Miskovic and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 420

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 420

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/150

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RISTO MISKOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS 

Respondent

DECISION

Tribunal  Deputy President S D Hotop

Date15 May 2006

Place Perth

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal, dated 8 April 2005, and, in substitution therefor, decides that arrears of family allowance are payable to the applicant in respect of his 2 children, in accordance with the Social Security Act 1947 (Cth), for the period from 12 June 1987 to 11 June 1990, but not thereafter.

..........(Sgd S D Hotop).......................

Deputy President

CATCHWORDS

SOCIAL SECURITY – family allowance – applicant migrated to Australia from Yugoslavia in June 1968 and became an Australian citizen – applicant received family allowance in respect of 2 children – applicant returned to Yugoslavia for health reasons in June 1987 – applicant intended to return to Australia within 2 years – applicant absent from Australia until December 2001 – applicant’s family allowance cancelled on date of departure – applicant not notified of cancellation – family allowance not paid to applicant during absence from Australia – applicant’s domicile in Australia – applicant’s permanent place of abode not outside Australia – applicant an “absent resident” – family allowance payable to applicant for 3 years after departure – applicant entitled to arrears of family allowance for period from June 1987 to June 1990 – decision under review set aside

Domicile Act 1982 (Cth) s 10

Social Security Act 1947 (Cth) s 6(1), s 83, s 96 and s 103

REASONS FOR DECISION

15 May 2006   Deputy President S D Hotop

Introduction

1.      The applicant, Risto Miskovic, migrated to Australia from Yugoslavia in June 1968 and he subsequently became an Australian citizen. He later married a Yugoslavian woman in Yugoslavia and they have 2 children. He returned to Australia with his wife and their first child (born in February 1986) in August 1986. Their second child was born in Australia in April 1987.

2.      On 27 May 1987 the applicant informed the Department of Social Security (“the Department”) that he would be departing Australia for Yugoslavia on 12 June 1987 for health reasons, and that his wife and children would be accompanying him, and that they would be absent from Australia for an “indefinite” period. At that time he was receiving an invalid pension, and his wife was receiving a wife pension, in accordance with the Social Security Act 1947 (Cth) (“the Act”), and their application to the Department for payment of those pensions during their absence overseas was approved on 13 July 1987.

3. The applicant had also been in receipt of family allowance, pursuant to the Act, in respect of his 2 children, but that family allowance was cancelled by the Department on the date of his departure from Australia, namely, 12 June 1987.

4.      On 27 December 2001 the applicant returned to Australia with his 2 children and on 14 February 2002 he claimed family tax benefit, under the A New Tax System (Family Assistance) Act 1999 (Cth), in respect of his children. He was granted family tax benefit with effect from 27 December 2001.

5.      On 23 September 2004 the applicant made an inquiry to Centrelink regarding his entitlement to payment of arrears of family allowance, family payment and family tax benefit in respect of his 2 children for the duration of his absence from Australia. A Centrelink officer subsequently decided that no such arrears were payable to the applicant because he had departed Australia “permanently” and was not an “Australian resident” during the period of his absence from Australia. That decision was affirmed by an Authorised Review Officer within Centrelink and ultimately by the Social Security Appeals Tribunal (“SSAT”) on 8 April 2005.

The Issue and the Tribunal’s Determination

6.      The issue for the Tribunal’s determination is whether any arrears of family allowance, family payment and/or family tax benefit are payable to the applicant in respect of his 2 children for the period from 12 June 1987 to 26 December 2001.

7.      For the reasons which follow, the Tribunal has determined that the applicant is entitled to arrears of family allowance in respect of his 2 children for the period of 3 years from 12 June 1987 (being the date of their departure from Australia), but is not entitled to arrears of family allowance, family payment and/or family tax benefit for the remainder of their absence form Australia until 26 December 2001.

The Applicant’s Case

8.      The applicant claimed that, when he and his family departed Australia for Yugoslavia on 12 June 1987, it was not his intention that their absence from Australia would be permanent. He explained that they returned to Yugoslavia so that he could obtain spa treatment (of a kind not available in Australia) for a very debilitating back condition and that he intended to return to Australia with his family within 2 years. He further explained that medical practitioners in Australia had estimated that his intended spa treatment would take about 2 years. He said that his plan was to bring his children (who were then infants) back to Australia after the completion of his treatment so that they would be educated here. He also said that he never received notification from the Department regarding the cancellation of his family allowance. [The Tribunal notes that the respondent conceded that the applicant was not so notified in writing.]

9.      The applicant explained the reasons for his remaining in Yugoslavia and not returning to Australia until December 2001 as follows. He said that initially he was prevented from returning to Australia because he was unable to afford the cost of airfares for himself and his family. He said that he was subsequently prevented from leaving Yugoslavia by reason of the civil war which broke out in 1991 during which he and his family lived in refugee camps in Serbia and Montenegro. He was eventually able, with financial assistance from his brother, to return to Australia with his 2 children (who were then aged 15 years and 14 years) in December 2001, and his wife returned to Australia some months later.

10.     The applicant said that when he departed Australia in June 1987 he did not retain any property or assets in Australia and he did not have any relatives living in Australia. He said that in Yugoslavia he and his family lived with his brother in the house formerly owned and occupied by his mother (who had died 1-2 years prior to his return to Yugoslavia). He said that his only asset in Yugoslavia was a small block of land which had been left to him in his mother’s will. He said that he and some relatives had started to build a house on that land in 1988-89 but that it was still not finished.

11.     The applicant tendered in evidence:

·a statutory declaration of Milivoje Bukilic, dated 26 April 2005, stating that he had driven the applicant and his family to the Perth International Airport in June 1987 for their flight to Yugoslavia and that the applicant had then told him, in response to his warning him about the danger of civil unrest in Yugoslavia, that he had to go there to seek medical help (spa therapy) and would be staying there for a period of up to 2 years but that if any trouble arose he would quickly return to Australia (Exhibit A2);

·a statutory declaration of Nikica Vucic, dated 26 April 2005, stating that in August/September 1990 he had received 2 letters from the applicant, who was then in Bosnia, asking him for financial assistance to enable the applicant and his family to return to Australia, but that he had been unable to provide such financial assistance (Exhibit A1).

The Relevant Legislation

12. It was common ground that the relevant provisions of the Act, as in force at the relevant time, were as follows:

6(1) In this Act, unless the contrary intention appears –

“absent resident” means a person outside Australia who is –

(a) a person whose domicile is in Australia, not being a person whom the Secretary is satisfied is a person whose permanent place of abode is outside Australia; or

...

83 (1) Where:

(a) person left, or leaves, Australia on or after 18 May 1986;

(b) before leaving, the person was in receipt of family allowance in respect of a child; and

(c) the person continues to be absent from Australia for more than 3 years;

the person is not qualified to receive family allowance at any time after the first 3 years of the absence while the person remains absent from Australia.

(2) Where:

(a) child left, or leaves, Australia on or after 18 May 1986;

(b) before the child left, a person was in receipt of family allowance in respect of that child; and

(c) the child continues to be absent from Australia for more than 3 years;

the person is not qualified to receive family allowance in respect of that child at any time after the first 3 years of the absence while the child remains absent from Australia.

…

96 (1) A family allowance shall not be granted or paid to a person in respect of a child... unless –

(a) in the case of a grant or payment to a person in respect of a child – both the person and the child are persons to whom this section applies; or

...

(3) for the purposes of sub-section (1), where a person –

(a) who is –

(i) an absent resident; or

...

and that person has a dependent child or dependant children, that person and that dependant child or those dependent children shall... be deemed to be persons to whom this section applies.

...

103(1) ... a family allowance payable to a person... to whom family allowance was granted in respect of a child ceases to be payable if –

…

(d) the person to whom the family allowance was granted, or the child in respect of whom the family allowance was granted, ceases, for the purposes of sub-section 96(1), to be a person to whom section 96 applies.

Analysis and Findings

13. The critical issue, for the purpose of determining whether family allowance continued to be payable to the applicant in respect of his 2 children after their departure from Australia on 12 June 1987, is whether he and his children continued thereafter to be “persons to whom [s 96 of the Act] applies”. By reason of s 96(3) of the Act, the applicant and his children would be “persons to whom this section applies” if the applicant was an “absent resident” (as defined in s 6(1) of the Act) during the relevant period. In order to fall within the statutory definition of the phrase “absent resident”, the applicant must, during the relevant period, satisfy the following conditions:

·he must be “outside Australia”;

·his “domicile [must be] in Australia”; and

·the Tribunal must not be satisfied that his “permanent place of abode is outside Australia”.

It is common ground that the applicant was “outside Australia” at all material times, and the Tribunal so finds.

Was the applicant’s domicile in Australia?

14. The applicant’s domicile of origin was in Yugoslavia where he was born. A person may, however, acquire a domicile of choice in a country, in place of their domicile of origin, if they reside in that country with the intention of making their home indefinitely in that country: see s 10 of the Domicile Act 1982 (Cth).

15.     Having regard to the fact that the applicant:

·migrated to Australia from Yugoslavia in June 1968 (when he was 25 years of age) and subsequently became an Australian citizen; and

·continued thereafter to reside in Australia until June 1987;

the Tribunal is satisfied, and finds, that the applicant, during the period in which he resided in Australia, formed the intention of making his home indefinitely in Australia and thereby acquired a domicile of choice in Australia.

16.     The question then arises whether the applicant subsequently abandoned that domicile of choice in Australia after departing Australia and returning to Yugoslavia in June 1987. The answer to that question depends upon whether the applicant, after departing Australia, ceased to reside in Australia and ultimately ceased to have the intention of returning to, and making his home indefinitely in, Australia.

17.     The Tribunal accepts the applicant’s evidence that, when he departed Australia in June 1987, his intention was to return to Yugoslavia only for the specific purpose of obtaining spa treatment for his back condition and, upon the completion of that treatment (which he expected to take approximately 2 years), to return to Australia and to continue to make his home indefinitely in Australia. The Tribunal notes that the applicant’s evidence in that regard is generally corroborated by the statutory declaration of Milivoje Bukilic referred to earlier (see paragraph 11), whose contents were not contradicted by the respondent.

18.     The Tribunal also notes that, in the application by the applicant and his wife to the Department on 27 May 1987 for the payment of their pensions during their absence overseas (referred to in paragraph 2 above), in answer to the question, “How long will you be absent from Australia?”, in the relevant Departmental form, the word “indefinite” was printed. The Tribunal accepts, however, that that word (which was apparently not printed by the applicant or his wife, but was probably printed by a Departmental officer) was intended to convey that the applicant and his wife were unsure of the precise period of their proposed absence from Australia, not that that absence would be permanent.

19.     The Tribunal is also satisfied that the applicant, after his return to Yugoslavia in June 1987, did not form the intention to continue to reside and make his home indefinitely in Yugoslavia. The Tribunal notes that the statutory declaration of Nikica Vucic referred to earlier (see paragraph 11), whose contents were not contradicted by the respondent, is generally consistent with that proposition.

20.     Having regard to the abovementioned considerations the Tribunal finds that, at all material times, the applicant’s domicile was in Australia.

Is the Tribunal satisfied that the applicant’s “permanent place of abode” was outside Australia?

21.     The Tribunal, for the purpose of determining whether it is satisfied that the applicant’s “permanent place of abode” was outside Australia during the relevant period, has regard primarily to his intention and to his actual living arrangements during that period.

22.     As previously indicated, the Tribunal is satisfied that, at no time during the applicant’s absence from Australia from 12 June 1987 to 26 December 2001, did he form the intention to live permanently in Yugoslavia or elsewhere outside Australia. According to the applicant’s evidence (which the Tribunal accepts), his living arrangements in Yugoslavia were that he stayed with his brother in the house formerly occupied by their recently deceased mother, and he and his family subsequently stayed in refugee camps after the outbreak of the civil war. Although the applicant’s evidence was that he (and some relatives) in 1988-89 began to build a house on a small block of land in Yugoslavia which had been left to him by his deceased mother, the Tribunal is not satisfied that he ever formed the intention of living permanently in that house. Indeed, according to his evidence, the building of that house has still not been completed.

23.     Accordingly, the Tribunal, notwithstanding the lengthy period of his absence from Australia from 12 June 1987 to 26 December 2001, is not satisfied that the applicant’s “permanent place of abode” was outside Australia at any time during that period.

Finding

24. The Tribunal finds, therefore, that the applicant was, at all material times, an “absent resident” (as defined in s 6(1) of the Act) and that he and his 2 children, after their departure from Australia on 12 June 1987, continued to be persons to whom s 96 of the Act applied. In accordance with the relevant provisions of the Act as in force at that time, therefore, family allowance continued to be payable to the applicant in respect of his 2 children after their departure from Australia on 12 June 1987, and the Tribunal so finds.

For what period did family allowance continue to be payable to the applicant in respect of his 2 children after their departure from Australia on 12 June 1987?

25. The applicant conceded that, by reason of s 83 of the Act (as in force at the relevant time), he ceased to be qualified to receive family allowance in respect of his 2 children after the first 3 years of their absence from Australia – namely, from 12 June 1990. The Tribunal regards that concession as correct and it accordingly finds that family allowance continued to be payable, under the Act, to the applicant in respect of his 2 children after their departure from Australia on 12 June 1987 for the period up to, and including, 11 June 1990, but not thereafter.

Conclusion

26. The respondent (as previously mentioned) conceded that the applicant had not been notified in writing of the cancellation of his family allowance on 12 June 1987. The respondent also conceded that, in the event that the Tribunal were to find that the applicant continued to be qualified to receive family allowance after his departure from Australia on 12 June 1987, arrears of family allowance would be payable to him, in accordance with s 83 of the Act, for a period of 3 years from 12 June 1987. The Tribunal regards that concession as rightly made.

27. The Tribunal concludes, therefore, that the applicant is entitled to payment of arrears of family allowance in respect of his 2 children, in accordance with the Act, for the period from 12 June 1987 to 11 June 1990, but not thereafter.

Decision

28. For the above reasons the Tribunal sets aside the decision of the SSAT, dated 8 April 2005, and, in substitution therefor, decides that arrears of family allowance are payable to the applicant in respect of his 2 children, in accordance with the Act, for the period from 12 June 1987 to 11 June 1990, but not thereafter.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

Signed:

...........(Sgd S da Motta)....................
Associate

Date of Hearing  22 March 2006
Date of Decision  15 May 2006
Representative of Applicant          Mr M Churchill

Representative of Respondent      Mr F Nipperus
  Legal Services Branch, Centrelink