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

[2006] AATA 711

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 711

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/374

GENERAL ADMINISTRATIVE DIVISION		)
Re		VICTORIA NIEVAS

Applicant

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

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date18 August 2006

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

………………………………….

Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – age pension – Australian citizen - during how much of Applicant’s continuous physical absence from Australia is Applicant considered resident – the decision under review is affirmed.

LEGISLATION

Social Security Act 1991 sections 7 and 43.

CASE LAW

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

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

Re Wybrow and Department of Social Security (1993) 71 SSR 1025

Re Gnisios and Secretary, Department of Social Security (AAT 10759, 22 February 1996)

Maniatis and Secretary, Department of Family and Community Services (1999) AATA 89

REASONS FOR DECISION

18 August 2006 Ms N Isenberg, Member

1.        Ms Nievas, an Australian citizen, seeks an age pension.  Her application was refused on the basis that she was not an Australian resident. 

BACKGROUND

2.        Ms Nievas was born in Argentina and migrated to Australia on 4 June 1972 when she was aged 34.  She became an Australian citizen on 3 November 1986.

3.        On 15 December 1991, Ms Nievas left Australia to reside in Argentina.

4.        In about December 2004 she contacted Centrelink from Argentina and was told that she would have to return to Australia to apply for the age pension.

5.        On 10 July 2005, Ms Nievas returned to Australia after a fourteen year absence.  Two days later, on 12 July 2005, Ms Nievas contacted Centrelink and advised that she intended to claim age pension.  Her application was lodged on 22 July 2005.

6.        On 25 July 2005, a Centrelink delegate rejected Ms Nievas’ claim for age pension on the basis that she was not residing permanently in Australia.  The decision was affirmed on review and by the Social Security Appeals Tribunal (“the SSAT”).

ISSUE BEFORE THE TRIBUNAL

7.        The issues to be decided by the Tribunal are:

(a)   Whether Ms Nievas qualifies to be paid age pension and specifically,

(b) Whether Ms Nievas was an Australian resident within the meaning of section 7 of the Social Security Act 1991 (“the Act”) on 12 July 2005; the date of her claim, or within 13 weeks thereafter?

LEGISLATION

8.        The term “Australian resident” is defined in section 7(2) of the Act as a person who, inter alia, is a citizen and resides in Australia.

9.        Subsection 7(3) provides relevant factors that I must consider before determining 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.”

CONSIDERATION OF THE EVIDENCE AND FINDINGS

10.      At the outset of the hearing I explained to Ms Nievas, that there was no dispute that she is an Australian citizen, but, for the purpose of ascertaining her entitlement to the age pension, she must also be found to be a resident at the time of her application or within 13 weeks of that application.

11.      I then turned to consider the criteria to establish residence.

12.      Before turning to the criteria for residence in Australia, I note the decision in Re Wybrow and Department of Social Security (1993) 71 SSR 1025 where the Tribunal discussed the relevance of considering the converse of factors as provided in subsection 7(3).  Shortly put, not only should I look at Ms Nievas‘ relationships and ties with Australia but also those with Argentina.

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

13.      Ms Nievas lives in a rented room with a shared kitchen and bathroom.  She cannot presently meet the $90 per week rent so cleans the house in lieu of rent.  Sometimes she will do ironing for the others in the house for which she may be paid $5 to $10 a time.  She gets food from people at the Church or leftovers from the others in the house.

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

14.      Ms Nievas went to Argentina in 1991 with her sister because their mother was ill and needed care.  Unfortunately her mother passed away in 1995. 

15.      Her two brothers and their families live about 800 kms from Buenos Aires, where she lived in Argentina.  When she was living there her brothers would come to visit her and would sometimes also collect her and take her to their homes. On the basis of that information I consider she has a reasonable and ongoing relationship with her extended family in Argentina.

16.      Ms Nievas however has no family in Australia at all. 

17.      This is not a matter like Re Raad and Secretary, Department of Family and Community Services [2000] AATA 387 where there were family responsibilities both overseas and in Australia, because she has no family connections in Australia.

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

18.      Ms Nievas said she had considered work – looking after children or the elderly.  This was the paid work she had undertaken in Argentina.  This employment goal while here would seem somewhat unrealistic, given her limited communication skills, such that she required the use of an interpreter for the whole of the hearing.

19.      She has no employment, business or financial ties with Australia other than a single Commonwealth Bank Account in which she has less than $10.

20.      She said she did not have a bank account in Buenos Aires either, as her sister handled all the money.

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

21.      Ms Nievas does not own any real estate or other property in Australia.  On the other hand, she owns a home with her sister in Buenos Aires, which they purchased after their mother’s death, in about 1995.  It was unclear if that property is mortgaged.

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

22.      Prior to her claim, Ms Nievas had lived in Argentina for 14 years, during which time she did not travel to Australia (or anywhere else).

23.      She denied that she had told the SSAT that she would have remained in Argentina if she could have obtained the pension from there.  Her evidence before me was that she had enquired about age pension while in Argentina and was told nothing could be done for her while she was there.  On learning that, she decided to come to Australia to stay for good.

24.      Her ticket to Australia was a one-way ticket.  She said she had difficulty financing a ticket to Australia anyway. 

25.      She said she had left Australia with her sister in 1991 because their mother was ill.  They apparently nursed their mother till her passing.  She remained in Argentina for another 10 years.  Her absence from Australia was not a temporary one - that term suggesting an absence of a short duration for a specific purpose.  (Hafza v Director-General of Social Security (1985) 60 ALR 674).

26.       She said she had wanted to return to Australia after her mother’s death but could not afford a ticket.  This however is inconsistent with her evidence that she and her sister bought the house in Buenos Aires after their mother died.

27.      In Re Gnisios and Secretary, Department of Social Security (AAT 10759, 22 February 1996) although the applicant had purchased a one-way ticket from Greece to Australia a preponderance of other factors, including family ties and property ownership in Greece, led the Tribunal to conclude that he was nonetheless not “residing in Australia”.

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

28.      Ms Nievas told the SSAT stated that she had no problem staying in Australia as [she feels] “comfortable” here.  I have some difficulty accepting this, given her very limited circumstances here: rented accommodation that she cannot afford, no money for food, no income or assets and no family.  (She does have some support from her Church though.)

29.      She also told the SSAT that if she were not granted age pension she would have to leave Australia but has no money to purchase a return ticket to Argentina.  There was no evidence that she had asked her sister for money, or that there were plans to sell the property in Buenos Aires, other than in the context of her sister also coming to Australia.

30.      As to her plans for the future, she told me that in about December last year, after her application for the pension was refused, she discussed with her sister about coming to live in Australia.  If that occurs they might sell the house in Argentina and buy a unit together. In Maniatis and Secretary, Department of Family and Community Services (1999) AATA 89, to which I was referred, the Tribunal held that later revised statements of intention do not assist the applicant further. In any event her evidence did not suggest to me that she was requiring the sale of the house in Argentina, as one might have thought, so as to fund her stay here. Discussion with her sister (the relative with whom she appears closest) about living in Australia, only occurred after her application for pension was refused.

31.      I accept that Australia was Ms Nievas’ home and primary place of residence till 1991.  After 1991 however she was not an Australian resident as she established a permanent residence in Argentina with her sister and mother, and more relevantly, after 1995, jointly purchased her own house with her sister, instead of returning to Australia.

32.      I cannot accept that Ms Nievas remained resident in Australia for the duration of her 14 year absence overseas, whether or not living in Australia may have been her preference.  The evidence before me is clear that Ms Nievas has not maintained continuity of association with Australia and none of the factors I must consider suggest to me indicate that she had, at the relevant date, an intention to make Australia her permanent home.  

33. I find that at the time Ms Nievas made an application for the age pension, and in the 13 weeks thereafter, all her ties are with Argentina, and she was not therefore resident in Australia in accordance with the criteria in section 7(3) of the Act.

DECISION

34.      The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Associate

Date of Hearing  9 August 2006
Date of Decision  18 August 2006  
Representative for the Applicant               Self Represented
Representative for the Respondent          Ms P Sharma, Centrelink