      Merania Fletcher (the applicant) was born in the Republic of Kiribati.  Her father, Barry Fletcher, is an Australian citizen.  She became associated with him during his visit to Kiribati in 2002.  She was registered as an Australian citizen by descent in August 2005.  On three occasions in 2006, she came to Australia where she stayed from 26 February until 12 May, from 23 July to 5 August and from 27 September until 25 October.  In the first of those periods, she was accompanied by her husband and their 5 children.  Their sixth child was born on 3 April 2006.  In the second and third periods, she was accompanied only by Aaron while the rest of her family remained in Kiribati. 

2.      On 10 April 2006 and 17 October 2006, the applicant lodged claims with Centrelink for family tax benefit, a form of income support payable under the New Tax System (Family Assistance) Act 1999 (the FA Act).  Her claims were rejected by Centrelink delegates on 19 May 2006 and 24 November 2006, respectively.  Those decisions were affirmed by authorised review officers and, in turn, by the Social Security Appeals Tribunal on 20 October 2006 and 19 November 2007, respectively.  The applicant now seeks review of those decisions by the Administrative Appeals Tribunal (the Tribunal).

Issues and Legislation

3.      To meet the eligibility requirements for family tax benefit (FTB) under s 21(1) of the FA Act, the applicant must have had at least 1 FTB child and have been an Australian resident at the dates of her respective claims.  Section 22 of the FA Act lists the criteria for an FTB child and it is not disputed that the sixth child satisfied those requirements on each of the two relevant claim dates.  Section 3 of the FA Act provides that the term ‘Australian resident’ has the same meaning as in the Social Security Act 1991 (the SS Act) where s 7(2) provides, in so far as relevant in this matter, that an ‘Australian resident’ is a person who is an Australian citizen and who resides in Australia.

4. The applicant’s citizenship is not in dispute and the only issue for determination is whether she was an Australian resident at the dates of her claims or either of them. Section 7(3) of the SS Act sets out a series of criteria that must be considered in deciding, for the purposes of that Act, and therefore for those of the FA Act, whether or not a person is residing in Australia.

Evidence

The applicant

5.      The applicant gave her evidence with the assistance of an interpreter.  She was granted Australian citizenship and issued with an Australian passport in August 2005.  Her father and his Australian family, including the applicant’s half-sisters, stayed in Kiribati with her family at various times in 2002.  As result of discussions with them, she and her husband decided to migrate to Australia primarily for the enhanced educational opportunities available to their children.  She understood from the Australian consulate in Kiribati that, if they came to Australia with tourist visas, they could make application for permanent residence whilst in Australia.  She and her family lived with her father who owned a farming property near Grafton in New South Wales.  She closed her bank account in Kiribati, which had a balance of $500, and opened a new account with the Banana Coast Credit Union in Grafton shortly after she arrived.  She applied for the family tax benefit and also a tax file number and a Medicare card. 

6.      The visas with which the applicant’s husband and children were issued permitted a maximum of three months stay and included the condition “no further stay”.  She learned from the Department of Immigration that they could not make the applications whilst in Australia and it was for that reason that her husband and their three oldest children returned to Kiribati.  She remained in Australia with the younger children and with the new-born (the sixth child) while arrangements were made in Kiribati for applications to be made there.  

7.      The applicant returned to Kiribati in May 2006.  This was because of the limitations of the tourist visas held by two of her children who had remained in Australia with her, because she missed the remainder of her family and because of the cultural requirements of ensuring that the sixth child met with his extended family in Kiribati.  She also wished to assist in the processing of the permanent residency applications with the Australian consulate in Kiribati.

8.      When the applicant was departing Kiribati to return to Australia in July 2006, her Kiribati passport was confiscated because, under Kiribati law, she was not allowed to have two passports.  On arriving in Australia on that second occasion, she entered into a subtenancy agreement to rent a room in a house in Priestdale, Brisbane, which is owned and occupied by her half-sister and her husband.  She returned to Kiribati in August 2006 to provide further assistance in processing the permanent residence applications and also because she was missing her family.  Whilst there, medical examinations which were required as part of the application process and for which her consent was required were conducted on her children.

9.        After returning to Australia in September 2006, the applicant lodged a second claim for family tax benefit and then returned to Kiribati to await the issuing of permanent residency visas to her husband and her five oldest children.  After these were granted, they came to Australia on 20 February 2007.  On arrival, they lived in the room in the Priestdale house for which the rental agreement had continued.

10.       The applicant said that it had always been her intention from the time when she became an Australian citizen and that she would live in Australia as a permanent resident.  She intended that this would be the case when she first arrived in Australia in February 2006.

11.     The applicant said that the question of selling personal or other property, on leaving Kiribati, did not arise because all property was family or community-based and anything that was left behind would be used by the remaining family members.  The only asset they had on arrival in Australia was the money in her bank account.

12.     The applicant is currently in receipt of family tax benefit which was granted to her from 20 February 2007.  Her husband has found employment and the family now lives, independently, in rented premises in Brisbane.

Barry Fletcher

13.     Mr Fletcher gave the following evidence.  He met with the applicant, his daughter, in July 2002 when he, his wife and their three daughters stayed for a month with the applicant and her family in their village in Kiribati.  He also stayed with the applicant and her family for approximately one month in June 2004 and for a period of three months from September 2005.  One of his daughters, Rachel, returned to Kiribati in April 2003 and stayed there until the applicant first travelled to Australia in February 2006.  Whilst Mr Fletcher was there, the applicant and her husband decided that they and their children would migrate to Australia to live. 

14.     When back in Australia, Mr Fletcher made inquiries with the Department of Immigration and understood that the applicant and her family could enter Australia with visitor visas and then apply for permanent residency.  On arrival in Australia, the family lived in Mr Fletcher’s home near Grafton in New South Wales.  However, they came to realize that the application for permanent residency would be more effectively processed in Kiribati and, while the applicant remained in Australia with the two youngest children, her husband returned to Kiribati with the three oldest children to submit permanent residency applications there.  Shortly thereafter, the applicant gave birth to her sixth child.  On 12 May 2006, the applicant, accompanied by Rachel and the three children, returned to Kiribati.

15.     When the applicant came to Australia in July 2006, it was arranged that she stay at the Priestdale house of Mr Fletcher’s son-in-law.  She lodged a bond and entered into a tenancy agreement whereby a room in the house was allocated to her use.  The rent was $100 per week and this was paid by Mr Fletcher.  He continued to make this payment until all of the family was in Brisbane in 2007.  He did so by direct payments to his son-in-law when he saw him from time to time and did not obtain any receipts for those payments.  Mr Fletcher owns a tea-tree plantation and operates a business extracting and selling tea-tree oil products.  The applicant was employed by that business while in Australia and also assisted in marketing of the product when she had returned to Kiribati.  However, she was not a formal employee and was not remunerated.  Rather, Mr Fletcher paid the rental costs and assisted with living expenses.  He also paid the costs incurred by the applicant and her family in travelling between Australia and Kiribati.  He agreed that he had purchased return air tickets and, at least in the case of the second and third trips in 2006, this was because it was more economical to do so.  He was not sure that this was the case with the tickets purchased for the first trip in February 2006.

16.       Mr Fletcher understood that the confiscation of the applicant’s Kiribati passport meant that, in order for her to enter Kiribati, she had to obtain a visitor’s visa.  This permitted her to stay for one month although this period could be extended.

Rachel Fletcher

17.     Rachel Fletcher is Mr Fletcher’s daughter and the applicant’s half-sister.  Her statement, dated 29 January 2008, was in evidence.  She accompanied the applicant and her family when they first travelled to Australia and completed the immigration and customs forms for all of them when they arrived.  This was because of their inability to read or write in English.  She admitted to making some errors in the documentation and, in particular, in answering “no” to the question of whether or not they intended to live in Australia for the next 12 months.  She also noted that the applicant was a “resident returning to Australia” and did this because she believed that the applicant was entering Australia to reside permanently.  She also completed subsequent entry documentation and correctly noted that the applicant intended to live permanently in Australia.  She believed that the errors she made resulted from the stress and tiredness she experienced from assuming responsibility for escorting all of the family during the 10 hour journey from an outlying island to Tarawa in Kiribati and on to Australia.

Other evidence

18.     Amongst the documents in evidence were incoming passenger cards completed in February 2006 when the applicant and her family first arrived in Australia.  The response to the question “Do you intend to live in Australia for the next 12 months?” is “No”. 

19.     Before the first return visit to Kiribati, the applicant applied to Medicare Australia for a medicare card.  In evidence was a copy of a Declaration of Residency for Medicare Purposes completed for and signed by the applicant on 11 May 2006, the day before she first returned to Kiribati.  Therein, she advised that she was travelling to Kiribati and would be returning to Australia.  It contains the following explanation for this visit:

“My husband ……….and five children who are Kiribati citizens living in Kiribati intend to migrate to Australia when permanent resident visas have been granted. An application for (these) visas is being prepared and will be lodged with the Australian High Commission on Tarawa Kiribati. I need to submit statements and other documents with the H C Tarawa as spouse sponsor for the visa applications.  It is my intention to visit my family in Kiribati and attend to the above requirements while in Kiribati between May 12 and August 6 2006 on which date I intend to return to Australia and resume residence with my father, Mr Barry Fletcher at …………South Grafton.

When my husband and children arrive in Australia they will reside also at the above address until other suitable accommodation is found.”

Submissions

For the respondent

20. Mr Flintoft submitted that the relevant time for determining the applicant’s residential status was at the dates of the respective claims. He submitted that on neither of those dates was there a sufficient fulfilment of the factors in s 7(3) of the SS Act to justify a finding that the applicant was an Australian resident.

21.     In relation to the nature of the applicant’s accommodation, Mr Fletcher submitted that this was merely temporary in nature, was arranged through relatives and lacked any “arms-length” objectivity.  He also submitted that it was significant that the applicant was not in a position to be able to afford to pay for any such accommodation.  He referred to the lack of formality in the arrangement with Mr Fletcher’s son-in-law for the rent of a single room in Brisbane, in particular, the infrequency of rental payments and the lack of any receipts for those payments.

22.       Mr Flintoft submitted that the family relationship between the applicant and her Australian family commenced in 2002 when they started getting to know each other and did not take on a greater significance until 2007 when all of the family finally moved to Australia.

23.     Mr Flintoft was critical of the evidence given by the applicant about the nature of the arrangements surrounding her employment by her father.  He referred to an absence of any formal documentation about this work, to her uncertainty of the payment arrangements and to the fact that it was merely a father/daughter arrangement rather than that of an employer/employee.  He submitted that this demonstrated an absence of financial security and he submitted that the applicant would have experienced less financial security in Australia than when she was living in Kiribati.

24.     Mr Flintoft referred to the absence of any assets held by the applicant in Australia as indicating that her visitation were only of an exploratory nature designed to see whether it was possible to obtain financial benefit in Australia.  He submitted that this was reinforced by her departures following her unsuccessful attempt to obtain family tax benefit.

25.      Mr Flintoft submitted that it was significant that, from the date of her first arrival until her final arrival in Australia, the applicant had spent more time in Kiribati with her family than she had in Australia.  He also submitted that the temporary nature of the visits to Australia was reinforced by the fact that they had travelled to Australia with return air tickets which demonstrated that this indicated the taking of a precaution in the event that they needed to return to Kiribati. 

For the applicant

26.     Mr Fletcher acknowledged the matters raised by Mr Flintoft in relation to the nature of the accommodation utilised by the applicant while she was in Australia, the rental arrangements at the Priestdale house and the manner in which he provided financial assistance for the family.  He submitted that these were arrangements that were necessary in the applicant’s circumstances.  He disputed that the first trip to Australia was merely exploratory in nature as it was believed that applications for permanent residence could be made here.  He submitted that it had been the applicant’s intention on first leaving Kiribati, and at all times thereafter, to make Australia her home.  He submitted that there were genuine reasons for her return visits to Kiribati associated with the visa limitations imposed on her husband and children, the need for her to assist in processing the applications there and for her extended family to meet with her son, her sixth child.  He submitted that she should be treated as being permanently resident in Australia from the date of her first arrival in Australia and, therefore, on the dates of her successive applications for family tax benefit.

Consideration

27.     In Re Maha Hafza v Director-General of Social Security[1], Wilcox J referred to the “plethora of decisions” relating to the legal concept of residence. Clearly, there have been many more since then in the context of a range of legislative provisions. Some are concerned with individuals with an established home in Australia where the issue is the continuation of residential status during an absence from Australia. Others are concerned with whether residence is established on arriving in Australia from abroad. As noted above, s 7(3) of the SS Act lists a series of criteria that must be considered in deciding, for the purposes of that Act, and therefore for those of the FA Act, whether or not a person is residing in Australia. These are:

[1] (1985) 6 FCR 444 at 449

“(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.”

28. Also, the respondent has published the Social Security Guide (the Guide) to provide assistance to those who administer the SS Act. It is well established that the Tribunal, whilst not bound to apply policy guidelines of the kind in the Guide, may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so[2]. In this case, there is no material to indicate that the Guide should not be applied. It provides, at paragraph 3.1.1.10, commentary to assist with the application of the criteria in s 7(3) of the SS Act. In so far as it is relevant in this matter, it includes the following:

“A mortgage or rental lease in Australia is a good indication that a person is residing here. However, many people do not have such formal living arrangements. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country. As well as the nature and extent of the family relationships the person has in Australia, consideration must be given to the nature and extent of any family relationships the person has outside Australia. If the person has a spouse, where does the spouse live? If the person has dependent children, are the children enrolled in school in Australia?

Assets such as bank accounts, investments, real estate, a car and furniture are useful indicators. However, care should be taken to ensure that poverty, lack of assets and lack of income are not counted against a person's claim to be residing in Australia.

A person does not need to be continuously present in Australia in order to be residing here. A person holidaying, or working temporarily, overseas does not necessarily cease to reside in Australia while they are away. On the other hand, a person who spends more time overseas than in Australia would not usually be considered to be residing in Australia.

A return airfare to another country may indicate that a person does not intend to remain permanently in Australia, whereas a one-way ticket may indicate that a person intends to stay. However, such a factor should not be taken, of itself, to be conclusive evidence of a person's intentions.”

[2] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645 and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

29. Each decision relating to residence will turn on its own facts after consideration of the matters in s 7(3) of the SS Act and the Guide. In the applicant’s case, there is merit in the submissions of Mr Flintoft concerning the temporary nature of the applicant’s accommodation arrangements, the relatively short-term nature and extent of relationships with the Australian family, the family-oriented nature of the employment arrangements she had with her father and the absence of an asset base in Australia. Given the circumstances in which the applicant came to Australia, those descriptions would inevitably apply to her. However, regard should be had to the injunction in the Guide concerning the need for care to ensure that poverty and a lack of assets or income should not be counted against a claim of residence. Nevertheless, the notion of family relationships embraces both the Fletcher family in Australia as well as the applicant’s immediate family and, for most of the time, her husband and children remained in Kiribati. Whilst this was explained by the need for them to leave Australia because of the initial visa limitation imposed upon them, it constituted a strong emotional connection between the applicant and Kiribati. Understandably, this was one of the factors motivating her to return to Kiribati in May, August and October. In that regard, s 7(3) of the SS Act makes specific reference to the frequency and duration of travel outside Australia. Indeed, from the date of her first arrival until the family finally came to Australia in February 2007, the applicant was absent from Australia for periods greater than she was here.

30.     The Guide refers to the nature of the ticket by which a person travelled.  Mr Fletcher’s evidence was that, for the trips to Australia in 2006, return tickets were utilized.  He explained that, for the second and third of those trips, this was because of the pricing structure.  No explanation was given for the purchase of return tickets when the whole family first came to Australia in February 2006.  Reference has been made to the incoming passenger cards completed on that occasion.  They declare that none of the family intended to live in Australia for the next 12 months.  Rachel Fletcher completed those documents and, in her statement, described this as a mistake which she made because of her tiredness.  However, I do not accept that explanation.  This is because of the significance of that response on the passenger cards in the context of the purpose that the family was claiming to achieve i.e. to remain permanently in Australia. 

31. I accept that the applicant intended, eventually, to reside permanently in Australia. Indeed, she has subsequently achieved this outcome. However, I also accept the submission of Mr Flintoft that the applicant’s initial visitation was of an exploratory nature and that it was for the purpose of assessing whether it was possible to remain in Australia. On a consideration of all of the factors in s7(3) of the SS Act, I am satisfied that she was not an Australian resident as at the dates of her respective claims for family tax benefit.

Decision

32.     The Tribunal affirms the decisions under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
  E. Young, Research Associate

Date/s of Hearing  4 April 2008
Date of Decision  2 May 2008
For the Applicant  Mr Barry Fletcher            
For the Respondent                  Mr Paul Flintoft, Departmental Advocate