Patel and Secretary, Department of Family and Community Services

[2004] AATA 791

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 791

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1810

GENERAL ADMINISTRATIVE DIVISION		)
Re		Bhikha Patel

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date28 July 2004

PlaceSydney

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal that the Applicant is not entitled to a certificate of Australian residence.

[sgd] R Hunt

Senior Member

CATCHWORDS

SOCIAL SECURITY - application for certificate of Australian residence - meaning of “residence” – applicant not physically present in Australia at relevant period – family members living in Australia at relevant period – significant financial asset in Australia - no employment or business ties with Australia  – application refused

Migration Act 1958 (Cth), s 32

Social Security Act 1991 (Cth), s 7

Taslim v Secretary, Department of Family & Community Services [2004] FCA 789

REASONS FOR DECISION

28 July 2004 Robin Hunt, Senior Member         

1.                 The documents before the Tribunal show that an Authorised Review Officer (“ARO”) made a decision on 18 July 2003 that Mr Patel was not eligible to receive a certificate of Australian residence. The Social Security Appeals Tribunal (“the SSAT”) affirmed the decision of the ARO on 13 October 2003. The Tribunal has affirmed the decision of the SSAT and finds that Mr Patel is not eligible to receive the certificate he seeks for the reasons set out below.

2.                 Mr Patel gave sworn oral evidence to the Tribunal at a hearing on 21 July 2004. He told the Tribunal that he had been contemplating a permanent move to Australia for some years. He opened an Australian bank account with the ANZ Bank in 1987. He produced to the Tribunal a letter from the Bank confirming that he opened an account in 1987 as well as copies of recent bank statements.

3.                 Mr Patel gave further evidence that it had been his intention to migrate to Australia before his wife and one of his daughters migrated here in 2001. He told the Tribunal that he had made enquiries at the Australian High Commission in New Zealand early in 2001 and had been misled into believing that he would be granted a certificate of Australian residence, when he joined his wife and daughter in Australia, on the basis that he was a New Zealand citizen. Mr Patel said that he would have travelled to Australia with his wife in April 2001 if he had not been misinformed and led to believe that he could obtain residency if he arrived in Australia at a later date. While his wife and daughter had been granted certificates of Australian residence because they arrived in Australia during 2001, he had been refused the same treatment.

4.                 Documents on the Tribunal’s file show that the Department issued Mrs Patel with an Australian residence certificate because she arrived in Australia between 26 February 2001 and 25 May 2001. She became an Australian citizen by grant on 6 August 2003.  Further records before the Tribunal show that Mr Patel, the Applicant, arrived in Australia on 12 June 2002. He contacted Centrelink to request an Australian residence certificate on 24 January 2003.

5. Subsection 7(2) of the Social Security Act 1991 (“the Act”) defines an Australian resident for the purposes of social security laws. Paragraph (a) of the subsection requires a person to reside in Australia and paragraph (b) requires the person to be an Australian citizen or to hold a certain type of visa. As Mr Patel is not an Australian citizen, he must hold either a permanent visa or a special category visa as a “protected SCV holder” in accordance with paragraph (iii). The Tribunal has considered whether he is a protected SCV holder. This is the status Mr Patel might have achieved if he were residing in Australia at the time required under the Act.

6.                 Mr Patel claims that he formed the intention to move to Australia before February 2001 and early in 2001 started to rearrange his affairs in New Zealand in anticipation. He started to wind up his business and complete his contracts for customers. He has since transferred considerable funds to his Australian bank account. He sent his daughter over to Australia first, on 2 February 2001, and established her in rented premises. A letter from an estate agent before the Tribunal dated 4 February 2003 (T21, 34), states that he and his wife have also resided at the same address as his daughter since 17 March 2001. However, Mr Patel agreed at the hearing that he could not have been living at this address in March 2001 as he was still in New Zealand. Neither Mr Patel nor his wife were actually physically in Australia at that date.

7. It is not in dispute that Mr Patel, as a New Zealand citizen, holds a “special category visa” issued under section 32 of the Migration Act 1958. However, to be a “protected SCV holder”, he must satisfy further provisions. Further subsections of section 7 of the Social Security Act 1991 deal with the circumstances in which a person may be a protected SCV holder. Subsections (7A), (7B) and (7C) all require an applicant to be in Australia or residing in Australia. As Mr Patel is arguing that he commenced “residing” in Australia during the period within 3 months of 26 February 2001, subsection 7(2C) governs the status he claims. Subsection 7(2C) requires that, in order to be a protected SCV holder, he must have been residing in Australia during the period of 3 months beginning on 26 February 2001.

8. As Mr Patel was not physically present in Australia and not temporarily absent after residing in Australia, but was at all times living in New Zealand, the Tribunal has turned to subsection 7(3). Provisions in section 7(3) set out factors determining whether a person is residing in Australia as follows:

(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.

9.                 The first test requires a decision maker to take regard to the nature of the accommodation used by Mr Patel in Australia. However, Mr Patel never in fact used any accommodation in Australia as he was still in New Zealand during 2001 and did not travel to Australia until 12 June 2002. He owned a house in New Zealand in which he lived and he owned no real estate in Australia. He paid rent for accommodation used by his wife and daughter in Australia.

10.               The next factor to be considered under subsection 7(3) is the nature of family relationships. Mr Patel’s evidence is that his wife and one of his two daughters were residing in Australia and that he was preparing to join them. He gave evidence that some members of his family live in Australia, in India and in the United Kingdom. He explained that his other daughter is a New Zealand citizen, that she is married and living in the United Kingdom, and that she and her husband plan to return to New Zealand.  In other words, Mr Patel does have important family ties in Australia but has ties elsewhere also.

11. As to employment, business and financial ties in Australia, Mr Patel gave evidence that he had been seeking work in Australia but had not established any employment or business ties in Australia. He has had a bank account in Australia since 1987. He made some transfers of funds to provide for his wife and daughter in 2002. In 2003, he transferred a very substantial amount of money to his Australian account. This deposit was made well outside the period during which Mr Patel seeks to establish residence in Australia under the section 7 criteria. In my view, during 2001, the much greater balance of Mr Patel’s employment, business and financial affairs were in New Zealand.

12.               The Tribunal next looked at Mr Patel’s assets and came to the conclusion that Mr Patel’s only asset in Australia of any consequence is his bank account. By contrast, he still has real estate in New Zealand. Mr Patel gave evidence that he sent all his household goods to Australia apart from goods that were not worth transporting. He also paid for new goods for the family home in Australia such as a refrigerator and a television set. He provided documentary evidence of purchases made in Australia. However, these household goods are insignificant assets compared to the real estate in New Zealand which Mr Patel described as a house with several rooms on a block of land with development potential.

13.               The Tribunal next looked at the frequency and duration of Mr Patel’s travel outside Australia. Mr Patel told the Tribunal that he visited Australia as a boy when travelling with his parents to settle in Fiji. He also mentioned another visit in the 1980s. In addition, immigration records (T19, 29) show that Mr Patel arrived in Australia on 12 June 2002 and has remained. The evidence before the Tribunal does not indicate frequent travel to Australia and no duration of stay in Australia prior to 2002.

14.               Other matters which Mr Patel put to the Tribunal were that he was misled about the need to come to Australia at the same time as his wife, that is, on 28 April 2001, and his long standing intention to migrate permanently to Australia. While Mr Patel intended to migrate once his business had been wound up he has demonstrated no continuity of presence in Australia beyond his early visits as a boy and in the 1980s. Taking all the above factors into account, therefore, I find that Mr Patel, during the period of 3 months beginning on 26 February 2001, was not residing in Australia, in terms of subsection 7(2C).

15. In addition, Mr Patel had no physical presence in Australia throughout the period envisaged in section 7(2C). The Federal Court considered the application of subsection 7(2C) recently in Taslim v Secretary, Department of Family & CommunityServices [2004] FCA 789. Beaumont J held that the Tribunal correctly analysed the subsection when it found that there must be a physical presence in the particular place as well as the intention to treat that place as ‘home’. I find, therefore, that Mr Patel was not residing in Australia prior to 12 June 2002. It follows that he was not residing in Australia for the purposes of section 7(2C) or section 7(3) of the Act.

16. Alternatively, Mr Patel has argued that he would have been residing in Australia had he not been misled by officers at the Australian High Commission into believing he would be eligible for the certificate he seeks once he arrived in Australia. The Tribunal cannot take this circumstance into account as it is bound to apply the legislation as it stands and has no discretion under the Act to make a decision on other grounds.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  21 July 2004
Date of decision  28 July 2004
Advocate for the applicant        Self-represented
Advocate for the Respondent   Ms J Green, Centrelink Service Recovery Team