Kruscic and Secretary, Department of Social Services (Social services second review)
[2017] AATA 427
•7 April 2017
Kruscic and Secretary, Department of Social Services (Social services second review) [2017] AATA 427 (7 April 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3855
Re:Branislav Kruscic
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:7 April 2017
Place:Sydney
The decision under review is affirmed.
....................[sgd]....................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – qualifying Australian residence – whether applicant was an Australian resident – Tribunal not satisfied applicant was an Australian resident – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 43(1), s 7; s43(1)
Social Security (Administration) Act 1999 s 29; s 30; s 30A; s 31; s 31A; s 32
Administrative Appeals Tribunal Act 1975 s 37
SECONDARY MATERIALS
Guide to Social Security Law: 3.1.1.10
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
7 April 2017
DECISION UNDER REVIEW
The applicant, Mr Kruscic, seeks review of the decision made by the Social Services and Child Support Division of this Tribunal (AAT1) on 2 June 2016 which affirmed the decision made by the Department of Human Services to reject his claim for age pension made on 21 December 2015.
THE ISSUE
The issue in this case is whether as at 11 November 2015, when the applicant lodged his application for age pension, or during the 13 week period following to 10 February 2016, Mr Kruscic was an “Australian resident” as required by section 29 of the Social Security (Administration) Act 1999 (the Administration Act) and defined in section 7 of the Social Security Act 1991 (the Act).
It is not in dispute that the relevant period for the Tribunal to assess Mr Kruscic’s entitlement to the age pension was during the 13 week period from 11 November 2015 to 10 February 2016.
THE RELEVANT STATUTORY PROVISIONS
The relevant statutory provisions follow.
Subsection 43(1) of the Act provides that a person is qualified for an age pension if the person has reached pension age and “any of the following applies”:
Relevantly, subsection 43(1)(a) provides that “the person has 10 years qualifying Australian residence”. One of the alternative definitions of “qualifying Australian residence” in section 7(5)(a) of the Act provides “the person has, at any time, been an Australian resident for a continuous period of not less than 10 years”. Pursuant to subsection 23(5A) of the Act pension age for a man born on or before 30 June 1952 is 65 years.
Section 29 of the Administration Act is entitled “General rule”. It provides that:
(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.
Section 30 of the Administration Act applies to a claim for a special benefit. Section 30A applies to claims for a crisis payment. Sections 31 and 31A exclude certain payments from the requirements of section 29. Section 32 applies to claims for sickness payments. Sections 30 to 32 of the Administration Act do not apply in this case.
Subsection 7(2) of the Act defines “Australian resident” to be a person who:
(a)Resides in Australia; and
(b)Is one of the following:
(i) An Australian citizen
(ii) …
Subsection 7(3) provides that:
(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.
BACKGROUND
The following findings are not contentious.
Mr Kruscic was born in Bosnia and Herzegovina in 1949. He is currently 67 years old. He reached age pension age of 65 years in 2014 and therefore satisfies the first part of the criterion in section 43(1) of the Act.
Mr Kruscic first arrived in Australia on 26 October 1988 and became an Australian citizen on 15 April 1991. He satisfies subsection 7(2)(b)(i) of the Act.
On 10 May 2001, twelve and a half years after arriving in Australia, Mr Kruscic departed Australia for Belgrade. He therefore satisfies the 10 years qualifying Australian residence criterion: see subsections 43(1)(a) and 7(5) of the Act.
Mr Kruscic returned to Australia on 8 November 2015 and lodged his claim for age pension on 11 November 2015. He therefore satisfies the requirement to be in Australia when he lodged his application: subsection 29(1)(b) of the Administration Act.
On 21 December 2015, the Department rejected his claim. Mr Kruscic subsequently departed Australia on 30 December 2015. He has not returned. The hearings with AAT1 and this Tribunal were conducted by telephone.
Mr Kruscic unsuccessfully sought review by the Authorised Review Officer and then AAT1.
CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS
The Tribunal considers each of the matters set out in section 7(3) of the Act in turn and the other relevant matters. The Tribunal does not consider that section 7(3) excludes consideration of other matters that the Tribunal considers are relevant to determining whether Mr Kruscic resided in Australia during the eligibility period, 11 November 2016 until 20 February 2016, noting of course that he left Australia on 31 December 2015.
The Tribunal has taken into account the material in the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, including:
·the evidence Mr Kruscic gave to AAT1 as recorded in the decision of that Tribunal;
·the evidence Mr Kruscic gave, and the arguments he made, before this Tribunal; and
·the written and oral submissions made on behalf of the respondent.
The Tribunal generally accepted Mr Kruscic’s evidence.
The nature of accommodation in Australia
Mr Kruscic’s evidence about his accommodation in Australia given in his application for review, to the AAT1 and this Tribunal was consistent. He purchased a one-way ticket to Australia. He intended to stay with friends and then, if his age pension was granted, he planned to find share accommodation in the Frenchs Forest area of Sydney.
When his claim was rejected, Mr Kruscic decided to return to Belgrade and purchased another one-way ticket for that purpose. He was aware of his right to seek review of the decision and did so, but did not have enough money to stay in Australia when his claim was unsuccessful.
The Tribunal accepts that Mr Kruscic had worked hard in Australia, expected that he would receive the age pension, and understood from Centrelink that if he remained in Australia for two years after being granted the age pension, he would be able to return to Belgrade and continue to receive it. He said that he was told if he left within two years after being granted the age pension it would be cancelled.
The Tribunal finds that Mr Kruscic intended to remain in Australia only long enough to ensure that he could receive his age pension in Belgrade. His remaining in Australia at all, depended on his claim for age pension being successful. It was not, and he left. He was in Australia for about seven and a half weeks.
The Tribunal has taken into account some claims Mr Kruscic made that he intended to remain here for the future, but does not accept that in light of conflicting evidence. Accordingly, the Tribunal considers that this factor weighs against a finding that Mr Kruscic was an Australian resident as of 11 November 2017.
The nature and extent of the family relationships the person has in Australia
Mr Kruscic separated from his wife after they left Australia in 2001. He has no partner. His son is in Serbia. His mother and two younger brothers are in Serbia. He denied ever saying that he was his mother’s carer. He said that his two younger brothers look after her. He said that he is old and has to care for himself. His father died in about 2000.
Mr Kruscic claims that he is friends with the individuals he stayed with in Australia. In addition, he has a cousin in Australia.
Given the limited nature and extent of the family relationships that Mr Kruscic has in Australia, the Tribunal considers that this factor weighs against a finding that he was an Australian resident as of 11 November 2017.
The nature and extent of the person’s employment, business or financial ties with Australia
Mr Kruscic said that it was hard to find work at his age, 67. The Tribunal accepts that is so. On the evidence, Mr Kruscic has no employment or business ties with Australia.
The applicant’s financial ties to Australia are limited. He has a few bank accounts in Australia containing about $2,600 which he says he cannot access in Serbia. He held shares worth about $3,000 which he said he sold in December 2015 in order to return to Serbia. He had been paid a dividend on those shares in September 2015. His listed address was in Belgrade and he was identified as “non-resident”. He receives a monthly pension of about $150 in Serbia and pays no rent there. He does some part-time work for his younger brother.
The Tribunal considers that this factor weighs against a finding that Mr Kruscic was a resident as of 11 November 2017.The nature and extent of the person’s assets in Australia
The applicant’s assets in Australia are the bank accounts referred to in the previous paragraph.
In light of the applicant’s minimal assets in Australia, the Tribunal considers that this factor weighs against a finding that Mr Kruscic was a resident as of 11 November 2017.
The frequency and duration of the person’s travel outside Australia
The Tribunal takes into account the Social Security Guide which states (at 3.1.1.10):
Taken in isolation, a 3 continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return …
The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence.
The Tribunal finds that Mr Kruscic left Australia on 10 May 2001 and only returned on 8 November 2015 in order to lodge his claim for age pension. The Tribunal finds that he was not residing in Australia from 2001 until his return in 2015.
Accordingly, the Tribunal considers that this factor weighs against a finding that Mr Kruscic was a resident as of 11 November 2017.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
While Mr Kruscic has claimed that he intended to reside permanently in Australia when he returned in November 2015, the Tribunal has found, for the reasons set out above, that he only intended to remain in Australia if he was granted the age pension and then for a period of what he thought would be about two years, until he would be able to receive his pension in Serbia.
CONCLUSION
Taking into account all the matters discussed above, the Tribunal does not accept that Mr Kruscic was residing in Australia at any time during the eligibility period. He therefore does not satisfy the eligibility criteria for age pension.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
..............................[sgd]..........................................
Associate
Dated: 7 April 2017
Date of hearing: 29 November 2016 Applicant: By phone Solicitors for the Respondent: Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Intention
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Jurisdiction
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Appeal
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