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

[2007] AATA 1964

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2007] AATA 1964

ADMINISTRATIVE APPEALS TRIBUNAL      Nº 2007/2627

GENERAL ADMINISTRATIVE DIVISION

Re:         BRANISLAV NOVESKI

Applicant

And:SECRETARY, DEPARTMENT OF

FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             26 October 2007

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

G.D. Friedman
  Senior Member

SOCIAL SECURITY – family tax benefit – eligibility – whether Australian resident – whether FTB child

A New Tax System (Family Assistance) Act 1999 ss 21, 22, 24

Social Security Act 1991 ss 7(1), 7(3), 7(5)

REASONS FOR DECISION

26 October 2007   G.D. Friedman, Senior Member

1.      Branislav Noveski applied for family tax benefit (FTB) on 2 May 2006 for his daughter Branislava (born November 2003).  On 23 May 2006 Centrelink decided that Mr Noveski was not entitled to FTB as he was not an Australian resident in the relevant periods.  On 28 May 2007 the Social Security Appeals Tribunal affirmed Centrelink’s decision and on 20 June 2007 Mr Noveski sought review of the decision by this Tribunal.

ISSUE

2.      The issue before the Tribunal is whether Mr Noveski is entitled to receive FTB for Branislava at any time after her birth.

BACKGROUND

3.      Mr Noveski arrived in Australia in 1986 and became an Australian citizen in 1989.  In 2000 he departed Australia to visit Macedonia.  Mr Noveski told the Tribunal that he was going to Macedonia initially for a short period of time.  When he departed he sold his house in Australia to finalise a lump sum settlement with his former wife.  He had practically no assets when he left and had approximately $6,000 in cash.  In Macedonia, he lived in a unit that he and his two brothers had inherited from their father.

4.      While in Macedonia Mr Noveski met his second wife, Marina, and they married on 20 November 2001.  He returned to Australia for a short visit from December 2001 to March 2002.  During this visit he stayed with friends.  He visited his children and his ex-wife and then returned to Macedonia.  Mr Noveski told the Tribunal that there were no matters of great importance for him during that period as his obligations to his ex-wife and children had been dealt with prior to his departure in 2000.  He said that Branislava was registered as an Australian citizen on 8 April 2004.  Neither Branislava nor Marina has ever visited Australia.

5.      Mr Noveski told the Tribunal that he returned to Australia on 22 June 2005 to make preparations for his wife and child to come to Australia.  Mr Noveski told the Tribunal that there has been some delay in Marina and Branislava coming to Australia as Branislava has been ill and her doctors in Macedonia had decided that she was not fit to travel at that time.  Branislava and Marina are expected to arrive in Australia in early November 2007 where they will live with Mr Noveski as a family unit.

THE RELEVANCE OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

6.      Much of Mr Noveski’s submission, in writing and in person at the Tribunal, referred to Australia’s obligations under the United Nations Convention on the Rights of the Child dated 20 November 1989.  He pointed the Tribunal to Article 2 of the Convention which refers to the protection of the child against all forms of discrimination.  Mr Noveski submitted that the Convention takes priority over any legislation of the Australian Parliament.  He said that the principles of the Convention are enshrined in Australian legislation such as the Family Law Act 1975 and are therefore paramount.

7.      The Tribunal does not accept this submission.  The Convention, as other conventions of the United Nations, contains statements of broad principle and requires specific Australian legislation in order to enforce the particular provisions.  The Tribunal finds that the Convention does not apply to the exclusion of specific provisions of social security legislation.

LEGISLATION

8. Section 21(1) and section 21(1A) of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) sets out the criteria to be eligible for FTB:

(1)An individual is eligible for family tax benefit if:

(a)the individual has at least 1 FTB child (see section 22 and later provisions); and

(b)the individual:

(i)is an Australian resident; or

(ia)is a special category visa holder residing in Australia; or

(ii)satisfies subsection (1A); and

(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.

(1A)An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:

(a)the individual is in Australia; or

(b)the individual:

(i)is temporarily absent from Australia for a period not exceeding 13 weeks; and

(ii)the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

WAS MR NOVESKI AN AUSTRALIAN RESIDENT DURING THE RELEVANT PERIODS?

9.      Mr Noveski is not a special category visa holder and does not satisfy subsection (1A).  Therefore, to be eligible for FTB from 12 November 2003 until his return to Australian on 22 June 2005, Mr Noveski had to have been an Australian resident.

10.     The term Australian resident is defined in s 7(2) of the Social Security Act 1991 (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.

11. Section 7(3) of the Act sets out the criteria to which regard must be had in deciding 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.

12. Having regard to the factors in s 7(3) the Tribunal takes into account that when Mr Noveski departed Australia in December 2000 he sold his house, left with practically no assets and gave all the appearance of not returning permanently to Australia. He also married again while in Macedonia, lived with his wife in a home owned by him in Macedonia and when he came back to Australia he returned without his wife and daughter and both have remained in Macedonia. The Tribunal finds that Mr Noveski was not an Australian resident in the period 20 December 2000 to 22 June 2005.

13. Mr Noveski submitted that s 7(5) of the Act should override s 7(2). Section 7(5) states:

7(5)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.

Mr Noveski stated that because he had been in Australian for a period of 10 years or more he automatically qualified as an Australian resident.

14. The Tribunal finds that s 7(5) has no relevance in this case. The Family Assistance Act directs the use of the definition of Australian resident as contained in the Social Security Act 1991. Mr Noveski may have well been in Australia for more than 10 years, but this is irrelevant when applying s 21(1) of the Family Assistance Act.

IS BRANISLAVA AN FTB CHILD?

15. Section 21(1)(a) of the Family Assistance Act states that in order to be eligible for FTB, a person must have an FTB child. Section 22 of the Act defines a FTB child:

(1)An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

Individual aged under 18

(2)The individual is an FTB child of the adult if:

(a)the individual is aged under 18; and

(b)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

(c)the individual is in the adult’s care; and

(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

16.      The Tribunal accepts that Branislava is aged under 18 and that Mr Noveski is legally responsible for her day-to-day care.  However, since his return from Macedonia, Branislava has not been in his care.  The fact that there is a separate provision for legal responsibility clearly means that subsection (2)(c) refers to the physical care of the child.  Therefore, from June 2005, Branislava was not an FTB child.

17. Branislava has never visited Australia and so cannot be considered an Australian resident. However, from her birth until June 2005 she was living with Mr Noveski in Macedonia and so can be considered to be an FTB child under s 22. Nevertheless, Mr Noveski is not entitled to FTB in this period because, as found above, he was not an Australian resident as required by s 21(1) of the Family Assistance Act.

18. Mr Noveski referred to s 24(1) of the Family Assistance Act:

Absence from Australia of FTB child

(1)If:

(a)either:

(i)an FTB child leaves Australia; or

(ii)a child born outside Australia is an FTB child at birth; and

(b)the child continues to be absent from Australia for more than 3 years;

the child is not, during that absence from Australia, an FTB child at any time after the period of 3 years beginning on the first day of the child’s absence from Australia.

Mr Noveski submitted that Branislava is an FTB child at birth and so is an FTB child for the period of three years beginning at her birth.  As stated above, Branislava may have been an FTB child from her birth until Mr Noveski returned to Australia in June 2005.  However, during that time, Mr Noveski was not an Australian resident.  When Mr Noveski returned to Australia, Branislava was not an FTB child as she no longer lived with nor was in the care of Mr Noveski.

DECISION

19.      The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  26 October 2007

Date of decision:  26 October 2007

Advocate for applicant:                Self‑represented

Advocate for respondent:            Mr T. De Uray, Centrelink