Joseph and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2009] AATA 728

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 728

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1339

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SAMUEL CHRISTOPHER JOSEPH

Applicant

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

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date23 September 2009

PlaceHobart

Decision The decision under review is affirmed. 

[Sgd The Hon R J Groom]

Deputy President

CATCHWORDS

SOCIAL SECURITY - age pension - whether pension claim valid - whether an Australian resident when pension claim lodged - permanent home and assets then in Sri Lanka - applicant not at Australian resident at relevant time - whether discretion to determine pension claim valid on humanitarian grounds - no discretion - decision under review affirmed

Social Security Act 1991, s 43

Social Security (Administration) Act 1999, ss 29, 30, 30A, 31, 31A, 32

Social Security (International Agreements) Act 1999

Re Maha Hafza v Director-General of Social Security 60 ALR 674

REASONS FOR DECISION

23 September 2009   The Hon R J Groom (Deputy President)

Background

1.      The question for determination by this Tribunal is whether Mr Joseph, who is a resident of Sri Lanka, has made a valid claim for an Australian age pension.  On 8 April 2008 the Social Security Appeals Tribunal decided that ",,, Mr Joseph did not make a valid claim for the age pension on 28 August 2008 and therefore cannot be paid".

2.      Mr Joseph, was born in Sri Lanka on 17 June 1943.  He migrated to Australia in 1974.  In 1976 he became an Australian citizen. Mr Joseph married in Australia in 1977.  He and his wife had a daughter.  Unfortunately difficulties arose in the marriage.  It was dissolved in 1991.  Custody of their only child was awarded by the Family Court to Mr Joseph's former wife.  The separation from his daughter caused him to suffer serious emotional and physical ill- health. 

3.      In 2002 Mr Joseph decided to return to Sri Lanka to live.  He did not really want to return to Sri Lanka but he felt he had to return to the country of his birth for the sake of his health and well-being.

4.      Since he returned to live in Sri Lanka Mr Joseph has visited Australia on a number of occasions.  He last arrived in Australia on 21 August 2008.  Mr Joseph lodged a claim for the Australian Aged Pension on 28 August 2008 and then departed for Sri Lanka on 29 August 2008.

The Legislation

5. It is conceded by the respondent that the applicant satisfies the essential qualifications for the Australian pension as specified in section 43 of the Social Security Act 1991. He had resided in Australia for more than ten years and had attained 65 years of age at the date of his claim.

6. But section 29 of the Social Security (Administration) Act 1999 (the Act) also stipulates that a claim for the Australian age pension, which is a "social security payment", can only be made by a person who is both an Australian resident and is present in Australia at the time of the claim. Section 29 of the Act provides as follows:

"General rule

(1)       Subject to sections 30, 30A, 31, 31A and 32, a claim for a social   security payment or a concession card may only be made by a person                 who:

(a)       is an Australian resident; and

(b)       is in Australia.

(2)       Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time                    when the claimant is not an Australian resident or is not in Australia is               taken not to have been made".

7.      Sections 30, 30A, 31, 31A and 32 apply in particular circumstances that have no relevance in this case.

8.      There is no international agreement in existence between Australia and Sri Lanka pursuant to the Social Security (International Agreements) Act 1999. There is therefore no international agreement exempting Mr Joseph from the residential requirement set out in section 29 of the Act.

9. There was some discussion at the hearing about the meaning of section 29 of the Act. The Tribunal is satisfied that the two requirements of section 29(1) are conjunctive. The claimant is required to be an Australian resident and also in Australia at the time a claim is made. If those two requirements are not met then the claim is taken not to have been made.

10. Mr Joseph contends that even if he has not satisfied the two requirements of section 29 of the Act he should nevertheless be entitled to the Australian age pension on humanitarian grounds.

11.     The respondent concedes, and the evidence establishes, that Mr Joseph was present in Australia when he lodged his pension claim on the 28 August 2008 and the Tribunal so finds. 

The Issues

12.     The principal issues for determination by the Tribunal are:

(a)  Was Mr Joseph an Australian resident at the time he lodged his           application for an Australian aged pension?

(b)   If not then is there some humanitarian ground which would permit the            Tribunal to determine as valid the applicant's claim for an Australian aged         pension?

Was Mr Joseph an Australian resident at the time he lodged his application for an Australian aged pension?

13.     Mr Joseph readily acknowledged in evidence that at the time he lodged his claim for a pension his settled place of residence was in Sri Lanka.  

14.     The applicant said that he didn't freely choose to reside in Sri Lanka.  He believed he "had to" because of the great stress and anguish he suffered as a result of the divorce and the forced separation from his only child.  Mr Joseph said he moved to Sri Lanka to save his "very existence".  He said in oral evidence:

"I didn’t will to leave Australia.  I left because I was forced to leave to save my very existence.  My whole physical and mental functions were getting uncontrollable.  ...I must move my body away from that place".  (Transcript page 25)

15. Section 7(3) of the Social Security Act 1991 sets out a number of factors to be taken into account when deciding whether a person is residing in Australia. That sub-section provides as follows:

"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".

16.     Wilcox J in Re Maha Hafza v Director-General of Social Security 60 ALR 674 at 680 explained "residence" as follows:

"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 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 situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode".

His Honour later added:

"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"".

17.     At the relevant time Mr Joseph did not own or rent accommodation in Australia.  He had a seventh share of a family house in Sri Lanka.  He pointed out that he does not live with his brother in that house but lives alone.  Other members of the family can stay from time to time.  Mr Joseph has a daughter and several close relatives residing in Australia but he is not able to see them very often.  He has a brother and some other relatives living in Sri Lanka.  All his assets were situated in Sri Lanka including an amount, which is currently $71,000.00, in a bank in Sri Lanka.  He did not and still does not own a car.  Mr Joseph has spent a total period of some eighteen months in Australia in the ten year period between 1998 and 2008.  For most of that period he was living in Sri Lanka. 

18.     In the pension claim form which Mr Joseph completed and signed on 28 August 2008 he stated that his country of residence from 30 December 2002 to "date" was "Sri Lanka".  He departed for Sri Lanka the very next day after lodging the pension claim and has not returned to Australia since then.

19.     Mr Joseph was very frank and open in giving evidence about his return to Sri Lanka.  He has freely admitted that he has resided there since leaving Australia in 2002.  For example he acknowledged in oral evidence the accuracy of the following statement he made in a letter to the Tribunal dated 2 March 2009:

"Take the Family Court law whose technicality brought about the depression and trauma in me, which made me go to reside out of Australia"

Mr Joseph said:

"That's true".  (Transcript page 37)

20.     The evidence establishes to the Tribunal's satisfaction that when Mr Joseph left Australia in 2002 to reside in Australia he did so with the intention of permanently residing in that country.  He said in a letter to Centrelink:

"... I left Australia when my child turned 16 to reside in Sri Lanka where I found that all my stress left me and my feelings of being unwell had left me and still it is the same.  I realise that being away from where it all happened and getting away from bad memories was the remedy for being happy and healthy".   (T5 page 37)

21.     Mr Joseph said in a letter dated 25 September 2008:

"I have come to my country of birth and I intend to live here close to my home town which gives my great comfort and takes me away from the bad memories I left behind since 1997".  (T10 page 47)

22.     Since 2002 Mr Joseph has spent most of the period residing in Sri Lanka.  He has an interest in a home there and his assets are situated in that country.  It is his country of birth and he has relatives residing there.  He is truthful in recognising that his permanent place of abode is in Sri Lanka.  He has repeatedly indicated that he is unable to live in Australia because of the great stress and emotion caused by the enforced separation from his daughter.

23.     Mr Joseph contends that although he is now living permanently in Sri Lanka he is "... not a non-resident ..." of Australia.  This belief is well expressed in the following paragraph in a letter written to this Tribunal dated 21 March 2009:

"I am therefore not a non resident with total meaning of the word but an unwilling non resident which is not the same as non resident.  I therefore feel that I should not be put in the category of non resident but considered coerced to becoming a non resident by the adverse result of a family quote law of the same system that requires me never to have done so as it disqualifies me from getting a pension or ever applying validly.  I am a coerced non resident which is not the same as a non resident".   (T1 page 3)

In that same letter he added:

"... A coerced non resident has to be treated as a valid applicant".

24.     There may be many reasons why a person takes up resident in a particular place.  It will not necessarily be the person's first choice or even free choice.  It might be a requirement of employment or because of financial circumstances.  It could be to provide support to a relative.  A move might be necessary for health reasons.  The particular reason for a person taking up residence at a place has limited relevance to the question of whether it is truly the person's place of residence except in so far as it helps to explain if it is the person's intention to treat that place as home and to genuinely make it their settled abode.

25. After considering all of the material before it including the factors set out in section 7(3) of the Social Security Act 1991 the Tribunal concludes that at the time Mr Joseph lodged his claim for the Australian age pension he was not an Australian resident but was a resident of Sri Lanka. He had made a decision to settle permanently in Sri Lanka. At the relevant date, namely 28 August 2008, that is where his home was and where his assets were situated. It plainly was and remains his settled place of abode.

Is there some humanitarian ground which would permit the Tribunal to determine as valid the applicant's claim for an australian age pension? 

26.     This is indeed an unfortunate case.  Mr Joseph lived for many years in Australia and worked and paid his taxes here.  He satisfies the requirements to qualify for a pension except that he was not an Australian resident at the time he lodged his claim.  If there had been an Intentional Agreement under the Social Security (International Agreements) Act 1999 between Australia and Sri Lanka he would not have to satisfy the residential requirement in section 29 of the Act.

27.     Mr Joseph has submitted that in all of the circumstances of this case and for humanitarian reasons and to serve justice the Tribunal should determine that his claim for the Australian pension was valid.  Mr Joseph did not cite any precedent or authority for that proposition. 

28.     The Tribunal finds that there is no discretion in the Act, the Social Security Act 1991 or in any other legislation or otherwise within the law of Australia which would permit the Tribunal to deem the applicant's pension claim valid even though it does not comply with the requirements of section 29 of the Act.

Decision

29.     The Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  18 August 2009
Date of Decision  23 September 2009
Applicant on his own behalf
Solicitor for the Respondent     Mr B Sparkes, Centrelink Legal Services