Jin and Secretary, Department of Family and Community Services and Indigenous Affairs

[2006] AATA 1009

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/536

GENERAL ADMINISTRATIVE DIVISION		)
Re		YONGTANG JIN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES AND INDIGENOUS AFFAIRS  

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member

Mr S Frost, Member

Date27 November 2006  

PlaceSydney  

Decision The decision under review is affirmed.

.................[Sgd]........................     

Ms N Bell
  Senior Member             

SOCIAL SECURITY – Age Pension – Ten Years Qualifying Australian Residence –Resides in Australia – Australian Citizen or Holder of Permanent Visa – The Decision Under Review is Affirmed   

Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745

Re Khoo and Secretary, Department of Social Security (1990, Q89/34)

Social Security Act (1991)

Social Security (Administration) Act 1999

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      In August 2005, at the age of 79, Mr Jin applied for the age pension.  He had reached pension age but Centrelink rejected his claim because he did not have ten years qualifying Australian residence. 

2.      That rejection was confirmed by an Authorised Review Officer and also by the Social Security Appeals Tribunal.  Mr Jin now asks this Tribunal to review the decision.

3.      The decision is affirmed.  This means that Mr Jin is unsuccessful.  We set out our reasons below.

ENTITLEMENT TO PENSION

4. Age pension entitlement is set out in s 42(1) of the Social Security Act 1991. One of the requirements is that a person has reached pension age. For Mr Jin this is 65 years of age, and he had clearly met this requirement in August 2005.

5.      But he also needs ten years qualifying Australian residence.  He will meet this requirement if and only if he “has, at any time, been an Australian resident for a continuous period of not less than ten years” (section 7(5)(a) of the Act).

6.      To be an Australian resident, Mr Jin must satisfy two requirements.  First, he must reside in Australia.  Second, he must be either an Australian citizen or the holder of a permanent visa.  This is the effect of s 7(2) of the Act.

7.      What this all means is that, for Mr Jin’s appeal to be successful, he must have been:

§  for a continuous period of not less than ten years, residing in Australia; and

§  for a continuous period of not less than ten years, either an Australian citizen or the holder of a permanent visa.

These are the two tests that he must satisfy at the date he applied for the age pension (8 August 2005) or within 13 weeks after that date: sub-clause 4(1) in Schedule 2 to the Social Security (Administration) Act 1999.  It is not sufficient that he satisfies one of the tests.  He must satisfy both of them. 

THE EVIDENCE IN OUTLINE

8.      The evidence that Mr Jin and his son, Jesse, gave to the Tribunal was not disputed by Centrelink.

9.      Mr Jin was born in China on 18 July 1926.  He first came to Australia on a visitor’s visa, with his then wife, on 19 October 1994.  After about six months they decided that they wanted to make Australia their home.  They applied for permanent residency, which was granted on 11 September 1995.

10.     On 16 October 1995 Mr Jin and his wife returned to China to attend to “unfinished business”.  Mr Jin had never been a business man and therefore had no “business” of that kind to attend to.  The “unfinished business” was that Mr and Mrs Jin needed to tie up loose ends – including packing up their belongings, settling their affairs in China and saying goodbye to relatives and friends. 

11.     According to Jesse Jin, one of the reasons for his parents’ return to China in October 1995 was for his father to have a medical check-up.  Mr Jin was unfamiliar with the Australian health system and felt more comfortable having this check-up carried out in China.  The check-up revealed a number of conditions that needed to be dealt with, and as a result Mr Jin stayed much longer in China than he had originally intended. 

12.     With the treatment of his medical conditions, some of them requiring surgery, he was not able to return to Australia until 20 April 1998.  Since that date Mr Jin has lived continuously in Australia, although he has returned to China a number of times.  He visited China three times in 1998, twice in 1999, and once in each of the years 2000, 2001, 2003 and 2004.  The absences from Australia have ranged from five days to 72 days. 

13.     Despite these absences from Australia, Centrelink accepts that Mr Jin has “resided in Australia” since 20 April 1998, the date of Mr Jin’s second arrival in Australia.  Therefore, in Centrelink’s view, Mr Jin had been an Australian resident for about seven and a half years by the time he applied for the age pension, instead of the required ten years.

14.     Mr Jin, on the other hand, says that he has been an Australian resident since before his return to China on 16 October 1995, and probably since 11 September 1995, when he was granted permanent residency.

15.     This is the narrow area of disagreement between Mr Jin and Centrelink, and the only question the Tribunal has to decide. 

CONSIDERATION OF THE ISSUE

16.     It is not in dispute that Mr Jin had been the holder of a permanent visa “for a continuous period of not less than ten years” when he applied for the age pension.  But that is not enough.  That is only one of the requirements he has to satisfy.  He must also have “resided in Australia” for a continuous period of not less than ten years.

17.     In practical terms, Mr Jin needs to have “resided in Australia” continuously since at least 7 November 1995.  It is our task to decide whether Mr Jin resided in Australia from, or on any date prior to, 7 November 1995 and, if he did, whether he continuously resided in Australia from that date for a period of at least ten years.

18.     The Act, in section 7(3), says that in deciding whether a person is residing in Australia, we must have regard 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.

19.     We must have regard to the five specific matters set out in paragraphs (a) to (e).  We must also ask ourselves whether there are any other matters relevant to determining whether, on a date no later than 7 November 1995, Mr Jin intended to remain permanently in Australia.  If there are any such matters, we must have regard to them as well. 

20.     In Re Clifopoulos and Secretary to the Department of Social Security (1994) 36 ALD 745 a Deputy President of the Tribunal noted that in considering the factors in section 7(3), the decision-maker is also entitled to consider the converse of each factor: for example, when we consider the nature of Mr Jin’s accommodation in Australia, we are also entitled to consider the nature of his accommodation outside Australia.

21.     But the Deputy President also pointed out in Clifopoulos that the factors should not be applied in a mechanical way. 

22.     Some of the matters may point in one direction, others in the opposite direction.  Some may point more strongly than others.  It may be, in any given case, that more of the matters point towards a finding of residence than against, but that does not necessarily mean that the applicant will succeed. 

23.     It is not just a matter of adding up the number of factors “for” and comparing that sum to the number of factors “against”.  The relevance and relative significance of the answers in relation to each of the factors, in the individual case, will guide the decision-maker to the right outcome. 

24.     We now turn to each of the matters in s 7(3). 

accommodation

25.     During most of the period 20 October 1994 to 16 October 1995, Mr and Mrs Jin stayed with their son Jesse.  They did not own or rent property in Australia during this period.  Towards the end of the period Jesse Jin was looking to buy a home unit and it was his intention that his parents would live with him and his family in that property, although probably not permanently.

26.     When they first came to Australia in October 1994, Mr and Mrs Jin vacated, but did not surrender, their accommodation in Beijing.  They returned to this same accommodation in October 1995 and continued to occupy it until they came back to Australia in April 1998. 

family relationships

27.     Mr Jin’s son has lived in Australia since at least 1994, and his daughter since 1995.  When he returned to China in October 1995 Mr Jin had a brother and sister in China, but at some distance from Beijing where Mr Jin lived.

employment, business or financial ties

28.     Mr Jin has never worked, or had any business ties, in Australia.  His entire working life was spent in China.  He did not work when he was back in China from 1995 to 1998.

29.     In 1995 he had a very small bank account in Australia.

assets

30.     There is no evidence that Mr Jin had any assets in Australia in 1995.  Whatever assets he had were in China.  One of the reasons for his return to China in 1995 was to pack up his belongings so they could be brought to Australia.

travel outside australia

31.     Any travel undertaken outside Australia since 1995 has been to China, on a total of ten occasions.  The longest absence was two and a half years, from October 1995 to April 1998.  The other absences ranged from five days to 72 days.

any other relevant matter

32.     Mr Jin obtained permanent residency in September 1995.  We have no difficulty concluding that from the time that he applied for permanent residency, Mr Jin had it in mind that he would one day relocate permanently to Australia.

33.     Shortly after obtaining permanent residency, he did what he needed to do for the purpose of taking up residence in Australia: he returned to China so that he could tie up loose ends.  Once he had done that, he would be ready to start living in Australia.

CONCLUSION

34.     We find that Mr Jin was not residing in Australia before his first trip back to China in October 1995.  We find that he then had an intention to stop residing in China, and when he had done that, to start residing in Australia.  By that stage he had done almost everything necessary to enable him to change his place of residence from China to Australia.  But we find that he was not yet “residing in Australia”.  At that point he still resided in China.  He resided in China until he left that country, on a permanent basis, in April 1998. 

35.     Jesse Jin submitted that Mr Jin’s case was analogous to that of the applicant in Re Khoo and Secretary, Department of Social Security (1990, Q89/34).  However, in that case the applicant was found to have had continuous Australian residence despite visits to Malaysia which were extended for medical reasons. 

36.     Mr Jin’s case is different.  He had not started “residing in Australia” before his extended visit to China.  In Mr Jin’s case it is not a question whether he had interrupted his “continuous residence” but whether he had established his residence here in the first place.  The question is whether he had started “residing in Australia” no later than 7 November 1995.  We find that he had not.

37.     The decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Mr S Frost, Member.

Signed:         ............[ Sanjiv Shah ]............
   Associate

Date of Hearing  12 October 2006
Date of Decision  27 November 2006

Representative for the Respondent        Centrelink Legal Services