Kesrouani and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 526
•15 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 526
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2008/3434
GENERAL ADMINISTRATIVE DIVISION )
ReKHARMA KESROUANI
Applicant
AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
TribunalMs N Isenberg, Senior Member
Date15 July 2009
PlaceSydney
DecisionThe decision under review is affirmed.
..................[sgd]............................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether proper claim – portability of pension – whether residence requirements are satisfied – criteria for determining whether a person is residing in Australia – estoppel – decision under review affirmed
Social Security Act 1991 ss 7, 51, 1213, 1219, 1220
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)
Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70
Re Dracup and Secretary, Department of Social Security (1985) 9 ALN N45
Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568
Formosa and Anor v Secretary, Department of Social Security (1988) 46 FCR 117
Re Vallance and Director-General of Social Security (AAT 934, 17 January 1983)
REASONS FOR DECISION
| 15 July 2009 | Ms N Isenberg, Senior Member |
| background |
Miss Kesrouani first arrived in Australia in 1970. She lived and worked in Australia until 1986 when she travelled to Lebanon. She returned to Australia on 17 July 1998. Miss Kesrouani is currently 72 years of age.
On 10 August 1998 Miss Kesrouani lodged a claim for age pension, and indicated that she intended to stay in Australia permanently.
Shortly after the claim was granted, on 6 September 1998, Miss Kesrouani returned to Lebanon, where she remained until her return to Australia on 28 March 1999. On 11 April 1999 Miss Kesrouani left for Lebanon again, and she continues to live there.
Miss Kesrouani continued to receive age pension until 21 November 2007 when it was cancelled following a review by Centrelink’s International Branch Audit team.
That decision was affirmed on review and by the Social Security Appeals Tribunal, essentially, on the basis that because Miss Kesrouani’s absence from 11 April 1999 could reasonably have been foreseen when she returned to Australia on 27 March 1999, her age pension was not payable from that date. A debt of $99,415.13 was raised for age pension payments made to Miss Kesrouani during the period 11 April 1999 until 7 November 2007, but that debt has been waived pursuant to s 1237A of the Social Security Act 1991 (“the Act”).
legislation
Section 1220 of the Act, as in force at the relevant time, provided as follows:
1220.No portability where claim based on short residence
(1)If:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident; and
(c) the person again becomes an Australian resident; and
(d) the person lodges a claim for:
(i)an age pension;
…
and
(e) the claim is lodged within the period of 12 months after the person again became an Australian resident; and
(f) the person leaves Australia before the end of that period of 12 months; and
(g) there is no determination in respect of the person under subsection (3);
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
…
(3)The Secretary may determine that subsection (1) or (2) is not to apply to a person if the Secretary is satisfied that the person’s reasons for leaving Australia before the end of the 12 month period arose from circumstances that could not be reasonably foreseen when the person returned to or arrived in Australia.
…
“Australian resident” is defined (as relevant) in s 7(2) of the Act as a person who resides in Australia and is an Australian citizen.
Section 7(3) of the Act states:
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.
Subject to ss 1219 and 1220 a person’s right to continue to be paid age pension is not affected by the person’s leaving Australia: s 1213.
If a person is receiving an age pension and the person proposes to leave Australia; and the person notifies the Department of the proposed departure; and the Secretary is satisfied the person is qualified for the pension; the Secretary must give the person a certificate that acknowledges that the person has notified the proposed departure and that the Secretary is satisfied that the person is qualified for the pension: s 1219(1).
Similarly, if a person claims an age pension, and the person proposes to leave Australia, and the person notifies the Department of the proposed departure before the claim is determined; the Secretary must give the person a certificate that acknowledges that the person has notified the proposed departure: s 1219(2).
issues before the tribunal
The issues before the Tribunal are:
(a)Was Miss Kesrouani an Australian resident who stopped being an Australian resident?
(b)Did Miss Kesrouani again become an Australian resident on 17 July 1998?
(c)If Miss Kesrouani again became an Australian resident on 17 July 1998, was it reasonably foreseeable she might have to leave within 12 months of her arrival in Australia?
(d)If it was reasonably foreseeable that Miss Kesrouani might have to leave Australia within 12 months of her arrival on 17 July 1998, did she again become an Australian resident on 28 July 1999 and was it was reasonably foreseeable that she might have to leave within 12 months of her arrival in Australia?
evidence
Centrelink records
On 8 September 1998 an “Application to continue payment of pension/allowance during an absence overseas” was lodged on behalf of Miss Kesrouani. An accompanying file note confirmed that Miss Kesrouani’s representative notified Centrelink of her departure for Lebanon on 6 September 1998 and noted, clearly incorrectly, that her scheduled date of return was 16 July 1998. The file note also clearly indicated that Miss Kesrouani’s mother was sick and there may be a change in return date. On 14 September 1998, when Centrelink decided that age pension could be paid to Miss Kesrouani indefinitely while overseas, the file note incorrectly recorded Miss Kesrouani as having lived in Australia for the previous 12 months.
On 1 March 1999 a file note recorded that Miss Kesrouani’s representative advised that her proposed return date to Australia was 27 March 1999. On 10 March 1999 Centrelink received a letter from Miss Kesrouani’s representative advising that she would remain in Lebanon to take care of her mother and sister. A file note records that the “return date hasn’t been stated on this letter”, and also that the officer contacted the representative and was advised that the return date may be more than 12 months.
On 1 April 1999, Centrelink was advised that Miss Kesrouani intended to return to Lebanon on 11 April 1999 (Miss Kesrouani having arrived in Australia on 28 March 1999) and her return date to Australia was uncertain. The Centrelink file note incorrectly recorded that Miss Kesrouani “has been an Australian resident for at least the last 12 months”, and that “Age pension can be paid overseas indefinitely” and Miss Kesrouani was advised to that effect. On 6 April 1999, Centrelink was advised that Miss Kesrouani would be departing to Lebanon “for good”.
miss kesrouani’s evidence
Miss Kesrouani gave evidence by telephone from Lebanon with the assistance of an interpreter.
Miss Kesrouani said that she had gone to Lebanon in 1986 to care for her father, as her mother was unable to manage him. He was “old and sick”, and she said, relevantly, “my mother was, too”. She has a disabled sister and her mother had been caring for her as well.
During her time in Lebanon she had accompanied her mother to medical appointments including those with Dr Khoury, who has been her mother’s neurologist since 1995. He had first been consulted because of her mother’s Parkinson’s disease and diabetes.
Miss Kesrouani said that when she returned to Australia in July 1998 it had been her intention to stay here. She came on a one-way ticket, bringing only one bag. She intended, once again, to live in a furnished room in her brother’s home, as she had done previously before she had left Australia in 1986. Her brother would give her money to live on. She brought no money as her brother in Lebanon had “helped” her spend her savings.
In September 1998 her mother’s health deteriorated and she returned to Lebanon, again purchasing a one-way ticket. She looked after her sister in addition to her mother.
When, by the end of 1998 her mother’s condition had improved a little she decided to return to Australia in March 1999 to “settle certain matters” and left again about a fortnight later. Her brother in Lebanon took care of their mother and sister as a temporary measure in her absence. She always intended to return to Lebanon to resume care of her mother, who it would appear, is now aged 92.
consideration of the evidence and findings
I had before me documents lodged pursuant to s 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), which I took into evidence. Other documents were also tendered:
·Travel Outside Australia Summary of Miss Kesrouani dated 14 May 2009;
·Report of Dr Mounir F. Khoury dated 18 December 2008;
·Letter of Miss Kharma Kesrouani dated 9 January 2009;
·Letter of Mr Khalil Kesrouani dated 23 February 2009;
·MBF Contribution Book of Miss Kesrouani; and
·Tax File Number Advice issued to Miss Kesrouani on 25 August 1998.
Centrelink contended that when Miss Kesrouani returned to Australia on 17 July 1998 she did not become an Australian resident, because she was not residing in Australia pursuant to s 7(3) of the Act. As a result, Miss Kesrouani was never entitled to be granted age pension. Section 51 of the Act provides that a proper claim can only be made by a person who is an Australian resident, and is in Australia on the day on which the claim is lodged. The question is whether Miss Kesrouani was an Australian resident at the time she lodged her claim.
I considered the evidence in relation to each of the criteria in s 7(3) in turn:
(a)Nature of the accommodation used in Australia
Miss Kesrouani owns no property in Australia and was staying with her brother at the time she lodged her application.
(b)Nature and extent of the family relationships in Australia
She has a brother (and his family) in Australia with whom she is close. In Lebanon she has her elderly mother, disabled sister and at least one brother and his family.
(c)Nature and extent of employment, business or financial ties with Australia
In 1998 Miss Kesrouani had no employment in Australia. She did not have a bank account until her brother gave her $100 to open an account into which her Centrelink payments could be deposited. She chose Arab Bank as she could access this account from Lebanon. She did not have a tax file number at the time she applied for the age pension.
(d)Nature and extent of assets located in Australia
She returned to Australia with one suitcase. She owned nothing in Australia. Her room at her brother’s home was furnished by him.
(e)Frequency and duration of travel outside Australia
On her return in 1998 she had been out of Australia for 12 years. Before that she had lived in Australia for 16 years, travelling once to Lebanon for a short time in 1980. She became an Australian citizen in 1975.
(f)Any other matter relevant to determining whether Miss Kesrouani intends to remain permanently in Australia.
Her evidence was that when she returned to Australia in 1998 it was her intention to live here again permanently. She travelled on a one-way ticket, but from her evidence, this seems to have been her practice. Her later return to Australia in 1999 was only to tidy up her affairs.
In Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449 Wilcox J considered the definition of “residence” and stated that “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’.”
The term “residence” connotes both a temporal as well as an emotional connection with a particular place, a physical presence in a particular place and the intention to treat that place as “home” (Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992). Furthermore, the Federal Court in Taslim v Secretary, Departmentof Family and Community Services (2004) 138 FCR 70 has endorsed the definition of residence given in Wybrow.
The legislative intention of s 1220 should be considered. In Re Dracup and Secretary, Department of Social Security (1985) 9 ALN N45 where Senior Member Williams stated:
… the legislative intention underlying it is to prevent people formerly residing in Australia and who would not qualify for the grant of age pension by reason of not being physically present in Australia [see s.21(1)] from making fleeting return visits to Australia in order to qualify for a grant, and then departing again for overseas...
In applying the above principles, and the indicia of residence set out in s 7(3) of the Act, I find that at the date of her application for age pension, Miss Kesrouani was not an Australian resident. In coming to that view I particularly observe that she had been absent from Australia for a period of 12 years. On returning here she came with only one suitcase. She came on a one-way ticket but it was her practice to do so. She has close family both here and in Lebanon, and she had assisted her elderly mother and sister in Lebanon for 12 years before her return to Australia. Although she stated that she intended to return to live here permanently she remained for only 7 weeks. She did not have a tax file number and had to open a bank account in order to have an account into which Centrelink benefits could be paid. She opened an account at Arab Bank because this would be easier for her to access from Lebanon. She had no assets here. On balance, I find that her intention to return to Australia was for the purpose of her obtaining the claimed pension, given that her brother in Lebanon had spent her savings. In this regard I note, too, that within four weeks of arriving in Australia she had applied for the pension.
Having found she did not meet the residency requirements, I find she had no entitlement to age pension at that time. Centrelink was correct in cancelling it at the earliest opportunity, as soon as the erroneous grant had been discovered.
Having come to that view it was unnecessary for me to consider the remaining submissions. For completeness though, even if I had found that Miss Kesrouani did once again become an Australian resident at that time, I find that it was reasonably foreseeable she might have to leave within 12 months of her arrival in Australia, and thereby she was not entitled to the benefit of s 1220(3). The letter from Dr Khoury, Miss Kesrouani’s mother’s neurologist, confirms that Miss Kesrouani’s mother was under his care since 1995, and Miss Kesrouani said she had taken her mother to appointments. Even when she had returned to Lebanon in 1986 her mother, at that time, she said, was “old and sick”. Therefore, it was reasonably foreseeable, in my view, that her 80 year old mother’s condition might deteriorate some 12 years after having been described as “old and sick”, and that once more she would be called upon to care for an elderly parent. There was no medical evidence at all about Miss Kesrouani’s sister’s condition, although Miss Kesrouani’s evidence was that she had previously been caring for her also. It is doubtful that if her mother’s condition deteriorated that she would have been able to continue her care for Miss Kesrouani’s sister, and Miss Kesrouani would have to help in that regard also.
I do not accept that her brother in Lebanon could have cared for his mother and sister, had Miss Kesrouani been made aware of the 12 month residence requirement of s 1220, as Mr Kisrwani submitted. For 12 years the brother had apparently relied on Miss Kesrouani to undertake the caring role for his parents and sister, and there was no evidence that he would have undertaken that role if Miss Kesrouani were to be absent for an additional 10½ months over the 50 days she was away.
estoppel
When Miss Kesrouani left Australia on 6 September 1998 Centrelink incorrectly recorded that she had “lived in Australia for the last 12 months”. The decision that her pension could be paid whilst she was overseas appears to have been based on this misconception. Miss Kesrouani’s representative, Mr Kisrwani, sought to rely on estoppel to prevent Centrelink from cancelling Miss Kesrouani’s age pension payment. The assertion was that Centrelink should be estopped from applying social security legislation to cancel Miss Kesrouani’s age pension when she had relied on the representations made to her by Centrelink, to her detriment.
The principle of estoppel cannot prevent the performance of a statutory duty or the exercise of a statutory discretion: Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 at 577. In particular, with respect to social security law, there is no estoppel to extend the authority of a decision-maker beyond that given by statute: Formosa and Anor v Secretary, Department of Social Security (1988) 46 FCR 117. There is no power to grant a pension to a person who is not qualified to receive one: Re Vallance and Director-General of Social Security (AAT 934, 17 January 1983).
On the basis of those authorities, I reject the contention that Centrelink is estopped from cancelling Miss Kesrouani’s age pension. Further, s 126 of the Social Security (Administration) Act 1999 allows review of pension payments, if the Secretary is satisfied there is a sufficient reason to do so.
Finally, I note that Miss Kesrouani has had the benefit of nearly $100,000 to which she had no entitlement, but Centrelink has waived the debt.
decision
The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ......[sgd]......................................................................
Associate
Date of Hearing: 9 June 2009
Date of Decision: 15 July 2009
Appearance for the Applicant: Mr J Kisrwani
Appearance for the Respondent: Ms J Maclean, Centrelink Legal Services
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