Iqbal; Secretary, Department of Family and Community Services

[2004] AATA 804

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 804

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/336

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And RAJA IQBAL

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date2 August 2004

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Iqbal was not eligible to receive a certificate of Australian residence.

..............................................

Ms N Bell, Senior Member

SOCIAL SECURITY – Application for Certificate of Residence – Residence – Whether Temporarily Absent

Social Security Act 1991

Hafza v Director-General of Social Security (1985) FCR 444

REASONS FOR DECISION

2 August 2004 Ms N Bell, Senior Member

1. The decision under review is the decision of the Social Security Appeals Tribunal (“the SSAT”) on 16 February 2004, to set aside the decision of the Applicant on 25 June 2003 (that Mr Iqbal is not eligible to receive a certificate of Australian residence), and to remit the matter to the Chief Executive Officer of Centrelink with directions that a determination under section 7(2E) of the Social Security Act 1991 (“the Act”) be made in relation to Mr Iqbal in accordance with law (T4).

2. Mr Iqbal is a New Zealand citizen, having migrated to New Zealand from Pakistan. The remaining concession available to New Zealand citizens, in relation to social security entitlement, is that they may qualify for protected special category visa holder status (“protected SCV”). The relevant provision in the Act is section 7 which provides a number of instances where protected SCV holder visa status may be conferred.

3.      It is not in dispute that the Respondent first arrived in Australia with a view to settling here on 4 March 2000.  He left for Pakistan in July 2000.  The Respondent was married in Pakistan in October 2000 and seriously injured there in a motor bike accident in November 2000.  Following illness due to infection, he did not return to Australia until June 2001.  Thereafter, the Respondent travelled frequently and for significant periods outside Australia.

4.      Sections 7(2) to 7(3) provide as follows:

“

7.(2)  An Australian resident is a person who:

(a)       resides in Australia; and
(b)       is one of the following:

(i)        an Australian citizen;

(ii)       the holder of a permanent visa;

(iii)       a special category visa holder who is a protected SCV holder.

7.(2A)  A person is a protected SCV holder if:
(a)       the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or
(b)       the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.

7.(2B)  A person is a protected SCV holder if the person:

(a)       was residing in Australia on 26 February 2001; and
(b)       was temporarily absent from Australia on 26 February 2001; and
(c)       was a special category visa holder immediately before the beginning of the temporary absence; and
(d)       was receiving a social security payment on 26 February 2001; and
(e)       returned to Australia before the later of the following:

(i)        the end of the period of 26 weeks beginning on 26 February 2001;

(ii)       if the Secretary extended the person’s portability period for the payment under section 1218C—the end of the extended period.

7.(2D)  A person who, on 26 February 2001:
(a)       was residing in Australia; and
(b)       was temporarily absent from Australia; and
(c)       was not receiving a social security payment;

is a protected SCV holder at a particular time if:

(d)       the time is during the period of 12 months beginning on 26 February 2001; or
(e)       the time is after the end of that period, and either:

(i)        at that time, a determination under subsection (2E) is in force in respect of the person; or

(ii)       the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

7.(2E)  A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:
(a)       the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or
(b)       the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

7.(2F)  If a person makes an application under subsection (2E), the Secretary must make the determination if:
(a)       the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and
(b)       the application was made within whichever of the following periods is applicable:

(i)        if paragraph (2E)(a) applies to the person—the period of 12 months beginning on 26 February 2001;

(ii)       if paragraph (2E)(b) applies to the person—the period of 3 years beginning on 26 February 2001.

The Secretary must give a copy of the determination to the person.

7.(2G)  The Secretary must make a determination under this subsection in respect of a person if the person is a protected SCV holder because of subsection (2B). If the Secretary is required to make such a determination:
(a)       the determination must state that the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; and
(b)       the determination must be made within the period of 6 months of the person’s return to Australia; and
(c)       a copy of the determination must be given to the person.

7.(3)  In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a)       the nature of the accommodation used by the person in Australia; and
(b)       the nature and extent of the family relationships the person has in Australia; and
(c)       the nature and extent of the person's employment, business or financial ties with Australia; and
(d)       the nature and extent of the person's assets located in Australia; and
(e)       the frequency and duration of the person's travel outside Australia; and
(f)        any other matter relevant to determining whether the person intends to remain permanently in Australia.”

5. The Respondent was not in Australia on 26 February 2002, did not return to Australia until 29 June 2002, and was not in receipt of a social security payment during this period. It follows that the only avenue available to the Respondent, for qualification for protected SCV status, is that provided by section 7(2E)(a) which provides that a person normally residing in Australia on 26 February 2002, but temporarily absent from Australia on that day, can ask that a determination to that effect be made. Section 7(2F) imposes some time requirements in certain circumstances.

6. Section 7(3) provides for some matters to which the Tribunal must have regard in considering this question.

7.      The Respondent’s evidence was that when he came to Australia in March 2000, he took a furnished room in the flat of a friend who lived in Brighton Le Sands and when that friend bought a house in Leumeah, he took a furnished room in his friend’s house.  He said he paid rent of $80.00 per week, but did not pay rent when he was away from Australia.  The Respondent said that before he left Australia for Pakistan in July 2000, he did not do anything about securing a place to live because it was his intention to stay with his friend once again on his return.  He said he left some of his clothing and papers in the room at his friend’s house when he went to Pakistan.

8.      The Respondent said that it was also his intention to arrange for his wife to come to Australia and, to this end, obtained a visa for her.  He conceded that she has not yet come to Australia and noted that she is pregnant with their first child.  In Pakistan his wife lives with the Respondent’s parents and sometimes stays at her parents’ house.

9.      The Respondent has no family in Australia.

10.     The Respondent said that this year he began a business, as a sole distributor for a company in Pakistan selling marble in the Pacific region.  He said he operates the business from home and has no employees.  The Respondent described it as a going concern with a regular turnover but said no money passes through his hands and that the supplier and the purchaser deal directly with each other on matters of invoice and payment.  So far he has exported two containers of marble to Australia and one to New Zealand.  The supplier makes payments to the Respondent in Pakistan, into an account the Respondent holds there.

11.     The Respondent said he also has a Westpac bank account in Australia.  He said he has no other assets in Australia but expects to inherit some land in Pakistan.

12.     The Respondent said he was studying in New Zealand and has made inquiries about further studies in Australia but has not yet begun any study here or enrolled in any course.

13.     The Respondent said that his main purpose in going to Pakistan in June 2000, was to visit his parents, perhaps find a wife, and to make a pilgrimage.  He said he had a return ticket (sighted by the Tribunal) and had intended to return in about January but his motor bike accident kept him there longer than planned.

14.     The Respondent agreed that he had, since his return to Australia in July 2001, spent a lot of time out of Australia.  He estimated that he travels out of Australia quarterly, to Pakistan for an average of 6 to 8 weeks at a time and to New Zealand for an average of 2 to 3 weeks at a time. 

15.     The Respondent maintained that it was his intention, in March 2000, to return to Australia and remain on a permanent basis.

Consideration

16. The first and primary question to consider is whether the Respondent was resident in Australia as at 26 February 2001. In considering this question I had regard to the matters set out in section 7(3) of the Act.

17.     In relation to the Respondent’s accommodation in Australia, he had secured for himself a furnished room only, for which he did not pay rent when out of Australia.  He had not leased or purchased any property.  This does not suggest a continuity of association, as referred to in Hafza v Director–General of  Social Security (1985) FCR 444.

18.     As to his family relationships in Australia, the Respondent’s stated purpose in returning to Pakistan was, in part, to find a wife.  He did so and it was his evidence that his wife has not yet come to Australia.  The Respondent has no relatives in Australia and his family, who he has continued to visit regularly, resides in Pakistan.  This does not suggest attachment to, or permanence in, Australia.

19.     As to the Respondent’s employment, business or financial ties with Australia, he operates his business with no premises or staff in Australia (or indeed anywhere else).  I also note that, at the time of the Respondent’s application for residential status verification in January 2003, he had not yet started his business.  In any event, the Respondent’s evidence was that he is paid for his work in the business by a Pakistan company into a bank account in Pakistan.  It was also his evidence that he travels regularly and for extended periods, to Pakistan and to new Zealand, for his business.

20.     As to the frequency and duration of the Respondent’s travel outside Australia, document T36 outlines the Respondent’s travel outside Australia after his return from Pakistan in July 2001 as follows:

Arrival date	Departure Date
29 June 2001	11 December 2001
8 April 2002	6 May 2002
24 July 2002	19 August 2002
19 September 2002	12 November 2002
4 January 2003	4 February 2003
23 March 2002	15 April 2003
9 June 2003	current

Thus, based on these movement details, the Respondent has been present in Australia for a total of 11 months to a year, over the space of about 3 years.

21.     Whilst I appreciate that the Respondent’s intention to return to Australia in January 2001, was thwarted by his accident in Pakistan in October 2000, I do not consider that, when he left Australia in June 2000 he could be said to be “resident in Australia”.  The matters outlined above simply do not indicate that he was “resident in Australia”.

22.     It follows that the Respondent cannot satisfy section 7(2E)(b) and the determination sought by him could not be made.  It is therefore unnecessary to consider the remaining requirements, in section 7(2F), as to the times within which an application for determination is to be made.

Decision

23.     The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Iqbal was not eligible to receive a certificate of Australian residence.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Narelle Bell, Senior Member.

Signed:         Linda Blue.............................................
  Associate

Date of Hearing  5 July 2004
Date of Decision  2 August 2004
Solicitor for the Respondent     Ms Hannelore Schuster