Park; Secretary, Department of Families, Community Services and Indigenous Affairs and
[2007] AATA 1190
•29 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1190
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/315
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
BYUNG HYOK PARK
Respondent
DECISION
Tribunal Senior Member P McDermott Date29 March 2007
PlaceBrisbane
Decision The Tribunal sets aside the decision made by the Social Security Appeals Tribunal on 18 April 2006 and substitutes a decision that Mr Park is not qualified for age pension based on his age and residency.
.......[Sgd].......
PJ McDermott
Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – whether applicant is qualified for age pension based on his age and residency – international social security agreement between Australia and New Zealand – working age residence – New Zealand citizen – determining correct date of birth – decision set aside
Social Security Act 1991 (Cth) s 43
Social Security (International Agreements) Act 1999 (Cth) s 6, Schedule 3
Re Secretary, Department of Social Security and Ferlat (1997) 44 ALD 106
Re Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126
REASONS FOR DECISION
29 March 2007 Senior Member P McDermott Introduction
1. On 15 December 2005 Mr Byung Hyok Park lodged his claim for age pension. I have to decide whether he is entitled to age pension. My decision will largely turn on my assessment of the period of his “working age residence” in New Zealand, that is the period when he was aged between the ages of 20 and 64 years.
Decisions
2. Centrelink made a decision on 17 January 2006 that Mr Park did not qualify to receive the age pension because he did not meet the Australian residency requirements for this payment [T13, folio 61-62].
3. On 24 February 2006 the authorised review officer affirmed this decision [T20, folio 123-130]. On that date a letter was sent to Mr Park which contains the reasons of that officer for rejecting the claim.
4. On 18 April 2006 the Social Security Appeals Tribunal set aside the decision of the authorised review officer that affirmed the decision of Centrelink [T2, folios 2-6].
5. The Secretary, Department of Families, Community Services and Indigenous Affairs has sought a review of the decision of the Social Security Appeals Tribunal.
Eligibity Criteria
6. The entitlement of a person to receive age pension is conferred by s 43 of the Social Security Act 1991 (“the Act”).
7. A person is qualified for age pension if they have 10 years qualifying Australian residence (s 43(1)(a)). Mr Park does not satisfy this requirement as he entered Australia on 27 July 2005 and made his claim for age pension on 15 December 2005 [T4, folios 14-25].
8. It is important to mention that Mr Park is a New Zealand citizen. A former New Zealand resident may qualify to receive an Australian age pension even if he or she has not lived in Australia for a period of ten years. For such a former New Zealand resident to qualify for age pension it is necessary for the New Zealand citizen to show that he or she has a period of “working age residence” in New Zealand which is added to any period of residence in Australia: see Social Security (International Agreements) Act 1999, Schedule 3 (Agreement on Social Security between the Government of Australia and the Government of New Zealand), articles. 5 and 12. The term “working age residence” means a period of residence between the ages of 20 and 64 years inclusive: see article 5.5
9. Such compliance with an international agreement would enable a former New Zealand resident to qualify for age pension in Australia even if that person does not satisfy the qualifying residence requirements of s 43(1)(a) of the Act. This is achieved by the “overriding” operation of s 6 of the Social Security (International Agreements) Act 1999 which provides that the provisions of a scheduled international social security agreement have effect despite anything in the social security law.
10. It has for some time been a feature of Australian social security law that the provisions of a scheduled international social security agreement have effect despite anything in the social security law: see, eg, Re Secretary, Department of Social Security and Ferlat (1997) 44 ALD 106 at 107. It is therefore important to examine whether Mr Park comes within the terms of the relevant scheduled international social security agreement.
11. Any period as an Australian resident that is less than that required under s 43 of the Act is added to any period of “working age residence” in New Zealand. Under the international agreement the period of working age residence in New Zealand is deemed to be a period in which that person was an Australian resident for the purposes of meeting any minimum qualifying period for the benefit set out in the social security law of Australia: art.12(1)
12. Mr Park was a resident of New Zealand from 10 July 1991 until he arrived in Australia on 27 July 2005. He would therefore have been a resident of New Zealand for more than ten years. However, in order to come within the terms of the Agreement on Social Security between the Government of Australia and the Government of New Zealand it is necessary for Mr Park to show that he has achieved a sufficient period of “working age residence”, which when added to his period of Australian residence totals the required period of ten years.
History of the Matter
13. Mr Park gave evidence orally in support of his claim to age pension. He also verified the contents of a statement that was admitted into evidence [exhibit A8]. In that statement he has stated that he was born on 5 June 1937 in Heung Nam, North Korea.
14. In 1950 during the Korean War he and his sister were evacuated from North Korea on a US naval vessel to Pusan, South Korea. On disembarkation he and his sister were placed in a refugee centre.
15. In 1951 a resident register of those who lived in the refugee centre was being compiled. Mr Park remarked in his statement that was admitted into evidence that he informed the official of the “correct names and dates of birth” of himself and his sister [exhibit A8, para 6]. He was not issued with any papers from that process of registration. However, in his statement he states that the resident register records his date of birth as 5 June 1939 which he contends is incorrect [exhibit A8, para 15]. Mr Park, in his evidence-in-chief, said that he told the official who compiled the resident register that he was born in 1937.
16. In 1952 a family register was made for his sister and himself. Mr Park stated that the information for that family register was provided by a friend. He also stated that this registration resulted in an incorrect date of birth (5 June 1929) appearing on his official documents. Mr Park claimed that he “did not become aware of this error until in or about 1963 during my 3rd year [of] my University studies in Seoul” [exhibit A8, para 8].
17. Mr Park also stated that in his school enrolment process his date of birth was recorded as 5 June 1939. He stated that during the school enrolment process his sister’s date of birth was recorded as 1 June 1937. Mr Park also claims that his University graduation certificate incorrectly records his date of birth as 5 June 1939.
18. Mr Park stated that all of the official documentation issued to him by the South Korean Government bears the wrong date of birth, viz 5 June 1929. Those documents include his passport and his marriage certificate.
19. In 1991 Mr Park made an application to the New Zealand Government for permanent immigration to New Zealand, pursuant to the Business Immigration Policy. That application, which was prepared by Coopers and Lybrand, was admitted into evidence before me [exhibit A1, p 3]. In that application Coopers and Lybrand have made the following note: “Mr Park claims that he was born in 1937, not 1929 as declared. We have no means of verifying Mr Park’s claim and we have accepted Mr Park’s claim at face value” [exhibit A1, p 3]. The application contains a business plan for a fish meal processing business.
20. Mr Park stated that he did not pursue the fish meal processing business that was detailed in the migration documentation prepared by Coopers and Lybrand. Instead, on arrival in New Zealand, Mr Park joined a partnership which operated souvenir shops in Auckland and Rotarua. He also operated a Japanese restaurant for three years and eventually opened a café in 1998. He stated that it was the café business which resulted in his bankruptcy in 2001.
21. The New Zealand passport and the New Zealand drivers licence of Mr Park all bear the date of birth of 5 June 1929.
22. Mr Park also stated that following his bankruptcy in September 2001 he sought income support from the New Zealand Government On that occasion he stated: “I did not inform the New Zealand Authorities of my correct date of birth” [exhibit A8, para 34].
23. It was common ground that in making an application to the New Zealand authorities for what is the equivalent of the age pension, Mr Park had tendered his passport which disclosed 5 June 1929 as his date of birth. That had the consequence that he was not entitled to receive an aged pension in New Zealand if indeed he had not achieved 65 years of age.
24. It is also important to have regard to the claim form that was completed by Mr Park in Australia. In the form headed “Claim for Age Pension” Mr Park disclosed his date of birth as 5 June 1929 [T4, folio 17]. That form was signed by Mr Park. Above his signature is a declaration which states: “I declare that the information I have given is correct” [T4, folio 25].
25. Mr Park stated that all of his health records in New Zealand and Australia list his date of birth as 5 June 1937 as he stated that he wishes to ensure that he receives appropriate treatment.
26. Mr Park has stated that he has now made an application to a court in South Korea for correction of the family registration document. That application has been adjourned.
Consideration
27. At the outset I point out that the Social Security Appeals Tribunal acknowledged that “the matter is by no means clear cut” [T2, folio 5].
28. In considering this application I must have regard to all of the material that is before me. In Re Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126 Deputy President D P Breen emphasised (at 128): “Proceedings before the Administrative Appeals Tribunal are proceedings de novo. It is well established principle that the task of the tribunal is to arrive at the correct and preferable decision and that it is to do so on the material before it. It is inherent in that principle that the material before the tribunal may well be different from the material before…the determining authority making the reviewable decision. Experience has shown that inevitably it is, often to a marked degree”. This is such a case, as adverted to by Deputy President D P Breen, where the material before this Tribunal differs from the material that appears to have been placed before the Social Security Appeals Tribunal.
29. It is common ground that in all official government documents (either from South Korea, New Zealand and Australia) the date of birth of Mr Park is recorded as 5 June 1929. These documents include:-
- Passport of the Republic of Korea [T17, folio 80];
- Family Register [T17, folio 78];
- Resident register [T17, folio 79];
- Translation of Korean Marriage certificate [referred to in T21, folio 127];
- New Zealand Passport [T4, folio 26];
- New Zealand Driver’s Licence [T14, folio 29].
30. Mr Park has also disclosed his date of birth as 5 June 1929 on the following immigration records:
- DIMIA arrival and departure records (8 records) [referred to in T21, folio 126].
31. It is also common ground that Mr Park, in all his dealings with Centrelink, has disclosed that his date of birth is 5 June 1929 [T4, folio 17; T5, folio 32]. The only time that he informed Centrelink that he had a different date of birth was when his application for age pension was rejected.
32. Mr Park has given different accounts of the compiling of the resident register. When Mr Park was questioned by the Social Security Appeals Tribunal as to whether he gave actual dates to the official at the refugee centre, “he said he could not remember” [T2, folio 3]. However, in his statement that was admitted in evidence before me Mr Park stated: “I informed the official of my sister and I correct names and dates of birth” [exhibit A8, para 6]. That statement was translated in Korean when Mr Park commenced his evidence before me and he affirmed that the statement was correct. When Mr Park gave his evidence-in-chief he gave a different account of the compilation of the resident register. Mr Park in his evidence-in-chief was asked what date of birth he gave for his sister. He replied: “I don’t know. We were all lined up. I did mine. My sister did hers”. He later said that he had “assumed” that his sister would have given her date of birth to the authorities at the time of the making of the resident register.
33. Mr Park has given different accounts of when he first become aware of the alleged error in the family register. Mr Park informed the Social Security Appeals Tribunal that this occurred when he went to school. The reasons of that Tribunal record that “[w]hen he went to school he needed to apply using a family statement, and this incorrectly listed his date of birth” [T2, folio 3]. However, in his statement that was admitted in evidence before me, Mr Park stated that it was during his third year at University that he “discovered that the family registration document (hojok) recorded an incorrect date of birth for me” [exhibit A8, para 16].
34. In his statement, Mr Park claimed that his son had been advised by “Income Support in New Zealand” that he would be eligible to continue to receive income support from New Zealand until January 2006 [exhibit A8, para 35]. Mr Park also claimed that his son advised him that “in Australia, I would continue to receive the same income support as I had been receiving in New Zealand” [exhibit A8, para 38]. This was not revealed in the letter from his son [T17, folio 73]. Indeed, a letter from Work and Income (NZ) was sent to Mr Park on 26 July 2005 advising him: “[y]ou may qualify for an Age Pension while you are in Australia” and that he should search the Centrelink website [T5, folio 47].
35. I have come to the conclusion that Mr Park is not a credible witness. When he was being cross-examined he admitted that he produced documentary evidence of his date of birth of 5 June 1929 to the New Zealand Income Support to obtain the age pension. In his statement he stated that he produced his passport. If it is indeed the case that the passport records an incorrect date of birth (which is what Mr Park now contends), his conduct was, at the very least, improper. Mr Park also remarked: “I did not inform the New Zealand authorities of my correct date of birth”. Mr Park did not express any remorse for his conduct on that occasion. There was no suggestion that he would repay the New Zealand authorities for the moneys which he now contends were wrongly paid to him. His income and assets form [T5, folio 32] discloses assets from which any such repayment could be made. The Social Security Appeals Tribunal appears to have not been informed of this incident.
36. The resident register that was originally compiled was not admitted into evidence.
37. In his evidence, both oral and in his statement, Mr Park made reference to the compilation in South Korea of the resident register in 1951 and the family register in 1951 or 1952 [exhibit A8, paras 6 & 7]. Mr Park did not refer to any other process of registration.
38. However, in his New Zealand Business migration application, a document which is a translation of a family register which was made in 1957, 1963 and 1976, is to be found. That document states:
“This register was drawn up in accordance with the report of registration (Original domile: 255, Seohori, Heungnam City on Sep. 23, 1957.
This family register was made pursuant to the report of transfer from 15, 5-ka, Wiman-dong, Youngdo-dong, Pusan City on May 15, 1963.
This family register was remade on Oct. 2, 1976 under the apprehension that it might be lost unexpectedly.” [Exhibit A1, appendix 1].
39. That translation of the family register records the date of birth of Mr Park as “June 5, 1929”. The statement of Mr Park that was admitted into evidence does not mention these entries of 1957, 1963 and 1976. When Mr Park was specifically asked about these entries in 1957, 1963, and 1976 he replied: “I don’t have much memory of those dates”. There was certainly no suggestion that Mr Park had in those years informed the authorities of what he considered to be his correct date of birth.
40. The New Zealand Business Migration application also contains a certified copy of the resident register that was made in 1990 which discloses Mr Park’s date of birth as “June 5, 1929”. The South Korean official (chief, Pil-dong Office, Joong-Ku, Seoul City) has endorsed the following certification: “This is to certify that the above resident register is true and correct and authentic copy of the original” [exhibit A1, Appendix 1].
41. At the conclusion of the hearing I thought that it was appropriate to give Mr Park the opportunity to tender any original documents that he had at his home which might have supported his case. However, Mr Park did not provide me with any such documents that were in his possession. The only document that was tendered was a copy of a facsimile which purports to have come from a South Korean hospital which was prepared after the hearing. I have not given that facsimile any great weight.
42. The determination of the age of an individual is, of course, a question of fact. Ordinarily decision-makers would rely on Government records unless those records are shown to be incorrect. I accept that there are cases where Government records are inaccurate. However, I am not convinced that this is such a case.
43. I consider that the date of birth of Mr Park which is disclosed in the government records of South Korea, New Zealand and Australia is, on the balance of probabilities, his correct date of birth. I have not accepted the testimony of Mr Park that there is an incorrect date of birth to be found in those government records. I have already mentioned the comparatively recent certification of the South Korean official in 1990 that the resident register, which records Mr Park as having a date of birth of “June 5, 1929”, is “true and correct” [exhibit A1, Appendix 1]. I also mention that when Mr Park made his claim for New Zealand superannuation (which is the age pension) he made representations to the New Zealand authorities that his date of birth was 5 June 1929. He made a similar representation to Centrelink. He now seeks to resile from that representation. His conduct has not been consistent.
44. I find, on the balance of probabilities, that Mr Park was born on 5 June 1929. I also find, on the balance of probabilities, that Mr Park resided in New Zealand for the period of 2 years and 11 months “between the ages of 20 and 64 inclusive” in terms of the Agreement on Social Security between the Government of Australia and the Government of New Zealand, Article 5 (para. 5). In these circumstances Mr Park is not yet entitled to receive the age pension.
45. As I have mentioned earlier, I have relied upon evidence which was not placed before the Social Security Appeals Tribunal.
Decision
46. I set aside the decision made by the Social Security Appeals Tribunal on 18 April 2006 and substitute a decision that Mr Park is not qualified for age pension based on his age and residency.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott
Signed: Fiona Kamst
Legal Research Officer
Date/s of Hearing 29 November 2006
Date of close of submissions 8 February 2007
Date of Decision 29 March 2007
For the Applicant Mr R McQuinlan, Departmental Advocate
For the Respondent Mr P Cranitch, Solicitor
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