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

[2008] AATA 361

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 361

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3838

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		AHMET GUNSAN

Applicant

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

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date5 May 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review dated 19 July 2007 that Mr Gunsan has a recoverable debt for the period 16 April 2004 to 31 October 2006.  

(sgd) Egon Fice

Member

Social security – age pension – eligibility – periods spent outside australia – whether residing in australia – resumption of australian residence

Social Security (Administration) Act 1999 s 29(1)

Social Security Act 1991 ss 7(2), 7(3), 7(5), 43(1)(a) and 1220(1)

Hafza v Director-General, Social Security (1985) 6 FCR 444

Re Firdousi and Secretary, Department of Employment and Workplace Relations (2005) 89 ALD 436

Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773

Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70

REASONS FOR DECISION

5 May 2008 Mr Egon Fice, Member      

1.      Mr Ahmet Gunsan is an Australian citizen who was granted the age pension on 22 July 2003.  On 16 April 2004 Mr Gunsan left Australia for Turkey.  He did not return until 1 November 2006.  Centrelink made enquiries regarding Mr Gunsan’s absences from Australia since he became an Australian Citizen in 1984, and became aware that Mr Gunsan had spent extensive periods of time outside Australia since 1993.  Centrelink then determined that Mr Gunsan should be considered to be a former resident of Australia who again became an Australian resident in November 2002.  Because he had departed Australia within two years of being granted the age pension, Centrelink determined that Mr Gunsan was not eligible for the age pension during any period of absence from Australia since that pension was granted.  Therefore, Centrelink notified Mr Gunsan that he was required to repay an amount of $24,621.38.

2.      On 12 March 2007 an Authorised Review Officer (ARO) affirmed the initial decision made by the Centrelink officer on 10 January 2007.  Mr Gunsan sought review by the Social Security Appeals Tribunal (SSAT) which affirmed the ARO’s decision on 19 July 2007.  Mr Gunsan seeks a review of the SSAT decision.

3.      There is no dispute about the fact that Mr Gunsan spent considerable periods of time between 1993 and 2006 living in Turkey.  The issue which I must determine is whether, because of those absences from Australia, Mr Gunsan ceased to be an Australian resident for the periods of time that he was living in Turkey.  Mr Gunsan did not seek to take advantage of the waiver provisions in the Social Security Act 1991 (the Act).

BACKGROUND

4.      Mr Gunsan was born in Turkey on 10 January 1936.  He and his wife migrated to Australia from Turkey in November 1969.  He was employed by the ANZ Bank where he continued to work until his retirement in 1983 when he received a superannuation pension.  He was employed for some 13 years.

5.      Mr Gunsan and his wife jointly purchased a property at 4 Cox Street, St Albans (the St Albans property).  Mr Gunsan and his wife continue to jointly own that property.

6.      Mr Gunsan and his wife had three children, one son and two daughters.  His son and one daughter live in Australia, while his second daughter lives in Turkey.  There are eight grandchildren, three of them living overseas and five in Australia.  Mr Gunsan also has two nephews and one niece whose families live in Australia.  Mr Gunsan left Australia in 1993 and went to Turkey where he resided with his daughter.  He continued to receive a superannuation pension while living in Turkey.  His wife did not go with him.

7.      Mr Gunsan returned to Australia on 27 June 1999 to visit his grandchildren.  He remained in Australia until 6 October 2000 when again he departed Australia to return to Turkey.  Mr Gunsan remained in Turkey for the next two years, returning to Australia on 27 November 2002.  On 31 July 2003 Mr Gunsan lodged a claim with Centrelink seeking the age pension.  On the age pension claim form, in answer to a question seeking the details of all countries where Mr Gunsan had lived since birth, Mr Gunsan noted that he lived in Turkey between 10 January 1936 and 12 November 1969, and then in Australia from 12 November 1969 until the date of his application.  He did not mention the extensive periods of time he lived in Turkey after 1993.

8.      On 16 April 2004 Mr Gunsan again left Australia for Turkey.  He did not come back to Australia until 1 November 2006.  His wife, who had also been in Turkey since April 2006, returned with Mr Gunsan on 1 November 2006. 

9.      In a letter dated 29 August 2003, Centrelink notified Mr Gunsan that he was to receive the age pension from 22 July 2003.  That letter from Centrelink also stated that if Mr Gunsan planned to travel outside Australia, he must let Centrelink know within 14 days of making a decision to depart.  The letter cautioned Mr Gunsan that he may not be entitled to his pension or some of the additional payments for the periods when he was away from Australia. 

10. In late November 2006, Centrelink reviewed Mr Gunsan’s entitlement to receive the age pension. It was at this time that Centrelink discovered that Mr Gunsan had been absent from Australia for substantial periods of time before claiming the age pension and that within two years after being granted that pension, he had again left Australia. The question was then raised whether Mr Gunsan was subject to the requirements set out in s 1220(1) of the Act and whether he qualified for the age pension after leaving Australia on 16 April 2004. These enquiries resulted in Mr Gunsan’s pension being cancelled and a debt raised to recover the payments Mr Gunsan had received between 16 April 2004 and 3 January 2007.

11.     Although the SSAT agreed with the decision of the ARO that Mr Gunsan must repay the age pension payments he received after leaving Australia, it held that only payments received by Mr Gunsan which related to the period 16 April 2004 to 31 October 2006 should be recovered by way of a debt owed to the Commonwealth.  This was because Mr Gunsan returned to Australia on 1 November 2006. 

THE LEGISLATIVE SCHEME

12. There was no dispute that Mr Gunsan qualified for the age pension at the time of his application in July 2003. Section 29(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that to qualify for the age pension, a person must be an Australian resident. Furthermore, Mr Gunsan was in Australia at the time that he made the application, thereby satisfying the second limb of s 29(1) of the Administration Act.

13. Section 43(1)(a) of the Act provides that a person is qualified for the age pension if the person has reached pension age and either has 10 years qualifying Australian residence or, for another reason, is exempt from that residence requirement. Section 7(5) of the Act relevantly provides that a person has 10 years qualifying Australian residence if the person has, at any time, been an Australian resident for a continuous period for not less than 10 years.

14. Section 7(2) of the Act provides:

(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.

15. The factors which must be considered in determining whether a person is residing in Australia are set out in s 7(3) of the Act. Section 7(3) provides:

(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.

16.     There is one further important complicating provision in the Act.  That deals with the situation where a person has met the 10 year qualifying Australian residence period; then ceases to be an Australian resident; and at a later point in time, returns to Australia and again becomes an Australian resident.  If that person is granted an age pension within two years after the person again became an Australian resident, and then leaves Australia following the grant of the age pension, the pension ceases to be payable to that person during any period which the person is outside Australia (s 1220(1) of the Act).

17.     Mr Gunsan was absent from Australia for two significant periods of time prior to his application for the age pension in July 2003.  He was absent for a period of approximately five and a half years between October 1993 and June 1999 and again for a period of approximately two years between October 2000 and November 2002.  During those periods of time, he lived in Turkey with his daughter.  He did not return to Australia during any of those periods of absence.  This raises the issue whether Mr Gunsan continued to reside in Australia during those periods of absence.  If he did not, despite his qualification for the age pension, he was not entitled to be paid the age pension during any period he was outside Australia after the pension was granted, whether resident or otherwise. 

RESIDING IN AUSTRALIA

18. In determining whether Mr Gunsan continued to reside in Australia despite the two periods of absence referred to above, I must have regard to each of the factors set out in s 7(3) of the Act.

19.     In Re Firdousi and Secretary, Department of Employment and Workplace Relations (2005) 89 ALD 436, Deputy President Forgie examined, in some detail, the various authorities which considered the words reside, resident, and the expressions ordinarily resident and temporarily resident.  Deputy President Forgie noted, at paragraph 28, that provisions of the Act which deal with a person being temporarily absent from Australia suggest that the intention required of the person is to be resident in Australia when not temporarily absent from it.  She concluded that the provisions in the Act which refer to resident align more closely with the expression ordinarily resident than the expression resident as those are commonly used.  She said that concept of residency in s 7 of the Act 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.

20.     Branson J in Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 referred to s 7(3)(f) of the Act and said, at paragraph 15:

As s 7(3)(f) reveals, for the purposes of the Act, it is, at the least, a relevant factor in determining whether a person is residing in Australia that he or she intends to remain permanently in Australia. ‘Permanently’ in this context does not mean forever, and it does not mean without ever leaving Australia whether for business or recreational purposes. It requires the person to have an enduring commitment to Australia as home (Taslim).(Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70).

Accordingly, her Honour said that it was arguable that, in the context of the Act, a person cannot be an Australian resident and the resident of another country at the same time.

nature of the accommodation used in australia

21.     Mr and Mrs Gunsan jointly purchased the St Albans property in 1973.  Despite Mr Gunsan’s periods of absence in Turkey between 1993 and 1999, and again between 2000 and 2002, Mr and Mrs Gunsan have retained joint ownership of the St Albans property.  However, s 7(3)(a) looks to more than mere legal title to property; it looks to the nature of the accommodation used by the person in Australia.  Mr Gunsan’s evidence was that while he was absent from Australia, his son sometimes stayed at the St Albans property and he also assumed his wife did from time to time.  He seemed quite uncertain about where his wife stayed during his absences from Australia but he explained that his reason for leaving Australia was that he had become anxious and depressed and could not get help from his wife.  He said that the St Albans property was never rented out but that some member of the family usually stayed there from time to time.  Although his son in Australia did not live in the house at all times, Mr Gunsan was unable to say where he lived from time to time.  He also said in evidence that from time to time, his wife did go to Turkey where he thought she stayed with her mother.  He wasn’t able to recall the periods of time that his wife was absent from Australia between 1993 and 2006.  He said that when he was in Turkey and his wife was also there but living at a different location, they tried to reconcile a few times and that Mr Gunsan’s daughter assisted in the reconciliation attempts.   

22.     It is, in my view, of some significance that when Mr Gunsan returned to Australia in 2002 and applied for the age pension in July 2003, he stated in his  application form that his home address (the address where he lived) was 20 Prospecter Drive, Cairnlea.  That is the residence of his daughter and son-in-law.  On another occasion in 2007, Centrelink was seeking to contact Mr Gunsan and had made a telephone call to his wife noting she was not at the St Albans property at the time.  When Mr Gunsan realised that Centrelink was trying to contact him, he wrote a letter indicating that he was in Australia staying couple of months to avoid winter cold there in Turkey.  I reside at the address temporarily here under.  The address given in that letter was 4 Cox Street, St Albans.  There was no direct evidence regarding the reason Mr Gunsan did not stay at the St Albans property whenever he returned from Turkey, and why he gave his address for age pension purposes to be that of his daughter in Cairnlea.  The fact that he stayed at his daughter’s residence when he returned from Turkey does not assist Mr Gunsan in his claim that his intention always was to return to Australia to permanently reside.  It tends to point to the opposite; that Mr Gunsan was temporarily visiting Australia on the occasions that he returned.

family relationships in australia

23.     There is no dispute about the fact that most of Mr Gunsan’s immediate family resides in Australia.  Other than a brother living overseas and his daughter who lives in Turkey, the remainder of his family appears to reside in Australia.  There can be no question, in those circumstances, that he will continue to have contact with his immediate family in Australia although it does not assist me in deciding whether or not, for the extended periods of absence from Australia, Mr Gunsan continued to reside here.

employment business or financial ties

24.     Because Mr Gunsan is retired, he has no employment, business or financial ties with Australia.  He does maintain an ANZ Bank account into which his superannuation is paid.  He is able to access that superannuation in Turkey.  This fact does not weigh in the balance either way.

nature and extent of assets in australia

25.     There is no dispute that Mr Gunsan, together with his wife, continue to own the St Albans property.  Mr Gunsan also indicated that he owns a car and furniture which is located at the St Albans property.  This indicates a continuing connection with Australia.  However, when he returned to Australia after extended absences, he did not appear to use the St Albans property and I have some concerns as to whether the reason for that could be the strained relationship with his wife.  If that were the case, it might raise questions about whether an agreement has been reached between them regarding the use and, possibly, the ownership of that property.  However, there was no evidence before me about that. 

frequency and duration of travel outside australia

26.     As Justice Branson said in Baccon’s case, the legislative requirement for a decision maker to have regard to a person’s travel outside Australia reflects an assumption that an Australian resident will ordinarily be based in Australia.  That follows the statement made by several courts that residence has two elements: a physical presence in a particular place and the intention to treat that place as home; (Hafza v Director-General, Social Security (1985) 6 FCR 444 and Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70).  Justice Branson also pointed out that temporary absence from the established home in a place does not bring residence to an end.  Her Honour said that a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home.  Her Honour referred to Wilcox J’s decision in Hafza where he examined the Shorter Oxford Dictionary and Macquarie Dictionary for the definition of the word temporary.  He noted the definition indicated that temporary meant lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need and “not permanent”.  Wilcox J said that any absence from Australia which comes to an end must, necessarily, be limited in accordance with those definitions.  The absence was clearly not permanent.  He also noted, in this sense, everything in human affairs, including life itself, is temporary.  However, he said, that could not have been the intention when the word was used in s 103(1)(d) of the Social Services Act 1947.  

27.     Although the word temporary is not used in the Act, reference to the frequency and duration of a person’s travel outside Australia necessarily leads one to examine whether Mr Gunsan’s absence from Australia between 1993 and 1999 and again in 2000 to 2002 can be regarded as temporary in the sense that the intention remained to reside permanently in Australia.  Further, taking into account Mr Gunsan’s absences from Australia since being granted the age pension, it can be said that almost 75 per cent of the period of time between 1993 and November 2006 was spent outside Australia.  The fact that Mr Gunsan has again returned to Australia with the stated intention of permanently residing in this country is not necessarily indicative of how this period of absence should be viewed.  As Wilcox J aid in Hafza, at paragraph 19:

Similarly, if an endowee, who has left Australia upon a compassionate visit to a sick relative, should decide indefinitely to stay on at the relative's home after the completion of that purpose, the absence will cease to be temporary notwithstanding an intention eventually to return to Australia.

28.     Mr Gunsan’s evidence was that he first went to Turkey in 1993 because he could not adapt to retirement.  He said he found it stressful and he became irritable, nervous, anxious and depressed.  He said his wife could not give him any assistance and he sought psychiatric treatment in Melbourne.  He found that treatment of little assistance and so decided to go to Turkey to seek what he referred to as old fashioned treatment.  He said that this involved religious therapy as well as yoga and other treatment.  He said that that gave him temporary relief.  When asked why he could not be given the same form of treatment in Australia he simply said he didn’t know that that type of treatment was available in Australia.  In any event, when Mr Gunsan decided to return to Australia in 1999, it was not because the treatment was complete but rather that he missed his grandchildren and wanted to see them.  He said he returned to Turkey in October 2000 for further treatment.  However, it must have been apparent to Mr Gunsan at that time, having received treatment in Turkey for some six years, that the old fashioned treatment was certainly not about to cure the problems from which he suffered.  It is therefore difficult to accept Mr Gunsan’s evidence that he maintained an intention to reside permanently in Australia despite the prolonged absences when he resided in Turkey.  Even if his reason for going to Turkey in the first place was to seek alternative medical treatment, given that his evidence was that the treatment did not resolve his problem, he nevertheless continued to live in Turkey simply because of the availability of that medical treatment.  It also does not explain why, on his returns to Australia, he did not stay at the St Albans property which he owned jointly with his wife, but rather chose to stay at his daughter’s house. 

29.     There is no other matter disclosed by the evidence which is relevant to determining whether Mr Gunsan intended to permanently reside in Australia. 

CONCLUSION

30.     Although Mr Gunsan’s evidence was that he always maintained an intention to permanently reside in Australia, the significant absences of six years and two years prior to lodging his claim for the age pension, on balance, indicate that his absence was more than something which could be described as temporary.  This is despite the fact that he continued to be part owner of the St Albans property.  It is clear that he was experiencing difficulties in his marital relationship and, to some extent, it resulted in him suffering from depression.  Although he sought medical care for that depression, he nevertheless indicated that he wanted to go to Turkey to attempt to cure himself of the problem by using alternative medicine.  His own evidence was that this did not succeed and in fact although he returned to Australia in 2000, he again went back to Turkey in 2002 to continue with treatment.  In the meantime, there were a number of attempts to reconcile his relationship with his wife.  These have not succeeded and the evidence seems to indicate that his failure to reconcile with his wife probably caused him to return to Turkey.

31. On balance, I am satisfied that Mr Gunsan’s absences from Australia between 1993 and 1999, and again between 2000 and 2002, can only be attributed to Mr Gunsan’s intention to reside in Turkey during those periods of time. Accordingly, he was not at the same time residing in Australia. Therefore, s 1220(1) of the Act was enlivened because, for a period of time, Mr Gunsan ceased to be an Australian resident. Although he returned to Australia at the end of 2002 and said he intended to reside in Australia, he again departed Australia in April 2004 and did not return until 1 November 2006. Clearly, Mr Gunsan, within the period of two years after returning to Australia in 2002, and after being granted the age pension, left Australia. In those circumstances, as provided for in s 1220(1) of the Act, the age pension was not payable to Mr Gunsan between 16 April 2004 and 31 October 2006. Given that Mr Gunsan did receive age pension payments during that period of time, it was appropriate that Centrelink raise a debt and commence recovery. It necessarily follows that the decision made by the SSAT on 19 July 2007 was correct and must be affirmed.

I certify that the thirty-one (31) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member

(sgd) Mara Putnis

Clerk

Date of Hearing  18 December 2007

Date of Decision  5 May 2008
Solicitor for the Applicant             Mr T.A. Fernandez
Advocate for the Respondent       Tim Noonan (Legal Services Branch) Centrelink