HAMDI KANYILMAZ and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 224
[2013] AATA 224
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5036
Re
HAMDI KANYILMAZ
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 15 April 2013 Place Brisbane The decision under review is affirmed.
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Dr P McDermott, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Unlimited portability of pension – Australian residency regained after absence – Absent within two years after regaining residency status – Age pension not payable while absent – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 7, 1214, 1217, 1220
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
I have to decide whether Mr Kanyilmaz, the applicant, can be paid age pension when he was absent from Australia from 9 February 2012 until 26 November 2012. I give my reasons why I consider that the social security law in regards to overseas portability of social security benefits prevents the applicant from being paid age pension for that period of time when he was absent from Australia.
BACKGROUND
In 1970 the applicant migrated to Australia from Turkey and later became an Australian citizen. Since 2009 he has made a number of journeys to Turkey and has spent a considerable amount of time in Turkey. He departed Australia on 2 April 2009 and returned to Australia on 12 December 2009. He again departed Australia on 11 April 2010 and returned to Australia on 29 January 2011. He departed Australia again on 22 February 2011 and returned to Australia on 11 September 2011. On 9 February 2012 he departed from Australia for Turkey and returned to Australia on 25 November 2012.[1]
[1] Exhibit E, Annexure A, p. 1.
PRIOR DECISIONS
On 10 May 2012, Centrelink made a decision to cancel the payment of age pension to the applicant with effect from 9 February 2012 on the ground that he had left Australia within two years of his latest return. On 18 July 2012, an authorised review officer (“ARO”) affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 5 October 2012. On 8 November 2012, the applicant lodged an application for review of the decision by this Tribunal.
RELEVANT LEGISLATION
Where a person is in receipt of age pension, s 1217 of the Social Security Act 1991 (Cth) (“the Act”) provides that the person has portability of their pension for an “unlimited period” during absences from Australia. While s 1214(1) of the Act confirms that a person’s right of continued payment of their benefit is not affected by an absence if they have portability for an unlimited period, importantly, s 1214(2) makes this unlimited portability and continued payment subject to the provisions of s 1220 of the Act.
In relevant respects, s 1220 of the Act provides:
(1) If:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident; and
(c) the person again becomes an Australian resident; and
(d) within the period of 2 years after the person again becomes an Australian resident, the person is granted …
(i) an age pension; … and
(e) after the pension … is granted … but before the end of that period of 2 years, the person leaves Australia; …
a pension … based on that claim is not payable to the person during any period during which the person is outside Australia.
Section 7 of the Act contains a definition of the term “Australian resident”. Relevantly, it provides:
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
...
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
…
...
(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.
CONSIDERATION
The reviewable decision was made on 10 May 2012 when Centrelink decided that the applicant was not entitled to the payment of age pension with effect from 9 February 2012. This decision was based upon the operation of s 1220 of the Act. There are previous decisions by Centrelink, an ARO and the SSAT in regard to claims for age pension by the applicant on 24 February 2010 and 7 February 2011 in which they found he was not an Australian resident at those times. These decisions have not been subject to further merits review by the Administrative Appeals Tribunal, but are, in my view, warranted by the evidence before the decision makers.
On 9 February 2012, the SSAT made a decision that the applicant was an Australian resident on 22 September 2011. The decision of the SSAT had the consequence that as from 22 September 2011 the applicant could be regarded to have come within the terms of s 1220(1)(c) of the Act by again becoming an Australian resident, and on that basis Centrelink decided, on 10 May 2012 to grant him age pension, with payment backdated to 22 September 2011. However, the applicant departed Australia on 9 February 2012 and this action brought into operation s 1220 of the Act because he left Australia within the period of two years of when he again became an Australian resident (see s 1220(1)(e) of the Act). In such circumstances, s 1220 of the Act provides that “a pension … is not payable to the person during any period during which the person is outside Australia”. Thus, on the same day that age pension was granted to him, Centrelink cancelled his age pension as he left Australia within two years of again becoming resident. The reason why the applicant was “outside Australia” is not a relevant consideration.
The applicant contends that the decision of the SSAT dated 11 May 2011 was incorrect in deciding that he was not an Australian resident on 24 February 2010 and 7 February 2011. He further contends that he has always been an Australian resident.
This Tribunal declined to grant the applicant an extension of time to seek review of the SSAT decision of 11 May 2012. Even though the applicant cannot seek further merits review of that decision, in fairness to the applicant, I have to consider whether the applicant ceased to be an Australian resident within the period of two years before he left Australia on 9 February 2012. If it is the case that he was not an Australian resident at any time during that two year period then, because of the operation of s 1220(1)(e) of the Act, the applicant will have failed to remain in Australia for a period of two years without leaving and he will not be eligible for payment of his age pension during his absence, regardless of his regaining his residency status from 22 September 2011.
I consider that the applicant was not an Australian resident within that period of time and that he was certainly not an Australian resident as at 7 February 2011 when, in his claim for age pension, he listed a Turkish address as his “permanent address”.[2] It is not necessary for the determination of this application to make a finding of when the applicant had first ceased to be an Australian resident, only whether he ceased being an Australian resident within that two year period prior to his departure on 9 February 2012. I have decided that this is best addressed by ascertaining whether he was an Australian resident at the time of his application for age pension on 7 February 2011.
[2] Exhibit A, T-document 7, pp. 65-76, esp. p. 67.
In considering whether the applicant was an “Australian resident” as at 7 February 2011, I am required to have regard to the considerations that are specified in s 7(3) of the Act. I will outline my conclusions in respect of each of those considerations.
(a) The nature of accommodation used by the person in Australia
The applicant did not own any real property in Australia; in 2009 he had sold his Australian home. On 7 February 2011, the applicant, in his claim, gave a Turkish address as his permanent address and an Australian address as his postal address.[3] That Australian address was the address of a unit which was owned by his friends. My consideration of this matter leads towards a finding that the applicant did not reside in Australia at this time.
[3] Exhibit A, T-document 7, pp. 65-76, esp. p. 67.
(b) The nature and extent of the family relationships the person has in Australia
The applicant has three children in Australia as well as eight grandchildren. My consideration of the material before me that relates to his Australian family relationships does not enable me to make a finding as to whether he resided in Australia.
(c) The nature and extent of the person’s employment, business or financial ties with Australia
The applicant had previously been in business and was retired. He had no business or financial ties with Australia apart from having an Australian bank account. My consideration of these matters inclines me to make a finding that he did not reside in Australia.
(d) The nature and extent of the person’s assets located in Australia
The applicant had little assets in Australia apart from a small amount of money in a bank account. In about 2001, the applicant, who had been in business as a builder, was declared bankrupt. His major assets would have been applied in the payment of creditors. After he was discharged from bankruptcy he acquired a house property which he sold in March 2009 for about $512,000. The house was not mortgaged. In March 2009, the applicant had assets in Australia of $500,000; but by March 2011 the assets of the applicant were worth about $100,000. The nominee who spoke to the ARO on 22 March 2011 was unable to explain how these funds had been applied and asserted that none of the immediate family received any gifts. At the hearing the applicant stated that after he sold his house he repaid a loan to his brother. There is no documentary evidence of how these considerable funds have been expended. My consideration of these matters inclines me to make a finding that the applicant did not reside in Australia.
(e) The frequency and duration of the person’s travel outside Australia
Immigration records verify that the applicant was away in Turkey for extended periods of time.[4] From 2 April 2009 until 29 January 2011, the applicant lived in Turkey for about 17 out of 22 months. The applicant made two trips to Turkey and on his last visit he stayed there for more than nine months. In giving evidence, the applicant indicated that the reason why he returned to Australia was to renew his claims for age pension. These matters strongly indicate that the applicant did not reside in Australia.
(f) Any other matter relevant to determining whether the person intends to remain permanently in Australia
[4] Exhibit E, annexure A, p. 1.
It is only in more recent times that the applicant advised Centrelink that his wife had to be in Turkey for health reasons and that she could not travel. There was some suggestion in the Centrelink documents that his wife had a terminal illness; but on 11 May 2011, the SSAT was informed that this is not the case. There is a note from a general practitioner that was written on 8 February 2011 to excuse the wife of the applicant from attendance at one SSAT hearing because she was unable to travel but no reasons for his conclusion are given.[5] Travel records indicate that she has flown in 2009, 2010 and 2012.[6] There is no medical evidence that she has had any treatment in Turkey. On 11 May 2011, the SSAT was informed that the wife of the applicant is not on any medication or physical regime to address her illness which has developed after she returned to Turkey.
[5] Exhibit A, T-document 12, p. 92.
[6] Exhibit F.
On 3 November 2011, a specialist reported that the wife of the applicant has been affected by the bankruptcy of the applicant and the loss of their home as well as other events. However, the specialist, in his report, has quite properly acknowledged that his patient’s notes do not contain any documentation concerning the benefits of returning to Turkey.[7] The nominee, in his extended discussions with the ARO on 22 March 2011, did not then state that the wife of the applicant had to live in Turkey for health reasons. The nominee had informed the ARO that she was in Turkey to catch up with members of her extended family. There was then no mention of the wife of the applicant being in Turkey for health reasons.
[7] Exhibit A, T-document 27, pp. 166-167.
In September 2009, the applicant purchased land in Turkey. Before this Tribunal, the applicant stated that he grew crops and stayed on the farm although it was too cold in winter to stay there. He also expended a considerable sum in the installation of what, at the hearing, he referred to as “irrigation” on the property; he later clarified that he meant to refer to the connection of the land with the local water supply. I do not accept that the nominee was correct on 22 March 2011 when he informed the ARO that land was worth $20. The applicant, in his Form Mod R,[8] discloses that the land is worth some 80,000 Turkish dollars and at the hearing he stated that the value of the land would increase if Turkey joined the European Community. I am satisfied that the applicant has a substantial asset in the Turkish land; the fact that he has expended considerable funds in improving the property is a strong indicator that he intends to use that property for some time.
[8] Exhibit A, T-document 8, pp. 77-84, esp. p. 80.
There is evidence before me that the applicant had a Turkish residence. On 7 February 2011, the applicant made a claim for age pension in which he declared that a Turkish address was his “permanent address”:[9] this address is different from the address of the Turkish land which he has bought. The applicant, in his claim form, also stated he commenced renting premises from 4 April 2010.
[9] Exhibit A, T-document 7, pp. 65-76, esp. p. 67.
An ARO has recorded that at this time most of the funds of the applicant were in a Turkish bank account.
These matters strongly indicate that the applicant then was not a resident in Australia but in Turkey.
CONCLUSION
Having regard to the considerations that are specified in s 7(3) of the Act, I find that the applicant was not an Australian resident as at 7 February 2011. I regard the fact that on that date he made a declaration that a Turkish address was his “permanent address” crucial evidence that he was not an Australian resident. The location of his assets and the frequency and duration of the person’s travel outside Australia is also evidence that he was not an Australian resident.
The Secretary does not have any discretion to prevent the operation of s 1220 of the Act in a case where the conditions for the operation of that section are satisfied.
DECISION
I affirm the decision under review.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. .......................[Sgd].................................................
Associate
Dated 15 April 2013
Date of hearing 27 March 2013 Applicant In person Advocate for the Respondent Rick McQuinlan, departmental advocate
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