Nikifor Atanassoff and Secretary, Department of Social Services
[2014] AATA 656
•10 September 2014
[2014] AATA 656
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2727
Re
Nikifor Atanassoff
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 10 September 2014 Place Sydney The decision of the Social Security Appeals Tribunal made 21 May 2014 is affirmed.
................................[sgd]........................................
Deputy President J W Constance
Catchwords
SOCIAL SECURITY – age pension – eligibility – Australian resident - whether applicant was an Australian resident at the time of claim – decision affirmed
Legislation
Social Security Act 1991 (Cth) ss 7(2), 7(3), 43
Social Security Administration Act 1999 (Cth), ss 3(2), 29Cases
Clifopoulos and Department of Social Security (1994) 36 ALD 745
Hafza v Director-General of Social Security (1985) 6 FCR 444
REASONS FOR DECISION
Deputy President J W Constance
10 September 2014
INTRODUCTION
In May 2014 the Social Security Appeals Tribunal affirmed a Centrelink decision to refuse Mr Atanassoff’s claim for an age pension. His claim was refused on the ground that he was not an Australian resident at the time he made his claim for payment. Mr Atanassoff has applied for a review of the decision of the Social Security Appeals Tribunal.
A hearing has not been held. It appears that the issues for determination can be adequately determined in the absence of the parties and they have consented to this course. I have considered all of the documents lodged in the Tribunal in relation to this application and I am satisfied that this is an appropriate means of conducting this review.[1]
[1] Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
DOCUMENTS CONSIDERED
The following documents have been considered by me in reaching a decision:
·the application lodged by Mr Atanassoff on 28 May 2014 (exhibit A1);
·a copy of the decision of the Authorised Review Officer, Centrelink, dated 3 March 2014 (exhibit A2);
·a copy of the decision of the Social Security Appeals Tribunal dated 21 May 2014 (exhibit A3);
·a form containing further information lodged by Mr Atanassoff on 2 June 2014 (exhibit A4);
·written submissions by Mr Atanassoff lodged on 20 August 2014 (exhibit A5);
·the documents lodged by the Secretary in accordance with the section 37 of the Act on 14 August 2014 (exhibit R1);
·the Statement of Facts and Contentions lodged by the Secretary on 8 August 2014 (exhibit R2).
THE ISSUE IN DISPUTE
The only issue is whether Mr Atanassoff was an Australian resident at the time he made his claim for the pension, being 22 October 2013, as required by the Social Security (Administration) Act 1999 (Cth). I will refer to this Act as “the Administration Act”.
THE LEGISLATION
Section 43 of the Social Security Act 1991 (Cth) sets out the qualifications for a person to receive the age pension.
Section 29 of the Administration Act provides:
(1) Subject to sections 30, 30A, 31, 31A, and 32, 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.
(2) Subject to sections 30, 30A, 31, 31A, and 32, a claim made at a time when the claimant is not an Australian resident or not in Australia is taken not to have been made.
Subsection 3(2) of the Administration Act provides that a term used in the Administration Act has the same meaning as under the Social Security Act.
Subsection 7(2) of the Social Security Act provides:
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.
Subsection 7(3) of the Act provides:
(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.
FACTS
Mr Atanassoff was born in Bulgaria in 1948. He migrated to Australia in 1972 and lived here until mid-1993. He subsequently returned to Bulgaria where he has lived since.
In 1977 he became an Australian citizen and since that time has been a citizen of both Australia and Bulgaria. Initially he lived in Australia as the holder of a migrant visa.
Immigration Movement Records[2] show that Mr Atanassoff has been present in Australia during the following periods since he returned to Bulgaria in 1993:
·15 October 1997 – 28 October 1997
·6 July 2000 – 16 July 2000
·8 October 2000 – 15 October 2000
·1 November 2003 – 7 November 2003
·19 October 2013 – 28 October 2013.
[2] Exhibit R1 p.100.
In September 2013 Mt Atanassoff reached the pension qualifying age of 65 years. He personally lodged his application for the pension at a Centrelink office in New South Wales on 22 October 2013.
By letter of 30 October 2013 Centrelink advised Mr Atanassoff that:
… Your Age pension has been rejected … We cannot pay you Age Pension because you are not eligible… To be eligible to receive an Australian Age Pension you need to be permanently residing in Australia, or a country that shares an International Social Security Agreement with Australia …[3]
[3] Exhibit R1 p.66.
Turning to the factors outlined in subsection 7(3), the examination of the documents before the Tribunal reveals the following facts.
The nature of the accommodation used by Mr Atanassoff in Australia
When he visits Australia Mr Atanassoff usually stays with friends. He does not have any real estate or leased property in Australia.[4]
[4] Exhibit R1 p.5.
The nature and extent of the family relationships Mr Atanassoff has in Australia
Mr Atanassoff has an adult daughter who lives in Australia. He visits his daughter when in Australia.[5] He has no other family here. His wife and a dependent teenage daughter (who is an Australian citizen) live with him in Bulgaria.
[5] Exhibit R1 pp.5, 75
The nature and extent of Mr Atanassoff’s employment, business or financial ties with Australia
Mr Atanassoff worked in Australia for 21 years prior to his departure in 1993. However he has not worked during the past two years,[6] which indicates that he was not employed in October 2013. There is no evidence that Mr Atanassoff has had any employment ties with Australia since 1993.
[6] Exhibit A5.
Having heard Mr Atanassoff give evidence, the Social Security Appeals Tribunal found that he had no continuing business or financial ties with Australia. Mr Atanassoff has not disputed this finding. On this basis I am satisfied that he had no such ties at the time he lodged his claim for the age pension in October 2013.
The nature and extent of Mr Atanassoff’s assets located in Australia
Mr Atanassoff does not have any assets in Australia other than the bank account which he opened for the purpose of receiving payment of the pension.[7]
[7] Exhibit R1 pp.25-40,
The frequency and duration of Mr Atanassoff’s travel outside Australia
Mr Atanassoff has spent all of the time since 1993 outside Australia, with the exception of five short periods set out in paragraph 12 of these reasons.
Any other matter relevant to determining whether Mr Atanassoff intends to remain permanently in Australia
At the time Mr Atanassoff lodged his claim he was living with his wife and dependent daughter in Bulgaria. This remains the situation. In his application form Mr Atanassoff indicated that his permanent address was in Bulgaria and that he had “lived” in Bulgaria since 1993.
In his application, Mr Atansanoff disclosed that he had personal property (jointly owned with his wife) and a bank account in Bulgaria. His wife owns real estate in Bulgaria.
CONSIDERATION
As stated, the only issue is whether Mr Atanassoff was an Australian resident on 22 October 2013, being the date he made his claim for the pension. In light of the definition of “Australian resident” in subsection 7(2) of the Act, it is necessary to determine whether Mr Atanassoff resided in Australia at the time he made his claim.
In Hafza v Director-General of Social Security [8] the Federal Court said:
[8] (1985) 6 FCR 444
There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. 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. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 C.L.R. 241 at p.249, by Williams J.:
"The place of residence of an individual is
determined, not by the situation of some
business or property which he is carrying on or
owns, but by reference to where he eats and
sleeps and has his settled or usual abode. If
he maintains a home or homes he resides in the
locality or localities where it or they are
situate, but he may also reside where he
habitually lives even if this is in hotels or on
a yacht or some other abode." [9]
[9] At p.449.
On 22 October 2013 Mr Atanassoff did not have accommodation in Australia and had no employment, business or financial ties to Australia. This had been the situation for many years and there is no evidence to suggest that the situation changed after that time. On the other hand he had, and continues to have, permanent accommodation in Bulgaria which he shares with his wife and their teenage daughter.
Mr Atanassoff does have a daughter living in Australia, who he visits from time to time. However his wife and dependent daughter are both long-term residents of Bulgaria.
Other than his relationship with his adult daughter, all of the evidence points to Mr Atanassoff having a much stronger relationship with Bulgaria than with Australia since he left Australia in 1993.[10] The other factors outweigh any connection arising from his relationship with his daughter in Australia, and show that Mr Atanassoff regards Bulgaria as his home and did so when he lodged his application. On the basis of the evidence of Mr Atanassoff’s connection with Bulgaria, I am satisfied that he did not intend to remain permanently in Australia in October 2013 or at any time since.
[10] Clifopoulos and Department of Social Security (1994) 36 ALD 745 at [17].
CONCLUSION
Having regard to the matters set out in the Act and the evidence to which I have referred, I am satisfied that Mr Atanassoff was not an Australian resident at the time he made his application.
The decision of the Social Security Appeals Tribunal made 21 May 2014 will be affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..............................[sgd]..........................................
Associate
Dated 10 September 2014
Date(s) of hearing On the papers Date final submissions received 20 August 2014 Applicant In person Solicitors for the Respondent Amanda McLeod; Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Residency
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Constitutional Validity
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Interpretation of Legislation
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