Miroslav Rajkovic and Secretary, Department of Social Services
[2014] AATA 502
•23 July 2014
[2014] AATA 502
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5156
Re
Miroslav Rajkovic
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 23 July 2014 Place Sydney The decision under review to refuse Mr Rajkovic’s claim for the age pension because he is not an Australian resident is affirmed.
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Deputy President RP Handley
CATCHWORDS
SOCIAL SECURITY - Age Pension - Claim refused for failure to meet residence requirements - Whether Applicant Australian Resident - The nature of the accommodation used by the Applicant in Australia - The nature and extent of the family relationships the Applicant has in Australia - The nature and extent of the Applicant's employment, business or financial ties with Australia - The nature and extent of the Applicant's assets located in Australia - The frequency and duration of the Applicant's travel outside Australia - Applicant did not reside in Australia at time of application - Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), ss 7(3), 43
Social Security (Administration) Act 1999 (Cth), s 29
CASES
Ahern and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 665
Clifopoulos and Department of Social Security (1994) 36 ALD 745
Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773
Hafza v Director-General of Social Security (1985) 6 FCR 444Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
REASONS FOR DECISION
Deputy President RP Handley
23 July 2014
1.Mr Rajkovic has applied to the Tribunal for the review of a decision of the Social Security Appeals Tribunal (SSAT) to affirm a decision to refuse his claim for the age pension on the ground that he did meet the relevant residence requirements.
BACKGROUND
Mr Rajkovic was born in Serbia in July 1930 and is aged 84. He is a Serbian citizen and is currently living in Belgrade with his wife. Mr Rajkovic first came to Australia in March 1996. He and his wife arrived on a Subclass 103 (Parent) visa, his son having arrived in Australia in 1988.
Since his arrival in 1996, Mr Rajkovic has travelled between Australia and Serbia on a number of occasions. Nevertheless in 1996, he was found to have fulfilled the 10 year Australian residency requirement for eligibility for the age pension and was granted the age pension in April 2006, having previously received carer’s pension in respect of his wife. Since then, Mr Rajkovic has continued to divide his time between Australia and Serbia. Details of the time Mr Rajkovic spent outside of Australia after being granted the age pension are shown in the following table, which is drawn from the records maintained by the Department of Immigration and Border Protection.
Departed Australia
Returned to Australia
7 August 2006
26 December 2006
2 April 2007
31 December 2008
2 April 2009
6 December 2010
2 April 2011
27 November 2012
27 February 2013
Remains overseas
The Department of Immigration and Border Protection records show that in the period of approximately six years from 2 April 2007 to 3 April 2013, Mr Rajkovic was in Australia for 302 days of a total of 2,194 days; spending 13.8% of his time in Australia and 86.2% of his time in Serbia.
In January 2011, Mr Rajkovic made a claim for carer’s allowance. On 27 January 2011, Centrelink refused Mr Rajkovic’s claim on the basis that he was not permanently residing in Australia. Mr Rajkovic subsequently informed Centrelink of his intention to travel to Serbia on 2 April 2011. Pursuant to this, Centrelink wrote to Mr Rajkovic on 18 March 2011, advising that if he were to leave the country as planned on 2 April 2011, his concession card entitlements would cease on 2 July 2011. The letter also advised Mr Rajkovic that if he did not return to Australia by 1 October 2011 as he had advised, his age pension would be reassessed. Mr Rajkovic did not return to Australia by that date and his pension was cancelled with effect from 1 October 2011. On 21 December 2011, Centrelink wrote to Mr Rajkovic informing him of this.
Mr Rajkovic returned to Australia on 27 November 2012, and contacted Centrelink the following day stating his intention to claim the age pension. Mr Rajkovic subsequently lodged his claim for the age pension on 3 December 2012. Centrelink rejected this claim on the ground that Mr Rajkovic was not living in Australia on a permanent basis.
On 3 April 2013, an Authorised Review Officer and delegate of Centrelink affirmed this decision. The ARO found that Mr Rajkovic had been residing in Serbia from 2 April 2007. This decision was affirmed by the SSAT on 20 August 2013. On 10 October 2013, Mr Rajkovic applied to the Tribunal for a review of the SSAT’s decision.
LEGISLATION AND ISSUES
8.Eligibility for the age pension under the Social Security Act 1991 (Cth), is linked to the concept of residence. Section 43 of the Social Security Act details the requirements for qualification for the age pension. It provides relevantly:
(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
…
The Secretary of the Department of Social Services (the Respondent) accepts that Mr Rajkovic has 10 years qualifying Australian residence, having previously met that requirement on being granted the age pension in 2006. Nonetheless, in order to make a claim for social security payments, including the age pension, a person must be an Australian resident. Section 29 of the Social Security (Administration) Act 1999 (Cth) provides:
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.
The specific exceptions in ss 30, 30A, 31, 31A and 32 do not apply to Mr Rajkovic. Mr Rajkovic was in Australia at the time he lodged his claim for the age pension, being 28 November 2012. The question for the Tribunal, therefore, is whether Mr Rajkovic was an Australian resident at the time of his claim for the age pension.
The Social Security (Administration) Act 1999 does not define the phrase “Australian resident”, however, section 3 provides that a term in that Act has the same meaning as in the Social Security Act 1991. The term “Australian Resident” is defined in section 7 of the Social Security Act 1991:
2) 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.
Mr Rajkovic told me that he is an Australian citizen and holds an Australian passport. The primary issue is therefore whether Mr Rajkovic was residing in Australia at the time of his claim. The term resides is not defined in the Act, and the Tribunal must therefore be guided by the ordinary meaning of the term, as interpreted by the courts.
In the Federal Court decision in Hafza v Director-General of Social Security (1985) 6 FCR 444, Wilcox J stated at 449:
… 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 FC of T (1941) 64 CLR 241 at 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 coincide 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 Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 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 225 and Judd v. Judd (1957) 75 WN (NSW) 147 at 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 236) …
Section 7(3) of the Social Security Act identifies a number of factors to which regard must be had in determining whether a person was an Australian resident at the time of their application:
(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.
As the Tribunal observed in Clifopoulos and Department of Social Security (1994) 36 ALD 745 at [17], with respect to the factors listed in s 7(3), the Tribunal should consider:
... the converse of each factor. For example, when s 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant’s accommodation outside Australia.
MR RAJKOVIC’S CASE
Mr Rajkovic participated in the Hearing by telephone from Belgrade with the assistance of a Serbian interpreter who was present with the Tribunal in Sydney. Mr Rajkovic referred to a letter from Centrelink dated 14 February 2013 stating that his age pension “may be paid indefinitely” after he departed from Australia as he had advised on 27 February 2013. Mr Rajkovic stated that he was entitled to the age pension having been an Australian resident for more than 10 years and that he was entitled to arrears of pension from the time his pension was cancelled.
Mr Rajkovic asked why his wife continued to receive a pension but his had been cancelled. Mr Hutchins for the Respondent explained that this was because his wife, who is approximately six years younger than Mr Rajkovic, had been resident in Australia for a number of years before being eligible for the age pension, whereas Mr Rajkovic was already over retirement age on his arrival. His wife’s entitlement to the pension is affected by her resulting ‘Australian life residency factor’ and this was the reason for her pension being reduced but not cancelled after being outside Australia for more than 26 weeks.
In the letter accompanying his application to the Tribunal, Mr Rajkovic said he and his wife are pensioners in Serbia and became pensioners in Australia in 2006. While his age pension has been “suspended”, his wife’s has been reinstated at a reduced rate, the reasons for which are unclear to him. He said their medical conditions have deteriorated and his wife had surgery on both eyes in Australia and currently has only 15% vision in her right eye; her sense of balance has been affected and she cannot walk by herself. Mr Rajkovic is therefore her permanent carer.
Mr Rajkovic said that as the result of the cancellation of his pension and Centrelink’s decision to refuse his further application for the pension, the last time they visited Australia they had to borrow money from friends and return to Serbia sooner than they intended. As a result of the cancellation of his concession card, he was unable to obtain the medication and medical services he requires for the high blood pressure from which he suffers. He does not understand the reason for his age pension being denied. He said he is resident in both Serbia and Australia.
DISCUSSION
As stated in Hafza residence encompasses two elements: “physical presence in a particular place, and the intention to treat that place as home”. This does not, however, mean that a person must always be present. In Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 (Baccon), Branson J, stated
Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450).
A statement of intention however is insufficient to satisfy the residence requirement. As stated in Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059. At [22]:
… a mere statement of intention is not sufficient. It needs to be assessed in light of all the evidence about the applicant’s circumstances in order to determine what weight it should be given.
In looking at the Applicant’s situation as a whole, the Tribunal must have regard to the factors set out in s 7(3) and their converse. These factors, as was stated in Killick at [19], “are there to guide the decision-maker in assessing the totality of an applicant’s circumstances”, although the Tribunal noted in Ahern and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 665, at [8], that they:
“… should not be applied in a mechanical way. The relevance and importance of the factors in s 7(3) will vary in each case.”
The nature of the accommodation used by the person in Australia
In recent years, when Mr and Mrs Rajkovic have been in Australia they have stayed with friends or rented short term accommodation. They gave up their Housing Commission accommodation when they returned to Serbia in 2007 and subsequently stayed with friends or rented private accommodation when in Australia. They own an apartment in Belgrade where they are living currently. In his letter, Mr Rajkovic said they cannot afford to live in Australia, and that it is cheaper to live in Belgrade.
The nature and extent of the family relationships the person has in Australia
Mr and Mrs Rajkovic’s son, who is a mechanical engineer, has lived in Australia for 25 years and is presently based in Perth. However, he is currently working offshore. Apart from their son, they have friends in Australia with whom they have stayed on recent visits. Mr and Mrs Rajkovic’s extended family is in Serbia.
The nature and extent of the person's employment, business or financial ties with Australia
= Mr Rajkovic retired from the workforce in Serbia before migrating to Australia; he has therefore not worked here and has no business ties to Australia. He and his wife’s only financial arrangement in Australia is their bank account into which their pensions have been paid. In Serbia, Mr Rajkovic receives a pension based on his years of employment. His wife receives a disability pension.
The nature and extent of the person's assets located in Australia
Mr Rajkovic said he and his wife have no assets in Australia. Their household goods and other possessions are in Serbia.
The frequency and duration of the person's travel outside Australia
The duration of Mr Rajkovic’s visits to Australia is set out above. In recent years, each visit has been for approximately three months. During these visits, Mr and Mrs Rajkovic have visited their son and their friends, and have had medical treatment.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
Mr Rajkovic did not understand why his pension had been cancelled. He had been under the impression that once a person had been grated the age pension, they would continue to receive the pension for life. As noted above, Mr Rajkovic’s wife is significantly disabled by her poor vision and he acts as her carer.
CONCLUSION
The evidence indicates that Mr Rajkovic regards Serbia as his principal home and that it is where he and his wife live. While his intention, given the necessary financial means, would be to continue visiting Australia and to live here for periods of three months or so, essentially, Australia remains a place to visit, albeit a place where he and his wife are entitled to reside, and where their son and friends live.
The Tribunal has considered the factors, set out above, to which regard must be had when determining whether a person was an Australian resident at the time of making an application for a social security benefit. Reference to these factors overwhelmingly supports a finding that at the time of his claim for the age pension, Mr Rajkovic did not ‘reside’ in Australia in accordance with the meaning attributed to that word by the law in this context, as explained above. Thus, I find that Mr Rajkovic was not an Australian resident at the time of making his application for age pension on 3 December 2012.
Mr Rajkovic was not, therefore, an ‘Australian resident’ for the purposes of s 7 of the Social Security Act and was not eligible to make a claim for age pension under s 29 of the Social Security (Administration) Act. The decision under review must therefore be affirmed.
DECISION
The decision under review to refuse Mr Rajkovic’s claim for the age pension is affirmed because he is not an Australian resident.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ........................................................................
Associate
Dated 23 July 2014
Date of hearing 18 July 2014 Date final submissions received 18 July 2014 Applicant In person Solicitors for the Respondent C Hutchins, Australian Government Solicitir
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