JIRI POLMAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 760

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 760

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3482

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JIRI POLMAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date2 October 2009

PlaceHobart

Decision The decision under review is affirmed.  

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY - aged pension - overseas applicant - whether ordinarily resident in Germany - Tribunal concluded applicant ordinarily resident in Czech Republic - no International Agreement with Czech Republic - decision under review rejecting claim affirmed

Social Security Act 1991, ss7, 43

Social Security (Administration) Act 1999, s29(1)

Social Security (International Agreements) Act 1999, s6

Article 5 of the Agreement with the Federal Republic of Germany

McDonald v Director-General of Social Security (1984) 6 ALD 6

Casarotto and Australian Postal Commission (1989) 17 ALD 321

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Kenneth Dudley Taylor Ex Parte:  Natwest Australia Bank Limited [1992] FCA 296

Hafza and Director-General of Social Security (1985) 6 FCR 444

Firdousi and Secretary, Department of Family and Community Services [2005] AATA 1304

REASONS FOR DECISION

2 October 2009 Ms A F Cunningham (Senior Member)   

1.      The applicant, Mr Polman, has appealed a decision of the Social Security Appeals Tribunal (SSAT) made on 16 June 2008, which affirmed a decision of Centrelink rejecting his claim for age pension.  Mr Polman was not residing in Australia at the time his claim was lodged on 8 November 2007, but contends that he has German residence and is thus subject to the provisions of the International Social Security Agreement between Australia and Germany.  The SSAT however found that Mr Polman was ordinarily residing in the Czech Republic on the date he lodged his claim for aged pension and as a consequence was not entitled to application of the provisions of the International Agreement. 

2. Mr Polman represented himself at the hearing of his application for review and gave oral evidence by telephone. The T Documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Also received in evidence was a letter from Mr Polman dated 10 July 2009, and a bundle of various documents forwarded by Mr Polman to Centrelink and received by the Tribunal on 11 August 2009.

Background Facts

3.      The following background facts were not in dispute and I find accordingly.  Mr Polman was born in Czech Republic on 23 July 1942.  He lived in Australia from 1972 to 1992.  He was granted Australian citizenship on 18 September 1975. 

4.      On 23 July 1998 Mr Polman married Svetlana Mironcukova in the Czech Republic.  Mr Polman resides with his wife and two children (born in 2003 and 2006) in Hradec Kralove, Czech Republic. 

5.      Mr Polman completed and signed a claim for Australian aged pension on 10 October 2007 which was received by Centrelink International Services on 8 November 2007.  The form was also signed by the applicant's wife.  On the claim form Mr Polman indicated his postal and residential address as E. Benese 1557 Hradec Kralove, Czech Republic.

6.      The claim was rejected on 12 November 2007 on the basis that Mr Polman was a resident of the Czech Republic and not eligible to claim under the Australian-German International Agreement.  An authorised review officer affirmed the rejection on 22 February 2008.

The Evidence

7.      It was Mr Polman's evidence that he first made enquiries regarding his eligibility for an aged pension in April 2007 when he emailed Centrelink advising that he was an Australian citizen living in the Czech Republic and wished to apply for an aged pension.  On 26 April 2007 Mr Polman was advised that there is no International Social Security Agreement between Australia and the Czech Republic.  On 2 May 2007 he received an email from Centrelink which included a list of the countries with which Australia has an International Agreement.  The email advised that he could lodge a claim whilst residing in any of the countries on the list and that once the claim was finalised he would be free to move elsewhere. 

8.      Mr Polman then wrote to Centrelink on 20 May 2007 advising that he had the possibility of going to Germany from where he could lodge a claim for pension.  He was then advised by Julian Batchelor of Centrelink that he would need to establish permanent residency in Germany and advised of the address for the German Social Security office from where he could obtain the necessary forms. 

9.      On 14 June 2007 Mr Polman obtained permanent residency status in Germany and his address was listed as Schonbornstr.40 97353 Wiesentheid.

10.     Mr Polman states that on 31 July 2007 he contacted Mr Wagner in the German Social Security office in Bremen and requested that he send him the necessary documentation to his postal address in the Czech Republic.  Mr Polman stated in a letter to Ms Christine Ball of the Hobart Centrelink office dated 7 April 2008 that he requested that Mr Wagner send his application forms to his Czech Republic postal address:

"... as he knew that I only because of my pension took German residence to fulfil legal requirement to apply for my pension through German social security system, these forms subsequently I filled and sent to Central Link (sic)".

11.     In his evidence-in-chief Mr Polman stated that he had filled the forms in at his cousin's place (in Germany) and mailed them from the Czech Republic.  However under cross-examination he said that he had completed the forms in the Czech Republic during the course of the telephone call that he had with Mr Wagner who was in Germany at the time.  Mr Polman believes that he mailed the application forms from the Czech Republic because it would have been more expensive to send them from Germany. 

12.     It was Mr Polman's evidence that he had been residing at his cousin's place in Germany on and off for many years because of the lack of work opportunities in the Czech Republic.  He was able to obtain work in Germany where he estimated that he had resided for between four and six months in some years.  However in the last two years he has had little work in Germany, perhaps three weeks during 2009 and up to six weeks in 2008 when he did some welding work on a dinghy.  Mr Polman explained that whilst in Germany he lived at his cousin's apartment to which he had his own key and a separate entrance.  Mr Polman's evidence as to the length of each working period in Germany was not clear.  He said that after working for a period in Germany he would return to his family in the Czech Republic which was only a three and a half hour drive away. 

13.     Mr Polman lived in Germany between 1993 and 1997 until he married his Czechoslovakian wife in 1998.  He explained that his wife is not free to live in Germany and that neither he nor his wife would be entitled to any social security entitlements in Germany.  Mr Polman also explained that he is not entitled to any pension benefits in the Czech Republic and that apart from the casual work that he is able to do, the family's sole source of income is from dressmaking work that Mrs Polman undertakes from her home in the Czech Republic. 

14.     Mr Polman agreed that it is his intention to always live in the Czech Republic and that he had no intention to live permanently in Germany.  He explained that Germany does not welcome people from the Eastern countries. 

15.     In his application for review received on 30 July 2008, Mr Polman states that whilst he has "permanent residence in Germany" ... "I never refused to admit that I live mostly in Czech R and to a degree establish myself here".   Mr Polman stated that he opened a German bank account in response to Centrelink's objection regarding his bank account in the Czech Republic.  This account was opened on 29 November 2007. 

The Legislation

16.     The applicable legislation is that contained in the Social Security Act 1991 (SS Act), the Social Security (Administration) Act 1999 (SS(A) Act) and the Social Security (International Agreements) Act 1999 (SS(IA) Act). Section 29 of the SS(A) Act provides that a claim for an aged pension may only be made by a person who is an Australian resident and in Australia. 

17.     The criteria for deciding whether or not a person is residing in Australia are listed in section 7(3) of the SS Act  as follows:

"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".

18.     The qualification provisions for aged pension are set out in section 43 of the SS Act.  Under this section Mr Polman meets the requirement for ten years of Australian residence in that he resided in Australia between 1970 and 1992.  Mr Polman's difficulty is that he was not in Australia when he lodged his claim for pension. 

19.     Section 6 of the SS(IA) Act provides that the provisions of a Scheduled International Social Security Agreement have effect despite anything in the social security law. 

20.     There is no Scheduled International Social Security Agreement with the Czech Republic but there is an Agreement between Australia and the Federal Republic of Germany which is incorporated in the International Act at Schedule 14.

21.     Article 5 of the Agreement with Germany provides that where a person is qualified for a benefit under the Australian legislation or under this Agreement  except for not being an Australian resident and in Australia on the date on which the claim for that benefit is lodged, but:

"(a)      is an Australian resident or ordinarily residing in the territory of the Federal Republic of Germany or of a third country with which Australia has implemented an agreement on social security that includes provision for co-operation in the lodgement and determination of claims for benefits;  and

(b)       is in Australia, the territory of the Federal Republic of Germany or the territory of that third country,

that person, so long as he or she has been an Australian resident at some time, shall be deemed, for the purposes of lodging that claim, to be an Australian resident and in Australia on that date".

The provisions of this Article thus however override the requirements of section 29(1) of the SS(A) Act. 

22.     The evidence before the Tribunal could not support a conclusion that Mr Polman was an Australian resident within the meaning of section 7 of the SS Act at the time when he lodged his application in November 2007.  Although he had been granted Australian citizenship in 1975, Mr Polman left Australia in 1992.  He has not returned since and has retained no assets in Australia.  He has since married and has two children with whom he resides in the Czech Republic.  There is no evidence of any continuing ties with Australia or an intention to return. 

23.     Thus in order to qualify for an Australian aged pension Mr Polman must meet the requirements of Article 5 in that he was "ordinarily residing in the territory of the Federal Republic of Germany" and further that he was in that country at the time of lodging his claim for aged pension.

Discussion and findings

24.     I accept the submission made on behalf of the respondent that the applicant carries the onus of producing sufficient evidence upon which the Tribunal can make its decision.  As Hill J said in Casarotto and Australian Postal Commission (1989) 17 ALD 321 at 334

"Nevertheless as a practical matter an applicant for review in the Tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at p 38 per Morling J.) and ultimately the Tribunal in considering the claim can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the Tribunal all material which it will be necessary for the Tribunal to have before it to enable it to come to a decision".

25.     His Honour had earlier referred to the decision of McDonald v Director-General of Social Security (1984) 6 ALD 6 at 12 where Woodward J suggested that in cases where there is uncertainty in the mind of the decision-maker, it should conclude that the applicant's case is not made out and the status quo ought to be maintained.

26.     In the Secretary's Statement of Facts and Contentions it was submitted that there is no evidence one way or the other that Mr Polman was in Germany when his claim was lodged with Centrelink on 8 November 2007.  However as outlined above it was Mr Polman's oral evidence that he had completed the form whilst in the Czech Republic and on the phone to Germany.  He also agreed that his form was "probably" mailed in the Czech Republic due to the additional cost of postage in Germany.   The postal address inserted in the claim form was Mr Polman's address in the Czech Republic which he contends is used by him for reasons of security.

27.     Mr Polman relied on the provisions of the International Agreement with Germany to found his eligibility for Australian aged pension.  One of the eligibility requirements of the legislation is that an applicant be in Germany at the time the claim was made.  There is no evidence before me to indicate that this was the case but rather that Mr Polman mailed his claim form from the Czech Republic.  I accordingly find that this eligibility requirement is not satisfied. 

28.     Although it is unnecessary for me to determine the question of Mr Polman's residency, for the following reasons, I consider that his claim for age pension also fails on this basis.  

29.     The concept of "ordinarily resident" is not defined in the legislation.  It was submitted by the respondent that reference can be made to the factors as listed in section 7(3) of the SS Act with respect to residence in Australia.  These have been outlined in paragraph 17 above. 

30.     The Social Security Guide to the Act states in clause 3.1.1.10 with respect to residence requirements that:

"Section 7(3) of the Social Security Act lists the factors to be taken into account in deciding whether a person is residing in Australia. The key point is to establish that Australia is the person's settled or usual place of abode - ie, that the person makes Australia his or her home. It is not generally possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person's ties will weight more heavily in favour of one country than another. Note that it is just as important to take into account the converse of each factor. 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".

31.     The Tribunal accepts the respondent's submission that consideration can be given to relevant government policy where it is not inconsistent with the legislation (Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

32.     The concept of "ordinarily resident" has been considered by the Federal Court and the Tribunal on many occasions.  Several decisions were referred to by Mr Aaberg in his closing submissions.

33.     The meaning of "ordinarily resident" was considered in Kenneth Dudley Taylor Ex Parte:  Natwest Australia Bank Limited [1992] 37 FCR 194 where Lockhart J stated at paragraph 18:

"The concept of "ordinary residence" for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives.  There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently.  The expression "ordinarily resident in" connotes some habit of life, and is to be contrasted with temporary or occasional residence ..."

34.     After referring to several decisions where the expression "ordinarily resident" had been considered in other jurisdictions, Deputy President Forgie said the following at paragraph 26 in Firdousi and Secretary, Department of Family and Community Services [2005] AATA 1304:

"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".

35.     The Federal Court in Hafza and Director-General of Social Security (1985) 6 FCR 444 concluded that:

"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".

36.     It has been accepted that a person's circumstances may indicate that he has two residences.  However it is clear that to be "ordinarily resident" in a place some element of permanency as opposed to casual intermittent residence is required. 

37.     The fact that Mr Polman was granted permanent residency status by the German government is not determinative of the issue.  It was Mr Polman's evidence that he has no intention of living permanently in Germany.  His reasons for spending time there were to seek casual employment which was not readily available to him in the Czech Republic, and also to satisfy the eligibility criteria for aged pension.  Mr Polman readily conceded that  once he was granted an age pension on the basis of his German residence, he would no longer have any desire or need to spend time there. 

38.     The concept of "ordinarily resident" is not one that can be manufactured.  It is a status which must be supported by relevant factual material.   Of relevance are the circumstances of Mr Polman's residency in Germany at the time when he lodged his claim for pension, his lack of connection with Germany, his reasons for residing in Germany and future intentions regarding his German residence. 

39.     Mr Aaberg referred to the factors listed in section 7(3) of the SS Act with respect to Australian residence submitting that they can be relevantly considered in determining the question of Mr Polman's residence.  I am essentially in agreement with Mr Aaberg's submissions as contained in the Secretary's Statement of Facts and Contentions. 

40.     Whilst no criticism should be made of Mr Polman's attempts to seek financial support for his family, particularly given his non-eligibility for social security entitlements in both Germany and the Czech Republic, my decision can only be based on the applicable legislative criteria and the manner in which the relevant terms have been interpreted by the courts.

41.     I am satisfied on the basis of the evidence that at the date of his claim Mr Polman was "ordinarily resident" in the Czech Republic where he predominantly resides and intends to reside permanently with his wife and children.  There is unfortunately no International Agreement with the Czech Republic.  Mr Polman does not otherwise satisfy the eligibility requirements for an Australian aged pension.  His application for review is accordingly dismissed and the decision under review affirmed. 

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  ............................
               R Hunt (Administrative Assistant)

Date/s of Hearing  20 August 2009
Date of Decision  2 October 2009
  Applicant on his own behalf
Advocate for the Respondent   Mr Aaberg, Centrelink Legal Services