Parke and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 820

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 820

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3287

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Janice Parke

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date25 October 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.......(sgd G L McDonald)...........

Deputy President

CATCHWORDS

SOCIAL SECURITY- Application for aged pension - Residency requirement when application lodged - Criteria for determining residency in Australia - Applicant not a resident of Australia and not eligible for pension - decision affirmed.

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act (1991) ss 7(2) and 7(3)

Social Security (Administration) Act 1999 s 29(1)

REASONS FOR DECISION

25 October 2010 Mr G L McDonald, Deputy President

1.      The applicant is applying for review of the decision by a Centrelink delegate dated 22 April 2010, and affirmed after review by an authorised review officer, refusing her application to be paid an age pension.  A further appeal to the Social Security Appeals Tribunal was also unsuccessful.

2. With the consent of the applicant, who resides in the United Kingdom, the application was determined on the papers. The Tribunal has before it the documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975, a letter from the applicant dated 26 July 2010 and one letter from the respondent dated 21 September 2010.

3. Section 29(1) of the Social Security (Administration) Act 1999 provides

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.

“Australian resident” is defined in s 7(2) of the Social Security Act (1991) (the Act) as follows

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[1].

[1] Original emphasis.

A person’s place of residence is determined by reference to the person’s intention of where to remain permanently in a country.  The criteria to be applied in making this decision are set out as follows in s 7(3) of the Act:

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.

4.      The following facts are not in dispute:

(a)The applicant was born on 15 October 1946 in the United Kingdom and migrated to Australia with her parents and three siblings on 7 November 1956. 

(b)The applicant commenced working in Melbourne in 1964 and continued to work full-time until 2001, since which time she has not worked (or, at least, not done so in Australia).

(c)In 2001, the applicant returned to the United Kingdom to renew a relationship.

(d)On 19 April 2010, when on a visit to Victoria, the applicant lodged an application to be paid an age pension.  The application was rejected for two reasons:

(i)    a claim can only be validly made in the period 13 weeks prior to the applicant reaching the pensionable age (in this matter, that would be 16 July 2010); and

(ii)   the applicant was not resident in Australia.

(e)At the time she applied, the applicant had a daughter, two brothers and eight nephews and nieces residing in Melbourne.

(f)The applicant has resided in the United kingdom for the past eight years.  

5.      It is clear for the reason stated in 4(d) above, that the applicant cannot succeed.  Without more the application has to be dismissed.

6.      However, the applicant’s concern, as expressed in her letter dated 26 July 2010, is not so much as to when she lodges her application, but rather if she was to lodge it, within the time and place requirements, whether her application would be accepted.  Whilst it is not the Tribunal’s position to give advisory opinions, it is clearly desirable that the issue of her residence be addressed so that the applicant is aware of her position.  It is that issue which will, if she otherwise qualifies, determine her entitlement to be paid an Australian age pension.

7.      The applicant holds a permanent residents visa.  The applicant has retained her citizenship of the United Kingdom and is entitled to live there as a resident.  In her application, she gave her residential address as being ”Portsmouth” in the United Kingdom. In answer to the question, “Are you living permanently in Australia?”, she ticked the box marked “No”; and in answer to the question, ”What country do you live in?”, she replied the ”United Kingdom”[2].  In answer to the question, “[e]xcept for short trips or holidays, have you EVER lived outside Australia?”, the applicant again gave her country of residence as being the United Kingdom since 17 September 2001[3].

[2] T Documents, T4, p 11, questions 26 and 27.

[3] T Documents, T4, p 13 (original emphasis).

8.      It is apparent, and the Tribunal accepts, that the applicant’s accommodation in Australia was of a temporary nature during the period of her visit.  Aside from $1 in an Australian bank account, the applicant has disclosed a (small) investment with a United Kingdom building society.  Her superannuation savings as disclosed for the year to 30 June 2009 are with an Australian fund[4].  The applicant receives a United Kingdom age pension.  She owns no real estate in Australia.  The applicant has an ongoing connection to Australia as members of her family reside here.  She has the right to return to live and reside in Australia, as she holds a permanent residents visa.  The applicant appears to have visited Australia each year since leaving in 2001, except for 2006 and 2007, each visit lasting for approximately a month. 

[4] T Documents, T5, p 31.

9.      While the applicant is able to satisfy one of the criteria specified in s 7(3) of the Act - she has family relationships in Australia - there is simply nothing else which indicates she has a permanent intention of residing in this country.  However, it is abundantly evident from the information which she supplied in her application, that Australia was not her place of residence as at the date she applied for payment of the age pension.

10.     The Australian age pension is not payable, as seems to be thought by the applicant, on the basis of the time a person has worked in Australia.  If she had never worked since coming to Australia, but she continued to reside here, the applicant would nevertheless have an entitlement to be paid the pension.  That, however, is not her situation.  The legislation is clear that the applicant must be an Australian resident at the time of the application for payment of the pension.  She was not and, therefore, the correct decision was to decline the payment of the benefit.

11.     For these reasons, the decision under review is affirmed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         ..........(sgd D De Andrade)..............
  D De Andrade, Personal Assistant

Date of Hearing on the Papers     15 October 2010
Date of Decision  25 October 2010
For the Applicant  self
Solicitor for the Respondent         Mr T de Uray, departmental advocate