Mihai and Ors and Secretary Department of Families Community Services and Indigenous Affairs and Ors
[2007] AATA 1894
•26 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1894
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600024
GENERAL ADMINISTRATIVE DIVISION ) RE GHEORGHE MIHAI Applicant
aND SECRETARY DEPARTMENT OF FAMILIES COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent
No W200600053 rE Secretary Department of Employment and workplace Relations Applicant and marioara mihai Respondent
No W2006000181
RE SECRETARY DEPARTMENT OF FAMILIES COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant AND GHEORGHE MIHAI Respondent DECISION
Tribunal Mr A Sweidan, Senior Member Date26 October 2007
PlacePerth
Decision The Tribunal affirms the decision under review in application number W200600024. The Tribunal sets aside the decisions under review in application numbers W200600053 and W200600181. The Tribunal remits these matters to the decision maker for further consideration as to the application of the relevant provisions of the Social Security (Administration) Act (1999), having regard to the Tribunal’s decisions.
.............(Sgd. A Sweidan).......................
Senior Member
CATCHWORDS
Social security – whether parties resident in Australia – tests to be applied.
LEGISLATION
Social Security Act 1991 s 7(3), s 1061PA
Social Security (Administration) Act (1999) s 126
CASES
Clifopoulos and Secretary Department of Social Security (1995) 36 ALD 745
Hafza v Director General of Social Security (1985) 6 FCR 444
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1992) 92 ALR 93
REASONS FOR DECISION
26 October 2007 Mr A Sweidan, Senior Member BACKGROUND
1. Application numbers W200600024 and W200600053 are applications for review of a decision of the Social Security Appeals Tribunal (SSAT) given on 30 January 2006. Details of the decision are set out below.
2. Application number W200600181 is an application for review of a decision of the SSAT given on 16 May 2006. Details of the decision appear below.
3. It is necessary to set out in some detail the history of these matters which was determined by the Tribunal to be as follows, based on the evidence in the SSAT and in the Tribunal:
HISTORY
4. Mr and Mrs Mihai were both born in Romania. They first arrived in Australia on 29 September 1995 on a sub-class 126T (Resident – Independent Entrant) visa.
5. Mr and Mrs Mihai were granted Australian citizenship on 26 January 1998.
6. Mr Mihai claimed to have been in paid employment during 1996 - 1997. He has stated that in May 1997 Mrs Mihai became very sick and he ceased working so he could look after his wife (W2006/24 T2 page 11-12). Mrs Mihai suffers from the medical condition known as myasthenia gravis.
7. On 1 July 1997 Mrs Mihai applied for a Disability Support Pension (DSP). The DSP was granted and commenced on 10 July 1997.
8. Mr Mihai applied for Carers Payment (CP) and Carer Allowance (CA) on 7 May 1998. The CP and CA payments were granted and commenced on 14 May 1998 (W2006/24 T16 page 134).
9. On 19 February 1999 Mr and Mrs Mihai informed Centrelink of their intention to go overseas from 27 March 1999 for more than 6 months but less than 12 months (W2006/53 T4 page 53).
10. Mr and Mrs Mihai returned to Australia on 24 November 1999. Mrs Mihai’s DSP was portable (meaning that the benefit was still payable while she was out of the country) for 12 months so she continued to receive DSP payments while overseas. Mr Mihai was advised he could be paid for a maximum of 3 months while overseas. On 23 September 1999 Mr Mihai was sent a notice advising that his CP was cancelled as he had been overseas longer than 3 months.
11. On 3 February 2000 Centrelink was notified that Mr and Mrs Mihai were separated and that Mr Mihai was going overseas (W2006/53 T4 page 54). As a result of this information Mr Mihai’s CP and CA payments were cancelled.
12. On 9 February 2000 Centrelink was notified that Mr and Mrs Mihai were a couple again (W2006/53 T4 page 55). Mr Mihai’s payments were restored and he travelled overseas claiming that he was taking a “respite break”.
13. On 9 February 2000 Centrelink was notified that Mrs Mihai planned to travel to Romania and would be meeting up with her husband on 19 March 2000 (this ended his respite period) (W2006/53 T4 page 56). Mrs Mihai continued to receive her DSP payments while she was overseas, as the payments were portable for 12 months. Mr Mihai’s Carer Payments were cancelled from 15 June 2000.
14. On 10 July 2000 Mr Mihai telephoned Centrelink regarding the need to stay out of Australia due to his wife’s illness. Mr Mihai was advised that his benefits were only portable for 3 months (W2006/181 T18 page 382).
15. On 1 December 2000 Mr and Mrs Mihai returned to Australia.
16. On 28 February 2001 Mr Mihai advised Centrelink that he and his wife were again going to Romania. He advised that their return date was uncertain but that they would be away more than 6 months (W2006/181 T18 page 377).
17. On 17 August 2001 Mrs Mihai’s sister (their nominee) contacted Centrelink and advised that Mrs Mihai needed hospitalisation and could not return to Australia. She requested that Mr Mihai’s payments be continued beyond the end of the portability date, as Mr Mihai needed to stay with his wife (W2006/181 T18 page 374-375). Evidence was provided to Centrelink to show that Mrs Mihai was ill in Romania and a discretionary decision was made to extend Mr Mihai’s payments.
18. On 14 November 2001 Mr and Mrs Mihai returned to Australia.
19. On 27 March 2002 Mr and Mrs Mihai advised Centrelink they again intended to leave Australia and travel overseas (W2006/181 T18 page 364 and W2006/53 T4 page 61). Centrelink advised that Mr and Mrs Mihai would continue to receive payments until 26 September 2002.
20. On 25 September and 4 October 2002 Mrs Mihai’s sister (their nominee) called Centrelink and advised that Mr and Mrs Mihai were not able to return home. She requested that Mr Mihai’s payments be extended. Centrelink requested evidence be provided to establish why they were unable to return to Australia. A doctor’s report was provided that showed Mr Mihai had injured his back (W2006/181 T18 page 362). A discretionary extension of the portability of Mr Mihai’s payments was granted.
21. On 30 October 2002 Mr and Mrs Mihai returned to Australia.
22. On 28 March 2003 both Mr and Mrs Mihai informed Centrelink that they were again going overseas. Both of their payments were portable until 27 September 2003 (W2006/181 T18 page 357 and W2006/53 T4 page 57).
23. On 26 September 2003 Mr and Mrs Mihai returned to Australia.
24. On 5 March 2004 Centrelink was advised that Mr and Mrs Mihai were again travelling overseas. Both of their payments were portable until 23 September 2004 (W2006/181 T18 page 351).
25. On 6 October 2004 Centrelink received a letter from a hospital in Romania advising that Mrs Mihai had been admitted to hospital. A discretionary decision was made to extend the portability of their payments until 14 November 2004.
26. On 8 November 2004 Mr and Mrs Mihai returned to Australia.
27. On 10 January 2005 Mr and Mrs Mihai lodged claims for Pensioner Education Supplement (PES). They had enrolled in a TAFE course (Certificate IV Financial Services).
28. On 21 February 2005 Mrs Mihai’s claim for PES in respect of her enrolment in a TAFE course (Certificate III Financial Services (Accounts Clerical)) was determined to be less than 25% and on 21 February 2005 Mrs Mihai was sent a notice advising of that decision.
29. On 21 February 2005 Mr Mihai was given a notice advising of the grant of his PES.
30. On 22 March 2005 Mr and Mrs Mihai again advised Centrelink that they were going overseas. Their payments were portable until 24 June 2005. On 23 June 2005 Centrelink was advised that Mrs Mihai was ill and in hospital. Correspondence from a doctor was received and the portability of their payments was extended until 5 August 2005. A further request to extend the portability of the payments was made on 28 July 2005 due to Mrs Mihai’s continued illness. The portability was extended until 16 September 2005 (W2006/181 T18 page 337-334).
31. On 8 June 2005 a decision was made to cancel the original decision to grant PES to Mr Mihai as his workload was assessed as being less than 25%.
32. On 20 September 2005 Ms Cecil an Authorised Review Officer (ARO) at Centrelink affirmed the decision to cancel Mr Mihai’s PES. The ARO also considered the Australian residency of Mr Mihai and decided that he had not been a resident of Australia since his departure from Australia on 25 March 2005. The ARO decided that Mr Mihai did not qualify for CP or CA payments after 25 March 2005 and those payments were cancelled.
33. On 22 September 2005 Ms Cecil also made a decision to affirm the decision to reject Mrs Mihai’s claim for PES. As part of the review the ARO decided that Mrs Mihai had not been a resident in Australia since her departure from Australia on 25 March 2005. The ARO decided that Mrs Mihai did not qualify for DSP after 25 March 2005 and her payments were cancelled.
34. On 20 October 2005 Mr and Mrs Mihai returned to Australia.
35. Upon his return to Australia (and as his benefits had been cancelled on 20 September by the ARO) Mr Mihai lodged new applications for the CP and CA with Centrelink. The payments were granted from 1 November 2005.
36. On 14 November 2005 Mr Mihai requested a review of the decision to grant him the CP and CA from 1 November, as he apparently believed he was entitled to be paid from an earlier date.
37. On 21 November 2005 following the review the decision to grant the CP and CA payments from 1 November 2005 was changed. The new decision was that Mr Mihai’s claim for payment was denied altogether because he was not considered to be an Australian resident.
38. On 25 November 2005 Mr and Mrs Mihai appealed that decision of the ARO (in relation to their PES entitlements) to the SSAT.
39. A hearing of the application to the SSAT was held on 13 January 2006 and on 30 January 2006 the SSAT decided that:
(a)Mr Mihai qualified for PES from 1 January 2005 to 25 March 2005 at a rate of $31.20 per fortnight but that Mr Mihai did not qualify for PES after 25 March 2005.
(b)Mrs Mihai qualified for PES from 1 January 2005 to 25 March 2005 at a rate of $62.40 per fortnight and she continued to be qualified for PES for 13 weeks from 25 March 2005 due to portability.
(c)Mrs Mihai was entitled to be paid Education Entry Payment in 2005.
(d)Mr Mihai’s CP and CA payments were to be cancelled on 25 March 2005, as he was no longer an Australian resident.
(e)Mrs Mihai’s DSP was portable for the period 25 March to 20 October 2005 and should not have been cancelled.
40. On 7 February 2006 Mr Mihai filed an application to the Administrative Appeals Tribunal (the Tribunal) seeking a review of the decision of the SSAT in relation to his PES entitlements and the cancellation of his CP and CA benefits (application W200600024).
41. On 28 February 2006 the Secretary of the Department of Employment and Workplace Relations filed an application to the Tribunal for a review of the SSAT decision so far as it related to Mrs Mihai (application W200600053).
42. On 24 March 2006 an ARO affirmed the decision of Centrelink, made on 21 November 2005 (see para 37 above), denying Mr Mihai CP and CA.
43. On 27 March 2006 Mr Mihai appealed to the SSAT. A hearing was held on 16 May 2006 and on the same day the SSAT decided to set aside the decision (that denied Mr Mihai the carer payment and allowance) on the basis that from 21 October 2005 he was a resident of Australia.
44. On 21 June 2006 the Secretary of the Department of Families, Community Services and Indigenous Affairs made an application to the Tribunal for a review of that SSAT decision (application W2006/181).
Issues
45. The threshold issue for determination by this Tribunal is whether Mr and Mrs Mihai were Australian residents on 25 March 2005 or, in the case of Mr Mihai on 20 October 2005. Their entitlement to the various social security benefits referred to above is, in the first instance, subject to them being Australian residents.
SSAT FINDINGS –TRIBUNAL’S VIEWS
W200600024 and W200600053
46. The SSAT made a number of findings of fact (T2 page 21-22 W2006/24). The relevant findings of fact which are set out below do not appear to be in dispute and the Tribunal adopts those findings.
47. The SSAT decision also sets out the applicable law (T2 page 21-24) and in the Tribunal’s view correctly refers to the relevant sections of the Social Security Act 1991 (the Act) and the Social Security Administration Act 1999 (the Administration Act). The relevant sections in relation to the PES entitlement are also discussed by the SSAT (T2 page 21).
48. The SSAT decision states (at T2 page 25):
“(42) Section 1061PN(1) of the Act requires a person to be an Australian resident, and if overseas, be absent from Australia for not more that 13 weeks, unless the absence is for the purpose of undertaking part of the studies. This means the PES, if payable to Mr and Mrs Mihai, can only be paid for up to 13 weeks after their departure from Australia on 25 March 2005
(43) If a person loses basic qualification to a social security payment their entitlement to PES will be cancelled in accordance with section 118 of the Administration Act.”
49. The SSAT considered “Qualification for Payments and Australian Residence” and whether there is a basis for saying that Mr and Mrs Mihai were no longer residing in Australia on 25 March 2005. In relation to residency in Australia, the SSAT states (at T2 page 22):
“(49) The qualification for CDA is contained in section 954 of the Act and requires that both the person providing care and the care receiver are Australian residents …
(50) The qualification for DSP is contained in section 94 of the Act and relevantly requires that the person is an Australian resident at the time when the person first satisfies section 94(1)(c) of the Act. The Tribunal accepts that Mrs Mihai satisfies this requirement.
(51) The term “Australian Resident” is defined in section 7(2) of the Act and relevantly provides that a person who resides in Australia and is an Australian citizen is regarded as an Australian resident for the purposes of the Act. Mr and Mrs Mihai are both Australian citizens.”
50. Section 7(3) of the Act sets out factors that must be taken into account when considering whether or not a person is an Australian resident. 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.”
These factors are not expressed to be exhaustive and therefore other relevant matters can be considered.
51. The Tribunal agrees with the SSAT’s view that the converse of each factor in subsection 7(3) of the Act can be considered in determining whether a person is or is not residing in Australia (Clifopoulos and Secretary Department of Social Security (1995) 36 ALD 745). The Tribunal also notes the observation by Justice Wilcox of the Federal Court in Hafza v Director General of Social Security (1985) 6 FCR 444 who observed 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. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (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.’
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 : see Commissioners of Inland Revenue v. Lysaght (1928) AC 234 a p 248 and Keil v Keil (1947) VR 383 -- 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 -- Levene v. Inland Revenue Commissioners (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" -- see Norman v Norman (1969) 16 F.L.R. 231 at p.236 It is important to observe firstly, that a person may simultaneously be a resident in more than one place -- see the facts of Lysaght and the reference by Williams J. to "a home or homes" -- and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.”
52. The Tribunal agrees with the contention by the Secretaries that a statement that a person intends to stay in Australia is not of itself conclusive of residence and must be viewed against the totality of the evidence (Clifopoulos supra).
The nature of the accommodation used by the person in Australia
53. The evidence given before the SSAT by Mr and Mrs Mihai was that since their arrival in Australia they have lived in various rental premises and have also stayed in rent-free accommodation. Most of their rental accommodation has been short-term leases of furnished apartments.
54. The Tribunal finds on the evidence that Mr and Mrs Mihai have had mostly short-term accommodation in Australia and that there is no evidence that they have at any relevant time displayed an intention to find permanent accommodation in Australia.
The nature and extent of the family relationships the person has in Australia
55. Mr and Mrs Mihai have few family members in Australia. Mrs Mihai stated that she has a sister in Perth. Her sister is married and has a child. She also has an aunt in Australia. The rest of Mrs Mihai’s family is in Romania. Mr Mihai’s family is also in Romania.
56. The Tribunal finds that the majority of Mr and Mrs Mihai’s family are outside of Australia and that they have very little family connection to Australia.
The nature and extent of the person’s employment, business or financial ties with Australia
57. Mr and Mrs Mihai told the SSAT that they have no employment, business or financial ties with Australia.
The nature and extent of the person’s assets located in Australia
58. The evidence shows that Mr and Mrs Mihai have no significant assets located in Australia.
The frequency and duration of the person’s travel outside Australia
59. The Tribunal refers to page 25-26 of the SSAT decision (T2 page 29-30). The SSAT sets out a table, which clearly shows the period of time spent outside Australia by Mr and Mrs Mihai during the 6 year period from March 1999 to October 2005. Although there are some minor discrepancies, the Tribunal finds that the Mihai’s departure and return dates are as follows:
Date of Departure from Australia Date of Arrival in Australia 27 March 1999 24 November 1999 8 months 6 February 2000*/16 March 2000** 1 December 2000 10months 8½ months 28 February 2001 14 November 2001 8½ months 28 March 2002 26 September 2002 6 months 29 March 2003 26 September 2003 6 months 25 March 2004 8 November 2004 7½ months 25 March 2005 20 October 2005 7 ½months * Mr Mihai’s departure date ** Mrs Mihai’s departure date
60. This shows that from 27 March 1999 to 25 March 2005 Mr and Mrs Mihai spent approximately two thirds of the time overseas. In the period 27 March 1999 to 20 October 2005, Mr Mihai spent approximately 68 per cent of the time outside Australia while Mrs Mihai spent approximately 67 per cent of the time outside Australia. Even if the amount of time is calculated on a calendar year basis, in the seven years between 1 January 1999 to 31 December 2005, Mr Mihai spent around 64 per cent of the time, and Mrs Mihai around 63 per cent of the time, outside Australia.
61. The Tribunal finds that such continual repeated and regular lengthy annual absences from Australia ie approximately two-thirds of each year over a long period of time together with the other factors referred to above and below clearly show that Mr and Mrs Mihai were not residing in Australia in the relevant period.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
62. Mr and Mrs Mihai claim that the reason for their absence from Australia is to get medical treatment for Mrs Mihai’s condition in Romania which they claim is not available in Australia. However, the type of medical treatment obtained overseas has not at any time been satisfactorily explained either by the Mihais or a medical practitioner. Evidence before the Tribunal from independent medical experts was that it is highly unlikely that there is any recognised form of treatment in Romania which is not available in Australia.
63. Mr and Mrs Mihai relied on Dr Tierney’s reports and claimed that Mrs Mihai’s treatment in Romania was undertaken on Dr Tierney’s advice. She was Mrs Mihai’s general practitioner. Mrs Mihai did not give evidence before the Tribunal and declined to call Dr Tierney. The Tribunal called Dr Tierney.
64. The effect of Dr Tierney’s evidence was that Dr Tierney said that she had agreed that Mrs Mihai should travel to Romania. The Tribunal is unable to find that Dr Tierney “advised” Mrs Mihai to travel to Romania for treatment having regard to the following evidence.
65. Dr Tierney said:
(i)In response to a question directed as to reasons why Dr Tierney did not look into neurological treatment for Mrs Mihai after the initial attendance on Dr Mastaglia,
Question – “And is that because Mrs Mihai said to you “Look, as far as I am concerned, I am perfectly happy getting the treatment I am by getting medication from you here and by going off to Romania and getting treatment there.”
Answer – “That is one – yes”
(ii)She said that she did not recommend that Mrs Mihai stay in Romania for six months.
(iii) “How was I going to send you or anybody else to Romania”
(iv) In response to a question –
Question – “so what shall I do as a patient, will my doctor send me overseas for three months –
Answer – “well, everyone has a choice you know, whether they go or not, so you know”
66. The evidence of Dr Tierney was that she did not know or understand what treatment was provided to Mrs Mihai in Romania except that she believed it was of some homeopathic or naturopathic nature. It is clear in the Tribunal’s view that as a medical practitioner she was not able to advise that such treatment be undertaken or to send Mrs Mihai to Romania for such treatment, nor did she do so.
67. The Tribunal notes that letters were apparently written by Dr Tierney at the request of Mrs Mihai to Centrelink without indicating to Centrelink that Dr Tierney did not know the nature of the treatment administered to Mrs Mihai in Romania, nor the part that any such treatment played in Mrs Mihai’s medical condition.
68. Dr Tierney could not locate her notes in respect of the treatment results in the mid 1990s and on questioning as to the content of the notes summonsed to the Tribunal, Dr Tierney could not point to any part of the notes which showed relevant pathological changes in Mrs Mihai’s condition on pathological testing immediately before leaving for Romania and on returning from Romania. Also, based on the report of Dr Burak (R2) who analysed those notes (also referred to in the report of Dr Beran) the pathological tests did not disclose any relevant changes.
69. Reference was made to improvement in bone densities but Dr Tierney did not say that that occurred as a result of any treatment.
70. Without any specific evidence as to the nature of the alleged treatment in Romania and any manner in which it may have assisted Mrs Mihai, the Tribunal is unable to find that benefit arose from any treatment in Romania or that it was necessary for her to travel to Romania for any such treatment. The Tribunal is also unable to find on the evidence that any such treatment was not available in Australia.
71. Mrs Mihai refused to give evidence, and therefore, she could not be asked as to the type, extent and duration of any treatment in Romania.
72. Mr Mihai was not in his evidence able to assist the Tribunal with any evidence of the nature and extent of any treatment obtained by Mrs Mihai in Romania or to say whether it improved Mrs Mihai’s circumstances or condition.
73. The Tribunal finds that Mr and Mrs Mihai resided outside Australia for lengthy periods of time being approximately two-thirds of each year over the relevant years for their own purposes and of their own choice and not for the claimed purpose of obtaining medical treatment for Mrs Mihai’s condition.
Mr Mihai’s Carer Payment, Carer Allowance and PES
74. The Tribunal also finds that the SSAT decision that Mr Mihai did not qualify for PES after 25 March 2005 and did not qualify for CP or CA payments after 25 March 2005 is correct and should be affirmed.
Mrs Mihai’s PES and EEP
75. The Tribunal further finds that the SSAT decision that Mrs Mihai did qualify for PES after 25 March 2005 is incorrect and should be set aside.
76. The Tribunal notes that section 1061PA of the Act provides that a person is qualified for the PES supplement if the person:
(a)is undertaking qualifying study; and
(b)is receiving a payment attracting pensioner education supplement; and
(c)is of pensioner education supplement age; and
(d)meets the residency requirements under Subdivision E.
77. Subdivision E at section 1061PM provides that a person meets the residency requirements if the person is an Australian resident.
78. As set out above the Tribunal finds that Mrs Mihai ceased to be an Australian resident on 25 March 2005 and she therefore automatically ceased to qualify for PES and Education Entry Payment as only an Australian resident can qualify for this supplement payment.
W200600181
79. This is an application by the Secretary for the Department of Families, Community Services and Indigenous Affairs (the Secretary) for review of the SSAT’s decision of 16 May 2006. The SSAT found that the Mihais were Australian residents from the time they re-entered Australia on 20 October 2005. The key issue is whether Mr Mihai became a resident of Australia upon re‑entry. The Tribunal finds that the SSAT decision is incorrect and should be set aside, for the reasons set out earlier as well as the further reasons which follow.
80. The SSAT considered the indicia of residency pursuant to section 7(3) of the Act. In weighing up the evidence, the SSAT concluded that Mr and Mrs Mihai:
“ -Have a 6 month lease on a furnished apartment in Jolimont, Western Australia commencing from 27 October 2005. The lease requires he gives 60 days notice for termination.
-Have some family relationships in Australia. Mrs Mihai’s sister and aunt’s sister and family live in Western Australia. The amount of socialising they engage in is limited by health considerations and financial constraints.
-Have limited financial ties to Australia. Their income is derived from Centrelink benefits. He does not work because he looks after his wife, who has serious illnesses.
- Have few assets in Australia.
-Have spent more than 60% of their time in Romania in the period from 27 March 1999 to 20 October 2005.”
81. The SSAT concluded that Mr and Mrs Mihai returned to Australia from Romania on 20 October 2005 with the intention of residing permanently in Australia and that therefore they were residents upon return. The SSAT’s conclusion resulted in Mr Mihai being residentially qualified for CP and CA from that date. The Tribunal is however of the view that as set out below the SSAT was wrong in finding that the Mihais had a 6‑month lease of a furnished apartment in Jolimont and gave insufficient weight to the other indicia set out above that in the Tribunal’s view clearly demonstrated that the Mihais were not residents of Australia at the relevant times.
82. The Tribunal finds that the Mihais had apparently arranged their affairs so that they appeared to be maintaining a degree of continuity of association with Australia, but that this was not in fact so and that there is no sufficient basis for the couple to be considered to be ‘residing in Australia’ at the relevant times. The Tribunal finds that the Mihais did not have the requisite intention or attitude that Australia is or remains their ‘home’. Rather, their actions show a strong affiliation with their country of origin, Romania, which is best illustrated by the substantial amount of time they have spent in Romania every calendar year from 1999 to 2005 and their lack of any real ties to Australia.
83. As stated above the evidence shows that Mr and Mrs Mihai have minimal ties to Australia. They have virtually no assets in Australia (including almost no furniture), no Australian business connections, no financial ties in Australia, no Australian employment and only limited family ties in Australia.
84. The Tribunal also finds that Mr and Mrs Mihai have not at any relevant time displayed an intention to stay in Australia on any long term or permanent basis other than by way of self – serving statements.
85. The Tribunal also notes that the SSAT appears to have made an error in relation to the nature of the Mihai’s Jolimont lease. Para 18 of the SSAT decision states:
“The Tribunal reviewed the 6 month lease Mr and Mrs Mihai had taken on a furnished apartment in Jolimont, Western Australia commencing from 27 October 2005 and confirmed that 60 days notice for termination of the lease was required in normal circumstances.”
86. A copy of the lease appears in the T documents at T 4 page 74-74. Clause (1) states that is a weekly tenancy. Clause 3(p) of the lease states that the Tenant covenants with the Owner:
“To give the Owner 21 days clear days written notice of his intention to vacate the premises…”
87. Clause 4(f) of the lease provides that it is mutually agreed that:
“The Owner may, not less than 6 months after the day upon which this Agreement commences and upon giving 60 days notice in writing to the Tenant of his intentions to do so…increase the rent payable…”
88. The SSAT appears to have mistakenly interpreted this as a 6 month term. Clearly only 21 days are required if there is an intention to vacate and it was therefore only a short term lease.
Section 126 of the Social Security (Administration) Act 1999
89. Mr and Mrs Mihai contended in their submissions that as they notified Centrelink prior to leaving Australia for Romania in March 2005 and Centrelink decided not to terminate payments Centrelink was thereafter precluded from reconsidering those decisions, particularly once Mr and Mrs Mihai left Australia and were overseas.
90. However, the Tribunal finds that by virtue of s 126 of the Social Security (Administration) Act 1999, the Secretary had an unqualified discretion to review a decision if the Secretary was satisfied that there was sufficient reason to undertake such review: s 126(1)(a) cf Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1992) 92 ALR 93.
91. The PES decision in respect of Mr Mihai made on 8 June 2005 (T7, p. 104 in W200600024) and the other decisions in issue (as a consequence of the decision of the SSAT of 25 January 2006) were reviewed in respect of Mr and Mrs Mihai on 20 and 22 September 2005 respectively, by the Authorised Review Officer, Ms J Cecil. She reviewed the facts, particularly after interviewing Mr Mihai on 13 and 15 September 2005 by telephone. While Mr Mihai disputed certain aspects of Ms Cecil’s evidence, the Tribunal finds her to be a credible witness whose testimony was unshaken by vigorous cross-examination.
92. The right to review the decisions in respect of Mr Mihai’s carer payment, carer allowance and PES, and Mrs Miahi’s PES and EEP, was as noted above unrestricted.
93. It is clear that the Centrelink officers who made the initial decisions acted on the information available to them at the time without the benefit of the further information subsequently obtained by Ms Cecil.
DECISION
94. The Tribunal affirms the SSAT decision of 30 January 2006 that Mr and Mrs Mihai were no longer Australian residents when they left Australia on 25 March 2005. (W200600024).
95. The Tribunal also affirms the SSAT decision of 30 January 2006 that Mr Mihai did not qualify for PES after 25 March 2005 and did not qualify for CP or CA payments after 25 March 2005. (W200600024).
96. The Tribunal sets aside the SSAT decision of 16 May 2006 that Mr Mihai’s CP and CA payments should not have been cancelled. (W200600181).
97. Further, the Tribunal finds that the SSAT decision of 30 January 2006 that Mrs Mihai did qualify for EEP and PES after 25 March 2005 is incorrect and is set aside and substituted with the decision that Mrs Mihai was not resident in Australia after 25 March 2005 and so does not qualify for payment of the EEP or PES after that date. (W200600053). The Tribunal remits these matters to the decision-maker for further consideration as to the application of the relevant provisions of the Social Security (Administration) Act (1999) having regard to the Tribunal’s decisions.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: .....................(Sgd. R Riberi).............................
AssociateDates of Hearing 19 October 2006;
13 and 14 February 2007; and12 and 13 June 2007
Date of Decision 26 October 2007
Representative for Mr & Mrs
Mihai Self Represented
Counsel for the Secretaries Mr J Lenczner
Solicitor for the Secretaries Australian Government Solicitor
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