Philippou and Secretary, Department of Social Services (Social services second review)
[2018] AATA 649
•23 March 2018
Philippou and Secretary, Department of Social Services (Social services second review) [2018] AATA 649 (23 March 2018)
Division:GENERAL DIVISION
File Number: 2017/3823
Re:Kyriacos Philippou
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Member C Edwardes
Date:23 March 2018
Place:Perth
The Tribunal sets aside the decision under review and, in substitution, decides that Mr Philippou’s rate of pension (in the context of “Schedule 11 – Cyprus” of the Social Security (International Agreements) Act 1999)) should be determined on the basis that he did not satisfy section 7(2) of the Social Security Act 1991 (Cth) for the periods:
a)26 November 1992 to 23 January 1995.
b)7 April 1996 to 28 February 1999.
c)28 April 2000 and 25 September 2016.
....[sgd]................................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – age pension – eligibility for age pension – rate of age pension - International Agreement – Cyprus Agreement – whether residence requirements for age pension satisfied – definition of resident – relevant factors – nature of accommodation – nature and extent of family relationships – nature and extent of person’s employment, business or financial ties - nature and extent of person’s assets – frequency and duration of person’s travel – any other matter - decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) – ss 7(2) – ss 7(3)
Social Security (International Agreements) Act 1999 (Cth) – Schedule 11
CASES
Clifopoulos and Secretary, Department of Social Security [1994] AATA 282
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674)
MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 133 ALD 448
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931
SECONDARY MATERIALS
The Guide to Social Security Law – Part 3.1.1.10
REASONS FOR DECISION
Member L M Gallagher
Member C Edwardes
23 March 2018
INTRODUCTION
Mr Philippou was born in Cyprus and travelled to Australia in 1992.
On 3 April 1996, Mr Philippou was granted Australian Citizenship.
On 14 March 2016, Mr Philippou lodged a claim for age pension (T4).
On 27 October 2016, a delegate of the Department of Social Services (“the Department”) determined that (ST12):
(a)Mr Philippou was not an Australian resident within the meaning of section 7 of the Social Security Act 1991 (Cth) (“the Act”);
(b)however, irrespective of Mr Philippou not being an Australian resident as defined, he remained eligible for age pension in accordance with “Schedule 11 – Cyprus” of the Social Security (International Agreements) Act 1999 (“the Cyprus Agreement”), with effect from 11 April 2016; and
(c)Mr Philippou was an Australian resident from 24 January 1995 to 5 April 1996 only, giving rise to a total Australian Working Life Residence (“AWLR”) of 15 months.
[emphasis added]
In relation to the Department’s determination dated 27 October 2016, the Department’s record state (T10, page 180):
Based on the above information the delegate is not satisfied that the claimant intends to remain permanently in Australia. Residence assessment: NOT a resident of Australia as per Social Security Act 1991 S7(3).
IMMI movements clearly shows that claimant has never stayed long enough in Australia to have ties in Australia. Claiment [sic] is still payable under the Cyprus agreement and whilst in Australia will be paid the inside Australia rate but on departure will be paid under the Cyprus agreement 15/420 AWLR.
[emphasis added]
On 31 October 2016, a delegate of the Department advised Mr Philippou that he is not an Australian resident and that his arrears rate of age pension had been reduced.
On 2 November 2016, Mr Philippou asked the Department to review its determination dated 27 October 2016 (T6, page 114).
On 18 January 2017, an Authorised Review Officer of the Department (”ARO”) affirmed the Department’s determination dated 27 October 2016 not to consider Mr Philippou an Australian resident continuously from 1 November 1986[1] (T6). In her decision, the ARO stated, relevantly and in part (T6, page 115):
Based on the available evidence I have found that you do not meet the requirements set out under Section 7(2) of the Social Security Act 1991 for the periods when you were present in Australia from 1 June 1985 to 23 January 1995 and 6 April 1996 to 25 September 2016…
… As a result of this decision a reassessment of your Australian Working Life Residence will be completed and you will be notified of the outcome however whilst you are residing in Australia you are receiving the correct rate of Age Pension…
[emphasis added]
[1] On his claim form for age pension, Mr Philippou indicated that he started living in Australia on 1 November 1986 (T4, page 91).
On 7 February 2017, Mr Philippou applied to the Administrative Appeals Tribunal (“Tribunal”) for a first review of the ARO’s decision dated 18 January 2017 (T7). On 6 June 2017, the Tribunal’s Social Services & Child Support Division (“AAT1”) set aside the ARO’s decision and in substitution determined that (T2):
…Mr Philippou’s rate of age pension (in the context of the Cyprus Agreement) should be determined on the basis that he did not satisfy section 7(2) of the Social Security Act 1991 for the periods:
a)1 June 1985 to 23 January 1995
b)7 April 1996 to 28 February 1999
c)28 April 2000 to 25 September 2016.
[emphasis added]
In relation to the AAT1’s decision referred to at paragraph 9 above, the Tribunal notes the following paragraphs of the AAT1’s reasons for decision (T2, page 11):
26. The tribunal found the reduced pattern of travel away from Australia in the period 24 January 1995 to 5 April 1996 indicated he was an Australian resident. In this period it seemed to the tribunal Mr Philippou travelled to South Africa for short periods but spent most of his time in Australia.
27. That Mr Philippou’s marriage did not end in 1999 after his divorce seems supported by the period Mr Philippou spent in Australia from 1 March 1999 to 27 April 2000. Mr Philippou did not travel away from Australia in this period. The tribunal is satisfied Mr Philippou resided in Australia between these dates.
28. With respect to the other periods, until Mr Philippou returned to Australia on 26 September 2016, his pattern of travel is consistent with him living elsewhere and returning to Australia for the summer months.
29. The tribunal finds that when Mr Philippou returned to Australia from Cyprus on 26 September 2016, he resumed residing in Australia.
[emphasis added]
APPLICANT’S MOVEMENT RECORDS
Mr Philippou’s dates of arrival to and departure from Australia during the relevant period (T9) as recorded by the (then) Department of Immigration and Border Protection, the corresponding total number of days for each period he was present in Australia are as follows[2]:
[2] The highlighted fields in the table represent periods for which the Secretary concedes (and the Tribunal finds upon the evidence) that Mr Philippou was an Australian resident for the purpose of subsection 7(2) of the Act.
Arrival Departure Total number of days in Australia 26 November 1992[3]
28 May 1993
183 days
26 August 1993
19 December 1993
115 days
3 January 1994
24 January 1994
21 days
6 October 1994
21 November 1994
46 days
24 January 1995
29 April 1995
95 days
8 May 1995
29 October 1995
174 days
5 November 1995
30 December 1995
55 days
5 January 1996
6 April 1996
92 days
4 April 1997
21 April 1997
17 days
28 September 1997
13 October 1997
15 days
12 July 1998
11 August 1998
30 days
1 March 1999
27 April 2000
423 days
23 June 2000
2 September2000
71 days
25 December 2000
11 February 2001
48 days
21 December 2001
17 January 2002
27 days
3 August 2002
7 September 2002
35 days
16 November 2002
8 February 2003
84 days
26 November 2003
18 February 2004
84 days
23 June 2004
26 July 2004
33 days
17 December 2006
2 February 2007
47 days
13 December 2007
15 February 2008
64 days
13 December 2008
27 March 2009
104 days
20 November 2009
20 January 2010
61 days
20 November 2010
13 February 2011
85 days
19 November 2011
31 January 2012
73 days
2 November 2012
19 January 2013[4]
78 days
8 November 2013
12 February 2014
96 days
21 November 2014
15 February 2015
86 days
2 November 2015
17 April 2016
167 days
26 September 2016
Total number of days present in Australia from 26 November 1992 to 26 September 2016 2509 days/8705 days
28.82% of the relevant period[5]
[3] Mr Philippou gave evidence before this Tribunal that he first started living in Australia on 26 November 1992 (refer to paragraph 30 below), rather than on 1 November 1986 as indicated on his claim form for age pension (refer to footnote 1 above). While Mr Philippou also gave evidence to the AAT1 that he first became an Australian resident on 20 November 1992 (refer to T2, paragraph 9), the Tribunal adopts the 26 November 1992 date as it is consistent with Mr Philippou’s movement records and his oral evidence before this Tribunal.
[4] The Tribunal notes that this date had been recorded by the AAT1 as 16 January 2013, as a correction on advice by Mr Philippou. However, the Tribunal adopts the 19 January 2013 date given Mr Philippou’s more recent confirmation in his submission dated 15 October 2017 (R4, page 3) that his “frequency and duration of travel are correct as set out by the Australian Immigration.”
[5] The Tribunal notes that the Secretary calculated the days in Australia to be 2485 days and 28.54% of the relevant period. This appears to be as a result of a typographical error for the number of days in Australia during the period 20 November 2010 to 13 February 2011 which it had calculated as 61 days, rather than 85 days.
RELEVANT LEGISLATION AND PRINCIPLES
The statutory provisions relevant to the present matter are contained in the Act and the Cyprus Agreement. The Guide to Social Security Law (the “Guide”) provides assistance to those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case for not doing so (refer to Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
Subsection 7(2) of the Act defines the term “Australian resident" as a person who:
a)resides in Australia; and
b)is one of the following:
i.an Australian citizen[6];
ii.the holder of a permanent visa;
iii.a special category visa holder who is a protected SCV holder.
[emphasis added]
[6] As noted at paragraph 2 above, Mr Philippou was granted Australian Citizenship on 3 April 1996.
As to whether a person is residing in Australia, subsection 7(3) of the Act lists the factors to which regard must be had,[7] being:
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 the 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.
[emphasis added]
[7] The list of factors set out in subsection 7(3) of the Act is non-exhaustive (as noted by the Tribunal in MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 133 ALD 448)).
The concept of residency has been discussed in a number of decisions, including the Federal Court’s decision in Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674 (“the Hafza decision”), where Wilcox J relevantly stated (at ALR 680 to 681):
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 FC of T (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 (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383 ) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 together with an intention to return to that place and an attitude that that place remains “home” (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place — see the facts of Lysaght and the reference by Williams J to “a home or homes” — and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.
[emphasis added]
In applying subsection 7(2) of the Act, the Tribunal is also guided by the decision of the Tribunal in Clifopoulos and Secretary, Department of Social Security [1994] AATA 282 (“the Clifopoulos decision”), as follows:
(17) The principles set out [in subsection 7(3)] above codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that onstitute [sic] the criteria will vary in each case. In the end, as is apparent from the wording in section 7(3)(f), the criteria are there to guide the decision-maker in determining the person's intention as to the place of residence. As was submitted by Mr Kearney, when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant's accommodation outside Australia…
[emphasis added]
In Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 (“the Taylor decision”), Deputy President Hotop noted at [19]:
19. Although the Tribunal accepts that the applicant has at all material times regarded, and continues to regard, Australia as “home” – having been born and raised in Australia and having maintained the continuity of association with Australia indicated by his abovementioned evidence regarding the factors specified in s 7(3) of the Act – and that he intends ultimately to reside permanently in Australia, it does not follow therefrom that, in the meantime, he must be taken to be continuing to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, throughout long periods of absence from Australia.
[emphasis added]
In determining whether a person resides in Australia, the Guide relevantly states at Part 3.1.1.10:
When making a determination about whether a person is 'residing' - in other words 'living' - in Australia, the key point is to establish that Australia is the person's settled or usual place of abode - i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person's ties will weigh more heavily in favour of one country than another.
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in SSAct section 7(3)…
[emphasis added]
In relation to subsection 7(3)(b) of the Act (the nature and extent of the family relationships the person has in Australia), the Guide relevantly provides that:
…The term family member is not defined in SSAct section 7(3), however in general it will include the person's spouse, children, parents, brother, sister etc.
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas.
Strong weight should be given to where the person's immediate family is residing, or where the person is providing a significant level of care for a member of their family or where the person spends the most amount of time with their family. Conversely, having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members. Similarly communicating with family in other parts of the world does not make that person a resident of those countries…
… Generally a person would be regarded as having stronger ties to their dependent children than to other family members they may have caring responsibility for. To make a decision on where a person lives it is necessary to look at where their partner and children are and how settled they are there. In some cases a person may have 2 families, one being from a previous relationship. In these situations, the focus must be on the family that the person is spending more time with…
[emphasis added]
As to the frequency and direction of the person’s travel outside Australia (subsection 7(3)(e) of the Act), Part 3.1.1.10 of the Guide relevantly states:
A person does not need to be continuously present in a country in order to be residing there. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away.
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
Taken in isolation, a 3 year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable.
The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence. For example, a person working on an 18 month overseas contract posting would still be considered to reside in Australia as long as they have demonstrated ongoing physical ties to Australia and a commitment to return to Australia at the end of the posting.
It is not uncommon for a person to remain overseas for a lengthy period of time but state that they intend to return to Australia to live at some uncertain, future date. In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person's 'intent' becomes less of a factor as the length of the absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
A person who has spent the majority of their time overseas in the last few years and who returns to Australia to claim a benefit will not necessarily be eligible from the day they return to Australia. The person must demonstrate that their physical ties with Australia have been re-established, or are in the process of being established and that they intend to reside again in Australia.
[emphasis added]
ISSUES
In accordance with Schedule 11 of the Cyprus Agreement, a person’s rate of age pension is calculated taking into account that person’s AWLR (being the number of months for which the person was an Australian resident between 16 years of age and pension age) and whether the person is inside or outside Australia at the date of payment.
Hence, Mr Philippou’s rate of age pension has, in the past, been impacted by the number of months he is considered to be an Australian resident.
At hearing, the parties did not dispute and the Tribunal finds based on the available evidence that:
(a)Mr Philippou first started living in Australia on 26 November 1992 and has remained in Australia since 26 September 2016; and
(b)Mr Philippou was an Australian resident from:
(i)24 January 1995 to 6 April 1996;
(ii)1 March 1999 to 27 April 2000; and
(iii)26 September 2016 onwards.
Hence, the issue that remains for this Tribunal is whether Mr Philippou was an Australian resident for the purposes of subsection 7(2) of the Act from:
(a)26 November 1992 to 23 January 1995;
(b)7 April 1996 to 28 February 1999; and
(c)28 April 2000 to 25 September 2016,
together, being “the relevant periods”.
EVIDENCE
The matter was heard in Perth on 31 January 2018. Mr Philippou appeared in person with the assistance of Mr Peter Gregory. The Secretary was represented by Mr Ashley Burgess from Sparke Helmore Lawyers.
The Tribunal has received the following evidence:
·the Applicant’s evidence filed on 26 January 2018, including written submissions and documents relating to the property located in North Beach (A1);
·details of the Applicant’s land ownership in Cyprus, filed on 29 January 2018 (A2);
·a 206 page set of T-Documents (T1 – T10) (R1);
·a 105 page set of Supplementary T-Documents (ST1 – ST 15) (R2);
·the Secretary’s Statement of Facts, Issues and Contentions dated 8 December 2017 including a list of authorities (R3); and
·Annexure A to R3, being the Applicant’s further written submissions dated 15 October 2017, details of the Applicant’s private health insurance policy and statements provided by Paraskevi Philippou, Peter Gregory, Savvas Papasavvas, Nicola Ranelli and Dr Ralph Mendelsohn[8] (R4).
[8] The Tribunal notes that of those who provided written statements in relation to Mr Philippou, none were made available by Mr Philippou at hearing, nor was their availability for cross-examination a requirement of the Respondent or the Tribunal.
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
Mr Philippou’s evidence
Mr Philippou’s written evidence and oral evidence at hearing is, for the most part, in relation to two periods of time relating to distinct factual themes. For ease, the Tribunal will refer to these respective periods as “the South Africa period” and the “Cyprus period.”
At the hearing, Mr Philippou gave oral evidence to the Tribunal in person, including cross-examination by Mr Burgess. Mr Philippou had earlier provided written submissions filed on 26 January 2018 (A1) and written submissions dated 15 October 2017 (R4).
Mr Philippou gave evidence that he first arrived in Australia on 26 November 1992 and that his wife migrated to Australia in 1993. Mr Philippou said that “his wife was here” in Australia for the period that he spent in Australia from 26 August 1993 to 19 December 1993 and prior to that time she had been in South Africa. Mr Philippou said that his two children, who were born in 1983 and 1984 respectively, attended school in Australia from 1994.
The South Africa Period – 26 November 1992 to 1 March 1999
Mr Philippou said at hearing that in 1992, he “needed to clear out assets in South Africa.” Mr Philippou said that he needed to leave (South Africa) in a lawful way as part of the immigration process (to Australia), which he commenced in 1992.
Mr Philippou said that he sold his business in South Africa in February 1999, returning to Australia on 1 March 1999. Mr Philippou said that all (of his travel, between 1992 and 1999) was “related to the (sale of the) South Africa business”, “looking at offers put forward by agents” and “to keep track of the business”, to see that the business was running efficiently, to “replace staff” and to “take stock” in the store once each year. Mr Philippou said that on each occasion when he travelled to South Africa, he “would go and tie in as much as possible into one trip.”
Mr Philippou said that “assessing business offers” (made by potential buyers of his business in South Africa) was something that he could not do from Australia.
Mr Philippou said that in South Africa, you “had to be present” for the sale of a business, which was a different process to the sale of a business in Australia. Mr Philippou said that businesses in South Africa “never got sold as cash,” rather, businesses in South Africa are sold in return for a deposit and then repayment of the remaining sale price is made over a number of years. Mr Philippou said that in his case he received a 50% deposit from the buyer and received the rest of the sale price over a 15 year period (which should have been a ten year period, however two years into the repayment period, an extension was agreed). Mr Philippou said that it was “not wise to do (the sale) over the phone.”
Mr Philippou said that with regard to the sale of his business in South Africa, “there were no credit checks then”, he “had to do it [the credit checks] himself” and “check that the sale did not cause him problems down the track.”
When asked how long it would take a business owner, in South Africa, on average, to accept an offer for the sale of their business, Mr Philippou said “a month, or two, or six,” that he had had “continuous offers” and the “background check length depends on the person.” Mr Philippou said that in fact, in his circumstances it was a party who had made an earlier offer that had fallen through who ultimately made the offer that resulted in the sale of his business in 1999.
Mr Philippou gave evidence that he divorced from his wife in 1999, reconciling for a period shortly after, until 2003. Mr Philippou said that his business in South Africa “was a major issue” (for their marriage) and then he sold it (so it ceased to remain an issue).
Mr Philippou said that during this period (between 1992 and 1999) he had a manager and staff working in his business in South Africa and at one point (prior to 1996) had made an offer to purchase a business in Hay Street in Perth.
Mr Philippou said that in April 1996, the manager of his business in South Africa had an accident, so “he had to go back (to South Africa)” on 6 April 1996, for almost one year and therefore he couldn’t buy the business in Perth.
Mr Philippou also said that he made an offer to purchase a supermarket in Kalamunda in early 2000 but that due to his mother’s unexpected illness, he was unable to go through with the purchase (A1, page 5).
Mr Philippou said that when he travelled to South Africa, he would stay with the manager of his business, or with his sister (whomever could accommodate him at the time) or in a hotel, as his house in South Africa was rented out at the time.
Mr Philippou gave evidence that when he was trying to sell his business in South Africa, he had a sister living in South Africa, “a day’s travel away” in Cape Town and he had two brothers living in South Africa eight hours away from where he was in Pretoria.
When asked by Mr Burgess to elaborate on the procedure for selling a business in South Africa, Mr Philippou said that this was a long process where each party finds its own lawyer and accountant and sometimes (after a trip to South Africa) he would “get fed up and come home.”
Mr Philippou said that after the sale of his business in South Africa in 1999, he returned to Australia (for 423 days) where he had no business interests or any other source of income. Mr Philippou said that he had to rely on his savings of income his business in South Africa had generated between 1993 and 1999, which given the repayment plan (referred to in paragraph 34 above), saw him being paid the proceeds of the sale until 2014.
Mr Philippou said that on his own reading of his travel movements, from his arrival in Australia on 26 November 1992 to his arrival in Australia on 1 March 1999 (including the period up to 27 April 2000 when he next departed Australia for Cyprus on 27 April 2000, he spent 1266 days of that 2709 day period in Australia, being 46.73% of that period (refer to A1, page 2).
The Cyprus Period – 2 March 1999 to 26 September 2016
Mr Philippou gave evidence that all of his travel to and from Australia from 2 March 1999 onwards, his first departure during that period being on 27 April 2000 was to Cyprus and to no other destination. As to his accommodation arrangements in Cyprus during that period, Mr Philippou said that he “had a roof over his head” in a house in which he inherited a 20% share from his parents (R4, page 4), or he would stay with his sister. Mr Philippou said for each trip to Cyprus that he made, he purchased a return ticket as he always intended to return to Australia.
Mr Philippou said that just prior to his mother falling ill in 2001, he had been looking at buying a business in Kalamunda (R4, page 2).
Mr Philippou said that in February 2001, he flew to Cyprus to accompany his (then ill) late mother, to England to undergo an operation. Mr Philippou said that he and his mother spent six months in England before returning to Cyprus, where Mr Philippou said that he stayed until December 2001. Mr Philippou added that his mother in fact suffered a complication from her operation shortly after their return to Cyprus, which saw them return to England for one month in August 2001.
Mr Philippou said that he had a sister who then lived in Cyprus, a sister who lived in the United Kingdom (whom he and his mother saw when they travelled to England for his mother’s operation in 2001) and a late brother who then lived in South Africa. Mr Philippou said that the idea had been that for four months of each year, he, his sister in Cyprus and “someone else” would in turn take care of his (then elderly) late parents in Cyprus.
In relation to the proposed care plan outlined in paragraph 49 above, Mr Philippou said that:
(a)his brother in South Africa was not involved in this intended care plan because he was diagnosed with cancer in 2004 and passed away;
(b)in 2004, his sister who lived in Cyprus had a major accident, and contracted a “staph” infection in hospital, therefore he was “filling in his sister’s position from then”; and
(c)his sister who lived in England had a husband who had cancer and passed away in 2007, so she “couldn’t take much responsibility” (for the care of their then elderly parents).
Mr Philippou said that his father passed away in September 2008 and his mother passed away in September 2012.
Mr Philippou said that after his parents’ passing, he “needed to be in Cyprus” as he was executor of the will. Mr Philippou said that all of the offices (that he was required to visit in order to attend to his late parents’ affairs) were located in Nicosia, which was a two and a half hour drive from “the village.”
Mr Philippou said that his time in Cyprus in 2013 included taking part in ceremonies (following his mothers’ passing in 2012) that are part of his religion.
As to the pattern of travel from his departure from Australia on 31 January 2012 to his return to Australia from Cyprus on 2 November 2015, where he would, each year, spend from January or February through to November in Cyprus, Mr Philippou said that that was the time he was needed” as “mid-year in Cyprus you can’t do anything” and he would return to Australia in November of each year because “everything shuts down” (in Cyprus).
In relation to the blocks of land he had inherited in Cyprus from his parents, Mr Philippou said that he had to “clear the obstacles on the land” to transfer it (to himself), there were “tax issues,” there was “endless running around,” a “recession in Cyprus,” and the closure of banks and Government offices, which “finished in 2015.”
Mr Philippou said that on his last trip to Cyprus in 2016, where he stayed for one month, he travelled with his children and “tidied the house,” following which he travelled to England for one month and then travelled alone to the Kalahari Desert for two and a half months.
CONSIDERATION
The issue for the Tribunal to consider is whether Mr Philippou was an Australian resident for the purposes of subsection 7(2) of the Act during the relevant periods, being:
(a)26 November 1992 to 23 January 1995;
(b)7 April 1996 to 28 February 1999; and
(c)28 April 2000 to 25 September 2016.
Mr Philippou essentially contends that Australia has always been his home, that his wife and children live in Australia, that he owns part of a house in Australia and that his absences have been primarily due to, among other things, his need to finalise his business affairs in South Africa and attending to the needs of his late parents in Cyprus, particularly while they were ill (as reiterated in R3, paragraph 10).
Mr Philippou contends that the Secretary has not allowed for, or given appropriate weight to, his personal circumstances, which, in his view, are extenuating in that he had to take on the roles of his other siblings with regards to his parents and the procedure he had to follow in order to sell his business in South Africa.
Mr Philippou contended in his written submissions that “[i]t’s unfair to calculate the time as a whole as the reasons I needed to travel were different needs at different periods” (A1, page 1).
The Secretary is of the overall view that although Mr Philippou has expressed that it was his intention to reside in Australia and that he regarded it as his home, his presence in Australia for what it has calculated to be 28.54% (and the Tribunal calculates to be 28.82%)[9] of the period commencing on 26 November 1992 and ending on 25 September 2016, represents a pattern of sustained absence that cannot be overcome by his stated intentions or explanations for those absences (R3, paragraphs 58 and 59).
[9] Refer to footnote 5 above.
The Secretary also contends that, consistently with the Guide, as the most weight should be given to the country in which Mr Philippou was physically present during the relevant period, Mr Philippou’s presence in Australia is not consistent with his remaining a resident of Australia during that period (R3, paragraphs 58 and 59).
The Tribunal has considered the factors set out in subsection 7(3) of the Act, with assistance from the Guide where relevant, as follows.
The nature of the accommodation used by the person in Australia
Mr Philippou gave evidence that he arrived in Australia on 26 November 1992 and rented a house in St James (R4, page 1). Mr Philippou said that his wife and children joined him after in 1993/1994 (R3, paragraph 30 and R4, page 1) and in 1994 they moved as a family to Noranda where they rented a house until 1996. Mr Philippou said he and his family moved to a rental property in North Beach and remained there until May 1999 when they purchased a property in North Beach (R4, pages 1 and 2).
Following his divorce from Mrs Philippou in 1999 (refer to paragraph 37 above and T2, page 18), Mr Philippou said that he moved into a granny flat at their North Beach home, the granny flat representing his 10% share in the property (R4, page 2). Mr Philippou said that his wife and children remained in the primary residence (R4, page 2).
For the purpose of considering the evidence relevant to subsection 7(3)(a) of the Act, the Tribunal may also consider the nature of the Mr Philippou’s accommodation outside Australia (refer to the Clifopoulous decision, extracted at paragraph 16 above).
Mr Philippou owns four plots of land in the village of Milia in Cyprus, one of those with a house (A2), being the house in which Mr Philippou would stay on his visits to Cyprus, unless he was staying with his sister (refer to paragraph 46 above). As the Secretary has noted (refer to R3, paragraph 37), Mr Philippou has not provided any evidence to suggest (nor has he proposed) that the house in Cyprus has ever been rented during the relevant period and the evidence indicates that it has remained available for occupation by Mr Philippou and his family in Cyprus.
As to his accommodation arrangements in South Africa, Mr Philippou gave evidence that , he would stay with the manager of his business, or with his sister (whomever could accommodate him at the time) or in a hotel, as his house in South Africa was rented out at the time (paragraph 41 above).
The Secretary contends that Mr Philippou’s accommodation circumstances in Australia and Cyprus are similar in that Mr Philippou owns or has an interest in permanent accommodation which remains available for use in both Australia and Cyprus (R3, paragraph 38). The Secretary has noted, however, that Mr Philippou has spent significantly more time occupying the house in Cyprus which suggests that the Cyprus accommodation is of a more permanent nature. The Secretary has also noted that the Guide indicates that “if the accommodation circumstances are the same in both countries then more weight should be given to the nature of the accommodation where they spend the majority of their time” (R3, paragraph 38, and ST15, page 305).
Mr Gregory (for Mr Philippou) disagreed with the Secretary’s contention that Mr Philippou’s property in Cyprus, which was inherited from his parents, was equal to his property in Australia and said that “it is not the evidence” that Mr Philippou’s property in Cyprus was of a more permanent nature. Similarly, in his written submission (A1, page 4), Mr Philippou submits that there are no similarities between the Australian and Cyprus properties.
Having considered the evidence and the parties’ contentions at paragraphs 64 to 70 above, and particularly the Secretary’s contentions set out at paragraph 69 above, the Tribunal takes the view that there is no basis for it to find that the nature of the accommodation used by Mr Philippou in Australia, during the relevant periods, supports him being a resident of Australia in accordance with subsection 7(3)(a) of the Act.
The nature and extent of the family relationship the person has in Australia
Mr Philippou’s evidence regarding the nature and extent of his family relationships is:
(a)he moved to Australia in 1992, his wife and children following in 1993/1994 (refer to paragraph 30 above and to R4, page 1);
(b)he divorced from his wife in 1999;
(c)since their arrival in Australia, Mr Philippou’s wife and children have always resided here;
(d)during the relevant period, Mr Philippou had “2 brothers and some nieces and nephews” in South Africa and “3 sisters and a few dozen nieces and nephews” in Cyprus (ST11, page 291), which Mr Philippou says was accurate at the time he was asked about it however, it doesn’t reflect his current situation and he has never had much contact with most of his nephews and nieces (A1, page 4);
(e)in Australia, Mr Philippou has “… a brother with his wife, 3 children, 5 grand children, a cousin, and a niece who is very close to me who is married with her two children” (A1, pages 4-5);
(f)until 1998 and 2012 respectively, Mr Philippou’s late parents resided in Cyprus; and
(g)his family in Perth “outweighed how he lived in Cyprus”.
In paragraph 44 of its Statement of Facts, Issues and Contentions, (R3), the Secretary contends that although Mr Philippou’s children and ex-wife resided in Australia during the (relevant) periods, and this is a relevant consideration, and given the Guide (refer to the relevant extract at paragraph 19 above), due weight should be given to the significant level of care Mr Philippou reports providing to his parents who were residing in Cyprus, and to the fact that the majority of this time was spent either with them, or attending to matters pertaining to them.
In closing, Mr Philippou said that his children and wife in Australia should take precedence as he was with his parents in Cyprus for medical reasons. Mr Philippou said that his other siblings (at the time, in Cyprus and South Africa) were “not that critical to his life.”
During closing submissions, Mr Philippou also added that he was there for his kids and his niece at all times, he had called his kids every day while he was away (from Australia), that it wasn’t easy leaving his kids and he did everything he could at the time. Mr Philippou said that he had found it upsetting that this was not mentioned (by the AAT1) and that he was never asked to elaborate about his children prior.
In his written submissions (A1, page 5), Mr Philippou said in response to paragraph 44 of the Secretary’s Statement of Facts, Issues and Contentions that “… it was not about putting my parents above my children…” in terms of the level of care he provided. The Tribunal considers that the Secretary has made no suggestion of that at any time and rather, the main focus is to look at how much time the person spends with their family members, wherever located (refer to paragraph 78 below).
Notwithstanding the lack of corroborative evidence pertaining to Mr Philippou’s claims to have telephoned his children every day he was absent from Australia during the relevant period, the Tribunal accepts Mr Philippou has a close relationship with his children and understands Mr Philippou’s concern that this be acknowledged. However, that is not the issue before the Tribunal.
For the purposes of subsection 7(3)(b) of the Act, the Guide includes a person’s parents in the term “family member” (refer to paragraph 19 above), with no greater or lesser ranking, weight or preference to a person’s spouse or children. The Guide clearly states that “the main guide is to look at how much time the person spends with them…” (being the family members) in Australia and overseas (refer to paragraph 19 above).
Considering all of the additional matters relevantly extracted from the Guide for the purpose of subsection 7(3)(b) of the Act (refer to paragraph 19 above), while Mr Philippou had, during the relevant period, immediate family residing in Australia, South Africa and Cyprus, he spent the most amount of time in South Africa and Cyprus and he provided a significant level of care for his parents in Cyprus.
The Tribunal considers the level of care Mr Philippou provided to his ailing parents and the time spent with them in providing this care to be so significant so as to overcome the general notion contained in the Guide that a person would be regarded as having stronger ties with their children than other family members. In forming this view, the Tribunal also takes into account the evidence from Mr Philippou and his ex-wife regarding the care Mr Philippou provided to their children (A1, pages 1 and 2 and R4, pages 2 and 6). Even if the Tribunal were to accept Mr Philippou made daily calls to his children in Australia while he was overseas and cared for them in the manner outlined by himself and his ex-wife, the Guide states that this of itself does not make him an Australian resident.
Given the Tribunal’s view expressed in paragraph 77 above, the Tribunal finds that the factor set out in subsection 7(3)(b) of the Act does not support Mr Philippou being a resident of Australia during the relevant periods.
The nature and extent of the person’s employment, business or financial ties with Australia
Mr Philippou gave evidence that in 1993 he applied for some available positions in his field (R4, page 4) and he attempted to purchase a business on Hay Street in Perth and in Kalamunda (refer to paragraphs 38 to 40 above), all without success.
Mr Philippou continued to conduct his business that he owned in South Africa until its sale in 1999 (refer to paragraph 32 above, to Mr Philippou’s evidence that his trips to South Africa were in relation to keeping track of his business as well as matters relating to its potential sale) and continued to receive income from this business, in the form of installation payments of sale proceeds, until 2014 (refer to paragraph 34 above).
While there is no evidence of Mr Philippou ever having worked in Cyprus during the relevant period, Centrelink online records show that his Cypriot pension is paid based on contributions reflecting his having resided in Cyprus from 3 March 2003 to 31 December 2007 (refer to T10, page 185).
In light of the matters addressed at paragraphs 82 to 84 above, the Tribunal finds that the factor set out in subsection 7(3)(c) of the Act does not support Mr Philippou being a resident of Australia during the relevant period.
The nature and extent of the person’s assets located in Australia
As to Mr Philippou’s assets in Australia, the available evidence is that:
(a)Mr Philippou said that he now owns a 10% share in the North Beach home at which he resides in the granny flat and his ex-wife and children live in the main residence. Mr Philippou said that it was not always the case that he owned a 10% share in the North Beach home (rather, he owned it jointly with his wife prior to their separation) (refer to paragraph 65 above and A1, page 6));
(b)Mr Philippou has a bank account and a credit card in Australia (ST1, page 210, R4, page 4)); and
(c)Mr Philippou once owned a motor vehicle, but sold it and no longer has a motor vehicle in Australia (R4, page 4).
The available evidence regarding Mr Philippou’s assets in Cyprus[10] is that he owns an old car from his parents, 20% of the family home and three blocks of farm land (A2 and R4, page 4).
[10] Given the Clifopoulos decision, it is open for the Tribunal to consider the evidence of Mr Philippou’s assets in Cyprus (refer to paragraph 16 above).
The Secretary contends that Mr Philippou has more significant asset holdings in Cyprus than Australia and that this factor militates against his being considered an Australian resident during the relevant periods (R3, paragraph 54).
The Tribunal takes the view that, given the relative valuations provided in respect of the relevant properties in Australia and Cyprus (in A1 and A2, being what the Tribunal considers to be the best comparative estimate of the most significant asset holdings) the factor set out in subsection 7(3)(d) is neither strongly in favour of or against Mr Philippou being a resident of Australia during the relevant period.
The frequency and duration of the person’s travel outside Australia
The frequency and duration of Mr Philippou’s travel outside Australia is tabled at paragraph 11 above and those arrival and departure dates are not in dispute.
The Secretary contends that Mr Philippou’s pattern of travel since 1992 indicates that he has generally not resided in Australia (R3, paragraph 32). The Secretary submits that the significant proportion of Mr Philippou’s absence cannot be overcome by his stated intentions in circumstances where the pattern of absences persisted over a period of “20+ years” (R3, paragraph 32). The Secretary says that the period of time away from Australia in the last 23 years therefore does not sit comfortably with Australian residency (R3, paragraph 32).
With regard to Mr Philippou’s pattern of travel, the Secretary also submits that Mr Philippou resided elsewhere for various time periods where his absence was indefinite and open-ended, sometimes returning for the summer months, consistent with the findings of the AAT1 (R3, paragraph 33).
At hearing, Mr Burgess reiterated to the Tribunal that Part 3.1.1.0 of the Guide states that in the majority of cases the most weight should be given to the time spent in Australia (refer to paragraph 18 above).
As to the frequency and duration of his travel outside Australia, Mr Gregory submitted for Mr Philippou that on each occasion that he travelled, he “had a pre-determined time to come back.”
Mr Philippou submitted that the calculations presented by the Secretary are erroneous. The Tribunal understands this submission to be on the basis that while Mr Philippou does not dispute the days of total presence in Australia in respect of each travel period or the calculation of his total presence in Australia during the relevant period, rather Mr Philippou is of the view that his travel periods should be divided into further sub-periods, which give the result of higher percentage figures of total presence in Australia, for example (A1, page 2):
·26 November 1992 to 24 January 1994 – total presence in Australia 75.23%.
·26 November 1992 to 27 April 2000 – total presence in Australia 46.73% (refer also to paragraph 45 above).
Mr Philippou contended at hearing that he was never away indefinitely, or in an open-ended fashion as submitted by the Secretary and that even his longest period of absence was “a reasonable absence of itself.” Mr Gregory submitted for Mr Philippou that Mr Philippou was never leaving and coming back to Australia to re-establish residency as “residency never stopped.”
In his written submissions and at hearing, Mr Philippou has provided a detailed description of the circumstances surrounding his travel during the relevant period and his stated intentions to always return to Australia (throughout A1, R2 and paragraphs 31 to 56 above). Mr Burgess, in closing, commented that while the Secretary was of the view that Mr Philippou’s reasons for travel were “honourable and not debatable,” those reasons do not detract from the Secretary’s overall position that the frequency and duration of Mr Philippou’s travel outside Australia during the relevant period does not support him being an Australian resident during that period.
Having considered the available evidence, general principles and the available guidance provided by the Guide with respect to subsection 7(3)(e) of the Act, the Tribunal makes the following comments and findings:
(a)Mr Philippou’s stated intention has always been to treat Australia as his home, even at those times he did not maintain a physical presence there;
(b)while intention is relevant to the general concept of residence (refer to the Hafza decision and other decisions cited within and extracted at paragraph 15 above), intention is not of itself decisive of the matter (refer to the Taylor decision extracted at paragraph 17 above);
(c)Part 3.1.1.10 of the Guide states that in the majority of cases, the most weight should be given to the time spent in Australia and that while an isolated three year continuous absence would be regarded as an upper limit, regular absences from Australia of more than six months per year renders a person’s residence questionable. While the Guide states the purpose of an overseas absence may be relevant, those reasons for travel should be consistent with the intended length of absence and a person’s intention to return becomes less of a factor as the length of the absence increases;
(d)with regard to the South Africa period,[11] Mr Philippou has made much of the point that it was only he who was in a position to coordinate and execute the sale of his business there, which could take place only in South Africa. However, Mr Philippou’s evidence is also that although he had staff and (at times) a manager to attend to the daily running of that business, he still felt it necessary to keep track of the business himself to an extent (refer to paragraph 32 above). Mr Philippou makes essentially the same point in relation to attending to his late parents’ needs and related affairs following their passing, which again, he says only he could attend to and only in Cyprus. Whether this may or may not have been the case, and while the Tribunal has no reason to dispute Mr Philippou’s broader reasons for travel were as he said, the Tribunal has not been presented with any corroborative evidence of all of the “running around” that Mr Philippou claims was required (for example, documents regarding his mother’s operation in the United Kingdom, sale documents regarding his business in South Africa, correspondence with relevant parties regarding execution of his parents’ will or wills, transfer of property etc);
(e)in any event, the Tribunal considers that the matter addressed in subparagraph 98(d) above becomes, using the words of the Guide, “less of a factor” given the overall pattern of travel and length of absence from Australia both overall and on each occasion of travel, particularly post the period Mr Philippou’s parents had both passed away (where Mr Philippou travelled to Cyprus yearly, at roughly the same time each year, for generally most of each year); and
(f)as such, the Tribunal is of the view that the pattern of Mr Philippou’s travel does not support Mr Philippou being a resident of Australia during the relevant periods. Whilst the Tribunal may have had further to consider in this regard, regarding the period 26 November 1992 to 23 January 1995, where Mr Philippou’s presence in Australia was greater than at other times (in the range of 50%), given the lack of corroborative evidence regarding Mr Philippou’s movements during that time, the Tribunal considers it is not required to do so.
Any other matter relevant to determining whether the person intends to remain permanently within Australia
[11] The Tribunal reiterates that referring to the respective periods as the “South Africa period” and the “Cyprus period” is done for no reason other than to differentiate the periods of time during which Mr Philippou travelled to attend to business matters as opposed to family matters. The Tribunal does not (as it is not required to) otherwise distinguish those periods for the purpose of its consideration and findings under subsection 7(3) of the Act.
At hearing, Mr Philippou said that he did not make the decisions that he had in his life (regarding his travel, his family and his business) on the basis that he would make an application for pension 15 years later and asked the Tribunal to take into account the matters addressed at paragraph 72 above.
In his written submissions, Mr Philippou said, with respect to subsection 7(3)(f) of the Act (R4, pages 4 and 5):
I voluntarily chose to immigrate to Australia in 1992, to make a new home for myself and my family. From that time onwards, I have viewed, lived and treated Australia as my home. Every part of my life was and is here, my family, my friends, my home, my doctors, my dentists, my medical insurance, my social clubs and all my ties were and are all here. This is my home. Unfortunately circumstances were such that I had to travel to South Africa and Cyprus as explained above, but I never viewed or treated either of those countries as my home after I chose to immigrate to Australia. I might have had a need to travel, but I always and repeatedly returned home as Australia is and was where I reside. Returning back here was never as a holiday as it was always returning to where I have set up my life and where I have chosen to live.
At hearing, Mr Burgess noted that subsection 7(3)(f) of the Act was the only provision within subsection 7(3) of the Act that “looks at intent” and that while the Tribunal should give “some weight” to this factor, it should give more weight to the other factors (in subsection 7(3) of the Act), especially in relation to the frequency and duration of Mr Philippou’s travel.
On the available evidence, including Mr Philippou’s statement at paragraph 100 above, the Tribunal finds the factor set out in subsection 7(3)(f) is neither strongly in favour of or against Mr Philippou being a resident of Australia during the relevant period.
CONCLUSION
Mr Philippou has immediate family in Australia (his ex-wife and children) and when in Australia, Mr Philippou lives in a dwelling on the same property as the main residence where his ex-wife and children live. During the relevant periods, Mr Philippou also had immediate family in Cyprus and South Africa.
Similarly, while Mr Philippou has some financial ties and assets in Australia, he also had business ties in South Africa (arguably, up until 2014) and still has assets in Cyprus.
While the Tribunal does not question that Mr Philippou has cared for and taken responsibility for his family in Australia, it is also clear from the extent of Mr Philippou’s physical presence in Cyprus during the relevant periods, and his evidence regarding the level of care he provided his parents at the time, that Mr Philippou spent significantly more time with his parents in Cyprus than he did with his family in Australia, and that given his caring responsibilities for his parents, the Tribunal regards those ties as stronger for the purposes of its considerations under subsection 7(3) of the Act.
While no one criteria in subsection 7(3) of the Act can be determinative of the matter, on the evidence before it the Tribunal is unable to point to any factor or factors in subsection 7(3) of the Act which strongly supports Mr Philippou being a resident of Australia during the relevant periods. The Tribunal finds that even if there had been such a factor or factors, after taking all factors into account, Mr Philippou’s pattern of sustained absence from Australia over a period of more than 20 years would overcome any such factor.
As such, the Tribunal finds that Mr Philippou was not an Australian resident (as defined in subsection 7(2) of the Act) during the relevant periods and his rate of age pension for that period should be determined on the basis that he did not satisfy subsection 7(2) of the Act for the relevant periods.
DECISION
The Tribunal sets aside the decision of the AAT1 dated 6 June 2017, and, in substitution, decides that Mr Philippou’s rate of pension (in the context of “Schedule 11 – Cyprus” of the Social Security (International Agreements) Act 1999)) should be determined on the basis that he did not satisfy subsection 7(2) of the Social Security Act 1991 (Cth) for the periods:
a)26 November 1992 to 23 January 1995.
b)7 April 1996 to 28 February 1999.
c)28 April 2000 and 25 September 2016.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member LM Gallagher and Member C Edwardes.
...[sgd].................................................................
Administrative Assistant - Legal
Dated: 23 March 2018
Date of hearing: 31 January 2018 Applicant: Self-represented Advocate for the Applicant: Mr Peter Gregory Representative for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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