Gajdzinski and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 142

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/443

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ZDZISLAW GAJDZINSKI
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date26 February 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Age Pension – residence requirements considered – applicant did not demonstrate sufficient connection to Australia or intent to remain in Australia
Social Security Act 1991 ss.7, 43, 48, 51

REASONS FOR DECISION

26 February 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Zdzislaw Gajdzinski (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 26 October 2000 (T2) which affirmed upon review a decision of an authorised review officer (ARO) of the respondent dated 3 February 2000 (T12). That decision had affirmed the decision of a delegate of the respondent dated 10 January 2000 (T7) not to grant the applicant Age Pension on the basis that he is not an Australian resident within the meaning of section 7 of the Social Security Act 1991 (the Act).
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14). Immediately prior to the hearing, the Tribunal received a letter stating that the applicant had returned to Germany and would not be able to attend the hearing. The Tribunal was otherwise unable to contact the applicant, but with the consent of the respondent, who was represented by Mr J. Underwood, departmental advocate, proceeded to hear the matter in the absence of the applicant, on the basis of the documentary evidence before it.
The issue for the Tribunal is whether or not the applicant should be granted an Age Pension.
history of the application
The applicant was born on 30 May 1915 in Warsaw, Poland. He spent six years as a prisoner of war in Germany during World War II, during which time he met his wife, whom he married soon afterwards. In 1950 the applicant and his wife came out to Australia.
The applicant and his family returned to Germany in 1965 and remained there for some 35 years.
On 4 December 1999 the applicant returned to Australia and lodged a claim for Age Pension on 4 January 2000 (T5) which was rejected on 10 January 2000 (T7). This decision was affirmed upon review dated 3 February 2000 (T12) and by the SSAT on 26 October 2000 (T2). In its reasons for decision the SSAT stated (inter alia):
"…
The Tribunal had regard to the contents of subsection 7(3) of the Act and notes that Mr Gajdzinski had since 1965 spent most of his time in Germany. His son, Andrew, was raised in Germany and only returned to Australia in 1992. Mr Gajdzinski also has a grandson who is over in Germany. Whilst Mr Gajdzinski has maintained the property at Carey Gully SA he has very little other financial ties with Australia. The bulk of Mr Gajdzinski's assets remain in Germany and Mrs Gajdzinski continues to reside in Germany.
Since his son returned to Australia in 1992 Mr Gajdzinski has made a number of trips to Australia to visit his son and provide him with some assistance. However, by Mr Gajdzinski's own admission in order to continue receiving his Polish pension he must continue to reside in Germany. Mr Gajdzinski has no other family in Australia and at this stage intends to return to Germany in February 2001.
After consideration of all these factors the Tribunal was unable to conclude that Mr Gajdzinski was an Australian resident and as such the claim lodged for an age pension was not a proper claim within the meaning of section 51 of the Act. The Tribunal therefore affirms the original decision to reject Mr Gajdzinski's claim for an age pension."

documentary evidence

In the absence of the applicant, the Tribunal notes the following written statements and other documentary evidence.
In his application for review to this Tribunal dated 10 November 2000 (T1) he stated (inter alia):
"…
8). As a member of the Polish Armed Forces and the member of the British Army of the Rhine & Polish Resettlement Corps in Great Britain & working 15 years for Australia with GM Holden Woodville & Elizabeth, SOUTH AUSTRALIA (and in the same time on building & leasing poultry farm on my property in Carey Gully supplying Australia with eggs, capons & meat of …27 years of hard work for Australia & never giving up my AUSTRALIAN PASSPORT – only claiming my old pension & 2-3 years before my transfer to eternity."

In a form entitled "Australian residence and periods in other countries" (T4), in response to question 7 (which asks the person to list periods of residence over 6 months in all countries) the applicant listed Poland from 30 May 1915 to 20 September 1939, Germany from 21 September 1939 to 15 April 1947, England from 17 April 1947 to 6 January 1948, Australia from … February 1950 to 2 February 1965 and Germany from 4 March 1965 to 2 December 1999.
In an attachment dated 4 January 2000 (T5) the applicant stated (inter alia):
"…
I wish to claim age pension. My wife resides in Germany. I have my own home in Germany. I own a property in Australia Range View Drive Carey Gully. My son lives there since 1993. My son was born 9/12/62. He always lived in Australia except till 1992 he lived in Germany and then came to Australia for permanent residence. My visits from Germany to Australia after I left in 1965 are 17.12.93 – 26.12.93 and 7/9/95 – 7/11/95 and 2.1.99 – 3.3.99. I arrived 4/12/99. To settle my age pension. I worked in Australia for 15 years 1950 to 1965 and to look after my son who is recovering some nervous diseases in Germany from drugs. I am returning to Germany depends how my son is getting on. I renew my passport Australian every 5 years.
If I am not residing in Germany I lose my Polish age pension. This is 50% of my German pension. I am residing here not permanently. I was residing here permanently when I worked in Australia. If I renounce Germany I lose 1000 marks per month. I cannot say I will be living permanently in Australia. I want to stay but I cannot understand why Australia will not pay me an age pension. On 2nd February I must depart for Germany. I have an Australian bank account for supporting my son because he is a sick man. I would have had a tax file number at GMH Holdens.
…"

The applicant repeated similar information in a letter to a delegate of the respondent dated 25 February 2000 (T13).
respondent's submissions
Mr Underwood submitted, on behalf of the respondent, that the applicant does not satisfy the requirements of sub-section 7(3) of the Act. He referred to the fact that the bulk of the applicant's family is in Germany; the applicant intended to return (and has returned) to Germany; the applicant does not use his Australian bank account for his own purposes; and has only had commitment to Australia as a holiday maker since 1965. He further submitted that the applicant clearly has no intention to permanently reside in Australia.
Mr Underwood submitted that there is no reciprocal agreement currently in place between Germany and Australia that would facilitate the granting of an Australian Age Pension to the applicant but noted that such is intended to reach both the Australian and German Parliaments in 2002.
discussion and findings
The Tribunal was moved by the letters written by the applicant, and it is clear that he has led a full and at times difficult life. After spending some six years as a prisoner of war, he had to subsequently work hard to establish himself in Australia, returning to Germany in circumstances that were again difficult. His recent return to Australia was also in unfortunate circumstances.
This Tribunal is a statutory creature however, and must apply the legislation in the manner in which it deems to be correct. In order to receive an Age Pension, a person must not only be qualified pursuant to section 43 of the Act, but must make a proper claim pursuant to section 48 of the Act. In order to be a proper claim, pursuant to section 48, section 51 of the Act requires that a person must be an "Australian resident" at the time of making the claim. In the absence of a reciprocal agreement between Australia and Germany, the Tribunal must consider the provisions of sub-sections 7(2) and 7(3) of the Act, which provide:
"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)the holder of a special category visa who is likely to remain permanently in Australia;
(iv)the holder of a special purpose visa who is likely to remain permanently in Australia.
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."
The Tribunal turns therefore, to consider the sub-section 7(3) factors. The applicant owns the home where he stays when in Australia for the purposes of sub-paragraph 7(3)(a) of the Act. His son also lives there and was living there at the time the applicant applied for Age Pension. It is an established home in Australia for the purposes of sub-paragraph 7(3)(a) of the Act.
In relation to sub-paragraph 7(3)(b), the applicant's son lives in Australia. He has significant family outside of Australia however, with his wife and grandson living in Germany. Whilst here at the time of applying for Age Pension, it is significant that he has since returned to Germany to be with his wife.
With respect to sub-paragraph 7(3)(c) of the Act, the applicant does not appear to have any business or employment ties in Australia. He has an Australian bank account which remains operative for his son's use. His primary income stems from the German and Polish pensions. In his statement dated 4 January 2000 (T5) he indicates that he is required to remain in Germany in order to continue to receive both pensions. From the tone of the statement, it is apparent to the Tribunal that this is a significant incentive for the applicant to remain in Germany.
The applicant has a house and bank account in Australia for the purposes of sub-paragraph 7(3)(d) of the Act, but has significant assets outside of Australia, including a house in Germany which he jointly owns.
In relation to sub-paragraph 7(3)(e) of the Act, the applicant has frequently travelled outside Australia, most notably, being absent between 1965 and 1993. Since then, he appears to have visited Australia on four occasions, being two weeks in December 1993, two months in late 1995, two months in early 1999, and some 13 months between December 1999 and January 2001. On each occasion, he has returned to Germany.
In relation to sub-paragraph 7(3)(f) it is significant to note the applicant's intention appearing in his statement dated 4 January 2000 (T5):
"…
If I am not residing in Germany I lose my Polish age pension. This is 50% of my German pension. I am residing here not permanently. I was residing here permanently when I worked in Australia. If I renounce Germany I lose 1000 marks per month. I cannot say I will be living permanently in Australia. …"
On the basis of the information before it, the Tribunal concludes and so finds that the applicant has no intention of remaining permanently in Australia, both for family and financial reasons. It further finds that the applicant does not have significant financial, business or employment ties to Australia. It also finds that whilst his son lives in Australia, the applicant has strong family connections with Germany, and most importantly, that is where his wife lives. Excepting the thirteen month period the applicant spent recently in Australia, for the purposes of sub-paragraph 7(3)(e) of the Act, the Tribunal finds that the applicant has had frequent and very long travel outside of Australia, in that he has effectively lived the bulk of the last 35 years in Germany.
In the circumstances, whilst the Tribunal can appreciate the applicant's strong emotional commitment to Australia, and recognises the importance he places upon being an Australian citizen, it cannot find him to be an Australian resident for those reasons alone. Accordingly, the Tribunal finds that, for the purposes of sub-section 7(2) of the Act, as at the time of his application the applicant was not an Australian resident.
This means that the applicant does not satisfy section 48 of the Act and is not entitled to receive an Age Pension.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  22 January 2001
Date of Decision  26 February 2001
Counsel for the Applicant        No appearance
Solicitor for the Applicant         -
Counsel for the Respondent    Mr J. Underwood
Solicitor for the Respondent    Centrelink

[2001] AATA 142

26 February 2001

Key Legal Topics

Areas of Law

Administrative Law

Social Security Law

Legal Concepts

Jurisdiction

Statutory Interpretation

Social Security Act 1991

Residence Requirements

Age Pension