Hafza v Director-General of Social Security
[1985] FCA 201
•23 MAY 1985
Re: MAHA HAFZA
And: DIRECTOR-GENERAL OF SOCIAL SECURITY (1985) 6 FCR 444
No. 454 of 1984
Social Security
(1985) ASSC para 92 - 052
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Social Security - Child endowment (family allowance) - Provision that endowment cease if endowee ceases to have his usual place of residence in Australia unless absence temporary only - Meaning of "usual place of residence" - What constitutes "temporary" absence.
Social Services Act 1947 (now the Social Security Act) ss.96, 103(1)(d) and (e), 104;
Administrative Appeals Tribunal Act 1975 ss.44, 45.
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 C.L.R. 241 at p.249, Commissioners of Inland Revenue v Lysaght (1928) A.C. 234, Keil v Keil (1947) V.R. 383, Levene v Inland Revenue Commissioners (1928) A.C. 217, Judd v Judd (1957) 75 W.N. (N.S.W.) 147, Norman v. Norman (1969) 16 F.L.R. 231 referred to.
Re Kehagias and Director-General of Social Security (1981) 3 A.L.N. N.151, Re Houchar and Director-General of Social Security (1984) 5 A.L.N. N.449 approved in part, disapproved in part.
Social Security - Child endowment - Cessation - Endowee ceasing to have usual place of residence in Australia - "Usual place of residence" - "Temporary absence" from residence - Relevant considerations - Intention to return - Effect of prolongation of absence - Social Services Act 1947 (Cth), (now the Social Security Act), s 103(1)(d) and (e).
HEADNOTE
Held: (1) The words "usual place of residence" in the former Social Services Act 1947, s 103(1)(d) rima facie limit benefits to endowees who, during any particular period, ordinarily eat, sleep and live in a place in Australia which is a narrower test than that of "residence" in Australia.
Koitaki Para Rubber Estates Ltd v. Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249; Commissioners of Inland Revenue v. Lysaght (1928) AC 234 at 248; Keil v. Keil (1947) VR 383; Levene v. Inland Revenue Commissioners AC 217 at 225; Judd v. Judd (1957) 75 WN (NSW) 147 at 149 and Norman v. (1928) Norman (No 3) (1969) 16 FLR 231 at 236, considered.
Re Kehagias and Director-General of Social Security (1981) 3 ALN N, 151 and Re Houchar and Director-General of Social Security (1984) 5 ALN N 449, disapproved.
(2) A "temporary" absence from Australia within s 103(1)(e) is an absence that will be relatively short and its duration will be either defined in advance or related to the fulfilment of a specific passing purpose and the intent of the absentee is of considerable importance.
Re Houchar and Director-General of Social Security (1984) 5 ALN N 449 at 452, approved.
(3) Where there is a prolongation of an initial temporary absence the extended period may continue to be temporary provided it is governed by the intention to fulfil a particular purpose and then return to Australia.
HEARING
1985, March 21; May 23. #DATE 23:5:1985
APPEAL
Appeal from the decision of the Administrative Appeals Tribunal reviewing a decision of the Director-General of Social Security cancelling the payment of child endowment (as it was then called) under the former Social Services Act 1947.
M Bleicher, for the appellant.
S M Ward, for the respondent.
Cur adv vult
Solicitor for the appellant: R J Quinn, Australian Legal Aid Office.
Solicitor for the respondent: Australian Government Solicitor.
BAG
ORDER
The appeal be dismissed.
The appellant pay the costs of the respondent of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Orders accordingly
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by a senior member, Dr. A. P. Renouf. The Tribunal reviewed a decision of the respondent, the Director-General of Social Security, in regard to the cancellation of payment of child endowment, as the benefit was then called, to the appellant, Mrs Maha Hafza.
The husband of the appellant, Mohamed Nabil Hafza, came to Australia in 1970. He became an Australian citizen in 1973. In 1974 Mr Hafza went back to the Lebanon and married the appellant, who subsequently returned to Australia with him. Two children, Bassam and Belal, were born in Australia; in 1975 and in 1977 respectively. In April 1978 the family travelled to the Lebanon for a visit which was apparently originally intended to last for only about three months. Mr Hafza had been employed by the New South Wales Department of Public Works. He sought leave of absence without pay but, as he was employed upon an hourly basis, this was refused. He was assured that he would be re-employed upon his return after three months. The Lebanese entry visa granted to him was for a visit of three months. The departure cards completed on behalf of the family showed an intention to be absent from Australia for three months. The appellant told her mother, who resides in Australia, that she would be absent for three months. In the result, however, the family did not return to Australia until 1982. Mr Hafza arrived back first, on 9 April 1982. Mrs Hafza, with Bassam, Belal and a third child, Hiba, who was born in Lebanon on 30 November 1981, returned to Australia in June 1982.
Prior to the departure of the family from Australia, the appellant had received child endowment in respect of the two elder children. On 5 April 1978 she notified the Department of Social Security of her intention to leave Australia for three months temporary residence in Lebanon and, on 26 April 1978, the Department decided to suspend payments of child endowment pending the return of the appellant to Australia. The last regular payment was made on 16 May 1978. Subsequently, payment of child endowment was cancelled; the family's absence from Australia being considered to be permanent.
Upon his return to Australia in April 1982 Mr Hafza, on behalf of his wife, applied for child endowment in respect of all three children. The application was confirmed by the appellant after her arrival in Australia. This application was approved as from the date of the appellant's arrival on 24 June 1982 but no payment was approved in respect of the period between 16 May 1978 and 24 June 1982. The appellant subsequently made a claim in relation to this period, which claim was rejected by the respondent. Upon appeal, the Administrative Appeals Tribunal upheld the appeal in part only, ordering that the decision of the respondent be set aside and that the matter be remitted to him for reconsideration, with the direction that the claim be dealt with on the footing that the appellant continued to have her usual place of residence in Australia, and that her absence from Australia was temporary only, during the period between her departure from Australia and the taking up by Mr Hafza of employment in the Lebanon but that the appellant's usual place of residence was the Lebanon between that date and her return to Australia. The precise date upon which Mr Hafza took up employment in the Lebanon has not been established. It appears to be sometime in 1979; with the result that the effect of the decision of the Administrative Appeals Tribunal is that Mrs Hafza is not entitled to receive child endowment during a period of about three years from some time in 1979 until June 1982. She, being dissatisfied with that decision, appeals to this Court contending that, in making its decision, the Administrative Appeals Tribunal fell into errors of law.
As it read at the relevant period, the Social Services Act 1947 -- now the Social Security Act -- provided in Part VI for the payment of child endowment at specified monthly rates to a person who has the custody, care and control of a child (s.95). By s.96 it was provided, subject to certain exceptions including the provisions of s.104, that an endowment shall not be granted unless:
"(a) the claimant (not being an institution) --
(i) is in Australia; and
(ii) if not born in Australia, has, during the period of twelve months immediately preceding the date on which the claim was lodged, had his usual place of residence in Australia; and
(b) the child in respect of whom the endowment is claimed --
(i) is living in Australia, whether or not he is temporarily absent from Australia; and
(ii) if not born in Australia, has, during the period of twelve months immediately preceding the date on which the claim was lodged, been resident in Australia."
Section 103(1) provided that, subject to s.104, endowment ceases to be payable, amongst other circumstances, if:
"(d) the endowee ceases to have his usual place of residence in Australia, unless his absence from Australia is temporary only;
(e) the child ceases to be in Australia, unless his absence from Australia is temporary only;"
Section 104, which operates as a qualification upon both the requirements of s.96 as to entitlement and the provisions of s.103 for cessation, saves the position of some absentees from Australia who, by reason of their absence, could not satisfy the qualification requirements of s.96 or -- being entitled to endowment -- would lose their endowment under s.103. The section appears to be primarily designed to cover the case of government personnel stationed outside Australia but it is not so limited. Relevantly, and curiously discriminating against female personnel; s.104 read:
"(1) Where --
(a) a man is employed by the Commonwealth of a State or the Northern Territory, or by an authority of the Commonwealth or a State or the Northern Territory, and is temporarily stationed outside Australia;
(b) a woman is not in Australia and is the wife of such a man;
(c) a man is not in Australia and is a member of the Defence Force;
(d) a woman is not in Australia and is the wife of a man who is a member of the Defence Force; or
(e) a man or woman whose usual place of residence is in Australia is temporarily absent from Australia.
and that man or woman has the custody, care and control of one or more children, this Part shall have effect as if that man or woman and each of those children were in Australia.
(2) An endowment shall not be granted or paid by virtue of the last preceding sub-section unless the person to whom the endowment is granted or paid or, if that person is a woman, that woman or her husband --
(a) is a resident of Australia as defined by the Income Tax Assessment Act 1936-1973; and
(b) is not a resident of a place outside Australia specified in section 7A of that Act.
(3) ...
(4) ...
(5) ..."
The definition in the Income Tax Assesment Act 1936 of the term "resident of Australia", as it stood during the relevant period, was as follows:
"(a) a person, other than a company, who resides in Australia and includes a person --
(i) whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia;
(ii) who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that his usual place of abode is outside Australia and that he does not intend to take up residence in Australia; or
(iii) who is an eligible employee for the purposes of the Superannuation Act 1976 or is the spouse or a child under 16 years of age of such a person; and
(b) a company which is incorporated in Australia, or which, not being incorporated in Australia, carries on business in Australia, and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia;".
The places specified in s.7A of the Income Tax Assessment Act are Norfolk Island and the Territories of Cocos (Keeling) Islands and of Christmas Island. As, in the present context, no question of the view of the Commissioner of Taxation arises, the effect of s.104(2) in this case would be that the entitlement to child endowment would be saved by s.104 only if, first, the case fell within one of the paragraphs of sub-s.(1) -- in practical terms para.(e) -- and secondly, the endowee remained resident or domiciled in Australia whilst temporarily absent from Australia.
It is common ground between the parties that, at all relevant times, Mrs Hafza had the care, control and custody of the children and was the endowee, within the meaning of s.103. Her case is that her absence from Australia was temporary only and that she did not cease to have her usual place of residence in Australia. In consequence, she says, s.103(1)(d) did not operate so as to bring to an end her entitlement to receive child endowment. The appellant argues that s.103(1)(e) also had no application; that, although the children ceased to be in Australia during the relevant period, their absence from Australia was merely temporary. Having regard to the age of the children and the fact that it was at all times the intention of the parents that their children should be with them, it is said that the intentions of the parents governed the question whether the absence of the children was merely a temporary one. The respondent disputes the contentions that paras.(d) and (e) of s.103(1) lacked application to the case but he agrees with the appellant that, in practical terms, the appellant's entitlement to endowment depends upon the question whether s.103(1)(d) applied to her case.
I think that this analysis is correct and that, in this particular case, s.104 is immaterial. Section 104 acted as a qualification upon the operation of s.103, saving an entitlement to endowment -- if otherwise lost under s.103 -- in those cases to which it applied. But, in order to use s.104 in the circumstances of this case, the appellant would have to show more than that, as the Tribunal in fact found, she remained domiciled in Australia while she was visiting Lebanon. That finding of domicile would satisfy the requirements of s.104(2) but, in order to satisfy s.104(1), she would need to establish that her usual place of residence remained in Australia and that she was absent only temporarily; which, of course, are the precise matters upon which depended the application of s.103(1)(d). If she can succeed on those issues she does not need s.104. Under those circumstances s.103 would not operate to cause the cessation of the endowment; so that its saving effect in cases where it does operate is irrelevant. If she cannot succeed on these issues under s.103(1)(d) she must fail to bring her case within s.104(1)(e); so that the latter section will not operate to save the cessation of endowment under s.103.
The questions whether the appellant remained, during her absence, usually resident in Australia and whether her absence was merely temporary are questions of fact, the final resolution of which is committed to the Tribunal; subject only to the jurisdiction of the Court to set aside a finding which reflects an error of law: see Administrative Appeals Tribunal Act 1975 ss.44, 45. Recognizing this, counsel for the appellant relied upon two matters which, he claims, represented errors of law requiring the Court to set aside the Tribunal's descision: that the Tribunal erred in its understanding of the concepts of "usual place of residence" and "temporary" absence and that the evidence before the Tribunal was not capable of supporting the conclusion that Mrs Hafza was absent from Australia otherwise than temporarily.
It appears from para.16 of the Tribunal's decision that it regarded "usual place of residence in Australia" and temporary absence from Australia as being opposite sides of the same coin. Relevantly para.16 read:
"16. It not being denied that when the applicant left Australia for the Lebanon her 'usual place of residence' was Australia, the decision ... must turn upon one question only in two connected parts -- was she, when in the Lebanon, 'temporarily absent from Australia' so that her 'usual place of residence' was not terminated definitively ... To find an answer to this question close examination of the evidence is necessary."
Counsel for the appellant did not suggest that para.16 indicated an erroneous approach by the Tribunal; indeed he specifically conceded its correctness. However, to quote his written summary of submissions, he contended that "when it has been found that a person is a resident of Australia as defined by the Income Tax Assessment Act it cannot be said that that person ceased to have his usual place of residence in Australia". The point was not developed. No reasoning or authority was advanced in support of the proposition. It is clearly erroneous. A finding of domicile was not enough. The definition of "resident" and "resident of Australia" in s.6 of the Income Tax Assessment Act was -- as that section stated -- a definition for the purposes of that Act. Except in a case where it had been incorporated by express words or by necessary implication, it did not operate to control the meaning of the word "resident", or a cognate thereof, in a different statute: see Yager v. The Queen (1977) 139 CLR 28 at p 43. It is true that s.104(2) incorporated by reference the definition in the Income Tax Assessment Act of the term "resident of Australia" but it did so only for the purpose of adding to the circumstances itemised in s.104(1) one of the two additional elements which were contained in s.104(2). The additional element was that the relevant person be a "resident of Australia" within the terms of that definition; that is to say, in practical terms, that he or she be domiciled in Australia. The reference in s.104(2) had no application to s.103 at all. The terms "usual place of residence" and "temporary" (absence), being left undefined in the Social Services Act, must be given their ordinary English meanings without reference to any artificial meaning specified for the purposes of other legislation.
Counsel for the appellant further submitted that, in determining the question of residence "the correct criterion is to look at the intention of the absentee at the relevant time", by which he meant from time to time in the event of any change in that intention during the relevant period. I think that this raises two matters fundamental to the appeal: the proper interpretation, in the context of s.103(1)(d), of the phrase "usual place of residence in Australia" and of the word "temporary", as applied to "absence from Australia".
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 C.L.R. 241 at p.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 co-incide 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 a p 248 and Keil v Keil (1947) VR 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. Inland Revenue Commissioners (1928) AC 217 at p 225 and Judd v. Judd (1957) 75 WN (N.S.W.) 147 at p 149 -- together with an intention to return to that place and an attitude that that place remains "home" -- see Norman v Norman (1969) 16 F.L.R. 231 at p.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.
The question arises whether, in this particular context, the phrase "usual place of residence" should be construed as synonymous with "resident", in the sense to which I have referred. In Re Kehagias and Director-General of Social Security (1981) noted 3 ALN N 151 and followed in Re Houchar and Director-General of Social Security (1984) noted 5 ALN N 449, the Administrative Appeals Tribunal so decided, although recognising that "the proliferation of alternative expressions" in ss.96, 103 and 104 "may strictly lead to a conclusion that that word was not intended to be used in its general law sense". However, a problem with that construction is the inclusion in the paragraph of the words "unless his absence from Australia is temporary only". As I have mentioned, a mere temporary absence from a country would ordinarily not cause a person to cease to be resident in that country; the notion of residence accommodates temporary absences. But, in this case, Parliament has deliberately provided that a temporary absence shall not cause the cessation of the endowment; an unnecessary provision if the reference had been to residence in the general law sense. The qualification in the paragraph suggests to me that it was intended that the words "usual place of residence" would be interpreted differently from the word "resident" in the cases to which I have made reference. Moreover, the reference is to "his usual place" of residence, the suggestion being that there is only one place which answers that description in relation to any particular endowee. So interpreted the paragraph is more restrictive than the general legal concept of residence, which concept encompasses the possibility that a person may be resident simultaneously in more than one place. An intention by Parliament to impose in this Act a more restrictive residential criterion than would arise from the application of the general law concept of residence would be understandable, in policy terms. In each of the fields of matrimonial and taxation law there are valid -- though different -- reasons for an expansive approach by Parliament to the concept of residence. The subject legislation was designed to provide social welfare benefits to the custodians of children, people having the expense of their maintenance and education. The scale of the benefits provided by the Act reflects, no doubt amongst other things, the cost of maintaining and educating children in Australia. It is not difficult to see reasons of administrative convenience for maintaining benefits for people who are absent from the country only for a short period; and such a course might be thought to be only fair to custodians who, usually at least, will continue to bear maintenance costs at Australian levels or, if the children are actively travelling with the custodian, at even higher levels. It might have been thought to be another question whether such benefits should be made available for custodians who are abroad for an indefinite period simply because they continue to maintain some association with Australia and intend to return here one day. The view that the Parliament had in mind such a distinction is, perhaps, supported by the fact that it saw fit by s.104(1)(a) to (d), specifically to save the endowment entitlements of men employed by government or serving in the defence forces and their wives. Those savings would have been unnecessary if the intention had been to pick up, for the purposes of s.103(1)(d), the general legal concept of a person being a resident. Such persons, being merely temporarily stationed outside Australia, would not usually lose their status as residents of Australia for purposes such as matrimonial and taxation law notwithstanding that they would ordinarily establish some place of residence, that is a home, in the country in which they are stationed.
The matter is not free from difficulty but the considerations to which I have referred lead me to the conclusion that "usual place of residence" should be accorded a narrower construction than would be provided by answering the question whether the endowee remained a "resident" of Australia, in the general law sense. I think that the words "usual place of residence" in s.103(1)(d) should be read as prima facie limiting benefits to endowees who, during any particular period, ordinarily eat, sleep and live in a place in Australia. I emphasize that my conclusion is restricted to s.103(1)(d) and that it arises out of the particular terms of that paragraph. I say nothing as to the meaning of the word "residence", or any cognate thereof, in any other context within the Act. The limitation I see in s.103(1)(d) is subject to the qualification relating to "temporary" absence, so that the endowment will be maintained notwithstanding that for a "temporary" period -- whatever that may mean -- the person does not usually eat, sleep and live in a place in Australia. The critical question, then, is what is meant by the word "temporary".
The Shorter Oxford Dictionary defines "temporary" as "Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need". The Macquarie Dictionary definition is to similar effect, with the addition of "not permanent". In one sense any absence from Australia, which in fact comes to an end, is temporary; it turns out to have lasted for a limited -- as distinct from an unlimited -- time and to have been not permanent. In this sense everything in human affairs, including life itself, is "temporary". But it is doubtful whether the word "temporary" was used in this wide sense in s.103(1)(d). As I have pointed out, had it been intended to protect the endowment rights of persons absent abroad for lengthy periods, who ultimately return to Australia and who, in the meantime, maintain some association with Australia, it would have been enough to refer to residence in Australia. Plainly it was intended to be more restrictive than that. I think that the adjective "temporary" was used to denote an absence that was, both in intention and in fact, limited to the fulfillment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of "temporary" absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfillment of a specific, passing purpose. If, for example, a businessman travels overseas for a period of three months to engage in sales discussions, intending always to return to his usual home in Australia and in fact returning at the end of that period, there is no difficulty about describing his absence as "temporary". If that same person moves himself and his family to an overseas location, intending to remain there indefinitely in pursuit of business orders, his absence would not properly be described as "temporary"; and I think that this is so even if, after two months for family or personal reasons, he decides to abandon his overseas home and return to Australia. Under such circumstances the absence from Australia would have turned out to be of limited duration but it would not have been in fulfillment of a passing need.
The intention to return to Australia at the expiration of a particular time -- being, in recognition of the word "passing", relatively short -- will normally be a feature of an absence which, within the meaning of s.103(1)(d), may properly be described as temporary. There may, however, be exceptions. A person may travel overseas to fulfil a particular purpose which is expected to occupy a relatively short time, the exact extent of which is not known in advance and with the intention thereafter of returning to Australia. An example would be to undertake a particular journey or to attend the bed of a sick relative. I see no problem about describing such an absence as a "temporary" absence from Australia because it is a short term absence to fulfil a particular purpose.
I think that it follows from my view as to the meaning of the word "temporary" that the intention of the absentee is of considerable importance; indeed, it will often be decisive. If the businessman on his world sales tour should decide to abandon his plan to return to Australia at the expiration of three months and to remain indefinitely in New York, his absence from Australia will cease to be a temporary absence. It will become an indefinite absence, notwithstanding that it may turn out not to be a permanent absence. 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.
The view that I have expressed is consistent with what was said by the Tribunal in Houchar at p. N 452, in relation to "temporary" absence, a statement that I respectfully adopt as my own:
"... The question whether a person's absence from Australia is temporary must be resolved by the application of objective criteria. Most important among them must be his intentions from time to time, as ascertained objectively from all the evidence available to the decision-maker. Otherwise the occurrence of the event causing the family allowance to cease to be payable would often not be ascertainable until long after it had taken place. For a person's absence from Australia to be 'temporary only' for the purposes of ss 103 and 104 it must be intended not to last indefinitely. The intention may change during the period of absence; Re Kehagias was such a case.
Probably, if a person intends that the period of his absence should be related to a certain event (eg the completion of a certain task or the exhaustion of his funds), he should be taken to intend not to be absent indefinitely. There is, however, also another element in the concept of temporariness; that is transience. For an absence to be temporary, not only must it be intended not to last indefinitely but the time for which it is intended to last must not be of great length. That involves considerations of questions of degree which must be decided by reference to all the circumstances of the particular case. Once a person's absence has come to an end by his return to Australia, it obviously has not lasted indefinitely. It may not have lasted as long as another person's absence which has been accepted as having been temporary. However, the question whether it was 'temporary only' has to be decided not by viewing it in retrospect but by reference to the person's intention during his absence, or rather to his intention at different stages of the absence."
The evidence in this case -- which the Tribunal accepted -- was that, at the time of their departure from Australia, the appellant and her husband intended to be absent for three months or, according to one statement in the appellant's evidence, at most six months. Their purpose was the limited one of visiting their families in the Lebanon. Such an absence would clearly be a "temporary" absence from Australia. But the intention to return at the expiration of three (or six) months was abandoned. The critical finding of the Tribunal upon intention was expressed in para.42 of its decision in these terms:
"I consider that upon leaving Australia, Mrs. Hafza did have a firm intention to return to Australia as planned but at some point of time thereafter, this intention became indefinite as to when it would be translated into action, that point of time being when Mr. Hafza took up paid employment in the Lebanon. At that moment, the applicant relinquished Australia as her 'usual place of residence' and adopted the Lebanon in its stead. Once that employment ended and as the civil war continued to rage within Lebanon and worsen with no end in sight, the applicant was gradually brought to the point of resolving to return to Australia."
The date at which Mr Hafza took up paid employment was not established by the evidence, but it was apparently sometime in 1979. The period of the initially intended absence would have expired at the end of July 1978 or, if the period were accepted as being six months, at the end of October 1978. There was no evidence of any decision to extend the stay for any definite period. It follows that, between whichever of July and October 1978 was relevant and the commencement of Mr Hafza's employment, there must, upon the findings of the Tribunal, have been an intention to return at an indefinite but relatively early date. It may be questionable whether the period of continued absence, which was governed by such an intention, is properly to be characterized as a "temporary" absence from Australia but -- no cross-appeal having been brought -- it is unnecessary to pursue that question. The period which is in issue in the appeal is the period of approximately three years between the commencement of employment and Mrs Hafza's return to Australia. Mr and Mrs Hafza stated that, during that period, it had been their intention to return to Australia as soon as possible but that they had been prevented from doing so by three factors: the pregnancy of Mrs Hafza -- a child, who died 13 days after birth, was born to her in July 1979, the war in Lebanon which made movement difficult and lack of money for the return journey. The Tribunal accepted that, if these reasons had in truth prevented an earlier return, the extension period would be a "temporary" absence. I think that this is correct because, under those circumstances, the absence would remain governed by the intention to fulfil a particular purpose and then return to Australia, the prolongation of the absence being imposed upon the appellant and her husband against their will. There may be a point at which an extension becomes so great that, even under those circumstances, the absence can no longer be described as "temporary" but that is probably not this case.
The Tribunal considered in some detail the evidence relating to each of the three factors mentioned by the appellant but concluded that neither individually nor cumulatively did they adequately explain the absence of the appellant during the relevant three years. In short, the Tribunal was not satisfied that, during that period, the appellant was possessed of an intention to return to Australia at the earliest opportunity.
I will consider in a moment the submission that the Tribunal erred in law in failing to be so satisfied but, subject to that matter, it appears to me impossible to conclude that the Tribunal fell into any error of law detrimental to the interests of the appellant in its approach to the issue which it had to determine. My only reservation is in respect of the characterization as a "temporary" absence of the period between the expiration of the initial three (or six) months and the date of the commencement of Mr Hafza's employment. However, if Dr Renouf fell into error in relation to that period, it was an error which advantaged the appellant. The first submission made on behalf of the appellant, that the Tribunal erred to her disadvantage in its understanding of the concepts of "usual place of residence" and "temporary" absence, must be rejected.
The second submission of the appellant is that the findings of fact which it made were not open to the Tribunal. In support of that submission counsel analysed in considerable detail the evidence given by and on behalf of the appellant. He pointed to aspects of the case which, in his contention, should have led the Tribunal to accept that the various circumstances relied upon by his client conspired to prevent any earlier return to Australia. I do not propose to deal in detail with those matters. Each of the matters was considered by the Tribunal. The Tribunal's decision sets out a careful, and fairly detailed, summary of the evidence bearing upon each matter. No attack has been made upon the accuracy of any of those summaries. The decision goes on to analyse the effect of the summarized material, coming to the conclusion that the stated reasons are not made out. I see no error of law in this process. The major complaint made by counsel for the appellant was that the Tribunal should have placed more reliance upon the evidence of his client and her husband of their constant desire to return to Australia as soon as possible. But the acceptability and the weight of any particular evidence was entirely a matter for Dr Renouf. Although he did not, in terms, say so, the position clearly is that, in the light of other evidence, he was not prepared to accept that evidence. He was not, in law, bound to do so.
Although there were factors, listed by the Tribunal in its decision, pointing to an intention to return one day to Australia -- notably, as it seems to me, the appellant's assurances to her mother that she would return and the registration of Hiba as an Australian citizen shortly after his birth -- those factors do not themselves dictate the conclusion that there was an intention to return at an early date. And there was ample material pointing the other way, also listed by the Tribunal. This evidence, which was not in dispute, included the facts that Mr and Mrs Hafza had no assets in Australia, other than one dollar in a bank account, that they did not hold return air tickets, that they resided with Mr Hafza's family in Tripoli, that the children attended the local school and that Mr Hafza engaged in paid employment involving his travelling to a number of other countries. The weight to be given to these matters, taken together or individually, was for the Tribunal to determine but they are capable of supporting the Tribunal's conclusion that the alleged reasons for non-return were not established to its satisfaction and, therefore, of leading to a finding that the appellant's absence, after her husband commenced employment, was not a temporary absence.
The appeal should be dismissed, with costs.
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