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

[2007] AATA 1626

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1626

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No 2007/641

GENERAL ADMINISTRATIVE DIVISION		)
Re		Re VICTORIA NIEVAS

Applicant

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

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date3 August 2007

PlaceSydney

Decision  The decision under review is affirmed.

.................[sgd].............................

Dr J D Campbell
  Member  

CATCHWORDS

SOCIAL SECURITY - age Pension – claim requirements – Australian resident – resides in Australia

Social Security Act 1991, sections 7, 43

Social Security (Administration) Act 1999, section 29

Hafza v Director-General of Social Security (1985) 6 FCR 444

Re Galati and Director-General of Social Security (1984) 6 ALD 538

Re Wybrow and Secretary Department of Social Security (AAT 8321, 19 October 1992)

REASONS FOR DECISION

3 August 2007 Dr J D Campbell, Member

1.      Ms Nievas was born in Argentina in 1938. Ms Nievas travelled to Australia with her older sister in June 1972. Apart from periodic visits to Argentina to see family, Ms Nievas remained in Australia to December 1991. Ms Nievas became an Australian citizen in November 1986.

2.      Ms Nievas and her sister returned to Argentina in December 1991 to care for their sick mother. Their mother died in 1995. In 1997 (approximately) Ms Nievas and her sister purchased a house in Buenos Aires, during a period in which Ms Nievas was working as a nanny, an activity she continued until 2004. Ms Nievas then worked as a kiosk assistant until March 2005, when she was replaced by the owner’s son.

3.      Ms Nievas made her first enquiry to Centrelink as regards to making a claim for age pension (by telephone from Argentina) in December 2004 and was advised that she would have to come to Australia to lodge such a claim. Ms Nievas returned to Australia on 10 July 2005.

4.      Ms Nievas lodged a claim for age pension on 22 July 2005. This claim was rejected on 25 July 2005 on the basis that she was not residing permanently in Australia; a decision affirmed by the authorised review officer (“ARO”), the Social Security Appeals Tribunal (“SSAT”), and the Administrative Appeal Tribunal (“AAT”) on 18 August 2006.

5.      Ms Nievas lodged a further claim for age pension on 21 July 2006. This claim was granted by a Centrelink delegate on 18 August 2006. Three days later on 21 August 2006, the same delegate cancelled the age pension, set aside the grant and raised a debt for payments issued. In so doing, the delegate noted that certain facts concerning residency were omitted in Ms Nievas claim of 21 July 2006. The latter decision was affirmed on review by an ARO on 21 November 2006 and by the SSAT on 1 February 2007.

issues

6.The relevant issues in this matter are:

(a)Does Ms Nievas have a 10 years qualifying Australian residence?

(b)Is Ms Nievas an Australian resident, namely is Ms Nievas an Australian citizen and does she reside in Australia?

decision

7. For the reasons stated later in this decision, Ms Nievas was not an Australian resident at the time of lodging her claim on 21 July 2006, nor at the time of cancellation on 21 August 2006, nor was she an Australian resident within 13 weeks of either the lodgement of the claim and/or the cancellation of age pension. In so finding, I acknowledge that Ms Nievas satisfied both the 10 year qualifying Australian residence and that she was an Australian citizen. However the critical test in this matter, namely whether Ms Nievas was residing in Australia, was not satisfied when I considered the evidence before me against the matters for which I must have regard. Such matters are nominated in sub section 7(3) of the Social Security Act 1991.

background evidence

8.      Ms Nievas was born and educated to second year high school in Argentina. After leaving school at age 16, Ms Nievas worked for her father in what she has variously described as a painting/hardware business. Ms Nievas has one sister (older) who lives in a house (2 bedroom, brick, value approx $25,000) in the suburbs of Buenos Aires and two married brothers with children living in Cordoba, some 800 km from Buenos Aires.

9.      Ms Nievas stated that she had never been married, while her sister was married, but left her husband in 1963. After her father died, she and her sister cared for their sick mother in rented accommodation and during this period Ms Nievas stated that her employment activities were associated with sewing.

10.     Ms Nievas and her sister arrived in Australia on 4 June 1972 and Ms Nievas commenced working in a clothing factory, where she remained for about a year. She and her sister shared accommodation during their many years in Australia. On 15 December 1991, Ms Nievas and her sister returned to Argentina to care for their sick mother (cancer). During her period of residency in Australia, Ms Nievas worked as a factory worker, a school cleaner with the Department of Education for 11 years and was unemployed for some six years prior to returning to Argentina. The period of unemployment was associated with wrist and forearm incapacity (repetitive strain injury) for which she received a compensation settlement of $3,000 in July 1990. Ms Nievas received sickness benefit payments for many years and special benefit payment, when a claim for invalidity pension was disallowed in July 1989, such decision being affirmed by the SSAT on 3 September 1990 (Exhibit R2).

11.     During the period of living in Australia, Ms Nievas became an Australian citizen in November 1986. Also during the period of 1972-1991, Ms Nievas travelled to Argentina on her Argentinean passport in (1982/83, 1985/86, and 1989/90) for a period of three months (approximately) to visit family. Prior to their return to Argentina, Ms Nievas’ sister had been granted an invalid pension in 1988 which evolved to an age pension, which she continues to receive. 

12.     On return to Argentina Ms Nievas stated that she and her sister cared for their sick mother in rented accommodation until her death in 1995. During this period and thereafter she was employed in sewing and looking after children. In 1997 Ms Nievas stated that she and her sister purchased a house in the suburbs of Buenos Aires for approximately $25,000; with contributions by each sister; being $3,000 by Ms Nievas and $10,000 by her sister together with a mortgage for the remainder.

13.     Ms Nievas stated that she and her sister lived in their purchased house, with Ms Nievas continuing to work as a nanny until 2004. At this time, as the children had grown up, her services were no longer required. Similarly, after commencing to work as a kiosk assistant, she was replaced by the owner’s son in March 2005.

14.     Ms Nievas returned to Australia on 10 July 2005, having made enquiries to Centrelink (by telephone from Argentina) about claiming an age pension and was told that she had to be in Australia to do the paper work. Ms Nievas stated that she came to Australia to claim the age pension.

15.     Ms Nievas stated that her elder sister remains resident in their jointly owned house in Argentina; that she lives alone in the house, receives some help from her neighbours because of her variable health (diabetes) and that her sister continues to meet mortgage repayments on the house.

16.     Ms Nievas stated that she purchased a single ticket to Australia in July 2005, with the purchase money being derived from her savings and some help from her sister. Further she indicated that she carried savings of approximately $1,500 with her on the trip to Australia, and that she had pre-arranged free accommodation with an Argentinean person, with whom she got friendly during her earlier time in Australia. Such accommodation arrangements were to remain until she secured a job. She believed at that time that it would not be difficult to secure a job as a nanny.

17.     In August 2005 Ms Nievas stated that she arranged accommodation through contacts at her Spanish church with Mr San Martin. Payment for the accommodation was $90 a week. By September 1995 Ms Nievas stated that she had exhausted all her savings and following a discussion with Mr Martin, payment for the accommodation was by way of housekeeping services at the house – a situation which continues to this time, though at some financial consequence to Mr Martin.

18.     Ms Nievas stated that she commenced work as a nanny for a family in September 2006. The duties involved looking after a baby in the family’s home initially for five days a week then for three days; for which she received $100. The family also attended the Spanish church. Subsequently, the child minding activity was reduced to one day a week for which she received $30-40, prior to its cessation in June 2007.

19.     Ms Nievas described a continuous involvement with the Botany Bay Spanish Church, with such involvement being associated with preparing tables for lunch on Sunday, womens’ meeting once a month, attending church twice a week and friendships from the church community.

20.     Ms Nievas stated that she has not sought to advertise her child minding services either within the church community or generally, nor has she made any enquiry/application to agencies providing such services.

21.     Ms Nievas was particular in stating that she intended to stay in Australia for an indefinite period in that it provided her with independence she so much desired. She states that she feels comfortable with her current accommodation arrangements and she trusts the people she lives with. Further, Ms Nievas expresses much satisfaction from her church association, and feels comfortable with her dependence on the church association for her continuing support and welfare, whether it is for accommodation, clothes and/or food. Ms Nievas stated that she continues to have difficulties with arthritis in her hands and knees, and that if she is unsuccessful in her claim, will seek further child-minding work. Further, if she is successful in her claim, it is then her intention to remain in Australia, with a visit to see her family in Argentina when able to afford such a visit. Further, Ms Nievas stated that she was unaware that she, being a former resident, had to remain residing in Australia for two years from the date of receipt of age pension and thought such information had been detailed to her by Centrelink on 18 August 2006 and by Welfare Rights Centre in a letter dated 27 September 2006.

legislation

22.     Sub section 29(1) of the Social Security (Administration) Act 1999 states that: “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.”

23. Sub section 7(2) of the Social Security Act1991 defines:

“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) the holder of a special category visa who is likely to remain  permanently in Australia;

(iv) the holder of a special purpose visa who is likely to remain permanently in Australia.”

24. Sub section 7(3) of the Social Security Act 1991 provides that:

“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;

(c) the nature and extent of the persons 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.

25.      Section 43(1) of the Social SecurityAct 1991 provides that:

” A person is qualified for an age pension if the person has reached pension aged and any of the following applies”:

“(a) the person has 10 years qualifying Australian residence.”

26.      Section 7(5) of the Social SecurityAct 1991 defines:

“ 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 aggravate of those periods exceeds 10 years.

consideration and findings

27.      I note that there was agreement between the parties that in the circumstances of this matter Ms Nieva’s satisfies section 43(1) of the Social SecurityAct 1991 pursuant to section 7(5) of the Social Security Act 1991. I also find that Ms Nievas satisfies the qualification for an age pension in that at the time of her claim/cancellation, she had reached pension age and that she had ten years qualifying Australian residence.

28. The particular issue that remains for consideration is whether Ms Nievas’ was an Australian resident at the time of her claim on 21 July 2006 or within a period of 13 weeks thereafter. I note that Ms Nievas’ became an Australian citizen on November 1986, thereby satisfying the second requirement nominated in section 7(2) (b) of the Social Security Act 1991.

29. In addressing the question of whether or not Ms Nievas was residing in Australia at the time of her claim or within a period of 13 weeks thereafter, I shall give, in turn, regard to each of the matters nominated in section 7(3) of the Social Security Act 1991. I recognise that the list of factors for which I must have regard to is not exhaustive and do not necessarily detract from the general observations made by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444 at pages 449 and 450:

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.

30.      I also note an earlier Tribunal decision of Galati and Director-General of Social Security (1984) 6 ALD 538 where at 550 to 553 the Tribunal stated:

For the purpose of considering whether a person is ‘residing in’ a particular place, the Tribunal decided that the phrase referred to a person’s ‘abode’ “in a particular place or country which he has adopted voluntarily and for settled purposes at part of the regular order of his life for the time being, whether of short or long duration.”

As indicated, this decision was prior to the decision in Hafza and would appear to place emphasises on a particular place (physical) and for settled purposes (whatever that may mean).

31.      Further, I note the comments of McMahon, Deputy President in Re Wybrow and Secretary Department of Social Security (AAT 8321, 19 October 1982) where at paragraph 26 the Deputy President quoted:

“In considering whether residence is established, a court considers a man or woman’s whole environment, especially in relation to their spouse or family and not merely a person’s physical situation.” (Re Mengi and Director- General of Social - Security (1984) 6 ALN N320 at N323).

32.      In further enunciation in the same case at paragraph 27 McMahon, Deputy President, while noting that the factors 7(a) to (d) relate to the person’s relationships and ties in Australia, “it is just as appropriate to consider the converse of these factors in relation to the applicant’s circumstances outside Australia”.

33.      In addressing each of the factors to be taken into account in deciding whether, for the purpose of the Social SecurityAct 1991 a person is residing in Australia and for which I must have regard to I detail the following:

Section 7(3)(a): The nature of the accommodation used by the person in Australia.

Initially her accommodation was rent free in pre-arranged accommodation with a friend. For a short period after that accommodation was in a boarding house for which she paid $90 a week rent. After discussion with the owner as to her lack of friends, Ms Nievas has remained in the same accommodation by providing labour by way of house keeping in lieu of rent. The owner (a church acquaintance) has indicated that such has been done because of compassion, as she has nowhere else to go, but at a burden to his financial circumstances (T28, p82). Clothes are generally provided by way of gift from her church or parishioners associated with the church. Ms Nievas states that she trusts the people she lives with and feels safe in the household.

Section 7(3)(b):  The nature and extent of the family relationships the person has in Australia.

Ms Nievas has no family, or family relationships in Australia. She left Australia in 1991 with her sister to return to Argentina to care for their sick mother, who died in 1995. She maintained a domestic relationship with her sister thereafter, first in rented accommodation and from 1997 in a house purchased and owned jointly by both sisters, the house being located in a suburb of Buenos Aires. Ms Nievas stated that she continued to exchange letters with her sister and two brothers, who reside at Cordoba. Ms Nievas stated that while she intended to remain permanently in Australia, she would hope to visit her family in Argentina when financial circumstances permitted. Ms Nievas contends that her association and activities with her church are of great assistance to her.

Section 7(3)(c): The nature and extent of the person’s employment, business or financial ties with Australia.

At the time of application Ms Nievas was not employed in Australia. Ms Nievas commenced undertaking child care duties with the Gomez family in September 2006, for which she received $150 a week, with such money being used for food and other personal necessities. Unfortunately, these activities have since been reduced and then ceased in June 2007, due to the employers’ tightened financial circumstances. Ms Nievas stated that she has made no enquiries or advertised at the church or any agency for further child minding work. As regards to business and/or financial ties, Ms Nievas stated that she maintains a bank account with St George with a $10 credit amount and that she has no other business or financial ties in Australia or in Argentina.

Section 7 (3)(d): The nature and extent of the person’s assets located in Australia.

Ms Nievas stated that she had no assets in Australia, with clothes, and furniture essentially being what she brought with her from Argentina or what has been given to her by friends from Church. Ms Nievas stated that she owned a house jointly with her sister in Buenos Aires; that the purchase price was approximately $25,000; that her sister lives alone in the house, but maintains the mortgage and up-keep. Ms Nievas believes that the understanding between the two sisters is that the house ownership will pass to the other on the death of the other.

Section 7 (3)(e): The frequency and duration of the person’s travel outside Australia.

From 1991 to June 2005 Ms Nievas resided in Argentina, and did not travel out of the country. Ms Nievas admits that it was her intention to return to Australia in order to apply for an age pension. She also states that it was her intention to remain in Australia, once the pension was granted.  Similarly, Ms Nievas also admits to her desire to travel to Argentina to visit the family, if her claim was successful and when she had enough money. Ms Nievas also acknowledges that her sister made a financial contribution towards the cost of returning to Australia in June 2005 to lodge a claim for age pension, with the ticket being a single ticket. It is further noted that while Ms Nievas returned to Argentina in 1991 to care for her mother, her mother died in 1995, with some 10 years elapsing in which a house was purchased and work activities undertaken, before Ms Nievas elected to return to Australia in 2005.

Section 7(3)(f): Any other matter relevant to determining whether the person intends to remains permanently in Australia.

Ms Nievas stated that it was her intention to return to Australia to make application for an age pension and to stay permanently in Australia. She further states that she feels comfortable in Australia, mainly because of the household in which she lives and because of her church. Further, Ms Nievas states that she wishes to be independent of her sister, with the latter not having to provide for her and with such financial resources being deployed for her own care and house maintenance. In addressing these issues as stated, I express much difficulty, for it would seem that Ms Nievas is encapsulated currently within an environment of dependency, in that she relies on the church, their members and her landlord for her well-being, a situation which existed at the time she lodged a claim for age pension in July 2006. Further, it would appear that she claims comfort in environmental circumstances of almost total dependency and over which she has little control as to continuance. I have much difficulty in accepting her stated degree of comfort for it is both inconsistent with her desire to be independent and her action to return to Australia to claim age pension to help secure such financial independence.

34.      I am mindful that time, in itself, creates circumstances which can be pointed to as demonstrating evidence as to why it is an individual’s intention to stay permanently in a country. Indeed time alone, either coupled with or not coupled with changing circumstances, may be sufficient to demonstrate such an intention. In the matter to hand, I note little evidence of changed circumstances in terms of having regards to the matters that one must have regard to. In so stating, I note that there has been an episode of employment activity during the claim period under consideration, but, in essence, apart from evidence suggesting an increased dependency on others within her sphere of relationships, nothing has altered in terms of consideration of factors that led to the denial of her first claim for age pension in 2005.

35.      I acknowledge that Australia was Ms Nievas’ place of residence until December 1991. From December 1991 to June 2005 Ms Nievas returned to Argentina, established a permanent residence with her mother and sister in that country and purchased a house with her sister, which she and her sister continue to own, and in which the sister continues to reside alone. In such circumstances, I am satisfied that Ms Nievas was not an Australian resident during that period as she was not a person who was residing in Australia.

36.      Since her return to Australia in June 2005 and up until her claim for age pension in July 2006 and for the 13 weeks thereafter, the only circumstances that have altered, on objective assessment, are Ms Nievas’ continued residence in Australia for a period of 15 months, an increasing dependence on her church associations for her accommodation, welfare and livelihood, the latter best exampled by the commencement of child caring employment with a church-related family in September 2006. I note this activity was later varied to one day a week and then ceased in June 2007, without any attempt by Ms Nievas to seek alternate or supplementary employment. In such circumstances, I remain unconvinced as to Ms Nievas intention to stay permanently in Australia, as Ms Nievas has failed to demonstrate either the framework or the foundation on which such an intention could be founded, while at the same time negating the inferences that can be reasonably drawn from her period of residence in Argentina for 14 years, her joint ownership of a house in Buenos Aires with her sister, the family ties which continue to exist with her two brothers and sister in Argentina, coupled with her current circumstances of considerable dependence on others for her continued welfare in Australia.

37.      In such circumstances and for the reasons earlier outlined, I find that Ms Nievas was not residing in Australia at the time of lodging a claim for age pension in July 2005 and for a period for 13 weeks thereafter.

38.      In such circumstances Ms Nievas cannot be considered to be an Australian resident at the time of her claim in July 2006 and for the 13 weeks thereafter, with her claim for age pension failing, as such a claim can only be made by a person who is an Australian resident.

39.      Finally, as indicated earlier in this decision, time and time alone may create circumstances in which appreciation and assessment of Ms Nievas’ circumstances may result in a different outcome, as reality of circumstance may displace inferences drawn from earlier intentions or circumstances. My assessment is that by July 2006 and for 13 weeks thereafter time alone has not exerted such influence.

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         ............[sgd]....................................................................
  Associate

Date/s of Hearing  22/6/2007
Date of Decision  3 August 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr J Kenny, Centrelink Legal Services