Nedorezov and Secretary, Department of Social Services (Social services second review)
[2024] AATA 154
•9 February 2024
Nedorezov and Secretary, Department of Social Services (Social services second review) [2024] AATA 154 (9 February 2024)
Division: GENERAL DIVISION
File Number: 2023/3535
Re:Vladimir Nedorezov
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:9 February 2024
Place:Sydney
The reviewable decision made on 21 April 2023 is affirmed.
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether the applicant has 10 years of qualifying Australian residence – the frequency and duration of the Applicant’s travel outside Australia – 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 – any other matter relevant to determining whether the Applicant intends to remain permanently in Australia – reviewable decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
CASES
Hafza v Director-General of Social Security [1985] FCA 201
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Re Clifopoulos and Secretary, Department of Social Security [1994] AATA 282
Wybrow v Secretary Department of Social Security [1992] AATA 315
SECONDARY MATERIALS
Department of Social Services, ‘Social Security Guide’ Guides to Social Policy Law
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
9 February 2024
Introduction
The Applicant, Mr Nedorezov, is a 73 year old citizen of the Russian Federation (Russia). His application for age pension was refused on 22 November 2022 because he did not have 10 years of qualifying Australian residence pursuant to section 43(1)(a) of the Social Security Act 1991 (Cth) (the Act), or a qualifying residence exemption pursuant to section 43(1)(b) of the Act. That decision was affirmed on 21 April 2023 by the Social Services & Child Support Division of the Tribunal (the reviewable decision).
He does not claim, and the evidence does not establish, that he has a qualifying residence exemption.[1] Therefore the issue is whether he has 10 years of qualifying Australian residence as required by subsection 7(5) of the Act.
[1] The Act, ss 7(6) and 7(6AA).
The Applicant claims that he qualifies because he has been an Australian resident since his arrival on 24 July 2011. He has held a permanent visa from that time and therefore satisfies section 7(2)(b)(ii) of the Act.
He does satisfy that criterion, but that is not the criterion in issue. He must also satisfy subsection 7(2)(a) of the Act, that he resides in Australia.
He was in Australia on 30 September 2022 when he lodged his application for age pension. He must establish that he qualified for age pension on that date or within 13 weeks after that day.[2] The Respondent accepted that he was an Australian resident from 22 November 2016 and therefore at the time he claimed.[3]However, he had only six years and one month of qualifying residence at the end of the claim period.
[2] See Social Security (Administration) Act 1999 (Cth) (the Administration Act), s 42 and Sch 2, Part 2, Cl 3-4.
[3] The Administration Act, s 29.
The period in dispute is from 15 August 2011 when he departed Australia until his return on 22 November 2016. He returned to Australia twice during that period.
In summary, the Applicant claims that when he arrived in Australia on 24 July 2011 on a permanent visa, a Subclass 143 (Contributory Parent) visa, he was entitled to stay for an indefinite period and he intended to reside here. However, his wife’s aunt fell and suffered a serious fracture to her hip. He departed Australia on 15 August 2011 to return to Russia to assist her. While he was there in September 2011, his mother suffered a stroke which left her debilitated. Thereafter, as an only son, he had to remain to look after her until her death on 9 November 2015. While he was finalising her affairs, he fractured two discs in his spine when he fell on ice on 16 January 2016 which prevented him returning to Australia until 22 November 2016.
The legislative context
Subsection 7(2)(a) of the Act provides that an Australian resident is a person who resides in Australia.
Subsection 7(3) of the Act provides:
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.
Those factors must be taken into account but they are not exhaustive and the converse of each may be relevant.[4]
[4] Wybrow v Secretary Department of Social Security [1992] AATA 315 at [22] and [26].
Section 7(5) of the Act provides:
A person has 10 years qualifying Australian residence if and only if:
a) the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
b) the person has been an Australian resident during more than one period and:
i)at least one of those periods is 5 years or more; and
ii)the aggregate of those periods exceeds 10 years.
The relevant policy is found in the Social Security Guide (Guide).
Applicable principles derived from the cases
The legal concept of residence has been considered by courts in various contexts. In the case of Hafza v Director-General of Social Security [1985] FCA 201, Wilcox J analysed earlier cases in the context of social security law. Following is a summary of the principles His Honour enunciated at [13]-[14]:
·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.
·Physical presence and intention will coincide for most of the time. Residence does not necessarily cease because the person is absent. The test is whether the person has retained a continuity of association with the place.
·A person may simultaneously be resident in more than one place.
·The application of the general concept of residence to any particular case must depend on the wording and underlying purposes of the particular statute in relation to which the question arises.
·Where the general concept applies, 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.
In Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059, the Tribunal said:
21. An applicant’s intention is an important consideration in determining his or her residence. The Tribunal has found that, where a person intends to be absent for a limited time and for a “singular passing purpose”, an absence of seven years is not necessarily incompatible with residence: Re Secretary, Department of Social Security and Mosca [1998] AATA 586.
22. However, 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.
…
66. … merely having in mind to return to Australia at some point is not sufficient.
In Re Clifopoulos and Secretary, Department of Social Security [1994] AATA 282, Deputy President McDonald described the Tribunal’s task when applying subsection 7(3) of the Act. In summary they are at [17]:
·the criteria should not be applied in a mechanical way;
·the relevance and importance of each criterion will vary in each case;
·the criteria are to guide the decision-maker in determining the person’s intention as to the place of residence;
·the decision-maker is entitled to consider the converse of each criterion.
Consideration
It is useful in this case to begin by setting out the Applicant’s travel history to provide context for consideration of the other criteria in subsection 7(3) of the Act.
The frequency and duration of the Applicant’s travel outside Australia from 24 July 2011
The following tables are taken from the Respondent’s Statement of Facts, Issues and Contentions. The Applicant did not challenge their accuracy. They set out the Applicant’s movements in and out of Australia after his arrival on 24 July 2011, the number of days he was outside Australia (excluding the days departing and arriving in Australia), and the percentages of days he was in Australia.
Departed Australia Returned to Australia Number of Days Outside Australia 15 August 2011 25 December 2011 131 10 January 2012 22 December 2013 711 (nearly 2 years) 19 January 2014 22 November 2016 1037 (nearly 3 years) 12 June 2017 10 August 2017 58 11 December 2017 25 January 2018 44 12 October 2018 17 October 2018 4 15 November 2018 22 November 2018 6 25 December 2018 14 January 2019 19 Total 2010
Time Period Number and Percentage of Days Outside Australia Number and Percentage of Days Inside Australia 24 July 2011 to 30 September 2022 2010
(48%)
2106
(52%)
24 July 2011 to 22 November 2016 1879
(95%)
99
(5%)
22 November 2016 to 30 September 2022 131
(6%)
2008
(94%)
At chapter 3.1.1.10, the Guide says in relation to a person who is not continuously present in a country:
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
Taken in isolation, a 3-year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable. (Emphases added.)
The Applicant left Australia on 15 August 2011 to assist his wife’s elderly aunt. He remained to care for his mother who suffered a stroke in September 2011 until he returned on 22 November 2016, more than a year after her death. During that time, he visited Australia briefly to celebrate Christmas with his family in 2011 and 2013, when he was able to get carers for his mother.
The reasons he did not return to Australia for more than a year after his mother’s death on 9 November 2015, included finalising his mother’s estate, suffering an injury to his spine in January 2016 which prevented him from travelling, and fulfilling contractual obligations to a biofuel company.
The nature of the accommodation used by the Applicant in Australia
When the Applicant arrived in Australia in July 2011, he and his wife stayed with her daughter and her family in Brisbane in rental accommodation and visited his daughter who lived in Sydney with her family, for a week. He purchased some furniture for the room where he and his wife stayed with her daughter.
When he returned to Australia to reunite with his family for Christmas in 2011 and 2013, he again stayed at his stepdaughter’s home where his wife lived and visited his daughter in Sydney.
When the Applicant was in Russia, he lived in his mother’s home. He had sold his Moscow apartment where he had lived before leaving for Australia in 2011.
The nature and extent of the family relationships the Applicant has in Australia
The Applicant and his wife separated around the end of 2015 and divorced on 9 July 2016. He supported her financially until their relationship ended. Both his wife and her daughter and her family have continued to reside in Australia. He has been on speaking terms with his former wife and her daughter and her family since his relationship with his wife ended.
His daughter had two children during the relevant period. She had a third child in 2017. She contacted the Applicant while he was in Russia by text, Skype, WhatsApp, and telephone calls, sometimes every day and sometimes once a week. She and her family continue to reside in Australia. The Applicant lived with them for a while after he returned to Australia in 2016.
During the relevant period, the Applicant’s wife’s adult daughter and, before her death on 19 November 2015, his elderly mother, lived in Russia. His reason for remaining in Russia from August 2011 until his mother’s death in November 2015, returning to Australia briefly twice, was to care for her. Her welfare and his duty as an only son to care for her was his paramount concern.
The nature and extent of the Applicant’s employment, business or financial ties with Australia
The Applicant was not employed and did not have any business interests in Australia during the relevant period. He had no investments in Australia.
He is an electrical engineer and ‘convinced conductor of the ideas of alternative energy’. He provided a copy of one contract he entered into on 31 July 2012 with a biogas company (the Company) to be an agent in Russia. He was to receive 10% of the sale price of products the company supplied, as well as services that were subject to the contracts which were entered into in connection with his functions as an agent. The contract was to end on 31 December 2013 or an additional calendar year if there were no declarations by the parties as to termination of the agreement. Payments to him under the contract were to be made to a St George bank account ending 1792.
The Applicant claimed that he only spent 4 hours of his time engaged in activities ‘for the entire duration of the contract.’ He provided an invitation from a government working group on energy to attend a conference on 21 March 2013 in Moscow about handling and utilising production waste in the Tula Region.
The Applicant contended that the contract cannot be classified as employment and was not an obstacle to caring for his mother because he did not have to leave her for long periods to meet his contractual obligations. He engaged carers for her. However, she had a ‘difficult’ character and carers came and went.
When asked during the hearing when his contract with the company ended, he said in 2016. He had told AAT1 that he had been employed on short-term contracts in Russia and one of the reasons he stayed in Russia for a year after his mother died was to fulfil his employment contract.
I find that the Applicant’s involvement with the biogas company was relevantly a business tie which generated income. That involvement continued from 2012 until sometime in 2016, based on short term contracts. I am not persuaded that the Applicant earned little income or that he spent little time engaged in activities under the contract. He did not provide any records of the St George bank account 1792 into which payments were to be made according to the contract, during the period of the contract. He provided no other corroborative evidence of his income in Russia. He said that he supported himself from his consulting work and savings. He was also supporting his wife financially in Australia.
The Applicant provided statements for two bank accounts in Australia during the relevant period: the St George bank account ending 1792 for the period 25 July 2011 to 24 August 2011, showing a nil opening balance, total credits of $700 and a closing balance of $156.77, and a Suncorp account from 9 January 2014 to 8 July 2014 with a nil opening and closing balance. As noted above, he did not provide statements for the St George account ending 1792 during the period of the contract in evidence or for the rest of the time he was doing his consultancy work in Russia.
The Applicant said that he had bank accounts in Russia, which included the proceeds of sale of his apartment, about $US750,000 and occasional consultant service fees. He said that he could not provide copies of bank statements because records are kept for only five years. He used Russian bank accounts when he was in Russia and Australian bank accounts when he was in Australia.
The Applicant said that when he returned to Australia in 2016, his available funds were $100,000 because of living expenses and his divorce in Russia. He purchased a car in January 2017 for $50,000 or $60,000.
The Applicant asserted that when he arrived in Australia, he purchased a bed and other items to furnish the room he and his wife shared in her daughter’s house. He provided no documentary evidence about those purchases.
The Applicant provided a motor vehicle search that showed that a 2009 Toyota Camry had been transferred to him on 27 July 2011 and transferred out of his name on 8 January 2014. He said that he had transferred it to his wife because she was learning to drive and wanted to sell it and buy a smaller vehicle.
The Applicant did not have significant assets in Australia. He had at least $US750,000 in Russia in 2011 and $100,000 (probably $AU) when he arrived in Australia in 2016, after his divorce settlement when his wife got 50%.
Any other matter relevant to determining whether the Applicant intends to remain permanently in Australia
The Applicant relied on having a permanent visa from 2011 and his intention to reside permanently in Australia from that time and that special circumstances prevented him from implementing that intention until 2016.
He said that he and his wife had planned to get their own property in Australia using the proceeds of sale of the Moscow apartment. However, they could not buy a property straight away. He bought a vehicle so they could look around and familiarise themselves with the areas. They were not sure whether to buy in Brisbane or Sydney.
Conclusion
In all the circumstances, for the following reasons, I am not satisfied that the Applicant resided in Australia from his departure on 15 August 2011 until his return on 22 November 2016. He did not have 10 years of qualifying Australian residence pursuant to section 43(1) of the Act.
He resided in Russia before he arrived in Australia. He had been present in Australia for 21 days when he left. During the relevant period, he returned to Australia briefly twice to visit his wife, her daughter and her family and his daughter. When he visited, he stayed in Brisbane with his wife in her daughter’s family home and visited his daughter in Sydney. He was in contact with his family members who were residing in Australia while he was in Russia.
His most important family relationship was with his mother.
He had no employment, business or financial ties with Australia. He did in Russia, as described above.
His major asset in Australia was a motor vehicle of undisclosed value which he transferred to his wife in 2014. In Russia he had $US750,000 in 2011 and about $100,000 (probably $AU) in 2016 after he had concluded a divorce settlement with his wife.
The Applicant was not residing in Australia before he left in August 2011. I have taken into account his evidence about the importance of generations of a family living together but give it little weight because he said that his mother lived separately from him before he left Russia in 2011, and his wife wanted her own home and they had not decided where to live before he left. He had not established a home in Australia when he left.
When he returned to Russia he continued to reside there, although in a different house, his mother’s home, until he left in November 2016. He resumed his entrepreneurial work in relation to clean energy, in which he had been involved for eight years before his departure in 2011.
The Applicant did not continue to reside in Australia following his return in 2016. He began to reside in Australia. In the particular circumstances of this case, I am not satisfied that his reason for remaining in Russia for so many years constituted special circumstances as considered in chapter 3.1.1.10 of the Guide.
DECISION
The reviewable decision made on 21 April 2023 is affirmed.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
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Associate
Dated: 9 February 2024
Date of hearing:
10 January 2024
Applicant:
In person
Solicitors for the Respondent:
Mr M Gauci, Hunt & Hunt Lawyers
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