Milakovic and Secretary, Department of Employment ( Social services second review)

[2015] AATA 616

Milakovic and Secretary, Department of Employment ( Social services second review) [2015] AATA  616 (20 August 2015)

Division	GENERAL DIVISION
File Number	2015/0839
Re	Djordjo Milakovic
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	20 August 2015
Place	Sydney

The Tribunal affirms the decision under review.

.......................................................................

Ms G Ettinger, Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – whether Applicant residentially qualified to receive newstart allowance – Applicant held not to have been a resident on the day of application for the benefit – Applicant has been living in Serbia with his family since 2007 – wants to have pension paid there – decision under review affirmed

LEGISLATION

Social Security Act 1991 s 7(2)

Social Security (Administration) Act 1999 s 29

CASES

Re Clifopoulos and SDSS [1994] AATA 282

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Ms G Ettinger, Senior Member

20 August 2015

SUMMARY

1. Mr Djordjo Milakovic is a citizen of Serbia and Australia. He was born in 1951, and will be eligible for age pension at age 65 in 2016. He first arrived in Australia in 1973, and attained Australian citizenship on 10 October 1979.       

2. Mr Milakovic told me that he worked very hard in Australia. In 2007 he made a decision to move back to Serbia due to his wife’s illness and their doctor’s recommendation. He told me that he finished work on 1 July 2007, and left for Serbia with his family shortly afterwards. He sold his house in Australia, and has since established himself in Serbia where he owns a three bedroom apartment in which his family lives, a motor vehicle and other personal assets. He said neither he nor his wife have been working since they left Australia, and that the funds from the sale of the house in Sydney have now been depleted.

3. Mr Milakovic returned to Australia on 22 February 2014 for his brother’s funeral for the first time since he left in 2007, and stayed until 13 July 2014. In March 2014, Mr Milakovic contacted Centrelink with a view to obtaining a pension. He was given information regarding the residency requirements involved.

4. Mr Milakovic lodged a claim for Newstart allowance (NSA) in March 2014 which was rejected because he was not residentially qualified. That application is not subject of the review at this Tribunal. Following Mr Milakovic’s departure from Australia in July 2014, he returned in November 2014, and made further inquiries about receiving a pension benefit.

5. On 20 November 2014 Mr Milakovic applied for NSA. The decision of the Social Security Appeals Tribunal (the SSAT) dated 19 January 2015 which affirmed the decision of Centrelink and the Authorised Review Officer to reject the application is the subject of this application for review at the Tribunal. We were assisted at the Tribunal by Mr M Joyce, an excellent interpreter in the Serbian language. Ms B Salaji appeared for Respondent, the Department of Employment (the Department).

6. I have found from the evidence that Mr Milakovic cannot be held to be a resident of Australia at the time he made his application for NSA on 20 November 2014, and that he is accordingly not qualified to receive NSA.  My reasons follow.

   ISSUE BEFORE THE TRIBUNAL

7. The issue I must decide is whether Mr Milakovic is residentially qualified to receive NSA.

   APPLICABLE LEGISLATIVE ENACTMENTS

8. The relevant legislation in this matter is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

9. Section 593 of the Act sets out the qualification for NSA.

10. Section 29 of the Administration Act sets out the general rule regarding residence requirements for claimants:

    Section 29 General rule

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

    (a)         is an Australian resident; and

    (b)         is in Australia.

    …

11. Section 23 of the Act is relevant, and states that a social security benefit means:

    (a) newstart allowance; or

    ….

12. In order to be qualified to receive NSA, the Applicant must be an Australian resident for social security purposes at the time he lodged his claim for NSA.

13. Section 7(2) of the Act defines an Australian resident as follows. There is no question that Mr Milakovic is an Australian citizen. However, section 7(3) of the Act must be applied to consider whether he was a resident on the day he applied for a pension benefit.

    (2)  An Australian resident is a person who:

    (a)         resides in Australia; and

    (b)         is one of the following:

    (i)  an Australian citizen;

    (ii) …

    (iii) …

14. Section 7(3) of the Act which follows, sets out the criteria for deciding whether or not a person is residing in Australia.

    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.

15. ‘The Guide to Social Security Law’ (the Guide) at 3.1.1.10 states as follows:

    When making a determination about whether a person is 'residing' - in other words 'living' - in Australia, the key point is to establish that Australia is the person's settled or usual place of abode – i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases the balance of a person's ties will weigh more heavily in favour of one country than another.

16. I am satisfied that the Guide embodies Government policy, and ought to be applied unless there are cogent reasons to depart of which there are none in this case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

    MR MILAKOVIC’S EVIDENCE AND SUBMISSIONS

17. Mr Milakovic told me that he had worked very hard in Australia, and that he and his family moved to Serbia in 2007 on recommendations from their doctor because his wife was very ill. He said that she is now unable to travel due to issues with her health, some of which are documented in correspondence which is Exhibit A2 before the Tribunal. Mr Milakovic told me that because his wife is virtually immobile, he has had to assume responsibility for  the household chores.

18. Mr Milakovic told me that they had been living on the proceeds of the sale of their house in Australia, and had bought an apartment in which the family lives in Serbia, and a motor vehicle. He said that the money has now been depleted, he is 64 years old, and he has returned  to apply for a benefit. He understands that he cannot access the age pension till he turns 65 in 2016, and that he must remain for two years in order for it to be portable.

19. Mr Milakovic returned in February 2014 for the first time after leaving Australia in 2007 to attend the funeral of his brother, left again for Serbia in July 2014, and returned most recently in November 2014. He has been here since then, and presently lives rent free with his nephew. He said that he had made a couple of approaches to companies and clubs to do cleaning work, but that when they saw his age, they were not interested. He said that he would like to rent a small apartment closer to the city, but needs money to do that. He said that he had worked all those years in Australia, and never claimed any benefits, so that he felt entitled at this time.

20. Mr Milakovic says that he intends to stay in Australia because his older daughter, now 18, has finished high school in Serbia, and wants to enrol in tertiary studies in Sydney. He said that he hoped his daughter would receive some assistance from the Government. He says that he feels sad that his family will be separated, but cannot countenance leaving the young woman alone in Sydney. His younger daughter, now 15 years old, is still at school in Serbia.

    THE RESPONDENT’S SUBMISSIONS

21. Ms Salaji relied upon the Department’s Statement of Facts and Contentions to submit that Mr Milakovic did not meet the tests for residency in order to qualify for NSA, and that the decision of the SSAT should be affirmed. She referred to the relevant sections of the Act as detailed in the Statement of Facts and Contentions, and to the Guide.

22. Ms Salaji referred to the factors to be taken into account when deciding whether a person resides in Australia, to be determined by considering section 7(3) of the Act, and the Guide. She also referred to several cases which I will consider in the paragraphs below.

23. Ms Salaji submitted that taking into consideration all of the factors in section 7(3) of the Act, such as, but not limited to the Applicant’s extensive absence from Australia with minimal periods spent in Australia, the absence of any permanent accommodation or employment within Australia, and minimal family ties in Australia, the Applicant cannot be held to be an Australian resident for social security purposes. She cited Re Clifopoulos and SDSS [1994] AATA 282 in support of her submissions. She noted that the Applicant owns a three bedroom unit, a car and possessions in Serbia. His wife and children live there with him, and the children attend school in Serbia. The evidence indicates, she submitted, that the Applicant’s wife and younger daughter have no intention of returning to Australia.

24. Ms Salaji submitted accordingly that in view of the above, the Respondent considered that the Applicant, whilst an Australian citizen, was not an Australian resident at the date of his claim for NSA, and was unable to satisfy the requirements of section 7(3) of the Act.

    THE TRIBUNAL’S DELIBERATIONS AND DECISION

25. The issue before me was whether Mr Milakovic was residentially qualified to receive NSA at the date of his claim on 20 November 2014. In order to make that decision, I have applied the relevant sections of the Social Security Act, the Administration Act and the Guide.

26. Mr Milakovic’s intentions with regard to where he makes his residence are relevant. I noted that the Respondent tendered a copy of Mr Milakovic’s incoming passenger card dated 22 February 2014, which is Exhibit R2 before the Tribunal. That was his first return to Australia since leaving with his family in 2007, and setting up house in Serbia. He indicated on the card that he was visiting relatives or friends, and that he intended to stay for two months.

27. On 20 March 2014 the Applicant lodged a claim for NSA which is not part of the current application, and which was rejected by Centrelilnk because he was not residentially qualified.  

28. On 25 March 2014, with the assistance of an interpreter and a Departmental officer, Mr Milakovic wrote a statement for Centrelink, (Exhibit R3). In it he stated that he intended to remain in Australia for two years until he could apply for a pension. He also gave details of his depleting financial situation, and his wife’s ill health, and indicated that she was unable to travel. Mr Milakovic left Australia for Serbia again in July 2014, and returned in November 2014. On 20 November 2014, he made an application for NSA. As already stated above, that application was rejected by Centrelink, an Authorised Review Officer, and the SSAT. Mr Milakovic’s application for review to this Tribunal is before me.

29. In order to decide whether Mr Milakovic was an Australian resident on the date of his application for NSA in terms of section 7(2) of the Act, I have considered the application of section 7(3) of the Act. Section 7(3) of the Act sets out the criteria for deciding whether or not a person is residing in Australia. However guided by Re Clifopoulos, I am mindful that the criteria in section 7(3) of the Act not be applied mechanistically, and note that section 7(3)(f) provides for a consideration of any other relevant matter.

    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.

30. The Guide at 3.1.1.10 states as follows:

    When making a determination about whether a person is 'residing' – in other words 'living' – in Australia, the key point is to establish that Australia is the person's settled or usual place of abode – i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time.

31. In considering section 7(3)(a) of the Act I have noted that Mr Milakovic does not own or rent any property in Australia, and not done so since he sold his house and left for Serbia with his family in 2007. Since November 2014 when he last arrived in Australia, he has been staying with his nephew, but expressed to me the wish to move to rental accommodation closer to the city. He indicated he could not presently do that or pay rent, because he is not receiving any income support.

32. I have also, guided by Re Clifopoulos, noted that by contrast, the Applicant and his wife own a three bedroom apartment in Serbia in which he and his wife, and two daughters live.

33. The facts surrounding section 7(3)(a) of the Act weigh against a finding of Australian residency.

34. In considering section 7(3)(b) of the Act which deals with the nature and extent of the family relationships the Applicant has in Australia, I have noted that Mr Milakovic stays rent free with his nephew when he returns to Australia. He also has a brother who is in Australia with his family, and two sisters and two brothers in Serbia. All his wife’s family are in Serbia. Mr Milakovic lives in Serbia with his wife and two children, and has done so since 2007.

35. I accept the Respondent’s submission that on balance, the nature and extent of the Applicant’s family relationships are stronger in Serbia than in Australia.

36. In considering section 7(3)(c) of the Act which deals with the nature and extent of the person's employment, business or financial ties with Australia, I have noted that Mr Milakovic closed his business on 1 July 2007, and he has, according to his evidence, not worked or done business in Australia since. He operates one bank account in Australia which has a very small balance. He claims that neither he nor his wife have worked in Serbia since their arrival in 2007. I am satisfied therefore that Mr Milakovic’s employment, business or financial ties with Australia are virtually non-existent. That weighs against residency.

37. In considering section 7(3)(d) of the Act which deals with the nature and extent of the person's assets located in Australia, I have noted from his evidence that Mr Milakovic owns no assets in Australia, and that in Serbia he and his wife own a three bedroom apartment, a car, and furniture. He operates a bank account in Australia with a minimal amount of funds in it. I conclude that his assets in Australia are virtually nil. That weighs against residency.

38. In considering section 7(3)(e) of the Act which deals with the frequency and duration of the Applicant’s travel outside Australia, I have noted that Mr Milakovic spent approximately 30 years in Australia before the family left for Serbia in 2007. Following the family’s departure for Serbia in 2007, Mr Milakovic did not return until he returned to attend his brother’s funeral in February 2014. He then departed in July 2014, and returned in November 2014. In order to qualify for a pension benefit, he must have residency on the day of application for that benefit (which was 20 November 2014).

39. I must then consider section 7(3)(f) of the Act which deals with any other matter relevant to determining whether the person intends to remain permanently in Australia. I have noted above from a copy of Mr Milakovic’s incoming passenger card dated 22 February 2014 which was his first return to Australia, alone, following the family’s departure in 2007, that he indicated he was visiting relatives or friends, and that he intended to stay for two months.

40. At the hearing Mr Milakovic told me that he intended to stay in Australia in order to obtain a pension benefit, and intended in any case to stay because his older daughter was seeking to enrol in tertiary education here, and could not remain here alone. He said that it was sad the family had to be separated, but that his wife could not travel due to her medical condition. He also said that his younger daughter was still attending school in Serbia.

41. The criteria in section 7(3) of the Act all provide for different aspects of residing in Australia. There are Mr Milakovic’s extensive absences from Australia, from 2007 to February 2014, short periods spent in Australia as mentioned above, the absence of any permanent accommodation or employment in Australia after 2007, and few family ties in Australia. Accordingly I cannot be satisfied that the Applicant is an Australian resident for social security purposes.

42. As already stated, by contrast, he and his family live in, and own a three bedroom unit, a car and possessions in Serbia. His children live and attend school in Serbia, although Mr Milakovic has indicated that his older daughter wants to undertake tertiary study in Australia. He has indicated he wants to stay here to be with her, and until he can qualify for the age pension next year. Mr Milakovic told me that he has attempted on a couple of occasions to gain employment from companies or clubs as a cleaner, but that he has been rejected due to his age.

43. There is no indication the Applicant’s wife and younger daughter will return to Australia as Mr Milakovic’s wife cannot travel due to health issues, and the younger daughter, aged 15, is still at school in Serbia.

44. I am satisfied that all those factors point to the Applicant not satisfying section 7(3) of the Act, and the residency requirements. Therefore the decision under review must be affirmed.

    DECISION

45. The Tribunal affirms the decision under review.

I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

.............................[sgd]...........................................

Associate

Dated  20 August 2015

Date(s) of hearing	20 July 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services