Haricharan and Secretary, Department of Family and Community Services
[2005] AATA 98
•21 January 2005
|
DECISION AND REASONS FOR DECISION [2005] AATA 98
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/936
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | YASHICA HARICHARAN | ||
Applicant
| And |
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
DECISION
| Tribunal | Ms N Isenberg, Member |
Date 21 January 2005
Place Sydney
| Decision | The decision under review is affirmed. |
………………………………….
Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – Australian Resident Certificate refused by Centrelink –whether Applicant is a protected special category visa holder – definition of Australian resident – whether the Applicant ‘commenced to reside’ in Australia during the relevant period – consideration of nature of Applicant’s living arrangements in Australia during relevant period – Applicant did not commence residing in Australia during nine day stay in April 2001- Applicant does not qualify for an Australian Resident Certificate – decision affirmed.
LEGISLATION
Social Security Act 1991 section 7
A New Tax System (Family Assistance) (Act) 1999) section 21
CASE LAW
Wybrow and Secretary, Department of Social Security (AAT 8321, 19th October 1992)
Hafza v Director-General of Social Security 60 ALR 674
Taslim and Secretary; Department of Family and Community Services [2004] AATA 28
Taslim v Secretary, Department of Family and Community Services [2004] FCA 789
Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985)
Re Mengi and Director-General of Social Security (1984) 6 ALN N320
Secretary, Department of Family and Community Services and Iqbal [2004] AATA 804
Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) CLR 24
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
REASONS FOR DECISION
| 21 January 2005 | Ms N Isenberg, Member |
DECISION UNDER REVIEW
This is a review of the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 22 June 2004, which affirmed the decision of an authorised review officer (“ARO”) dated 16 February 2004 to refuse the issue of an Australian Resident Certificate to Mrs Yashica Haricharan.
BACKGROUND
Mrs Haricharan, a New Zealand citizen, and her husband travelled to Australia on 12 April 2001 and remained here until 21 April 2001, when they returned to New Zealand (p.66, T31).
Mr and Mrs Haricharan and their children arrived in Australia again on 13 January 2002.
On 17 September 2003 Mrs Haricharan made an application to Centrelink for a determination under section 7(2E) of the Social Security Act 1991 (“the Act”) to the effect that she should be issued with an Australian Resident Certificate on the basis that she was a protected special category visa holder. That application was rejected on 17 October 2003. The matter was reconsidered by the original decision-maker on 5 January 2004 who determined that the original decision was correct.
Mrs Haricharan requested a review by an ARO who affirmed the decision on 16 February 2004.
Mrs Haricharan lodged an appeal with the SSAT on 10 May 2004 which was also refused.
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether Mrs Haricharan is a protected special category visa holder (“protected SCV holder”), as defined in the Act, and hence qualifies for an Australian Resident Certificate.
APPEARANCES
At the request of Mrs Haricharan, the parties agreed that the matter should be dealt with by the Tribunal on the basis of the available material without their attendance before the Tribunal.
LEGISLATION
The relevant legislation in this matter is section 7 of the Social Security Act 1991.
EVIDENCE: Documents
I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. The parties also provided detailed submissions which have been attached to the Tribunal’s file.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
At the core of the matter to be determined is the fact that some social security benefits are only available to Australian residents.
For the purposes of the Act the term "Australian resident" is defined in section 7 as follows:
“7(1) In this Act, unless the contrary intention appears:
"Australian resident" has the meaning given by subsection (2);
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) a special category visa holder who is a protected SCV holder.”
The Respondent’s submissions explained that from 26 February 2001 the residence qualifications for most social security benefits for New Zealand citizens changed so that only those SCV holders who were protected SCV holders under the Act can qualify for a range of benefits or entitlements.
To be a protected SCV holder a person must meet the criteria set out in section 7 of the Act.
The relevant provisions concerning who is considered to be a protected SCV holder are contained in subsections 7(2A) to (2D) of the Act, but only section 7(2C) is relevant to Mrs Haricharan:
“7(2C)A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder...:
(a)the time is during the period of 3 years beginning on 26 February 2001; or
(b)the time is after the end of that period, and either:
(i)a determination under subsection (2E) is in force in respect of the person; or
(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.”
Under subsection (2C), a determination is required to be made under subsections (2E) in the following relevant circumstances:
“7(2E) A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:
…
(b)the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.
…
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.”
Therefore Mrs Haricharan could be considered to be a protected SCV holder only if she was found to have “commenced residing” in Australia within the three month period from 26 February 2001 to 25 May 2001 in accordance with section 7(2E)(b) of the Act.
The Respondent contended that the relevant issue is whether Mrs Haricharan could be said to have “resided” or “commenced to reside” in Australia between 12 and 21 April 2001 whereas it was contended on behalf of Mrs Haricharan that the use of the word "commenced" envisaged a commencement of residency in Australia sufficed rather than the establishment of residency.
I was referred to paragraph 28 of the Tribunal’s decision in Wybrow and Secretary, Department of Social Security (AAT 8321, 19th October 1992) where DP McMahon at paragraph 21 cited with approval Hafza v Director-General of Social Security 60 ALR 674:
“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.”
The parties had differing views about Taslim and Secretary; Department of Family and Community Services [2004] AATA 28. In that case the Tribunal stated:
“9 In Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992), Deputy President McMahon held that whilst the Act requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia, they are not intended to be exhaustive and are made in the relation to the ordinary concept of residence.
10.The term residence encompasses temporal and emotional factors. Thus to establish residence there must be both a physical presence in the particular place as well as the intention to treat that place as 'home'. In Levene v Inland Revenue Commissioners (1928) AC 217 Viscount Cave LC defined `reside' as:
" the word `reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning to dwell permanently or for a considerable time".”
On appeal, Beaumont J of the Federal Court agreed with the Tribunal’s comments as a correct statement of the law
In considering whether a person resides in Australia, the provisions of subsection 7(3) must be considered.
Each of the criteria listed in subsection 7(3) is relevant to the question of whether Mrs Haricharan was residing in Australia during the relevant period, and I considered these in turn.
Nature of the accommodation
The Respondent’s submissions refer to Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985) where the Tribunal found at paragraphs 4-5:
“…for a person to be residing in a country, he must have a settled home in that country. It need not be his only home, but it must have some degree of permanence.”
Mrs Haricharan purchased no property nor entered into any lease, nor established a household in Australia at that time. Her evidence was that they stayed with friends for the nine nights spent in Australia. A relocation agent was engaged (T9) but the letter of 6 February 2002 does not lead me to the view that this occurred in the relevant period or if it did, her instructions did not require action until some months later.
By comparison, at that time, the family owned their home and maintained a household in New Zealand. Mrs Haricharan claimed that she had to return to New Zealand because “the sale of her residential home was not completed”. It was unfortunate that there was no information before me as to what attempts, if any, there had been made to sell the home at that point of time.
Nature of family relationships in Australia
The evidence before me about Mrs Haricharan’s family relationships in Australia in April 2001 is also scant. Mr Haricharan has a brother and cousin in Australia but there was no evidence as to whether the family is close-knit. Mrs Haricharan’s sister did not arrive from New Zealand until September 2003 (T2, p.6). It is unclear if Mrs Haricharan had, at the relevant time, family in New Zealand or elsewhere.
In Re Mengi and Director-General of Social Security (1984) 6 ALN N320, the Tribunal said:
“In considering whether residence is established, a court considers a man’s or woman’s whole environment, especially in relation to their spouse or family, and not merely a person’s physical situation”.
Nature of employment, business or financial ties with Australia
In April 2001 Mrs Haricharan opened a term deposit account in Australia in the sum of approximately $40,000. The term was for a period of three months which was renewable.
In February 2001 Mr Haricharan was admitted as a solicitor in New South Wales. His employment, however, only dates from May 2002, which would tend to suggest that job was arranged after the family’s return to Australia in January 2002. It is not disputed that Mrs Haricharan registered as a jobseeker in April 2001 and contacted the NSW Department of Education. There is no evidence that Mrs Haricharan ever contacted or registered with a job network member in April 2001. At the same time, she had employment in New Zealand and both she and Mr Haricharan appear to have continued to work in New Zealand until migrating to Australia in 2002.
Nature and extent of assets in Australia
Mrs Haricharan’s sole assets in Australia in April 2001 consisted of a term deposit. At the same time the family owned a home in New Zealand and had an established household in that country. It is unknown what other assets they may have had in New Zealand.
The frequency and duration of travel outside Australia
After her nine day visit in April 2001, Mrs Haricharan’s next entry into Australia was not until 13 January 2002.
Other matters relevant to determining whether the person intends to remain permanently in Australia.
It was the Respondent’s contention that the Haricharans may have investigated moving to Australia in April 2001. They had not sought accommodation, brought none of their household effects and did not vacate their home in New Zealand. They had no immediate job prospects and only stayed in Australia for nine nights. As such, the transactions relied upon by Mrs Haricharan as demonstrating their “residence” appear to be contrived to demonstrate current residence, rather than indicating actually residing in a place.
On 26 February 2001 changes were made affecting the right of New Zealand citizens to reside and work indefinitely in Australia. An information booklet explaining the changes was published by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA.) The booklet, which was not in the papers before me, was said to explain, inter alia, that an exception would be made for certain New Zealanders. Relevantly, the policy as contained in the booklet, was reported as stating:
"Exceptions
New Zealand citizens who;... "made an irreversible commitment to move to Australia and arrived in Australia by 26 May 2001, and by 26 May 2004 apply for and assessed by Centrelink as residing in Australia. "
.. .Irreversible Commitment
This means you have decided to move permanently to Australia. To decide this Centrelink will asses whether you are residing in Australia. "
Mrs Haricharan sought to argue that residence should be determined in light of whether she had made an “irreversible commitment to move to Australia” based on a DIMIA booklet.
In its submissions the Respondent referred me to Secretary, Department of Family and Community Services and Iqbal [2004] AATA 804 which concerned a New Zealand citizen who arrived in Australia in March 2000 with a view to settling here. Mr Iqbal had to depart and did not return until after 26 May 2001. His case was that his absence from Australia was a temporary one. The Tribunal, however, found against him, stating:
“ 21.Whilst I appreciate that the Respondent’s intention to return to Australia in January 2001, was thwarted by his accident in Pakistan in October 2000, I do not consider that, when he left Australia in June 2000 he could be said to be “resident in Australia”. The matters outlined above simply do not indicate that he was “resident in Australia”.
The parties made submissions about the relevance of the DIMIA booklet having regard to Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60, Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) CLR 24 and Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487.
It is not necessary for me to make any findings in that regard because I am of the view that Mrs Haricharan had not, in any event, made an ‘irreversible commitment’ to move to Australia. She and her husband had not yet sold their home, resigned from their jobs or taken their children out of school. If those steps had been taken then any decision not to move to Australia could only have been made with difficulty.
Taking into account the available evidence, I have come to the view that at the time of application Mrs Haricharan had not commenced to reside in Australia. Australia was not her ‘home’ (per Hafza), nor did she have the necessary temporal and emotional attachment to Australia (per Taslim).
It should be noted that the requirement for a person to be a protected SCV holder does not apply to claimants for Family Tax Benefit (FTB). FTB continues to be payable to SCV holders residing in Australia (see s.21(1)(b)(ia) of the A New Tax System (Family Assistance) (Act) 1999). This enabled Mrs Haricharan to claim and be granted FTB from January 2002. Paragraph 4.4 of the Applicant’s Statement of Facts and Contentions notes that Mrs Haricharan was told by Centrelink that she was a resident for Centrelink purposes. This statement, in the context of Mrs Haricharan being a recipient of FTB, and not having made any claims for social security entitlements, was therefore correct. Mrs Haricharan’s residence status under the Act is another matter, and in that context the advice would have been incorrect. However, in either case such a statement is not relevant to the Tribunal’s consideration of the issue of whether, in fact, Mrs Haricharan had established a “residence” in Australia in 2001.
DECISION
The decision under review to refuse the issue of an Australian Resident Certificate to Mrs Haricharan is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms. N Isenberg, Member
Signed: A. Krilis
Associate
Date/s of Hearing 5 December 2004
Date of Decision 21 January 2005
Solicitor for the Applicant Mr Raj Haricharan
Advocate for the Respondent Mr James Larcombe
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