Raad and Department of Family and Community Services
[2000] AATA 387
•18 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 387
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1219
GENERAL ADMINISTRATIVE DIVISION )
Re RICHARD RAAD
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms S M Bullock, Member
Date18 May 2000
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that Mr R Raad qualifies for Age Pension from the date of claim of 9 November 1998. (Sgd) Ms S M Bullock …………………………………. Member
CATCHWORDS
SOCIAL SECURITY – Age Pension – qualification – Australian resident – residing in Australia.
Legislation
Social Security Act 1991 ss 7(2), (3), 43(1), 51
Cases cited
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985)
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177
Re Mengi and Director-General of Social Security (1984) 6 ALN N320
Re Smith and Director-General of Social Security (AAT 2145, 22 May 1985)
Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)
Re Galati and Director-General of Social Security (1984) 6 ALD 538
Re Gnisios and Secretary, Department of Social Security (1996) 2(3) SSR 31
Levene v Inland Revenue Commissioners (1928) AC 217
Re Mrkonjic and Secretary, Department of Social Security (1998) 3 SSR 50a
Re Zaharkis and Secretary, Department of Social Security (AAT 11254, 20 September 1996)
Re Secretary, Department of Family and Community Services and Petric [1999] AATA 469
Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745
Re Gorsic and Secretary, Department of Social Security (1998) 53 ALD 231
Re Maniatis and Secretary, Department of Family and Community Services (1999) AATA 89
Re Doroftei and Secretary, Department of Family and Community Services [1999] AATA 255
Re Secretary, Department of Social Security and Zitko (AAT 9779, 12 October 1994)
Re Dimitriadis and Secretary, Department of Family and Community Services (AAT 13426, 4 November 1998)
Re Goodfellow and Secretary, Department of Social Security (AAT 8269, 8 October 1992)
References
The New Shorter Oxford English Dictionary (1993) Clarendon Press, Oxford
REASONS FOR DECISION
Ms SM Bullock
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by Mr Richard Raad ("the Applicant") concerning a decision made by the Social Security Appeals Tribunal ("SSAT") on 2 July 1999, that Mr Raad was an Australian resident as defined in sub-section 7(2)(a) of the Social Security Act 1991 at the date of application for Age Pension ("the Act") and therefore did not qualify for an Age Pension. The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services that as at 9 November 1998 Mr Raad did not qualify for an Age Pension (T40). The ARO's decision affirmed the original decision of a delegate of the Secretary, of the Department of Family and Community Services made on 3 December 1998 (T15).
A hearing was held before the Tribunal in Sydney on 7 January 2000. Mr Raad attended the hearing and provided oral evidence. He was represented by Ms M Sripathy, Solicitor with the Welfare Rights Centre, Sydney. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Mr G Lozynsky, Departmental Advocate. The Tribunal admitted into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-41) and the following exhibits:
Exhibit No Description Date
A1 Letter to Mr R Raad from M Hughes, NSW Department of Housing 4 August 1999
A2 Letter "To whom it may concern" from Samih Zreika, Secretary, Lebanese Moslems Association 31 December 1999
A3 Applicant's Statement of Facts and Contentions 6 January 2000
R1 Letter to Mr G Lozynsky from Mr C Maunder, NSW Department of Housing 11 January 2000
R2 Respondent's Statement of Facts and Contentions 11 January, 2000
R3 Letter to Mr Lozynsky from R Webb, Deputy Commissioner of Taxation, Australian Taxation Office 11 January, 2000
LEGISLATION
A determination of this matter requires consideration of the provisions of the Social Security Act 1991 ("the Act") relating to qualification for an Age Pension.
Section 43 of the Act deals with qualification for Age Pension requiring that a male claimant be a person of 65 years of age and have 10 years qualifying Australian residence. As relevant, subsection 43(1) of the Act states:
"43 Qualification for age pension
(1) A person is qualified for an age pension if the person has reached pension
age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997 - the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997"
Section 48 of the Act deals with making a proper claim for pension and "proper claim" is defined within section 49 of the Act as it relates to the form. Section 50 of the Act relates to the manner of lodgment and section 51 deals with the claimant's residence or presence in Australia. As relevant, section 51 of the Act states:
"51 Claimant must be Australian resident and in Australia
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."Subsection 7(2) of the Act defines an Australian resident and as relevant states:
"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)the holder of a special category visa who is likely to remain permanently in Australia;
(iv)the holder of a special purpose visa who is likely to remain permanently in Australia."
To determine whether a claimant resides "in Australia", the Act provides criteria for consideration within subsection 7 (3) of the Act. As relevant, subsection 7(3) of the Act states:
"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."
ISSUES
There is no dispute that Mr Raad meets the criteria of being 65 years of age at the time of the claim and having lived in Australia for ten years. Mr Raad is also an Australian citizen.
The sole issue for determination in this matter is therefore whether or not Mr Raad was an Australian resident as defined within sub-section 7(2)(a) of the Act as at 9 November 1998, the date he claimed Aged Pension.
BACKGROUND
10.The following information is provided by way of background information and the facts contained herein are not in dispute.
Mr Raad was born in Tripoli, Lebanon on 3 August 1933 (T3). He is the eldest child of a family of two brothers and two sisters.
Mr Raad commenced school in 1943 and completed his school education in 1956. Mr Raad commenced a one year book-keeping course but did not complete this.
After leaving school, Mr Raad worked two to three years in an office in a refrigeration company.
Mr Raad migrated alone to Australia on 16 March 1968 (T5) aged 34 years. There were no family members living in Australia at that time. Initially Mr Raad lived in a boarding house in Redfern.
One month after arriving in Sydney, Mr Raad found work at Bridge Motors for about six to eight months. He then worked in various process worker positions including in a plastics manufacturing factory, and at Namco Industries.
From April/May 1972 until 1986, Mr Raad was employed by the then New South Wales Public Transport Commission as a bus conductor. Later Mr Raad undertook a bus driver training course and subsequently became a bus driver.
On 2 June 1972, Mr Raad was granted Australian citizenship (T6, P36).
In 1974, Mr Raad commenced living in rental accommodation, having previously lived with friends.
In July 1974, Mr Raad visited Lebanon for a family holiday and returned to Australia on 16 August 1974.
Mr Raad's father died in 1974.
On 6 February 1982, Mr Raad left Australia for Lebanon (T5, P29), returning to Australia in November 1982 (T38, P96). He returned to his work at the now named Urban Transit Authority.
In August 1986, Mr Raad ceased employment with the Urban Transit Authority.
Mr Raad left Australia once more for Lebanon in August 1986, returning to Australia in February 1992 (T5, T38).
On 29 May 1993, Mr Raad again left Australia for Lebanon (T38) returning to Australia on 4 December 1995.
In early June 1996, Mr Raad departed Australia for Lebanon (T38) returning to Australia on 7 November 1998.
On 9 November 1998, Mr Raad lodged an application for an Age Pension (T3).
On 3 December 1998, Mr Raad's was advised that his application for an Age Pension was rejected by a Departmental delegate (T15).
Mr Raad appealed to an ARO against the Department's decision, who on 28 May 1999 affirmed the decision of the Departmental delegate (T40).
On 28 May 1999, Mr Raad appealed to the SSAT against the ARO's decision (T41).
On 2 July 1999, the SSAT affirmed the decision not to grant the Age Pension (T2).
On 27 July 1999, Mr Raad made an application for review to the Tribunal stating:
"I am seeking review of the decision by the Social Security Appeals Tribunal as I believe that I was not treated fairly at the Tribunal, they accused me that I had a return ticket to Lebanon and I showed them proof that I had a one way ticket and they also put words in my mouth regarding my intention to return to Lebanon, they accused me of lying about the date of my mother's death I have found out since that there was an error in the translation of the death certificate. They also humiliated me very much as I was told to go back to Lebanon and apply for the Lebanese pension and they are well aware that there is no such thing in Lebanon. I have no intention in returning to Lebanon as I now have very limited contact with any one there since the death of my mother. I was very close to her and the Tribunal did not take this into consideration, the rest of my family there are either unemployed or on a very low income, hardly enough to take care of themselves.
…
I have taken the necessary steps to settle here in Australia but, without an income and no chance of finding employment at this stage in my life, and it is impossible for me to return to Lebanon financially and to a situation where there is no hope at all for me, due to my age and special circumstances, I request that you reverse the decision by the Tribunal on compassionate grounds.
I am attached to Australia, I came here in 1968 and have very fond memories of this country. I have become an Australian Citizen, I have worked here for over 18 years and I feel I belong here, and I will die here." (T1, p3)In December 1999, Mr Raad lodged a subsequent claim for Age Pension which has since been granted, the first payment occurring in January 2000.
EVIDENCE OF MR RAAD
11.Mr Raad told the Tribunal that he has been back to visit Lebanon on a number of occasions and the trips were of various lengths and for a variety of purposes. In this regard he told the Tribunal that he had either visited Lebanon on holiday or to fulfil family responsibilities.
In 1970, Mr Raad's younger brother came to Australia.
13.In 1974, Mr Raad travelled to Lebanon to have a short family holiday and to see his father who was ill. Mr Raad's father died soon after this visit.
14.Prior to Mr Raad travelling to Lebanon in 1974, he was working at the then Public Transport Commission and was able to obtain leave on that occasion and later return to his job after his trip to Lebanon.
15.In 1982, Mr Raad returned to Lebanon at the request of his mother who was very ill. Mr Raad's younger brother also returned to Lebanon with him at this time. Mr Raad explained to the Tribunal that he felt great responsibility as the eldest male child, especially since his father had died in 1974. Mr Raad stayed in Lebanon for eight or nine months on this occasion. He told the Tribunal that he had not intended to stay this long in Lebanon, but his mother insisted that he stay with her. Mr Raad was not employed in Lebanon during this period however he assisted his mother in tending to her 5,000 square metre orchard which was in production during the three months of summer, July through to September. The orchard produced peaches, apples and grapes. Sometimes Mr Raad was assisted in the orchard by one of his brothers who did not live on the farm. Mr Raad survived on the income he raised from working on the orchard and also had taken some funds with him from Australia. It was Mr Raad's intention, he told the Tribunal, that when he left Australia in 1982 for Lebanon he would return later to his Australian job. Unfortunately, he was away longer than he had anticipated and had to resign. When Mr Raad returned to Australia he reapplied for employment within the Public Transport Commission and successfully obtained his old job.
16.In 1986, because of prostate gland problems, Mr Raad ceased his employment at the Urban Transit Authority. His prostate condition produced symptoms including frequency of urination and on occasions, incontinence. Mr Raad told the Board that he was simply unable to carry out his duties as a driver and believed that it was better to resign his position rather than be "sacked".
17.Later in 1986, Mr Raad returned to Lebanon with his younger brother. Mr Raad took with him approximately $4,500.00 which arose out of his superannuation and he used this to live on in Lebanon. The reasons for his return at this time were twofold. Firstly, Mr Raad had been experiencing difficulties with his younger brother who had become increasingly moody, nervous and had been taken by Mr Raad to various specialists and was hospitalised. Mr Raad had wanted to arrange for ongoing treatment for his younger brother in Australia, but his brother insisted that he return to Lebanon. Secondly, Mr Raad's mother was exerting considerable pressure for Mr Raad to return to Lebanon. Back in Lebanon in 1986, Mr Raad's younger brother's health remained very poor, Mr Raad told the Tribunal. At the same time, Mr Raad was required to take his mother to her doctors and to purchase her medications.
18.Mr Raad described his brother as aggressive and depressed, often locking himself in his room. Up to this point Mr Raad and his younger brother had been living in Australia in rental accommodation. There had been an attempt by Mr Raad to purchase his own apartment but this failed principally because of financial difficulties. When Mr Raad realised he would have to take his brother back to Lebanon, he found that he had no other option but to sell the few pieces of furniture and household items he had. Mr Raad stated that he could not store the furniture in Australia as no family members or friends had any storage space and he simply could not afford to pay storage fees. The only practical solution for him therefore was to sell his possessions at that time. Mr Raad also had no idea how long he would be required by his mother and his younger brother to remain in Lebanon.
19.In 1992, Mr Raad's mother gave him permission to return to Australia. He stated that at that time his mother's health had slightly improved and that she would be able to live with his younger brother. Mr Raad told the Tribunal that he thought his mother realised that he wanted to return to Australia although he had never actually articulated this to her.
20.When Mr Raad returned to Australia in 1992 he applied for departmental benefits for the first time. At this time he was living with Hassan Raad the son of his first cousin, Osman Raad. Osman Raad had migrated to Australia in 1969 and he was married with nine children, five boys and four girls. Mr Raad stated that he had a very close relationship with his cousin and his children. Mr Hassan Raad was happy to have Mr Richard Raad stay with him, his wife and three children.
21.In 1993, Mr Raad received another request from his mother to return to Lebanon as she was not well. When questioned as to why he had to return to Lebanon so soon after his last trip, Mr Raad stated "she is my mother – I had to go". Mr Raad remained in Lebanon until 1995, living with his mother and younger brother. His brother's health was still problematic, sometimes he would seem well while at other times he was extremely aggressive, angry, impatient and "isolating himself from the world." At this time, Mr Raad's income was derived from the selling of produce from the orchard and also his brother-in-law in Lebanon owed him some money which was repaid. Mr Raad told the Tribunal that he came back to his home country of Australia in 1995 and his mother was happy for him again to return. Once more in Australia, Mr Raad stayed with his cousin's child, Mr Hassan Raad.
22.While in Lebanon, Mr Raad explained that he was sometimes aware of what was happening in Australia. He described however that it was difficult to regularly obtain news about Australia. Referring to contentions by the ARO (T39) in which it was noted that Mr Raad was unaware of the Bicentennial, or of the "Thredbo" or "Port Arthur" tragedies, Mr Raad stated that he could not help it if he did not hear the news of such events. It was not that he was not interested it was just that he was not aware of such occurrences.
23.Mr Lozynsky asked Mr Raad about documents written on his behalf at the time of his claim for pension in November 1998, which had been interpreted by an Arabic interpreter before Mr Raad had signed. In this regard, Mr Raad had signed a statement on 16 November 1998 indicating that he was going to stay in Australia for seven months then return to Lebanon to care for his sick mother. Mr Raad stated that the contents of the document were not true but that he had been compelled to sign the statement. Mr Raad told the Tribunal that he had stood up to leave that interview on 16 November 1998, because he did not wish to sign this untrue document, but had been told by the departmental officer that if he did not sign it, he certainly would not get any pension. Mr Raad told the Tribunal, "I did not say this". Noting a further file note by a Centrelink officer of a conversation with Mr Raad, the Applicant stated that he had denied the statement of November 1998 in a further written statement by him signed on 3 December 1998 (T11). In that statement he described his feelings on 16 November 1998 of being "nervous and confused and was not concentrating" (T11).
24.Asked about a further statement made on 11 January 1999 (T24), in which Mr Raad wrote:
"…
I do not intend to go back to Lebanon now. I do eventually plan to go back overseas to Lebanon. If any of my circumstances change I will notify the department within fourteen days." (T24, p66)
25.Mr Raad noted that it was and is his intention to stay in Australia but that he may visit Lebanon at a later date. He denied that his statement indicated that he would be returning to live in Lebanon.
26.Mr Raad was also questioned about the SSAT's finding that his evidence to it was vague and equivocal (T2, para 10). Mr Raad said he told the SSAT that he intended to stay and live in Australia. He further stated to the Tribunal that he did not know why the SSAT would consider his evidence vague. He recalled not answering the SSAT's question as to whether or not he intended to make a trip to Lebanon and perhaps this was why the SSAT considered him vague. Mr Raad reiterated that he may go to Lebanon for a holiday or to visit his family but this did not mean that his home was not in Australia. Mr Raad stated that this was the message he was trying to convey in his application for review to the Tribunal (T1, p3).
27.Mr Raad told the Tribunal he was unable at that time to find employment in Australia when aged approximately 62 or 63 years of age. Mr Raad stated that in early 1996 he received a message from his brother indicating his mother was very ill in hospital and he should return to Lebanon immediately. Unfortunately, Mr Raad did not have the funds available to purchase an airline ticket immediately and it was not until around June 1996 that he returned to Lebanon. When he arrived, Mr Raad found out that his mother had died and his family had not told him.
28.Mr Raad stayed in Lebanon from June 1996 to November 1998. Again, he tended to his mother's orchard and looked after his younger brother. As it was summer, his other local brothers were helping out in the orchard. Mr Raad stated that he could not return to Australia until he organised care for his younger brother. He has also stated in various documents that because of the war in Lebanon and the situation of him having an Australia passport, it was difficult for him to leave the country. Mr Raad did not agree with Mr Lozynsky's proposition that other Lebanese people were able to leave Lebanon during this time. Mr Raad stated that in his circumstances it was difficult to return for many reasons. Eventually Mr Raad asked one of his sisters to care for their younger brother and she agreed.
29.Mr Raad returned to Sydney in November 1998 and he lived again with Mr Hassan Raad until July 1999. Mr Hassan later purchased a new home and there was no room for Mr Richard Raad to continue living with the family. Mr Raad was offered accommodation with a long standing friend, Mr Melham, whom he had know since 1970 in Australia, but had also known him before in Lebanon.
30.Mr Raad stated that he currently in Australia he has his extended family of cousins and nephews and nieces who he visits regularly or who visit him. He has been a member of the Lebanese Moslems Association since 1970. This contact with family and the Lebanese community provides Mr Raad with social activity and support as well as meeting his spiritual requirements.
31.Mr Raad reiterated that he considers Australia his home. He may not have brothers or sisters in Australia, but as far as he is concerned, he has family in Australia and his cousin particularly is considered by him to be like a brother. Mr Raad stated that he is an Australian citizen and has worked in Australia for over 18 years. He considers this country his home and believes that in Australia he will be better provided for in regards to his health, financial situation and emotional support.
32.Mr Raad wished the Tribunal to understand that when his mother and father were alive he thought it was his responsibility to look after them and go to Lebanon, particularly when his mother asked. This connection with Lebanon through family responsibility to his parents had ceased.
33.Mr Raad stated that he had tried to obtain "Housing Commission" accommodation soon after he arrived back in Australia by making an informal enquiry of the relevant authority but he was told he could not apply because he did not have any income. Mr Raad agreed that he had later formally applied for accommodation with the Department of Housing and he acknowledged the letter to him from M Hughes of the New South Wales Department of Housing, dated 4 August 1999 (Exhibit A1). This correspondence related to an application made to the Department of Housing on 29 July 1999 as acknowledged by Mr C Maunder of the Department of Housing (Exhibit R1).
34.Mr Raad was questioned about his lodgement of taxation returns and told the Tribunal that he had lodged a taxation return in 1985/86 after he ceased employment with the Urban Transit Authority. Mr Raad could not explain why the Australian Taxation Office indicated that it had no tax records from him since 1981 (Exhibit R3). The Tribunal noted an Australian Taxation Office letter of 17 March 1999, indicating that there had been no tax returns lodged by Mr Raad since 1980 (T29). Therefore there was a discrepancy in relation to the Australian Taxation Office records (as contained in T29 and Exhibit R3).
35.Mr Raad told the Tribunal that he had voted in the Australian Federal Election in 1998 by voting at the Australian Embassy in Lebanon. After the hearing in this matter, Mr Lozynsky asked that a document dated 25 January 2000 from the Australian Electoral Commission be taken into account. This document indicated that there was no record of Mr Raad voting in the October 1998 Federal Election as he was not enrolled at the time. Mr Raad had no opportunity to answer this particular document and the Tribunal will make some findings in relation to it in the latter part of the decision.
36.Finally, Mr Raad was questioned in relation to a statement he had made to the ARO that after his mother died he had to settle a dispute between his siblings over a piece of land. Mr Raad told the Tribunal that he had tried to mediate between his brothers and sisters in relation to this particular issue but had not been successful. The matter was never resolved. In terms of the distribution of his mother's estate following her death, Mr Raad told the Tribunal that nothing had been done about this and that the land and its house had not been divided between the children. He did not know when or if this might happen.
37.Mr Raad told the Tribunal that his Australian passport had expired in 1997 but he could not afford to have it renewed straight away. He finally had it renewed in 1998. In relation to his Lebanese passport, Mr Raad stated that it had expired in 1968/69 and therefore he could not have used it, as had been claimed, to receive other departmental benefits.
38.Mr Raad concluded that he loved Australia, its people and its way of life. Mr Raad wished the Tribunal to understand that he returned to Australia because he intended to stay. He loves the peace of this country and believes that his future is more secure in Australia than elsewhere. With the death of his father and particularly his mother, the main reason for his return to Lebanon had now ceased. Mr Raad has a very good relationship with his extended family and the Lebanese community within Australia and, as he has stated in documents, he intends to stay in Australia and die in this country. That is not to say, Mr Raad explained, that he would not visit his family for a holiday in Lebanon.
SUBMISSIONS
39.Ms Sripathy submitted on Mr Raad's behalf that on 9 November 1998, Mr Raad was already 65 years old and had ten years qualifying Australian residence and that in the last 30 years he had lived in Australia for close to 20 years.
40.Section 51 of the Act requires claimants for Age Pension to be in Australian on the day on which the claim is made. Australian residence is defined in section 7 of the Act and requires that under sub-section 7(2)(a) the claimant resides in Australia. Further, one of the factors in subsection 7(2)(b) must also be satisfied. In Mr Raad's case, Ms Sripathy noted that he is an Australian citizen and therefore satisfies subsection 2(b)(I) of the Act.
41.Ms Sripathy referred the Tribunal to the concept of residence as discussed by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444 which noted at 449 - 450:
"…
There is a plethora of decisions, arising in various contexts but predominantly matrimonial cases and revenue cases, relating to the legal concept of residents. 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 for ever..
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 Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248…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…together with an intention to return to that place and an attitude that that place remains in "home"…It is important to observe firstly, that a person may simultaneously be resident in more than one place…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 residents of a place in which a person is not physically present depends upon an intention to return and to continue to treat the place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
…"
42.The meaning of residence in Hafza (supra), although limited to the effect of section 89 of the 1947 Social Security Act, still accords with decisions of various tribunals on "residents generally", Ms Sripathy submitted, noting specifically the decision of Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985). Also of relevance, Ms Sripathy submitted, is Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177 which dealt with temporary absence from home which could in fact extend over some length of time, even years. In that decision, the Tribunal noted the importance of a claimant's intentions in determining his or her residence. At N184 the Tribunal commented:
"…
As has been pointed out on a number of occasions (see for example recently Smith's case (1985)7 ALN N371 subjective considerations are the golden threads that consistently run through the fabric of social security situations. Having regard to the nature of the questions that have to be answered, this is not surprising. Subjective considerations (like pain) are real and tangible and can be proved like any other fact. Where they depend upon the word of the person most closely effected, satisfactory proof usually involves corroboration by objective fact. The absence of those facts, however, does not necessarily mean that the subjective consideration has not been proved.
..."
43.Ms Sripathy contended that even if the temporary absence turned into a lengthy period away from Australia, the issue to determine was the person's intention to return and this has been emphasised in decisions such as Re Mengi and Director-General of Social Security (1984) 6 ALN N320 and Re Smith and Secretary, Department of Social Security (AAT 2145, 22 May 1985).
44.The Tribunal was further referred to Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992) in which the Tribunal commented that sub-section 7(3) of the Act did not provide an exhaustive list of factors determinative of residency in Australia and also noted the need to consider the converse of factors. In Mr Raad's case, he had been resident in Australia since 1968 although there had been periods of absence in 1974, 1982, between 1986 and 1992 and between 1993 and 1995 and finally from 1996 until 1998. Despite these absences, the sole issue for determination by the Tribunal in this matter is, Ms Sripathy submitted, whether Mr Raad was "residing in Australia" on the day on which he made his claim for Age Pension, that is, on 9 November 1998. Ms Sripathy noted that in a subsequent claim for Age Pension made in December 1999, Mr Raad had been granted the Age Pension with payment commencing during January 2000.
45.Referring to the factors listed in sub-section 7(3) of the Act and the need to consider the ties to Australia, Ms Sripathy noted that in Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745, the Tribunal accepted, at 747, that the converse of each factor could be considered:
"…
The principles set out 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 constitute 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,…when considering the criteria, the decision-maker is also entitled to consider the converse of each factor...
…"
46.Ms Sripathy submitted that the question of whether a person is "residing in Australia" must be considered in relation to the context of the enquiry. Often, the issue arises in the context of a migrant to Australian having spent some time prior to claiming an Age Pension in their country of origin, where they will inevitably still have some ties.
47.Much has been made Ms Sripathy submitted, of the alleged intention of Mr Raad to obtain an Age Pension and then leave Australia and return to Lebanon to live. Ms Sripathy urged the Tribunal not to make its decision based on prejudice and preconceived ideas. In so submitting, Ms Sripathy noted that the Age Pension is portable and this is part of the entitlement once qualification has been established.
48.Referring to Re Galati and Director-General of Social Security (1984) 6 ALD 538, that Tribunal suggested that in order to resolve the correct interpretation of "residing in Australia", it was necessary to determine the object and intent of those provisions. That Tribunal concluded that the terms and provisions of the legislation had been calculated as part of a policy to encourage immigration to individuals and families. In the light of this purpose and intent, that Tribunal held it was not permissible to incorporate into pension qualification a requirement that a claimant intend to reside permanently in Australia where the claimant had returned to Australia to claim a pension. As is noted in Re Galati (Supra) at 550:
"…
[Part 4.2 provides], subject to certain conditions, for portability of pensions granted to people who have not always lived in this country. One purpose of these provisions is to make this country more attractive to people from other countries. For almost 40 years, with varying intensity, we have encouraged people from other countries to come here. The extension of social security benefits to these people has been part of that encouragement….The conditions on which Parliament has chosen to permit portability are set out in the Act. Those conditions have encouraged many people to come to this country who have subsequently decided to remain here permanently. Others, so encouraged, have come and decided not to remain. It is as legitimate for those people who do not remain to take the benefits which were provided by the Act in order to encourage them to come here as it is for those who do remain. Australia, in effect…took a calculated risk when Parliament enacted these provisions with a view to making the country attractive to migrants….If it is considered that portability of pensions is undesirable, that is a matter for Parliament…
…"
49.Ms Sripathy turned to address each of the factors set out in sub-section 7(3) of the Act in the context of Mr Raad's circumstances.
(a) the nature of the accommodation used by the person in australia
50.Ms Sripathy submitted that Mr Raad has lived with his cousin's son, Hassan Raad, since his arrival in Australia in November 1998 until June 1999, and since then has been living with a close friend, Mr Abdullah Melham and his family and he is quite comfortable there. Mr Raad is a single man in his sixties and he has close relationships with his extended family members and friends in Australia. Seen in this light, Ms Sripathy submitted that it is not unusual for him to share accommodation in this way. In Australia Mr Raad's practice has always been to share accommodation over many years with various people.
51.Ms Sripathy also noted that Mr Raad received no income support since his arrival in Australia in November 1998, until very recently. As Mr Raad had recently received advice that he was to be granted an Age Pension from the date of his December 1999 claim, he was now in a position to consider his options for seeking alternate accommodation. He could now for example, make an application for housing with the New South Wales Department of Housing or consider renting.
52.It is also relevant to consider the converse of Mr Raad's accommodation situation when he was living in Lebanon. He also did not own property in his country of origin. Mr Raad lived in his mother's home which was shared with his younger brother. He does not own any property in either Australia or Lebanon. The dispute between his siblings over land in Lebanon is unresolved and Mr Raad stated that he did not want to be involved with this issue, Ms Sripathy contended.
53.Ms Sripathy noted that Mr Raad had initially made an enquiry of the New South Wales Department of Housing in relation to accommodation in late 1998 but did not lodge a formal application until mid 1999 as is evident from Exhibits A1 and R1.
(b) the nature and extent of the family relationships the person has in australia
54.Mr Raad migrated to Australia independently of his family in 1968. He has never married and has no children. Ms Sripathy submitted that over the past 30 years Mr Raad has formed a close relationship with his cousin Osman Raad who also lived in Australia for many years, having migrated here shortly after Mr Raad. Mr Osman Raad is married and has nine children and the Applicant has close relationships with some of his nieces and nephews who now live independently with their own families. Mr Raad also has various other extended family members living in and around Sydney. He has a network of friends in the community and a close connection with Moslem community around the Lakemba Mosque (Exhibit A2) Mr Raad has two brothers and two sisters in Lebanon. Both his parents have now died, his father in 1974 and his mother in 1996. Other than Mr Raad's younger brother who is psychologically unwell, his other siblings have married and have families of their own. In the past 30 years, Mr Raad's periods of living in Lebanon between 1986 and 1992, 1993 and 1995 and 1996 and 1998 were all prompted by the obligation he felt as the eldest son to care for his frail and elderly mother and sick brother. Since Mr Raad's mother died in 1996, one of his sisters has now moved closer to his younger brother and has promised Mr Raad that she will look out for this sibling. Mr Raad returned to Australia in November 1998 to recommence his life within this country as he had tried to do previously in 1992 and 1995. Mr Raad's pattern of regularly returning to Australia demonstrates that although he has connections with his family in Lebanon, he also has a life he has made for himself in Australia, where he worked and resided for most of his adult life since 1968, Ms Sripathy submitted.
(c) the nature and extent of the person's employment, business or financial ties within australia
55.Mr Raad worked in Australia for 18 years between 1968 and 1986. He ceased working in 1986 solely for health reasons arising out of his prostate problem. On his return to Lebanon in 1986, requested by his mother, Mr Raad provided care for her and his younger brother. He did not participate in paid employment in Lebanon since migrating to Australia in 1968. Mr Raad was supported financially while living in Lebanon by his mother. The family home and orchard business was owned by his mother and, its ownership has not been finally resolved between the family members since her death.
56.When Mr Raad returned to Australia in 1992 and again in 1995, he sought employment and claimed and was granted income support from the Department.
(D) The Nature And Extent Of The Person's Assets Located In Australia
57.Mr Raad has no assets or business ties in Australia or Lebanon. During the periods he lived in Lebanon, caring for his mother and younger brother, he worked on the family orchard only in the summer months to bring in income for his mother and himself. His other brother has maintained a closer connection to the orchard business over the years. In Re Gnisios and Secretary, Department of Social Security (1996) 2(3) SSR 31, Ms Sripathy noted that the Tribunal accepted care should be taken to ensure that poverty, lack of assets and lack of income do not count against an applicant by operation of factors contained in subsections 7(3)(c) and (d) of the Act.
(e) the frequency and duration of the person's travel outside australia
58.Mr Raad returned to Lebanon to see his family on numerous occasions since he migrated to Australia in 1968. While he was engaged in full time employment, he visited Lebanon during his annual holidays. When Mr Raad ceased full time employment in 1986, he returned to Lebanon for longer periods to care for his mother in her later years. Mr Raad returned to Australia in 1992 and looked for work. Being unsuccessful, he then returned to Lebanon in 1993 to again care for his mother. Mr Raad returned to Australia in 1995 with a desire to support himself. He went back to Lebanon in 1996 only because his brother asked him to come because of his mother's illness. It was only arriving back in Lebanon that he was informed that his mother had in fact died and that his younger brother was in need of a carer. Mr Raad returned to Australian in November 1998 after his sister and her family moved nearby and assured Mr Raad that she would look out for their younger brother.
Ms Sripathy contended that it was clear from Mr Raad's movements in the last 20 years that he has connections and obligations within his country of origin, Lebanon. Also true, however, is the fact that Mr Raad has a desire to maintain his connections to the life he has created for himself in Australia. Having migrated to Australia as an adult, and with no spouse or children, he still has strong bonds with his immediate family comprising previously of his mother and father and his siblings. As the eldest son in the family, Mr Raad had particular obligations to care for his mother and continues to have responsibilities for his youngest sibling who has been unwell for many years.
As a single man who has spent most of the 30 years of his adult life in Australia, he has strong ties to his extended family members in this country and also has a network of friends and community here. It is also relevant, Ms Sripathy submitted, that when Mr Raad travelled to Australia in November 1998 he returned on a one way ticket (T28).
(f) any other matter relevant to determining whether the person intends to remain permanently in australiaMr Raad has made several statements indicating his intention to live in Australia permanently (T1, T11, T24). In relation to the initial statement which he signed at the time of lodging his claim (T7), he stated that he did not write this statement and felt pressured by the Centrelink officer to sign it so that his claim would be processed. Ms Sripathy submitted that it should be noted that this statement is factually wrong where it says that Mr Raad "will be going back overseas to Lebanon to live with my sick mother" as his mother had in fact passed away in 1996. In relation to the factor contained in subsection 7(3)(f) Ms Sripathy noted Re Goodfellow and Secretary, Department of Social Security (AAT 8629, 8 October 1992) in which that Tribunal analysed section 7 of the Act, and at paragraph 23, specifically the relevance of the factor contained in subsection 7(3)(f) of the Act.
"…Sub-paragraphs (a) to (e) of that sub-section accord with the law as set out in the cases to which we have referred above and also sit naturally with the concept of considering whether a person resides, as specified in the definition of "Australian resident" in sub-section 7(2). Sub-paragraph 7(3)(f) does not seem to sit at all comfortably with the provisions with sub-sections 7(2) in that it requires consideration to be given to a matter which is more apt to determining a person's domicile, which is not relevant under the 1991 Act, than to determining where a person has his or her settled or usual place of abode."
In Re Clifopoulos (supra), that Tribunal also discussed the effect of subsection 7(3)(f) of the Act noting at 747:
"…
The relevance and importance of the factors that constitute the criteria will vary in each case. In the end, as is apparent from the wording in 7(3)(f), the criteria are there to guide the decision-maker in determining the person's intention as to the place of residence…
…"
In relation to Mr Raad's return to Lebanon in each case it was to his mother and younger brother that the trip related. Those circumstances have now changed in that his mother sadly is deceased and his younger brother is being cared for by a sister.
In light of all the factors discussed above, Ms Sripathy noted that the final decision in relation to whether Mr Raad resided in Australia at the time of his claim for Age Pension must be a global decision taking into account all of the factors which are relevant. In this regard, Ms Sripathy contended that no single factor will be conclusive in any circumstances. The Tribunal is required to take into consideration the criteria listed in sub-section 7(3) of the Act and to weigh the evidence for and against each criteria. This weighting process is complex but it is imperative that no preconceived notions or prejudices are present in the decision making process.
At the hearing, which Ms Sripathy noted is de novo, Mr Raad has given consistent evidence. In relation to statements that he has made to the SSAT, Ms Sripathy wished the Tribunal to note that Mr Raad was not represented before and he was not familiar with presenting evidence to either the Department or to the SSAT. Mr Raad has always maintained that he has been misunderstood in some of his statements and has consistently written and stated that he intends to live in Australia. In making its decision, Ms Sripathy further urged the Tribunal to consider that Centrelink staff, in the notation of Mr Raad's statements, have been quite prejudicial towards him and seemingly confirmed in preconceived ideas that he is going to claim an Age Pension and return to Lebanon. In relation to statements that Mr Raad was going to return to Lebanon in 1998 to look after his sick mother, Ms Sripathy asked the Tribunal to consider why would Mr Raad make such an obviously untrue statement. His mother had been dead for two years. Ms Sripathy also noted that despite the thread running through the departmental correspondence concerning the departmental officers' belief that Mr Raad was going to take his pension and return to Lebanon, a departmental officer had in fact decided to grant a pension, as was recorded in T26, a document prepared by an officer on 22 February 1999.
In relation to taxation information, Ms Sripathy submitted that Mr Raad had been consistent in stating that he last completed a tax return in 1985/86. Further, in relation to later information provided by Mr Lozynsky from the Australian Electoral Office that there was no record of Mr Raad voting in the 1998 Federal election, Ms Sripathy by letter of 1 February 2000, after the hearing, submitted that she objected to the tendering of the Australian Electoral Commission document because Mr Sripathy had no opportunity to question Mr Raad about this new information or any other relevant matter arising out of this late document. Providing the material at such a late stage in fact denied Mr Raad natural justice in that he had no opportunity to answer anything that such a document purported to raise. Further, Ms Sripathy noted that this document did not constitute new evidence and was irrelevant. She requested that the Tribunal not have regard to it or give it no weight.
Ms Sripathy contended with the benefit of hindsight available to the Tribunal, it could be seen that Mr Raad has resided in Australia for over 12 months since the day he lodged his claim for Aged Pension on 9 November 1998. Mr Raad has lived over the past year in Australia as his "home", maintaining his connections with his family and friends and participating in the Lakemba Mosque Community. A subsequent claim by him in 1999 for Age Pension has been granted, indicating the Department's view that he is a resident in Australia now.
In all the circumstances, Ms Sripathy submitted that the consideration of the factors in this case must lead to the conclusion that Mr Raad was resident in Australia on the day he lodged his claim for Aged Pension and accordingly he ought to have been granted the pension from that date.
THE RESPONDENT'S SUBMISSIONSMr Lozynsky contended that the Department's decision to reject Mr Raad's claim for Age Pension lodged on 9 November 1998 was correct. Mr Raad's intention was not to remain in Australia permanently, Mr Lozynsky submitted, and therefore, he could not be considered to be residing in Australia at the date of the lodgment of his claim. It was deemed therefore that Mr Raad was not an Australian resident under section 7 of the Act. As a consequence, Mr Raad's claim for Age Pension was not a proper claim pursuant to subsection 51(a) of the Act and subsequently Mr Raad's claim had been properly rejected.
Turning to the issue for determination as to whether Mr Raad was an Australian resident pursuant to section 7 of the Act, Mr Lozynsky submitted that Mr Raad fulfilled subsection 7(2)(b)(i) of the Act as he is an Australian citizen. Referring to Re Wybrow (supra) Mr Lozynsky noted that Deputy President McMahon had regard to the statutory factors in subsection 7 (3) of the Act. That Tribunal considered the list of factors determining residency was not exhaustive and should not detract from general observations made in relation to the ordinary concept of residence. The definition however did, that Tribunal concluded, compel a decision-maker to pay regard to "the enumerated factors". Mr Lozynsky submitted that the appropriate framework for consideration of the issue of residence was set out by Deputy President McMahon in Re Wybrow (supra) at 1026:
"…
In considering whether residence is established…a court considers a man or woman's whole environment, especially in relation to their spouse or family, and not merely a person's physical situation…
…"
In Hafza v Director-General of Social Security (supra), Mr Lozynsky referred to Wilcox J's statements that indicate that one must consider the term "residence" in terms of there being a temporal as well as an emotional connection with a particular place, a physical presence in that particular place and the intentions to treat the place as "home". Mr Lozynsky also noted comments in Levene v Inland Revenue Commissioners (1928) AC 217 at 222 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…'…"
Further, Mr Lozynsky, noted the Shorter Oxford Dictionary Third Edition ascribes the following meaning to the word "permanently" namely:
"Continuing or designed to continue indefinitely without change; abiding, lasting, enduring, persistent.".
Mr Lozynsky submitted that Mr Raad had no definite intention to remain permanently in Australia and this was the opinion formed by all of those who had been involved in the decision making and review process at the SSAT. Referring to the factors contained in subsection 7(3) of the Act, Mr Lozynsky noted Mr Raad's circumstances as follows:
(a) nature of the accommodationThe Respondent submitted that Mr Raad's accommodation in Australia was neither settled nor permanent at the time the claim for Age Pension was made, when consideration is given to the accommodation which Mr Raad occupied at his cousin's residence and currently, noting the accommodation in which he was presently residing. Mr Lozynsky referred the Tribunal to Re Schlageter (supra) in which it was noted:
"…
For a person to be residing in a country, he must have a settled home in that country. It need not be his only home but it must have some degree of permanence
…"
Mr Lozynsky referred to the fact that Mr Raad had applied for housing from the New South Wales Department of Housing in 1999 after his claim for the Age Pension but no assistance had been given. Mr Raad had also provided vague details about his future accommodation plans as noted in the Applicant's Statement of Facts and Contentions at paragraph 13(a) (Exhibit A3). In Australia, Mr Raad does not own any real estate. He did not have any separate rented accommodation but instead boarded with his cousin's son on a temporary basis and then with a close friend. Mr Lozynsky contended that Mr Raad had made temporary accommodation arrangements on his arrival in Australia in November 1998 which suggest that he did not intend to reside in Australia for a definite period. The Tribunal was referred to Re Mrkonjic and Secretary, Department of Social Security (1998) 3 SSR 50a and Re Zaharakis and Secretary, Department of Social Security (AAT 11254, 20 September 1996).
Mr Lozynsky asked the Tribunal to consider that Mr Raad was dependent upon the goodwill of distant relatives for his accommodation. In Lebanon however he had access to a house in his home village and had been residing with his mother and younger brother.
(b) Nature of family relationships in AustraliaMr Lozynsky submitted that Mr Raad's family ties in Australia are not deep in that most of his immediate family, namely two brothers and two sisters, live in Lebanon. Mr Raad's sister in Lebanon provides a great deal of assistance in caring for Mr Raad's younger brother who left Australia 12 years ago to seek medical treatment in Lebanon (T2). In Australia, Mr Raad's only relatives are his first cousins with whom he has stayed, a sister-in-law and her husband. In evidence to the SSAT, Mr Raad stated that "I have nothing here. Everything is in Lebanon" (T2, para 24). Therefore, Mr Lozynsky submitted, Mr Raad's family connections in Australia cannot be considered to be close given that his ties are still in Lebanon. Such circumstances were discussed by the Tribunal in Re Issa (supra).
(c) nature of employment, business or financial ties with australiaMr Raad has no employment, business or financial ties in Australia, Mr Lozynsky submitted. He has not worked in Australia since 1986 and his last tax return was lodged in 1980 as advised most recently by the Australian Tax Office (Exhibit R3). Mr Raad has no assets in Australia apart from a bank account which does not contain a great deal of money. Presently, Mr Raad's sole source of income is an Australian Age Pension, however Mr Raad did work during his stays in Lebanon on his mother's orchard which gave him an income. Mr Raad's financial circumstances are not indicative of being resident in Australia, Mr Lozynsky submitted.
(d)nature and extent of assets inside australia
When Mr Raad left for Lebanon in 1996 he took his superannuation of approximately $5,000.00 but when he returned to Australia in November 1998, he indicated on his Age Pension claim that he had $2.00 in a savings account and no cash (T3). Mr Lozynsky submitted that Mr Raad does not own any personal items and has only attempted to purchase basic furniture nearly eight months after his application for Age Pension (T1).
Conversely, in Lebanon, Mr Raad was living in his deceased mother's house and had use of the family's agricultural holdings from which he was able to derive income.
(e) frequency and duration of travel outside australiaMr Lozynsky submitted that Mr Raad has had long and frequent absences from Australia. He has returned to Lebanon to see his family on numerous occasions and care for his mother and this confirms a close connection at the relevant time with his family in Lebanon. It is important, Mr Lozynsky submitted, for the Tribunal to consider the time of his residence in either Lebanon or in Australia leading up to the claim for Age Pension in November 1998. Most of Mr Raad's time has been spent in Lebanon. In this regard, Mr Lozynsky submitted that in the last five years, Mr Raad has lived in Lebanon for four years and only 14 months in Australia. In the last ten years, Mr Raad has spent ten years and six months in Lebanon compared to four years and eight months in Australia. As for the last 15 years, the time spent in Lebanon has amounted to ten years and six months compared to only four years and eight months in Australia. Since 1986, Mr Lozynsky submitted that Mr Raad has only been in Australia for two years and five months whereas he has lived in Lebanon for ten years and six months (T39).
(f) any other matter relevant to determining whether the person intends to remain permanently in australia.Mr Lozynsky referred to the fact that Mr Raad has only recently renewed his Australian passport in 1988 (T6), indicating Mr Raad's lack of residency in Australia.
Referring to Re Gnisios (supra) and ReSecretary, Department of Family and Community Services and Petric [1999] AATA 469, Mr Lozynsky submitted that both Tribunals held that a person's "evidence" must be considered along with other available objective and corroborative evidence. The factors outlined above should be given the weight that they deserve in light of the overall circumstances. Furthermore, Mr Lozynsky noted that Deputy President McMahon in Re Wybrow (supra), at paragraph 27, stated:
"As is pointed out in the annotations to the Social Security Act 1991 by Sutherland and Johnson in paragraph 7.04, the statutory factors are not exhaustive and it is just as appropriate to consider the converse of these factors in relation to the applicant's circumstances outside Australia."
This view was supported in Re Clifopoulos (supra). Mr Lozynsky proposed that Mr Raad had established a permanent "physical" presence or "association" while in Lebanon. He had a "home" owned by his mother and family and recently ceased business activities in Lebanon in relation to the orchard. While Mr Raad claims that there have been a number of circumstances such as family problems and the civil war in Lebanon which have prevented him from actualising his "intention" of permanently residing in Australia, Mr Lozynsky submitted on behalf of the Respondent, that none of the matters raised by Mr Raad as to why his intended permanent residence in Australia had been thwarted, is persuasive or relevant to subsection 7(3)(f) of the Act. Such a proposition is supported in ReGorsic and Secretary, Department of Social Security (1998) 53 ALD 231, which concluded that the applicant in that case had failed to satisfy subsection 51(a) of the Act, Mr Lozynsky submitted.
In relation to the question of Mr Raad's intention at the time of his original pension application to reside in Australia, the Respondent noted that Mr Raad had given various statements to the Department and to the SSAT concerning his intentions about permanently remaining in Australia. Mr Lozynsky submitted that it was apparent from the outset that Mr Raad's intention is evident in his statement of 16 November 1998 in which he noted that:
"I would like to advise the department that I intend to stay in Australia for the next seven months. I intend to stay in Australia then I will be going back overseas to Lebanon to live with my sick mother. I have no assets in Australia or overseas in Lebanon. I have all my family living overseas. If any of my circumstances change I will notify the Department within 14 days" (T7)
The Tribunal notes that Mr Raad has not denied that he may return to Lebanon for holidays and it is to his credit that he does not discount this possibility. As previously noted, however, the Tribunal does not consider trips to Lebanon to visit family and renew relationships is determinative of Mr Raad not having an intention to reside in Australia. The test is, did Mr Raad, at the time of his claim for Age Pension in 1998 and despite his connection with his country of origin, have the intention to reside in Australia and the Tribunal considers that the answer to this question is "yes".
(f) any other matter relevant to determining whether the person intends to reside permanently in australia.The Tribunal notes reference to Mr Raad's lack of knowledge of the Bicentennial celebrations in 1998, the Thredbo disaster or the tragedy which occurred in Port Arthur. The Tribunal does not consider that such lack of knowledge indicates that Mr Raad did not have an intention to reside in Australia. That he was living in Lebanon in a village which may or may not have had access to Australian news via either the print or other media cannot be used against Mr Raad to suggest he had a lack of interest in Australian affairs. There has been no evidence brought to the Tribunal as to whether or not Mr Raad had such information available to him. While the Tribunal accepts that there was communication between Mr Raad and his family in Australia, the fact that there may have been no mention of any such events as the Bicentennial celebration or the Threadbo disaster does not suggest to the Tribunal on the facts available to it at the hearing, that this indicated any lack of interest on Mr Raad's part in Australian affairs.
The Respondent made note of the inconsistency in evidence relating to Mr Raad's lodgment of tax returns. In this regard, the Tribunal notes Mr Raad's evidence that he was working until 1986 and that he lodged his last tax return in the 1985/86 year. The Australian Taxation Office has indicated in two separate documents that Mr Raad last lodged a tax return in 1980 and in another document it was lodged in 1981. The Tribunal considers that it cannot make any finding in relation to Mr Raad's intention to reside in Australia arising out of those facts. It appears to the Tribunal that the inconsistency in the Australian Taxation Office's own records as well as Mr Raad's evidence do not allow the Tribunal to make a finding on this issue.
In relation to the issue of whether Mr Raad voted in the 1998 Federal Election, Mr Raad's evidence to the Tribunal was that he did so at the Australian Embassy in Lebanon. After the hearing Mr Lozynsky submitted additional documentary evidence from the Australian Electoral Commission that it had no record of Mr Raad voting in the October 1998 federal election as he was not enrolled at the time. Mr Raad has had no opportunity to answer this information and indeed there could be many explanations either to Mr Raad's benefit or otherwise as to why he may not have been on the electoral roll at the time. The Tribunal does not consider in the circumstances in which this later evidence has arisen, that it can make any findings from this material. The information is simply not in the form to be determinative of the issue of residency and Mr Raad has not been given the opportunity to answer any possible implications of such information. In such circumstances the Tribunal is unable to place any weight on this latest piece of information.
The Tribunal concludes that while there are variations in the evidence provided to it such as the precise date in 1996 of Mr Raad 's mother's death, and the last date of lodgment of tax returns, these matters are not material to the Tribunal's making a decision in relation to whether or not Mr Raad was residing in Australia on 9 November 1998.
It is the Tribunal's finding when considering all of Mr Raad's circumstances, that on 9 November 1998 he was residing in Australia. Mr Raad had family relationships in Australia and an intention to reside in this country. That he did not have financial or business interests or accommodation organised is not determinative of Mr Raad's intention not to reside in Australia. He should not be penalised for not having any income or accommodation because of his circumstances. Mr Raad is a single man who at the time of his claim for the Age Pension in November 1998 had no income support apart from that which he had previously obtained for periods from the Department itself. Mr Raad did have a Medicare Card and had an Australian passport. He was an Australian citizen and had been resident in Australia for over ten years. The Tribunal accepts Mr Raad's evidence that he likes Australia, he considers it his home and that he has come here because he believes that his life in Australia will be better than elsewhere. He has emotional and practical support available to him here and considers that the quality of life available to him provides for his requirements.
Accordingly for all the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal sets aside the decision under review and substitutes its decision that Mr Raad meets subsection 7(2)(a) of the Act and accordingly, having met all the other legislative requirements for entitlement to the Age Pension, is qualified for the Age Pension from the date of claim on 9 November 1998.
I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate of Hearing 7 January 2000
Date of Decision 18 May 2000Representative for the Applicant Ms M Sripathy, Solicitor,
Welfare Rights Centre, Sydney
Representative for the Respondent Mr G Lozynsky,
Departmental Advocate
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