Mohamed and Secretary, Department of Family and Community Services

[2006] AATA 86

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 86

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/339

GENERAL ADMINISTRATIVE  DIVISION

Re:            fowzia adan mohamed

Applicant

And:secretary,

department of family and community services

Respondent

DECISION

Tribunal:       Mr E. Fice, Member

Date:3 February 2006

Place:Melbourne

Decision:The decision of the Social Security Appeals Tribunal is affirmed.

(sgd) Egon Fice

Member

CATCHWORDS – permanent resident – protected SCV holder – intention to permanently reside – New Zealand citizen

Family and Community Service Legislation Amendment (New Zealand Citizens) Act 2001

Social Security Act 1991

Re Firdousi and Secretary, Department of Family and Community Services [2005] AATA 1304

Hafza v Director‑General of Social Security (1985) 60 ALR 674

Raad and Secretary, Department of Family and Community Services [2000] AATA 387

REASONS FOR DECISION

3 February 2006  Mr E. Fice, Member

1.      Mrs Fowzia Mohamed, a New Zealand citizen, first came to Australia on 20 May 2001 with, she said, the intention to permanently reside in this country.  She returned to New Zealand on 10 June 2001, remaining there until 27 April 2002 when she came back to Australia.  On 29 September 2002 she again returned to New Zealand and did not come back to Australia until 25 April 2004.  On 1 May 2002 Mrs Mohamed lodged an application for a resident’s certificate with Centrelink which acts as an agent for the respondent. On 16 May 2002 a Centrelink delegate rejected Mrs Mohamed’s application and she sought review of that decision by an Authorised Review Officer (ARO).  On 4 August 2004 the ARO affirmed the decision to reject her application for a resident’s certificate and she appealed to the Social Security Appeals Tribunal (SSAT).  On 30 March 2005 the SSAT affirmed the decision of the ARO.  Mrs Mohamed seeks a review of the 16 May 2002 decision. 

2.      In order to succeed in her application, Mrs Mohamed must convince the Tribunal that she commenced residing in Australia during the period of three months beginning on 26 February 2001.  In my opinion, for the reasons set out below, Mrs Mohamed has failed to prove that, on balance, she commenced residing in Australia during the time that she was in this country between 20 May 2001 and 26 May 2001.  Therefore, her claim has not been successful. 

BACKGROUND

3.      Mrs Mohamed is a refugee from Somalia, having left that country in 1991.  On 3 May 1994 she was married at Mombasa in Kenya.  Her husband was accepted as a refugee by New Zealand where he obtained work in a factory.  Mrs Mohamed joined him in 1998.  She was granted New Zealand citizenship in 2000.

4.      Prior to Mrs Mohamed coming to Australia on 20 May 2001, she had not received any social security in New Zealand nor had she engaged in any remunerative work.  She was supported by her husband who was working.

5.      Mrs Mohamed experienced marital problems shortly after arriving in New Zealand and, despite attempts to reconcile the differences between her and her husband, and despite the intercession of her husband’s brother, Mr A Osman, by 2001 she had decided to leave her husband and come to Australia.  She informed Social Security in New Zealand that she had separated from her husband so that she could commence divorce proceedings. As is required under Islamic law, she asked her husband for permission to divorce him.  He refused to grant permission. 

6.      Mrs Mohamed had a number of Somalian friends who had moved from New Zealand to Australia and she had been in contact with those friends.  Among those friends was Mrs F. Ismail who first met Mrs Mohamed in Uganda.  Although she had not had regular contact with Mrs Mohamed, they did communicate from time to time and when Mrs Mohamed contacted Mrs Ismail in 2001 to ask if she could stay with her, she readily agreed.

7.      On 20 May 2001 Mrs Mohamed travelled to Sydney where she stayed with Mrs Ismail at 1/33 Tudor Street, Bellmore.  She slept in the living room. 

8.      On 10 June 2001, twenty‑one days after she had first arrived in Australia, Mrs Mohamed returned to New Zealand.  According to Mrs Mohamed, she returned to New Zealand because her husband telephoned her and agreed that he would give her the traditional Islamic divorce if she returned to New Zealand.  He sent her a one‑way air ticket to enable her to travel to New Zealand.  She remained in New Zealand until 27 April 2002, a period of ten and a half months.  However, despite strongly urging her husband to grant her a divorce, he refused to do so. 

9.      When Mrs Mohamed returned to Australia on 27 April 2002, she went to live with Mrs H. Said at Pascoe Vale in Melbourne.  She lodged an application for a resident’s certificate on 1 May 2002, but that was refused. 

10.     Some five months later, on 29 September 2002, Mrs Mohamed returned to New Zealand.  She said that the reason she returned to New Zealand was that there was gossip in the Somalian community that she had run away from her husband, and therefore she needed the Islamic divorce in order to live a normal life.  Again, she stayed with a friend in Wellington, but not the same neighbour that she stayed with on her first return to New Zealand.  She said that after arriving in New Zealand, she discovered that her husband had left for Somalia where he remained for some six months.  He had apparently gone to Somalia to marry another woman.  She was determined not to come back to Australia without the Islamic divorce. 

11.     On 12 June 2003 the Family Court division of the District Court in Wellington issued an order dissolving her marriage.  On 10 April 2004 Mrs Mohamed’s husband wrote a letter in which he stated that he had divorced his wife by pronouncing the divorce twice in the presence of two witnesses.  This was apparently sufficient for an Islamic divorce to be effective.  Mrs Mohamed then returned to Australia on 25 April 2004, almost nineteen months since leaving Australia.  

12.     On 17 July 2004 she contacted Centrelink seeking a review of the decision to reject her application for a resident’s certificate.  On 4 August 2004 Mrs Mohamed was notified that an ARO with Centrelink had affirmed the decision to reject her application for a resident’s certificate. 

CONSIDERATIONS

13. All pensions, benefits and allowances under the Social Security Act 1991 (the Act) include some form of residence criteria for qualification. The most common criterion is that the claimant be an “Australian resident”. Prior to 26 February 2001, New Zealand citizens who held a Special Category Visa (SCV) had ready access to social security benefits. However, after the Family and Community Service Legislation Amendment (New Zealand Citizens) Act 2001 came into effect on 30 March 2001, s 7 of the Act was amended by the insertion of provisions relating to a “protected SVC holder”.  Under the amendment New Zealand citizens who entered Australia after 26 February 2001 had their access to social security limited on the same basis as other migrants. However, a three month period following 26 February 2001 was granted to enable New Zealanders to establish residence following the commencement of the amended s 7. 

14.     According to 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;

iii)a special category visa holder who is a protected SCV holder.

15.     Mrs Mohamed is neither an Australian citizen nor the holder of a Permanent Visa.  Therefore, she must rely on s 7(2)(b)(iii) to establish residency.  There is no question that, as a New Zealand citizen, Mrs Mohamed is an SCV holder.  In order to determine whether she is a protected SCV holder, she must fall within one of four sub‑sections, namely s 7(2A) – s 7(2D) of the Act.  However, as Mrs Mohamed was not in Australia on 26 February 2001 or at any time before that date, the only sub‑section applicable to her is s 7(2C), which provides:

7(2C)A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

(a)the time is during the period of 3 years beginning on 26 February 2001; or

(b)the time is after the end of that period, and either:

(i)a determination under sub‑section (2E) is in force in respect of the person; or

(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.

16.     As far as s 7(2C) is relevant to Mrs Mohamed, the evidence must disclose that she commenced residing in Australia by 26 May 2001.  If the evidence supported her claim that she was residing in Australia between 26 February 2001 and 26 May 2001, then it would be appropriate to examine s 7(2E) and s 7(2F) of the Act, which permit a resident residing during the three month period beginning on 26 February 2001 to apply to the Secretary for a determination stating that this was the case.  However, if Mrs Mohamed was not residing in Australia by 26 May 2001, quite properly, the Secretary should refuse to make such a determination. 

17.     Section 7(3) of the Act provides:

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.

18.     The word “reside” is defined in the New Shorter Oxford Dictionary Third Edition 1993 as:

Dwell permanently for a considerable amount of time, have one’s regular home in or at a particular place. ...

19.     Deputy President S.A. Forgie, in Re Firdousi and Secretary, Department of Family and Community Services [2005] AATA 1304, explored extensively the numerous court decisions dealing with the concept of residence.  Although, in that case, the Deputy President was concerned not only with s 7(2C) but also s 7(2D) of the Act.  Section 7(2D) refers to a person who was residing in Australia and who was temporarily absent from Australia from 26 February 2001.  The Deputy President also noted that s 7(2A) makes no reference to residence but rather to a person “being in Australia” on 26 February 2001.  In her opinion, the section was drawing a distinction between a person who was “in Australia” and a person who was “residing in Australia” but “temporarily absent from Australia”.  From that, she drew the following conclusion (at paragraph 27):

In drawing the distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough.  That does not mean that a person must necessarily be in Australia for any substantial period before being considered to reside here.  Residence of the type required by s 7 must start somewhere and, provided the evidence otherwise points to it, a person could be regarded as resident in Australia even if physically present only for a short period.  As these matters are frequently judged in retrospect rather than at the time, residence over that short period can be assessed in light of a person’s subsequent actions.

20.     There is only one issue in this matter and that is whether Mrs Mohamed commenced to reside in Australia by 26 May 2001.  As she first arrived in Australia on 20 May 2001, the following six days is the period during which Mrs Mohamed is required to establish that she commenced residing in Australia.  Nevertheless, as Deputy President Forgie pointed out in Re Firdousi, whether Mrs Mohamed established residence in that six day period can be assessed in light of her subsequent actions. 

21.      In Hafza v Director‑General of Social Security (1985) 60 ALR 674 Wilcox J explained that, as a general concept, residence includes physical presence in a particular place and the intention to treat that place as home, at least for the time being, but not necessarily forever (p 680).  His Honour also pointed out that physical presence and intention will coincide for most of the time although few people are always at home.  He noted that a person does not necessarily cease to be resident at a particular place because he or she is specifically absent from that place.  He said that the test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that the place remains “home” (p 681).  His Honour then said:

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.

22.     In addition, the Tribunal is bound to consider all of the evidence available to the decision maker, which includes the subjective and objective criteria from which a person’s intention should be ascertained.

23.     According to Mrs Mohamed’s evidence, she was having marital difficulties starting in about 2000.  She said that she had spoken with her friend in Sydney, Ms Ismail, and talked about her problems.  She said that Ms Ismail sent to her the sum of $600, in New Zealand currency, of which she used $300 to purchase a one‑way ticket to Australia.  Ms Ismail denied having given any money at all to Mrs Mohamed.  Be that as it may, Mrs Mohamed purchased a one‑way ticket to Australia about one month prior to leaving New Zealand.  She had spoken to her husband of her intention to come to Australia and he apparently disagreed with the idea.  She said she had discussed divorce with him on a number of occasions and he said that he would grant her a divorce.  However, according to Mrs Mohamed, her husband was only “playing games”, as he didn’t want a divorce at that time.  Mrs Mohamed said that she spoke to two other persons about her decision to leave New Zealand, those being Ms A. Yusuf and Ms H. Said.  She said that at that time, her intentions were to come to live in Australia.

24.     The incoming passenger card which Mrs Mohamed completed on 20 May 2001 indicated that she intended to stay in Australia for the next twelve months and that she was migrating permanently.  She arrived in Sydney with two bags of clothing and a blanket.  That was the only property that she said she owned as she considered any other property at her residence in New Zealand to be the property of her husband.  She stayed with her friend, Ms Ismail in Belmore in Sydney, where she intended to remain until she obtained work.  She said that there was no time limit as to how long she could stay with Ms Ismail as, in her culture, friends are welcome to stay for as long as they want.  Shortly after arriving in Sydney, she opened a Commonwealth Bank account, obtained a tax file number and registered with Centrelink as a jobseeker.  She brought about $100 with her which was money left over from the money she said she received from Ms Ismail.  She said that it was her intention to live in Australia, to get work and to commence a new life.  She lived with Ms Ismail and her two children, essentially sleeping in the living room.  She said that Ms Ismail took her to Centrelink shortly after her arrival and showed her how to use the touch screen to register as a Jobseeker.  However, Ms Ismail denied that to be the case. 

25.     Mrs Mohamed only remained in Australia for twenty‑one days before returning to New Zealand at the request of her husband, who said he would give her an Islamic divorce if she returned.  Her husband provided her with a one way ticket to New Zealand.  Mrs Mohamed said she intended to seek work while in New Zealand in order to save sufficient money to return to Australia after she had obtained a divorce from her husband.  She took with her clothes and the blanket but left her bags with Ms Ismail.  She did not stay with her husband but rather with a neighbour who was a friend.  It is, in my opinion, significant that Mrs Mohamed claimed social security while she was in New Zealand, receiving approximately $130 per week, which was paid into a New Zealand bank account.  She also worked on a casual basis.  After ten months in New Zealand, during which time she said she spent most days in contact with her husband seeking a divorce, she purchased an airline ticket from her savings and returned to Australia on 27 April 2002.  She did not go to Sydney to stay with Ms Ismail but rather came to Melbourne to stay with Ms Said in Pascoe Vale.  She explained that the reason for this was that Ms Ismail was overseas and she was unable to contact her at the time.  At some later date, Ms Ismail sent Mrs Mohamed’s bags to her in Melbourne. 

26.     Ms Said was living in emergency housing with her two daughters.  Mrs Mohamed brought with her from New Zealand three sets of clothing, her blanket and a mobile phone.

27.     On her incoming passenger card Mrs Mohamed noted that she intended to stay in Australia for the next twelve months.  However, rather than completing either the box dealing with migrating permanently to Australia or a resident returning to Australia, Mrs Mohamed completed the box dealing with a visitor or a temporary entrant.  She indicated that her length of stay was to be a matter of months, without specifying exactly the number of months, and that her country of residence was New Zealand.  She said the main reason for coming to Australia was “visiting friends or relatives”.  Mrs Mohamed said she had completed the card in the way she did because she was confused.  When asked what her level of reading English was she said that that she was good at reading and writing English.  After coming back to Australia, Mrs Mohamed attempted to study for an aged care course and she also attempted to find casual work.  She was not successful.  After five months in Australia, Mrs Mohamed again returned to New Zealand on 29 September 2002.  She said that the reason why she went back was that the Somali community gossip in Australia was that she had run away from her husband and she needed an Islamic divorce in order to resolve that issue permanently.  Again, she stayed with a friend in Wellington, but she was not able to immediately contact her husband who had by then left for Somalia.  He remained there for six months as he was to be married.   Mrs Mohamed applied for unemployment benefits while in New Zealand but she then obtained work for four days per week as a room attendant.

28.     While in New Zealand, on 12 May 2003, she obtained an order from the Family Court division of the District Court at Wellington dissolving her marriage.  Her husband wrote a letter of divorce, a translation of which was provided to the Tribunal.  It is dated 10 April 2004 and its authenticity was not disputed. 

29.     On 25 April 2004 Mrs Mohamed again travelled from New Zealand to Melbourne and, upon entry into Australia, she completed an incoming passenger card.  However, once again, Mrs Mohamed answered questions asked of her on the card in such a way as to indicate that she was not a resident returning to Australia.  She indicated that she did not intend to live in Australia for the next twelve months.  She also indicated that her intended length of stay in Australia would be one month and that her country of residence was New Zealand.  She indicated that she was visiting friends or relatives.  Again, Mrs Mohamed’s explanation was that she simply got it wrong. 

30.      A number of statements, made by friends of Mrs Mohamed, all stating that, in essence, it was Mrs Mohamed’s intention to reside permanently in Australia when she first arrived on 20 May 2001 were also in evidence.  I have considered all of those statements, although there appears to be no reason to set out their details.  I have also considered the evidence of Mr A. Osman, the brother of Mrs Mohamed’s former husband, regarding the fact that they had marital difficulties from at least 2000 and that he played a role in securing Mrs Mohamed’s Islamic divorce.

31.     It was argued on behalf of Mrs Mohamed that although the definition contained in s 7(3) of the Act compels the decision maker to pay some regard to the factors expressed thereunder, they are not expressed to be exhaustive.  I do not agree with that statement, particularly because s 7(3)(f) of the Act requires the decision maker to take into account any other matter relevant to determining whether a person intends to remain permanently in Australia.  Nevertheless, it was argued for Mrs Mohamed that after a person has established a home in a particular place, the person does not necessarily cease to be a resident there because he or she is physically absent.  A number of authorities were relied upon to support this argument, including Hafza v Director‑General of Social Security (1985) 60 ALR 674 and Raad and Secretary, Department of Family and Community Services [2000] AATA 387.  While I have no doubt that this proposition is correct, Mrs Mohamed must first establish that she commenced to reside in Australia on her first arrival here on 20 May 2001, before it becomes necessary to evaluate the effect of her absence from Australia for two reasonably lengthy periods of time between 2001 and 2004. 

32.     As far as the other sub‑paragraphs of s 7(3) of the Act are concerned, the following can be said:

(a)upon her arrival in 2001, Mrs Mohamed stayed with a friend, Ms Ismail, living in what can only be described as a very temporary arrangement; and there was no evidence that Mrs Mohamed was at that time seeking any permanent form of accommodation;

(b)Mrs Mohamed’s brother‑in‑law lived in Melbourne and her husband resided in New Zealand but, save for those two persons, she had no other family members resident in Australia;

(c)although Mrs Mohamed had opened a bank account in Australia, obtained a tax file number and registered with Centrelink, she did not work nor did she have any business or financial ties in Australia;

(d)although Mrs Mohamed had an Australian bank account which contained a deposit of $10, there were no transactions on that account during the relevant period;

(e)upon arrival in Australia in May 2001, Mrs Mohamed brought only some clothes and a blanket but no other assets; and

(f)between 20 May 2001 and 25 April 2004, Mrs Mohamed was in Australia only for a period of five months and twenty‑one days.

33.     There are a number of other matters that are relevant in determining whether Mrs Mohamed intended to remain permanently in Australia upon her arrival on 20 May 2001.  As Deputy President Forgie said in Re Firdousi, at paragraph 26, residence over a short period of time can be assessed in light of a person’s subsequent actions.

34.     Mrs Mohamed maintained that the purpose of her return to New Zealand on 10 June 2001 and 29 September 2002 was to obtain an Islamic divorce from her husband.  In order to obtain a divorce, she required a document in writing from her husband pronouncing that he divorced his wife.  There was no evidence that Mrs Mohamed’s physical presence in New Zealand was required for her husband to grant that divorce.  Nevertheless, she considered, rightly or wrongly, that it would assist her in obtaining that divorce.  However, given that her husband was not in New Zealand for at least six months when she returned to New Zealand on 29 September 2002, it does not seem to follow that the purpose of her return at that time was to convince her husband to give her an Islamic divorce. 

35.     When Mrs Mohamed returned to Australia on 27 April 2002 and again on 25 April 2004, the information she provided on her incoming passenger card on each occasion directly contradicts her claim that she intended to reside permanently in Australia on 20 May 2001.  Although she claimed that she was confused when she completed those cards and that she was in error when making the statements that she did, it is not possible to reconcile that response with the fact that she claimed to be able to read and understand English well.  It is, in my opinion, also significant that when she returned to Australia on 27 April 2002, she did not go to Sydney but rather came to Melbourne.  While the reason for that may have been simple convenience, it does not assist Mrs Mohamed in demonstrating that she commenced to reside permanently in Australia on her arrival in Sydney 20 May 2001.  As  Wilcox J pointed out in Hafza:

… The test is whether the person has retained a continuity of association with the place…

Furthermore, in re Schlageter and Secretary, Department of Social Secretary [1985] AATA 1988, the Tribunal said (at para 9):

For a person to be residing in a country, he must have a settled home in that country. It need not be his only home but it must have some degree of permanence.

It cannot be said that Mrs Mohamed had established or settled a permanent home in Sydney between 20 and 26 May 2001.

36.     The fact that Mrs Mohamed opened a bank account, obtained a tax file number and registered with Centrelink when she first arrived in Australia does not carry significant weight.  Even though her bank account was subsequently “topped up” with a further $200 when she was working in New Zealand, there were no other transactions on that account and, save for the fact that she said she had regularly looked for casual employment, there was no evidence that she had made any real effort to find employment upon first arriving in Australia. 

37.     As for Mrs Mohamed’s stated intention of residing permanently in Australia when she first arrived on 20 May 2001, the objective evidence is, in my opinion, against her on this point.  Her behaviour after arriving in Australia for the first time was consistent with Mrs Mohamed not having made a decision to reside permanently in Australia at that time; although there is perhaps little doubt that she was considering such a proposition.

38.     Finally, it is significant that upon her return to New Zealand in 2002, Mrs Mohamed received social security payments during her stay in that country.

CONCLUSION

39.     In my opinion, the weight of evidence is against Mrs Mohamed having commenced to reside in Australia between 20 and 26 May 2001.  Therefore, Mrs Mohamed is not a person who commenced residing in Australia during the period of three months beginning on 26 February 2001 and she is not a protected SVC holder.  It follows that she cannot be an Australian resident as defined in s 7(2) of the Act.  Therefore the decision made by a Centrelink delegate on 16 May 2002 should be affirmed.

I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr E. Fice, Member

(sgd)     Catherine Lake

Clerk

Date of Hearing:  8 and 9 December 2005

Date of Decision:  3 February 2006
Advocate for the applicant:        Ms N. Karapanagiotsis, of Council
Solicitors for the applicant:        Kensington Flemington Community Legal Centre
Advocate for the respondent:     Mr D. Perdon, Legal Services Branch, Centrelink