Kavedas and Secretary, Department of Family and Community Services
[2004] AATA 1260
•22 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1260
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/366
GENERAL ADMINISTRATIVE DIVISION
Re: Constantinios KAVEDAS
Applicant
And:SECRETARY,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 22 November 2004
Place: Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
SOCIAL SECURITY ‑ age pension ‑ qualification ‑ whether residing in Australia – residence in two countries
Social Security Act 1991 ss 7 (1), 7(2), 7(3)
Social Security (Administration) Act 1999 s 29(1)
Re Kehagias and Director-General of Social Security (1981) 3 ALN N151
Re Alam and Director-General of Social Services (1982) 4 ALD 538
Re Houchar and Director-General of Social Security (1984) 5 ALN N449
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177
Re Wybrow and Secretary to the Department of Social Security (1992) 71 SSR 317
Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745
Re Grisios and Secretary to the Department of Social Security (1996) 2(3) SSR 31
Re Secretary, Department of Family and Community Services and Papagiannis (1999) 56 ALD 765
REASONS FOR DECISION
22 November 2004 Regina Perton, Member
1. This is an application by Constantinios Kavadas (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 March 2004. The SSAT affirmed a decision of an authorised review officer (ARO) of the Secretary to the Department of Family and Community Services (the respondent) dated 15 February 2004 to refuse the applicant’s claim for age pension because he was not an Australian resident at the time of his application. The original decision to refuse the application was made by a delegate of the respondent on 18 December 2003.
2. At the hearing of this matter on 27 August 2004, the applicant was represented by Mr Andrew G E Robinson, of Counsel. Ms Elizabeth King represented the respondent. An interpreter in the Greek language facilitated communication, although the applicant gave some of his evidence in English.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T32).
BACKGROUND
4. The applicant, who was born in Greece on 14 November 1938, first arrived in Australia in 1963 at the age of 24. He was granted Australian citizenship in 1970. He returned to Greece in 1972 and remained there for three years. While there he married a woman of Swiss origin. They have two children who were born in 1975 and 1979. The applicant returned to Australia in 1975 and did not leave the country for the next 13 years. In late 1988 the applicant travelled outside Australia for two months. He made further overseas trips, for three months between late 1993 and early 1994, and for two months in mid1994.
5. The applicant was self-employed for most of his working life in Australia, running a number of cafes. He retired from business in 2000 and also separated from his wife, who had been his business partner, around that time. In May 2001, the applicant travelled to Greece and remained there for almost a year, until mid April 2002. He returned to Australia for six months and then left again on 13 December 2002, staying away for almost a year.
6. The applicant returned to Australia on 9 December 2003, four weeks after his 65th birthday. On 11 December 2003, he contacted Centrelink, seeking to claim age pension. The application form was lodged on 18 December 2003.
7. On 18 December 2003, a Centrelink delegate refused the application for age pension. On 12 February 2004, an ARO affirmed the decision. On 17 February 2004, the applicant sought review in the SSAT. The SSAT affirmed the decision on 22 March 2004. On 23 March 2004, the applicant lodged an application with this Tribunal for review of the SSAT decision.
8. The issue before the Tribunal is whether the applicant was an Australian resident at the time of his application for age pension.
EVIDENCE
9. The applicant told the Tribunal that he migrated to Australia in 1963 and gained Australian citizenship in 1970. He said that he is now single, having legally separated from his wife of 25 years in 2000. His two children are adults and no longer dependent on him. The applicant said that he has been running a series of cafes since 1967. He said that he had retired from business mainly for health reasons, having experienced several hernia operations in recent years. He sold his last business in mid-2000. Following that sale and the financial negotiations over his marital separation, he decided to take a long holiday in Greece.
10. The applicant said that he would have liked to have kept the family home in Clifton Hill but his wife wanted to sell it and use the funds to re-establish herself elsewhere and so it was sold. He said that he had sustained a substantial loss on the sale of his last business.
11. The applicant told the Tribunal that he still considered Australia his home and that it had always been his intention to return here, while sharing his time between Australia and Greece. He stated that on his trips to Greece since 1988 he has always purchased a return ticket. He said that he has maintained his private health insurance through Medibank Private. He stated that he had retained a Mercedes Benzü car in Australia worth around $3,000 for use on his return. He stated that a further indicator of his intention to return to Australia was his taking out of travel insurance in Australia for his time in Greece.
12. The applicant said that his holidays between 1988 and 1993 were mainly for family reasons, including the serious illness and subsequent death of one of his brothers. The applicant told the Tribunal that during his first long holiday in Greece commencing in April 2001, he had initially stayed for a month with one brother but then moved to other accommodation. He said that he had then camped under an olive tree in the garden of his sister’s home for some 4 months during the summer holiday season. He said that it was difficult to obtain reasonably priced accommodation during the peak summer season due to the numbers of tourists coming to his home town of Lefkos. In October 2001, after the departure of most of the tourists, the applicant said that he was able to rent a small apartment at a reasonable rate. He said that he also purchased a small car to get around the island, which is hilly and poorly serviced by public transport.
13. The applicant said that on his return trip to Greece in December 2002, he initially rented a flat but had to move out in May 2003, when the tourists started their annual influx. He subsequently purchased an apartment on the island. The applicant said that it had not been his initial intention to purchase a property in Greece but a friend of his sister-in-law was selling her apartment and asked if he was interested in buying it. The applicant stated that because of the difficulties he had experienced in renting a property, he thought it would be a good idea to purchase the apartment to avoid the difficulties of renting on the island.
14. The applicant told the Tribunal that his main bank account is with the Bank of Cyprus which has branches in Australia as well as in Greece. He said that he had banked with the ANZ Bank for many years but then changed to the Bank of Cyprus, for reasons which included their Greek-speaking staff. He has opened another account with the National Bank of Greece to enable him to withdraw money in Lefkos as the Bank of Cyprus does not have a branch there.
15. The applicant said that he had intended to return to Australia on 10 October 2003 and had an airline booking for that date. However, he suffered a heart attack on 14 September 2003. The applicant said that his treating doctors had advised him not to travel for 3 months. He stated that he returned to Australia on 9 December 2003.
16. The applicant said that for the first three months after his return to Australia, he lived with his former wife and their daughter in Northcote. He said that his doctors had suggested that he not live alone during the first few months of his return. He is now renting a flat on his own.
17. The applicant stated that when he went to Centrelink to fill out the forms for age pension, he did not fill out the application form personally. He said that a Centrelink officer completed a statement for his signature. He said that some of the information in the statement was wrong and he therefore refused to sign it.
18. The disputed statement in the application form (T12) is as follows:
I arrived in Australia from Greece in 1963 by myself. I returned to Greece in 1973 & lived with my parents & married over there. I returned to Australia in 1975. I separated from wife in 2000 and departed for Greece shortly after. She has remained living here & both by children lived in Australia still. I returned briefly for 7 months in 2002 to sell the family house & tie up finances in our Family Trust. I then returned to Greece and rented over there. I have now purchased an apartment and intend to return to Greece to live in this. I have a lot of extended family in Greece. I have come to Australia on a return ticket, but the original ticket was issued in Australia in 2002 to go to Greece & return to Australia. I have lived a total of approx 30 ½ years in Greece and 37 in Australia. I am temporarily living in Australia with my ex wife & daughter.
19. The applicant stated that he had not come to Australia on a ticket that allowed him to return to Greece as was suggested in the statement, rather the ticket had been purchased in Australia for return to Australia. He was adamant that he had not said that he was intending to live permanently in Greece but rather “live in” the apartment in Greece when there on holidays. He stated that he has lived in Australia for 37 of the last 40 years and has been an Australian citizen for almost 30 years.
20. In relation to the sentence in the statement that he has a lot of extended family in Greece, the applicant confirmed that he has some elderly siblings in Greece, but said his immediate family and close friends are in Australia. The applicant said that he is the fourth of eight children, of whom five are still alive. He said that he has one brother and one sister in Lefkos. He said that two other sisters live in Athens, some 500 kilometres away. He said that his two children are in Australia, as is his former wife, with whom he is still on good terms. The wife of his late brother, two nieces and their husbands and several cousins and their families as well as many close friends are also in Australia. He said that he has always mixed regularly with his family and long-term friends in Australia and described their shared activities. He said that many of the people he mixed with in Greece were acquaintances rather than friends or relatives.
21. The applicant said that he has not rented out his apartment in Greece as he would like to go back regularly if his health permits. He said that it is not a good time to sell that apartment and he would lose money if he did so.
22. Under cross‑examination, the applicant stated that he has dual Australian and Greek nationality as a person does not lose Greek nationality on assuming that of another country. He indicated that he uses a Bank of Cyprus account in Australia but also opened an account with the National Bank of Greece in 2002 as it, unlike the ANZ and Bank of Cyprus, had a branch in Lefkos allowing him easy access to the local currency.
23. Describing his family connections in Australia, the applicant said that his daughter, who is 25 years old and single, works in a sandwich bar and studies part‑time. He sees his daughter three or four times a week. He sees his son, who lives with a partner, at least once a week. He also gave names of other friends with whom he regularly socialises. When asked about his children’s travels in Greece, he indicated that while he was there, his daughter travelled with another Australian girl around Europe and stayed with him for only a week or so. He said that her previous trip to Greece had been when she was 13. The applicant said that his son, who is qualified in computer science, had been working in Finland and came to visit him for a short time in Greece. His son is now working in Melbourne again. The applicant was asked about his contact with his siblings in Greece and said that after 40 years apart and very different lifestyles, they now had only their family relationship in common. He said that he mostly mixed with expatriate Greeks while there, who, like him, were making lengthy trips back to their homeland.
24. The applicant said that he is not entitled to a Greek pension as he has not worked there.
25. On re-examination, the applicant said that he had applied for age pension within a week of his return to Australia mainly because he wished to obtain a health care card. He has been spending about $100 per month on prescription drugs, and assistance with his medical expenses would be welcome. The applicant said that he took out a one year lease on a flat in Northcote at the end of March 2004 where he now lives by himself.
CONSIDERATION OF THE ISSUES
26. Section 29(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a claim for a pension or benefit may only be made by a person who is in Australia and is an Australian resident.
27. The term Australian resident is defined in s 7(2) of the Social Security Act 1991 (the Act):
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.
28. Section 7(3) of the Act sets out the criteria to which regard must be had in deciding whether a person is residing in Australia. They are:
(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.
29. Mr Robinson submitted that his client’s temporary residence outside Australia was not incompatible with his intention to remain an Australian resident. He cited a number of Tribunal decisions including Re Alam and Director-General of Social Security (1982) 4 ALD 538, Re Kehagias and Director-General of Social Security (1981) 3 ALN N151, and Re Houchar and Director-General of Social Security (1984) 5 ALN 449, as authorities for the proposition that a person could be an Australian resident notwithstanding temporary residence in their original country for some years. Mr Robinson pointed to his client’s return ticket to Australia, his maintenance of a car in Australia, his continuance of his Australian private health insurance and his close family and friends in Australia as objective indicators of his client’s subjective intention to remain a resident of Australia.
30. Both Mr Robinson and Ms King cited the Federal Court case of Hafza v Director-General of Social Security (1985) 6 FCR 444 as a relevant authority in this matter. In Hafza, Wilcox J held that:
13....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...
14. Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place – even involuntarily... a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place…together with an intention to return to that place and an attitude that that place remains “home”…
31. Ms King cited Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177, which dealt with a person living in Lebanon for several years claiming family allowance for the years she, her husband and children were absent from Australia. In that decision, the Tribunal noted the importance of a claimant's intentions in determining his or her residence, commenting:
As has been pointed out on a number of occasions (see for example recently Smith's case (1985) 7 ALN N371) subjective considerations are the golden threads that consistently run through the fabric of social security situations. Having regard to the nature of the questions that have to be answered, this is not surprising. Subjective considerations (like pain) are real and tangible and can be proved like any other fact. Where they depend upon the word of the person most closely effected, satisfactory proof usually involves corroboration by objective facts. The absence of those facts, however, does not necessarily mean that the subjective consideration has not been proved…
32. Ms King cited Re Schlageter and Secretary, Department of Social Security (1985) 26 SSR 317, where the Tribunal commented:
9. The Administrative Appeals Tribunal has had to consider the meaning of the expression "residing in" and analogous expressions in section 21 and other sections of the Act setting out the qualifications for benefits. It is well established that it does not bear any technical or special meaning and is to be given its ordinary English meaning… For a person to be residing in a country, he must have a settled home in that country. It need not be his only home but it must have some degree of permanence.
33. Ms King also cited Re Wybrow and Secretary to the Department of Social Security (1992) 71 SSR 317, in which the Tribunal stated:
22…. Section 7 of the Act now requires simply that an applicant, who is an Australian citizen, must reside in Australia. In Hafza v Director-General of Social Security 60 ALR 674, Wilcox J was concerned with the test of "usual place of residence" which appeared in s 103(1) of the predecessor to the present Act…
23. It is true that s 7(3) of the Act now requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia. They are, however, not expressed to be exhaustive and do not detract from the general observations which His Honour made in relation to the ordinary concept of residence. The definition however, compels a decision maker to pay some regard to the enumerated factors.
34. Ms King also cited the Tribunal decision of Re Clifopoulos and Secretary to the Department of Social Security (1994) 36 ALD 745, in which Mrs Clifopoulos, like the current applicant, had run businesses and had owned property in Australia in the past but no longer did so. She owned property in Greece at the time of application. She, like this applicant, had expressed the intention of living in both Australia and Greece. The Tribunal stated:
20. (g)….A person may, however, have both short and long term intentions, and it is the long term intention which must be determinative of residency. Intention must be decided on the totality of the evidence.
35. In Re Grisios and Secretary to the Department of Social Security (1996) 2(3) SSR 31, another decision cited by Ms King, the Tribunal stated:
XLVI. In reaching a decision in this matter, the Tribunal must have regard not only to section 7(3) of the Act, but also relevant factors such as, the nature of accommodation both in Australia and overseas, family relationships overseas, employment, and business and financial affairs overseas.
XLVII. In relation to Mr Grisios’ accommodation in Australia, the evidence is that at the time of the hearing, he lived in a small flat on which he held a six-month lease. The lease on this accommodation was entered into only after the adverse decision of the SSAT. At the time of lodging his application for age pension, Mr Grisios was living rent-free with his uncle, and subsequently in boarding house accommodation.
36. Ms King also referred to Secretary to the Department of Family and Community Services and Papagiannis (1999) 56 ALD 765, in which the Tribunal considered s 7(3)(f), which requires a decision-maker to consider any other matters deemed relevant in relation to whether the person intends to live permanently in Australia. In that matter the Tribunal had before it a passenger card completed on the applicant’s return journey to Australia, upon which the applicant, who had lived overseas for several years, had stated that he was intending to stay for two years. The Tribunal held that:
19….The Shorter Oxford Dictionary 3rd edition ascribes the following meaning to the word “permanent”, namely:
“Lasting or designed to last indefinitely without change; enduring; persistent: opposite to temporary.”
Accepting, as I do, that the Respondent indicated on his Passenger Entry Card that he intended to remain in Australia for a finite period, namely two years, this is indicative of an intention of not remaining in Australia permanently but of a sojourn in the country….
20. In Re Issa and Secretary, Department of Social Security 8 ALN N177, the importance of a claimant’s intentions was emphasised in assessing whether they were resident. The best proof of a person’s intentions is their overt acts…
21. I am satisfied that at the time when the Respondent made application for the Age Pension, he was not residing in Australia. A mere temporary period, sufficient to apply for and obtain a pension and to render it portable, is not sufficient to constitute residence. There must be some indicia that the applicant, for the benefit, intends Australia to be his or her settled abode.
37. In reaching a decision, the Tribunal takes into account the oral and written evidence and submissions made in writing and at the hearing.
38. The Tribunal has considered each of the factors listed in s 7(3) of the Act:
(a) the nature of the accommodation used by the person in Australia
At the time of application, the applicant was temporarily staying with his estranged wife and daughter in their home. He submitted that he was staying with them on medical advice that he not live alone. He did not own or rent property in his own name in Australia at that time.
(b)the nature and extent of the family relationships the person has in Australia
The applicant has two independent adult children, both of whom were in Australia at the time of the claim for age pension. He sees them regularly. He remains on good terms with his wife from whom he is formally separated. A list was provided of relatives, including nieces and cousins, in Australia whom he sees regularly.
(c)the nature and extent of the person's employment, business or financial ties within Australia
The applicant worked in Australia from 1963 to 1972 and from 1975 to 2000. He operated several businesses but these have now been sold. At the time of his claim for age pension he was not working. The applicant has a bank account with the Bank of Cyprus, which has branches in Australia and Greece. He maintained private health insurance in Australia during his stay in Greece.
(d) the nature and extent of the person's assets located in Australia
The applicant had few assets in Australia when lodging the application. He owns an early model Mercedes, said to be worth around $3,000. He has an account with the Bank of Cyprus which can be accessed in both Australia and Greece.
(e) the frequency and duration of the person's travel outside Australia
The applicant migrated to Australia in 1963 at the age of twenty-four. He became a citizen in 1970. After 8 years in Australia, he returned to Greece for three years. Between 1975 and 2000, he took 3 short trips outside Australia totalling eight months. In the two and a half years between May 2001 and December 2003, the applicant was outside Australia for almost two years.
(f)Any other matter relevant to determining whether the person intends to remain permanently in Australia
The applicant is an Australian citizen. His most recent arrival in Australia was four weeks after he reached the age of 65 years. The applicant submitted that it was his intention, following the sale of his business and his subsequent retirement, to share his time between Australia and Greece. In Greece, he has a late model car, an apartment, and a bank account with National Bank of Greece. About three months after lodging the claim for age pension, he took out a one year lease on a flat where he now lives on his own.
39. This matter involves the balancing of various factors. Factors that support the applicant’s submission that he resided in Australia at the time of the claim for age pension include his relationship with his two adult children and with other relatives whom he regularly sees in Australia. The Tribunal accepts that the applicant is closer to his family members in Australia than those in Greece. The Tribunal notes his purchase of return tickets on each occasion he has travelled outside Australia since 1988, his maintenance of Australian private health insurance and of a bank account which he can operate in Australia. He also owns a car in Australia.
40. On the other hand, the applicant has spent 80 per cent of his time in Greece in the 3 years preceding his application. He owns a property in Greece which he purchased only a few months before his return. He owns no property in Australia. He has purchased and left behind a late model car in Greece. In Australia, he has an early model car which he estimated has a value of $3,000. The date of his return to Australia, coinciding with his 65th birthday, is also pertinent. The Tribunal notes that the applicant had intended to return two months earlier, which would have resulted in his returning a month before his 65th birthday. At the time of the application for age pension, the applicant was temporarily staying in his former wife’s home. He moved from there after his application had been rejected by the delegate and the ARO.
41. There is no requirement in the legislation that a person have only one place of residence and the Tribunal is satisfied that the applicant may well now have the intention of sharing his time between Australia and Greece. Case law, eg Hafza, accepts that possibility. Whether the applicant had that longer term intention at the time of the claim currently under consideration, namely a few days after his return to Australia in December 2003, is impossible to ascertain. Furthermore, it is not possible to determine whether his assertion of intent to live in both countries has arisen as a response to the legislative requirements for receipt of age pension. However, as was pointed out in Schlageter, Wybrow, Grisios, Papagiannis and other matters, a subjective intention to reside in Australia is insufficient for a determination of residency. The criteria in s 7(3) need to be considered objectively.
42. Given the applicant’s lack of assets in Australia, when compared to those in Greece, the temporary nature of his accommodation in Australia at that time, his having spent most of the previous three years outside Australia and his being back in Australia a few days before lodging the application, the Tribunal finds that these factors, on balance, outweigh the other factors mentioned above.
43. The Tribunal finds that the applicant was not a person residing in Australia for the purposes of s 7(2) of the Act and s 29(1) of the Administration Act on 18 December 2003.
DECISION
44. The Tribunal affirms the decision under review
I certify that the forty-four (44) preceding paragraphs are a true copy of the reasons for the decision herein of :
Regina Perton, Member
(sgd) Catherine Lake
Clerk
Date of Hearing: 27 August 2004
Date of Decision: 22 November 2004
Advocate for applicant: Mr Andrew G E Robinson
Advocate for respondent: Ms Elizabeth King
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