Petalas and Secretary, Department of Family and Community Services

[2004] AATA 1423

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1423

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2004/503               )

GENERAL ADMINISTRATIVE DIVISION		)
Re		Apostolos Petalas

Applicant

And Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date17 December 2004

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – Applicant’s claim for age pension – whether residence requirements are satisfied – assessment of evidence provided to the Tribunal – elements of what constitutes an Australian resident considered – decision under review affirmed.

LEGISLATION

Social Security Act 1991 – sections 7 and 51

CASELAW

Hafza v Director-General of Social Security (1985)6 FCR 444

Whybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)

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

Levenue v Inland Revenue Commissioners [1928] AC 217

REASONS FOR DECISION

17 December 2004 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.        The decision under review before the Administrative Appeals Tribunal (“the Tribunal”), was the decision of the Social Security Appeals Tribunal (“the SSAT”)  dated 24 March 2004, (T2), which affirmed the decision of the Authorised Review Officer (“the ARO”) of the Secretary, Department of Family and Community Services (“Centrelink”), dated 19 January 2004 which rejected a claim by Mr Petalas (“the Applicant”) for age pension.

BACKGROUND

2.        On 4 June 1955 Mr Petalas migrated to Australia from Greece (T12/18).  He became an Australian citizen on 19 March 1964 (T28/45).  In 1973 he returned to Greece (T12/18) where he resided until 23 November 1996 when he returned to Australia (T12/18).

3.        On 27 November 1996 Mr Petalas lodged a claim for age pension but returned to Greece to reside on 1 February 1997 before a final decision was made in respect of the claim (T12/18).

4.        On 24 April 1997 Centrelink rejected Mr Petalas’s claim for age pension, as it was not satisfied that he intended to reside in Australia (T14/22-24).

5.        Mr Petalas was advised in writing of the decision on 24 March 1997 and 7 May 1997  (T14/T15).  On 22 January 1999 he requested review by the ARO (T17/28), who, on 11 March 2003, affirmed the decision under review (T21/32).

6.        On 20 August 2003 Centrelink received a letter from Mr Petalas making enquiries about his pension entitlements (T23/39-40) and this was interpreted as an appeal to the SSAT (T2).  On 18 November 2003 an appeal was lodged with the SSAT on behalf of Mr Petalas through Centrelink's International Services Branch (T2) and on 19 January 2004 a second ARO re-affirmed Centrelink's decision (T29/46-53).

7.        On 24 March 2004 the SSAT affirmed the decision under review (T2) and on 20 April 2004 Mr Petalas lodged the current application for review with the Tribunal (T1).

ISSUES BEFORE THE TRIBUNAL

8. Did Mr Petalas, at the date of application for the age pension, satisfy the residence requirements of section 51, as defined in section 7 of the Social Security Act 1991 (“the Act”)?

THE HEARING

9.        A hearing was held before the Tribunal on 2 December 2004 at which Mr Petalas gave evidence by conference telephone from Greece.  Centrelink was represented by Cheryl Collis, an advocate from the Advocacy and Administrative Law Team at Centrelink.  Mr Louis Rorris, accredited interpreter in the Greek language assisted at the hearing.  In Greece, Mr Petalas was supported by Mr George Leondiou.

10.      The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

11.     In coming to the correct and preferable decision, I took into account all the evidence, written submissions, case law and relevant legislation.

12. At the time Mr Petalas lodged his claim for age pension in November 1996, section 51 the Act was relevant and stated in part, as follows:

“51.  A claim by a person is not a proper claim unless the person is:

(a)       an Australian resident; and

(b)       in Australia;

on the day on which the claim is lodged.”

13. "Australian resident" as defined by section 7 of the Act, as follows:

“7.(2)    An Australian resident is a person who:

resides in Australia; …

7.(3)   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.”

14.      I considered the evidence in relation to each of these criteria in turn:

(a)      Nature of the accommodation used in Australia

15.      Mr Petalas has lived in Greece since 1973.  He said he had left Australia to return to Greece at that time because his father was ill.  His wife and daughters also returned to Greece a couple of months later. 

16.      In the time they lived in Australia, between 1955 and 1973, he and his wife had bought a house, and it was sold prior to their departure in 1973.  By the time the mortgage was paid out there only remained about $5000 -$6000 of the proceeds of the sale.  Within 2 years the money was gone.

17.      He and his wife returned to Australia in November 1996 to “see if [I] could get a pension”.  His wife had accompanied him to Australia to care for him because of his poor health. He was told that he could get a pension, but he would need to stay in Australia “for a long time”.  He needed to get back to Greece “because of his children” (then aged in their 30’s). 

18.      While here in 1996 he stayed with a lady at Tempe who had been a friend of his wife.  It was close to the Redfern Centrelink office.  They stayed with that lady for 4-5 weeks.  Initially they had given her something towards rent but when the money ran out they moved on to stay with cousins. Mr Petalas said he was embarrassed because he had no money. 

(b)      Nature and extent of the family relationships in Australia

19.      Mr Petalas's wife and daughters live in Greece, as do his three sisters.  At least one of his daughters would like to return to Australia but has made no firm plans in that regard. 

20.      The island on which he lives is only small and he has about 5 or 6 friends.

21.      He has no family ties in Australia, other than first and second cousins with whom he stayed in 1996. 

(c)Nature and extent of employment, business or financial ties with Australia

22.      Mr Petalas told me he has no bank accounts in Australia, because he has no money.  When he came to Australia in 1996 he had about $1000 in cash which his daughters had given him, but this soon ran out. 

23.      While here he did not consider getting a job because he was “old and sick”.  He did not consider himself in a position to apply for a job.

24.      Centrelink computer records confirm, as of May 1997, he had no financial, employment or business ties with Australia (T21/34).  In fact, a letter Mr Petalas wrote to Centrelink dated 18 July 2003, indicates that his daughter (who resides in Greece) sent him the air tickets to return to Greece in 1997.  Furthermore, she has been supporting him financially since his return (T22/35-38).

(d)      Nature and extent of assets located in Australia

25.      Mr Petalas told me that he has no assets in Australia.  

26.      Mr Petalas also told me he is part owner (with his sisters) of his late father’s property in Greece.  It is in that house that he presently lives with his wife.  They are supported by their daughters, because they have no money.

(e)      Frequency and duration of travel outside Australia

27.      Mr Petalas first arrived in Australia from Greece in 1955, and returned to Greece in 1973 where he lived continuously until he returned to Australia on 23 November 1996.  He departed Australia on 1 February 1997 for Greece, where he now resides.  He has undertaken no other travel.

(f)       Any other matter relevant to determining whether Mr Petalas intends to remain permanently in Australia. 

28.      Mr Petalas told me that if he had been granted a pension he may have stayed in Australia.  He did not dispose of the family home in Greece prior to his return. His daughters would come in to clean the home in their parents’ absence.

29.      Ms Collis referred me to the Outgoing Passenger Cards completed by Mr Petalas and his wife upon leaving Australia in 1997, where they stated they were residents of Greece (T30/56&57).

30.     Ms Collis also referred me to cases which are instructive in determining the matter of “residence”.

31.     In Hafza v Director-General of Social Security (1985) 6 FCR 444 at p.449, Wilcox J stated (emphasis added):

“There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249, by Williams J:

‘The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.’

Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily…a person does not necessarily cease to be a resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place…together with an intention to return to that place and an      attitude that that place remains “home”.”

32.      Ms Collis submitted that the term “residence” connotes both a temporal as well as an emotional connection with a particular place, a physical presence in a particular place and the intention to treat that place as “home” (Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992).   Furthermore, the Federal Court in Taslim v Secretary, Departmentof Family & Community Services [2004] FCA 789 has endorsed the definition of residence given in Wybrow.

33.      Ms Collis also referred me to the comments in Levene v Inland Revenue Commissioners [1928] AC 217 that:

“…the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time…”

34. In applying the above cases, and the indicia of residence set out in section 7 of the Act, I am unable to find that at the date of application Mr Petalas was an Australian resident. In coming to that view I observe that he had been absent from Australia for a period of 23 years prior to 1996; he spent about 2 months in Australia, specifically, on the evidence, in order to apply for the age pension; he brought with him minimal funds which were quickly exhausted; and his asset in Greece, the family home, was not liquidated, but maintained by his daughters pending his return. Any intention to remain in Australia was predicated on his obtaining the claimed pension. Most tellingly, at the time of his departure from Australia following the application he described himself as resident in Greece, where he and his wife have resided since.

DECISION

35.     The decision of the Social Security Appeals Tribunal is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Neil Glaser
  Associate

Date of Hearing  2 December 2004
Date of Decision  17 December 2004
Representative for Applicant  Self-Represented
Advocate for the Respondent                    Ms Cheryl Collis