Mitrevska and Secretary, Department of Family and Community Services

[2004] AATA 1186

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1186

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/733

GENERAL  ADMINISTRATIVE DIVISION

Re:         DANICA MITREVSKA

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             10 November 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - cancellation of family payment ‑ whether absent permanently from Australia

Social Security Act 1991 ss 7(2), 7(3), 23, 838, 840

REASONS FOR DECISION

10 November 2004  G.D. Friedman, Member

1.      This is an application by Danica Mitrevska (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 24 May 2004.  The SSAT decision affirmed a decision of an authorised review officer of Centrelink dated 26 March 2004 to cancel family payment and wife pension because the applicant had left Australia permanently.

2. With the consent of the parties, the Tribunal decided to make a decision on the review application without holding a hearing. The material before the Tribunal comprised the documents lodged under s 37 of the Administrative Appeals Tribunal Act1975 (T1-T20) and a written statement from the applicant (lodged via email), dated 5 October 2004.

BACKGROUND

3.      The applicant was born in Macedonia on 18 May 1951 and arrived in Australia  in 1989.  On 23 November 1989 she was granted wife pension.  On 8 December 1989 she was granted family payment in respect of her two children Lupco (born on 11 June 1983) and Maria (born on 3 September 1986).  On 17 May 1994 the applicant advised Centrelink that she was leaving Australia for about two years to visit her parents.  On 19 May 1994 the applicant, her husband and children departed Australia.  They have not returned.

4.      On 23 June 1994 Centrelink sent a letter to the applicant seeking further information.  On 18 July 1994 Centrelink decided to cancel family payment because the applicant had indicated that her children were not in her care.  On 30 May 1995 Centrelink decided to cancel the applicant’s wife pension.  On 16 February 2004 the applicant requested review of both decisions. On 26 March 2004 an authorised review officer affirmed both decisions.  On 1 April 2004 the applicant applied to the SSAT for review of both decisions.  On 24 May 2004 the SSAT affirmed both decisions.  On 24 June 2004 the applicant lodged an application with the Tribunal for review of the SSAT decision concerning the cancellation of her family payment.

5.      The issue before the Tribunal is whether the applicant remained qualified for family payment after 28 July 1994.

EVIDENCE

6.      In her written statement dated 5 October 2004 the applicant said that the letter from Centrelink dated 28 July 1994 informed her that her family payment would be cancelled because her children were not given permanent resident visas.  She said that she advised Centrelink that this was incorrect as the children were Australian citizens.  The applicant also stated that Centrelink had told her that she had indicated on a form that the children were no longer living with her, but that it was unable to locate the form.

7.      In the statement the applicant told the Tribunal that Centrelink then informed her that her family payment was cancelled because she was absent from Australia permanently.  However, she noted that the legislation provided for cancellation of payments after three years, so her payments should have continued until May 1997.  She said that she did not question the cancellation decision at the time because she does not speak English and did not understand the contents of the letters from Centrelink.

8.      In the statement the applicant said that she did not receive the form on which she is alleged to have told Centrelink that the children were no longer in her care.  She referred to an inconsistency where on 23 June 1994 Centrelink asked her to complete a form to enable Centrelink to assess her entitlement to continued family benefit payments, and on 28 July 1994 Centrelink informed her that payments would cease because the children were not permanent residents of Australia.  The applicant noted that the date of cancellation was shortly after her departure from Australia, and she said that insufficient time had elapsed for a decision to be made that she had left permanently.

CONSIDERATION OF THE ISSUES

9. Section 838 of the Social Security Act 1991 (the Act) (the relevant section at the time of the decision to cancel family payment in July 1994) sets out the criteria for family payment, including a requirement that the person is an inhabitant of Australia, which is defined in s 23 of the Act as including an Australian resident.  At the relevant time, the term Australian resident was defined in s 7(2) of the Act:

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;

Section 7(3) of the Act sets out the criteria to which regard must be had in deciding whether a person is residing in Australia:

(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.

10. Section 840 of the Act provides that qualification for family payment ceases after a person has been absent from Australia for a period of 3 years.

11.     In a Statement of Facts and Contentions dated 18 October 2004 Mr W. Zita, a Centrelink advocate, submitted that the evidence demonstrates that the applicant and her family left Australia permanently on 19 May 1994 and they were not inhabitants of Australia from that date.  He also stated that the applicant did not seek review of the cancellation decision within 13 weeks, so a favourable determination could only take effect from 16 February 2004.

12.     In reaching a decision the Tribunal takes into account the written material including submissions made by the parties. 

13. The applicant is an Australian citizen, so she satisfies s 7(2)(b) of the Act. In relation to s 7(2)(a) of the Act the Tribunal has considered each of the factors listed in s 7(3) of the Act:

(a)the nature of the accommodation used by the person in Australia

The applicant did not own a home in Australia prior to departure. 

(b)the nature and extent of the family relationships the person has in Australia

There is no material before the Tribunal to suggest that the applicant has relatives in Australia.

(c)the nature and extent of the person's employment, business or financial ties within Australia

There is no material before the Tribunal to suggest that the applicant has employment, business or financial ties within Australia.   

(d)the nature and extent of the person's assets located in Australia

There is no material before the Tribunal to suggest that the applicant has assets located in Australia. 

(e)the frequency and duration of the person's travel outside Australia

The applicant’s family purchased one-way tickets to Macedonia when they departed in 1994, and no family member has returned to Australia since.

(f)Any other matter relevant to determining whether the person intends to remain permanently in Australia

In a letter to the SSAT dated 16 February 2004 the applicant and her husband stated that on 19 May 1994 they left Australia and went to live in Macedonia.  The applicant lived in Australia only five years before her departure, and there is no material before the Tribunal to suggest that she has expressed any intention of living in Australia.

14.     In weighing these matters the Tribunal accepts Mr Zita's contention, that the applicant left Australia permanently on 19 May 1994 and at the time of the cancellation of family payment she was not residing in Australia and did not satisfy s 7(2)(a) of the Act.  Therefore, she was not an inhabitant of Australia from that date (s 838(1)(b) of the Act) and her qualification for family payment ceased on that date.

15. In view of the Tribunal’s findings, s 840 of the Act does not apply and the applicant is not entitled to receive family payment for a period of 3 years after her departure, and she did not seek review of the decision within 13 weeks of notification the decision.

DECISION

16.     The Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  Not applicable: decision on the papers

Date of decision:  11 November 2004
Advocate for respondent:            Mr W. Zita, Centrelink