Pantic and Secretary, Department of Family and Community Services

[2004] AATA 27

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2003/1225

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GROZDANA PANTIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date16 January 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd) J Handley

Senior Member

SOCIAL SECURITY – age pension; claim made when applicant living in Serbia; not “in” Australia at making of claim ‑ resident of Australia? – relevance of International Agreement to Australian Citizenship Act – decision affirmed

Social Security (Administration) Act 1999 s29(1) and (2)

Social Security (International Agreements) Act 1999 Sch 14
Australian Citizenship Act 1948 s5(3)(e)

Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 329

Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal and Ors (1982) 39 ALR 281

Re (an infant) (1981) QdR 225

Street v Queensland Bar Association (1989) 63 ALJR 715

REASONS FOR DECISION

16 January 2004 Mr J Handley, Senior Member     

1.      The applicant applies to review a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 6 October 2003.  The SSAT then affirmed a decision made by Centrelink on 22 July 2003 to reject her claim for age pension.

2. Mrs Pantic presently lives in Yugoslavia. With her consent this decision is made upon the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) together with written submissions that have been made by Mrs Pantic.

3.      A Centrelink officer decided on 22 July 2003 (T17) that a claim for age pension should be refused because Mrs Pantic was not “in Australia” when the claim was lodged.  An authorised review officer (“ARO”) affirmed that decision on 4 August 2003 (T21).  The SSAT decided that the application for age pension should be rejected for the same reason (paragraph 13 of SSAT reasons for decision).

4.      So far as the documents reveal, the circumstances giving rise to this application is briefly summarised below.

5.      Mrs Pantic is presently 69 years of age having been born on 27 February 1933 in Yugoslavia.  She obtained Australian citizenship on 27 April 1972.  In recent years she has lived with her husband and other family members at Mt Waverley in Victoria.  In January 2001 Mrs Pantic travelled with her husband to Serbia.  She was then found to have suffered atrial fibrillation and was notified that she was at risk of deep vein thrombosis (“DVT”) and was then advised against travel.  Surgery was apparently scheduled for October 2003 but it is not known whether that was undertaken.  Mrs Pantic has remained in Serbia and has not returned to Australia since January 2001.  She believes that she is at risk of DVT if she travels.

6.      On 14 July 2003 Mr Pantic was residing in Australia.  He then lodged a claim for age pension on behalf of his wife at the Glen Waverley regional office of Centrelink.

7.      The claim was subsequently rejected when it was learnt that Mrs Pantic was then living in Serbia.  That is, she was not “in Australia” when the claim was made.

THE LEGISLATION

8. Section 29(1) and (2) of the Social Security (Administration) Act 1999 (“the Administration Act”) is applicable and it provides as follows:

29 (1) Subject to sections 30, 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, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.

SUBMISSIONS

9.      On 12 January 2004 a facsimile letter was received from Mrs Pantic containing her submissions in support of entitlement to age pension.  Whilst omitting irrelevant parts of that letter her submissions are in the following form:

While I am temporarily in Belgrade, please notice that I continue to be domiciled in Mt. Waverley.

It is a very practical proposition that the Administrative Appeals Tribunal makes its decision on written submission, i.e. without my formal attendance.  I agree with the proposition.

To that end, I would be grateful if the Tribunal could also consider and, hopefully, justify the following findings of my research:

-        The enactment of an international agreement on the issue of social securities dated before or after 1999, notably the Australian – German Agreement 2003, set a precedent for my case.

-   The written word of the Australian – German Agreement 2003 reveals the fact that some of the Australian citizenship rights have been bestowed upon German nationals, who were residents of Australia in their past, all in accordance with legal requirements of the SSAA 1999 and the rights stipulated in the Citizenship Act 1948 – 1969.

-   The Citizenship Act 1948 – 1969 was in the past, it is now and it will be in the future, the Super-Precedent for any international agreement on the issue of social securities.

-   We can only bestow on somebody the rights that are our own!

-   Please note the beauty of having an international agreement (the Australian – German Agreement 2003 is a good example), which is enacted by the Australian Legislative Assembly, that installs the foreign nationals of the agreement on a par with the Australian citizens.  It cannot be assumed to be the other way around.

-   The Australian – German Agreement 2003 nullifies Subsections 29(1)a, 29(1)b and 29(2) of the SSAA 1999, for the German nationals who were Australian residents in their past and, of course, if they are Australian residents at present.

-   Thus, the Australian – German Agreement 2003, as the precedent for my case, has recognized (explicitly) my citizenship rights with respect to Subdivision H – Residence requirements of the SSAA 1999.

10.     Similar submissions are contained in the T-documents at T5, T18, T24, and T26 and in a letter to Centrelink on 29 December 2003.

CONCLUSION AND REASONS FOR DECISION

11. Section 29(1) has a conjunctive construction and requires that a claim for a social security payment (in this case an age pension) can only be made by a person who is both an Australian resident and is in Australia, at the time the claim is made.

12.     The thrust of the submissions made by Mrs Pantic concern her citizenship.  This is not a qualification for age pension.  Qualification is determined by residency and by the claimant being in Australia at the time the claim is made.

13.     Mrs Pantic was not in Australia at the time the claim was made.  It is admitted that she has lived in Serbia since January 2001.  She has not returned to Australia since that date.  She was not in Australia on the date that the claim was lodged with the Glen Waverley Regional Office of Centrelink.  She has no entitlement to age pension in these circumstances.

14.     I am also satisfied that she was not an Australian resident at the date of claim.

15.     I acknowledge that Mrs Pantic was then an Australian citizen and was the owner of real estate in Victoria.  Residence however is a question of fact (refer Australian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 329). In deciding whether a person is a resident the circumstances surrounding the person are to be examined together with the language used in the qualifying legislation.

16.     In Re (an infant) (1981) QdR 225 Kneipp J decided:

The terms “residence” “resident” and “resides” have been and are to be found in many Statutes.  There have been some variations in meanings which have been attached to them depending on the context but I think that I am correct in saying that almost invariably they have been construed by reference to the view that the primary meaning of “residence” is a permanent place of abode.

17.     Additionally where a person lives for part of a year in Australia and the remaining part elsewhere, residence in Australia may be found as a fact when a number of other surrounding circumstances are examined (refer Re Control Investments Pty Ltd and Ors and Australian Broadcasting Tribunal and Ors (1982) 39 ALR 281 at 383 – 388). Additionally Morling J in Re Control investments decided that the meaning of the word “resident” in legislation “is to be ascertained by seeing what is the purpose of the enactment”.

18.     I would say further that the language of the enactment is also to be considered.  On that issue Toohey J in Street v Queensland Bar Association (1989) 63 ALJR 715 at 752 said:

It is of note that the section was directed, not at a person who was a resident of a State thereby suggesting a particular status but a person resident in a State, a more prosaic reference.

19.     In the present circumstances I am satisfied that at the date of claim, Mrs Pantic was not an Australian resident.  I am satisfied and find as a fact that at the date of claim she was a resident of Serbia.  I make that finding by reference to her having lived in Serbia from January 2001 being approximately two and a half years before the claim was made.  I note that at 12 January 2004 she continues to live in Serbia.  She regards herself as living “temporarily in Belgrade” (refer letter 12 January 2004) but says further that she continues “to be domiciled in Mt. Waverley”.  As a fact this is not so. She is domiciled in Serbia. It is in that place that she is a resident. She has now lived outside of Australia for a continuous period of three years. I would acknowledge that s29(1) of the Administration Act refers to a person who is an Australian resident and who is “in” Australia at the date of claim.  This suggests to me that the “Australian resident” who purports to be a claimant must be “in” Australia as opposed to being an Australian resident “of” Australia at the date of claim.

20. Section 29(2) of the Administration Act has a disjunctive construction. That is to say a claim is deemed not to have been made when the claimant either is not an Australian resident or is not in Australia at the time of claim. The sub-section is subject to ss30, 31, 31A and 32 of the Administration Act which have no application to the present circumstances because those sections apply to persons claiming either special benefit, parenting payment, persons who hold a special category visa or claimants for sickness allowance.

21. Having regard to the comments recorded above, whilst Mrs Pantic need only satisfy one of the two qualifying provisions of s29(2) of the Administration Act I cannot find that she satisfies either and in those circumstances her claim “is taken not to have been made”.

22. Although I am sympathetic that Mrs Pantic suffers from DVT, the Administration Act does not contain any discretion which would allow a finding of residency.

23.     Additionally, I am unable to find any relevance to this review by application of the “Australian-German Agreement”. Schedule 14 of the Social Security (International Agreements) Act 1999 contains an agreement between Australia and the Federal Republic of Germany (the “Contracting Parties”).  It concerns reciprocal rights of citizens of each of the Contracting Parties.  There is no evidence that Mrs Pantic is a citizen of Germany.  The agreement has no application.

24.     The Australian Citizenship Act 1948 (“the Citizenship Act”) is concerned primarily with citizenship, which is not in issue. Section 5(3)(e) of the Citizenship Act provides:

(3) For the purposes of this Act:

(e)a person shall be deemed to be ordinarily resident in a country if:

(i)    the person has his or her home in that country; or

(ii)   that country is the country of his or her permanent abode notwithstanding that he or she is temporarily absent therefrom;

but the person shall be deemed not to be so resident if the person resides in that country for a special or temporary purpose only.

I am not satisfied that this provision conflicts with the Administration Act or it provision has any “superiority”.. It is a provision enacted for the purposes of the Citizenship Act only. Furthermore as Mrs Pantic has been living in Serbia for three years, her residence there could not be said to be for a “temporary purpose”..  I am also unable to find, because of the absence of evidence, that she is residing in Serbia for a “special purpose”.

25.     In all the circumstances the decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr J Handley, Senior Member

Signed:         Holly Weston
  Associate

Dates of Hearing  Nil - Heard on the Papers
Date of Decision  16 January 2004