Pilic and Secretary to the Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 193

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1015
GENERAL ADMINISTRATIVE DIVISION
  Re:         DUSAN PILIC
  Applicant

And:SECRETARY TO THE
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             22 March 2002
Place:            Melbourne
Decision:      The decision under review is affirmed.

(sgd) M.J. Carstairs
Member

SOCIAL SECURITY –disability support pension – Australian resident
Social Security (Administration) Act 1999 s29
Social Security Act 1991 s7
Re Clifopoulos and Secretary to the Department of Social Security (1995) 36 ALD 745

REASONS FOR DECISION

22 March 2002 M.J. Carstairs, Member

This is an application by Dusan Pilic (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 28 February 2001. The SSAT affirmed a decision of a Centrelink delegate of the respondent, that the applicant's claim for disability support pension should be rejected, as the applicant was not an Australian resident.
At the hearing the applicant represented himself and was assisted by an interpreter in the Serbian language. The respondent was represented by Mr D. Perdon, an advocate with Centrelink.
The documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 were in evidence. Both parties had lodged Statements of Facts ad Contentions.
BACKGROUND
The applicant was born on 9 October 1940 and is now aged sixty-one. The background to this matter is well set out in the decision of the SSAT and the parties agreed to the following factual background:

Mr Pilic was born in Yugoslavia and lived there until 1971 when he first came to Australia.
He returned to Yugoslavia in 1980 for a two-month holiday and in 1981 for further holiday.
In October 1989 he returned to Yugoslavia for three years. He returned to Australia at the end of 1992.
He claimed disability support pension in July 1993. This claim was unsuccessful and he did not appeal the decision.
In September 1994 he returned to Yugoslavia and underwent surgery.
On 5 October 2000 the applicant returned to Australia.
His wife remained in Yugoslavia.
He owns a flat in Yugoslavia. His wife lives in the flat. He used the proceeds from the sale of property in Australia to purchase the flat in Yugoslavia.
He has a Commonwealth Bank account in Australia.
He has no bank account in Yugoslavia. He is an Australian citizen and uses an Australian passport. He has a current Victorian driver's licence and a Medicare card.
He brought clothes with him when he came to Australia but not furniture. He is living in a boarding house.

The applicant claimed disability support pension on 23 October 2000. His claim was rejected on 17 November 2000 on the basis of residence. The applicant sought review by the SSAT. The SSAT affirmed the decision that he was not residing in Australia. The applicant then sought review by this Tribunal on 6 August 2001.
EVIDENCE
The applicant told the Tribunal that he wished to take the rejection of disability support pension by Centrelink to Canberra so that the facts could be put before Prime Minister Howard. He said that he had been unfairly treated in being rejected for a pension as he is an Australian citizen. He said that he is hungry and destitute.
The applicant told the Tribunal that he had been married three times, first at the age of eighteen. The next marriage was at the age of twenty-three. He did not wish to give any information about his current situation except that his wife was of a different nationality and some years older than he. He said he was unsure of the date of her birth. He also said that he was unsure if his wife was still alive as he had lost contact with her.
The applicant confirmed that he owns the flat in Yugoslavia. He said that his wife was living there and that he lived there with her before he came to Australia, but not all the time as he was going to other places in Yugoslavia. He said he had undergone surgery in Yugoslavia before his most recent return to Australia. His operations were undertaken at different places. He said that he stayed with relatives on other occasions when he was not staying at the flat with his wife. However, he refused to provide further information about these relatives. He said, It was the war…relatives just look after themselves. He said that he has seven sisters and four brothers, none of whom are in Australia. He said they are scattered around the world. He was unsure of their present locations: I don't know, nobody writes to me, maybe they have died.
The applicant said that in Yugoslavia he had also lived on the proceeds from the sale of a house in Australia. When these were exhausted he relied on Caritas, a charitable organisation. He acknowledged, in cross-examination, that on occasions he worked for Caritas. He said that he had to pay for his surgery and it was more expensive because of the war. However, he could not recall what he had paid. He said that his wife had money in an account, which was money they had both put aside. He said that he would have to pay this money back to her if she is alive. The money he brought with him to Australia on his most recent return in October 2000 (an amount recorded at T3 as $1980.71) was money he had saved from trading in American dollars.
The applicant said that in Australia he was living in a boarding house, free of charge, but did not wish to disclose further details of the arrangement, as he did not want the matter to be made public. He said that he was hungry and gets food vouchers from St Mark's House of Welcome in Brunswick Street and goes there daily for breakfast and lunch. He said that he had only some $4.00 at the date of hearing.
The applicant reiterated at several points in his evidence that he did not want to discuss other matters and had lived through the war in Yugoslavia. He believes himself to be constantly followed and he would not have come back to Australia except for the war and the hatred he experienced among people. He returned to Australia on a one-way ticket. He said he did not vote in Australian elections while in Yugoslavia as the consulate was some 200 to 300km away from where he was living, but had voted in the most recent Federal election in 2001, after his return to Australia.
CONSIDERATION OF THE ISSUES
Section 29(1) of the Social Security (Administration) Act1999 (the Administration Act) provides that:
29(1)       Subject to sections 30, 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.
Section 29(2) provides that if a person is not an Australian resident at the time when a claim is made, the claim is taken as not having been made.
The term Australian resident is defined in s7(2) and s7(3) of the Social Security Act1991 (the Act) as follows:
7(2)        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.
…
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.
The applicant is an Australian citizen and therefore meets the requirements of s7(2)(b). What is in issue is whether he meets the definition of residing in Australia, which requires that the factors, amongst any others relevantly raised, in s7(3) must be considered.
The applicant submitted that he had come back to Australia in 2000 with the intention of remaining here. In submissions filed on his behalf before the hearing (4 December 2001) it was submitted that the applicant had returned to the former Yugoslavia for surgery and while there, between 1994 and 2000, continued to regard himself as an Australian citizen, with the intention of returning to Australia. It was submitted that he is estranged from his wife and has few ties with the former Yugoslavia. Additionally, it was submitted that the applicant has Australian citizenship, a long history of working in Australia, travels on an Australian passport and holds a Medicare card.
The respondent submitted, on the matters raised in s7(3) of the Act, that the applicant has lived in a rooming house since his return to Australia, whereas he owns a residence in the former Yugoslavia; he has no direct relatives in Australia though he has some relatives by marriage here; that the applicant has no means of support in Australia and has lived overseas since 1989 apart from the two-year period (1992-1994) when he returned to Australia.
In coming to a decision the Tribunal has taken account of the relevant documents, oral evidence, and written and oral submissions. The principles set out in s7(3) of the Act codify the criteria looked at by the courts in deciding whether a person is a resident. They provide a guide to the decision-maker in determining a person's intention as to their place of residence (Clifopoulos and Secretary to the Department of Social Security (1995) 36 ALD 745). The Tribunal must decide the question at the time of a claim. In the applicant's case the question is to be determined as at November 2000.
The evidence of the applicant that he intended to stay in Australia at the time of the claim is not conclusive on its own. That evidence has to be considered against the other evidence through which intention may be manifested. The evidence must be taken as a totality.
The Tribunal acknowledges that the applicant lived in Australia in the past and worked here for some eighteen years. However, in terms of other matters to be considered in assessing whether the applicant was a resident at the time of his claim, the Tribunal notes that the applicant now lives in Australia in a rooming house paying no rent, but jointly owns a flat that his wife is living in overseas.
The applicant has no immediate family in Australia. His wife is in Yugoslavia. The applicant was not prepared to discuss the nature of the relationship with his wife and the Tribunal therefore has no reason to accept that the marriage has broken down. The applicant gave evidence that he lived at the flat with his wife at times, when he returned to Yugoslavia in 1994. He also gave evidence that she had assisted with money for his aeroplane ticket to Australia. He referred to them saving money together. He signed a statement that he would sell the flat if his wife passes away (T17). In November 1998, the applicant had no financial or business ties within Australia. He has a bank account in Australia, though it has no money in it at the present time. He has no bank account in the former Yugoslavia, though the documents suggest that his wife has an account there (T18) and receives a pension there. The applicant has no assets in Australia. He is not employed in Australia.
The Tribunal accepts that the applicant has not lived in Australia since 1989 apart from the two-year period in 1992-1994. Consideration must be given as to the purpose behind the applicant's travel outside Australia. The applicant submitted that he was in Yugoslavia primarily for medical reasons and then was caught up because of the war. However, his evidence on this was vague and the Tribunal was not satisfied that the applicant was fully disclosing information about the medical treatment or the period or places in which it occurred. The Tribunal did not accept that the applicant was in Yugoslavia for the period that he remained there for reasons of health alone.
For these reasons the Tribunal is satisfied that at the date of the claim the applicant was not residing in Australia. The applicant was only physically present in Australia for two of the previous twelve years. The bulk of his ties in assets and his family ties were in Yugoslavia and associated with his wife. Because he was not an Australian resident at the time of the claim, the disability support pension claim is taken as not being made, because of the effect of s29 of the Administration Act.
DECISION
The decision under review is affirmed.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Date of Hearing:  7 December 2001
Date of Decision:  22 March 2002
Solicitor for the Applicant:           Nil — self-represented
Solicitor for the Respondent:       Nil — Mr D. Perdon, Advocate with Centrelink

[2002] AATA 193

22 March 2002

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Residency

Administrative Appeals

Social Security (Administration) Act 1999