Hariz and Secretary, Department of Social Services (Social services second review)
[2021] AATA 614
•24 March 2021
Hariz and Secretary, Department of Social Services (Social services second review) [2021] AATA 614 (24 March 2021)
Division:GENERAL DIVISION
File Number(s): 2018/6455
Re:Ibtehaj Hariz
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 March 2021
Place:Sydney
The Tribunal decides that the decision under review is set aside and the matter remitted to the Respondent with a direction that the Applicant was, at all relevant times, an Australian resident.
...........................[sgd]............................................
Senior Member, C Puplick AM
CATCHWORDS
SOCIAL SECURITY – portability of age pension – suspension of age pension while applicant outside Australia – status of policy in decision-making – whether the Applicant was a returning resident under s 7(3) of the Social Security Act 1991 (Cth) – nature of the accommodation used by the Applicant in Australia – nature and extent of the family relationships the Applicant has in Australia – nature and extent of the Applicant’s employment, business or financial ties in Australia – nature and extent of the Applicant’s assets located in Australia – frequency and duration of the Applicant’s travel outside Australia – other considerations – decision under review set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth)
Migration Act 1958 (Cth)
CASES
Wybrow v Secretary, Department of Social Security [1992] AATA 315
Clifopoulos v Secretary, Department of Social Security (1994) 36 ALD 745
Gnisios and Secretary, Department of Social Security [1996] AATA 66
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634
Re ER Aston and T Aston and Secretary to the Department of Primary Industry [1985] AATA306 (6 November 1985)
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Gbojueh v Minister for Immigration and Border Protection[2014] FCA 883
Reginal Reardon and Chief Executive, Centrelink [2016/B090395; 8 March 2016]
Hossam Hassan and Chief Executive, Centrelink [2017/S107787; 20 June 2017]
Allen Ong and Chief Executive, Centrelink [2017/S109884; 28 August 2017]
Robert and Diane Mason and Chief Executive, Centrelink [2018/B127378 and 2018/B127380; 17 January 2019]
Richard Chandra and Chief Executive, Centrelink [2020/B152645; 18 September 2020]
Hafza v Director-General of Social Security [1985] FCA 164
Taslim v Secretary, Department of Family and Community Services [2004] FCA 789
Secretary, Department of Family and Community Services and Indigenous Affairs v Baccon [2006] FCA 773
Pobrica and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 238
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931
Moraru and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 146
MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 924
Boxall and Secretary, Department of Social Services (Social services second review) [2019] AATA 764 (26 April 2019)
Gracie and Secretary, Department of Family and Community Services [2005] AATA 179
Raad and Department of Family and Community Services [2000] AATA 387
Secretary, Department of Social Security and Nelly Mosca [1998] AATA 586
SECONDARY MATERIALS
Guide to Social Security Law
Immigration and Refugee Board of Canada
DFAT Country Information Report Lebanon
REASONS FOR DECISION
Chris Puplick AM, Senior Member
21 March 2021
Ms Ibtehaj Hariz (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) which was made on 31 October 2018, which in turn had affirmed two decisions by the Secretary, Department of Social Services (the Respondent) related to the Applicant’s age pension.
Those two decisions were:
(a)a decision made on 20 June 2017 that Ms Hariz was a “returning Australian resident” from 18 February 2017; and
(b)a decision made on 19 January 2018 to suspend payment of the applicant’s Age Pension from 20 January 2018 while she was outside of Australia.
This matter turns on a proper construction of the requirements of the Social Security Act 1991 (Cth) (the Act) as it relates to the payment (“portability”) of age pension while a pensioner is absent from Australia beyond a prescribed period of time.
It is not in dispute that the Applicant is qualified for the payment of age pension (AP) by virtue of her age and her period of residency in Australia.
Legislative framework
People who are in receipt of a variety of social security payments have a right to continue to receive those payments during periods when they are absent from Australia – in that respect, their pensions are said to be “portable”. The Act imposes some limits on the portability of pensions.
Subsection 1220(1) of the Act states that there is no portability for AP where the claim was based on a short period of residence in Australia. It relevantly provides:
No portability where claim based on short residence
(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 pension is granted, or is transferred to:
(i) an age pension;
… and
(e) after the pension is granted, or the person is transferred to the pension, but before the end of that period of 2 years, the person leaves Australia; and
…
a pension based on that claim is not payable to the person during any period during which the person is outside Australia.
The term “Australian resident” is itself subject to definition under the Act. Subsection 7(2) relevantly provides (emphasis added):
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
Section 7(3) goes on to list the factors which must be considered by a decision-maker when determining whether or not a person is residing in Australia for the purposes of the Act:
(3) In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
The Courts have noted that these factors/criteria are “not expressed to be exhaustive”[1] and any decision-maker must consider them within the context of and with regard to the circumstances of each individual case. It is also appropriate for the Tribunal to consider not only these factors but also their converse and not to treat them as some sort of mechanical check-list.[2]
[1] Wybrow v Secretary, Department of Social Security [1992] AATA 315 at [22].
[2] Clifopoulos v Secretary, Department of Social Security (1994) 36 ALD 745 at [747].
Such “converse” factors might include, again in a non-exhaustive sense:
The nature of accommodation used by an applicant overseas;
The balance of family relationships between family in Australia and family overseas;
Property held or business or financial activities transacted overseas.[3]
[3] Gnisios and Secretary, Department of Social Security [1996] AATA 66.
In addition to the provisions of the statute, a decision-maker is required to have due regard to the Guide to Social Security Law which contains a statement of government policy to assist in the interpretation of the Act. Although a decision-maker (including this Tribunal) must have due regard for that Policy and should be guided by it, [4]it nevertheless remains just “policy”.
[4] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634 at [645].
The status of “policy”
In Aston, the Tribunal made it clear that:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[5]
[5] Re ER Aston and T Aston and Secretary to the Department of Primary Industry [1985] AATA 306 (6 November 1985) per Davies J (President), RA Layton (Deputy President) and FA Pascoe (Member) at 21.
In MDXJ, Besanko J said:
[17] The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642–643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself (Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569).[6]
[6] MDXJ v Secretary, Department of Social Services [2020] FCA 1767.
In Gbojueh, Tracey J stated:
[39] At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly. In Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at 506-7 Hely J summarised the position as follows:
“The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will ‘normally’ be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.”[7]
[7] Gbojueh v Minister for Immigration and Border Protection[2014] FCA 883 per Tracey J at 39.
These judicial and tribunal strictures serve to remind decision-makers that statements of government policy alone in this area are not to be taken to limit the decision-makers but rather to serve as a guide. In this respect the situation is contrasted with, for example, the provisions under the Migration Act 1958 (Cth) [s. 499], which impose binding ministerial directions on decision-makers.
The Guide to Social Security
The Guide itself (at 3.1.1.10) variously provides the following advice to decision-makers:
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in [the Act] section 7(3).
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas.
… Conversely, having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members…
Financial ties such as business investments in Australia can be an indicator of where the person is living. However, given the nature of global banking today, simply having an investment in Australia is, by itself, a weak indicator of where the person is residing. Having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia.
Owning assets for investment purposes may not necessarily indicate that the person is residing in Australia. The key is to establish the extent of a person's assets in Australia and whether the presence of these assets in Australia indicates that they have an ongoing connection to Australia. In many cases because of lack of income and poverty a person will have only very limited assets either in Australia or overseas. In these cases more weight should be placed on the other factors listed in SSAct section 7(3).
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
…
It is not uncommon for a person to remain overseas for a lengthy period of time but state that they intend to return to Australia to live at some uncertain, future date. In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person's 'intent' becomes less of a factor as the length of the absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
The Applicant’s narrative
The Applicant was born in Lebanon in 1952 and migrated to Australia some 43 years ago.[8] In August 1981, she became an Australian citizen.[9] In June 2013, her husband of some 34 years passed away suddenly after an operation in a Sydney hospital.[10] This was a devastating blow for the Applicant who was largely dependent upon her husband for support and for most of her care and needs.
[8] According to oral submissions by the Applicant’s Counsel at the hearing.
[9] Tribunal documents (T docs) at 211.
[10] Applicant’s Statutory Declaration of 19 February 2020 at [2].
There then followed a period of some angst and dispute within the members of the family which resulted in a decision to exhume the body of her late husband and arrange for a reburial in a family plot in Lebanon. This took place in June 2015.[11]
[11] Idem.
The Applicant accompanied her husband’s body back to Lebanon where she stayed with members of her family who were still residents there. In October 2015, she left Lebanon to visit her grandchildren and their mother (Ms Ramli) who were living in London.[12] The Applicant travelled with these family members to various places in Europe (the details of which are not relevant) before returning to Lebanon at the end of December 2015.
[12] The date was confirmed by Ms Alba Ramli in evidence to the Tribunal’s hearing.
The Applicant then remained in Lebanon for about one year, during which time she suffered considerable ill health, so much so that Ms Ramli had to make urgent arrangements to visit her there in December 2016. It appears that the Applicant was suffering from conditions associated with rheumatoid arthritis, minor hyperaemia and major back and cervical disc problems. This was on top of her suffering a prolonged and enduring period of major depression arising from the death of her husband.[13]
[13] Applicant’s Submissions at Tab [4] 24-25; 26-27.
The Applicant, apparently not in a good state of health, and apparently contrary to medical advice (see below) returned to Australia in February 2017.
The Applicant then again left Australia and returned to Lebanon in January 2018 because her brother was suffering from cancer, and while she was there, he passed away. She returned to Australia again in March 2018 and it appears has not departed from here since.
It is the Respondent’s contention that the Applicant was absent from Australia in the following periods:
(a) 5 July 2013 to 7 May 2014 (44 weeks);
(b) 15 September 2014 to 3 January 2015 (16 weeks);
(c) 27 June 2015 to 17 February 2017 (86 weeks).[14]
[14] T docs at 308.
The Applicant has supplied a schedule of her travel details based upon entries in her (Australian) passport.[15] These details are not contained in a Statutory Declaration but the Applicant’s Counsel advised the Tribunal that they had been prepared with the assistance of the Applicant’s solicitor who had checked the details.
[15] Attachment to Applicant’s Reply Statement of Facts, Issues and Contentions dated 24 February 2021.
The submissions of the Respondent and the Applicant show similar details for the absences in the periods 5 July 2013 to 7 May 2014 and 27 June 2015 to 17 February 2017. In relation to the period 15 September 2014 to 3 January 2015, the Applicant’s document has a lacuna but does show a departure from the United Arab Emirates on 2 January 2015.[16]
[16] Ibid at [30]-[31].
On the basis of the material before it, the Tribunal accepts that the dates provided by the Respondent are correct and accurate.
What is more problematic is the finding of the AAT1, that:
The evidence of Ms Hariz and her physical presence is of significant weight, and that is she spent 77% of the time between 2013 and 2017 in Lebanon living as a resident of the country with use of a local identity document.[17]
[17] T docs at 7; AAT1 decision at [21].
The Respondent in its Statement of Facts, Issues and Contentions (SFIC) modifies this proposition and contends:
The applicant spent 146 out of 189 weeks outside of Australia between 6 July 2013 and 17 February 2017. This equates to 77 per cent over that four year period.[18]
[18] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [5.19].
The Respondent’s statement is correct and that of the AAT1 is in error. The Applicant spent that amount of time absent from Australia, but she was not in Lebanon for that entire period and the record shows extensive travel to the UAE, United Kingdom, Turkey, India and various countries in Europe.
The other findings in the AAT1 decision quoted above will also be revisited in these reasons.
The basis of the Respondent’s decisions
As noted, the Respondent made two decisions, namely that the Applicant was to be determined as a “returning Australian resident” from 18 February 2017, and that her age pension was to be suspended from 20 January 2018 while she was outside Australia.
The Applicant’s age pension was restored on 27 March 2018 following her return on 26 March 2018 from her last overseas trip.[19]
[19] T docs at 353.
Having regard to the legislation as set out above, the Respondent determined:
(a) the applicant was not an Australian resident during the period from 1 July 2015 to 17 February 2017 (relevant period);
(b) the applicant was an Australian resident from 18 February 2017 and was therefore a returning Australian resident; and
(c) as the applicant had left Australia within two years of becoming a returning resident, she was not eligible for AP while she was overseas.
Resident / Residing in Australia / Returned resident
It is necessary to undertake a detailed review of the judicial authority in order to understand how to define a person as an Australian resident, a person residing in Australia, or a person’s status as a returning resident.
The Social Services and Child Support Division of this Tribunal has attempted to grapple with this on a number of occasions and relevant determinations may be found in the recent matters of Reardon, Hassan, Ong, Mason, and Chandra.[20]
[20] Reginal Reardon and Chief Executive, Centrelink [2016/B090395; 8 March 2016]; Hossam Hassan and Chief Executive, Centrelink [2017/S107787; 20 June 2017]; Allen Ong and Chief Executive, Centrelink [2017/S109884; 28 August 2017]; Robert and Diane Mason and Chief Executive, Centrelink [2018/B127378 and 2018/B127380; 17 January 2019]; Richard Chandra and Chief Executive, Centrelink [2020/B152645; 18 September 2020].
Judicially the starting point is the decision of Wilcox J in Hafza where His Honour said:
13. 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 Ltd v FCT (1941) 64 CLR 241 at 240, 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.”
14. 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] UKHL 1; (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.[21]
[21] Hafza v Director-General of Social Security [1985] FCA 164 per Wilcox J at [13]-[14].
There was a lengthy analysis of the Australian and United Kingdom authorities on the meaning of “residence” undertaken by Beaumont J in Taslim where His Honour also said:
It will be recalled that the Tribunal stated that the term ‘residence’ encompassed both temporal and emotional factors, so that, relying on the ordinary dictionary meaning, there must be both a physical presence in the particular place, as well as the intention to treat that place as ‘home’. In my view, this was, in law, a correct analysis of the term in the present context.[22]
[22] Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 per Beaumont J at [36].
In Baccon, Branson J stated:
7. Residence, like domicile, is a factor that connects a person with a place. It is not a term of art; the precise meaning of expressions such as ‘resident’, ‘resides in’ and ‘is residing in’ in legislation will depend upon the context provided by, and the purpose of, that legislation.
8. As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70 at [36]).
9. Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, 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 (Hafza at 449-450).
10. Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place (Re Taylor; Ex parte Natwest Australia Bank Limited [1992] FCA 296; (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places.[23]
[23] Secretary, Department of Family and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 per Branson J at [7]-[10].
In Pobrica, the Tribunal set out the following:
There have been several cases in the Federal Court and at the AAT in regard to the issue of residence.
Justice Wilcox discussed the concept of residence in the matter of Hafza v Director General of Social Security [1985] FCA 164; (1985) 6 FCR 444 and said that there are two elements to residence. The first is the person’s physical presence in a place and the second is in treating that place as being home. He said that it is possible for a person to be resident in more than one place at the same time. He said that a person does not necessarily cease to be a resident because they are physically absent. The test is whether the person has retained a continuity of association with the place and has an intention to return and treat that place as “home”.
This concept was explained as follows in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation [1941] HCA 13; (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 situated, 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 coincide 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] UKHL 1; (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.”[24]
[24] Pobrica and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 238 at [45]-[47].
In Taylor, Deputy President Hotop made a finding that the applicant had ceased to be an “Australian resident” because of his long periods of residence physically outside Australia, that he then regained his status as a “returned” resident, but forfeited his pension entitlements due to his subsequent departure from Australia within the prescribed period. The Deputy President explained:
13. It is common ground that the applicant is, and has at all material times been, an Australian citizen. Accordingly, he will be an “Australian resident” as defined in s 7(2) of the Act, if he “resides in Australia”.
14. The critical matter for the Tribunal’s determination is whether, in the period when the applicant was absent from Australia from 18 September 2007 to 7 December 2009, he continued to “reside in Australia” or ceased to “reside in Australia”, within the meaning of s 7(2)(a) of the Act. If he continued to “reside in Australia” throughout that period, he will have continued to be an “Australian resident” (as defined in s 7(2) of the Act) throughout that period, but if he ceased to “reside in Australia” during that period, he will have then ceased to be an “Australian resident” within the meaning of s 1220(1)(b) of the Act.
15. Section 7(3) of the Act specifies various factors to which regard must be had in deciding, for the purposes of the Act, whether or not a person is “residing in Australia”. The applicant’s evidence in respect of those factors (see paragraph 9 above) was not disputed by the respondent, and the Tribunal accepts it (subject to the qualification regarding his recent overseas travel in paragraph 17 below).
…
20. The applicant acknowledged that he had ceased to “live” in Australia from 18 September 2007 to 7 December 2009 but he submitted that he did not cease to “reside” in Australia in that period and that he retained his “status” as an Australian resident throughout that period. The answer to that submission is that the phrase “Australian resident” (as defined in s 7(2) of the Act) does not involve a fixed “status” such as that of a “permanent resident” under the Migration Act 1958 (Cth). Rather, as defined in s 7(2) of the Act, it refers to a person who falls within one of the categories referred to in s 7(2)(b) and who “resides in Australia”.
21. In the present case the Tribunal has found that the applicant had ceased to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, during his long absence from Australia from 18 September 2007 to 7 December 2009. Accordingly, the Tribunal finds that he “cease[d] to be an Australian resident”, within the meaning of s 1220(1)(b) of the Act, in that period.
22. The Tribunal also finds that the applicant “again [became] an Australian resident”, within the meaning of s 1220(1)(c) of the Act, when he returned to Australia on 8 December 2009.
23. It is common ground that the applicant was granted an age pension within the period of 2 years after he again became an Australian resident, and, accordingly, s 1220(1)(d) of the Act is satisfied in this case.
24. It follows that, pursuant to s 1220(1) of the Act, age pension is not payable to the applicant during any period in which he is outside Australia within the period of 2 years referred to in that subsection.[25]
[25] Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 per SD Hotop (Deputy President) at [13]-[15] and [20]-[24].
In Moraru, the Tribunal was asked to confront a submission that, if the applicant was found not to be a resident of Australia, he could not be found to be a resident of anywhere else based on the fact that his absences overseas had not established any other permanent place of residence. In that instance the Tribunal held:
While Mr Moraru argued that if he is not a resident of Australia he is a resident of ‘nowhere’, that may well be the case. The fact that he is not a resident of anywhere else is not evidence of his residency in Australia.[26]
[26] Moraru and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 146 at [39]. Emphasis in original.
In MQJJ, the Tribunal was required to deal with an applicant who was essentially homeless on a permanent or semi-permanent basis. In considering the section 7(3) factor of the nature of the accommodation used by the person in Australia, the Tribunal held that:
The SSAT noted that “[the Applicant] said that he had no fixed place of abode in either Australia or overseas, nor had he for many years” and concluded that ‘This factor points neither toward nor away from [the Applicant] being an Australian resident.” The ARO on 10 May 2012 had considered that he had a “... lack of any permanent accommodation in Australia.” With respect to the ARO, the factor that is to be considered is not whether the accommodation is ‘permanent’. Section 7(3) requires the decision maker to consider the ‘nature’ of the accommodation.
In a submission filed in support of the Applicant’s case it was noted (at [34]) that:
If the Secretary means that the applicant is homeless and does not live in a house regularly when in Australia, then the applicant accepts that he does not have a “settled place of abode”.
As noted above, in terms of this criteria, the ‘nature’ of the accommodation needs to be considered and it need not be a ‘fixed or settled place of abode.’ Importantly, the Applicant, although homeless, has sites in Australia where he camps on a regular basis. He is enrolled to vote in an electorate and has a registration card provided by an Aboriginal community that enables him to camp out in one community on land in Darwin. Although the Applicant may not live in a house, he has ‘strong ties to Darwin’ which the Applicant considers to be his ‘home base.’ In this sense he has a home ‘connection’ although he may not live in a house or conventional dwelling.[27]
[27] MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 924 at [18]-[20].
In Boxall, the Tribunal again based its determination on the length of time an applicant spends overseas in coming to a decision as to whether or not they have ceased to be an Australian resident and what might occur if returning residents again leave within the prescribed time limits:
While no one factor in s 7(3) of the Act can be determinative of this matter, on the evidence before it the Tribunal is unable to point to any factor or factors in s 7(3) which strongly support the Applicant being a resident of Australia during the relevant period. The Tribunal finds that even if there had been such a factor or factors, after taking all factors into consideration, the frequency and duration of the Applicant’s absences from Australia during the relevant period 17 October 2005 to 1 December 2017 were of such significance that they would overcome any such factor.
The Tribunal finds that the Applicant ceased to reside in Australia, within the meaning of s 7(2) of the Act, during the relevant period. Accordingly, the Tribunal finds that the Applicant ceased to be an Australian resident in that period.
The Tribunal has found above that the Applicant is an Australian citizen, that he was an Australian resident prior to 17 October 2005, that he became an Australian resident during the period 2 December 2017 to 3 April 2018, that he departed Australia on 4 April 2018 (which is prior to the end of the two year period from the date he was granted age pension being 11 January 2020), and that he returned to Australia on 19 May 2018.
It follows from the above, that pursuant to s 1220 of the Act, age pension was not payable to the Applicant during the period 4 April to 19 May 2018, and the application of s 80 of the Administration Act means that the decision to suspend his payments during that period was correct.[28]
[28] Boxall and Secretary, Department of Social Services (Social services second review) [2019] AATA 764 (26 April 2019) at [67]-[70].
It is clear from consideration of the above authorities that determining residence has both an objective (where did the person physically live) and a subjective (did the person regard that place as their home) element, neither of which operates to the exclusion of the other.
The Tribunal must now turn to the task of assessing the material before it in the light of the criteria set out in subsection 7(3) of the Act.
Interpreting subsection 7(3)In Gracie, the Tribunal spent some time discussing how a decision-maker should approach their evaluative task under s 7(3) of the Act. The Tribunal, drawing upon High Court and Federal Court authority, drew attention to the fact that the section requires that in making a decision “regard must be had to” the factors listed. It placed emphasis upon the fact that a more directive phrase such as “consideration must be given to” had not been used in this context which would have required consideration of all six listed criteria, rather than being, as it is, an exercise of discretion allowing the decision-maker to weigh the six criteria relative to each other.[29]
[29] Gracie and Secretary, Department of Family and Community Services [2005] AATA 179 at [14]-[15]. Citing Gibb CJ in R v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69 158 CLR 327 at [333].
Consideration of section 7(3) factors The nature of the accommodation used by the person in Australia
During the relevant period the Applicant retained ownership of the family home (Australia Street, Bass Hill, NSW) which she vacated shortly after the death of her husband. The property was then put out for rental.
The Applicant herself gives differing reasons for this. In her application for Widow Allowance (dated 5 June 2014) she states, in answer to the form question “What is the reason you live way from your own home?”: “I just couldn’t live in the house without him.”[30] However, in her written statement of 19 February 2020, she writes: “I rented out my home out of necessity because Centrelink was not paying me and I had no other income.”[31]
[30] T docs at 24.
[31] Applicant’s Statement dated 19 February 2020 at [7].
The consultant psychologist, Mr Metry, supports the proposition that the Applicant’s mental health condition prevented her returning to live in the family home.[32]
[32] T docs at 221. Report dated 24 May 2017.
Members of her family adopt the latter position. Ms Ramli in her statement says:
Mrs Hariz was forced to rent out her home as Centrelink was not providing her with any payments and the rental of her home was out of necessity for an income.[33]
[33] Statement of Alba Ramli dated 28 January 2020 at [14].
For these purposes, nothing turns on this.
In any event, the family home was rented out until the return of the Applicant as of 28 July 2017.[34] There is a document sent by the Applicant’s son to the Agent managing the leasing of the property (dated 2 October 2013) which indicates that the initial lease was to be for a period of 6 months[35] and the Applicant claims that this was because she intended to return to Australia within that time period.[36]
[34] T docs at 233.
[35] Applicant’s Submissions at [20].
[36] Applicant’s Statement dated 19 February 2020 at [7].
At the same time, a “large shed located in the backyard of the premises” was not included in the lease, but was reserved for the storage of the Applicant’s personal effects from the house because the Applicant had made clear to the Real Estate Agents that the property lease was on the basis that “Mrs Hariz had always made it clear that the management would only be short term & planned to return & move back into her house.”[37] The Applicant also rented a separate storage unit at Marulan and had property transferred to there from the family home.[38]
[37] Statutory Declaration of Bree Grant (29 September 2020) Applicant’s Submissions at Tab [5].
[38] Applicant’s Submissions at [30].
On visits back to Australia within the relevant period, the Applicant lived with her daughter in Five Dock (NSW) which she declared in a Rental Certificate (provided to the Department on 1 July 2014) was on the basis of “temporary care” although she paid some household expenses.[39]
[39] T docs at 79. The commencement date of these arrangements appears as 7 May 2014.
Considering the “converse” of this factor, the evidence is that the Applicant, while overseas (either in Lebanon or London) lived with members of her family, and in her testimony agreed that she paid something towards her upkeep (“Yes – don’t you pay to eat?”). Otherwise she was travelling with no fixed abode.
This led the AAT1 to conclude:
[14] In respect of the first, that being accommodation, I note that Ms Hariz had a property in Australia that was made available for rent. When she was in Australia Mrs Hariz would stay with her daughter and her sisters. The evidence on the issue of accommodation is that Ms Hariz had no permanent place of accommodation, either in Australia or Lebanon.[40]
[40] T docs at 6.
The Secretary in her SFIC contends:
[5.5] While overseas, the evidence is that the applicant moved between living with her daughters, her sons and her siblings.[18] It does not appear that she had any fixed permanent address.
[5.6] The Secretary respectfully agrees with the AAT1’s findings at [14] that the weight of the evidence suggests that the applicant had no permanent place of accommodation in either Australia or Lebanon. The Secretary contends that this factor is therefore neutral at best and does not support a finding that the applicant remained an Australian resident during the relevant period.
The “purpose” of s 7(3) is not to make a finding simpliciter but rather to guide the decision-maker in making a determination of the question of “whether or not a person is residing in Australia” – that is, where were they a resident?
The Tribunal does not accept that, during the relevant period, the Applicant was a resident of nowhere. Unlike MQJJ, she at all times had a home. That home was in Australia Street, Bass Hill. She left it on a temporary basis and had every intention of returning to live there and, in the fullness of time, did so.
The nature and extent of the family relationships the person has in Australia
The Applicant has a large family which includes three daughters, one son, and six grandchildren who were resident in Australia at various times during the relevant period.[41]
[41] Statement of Alba Ramli dated 28 January 2020 at [7]-[8].
She also has extended family who have been resident in Lebanon and, at various times, in Saudi Arabia and the United Arab Emirates.[42] In Lebanon, these family members include a daughter, two brothers and three sisters.
[42] Applicant’s Reply statement of Facts, Issues and Contentions (24 February 2021) Attachment [2].
The Respondent also notes that during her overseas travels the Applicant was accompanied by her son (Raed Hariz) and Alba Ramli, although the Respondent mistakes the identity of Alba Ramli, referring to “her son-in-law Mr Ramli”[43] when in fact Alba Ramli is the mother of three of the Applicant’s grandchildren who were fathered by Raed Hariz. Ms Ramli herself uses the descriptor, in relation to the Applicant as “the grandmother of my children”.[44]
[43] Respondent’s SFIC at [5.8].
[44] Statement of Alba Ramli dated 28 January 2020 at [2].
The Tribunal is at a loss to understand the purport of the Respondent’s reference to Raed Hariz and Alba Ramli in this content. The evidence is that the Applicant needed the assistance of a member of her family at various stages to accompany her on her travels. There is nothing to be made of that, other than perhaps that while the Applicant was able to make short journeys with assistance, longer journeys were more problematic. If anything, this suggestion reinforces the Applicant’s claim that the prospects of long journeys caused her to delay decisions to finally return to Australia.
The Applicant’s principal family relationships are in Australia, in particular with her son Raed and with Ms Ramli, extending to her relationship with her grandchildren. While in Australia, she has lived with members of her family, as indeed she did while overseas. There is uncontradicted written evidence that the Applicant maintained daily (or at least every second day) telephone contact with family members in Australia while she was overseas.[45] The Applicant was pressed on this at the Tribunal hearing and the Tribunal accepts her evidence in this regard.
[45] T docs at 5-6 and 14.
The Applicant originally left Australia to take the body of her husband back to Lebanon to bury it alongside his father. The decisions in this matter have been a cause of intra-family dispute and touch upon serious, culturally sensitive norms and obligations. This was clearly recognised by the Tribunal in Raad where it noted:
105. The Tribunal is also concerned that decision-makers must be careful, when deciding on such matters, to note that a person who has migrated to another country will, even if resident in that country not necessarily cease to have any connection with their country of origin nor any family or friends who remain there. That a person might travel on holiday or for some other short term purpose to their country of origin does not indicate that a person does not have a connection with the country of migration nor an intention to reside there. One must not fall into the trap of considering a person in isolation from their origins and roots. People's lives must be considered on a continuum and in a global sense. It is behind the purpose of such travel and such association with the country of origin that decision makers must go to tease out the complexity of factors involved.
106. When considered objectively, the Tribunal is of the view that the periods of absence from Australia in Lebanon were related principally to the need and responsibility Mr Raad felt for the care of his family or for holidays. After his mother died in 1996, Mr Raad was required to try to resolve some family issues and also to arrange for the care of his younger brother. This having been done, he returned to Australia, as was his pattern. It seems to the Tribunal that each time Mr Raad felt that the family situation in Lebanon had resolved and was managed in that his mother's health had improved or his brother's care and management was arranged, he then returned to Australia.[46]
[46] Raad and Department of Family and Community Services [2000] AATA 387 at [106].
The Tribunal concludes on the clear basis of the evidence that, at all relevant times, the Applicant’s principal family ties were those with family in Australia and that those ties were close and enduring.
The nature and extent of the person’s employment, business or financial ties with Australia; and
The nature and extent of the person’s assets located in Australia
These two factors may be considered together. There were no matters touching on employment or business activities relevant at any point. It appears that, while overseas, the Applicant’s sole source of income was the rental income she received from the Bass Hill property which was transferred to her via Western Union’s service. It is unclear if she received any financial support (as distinct from support in kind) from any members of her family either in Australia, London or Lebanon.
The AAT1 appears to have characterised this arrangement in such a way as to suggest that it leads to a conclusion that the Applicant was resident overseas because “such an arrangement is not unusual for a resident of another country.”[47] This interpretation is adopted by the Respondent.[48]
[47] T docs at 7, Tribunal at [24]. See also AAT1 at [16].
[48] Respondent’s SFIC at [5.14].
In the view of this Tribunal, nothing flows from the financial arrangement of transfer of Australian-derived rental income to travellers overseas who use such income for purposes of daily sustenance. There is no evidence of any financial ties to Lebanon and the Applicant’s only bank account appears to be that held in Australia. Indeed, in Mosca[49] the Tribunal accepted that a couple could liquidate the entirety of their assets in Australia (in the sum of some US$70,000 in that case) and take the cash overseas to maintain themselves over several years and still retain their residency qualifications for Family Allowance payments.
[49] Secretary, Department of Social Security and Nelly Mosca [1998] AATA 586 at [29]; [117-118].
The reference in the Guide (quoted above) to aspects of “global banking” and the inability to link residency with the presence of assets in Australia does not, in these circumstances, carry any weight with the Tribunal.
At all times, the Applicant’s principal asset remained the family home in Bass Hill, and there appear to be no other significant assets.[50] There is no evidence of any financial assets in Lebanon and common-sense would dictate that the maintenance of these assets attests to the strong likelihood of an asset-owner being a resident of the one and only place where their assets are located.
[50] T docs at 224-227.
The frequency and duration of the person’s travel outside Australia
The essential feature of the Respondent’s case is that the Applicant spent the vast majority (77%) of her time, during the relevant period, outside Australia. The facts speak for themselves (res ipsa loquitur) and the Respondent’s claim is incontrovertible.
The question must be what weight the Tribunal gives to these facts and how they are to be weighed against the other relevant factors according to the principle enunciated in Gracie.
Any other matter relevant to determining whether the person intends to remain permanently in Australia.
The Tribunal has already noted that determining residency has both a physical and an emotional element.
There is an old aphorism, “Home is where the heart is”. The origin of this aphorism is unclear,[51] but its meaning is well understood. Throughout her written statements and oral testimony, the Applicant stressed her commitment to returning to Australia and the extent to which she regarded it as her only “home”.
[51] Attributions range from an earliest source in the gnomic poetry of Theognis of Megara (6th Century BC) to Pliny the Elder (AD23/4 – 79) [Ubi domnus, ibi cor] famous for his death getting too close to the eruption of Mount Vesuvius to a poem published in the Fayetville Weekly Observer [NC, USA] in 1829 [‘Tis home where the heart is”] to J. J. McCloskey's 'Davey Crockett and Other Plays' (c. 1872).
In Issa, the Tribunal made some pertinent observations on this issue:
As has been pointed out on a number of occasions subjective considerations are the golden threads that consistently run through the fabric of social security situations. Having regard to the nature of the questions that have to be answered, this is not surprising. Subjective considerations (like pain) are real and tangible and can be proved like any other fact. Where they depend upon the word of the person most closely affected, satisfactory proof usually involves corroboration by objective facts. The absence of those facts, however, does not necessarily mean that the subjective consideration has not been proved. It simply means that it has not been proved in a particular way. In cases like the present, where the only witnesses are the applicants, where the veracity of their evidence is not seriously challenged, where their demeanour and sincerity are apparent, the need for corroboration is not so great.[52]
[52] Mahmoud Issa and Samira Issa and Secretary, Department of Social Security [1985] AATA 184.
The Respondent has raised two issues in relation to this factor – the use in Lebanon of a Lebanese identity card by the Applicant and the Applicant’s failure to return home at an earlier date than she did.
The Lebanese identity card
The Applicant is a dual Australian/Lebanese citizen and, as such, she possesses a Lebanese identity card. While she lived in Lebanon, before arriving in Australia, it would have been compulsory for her to have and carry such a card which she says was renewed while she was still living there prior to migrating.
The Applicant originally submitted, and the Respondent made use of details about the nature and use of Lebanese identity cards based upon entries in Wikipedia. Such provenance is not at a standard acceptable to the Tribunal.
Based upon evidence sourced from the Australian Department of Foreign Affairs and Trade Country Report – Lebanon, and material from the Immigration and Refugee Board of Canada, the Tribunal is satisfied that the issuing authority of the National ID Card is the Lebanese Ministry of Interior and Municipalities, Directorate of Civil Census. The format of the National ID Card is standardized throughout the country. Information on the card includes: the holder's name; surname; father's name; mother's name and surname; place of birth; date of birth; cardholder's signature; photo; sex; marital status; date of issue; registry number; village; province; district; and the name, signature and seal of the registry officer. Their uses encompass healthcare, banking and financial services, education, employment, travel, obtaining other documents (such as driver’s licences), and insurance claims.[53]
[53] Department of Foreign Affairs and Trade, DFAT Country Information Report Lebanon (19 March 2019); Immigration and Refugee Board of Canada, Lebanon: Information on national ID cards, individual and family registers, and drivers licenses, including purpose of documents, application and issuance procedures, procedures for correcting errors; whether errors in these documents are common and whether there are issues with fraud (2012 – July 2016) (Web Page, 22 July 2016) at [1.5] <refworld, >
The Applicant’s late husband’s identity card would have been needed to allow the repatriation of his body to Lebanon for reburial.[54]
[54] Embassy of Lebanon (Canberra Australia), Consular Affairs – Transfers (Web Page) <>
The AAT1 took a particular position in relation to the Applicant’s possession and use of a Lebanese ID card:
(9) It was further submitted that ….. she (the Applicant) had never been a resident in Lebanon, and only had the Lebanese identity card to make it easier for her to live there during the duration of her stay.
(19) Other matters that I have taken into account were that shortly before that period Ms Hariz experienced the death of her husband and that she was suffering various medical conditions. I note that her medical treatment occurred in both Australia and in Lebanon. As issue of some significance is that Ms Hariz obtained and had the use of a Lebanese identity card. This is important evidence in my view that indicates that she was a resident of that country.
(21) The evidence of Ms Hariz and her physical presence is of significant weight, and that is she spent 77% of the time between 2013 and 2017 in Lebanon living as a resident of the country with use of a local identity document.[55]
[55] T docs at 5-7.
In cross-examination, the Respondent’s representative pressed the Applicant about her use of her Lebanese identity card while in that country. She was emphatic that she used it only to facilitate her initial entry through the airport at Beirut, rather than using her Australian passport which was the document upon which she otherwise relied while abroad. She denied using it for medical treatment, for which she said she paid herself.
Ms Ramli states:
With respect to Mrs Hariz’s Identity Card. I saw Mrs Hariz use her Lebanese identity card to enter Lebanon without being asked the endless set of questions a foreigner is asked when entering the Middle East. I never not once saw Mrs Hariz use her identity card for any other reason.[56]
[56] Statement of Alba Ramli dated 28 January 2020 at [22].
Ms Ramli confirmed this statement when questioned about it specifically by the Tribunal. She confirmed that the Applicant possessed her Lebanese ID card prior to her arrival in Lebanon in 2013.
It is highly relevant that the Immigration and Refugee Board of Canada notes on this subject state (emphasis added):
1.5 Purpose for Which the National ID Card Is Issued and Used
………
travel, when validating the Lebanese traveller's passport and/or ID, and can be used for entry into the country when a Lebanese traveller has dual citizenship and is only carrying their non-Lebanese passport; the card can also be used to enter Syria and Jordan as there are no visa requirements for Lebanese citizens.[57]
[57] Immigration and Refugee Board of Canada, Lebanon: Information on national ID cards, individual and family registers, and drivers licenses, including purpose of documents, application and issuance procedures, procedures for correcting errors; whether errors in these documents are common and whether there are issues with fraud (2012 – July 2016) (Web Page, 22 July 2016) at [1.5] <refworld, >
Although the Respondent only relies upon the use of the Lebanese ID card as evidence of that proposition that the Applicant “anticipated in being in Lebanon for an extended period”,[58] the Tribunal gives no weight to this matter.
[58] Respondent’s SFIC at [5.27].
With the greatest of respect to the AAT1, the conclusions which it has drawn in this matter are unsustainable on the basis of any evidence or understanding of the nature and purpose of the Lebanese ID card, and any determinations based upon such conclusions are inherently unsound.
Failure to return earlier
The Respondent questions the length of time the Applicant was overseas and the uncertainty of her intentions to return. In the Respondent’s SFIC it states:
[5.32] The applicant states that she always intended to return to Australia. However, this is inconsistent in part with the applicant telling the AAT1 that she was in a “state of flux” and that “she did not know really what she wanted to do”.[59] The Secretary contends that the fact that the family home was leased immediately after her husband’s death, in continuous six month arrangements, indicates that there was no proposed end date for the absence.
[59] T docs at 5. Tribunal paragraph [10].
The Tribunal does not accept that the characterisation of the Applicant’s state of mind as being “in a state of flux” accurately reflects anything said to the AAT1 by the Applicant. On that occasion she gave evidence in Arabic, assisted by an interpreter[60] and it is unclear from the AAT1 decision to whom this characterisation should be attributed, although the Applicant’s SFIC suggests that it might be to her son.[61]
[60] T docs at 4. Tribunal paragraph [4].
[61] Applicant SFIC at [8].
In support of this proposition, the Respondent relies on authority as follows:
[5.33] In Gnisios and Secretary, Department of Social Security [1996] AATA 66, it was said:
[46] To make a finding in relation to Mr Gnisios' stated intention to reside permanently in Australia, the Tribunal considers it necessary to also consider Mr Gnisios' statements in the light of corroborating material. While there may be circumstances where subjective considerations do not have available corroborative or objective facts, the Tribunal finds that in Mr Gnisios' case there are objective and corroborating matters which provide evidence as to Mr Gnisios' intention.
[5.34] In Distefano and Secretary, Department of Social Security [1996] AATA 725, the Tribunal relevantly commented:
24. Whilst acknowledging what His Honour said in Hafza, the only “continuity of association” that I can discern the applicant holds with Australia is a return from time to time - usually at intervals of coincidentally about 12 months - for the purposes of either demonstrating residence or reapplying for wife pension upon the basis of alleged residence. I am unable to discern from the evidence that the applicant regards Australia as “home” and there would not appear to be anything on the evidence which would suggest that the applicant does presently intend to return to Australia on a permanent basis. That she may return to Australia some time in the future and take up residence may then be more demonstrative of residency than her present circumstances.
The Tribunal agrees that much of the Applicant’s evidence supports the proposition that she was unsure about immediate travel arrangements, including when to visit her family in London, where and when to travel in the rest of Europe and into Asia, when to return from such travels to Lebanon, and when finally to head home to Australia.
The Tribunal does not accept that there was no long-term intention of the Applicant to return to Australia, but rather, that a series of circumstances arose which compromised any immediate plans which might have been in contemplation.
There is medical evidence before the Tribunal which indicates that the Applicant suffered a number of medical conditions while overseas. There is a report by Dr Wassim Noueihed dated 13 December 2016, which is a mixture of diagnosis and advocacy to the United Kingdom Home Office, to facilitate the Applicant’s travel to see her grandchildren in London.[62] The diagnoses appear supported by a Laboratory Analysis (dated 7 June 2016).[63]
[62] Applicant’s Submissions at Tab [4], 24-25.
[63] Ibid, 26-27.
The Applicant herself contends:
4. I remained in Lebanon for Riad’s reburial, then my younger brother had a heart attack and because I had multiple illnesses that I made Centrelink aware of. My illnesses include rheumatoid arthritis, cervical disc problems as a result of neurocentral joint degeneration, minor hyperaemia in my hands and feet and I had many lower back medical problems that incapacitated me and prevented me from travelling back to Australia. I was also taking a high dosage antidepressant because of my Major Depressive Disorder and Panic Attacks medication to better my sleeping patterns that was prescribed to me by my Physchologist Dr Medhat Metri for my debilitating symptoms. My local Dr Mamdouh Matar and my consultant rheumatologist Dr Harry Patapanian provided me with medication to manage my lower back and limb pain, which has been provided by Centerlink.
The Applicant told the Tribunal at the hearing that she had been hospitalised in Lebanon, in the American Hospital in Beirut, apparently for depression-related illness and that she had paid her own medical expenses there.
At the hearing there was a suggestion advanced by both the Applicant and by Ms Ramli that the Applicant had been advised not to return to Australia when she did, and that Dr Wassim had supplied some sort of written certificate to that effect. Ms Ramli attests that she saw such a document that was in the Applicant’s possession on her return to Australia, and used it later to help the Applicant write one of her statements, while the Applicant herself said that she had given the certificate to one of her Australian medical practitioners.
Unfortunately, this document cannot be located, and the Tribunal must, as a result place less weight upon it than it might otherwise have done. However, it accepts on the basis of the sworn testimony of Ms Ramli, who is a solicitor admitted in the Supreme Court of NSW, that such a certificate exists, although exactly what it may say is unclear.
The Tribunal also accepts the Applicant’s testimony that her travel back to Australia was difficult, that “I was not good but I wanted to come back” and that “I thought I was going to die in aeroplane”.
It was Ms Ramli’s testimony that the Applicant arrived back in Australia in a state of some distress after the return airline flight.
The Tribunal accepts this evidence as supportive of the proposition that the Applicant had, at all material times, an intention to return to Australia to live and that delays in her so doing were as a result of multiple of factors, some of which were genuinely beyond her control.
Among “any other matters” which the Tribunal considers is the evidence of the Applicant’s correspondence with her friends and neighbours, Bernadette Taleb and Mouna Youssef. They are described by the Applicant as:
my best friends (who) live in next to me. We walk to each other’s house vey day for coffee like we have been doing for the past 15 years.[64]
[64] Applicant’s Statement (19 February 2020) at [13].
Ms Ramli refers to the Applicant’s:
Desire to return to her home in Bass Hill where she could spend time with her neighbours Bernadette and Mouna…[65]
[65] Statement of Alba Ramli dated 28 January 2020 at [21].
Both the lady friends have provided Statutory Declarations. Ms Yousef writes:
4. I would visit Mrs Hariz’s home while she was away to make sure the tenants where maintaining it as she liked. She had and still has a big garden that was close to her heart. She asked me to regularly water her garden though I told her I could not do so due to the tenants.
5. I spoke to Mrs Hariz vis phone and whats app almost twice a week and on some weeks more. I would send my own children to check on her home to ensure it was taken care of because she would call me and ask me to check. So when she returned the house was liveable. She always knew she would return to Australia and she told me this. I remember seeing her son pack the truck and how carefully they packed the furniture for when they returned.6. Mrs Hariz considered Australia her home. It is where our bond is tied, our friendships, her family, her local community with other friends. She always said she only ever trusted the Doctors in Australia.[66][66] Applicant’s Submissions at [Tab G]. Statutory Declaration of Mouna Yousef dated 9 October 2020.
Ms Taleb writes:
2. I have been family friends with Ibtehaj Hariz for 15 years, we spend a lot of time together at each other’s homes. She comes to my children’s birthday parties and we go to the markets together.
3. I know she had a lot of problems when she travelled to Lebanon. She would call me, I would call her, and I missed her when she was overseas but I knew this was only for a short time until her late husband was buried and the family could try and move on.
4. Ibtehaj would call me and cry about wanting to come back to her home and how she has to help with the family in Lebanon for her late husband to make the community happy regarding the exhumation of her late husband.
5. Her body may have been in Lebanon but her mind and her spirit was in 77 Australia Street, Bass Hill.
6. She rented her home in Australia, she would call me from Lebanon and I would call her, it was at least once each fortnight. She is my best friend. For the last 15 years, we have coffee every day twice a day in the morning and late in the afternoon.[67]
[67] Ibid; Statutory Declaration, Bernadette Taleb dated 9 October 2020.
In oral evidence to the Tribunal, the Applicant was asked about her continuing contact with these ladies while she was overseas, and she confirmed the gravamen of what is quoted above.
The prospect of separation from intimate friends, especially those bounded together by commonality of age, culture, life experiences and shared values, may be as relevant in the mind of a person determining where they are going to live as is the idea of separation from immediate family members. Friends, being the family that we choose for ourselves, create bonds which should be taken into account in circumstances such as this and the idea that the Applicant would readily abandon such friends to make herself a resident of any other place is not one which the Tribunal finds persuasive.
Conclusions
The evidence, when taken as a whole, is supportive of a narrative of an applicant who travelled overseas, not on a whim, but rather as a result of familial and cultural pressures, to return the body of her late husband to his birthplace. The decision itself was not without controversy. On a second occasion, her travel resulted from the sudden illness of her brother who, while she was back in Lebanon, died.
While overseas the Applicant took the opportunity to visit family members in the United Kingdom and, with the assistance of family members, undertook other travel which helped her cope with her enduring problems of depression and anxiety.
While overseas, the Applicant lived with various members of her family but at no stage established or maintained a separate state or place of residence. While in Lebanon she made limited use of a Lebanese identity card, which she carried by right of dual citizenship, it having been compulsory for her to acquire it. The use she made of the card was both limited and sensible and very much in accordance with the purposes for which the card was issued.
While overseas, the Applicant maintained ownership of a family home in Australia and made arrangements both to have rental from that property available to her overseas and in the meantime arranged for the storage of her family possessions pending a resumption of residence in that family home. At all stages this remained her principal place of past and intended residence.
While overseas, the Applicant kept in close and regular contact with members of her family in Australia and with a number of her intimate personal friends. Although she had family in both Lebanon and the United Kingdom, at all times, her principal family ties were with family in Australia.
It was, at all times, the intention of the Applicant to return to Australia to reside and she never abandoned her commitment to Australia as her home. The delays occasioned in her return resulted from a number of factors, some of which were clearly within her control and others which were not.
Having regard to the various criteria set out in section 7(3) of the Act, the Tribunal comes to the firm conclusion that the Applicant was, at all times, a resident of Australia. She never ceased to be an Australian resident. She never was a “returning resident” and thus was never subject to the conditions imposed under section 1220 of the Act.
DECISION
The decision under review is set aside and the matter remitted to the Respondent with a direction that the Applicant was, at all relevant times, an Australian resident.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal
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Associate
Dated: 24 March 2021
Date(s) of hearing: 1 March 2021 Counsel for the Applicant: Mr Mark Robinson SC Solicitors for the Applicant: Mr Abdullah Reslan, Kings Law Group Solicitors for the Respondent: Dr Stephen Thompson, Sparke Helmore Lawyers
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