Hussein and Anor and Secretary, Department of Employment and Workplace Relations
[2007] AATA 17
•15 January 2007
CATCHWORDS – SOCIAL SECURITY – pension, newstart allowance and parenting payment partnered – benefits and allowances – newly arrived resident’s waiting period – whether an Australian resident for the purposes of Social Security Act 1991 – meaning of ‘reside’ – whether residing in Australia for requisite time – decisions affirmed.
A New Tax System (Family Assistance) (Administration) Act 1999 s 97
Administrative Appeals Tribunal Act 1975 s 37
Australian Citizenship Act 1948 s 10
Further 1998 Budget Measures Legislation Amendment (Social Security Act) 1999
Income Tax Assessment Act 1922 (Cth) s 5A
Migration Act 1958
Migration Reform Act 1992
Migration Regulations 1958 r 1.03
Social Security (Administration) Act 1999 ss 80 and 118-120
Social Security Act 1991 ss 7, 23, 500, 503, 593, 623A, 623B and 1223
Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 s 3
Social Security Legislation Amendment (Parenting and Other Measures) Act 1997 s 3
Social Security Legislation Amendment Act 1999 (Act No 109 of 1994) ss 2 and 25
Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29
Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774
Hanlon v Law Society [1981] AC 124
Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559
Re Firdousi and Secretary, Department of Employment and Workplace Relations [2005] AATA 1304; (2005) 89 ALD 436
DECISION AND REASONS FOR DECISION [2007] AATA 17
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2006/530
GENERAL ADMINISTRATIVE DIVISION )
Re ABDALLAH HUSSEIN
Applicant
AndSECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
V2006/531
Re IBTISAM ABU KHALAF
Applicant
AndSECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 15 January 2007
Place: Melbourne
Decision:The Tribunal affirms:
1.the decision of the Social Security Appeals Tribunal dated 1 June 2006:
(1) affirming a decision of a delegate of the respondent dated 4 January 2006 to cancel Dr Hussein’s new start allowance; and
(2) affirming a decision of a delegate of the respondent dated 4 January 2006 to cancel Mrs Abu Khalaf’s parenting payment partnered.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 9 January 2006, a delegate of the respondent, the Secretary of the Department of Employment and Workplace Relations (Secretary), cancelled Dr Abdallah Hussein’s newstart allowance (NSA) on the basis that, under s 623A(1) of the Social Security Act 1991 (SS Act), he was subject to the newly arrived resident’s waiting period of 104 weeks beginning on 2 December 2005. In a second decision dated 4 January 2006, the delegate also cancelled Mrs Ibtisam Abu Khalaf’s parenting payment partnered (PPP). She did so on the basis that Mrs Abu Khalaf did not meet the residential requirements of s 500(1)(d) of the SS Act. Both decisions were subsequently affirmed by an Authorised Review Officer and, in this regard, by the Social Security Appeals Tribunal (SSAT). Dr Hussein and Mrs Abu Khalaf have argued that they have been Australian residents since they first came to Australia with permanent visas in 1995 and despite their frequent and lengthy absences. I have decided that they were not Australian residents until the date of their last entry to Australia on 2 December 2005. Therefore, they do not yet satisfy the residency requirements for the payment of NSA and PPP and the Secretary’s decisions to cancel their payment to them were correct.
BACKGROUND
Dr Hussein and Mrs Abu Khalaf and, on behalf of the Secretary, Ms Paul did not disagree on the history of their time in Australia. Their disagreement centred instead on the legal consequences of that history under the SS Act. In light of that and having regard to the oral evidence given by Dr Hussein and Mrs Abu Khalaf and the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), I have made the findings of fact set out in the following paragraphs.
Family life and movements up to 2005
Dr Hussein, who was born in Kuwait, and Mrs Abu Khalaf, who was born in Israel, have five children: Ibrahim Hussein (born on 2 December 1989), Mais Hussein (born on 18 October 1991), Yazid Hussein (born on 16 May 1994), Shatha Hussein (born on 30 July 1997 in Perth) and Hala Hussein (born on 14 August 2002). Dr Hussein and Mrs Abu Khalaf had previously lived in Kuwait in an apartment owned by Mrs Abu Khalaf’s brother. They lived in Jordan when they were granted permanent visas sub class 126 (independent entry) on 9 November 1994.[1] Later, on 1 August 1997, they were granted a permanent visa sub class returning resident.[2] It remained in force for five years but was extended in 1999 until 2007. Using those visas, they first arrived in Australia in Perth on 19 June 1995. Their trips to and from Australia from that time until they came to Australia on 2 December 2005, together with their claims and payments under the SS Act, may be summarised as:[3]
[1] T documents V06/531 at 83-84
[2] T documents V06/531 at 83-84
[3] T documents V06/531 at T13 and V06/530 at T32 -T33
| Applicant | Arrival date | Departure date | Total days/part days | Significant event |
| Dr Hussein Mrs Abu Khalaf | 19 June 1995 19 June 1995 | 28 June 1995 28 June 1995 | Dr Hussein: 9 days Mrs Abu Khalaf: | Claimed Family Allowance (FA) but rejected as not resident.[4] |
| Dr Hussein Mrs Abu Khalaf | 7 August 1996 7 August 1996 | 23 September 1996 23 September 1996 | Dr Hussein: 47 days Mrs Abu Khalaf: | Dr Hussein: paid NSA Claimed Parenting Payment (later PPP) and Family Tax Payment (FTP). Paid PPP until 27 June 2000 and FTP, Family Allowance (FA) and Family Tax Benefit (FTB) until 23 July 2001) |
| Dr Hussein Mrs Abu Khalaf | 6 June 1997 6 June 1997 | 8 August 1997 8 August 1997 | Dr Hussein: Mrs Abu Khalaf: 63 days | Dr Hussein: paid NSA Mrs Abu Khalaf: birth of fourth child on 30 July 1997 |
| Dr Hussein Mrs Abu Khalaf | 11 June 1999 11 June 1999 | 22 July 1999 22 July 1999 | Dr Hussein: Mrs Abu Khalaf: 41 days |
[4] T documents V06/531 at 218
| Dr Hussein Mrs Abu Khalaf | 2 December 2005 2 December 2005 | Dr Hussein: ongoing Mrs Abu Khalaf: ongoing | Dr Hussein: applied for NSA on 14 December 2005[5] and paid from 9 December 2005[6] but cancelled on 4 January 2006[7] and affirmed on 17 January 2006.[8] Mrs Abu Khalaf: applied for PPP on 15 December 2005.[9] PPP granted on 23 December 2005[10] with effect from 16 December 2005 but cancelled on 4 January 2006 and affirmed on 17 January 2006.[11] |
| TOTALS to 1 June 2005 and then ongoing | 160 days 160 days |
[5] T documents V06/530 at 26-29 and 43-47
[6] T documents V06/530 at 53
[7] T documents V06/530 at 75 and affirmed at 83
[8] T documents V06/530 at 90-96
[9] T documents V06/531 at 25-32 and 38-47
[10] T documents V06/531 at 48-51
[11] T documents V06/531 at 64-66
I accept that both Dr Hussein and Mrs Abu Khalaf intended to make their life in Australia when they were granted permanent residency visas in 1994. Dr Hussein was skilled as an Arabic translator and it was on these skills that his visa had been granted. When they arrived in 1995, they found that there were limited employment opportunities for Dr Hussein in their chosen city of residence, Perth. He had expected to find work with the then Department of Immigration but it had outsourced its translation work. The work that he could find was only offered on a part-time basis.
Dr Hussein then accepted a short term contract with a petroleum company in Oman and continued to accept other similar offers until 1999. In 2000, he began to study for a Doctor of Philosophy in Arabic Translation from the University of Heriot Watt in Scotland. He did so by correspondence and it was conferred in 2005. Dr Hussein hoped that his having the additional qualification would improve his employment opportunities in Australia. During the course, Dr Hussein travelled to attend the University in Scotland four times each year. He could not afford to undertake those trips had they been living in Australia.
Since 1994, they have intended to make Australia their home. Over the years, Dr Hussein and Mrs Abu Khalaf paid the fees associating with maintaining the currency of their visas as well as their driver’s licences. They had checked that their children’s education overseas was compatible with Australian education and enrolled their son in a Perth school during their visit in 1996. Their fourth child is an Australian citizen as she was born in Australia and her parents held permanent resident visas.[12] They have renewed her Australian passport as well as their Medicare cards and opened a bank account during their first visit. Neither considers that they and their family are new immigrants as they have been here since 1994. Since that time, they have been paid benefits under the SS Act and have held Medicare cards. Neither paid income tax in Australia as they had not considered that the income Dr Hussein earned in Oman was taxable in Australia. Since returning to Australia in December 2005, the family has settled in Melbourne where Dr Hussein hopes to have a better chance of employment. They have moved some of their furniture to Australia at some considerable expense and, together with the rest of their lives, left the remainder behind in Oman. They had intended to start again and build on the few possessions that they had brought with them.
[12] Australian Citizenship Act 1948, s 10
Social Security Appeals Tribunal review on 6 May 2003 of earlier overpayments
On various dates between 23 June 2000 and 19 November 2002, delegates of the Secretary had decided that Mrs Abu Khalaf had been overpaid FA, PPP and FTP totalling $38,520.57. She was sent written notification at her address in Oman. The decision in relation to PPP was affirmed by an Authorised Review Officer (ARO), who had regard to Mrs Abu Khalaf’s letters dated 3 April 2001 and 21 August 2001.[13] He sent notice of his decision to her at her address in Oman and asked for more detail in relation to the other debts.[14] On 20 January 2002, Mrs Abu Khalaf asked for review of the decision.[15] Another ARO reviewed the remaining debts and affirmed the decisions to raise and recover them on 25 March 2003.[16] She was advised of his decision in a letter of the same date and addressed to her Oman address.[17] Mrs Abu Khalaf applied to the SSAT for review of all decisions.
[13] T documents V06/531 at 188
[14] T documents V06/531 at 185-186
[15] T documents V06/531 at 200-202
[16] T documents V06/531 at 203-206
[17] T documents V06/531 at 207-208
The SSAT waived that those amounts had been overpaid but waived them on the basis that the amounts had been paid solely as a result of administrative error by the Secretary or those acting on his behalf and that they had been received in good faith. It relied on s 1223(1) of the SS Act. In relation to amounts of FTB, the SSAT decided that Mrs Abu Khalaf had been overpaid $4,652.80 for the period 1 July 2000 to 23 July 2001. It declined to waive that debt because, although it found that it had been paid as a result solely of administrative error and had been received in good faith, its repayment would not cause Mrs Abu Khalaf financial hardship as required by s 97 of the A New Tax System (Family Assistance) (Administration) Act 1999.
In its reasons for decision dated 6 May 2003, the SSAT said:
“21. The Tribunal had little trouble finding that Mrs Abu Khalaf was not an Australian resident in the period of the overpayment (further discussion on this topic in ‘Application of Law’). The relevant question was whether she misrepresented her circumstances to Centrelink. The claim forms on the file do not ask the question, ‘are you a resident?’ The claim forms ask if the person intends to remain in Australia. Each of the relevant claim forms have been examined by the Tribunal and the Tribunal is satisfied that at every stage Mrs Abu Khalaf provided the information requested on the forms.
22. The 31 July 1997 FTP claim form asks if Mrs Abu Khalaf intends to remain in Australia permanently. Mrs Abu Khalaf answers in the affirmative yet the records show that 8 days later she had left the country. Whilst it may be that Mrs Abu Khalaf could have provided Centrelink with more information at this time – for example – we may be leaving for Oman again as my husband may be offered a new contract – her failure to do so can not be considered a failure to comply with a requirement of the Act.”[18]
[18] T documents V06/531 at 220
Later in its reasons, the SSAT set out the definition of an “Australian resident” in the SS Act in relation to all debts other than the FA debt. As now, it is found in s 7(2) of the SS Act. It is in terms that, are in so far as they apply in this case, in identical terms to those to which I must have regard.[19] The SSAT said:
“30. The Tribunal found that Mrs Abu Khalaf was not qualified for any of the payments she received as she was not an Australian resident or an inhabitant of Australia. The key decision in relation to residence is Hafza v Director-General of Social Security (1985) where Wilcox J said:
There is a plethora of decisions, arising in various contexts but predominantly matrimonial cases 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 for forever.
31. Following the principles set out above the Tribunal considered that Mrs Abu Khalaf’s residence is the home in which she stays in Oman.”[20]
LEGISLATIVE BACKGROUND
[19] see [31] below
[20] T documents V06/531 at 221
The Secretary’s power to cancel a social security payment
NSA and PPP are both described as a “social security benefit” as that term is defined in s 23(1) of the SS Act. A social security benefit is encompassed within the expression “social security payment” that is also defined in s 23(1).
Section 80 of the Social Security (Administration) Act 1999 (SSA Act) gives the Secretary the power to cancel or suspend a social security payment. It provides:
“(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
(2) Subsection (1) does not authorise the Secretary to make a determination if:
(a)the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and
(b)the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.”
A decision to cancel a social security payment must be regarded as a determination adverse to the recipient. Therefore, the date of effect of the determination is determined by reference to Subdivision D of Division 9 of Part 3 of the SSA Act. That is the effect of s 118 in relation to all social security payments other than carer payments.[21] Sections 118 – 120 are generally concerned with a decision to cancel payment in particular circumstances. The circumstances in which the decisions were made in this case do not come within any of them. Therefore, the catch all provision in s 118(13) of the SSA Act applies. It provides:
“In any other case, an adverse determination takes effect:
(a)on the day on which it is made; or
(b)if a later day is specified in the determination, on that day.”
[21] s 118(1)(c)
Qualifications for newstart allowance
NSA is paid by reference to periods. The criteria that a person must meet in order to be qualified for a NSA must be met in respect of each period. Those criteria are set out in Part 2.12 of the SS Act. Of relevance in this case is the criterion that the person “is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7)”.[22] In so far as it is relevant in this case, s 7(7) provides that a person is exempt from the residence requirement in respect of a period if:
“immediately before the period commenced, the person had been residing in Australia for a continuous period of at least 10 years, being a period commencing on or after 26 February 2001”.[23]
[22] s 593(1)(g)(ii)
[23] s 7(7)(b)
Section 623A(1) the SS Act sets out a further hurdle that must be met before a person is entitled to receive a NSA. As now drafted, it provides that:
“Subject to this section, a person who:
(a)has entered Australia on or after 1 January 1993; and
(b)has not been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks;
is subject to a newly arrived resident’s waiting period.”
There are exceptions to s 623A(1) but none is relevant in this case as Dr Hussein did not hold an entry visa before the section came into operation on 1 September 2004.[24] One of those exceptions, set out in s 623A(3)(a), applies if a person, immediately before s 623A(1) commenced, a person held a valid designated temporary entry permit for a continuous period of 26 weeks.
[24] s 623A was substituted by the Social Security Legislation Amendment Act 1999 (Act No 109 of 1994), s 25(1) and see also s 2(5) as to the date of its operation.
If a person is subject to a newly arrived resident’s waiting period, the period starts from the day on which that person became an Australian resident. That is the effect of s 623B(1). If a person is the holder of a valid designated temporary entry permit that was continued in force as a temporary visa by regulations made under the Migration Reform Act 1992 and that temporary visa was in force before the person was granted his or her permanent visa, the newly arrived resident’s waiting period is 26 weeks. That period is calculated from the day on which the designated temporary entry permit was granted to that person.[25] In all other cases, the duration of the newly arrived resident’s waiting period is 104 weeks. That is to say, “… the newly arrived resident’s waiting period ends when the person has been an Australian resident and in Australia for a period of, or periods totalling, 104 weeks.”[26]
[25] s 623B(2)
[26] s 623B(3)
Qualifications for parenting payment
The criteria that a person must meet in order to be qualified for a parenting payment are set out in s 500[27]. Among them is that “the person is an Australian resident”.[28] A further criterion that must be satisfied in the case of a person in Mrs Abu Khalaf’s situation is one of those in s 500(1)(d). Of relevance in this case are that:
“(i) …
(ii)the person has, at any time, been in Australia for a period of, or periods adding up to, at least 104 weeks during a continuous period throughout which the person was an Australian resident;
(iii)the person has a qualifying residence exemption for a parenting payment.”
[27] Mrs Abu Khalaf is paid parenting payment at the partnered rate in accordance with s 503(b).
[28] s 500(1)(b)
A “qualifying residence exemption” has the meaning given in ss 7(6) and 7(6AA).[29] Those sections give such an exemption to a person who is either a resident of Australia and a refugee or former refugee or a family member of such a person. Neither Dr Hussein nor Mrs Abu Khalaf is a refugee of former refugee. A person also has a qualifying residence exemption if the holder of a visa in a class of visas determined by the Minister for the purposes of s 7(6AA). The Minister has not made any relevant determination that applies to the visas held by Dr Hussein and Mrs Abu Khalaf.
[29] s 7(1)
CONSIDERATION
It is clear from the qualifications for a NSA and for PPP that a person must be both in Australia and an Australian resident for 104 weeks in order to meet the newly arrived resident’s waiting period. It is not enough to have been an Australian resident for a period of, or periods totalling, 104 weeks if the person was not in Australia. Equally, it is not enough to have been in Australia for that length of time unless the person was also an Australian resident.
Have they been “in Australia” for a period totalling 104 weeks?
Quite apart from whether or not they are Australian residents, neither Dr Hussein nor Mrs Abu Khalaf has been “… in Australia for a period of … at least 104 weeks …” let alone “… for a period of, or periods totalling 104 weeks …” when they applied for NSA and PPP respectively. The reference in ss 500(1) and 623A(1)(b) to a person’s being “in Australia” must be a reference to their being physically present in Australia. The reference stands in stark contrast to the person’s being an “Australian resident”, which is specified as an additional criterion. At the time that they applied for the NSA and the PPP, they had been “in Australia” for a period a few days short of 26 weeks. In view of that, neither was qualified for an NSA or a PPP at the time they were paid to them.
Effect of amendments to the new resident’s waiting period relating to a NSA
Section 500(1) has specified a period of 104 weeks since the PP was inserted in the SS Act in 1997.[30] In relation to the NSA, s 623A(1)(b) has only specified a period of 104 weeks since its amendment by the Further 1998 Budget Measures Legislation Amendment (Social Security Act) 1999.[31] Between 1994 and 1999 when it took its current form, s 623A(1) provided:
“Subject to this section, a person who:
(a)has entered Australia on or after 1 January 1993; and
(b)holds a permanent resident visa;
is subject to a newly arrived resident’s waiting period.”
At the time, s 623B(3) related to a person in Dr Hussein’s position. It provided that “… the newly arrived resident’s waiting period ends 26 weeks after the day on the person was granted his or her permanent visa.” As he had entered Australia after 1 January 1993 and held a permanent resident visa, he would have had to wait 26 weeks before he was paid a NSA.
[30] Social Security Legislation Amendment (Parenting and Other Measures) Act 1997, s 3, Schedule 1, Part 1(86)
[31] s 3, Schedule 5(14)
Mrs Abu Khalaf could not meet the criterion relating to the new resident’s waiting period for a PPP at any time. Assuming for the moment that Dr Hussein met the 26 week period specified in s 623A(1)(b) as it enacted before its amendment in 1999, that would not assist him in his quest to be paid a NSA. The qualifications for a NSA must be met in relation to each period for which NSA is paid. That means that the criteria that are prescribed at that time in relation to that period are those that he must meet. It is clear from its reference to a person’s being qualified in respect of a period that the SS Act does not leave any room for me to have regard to the possibility of Dr Hussein’s having met the qualifications that applied, and that he might have met, in relation to a previous period.
Sections 623A and 623B were amended by the Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Waiting Period Amendment Act). Those amendments do not affect the provisions to which I have referred but Dr Hussein and Mrs Abu Khalaf drew the SSAT’s attention to s 3 of that Act. It provided, in part, that:
“(1) To avoid doubt, any provision in this Act imposing a waiting period does not apply to:
…
(e)a person who is a family member of an Australian citizen;
(f)a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years;
(g)a person who is a family member of a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years.
(2)For the purposes of subsection (1), family member has the same meaning as in subsection 7(6D) of the Social Security Act 1991.”
The expression “permanent resident” is not defined in either the SS Act or the amending legislation. Before the SSAT, it was argued that it should be interpreted by reference to the meaning given to it in the Migration Act 1958 (Migration Act). It is not defined in that legislation it was submitted, but rather it was said to have been defined in r 1.03 of the Migration Regulations 1958 (Migration Regulations). That regulation defines the expression “Australian permanent resident”. Paragraph (a) says that it means “in relation to an applicant for a Return (Residence) (Class BB) visa or a Resident Return (Temporary) (Class TP) visa -- a non‑citizen who is the holder of a permanent visa”. That definition, it was further submitted, should be used to interpret s 3 of the Waiting Period Amendment Act.[32]
[32] T documents V06/530 at 118
There are three problems with this submission. The first was raised by the SSAT. As it observed, the Migration Act does not contain any general definition of the expression “permanent resident”. The definition to which reference was made in the submissions is limited by its own terms to an application for a resident return visa. It can have no application to the general concept of a “permanent resident”.
The second problem arises from the fact that the reference relied upon appears in the Migration Regulations. They are made under the Migration Act and not the SS Act. The Migration Act and Migration Regulations are concerned with migration law. Migration law prescribes those who may enter and remain within Australia and the conditions upon which they may do so when they are not citizens of this country. It is not concerned with the payment of income maintenance or other monetary benefits. That is a topic regulated by, among others, the SS Act. Unless a provision of the Migration Act (or the regulations made under it) or a concept governed by it is expressly incorporated in the SS Act or by necessary implication or Parliament has intended that it have more general application, it cannot be incorporated.[33] So, for example, the expression “permanent visa” in the SS Act is defined in s 7(1) to have the same meaning as in the Migration Act. The term “Australian citizen” is not defined in s 7(1) but it is a concept that derives from the Australian Citizenship Act 1948 (Australian Citizenship Act) and so must be determined by reference to its terms. There is nothing that suggests that expressions defined in the Migration Act and the Migration Regulations are intended to have a wider application. As I have said, they are concerned with migration law and not with issues relating to income maintenance. There is little, if anything, in common between the subject matters of the migration law and the SS Act. Therefore, there is nothing on which I can base a conclusion that a provision of the Migration Regulations should be used to assist me in interpreting provisions of the SS Act.
[33] If two Acts are in pari materia, and so dealing with the same matter or subject, the definitions used in one Act may be used to interpret undefined words in the other if that would lead to a consistent and coherent use for those words e.g. Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29 at 44 per Latham CJ. There are occasions on which the intention of Parliament in enacting an Act may be ascertained by reference to the terms of regulations made under that Act. That may occur where the Act “… provides a framework built on contemporaneously prepared regulations”: Hanlon v Law Society [1981] AC 124 at 193 per Lord Lowry. The Migration Act and Migration Regulations and the SS Act are not a framework of this sort, have not been prepared contemporaneously and are not directed to related subject matter.
The third problem lies in the interpretation of the Waiting Period Amendment Act. Section 3 is more in the nature of an objects clause than a substantive provision. It assists in the interpretation of the provisions by revealing Parliament’s intention although its intention must be gleaned by reference to the whole of the Act and not just s 3.[34] Viewed in that way, s 3 of the Waiting Period Amendment Act cannot be read as incorporating a further qualification to the waiting period provisions and ameliorating them in some way. Rather, it should be read as a statement of intention and as an attempt to express, in simple language, the somewhat complex provisions it enacts. In providing that a waiting period does not apply to “a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years,” s 3(1)(f) should be read as a shorthand reference to a person who has been an Australian resident and in Australia for the requisite period. It should not be read as a reference to a person who may be regarded as a permanent resident for the purposes of unrelated legislation i.e. the Migration Act and Migration Regulations.
[34] Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at 579 per Evatt and Northrop JJ.
If it is suggested that s 3(1)(g) is relevant, I have concluded that it does not assist Dr Hussein and Mrs Abu Khalaf in this case. For the reasons I have given, s 3(1)(g) is not to be read as a substantive provision. Its opening words show that it is intended “To avoid doubt …”. That shows that there must be another provision that sets out the substantive provision. There is such a provision but it is not found in relation to the provisions relating to amendments to the waiting periods in respect of the NSA and PPP. Even if there were, neither Dr Hussein nor Mrs Abu Khalaf can be regarded as a being a “… family member of a person who has lawfully been a permanent resident of Australia at any time for a continuous period of not less than two years.” None of their family has been a permanent resident in the sense that I understand it to be i.e. an Australian resident and residing in Australia for the requisite period. Even when their family has lived in Australia for a continuous period of two years, they will not be able to rely on their being family members of their children. That follows from that they can only be a family member of their partner or of their parent but not of their child.[35]
[35] Section 7(6D) defines a “family member” for the purposes of s 7(6AA) in relation to a person as meaning a partner of the person, a dependent child of the person or another person who, in the Secretary’s opinion, should be treated for the purposes of this definition as a person described in either of those categories. I have already concluded that Dr Hussein and Mrs Khalaf do not qualify for a qualifying residence exemption under s 7(6AA).
The same reasoning leads to the conclusion that s 3(1)(e) of the Waiting Period Amendment Act would not assist them as a parent cannot be “a person who is a family member of an Australian citizen” when that Australian citizen is the person’s child. As the Secretary has not made any decision under (c) of the definition of “family member” in s7(6D) of the SS Act to treat Dr Hussein or Mrs Abu Khalaf as a person described in (a) or (b) of the definition i.e. as a partner of the person or as a dependent child of the person, I cannot exercise his power and do so myself.[36] Even if I had the power, it is difficult to see on what basis I would exercise the discretion in favour of Dr Hussein or Mrs Abu Khalaf but I will not explore the matter further as it has not been the subject of submissions.
[36] see Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659 at [24‑29] per Weinberg J.
When did Dr Hussein and Mrs Abu Khalaf become Australian residents?
In order to be qualified for the NSA and the PPP, Dr Hussein and Mrs Abu Khalaf must have been Australian residents for a period of 104 weeks. The term “Australian resident” is defined in s 7(2) of the SS Act as:
“… 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.
(iv)(Omitted)”
As Dr Hussein and Mrs Abu Khalaf hold permanent visas, they meet the second limb of the definition of “Australian resident”. That leaves the open the question whether they meet the first limb i.e. whether they reside in Australia. In deciding whether they do so reside, I must have regard to s 7(3) which provides that:
“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 the 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 the 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.”[37]
[37] Section 7(4) of the Act specifies that residence in certain external Territories is taken to be residence in Australia but its provisions and related provisions in s 7(4AA) are not relevant in this case.
I must also have regard to the particular context in which the expression “Australian resident” appears in s 623A(1)(b) of the SS Act. That refers to a person who “has not been an Australian resident and in Australia for a period of, or periods totalling, 194 weeks”. The reference to “periods totalling” 104 weeks as well as to “a period of” 104 weeks leads to the conclusion that a person does not have to be in Australia continuously in order to be regarded as an Australian resident. That this is so is emphasised by the fact that s 7(3)(f) requires regard to be had to the frequency and duration of a person’s travel outside Australia.
In an earlier case of Re Firdousi and Secretary, Department of Employment and Workplace Relations,[38] I set out various authorities considering the words and expressions “reside” as well as to “resident”, “ordinarily resident” and “temporarily resident”. In this case, only the word “reside” is relevant but my conclusions in the earlier case are equally applicable:
“26. It is clear from these authorities that the notion of ‘reside’ and ‘ordinarily reside’ have common elements when used in ordinary language. Both require that there be some physical presence and some intention to live or dwell in a place. The difference between them comes from differences of degree. That is to say, it comes from differences of degree in physical presence and differences of degree of intention. A person who, for example, lives or dwells continuously, or relatively so, in a place and intends to do so may be said to be ordinarily resident in that place. A person who lives or dwells in a place for only a short period and who intends nothing else may be said to be resident, but not ordinarily resident, in that place for that period. Given the myriad of ways in which people arrange their affairs, it is impossible to go beyond generalities when considering the meaning of the words in the absence of any particular context. It is impossible to point to the precise degree at which a person will be said to be a resident in a place, as opposed to a visitor, and the precise point at which a person will not only be resident in a place but also ordinarily resident there. Once the words are interpreted in a particular factual context, it may be possible to draw on that context to point to the degree with some precision.
27. The context in this case is that of s. 7(2C) but, on a wider scale, that of ss. 7(2A) to 7(2D)… Section 7(2C) refers only to the word ‘residing’ without more. By way of contrast, ss. 7(2B) and (2D) as well as s. 7(2E), to which I will come shortly, refer to a person who was both ‘residing in Australia’ and ‘temporarily absent from Australia’ on 26 February 2001. Section 7(2A) makes no reference to residence but to a person’s being ‘in Australia’ on 26 February 2001 or to the person’s being ‘in Australia’ for 12 months, or for periods, totalling 12 months in the period of two years before 26 February 2001. Clearly then, the section is drawing a distinction between a person who was ‘in Australia’ and a person who was ‘residing in Australia’ but ‘temporarily absent from Australia’. It is doing so in a context in which a person who has been ‘in Australia’ for 12 months, or for periods, totalling 12 months in the period of two years before 26 February 2001 could, in ordinary language, be thought to be resident, or even ordinarily resident, in Australia during those periods. Certainly, it may be that such a person might be thought to be ‘residing in Australia’ had that person been absent from Australia on 26 February 2001 and so meet one of the criteria in ss. 7(2B), (2D) or (2E). In drawing the distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough. That does not mean that a person must necessarily be in Australia for any substantial period before being considered to reside here. Residence of the type required by s. 7 must start somewhere and, provided the evidence otherwise points to it, a person could be regarded as resident in Australia even if physically present only for a short period. As these matters are frequently judged in retrospect rather than at the time, residence over that short period can be assessed in light of a person’s subsequent actions.[39]
28. That suggestion is underlined when regard is had to ss. 7(2B)(b), (2D)(b) and (2E)(b). The reference to being ‘temporarily absent from Australia’ in relation to a person who ‘was residing in Australia’ suggests that the intention required of the person is to be resident in Australia when not ‘temporarily absent from’ it. Having regard to the ordinary use of the expressions ‘resident’ and ‘ordinarily resident’, that suggests that the word ‘resident’ is used in the provisions in the Act in a manner more closely aligned with the expression ‘ordinarily resident’ than with the expression ‘resident’ as they are commonly used. That is to say, the degree of physical presence and of intention to live or dwell in a place before there can be a finding that a person resides in Australia will be drawn more closely aligned to the degree that would be required of a person’s being ordinarily resident than might be required in another context.
29. That conclusion is further underlined when regard is had to s. 7(3) of the Act. It specifies a number of matters to which a decision-maker must have regard in deciding whether or not a person is residing in Australia. I refer in particular to the criteria in ss. 7(3)(e) and (f) i.e. the frequency and duration of a person’s travel outside Australia and whether the person intends to remain permanently in Australia. Both suggest that the concept of residency in s. 7 is directed to a person’s main or primary residence being in Australia or, putting it another way, to that person’s being ordinarily resident in Australia.
[38] [2005] AATA 1304; (2005) 89 ALD 436
[39] I note that this context may include events that occur after the period ending on 26 February 2001 as well as before. In Gregory v Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774 at 778, Dixon J decided that a taxpayer was a resident in the Northern Territory within the meaning of s 5A of the Income Tax Assessment Act 1922 (Cth) while also a resident of Western Australia. He had some regard to the taxpayer’s having negotiated for the lease of a flat in Darwin after the end of the financial year he was considering:
This analysis is equally applicable in this case. I have summarised the main facts that Dr Hussein and Mrs Abu Khalaf referred to at the hearing. On the basis of those facts, I have no doubt that they intended to reside in Australia and to do so permanently. Those facts do not, however, establish that they resided in Australia during the period. The periods of the presence in Australia were short and almost fleeting when compared with the amount of time that they spent outside Australia. They established certain links with Australia during their visits. Those links are in the nature of driver’s licences, a bank account, Medicare cards and an Australian passport for one of their children. Despite their wishes that it were otherwise, Dr Hussein’s employment was outside Australia. Although they did not own the accommodation in which they lived overseas between 1994, it is the place where they kept their possessions. They did not own real estate in Australia and did not lease any on anything other than a short term basis sufficient for the length of their visits over the years. There is no evidence that they left any personal property in Australia while they were overseas. Equally, there is no evidence of any member of the family’s having formed close personal ties with any person in Australia over the years.
Having regard to all of these matters and to all of the evidence, I am not satisfied that Dr Hussein and Mrs Abu Khalaf resided in Australia before their latest arrival on 2 December 2005. All that they had before that date was an intention to live in Australia permanently and links with Australia that would make that transition easier when they chose to take up residence. They had received payments under the social security system during those years but that did not create anything other than a link. It was only when they came to Australia on 2 December 2005 that their intention to reside here was matched with a physical presence that was more than transitory and that reflected that intention. It was the first time that their actions matched their intention to live in Australia and so to reside in Australia rather than to live in, for example, Oman, and visit Australia. It follows that they were not Australian residents as that expression is defined by s 7(2) of the SS Act. Therefore, they are subject to the 104 week waiting period before either a NSA or a PPP may be paid to them. Therefore, the decisions to cancel Dr Hussein’s NSA and Mrs Abu Khalaf’s PPP were correct.
For the reasons I have given, I affirm:
1. the decision of the Social Security Appeals Tribunal dated 1 June 2006:
(1)affirming a decision of a delegate of the respondent dated 4 January 2006 to cancel Dr Hussein’s NSA; and
(2)affirming a decision of a delegate of the respondent dated 4 January 2006 to cancel Mrs Abu Khalaf’s PPP.
I certify that the thirty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Jayne Rathjen Associate
Date of Hearing 10 October 2006
Date of Decision 15 January 2007
For the Applicants self represented
Solicitor for the Respondent Ms K. Paul, departmental advocate
“I think that I am entitled to take into account the fact that he negotiated for and took a lease of a flat in Darwin although the lease was after the period with which the appeal is concerned. …
… It is true that the most permanent arrangements were made outside this period. But the English cases show that events which occurred before and after a given period may be considered as throwing light on and disclosing the significant habits and conduct within the period.”
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