Re Wybrow and Secretary, Department of Social Security
[1992] AATA 315
•30 November 2016
Markopoulos and Secretary, Department of Social Services (Social services second review) [2016] AATA 962 (30 November 2016)
Division
GENERAL DIVISION
File Number
2016/3257
Re
Demetrius Markopoulos
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 30 November 2016 Place Sydney The Tribunal sets aside the decision under review and in substitution decides that Mr Markopoulos qualified for the age pension when he applied on 20 November 2015.
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Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – age pension – qualifying Australian residence – whether applicant an Australian resident – Tribunal satisfied that the applicant had qualifying Australian residence – decision under review set aside
LEGISLATION
Social Security Act 1991 ss 7(2), 7(3), 7(5), 43(1)
Social Security (Administration) Act 1999 Sch 2
Social Security (International Agreements) Act 1999
CASES
Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444
Wybrow and Secretary, Department of Social Security [1992] AATA 315
REASONS FOR DECISION
Senior Member J F Toohey
30 November 2016
Background
Mr Demetrius Markopoulos was born in Greece in July 1942. In September 1965, he married an Australian citizen, Sheridan Stumm, in Greece. She returned to Australia and gave birth to their first child, Damon, in December 1965. Mr Markopoulos migrated to Australia as a permanent resident in February 1967 and became an Australian citizen in August 1968. Their second child, Phaedra, was born in April 1971.
For reasons I will come to, Mr Markopoulos returned to Greece in 1973, and Ms Stumm and the children followed. They returned to Australia together in October 1976.
In April 1977, Mr Markopoulos returned to Greece alone. Since then, he has spent most of his time overseas, returning to Australia for a total of less than three years. He and Ms Stumm divorced in March 1993. They have remained on good terms.
On 27 August 2015, Mr Markopoulos returned to Australia and has remained here since. On 20 November 2015, he applied for an age pension. Centrelink decided he did not meet the residence requirements in the Social Security Act 1991 (the SS Act) and rejected his claim. The Social Services and Child Division of the Administrative Appeals Tribunal has affirmed that decision.
The legislation
As it applies to Mr Markopoulos, s 43(1) of the SS Act provides that a person qualifies for an age pension if he or she has reached pension age and has:
(a)10 years qualifying Australian residence; or
(b)a qualifying residence exemption for an age pension.
Mr Markopoulos reached age pension age on 25 July 2007 when he turned 65. He does not have a qualifying residence exemption for an age pension. The question is whether, when he applied for the age pension, he had 10 years qualifying Australian residence.
The claim period
Mr Markopoulos had to qualify for the age pension on 20 November 2015 when he made his claim, or within the following 13 weeks: sch 2, subclause 4(1) of the Social Security (Administration) Act 1999. This means I have to consider whether he had 10 years qualifying Australian residence by 19 February 2016. I will refer to this as “the claim period”.
Qualifying Australian residence
Section 7(5) of the SS Act provides that a person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
Section 7(2) of the Act defines an Australian resident as the 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.
Mr Markopoulos is an Australian citizen but the Secretary contends that he was not an Australian resident for the periods required to establish qualifying Australian residence.
Section 7(3) provides:
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.
Periods when Mr Markopoulos was physically present in Australia
Since arriving in Australia in February 1967, Mr Markopoulos has spent the following periods in Australia:
Arrived Departed Days in Australia 27 February 1967 17 April 1973 2241 7 October 1976 18 April 1977 193 20 October 1978 11 December 1978 52 26 December 1982 21 February 1983 57 11 November 1984 16 January 1985 66 15 October 1986 3 December 1986 49 27 November 1989 11 December 1989 14 2 December 1992 6 February 1993 66 26 October 1997 14 February 1998 111 23 November 1998 26 January 1999 64 23 October 2001 11 April 2002 170 17 November 2002 7 May 2003 171 26 November 2003 26 February 2004 92 13 March 2014 12 May 2014 60 27 August 2015 19 February 2016 176 Submissions
The Secretary submits that Mr Markopoulos has not at any time been an Australian resident for a continuous period of 10 years. The Secretary concedes that he was an Australian resident from 27 February 1967 to 17 April 1973, and from 27 August 2015 to 19 February 2016, but says Mr Markopoulos was not an Australian resident at any other time, including when he was physically present in Australia.
For Mr Markopoulos it is submitted that he continued to be an Australian resident up until March 1993 when he and Ms Stumm divorced. Further, that even if that argument is not accepted, he was an Australian resident while he was living in Greece with Ms Stumm and their children from 17 April 1973 to 7 October 1976, and up until 18 April 1977 when he returned to Greece.
Mr Markopoulos, Ms Stumm and Phaedra Markopoulos provided written statements and gave oral evidence at the hearing. I am satisfied that each was a truthful witness and I accept their evidence.
Summary of decision
For the reasons that follow, I am satisfied that Mr Markopoulos was an Australian resident from 27 February 1967 to 18 April 1977, and from 27 August 2015 to 19 February 2016. As the first period was five years or more, and as the aggregate of those periods exceeds 10 years, I find he had qualifying Australian residence during the claim period.
I am not satisfied that Mr Markopoulos was an Australian resident between 18 April 1977, when he returned to Greece, and 27 August 2015 when he returned to Australia most recently.
First period in Australia
Mr Markopoulos and Ms Stumm met in Greece in 1964 and married there in September 1965. She returned to her mother’s home in Queensland to give birth to their first child in December 1965. Mr Markopoulos arrived in Australia on a permanent residence visa in February 1967. He became an Australian citizen in August 1968 and enrolled to vote in 1969. He remained on the electoral roll until 1980.
Mr Markopoulos worked for the first nine months he was in Australia and then enrolled in an arts degree at the University of Sydney. In 1970, he joined the Department of Veterans’ Affairs and was working there when he witnessed an employee fall to his death from the building. He resigned and went to work for TAA at Sydney airport.
In December 1973, Mr Markopoulos witnessed an accident on a baggage conveyor belt in which a young boy was killed. He suffered post-traumatic stress and depression for which he received no counselling. His general practitioner advised he would be better medically treated in Greece where he would benefit from being counselled in his first language.
Return to Greece in April 1973
In April 1973, several days after giving evidence at the inquest into the child’s death, Mr Markopoulos flew to Greece. Ms Stumm and the children joined him two months later after she had resigned from her job and arranged to take their son out of school.
Other than some valuable furniture which they left with a friend, the family took most of their possessions, including a refrigerator and a washing machine, with them. Ms Stumm gave evidence that, having lived in Greece for four years previously, and having small children to care for, she did not want to manage without a refrigerator and washing machine.
In Greece, the family lived in rented accommodation in Nafplion and Athens, and on the island of Paros where Ms Stumm used approximately half of an inheritance of $23,000 to buy land as an investment. She gave evidence that the property was in Mr Markopoulos’ name because she did not speak Greek and he could sign documents. She also gave evidence that a woman in Greece is expected to provide a dowry and having the land in his name amounted, in effect, to her dowry. She and Mr Markopoulos lived off their savings and he worked casually making silver jewellery for a tourist shop and as a freelance tourist guide, and she worked as a freelance journalist.
Mr Markopoulos and Ms Stumm gave evidence that it was always their intention to return to live in Australia when he had recovered and in time for their son to enrol in secondary school at her father’s old school in Queensland. I accept their evidence about this.
In Greece, Mr Markopoulos saw a psychologist for treatment “on and off” for about a year and occasionally after that. Ms Stumm gave evidence that his psychological state improved “immeasurably” and, in October 1976, they decided to return to Sydney. Both children attended private schools in Australia. Their son attended his grandfather’s old school in Brisbane for two years before returning to Sydney and completing his education at another school. Their daughter completed her education in Sydney.
October 1976 to April 1977
Ms Stumm resumed work as a journalist after their return to Sydney but Mr Markopoulos found it difficult to find work other than casual labouring. His depression returned and they decided he should undergo further treatment in a “conducive environment” in Greece. He returned to Greece in April 1977.
April 1977 to August 2015
Over the following years, Mr Markopoulos supported himself in Greece by a combination of his savings, making jewellery for the tourist trade, renting out windsurfing boards on Paros, and teaching English. For some of the time he lived in the house of a well-off friend who supported him in return for financial advice. Although Mr Markopoulos had no formal training in economics, the arrangement was apparently mutually beneficial.
Mr Markopoulos and Ms Stumm divorced amicably in March 1993. They agreed he would keep the house on Paros and she would keep the home she had bought in Sydney in her name in 1983. They had no other assets to speak of and there was no formal property settlement. Around the same time, Mr Markopoulos built a house on the land on Paros which he sold in about 1997 for $250,000. He used the proceeds of the sale to repay debts, he gave both children $20,000, and he bought a boat which he lived on and sailed around the islands for approximately two years, and he lived off the rest. He did not work after 1997.
In 2010, Mr Markopoulos left Greece for Thailand where he lived for the next four years and taught English. He was granted an age pension in Greece in 2007 but his pension was terminated in 2012 because he was no longer considered a resident of Greece.
Mr Markopoulos returned to Sydney on 12 occasions before returning in August 2015. In nearly 40 years, he spent a total of 972 days, or just over two and a half years in Australia. Each time, he lived in the family home in Sydney with Ms Stumm and the children or, in later years, after he and Ms Stumm divorced, in his daughter’s home. They visited him several times in Greece and Thailand. He has been living with his daughter since returning to Australia.
Consideration
As already noted, it is not in dispute that Mr Markopoulos was an Australian resident from 27 February 1967 to 17 April 1973. I am satisfied, on the information before me, that he remained an Australian resident while he and his family were in Greece from April 1973 to October 1976.
It is not necessary to go into details of what were clearly extremely traumatic events witnessed by Mr Markopoulos while employed by the Department of Veterans’ Affairs and TAA. I have no reason to doubt their effect on him and that he and Ms Stumm went to Greece in 1973 for the sole purpose of helping him to recover. I accept their evidence that it was always their intention to return for their children’s education, which is what in fact happened after three and a half years.
In Hafza v Director-General of Social Security [1985] FCA 164, (1985) 6 FCR 444, Wilcox J said, at 449-450:
Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place -- even involuntarily … a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains "home". … It is important to observe firstly, that a person may simultaneously be a 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 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.
I am satisfied that Mr Markopoulos retained a continuity of association with Australia while he was in Greece with his family and that he intended during that time to return, and that he continued to treat Australia as “home”.
As for the six months from October 1976 when Mr Markopoulos returned to Australia with his family before returning to Greece alone in Apr 1977, I am satisfied that he remained an Australian resident for that period. I accept that he returned to Australia with the intention of remaining here and making his home here with his family. Through a combination of difficulty finding employment and his psychological condition, he decided to return to Greece. Until he did so, I am satisfied that he was still an Australian resident.
As set out below at [41], even if the period from October 1976 to April 1977 is discounted, Mr Markopoulos had qualifying Australian residence during the claim period.
Given what happened over the following nearly 40 years, I find that Mr Markopoulos’ association with Australia (as opposed to his relationship with Ms Stumm and his children) changed, and he no longer intended to make it his home.
I am not satisfied that Mr Markopoulos was an Australian resident after he returned to Greece in April 1977. Just because he was resident in Greece would not prevent him from simultaneously being resident in Australia: Hafza (above). However, I find that, after leaving Australia in April 1977, he made Greece his home and was resident there. The fact that he retained his close ties to his immediate family in Australia and he visited them, and they visited him, from time to time, does not change that Greece became his home. He retained no assets here and was never employed again in Australia. His longest return was for approximately six months. I am satisfied the occasions when he returned were temporary visits rather than resumption of residence.
Absence from Australia, even for several years, does not necessarily preclude a finding that a person has remained resident in Australia: see, for example, the Tribunal’s decision in Wybrow and Secretary, Department of Social Security [1992] AATA 315. However, Mr Markopoulos visited Australia on average once every two years, staying usually for about two months. In 12 years between December 1986 and October 1997, he visited twice. He had no employment or assets here. In 2010, he decided to go to Thailand to live, rather than return to Australia, and he lived there for four years.
Conclusion
For these reasons, I am satisfied that Mr Markopoulos was resident in Australia for at least one period of five years or more and that the aggregate of the periods he has been resident in Australia exceeds 10 years as follows:
27 February 1963 – 17 April 1973 2241 days
18 April 1973 – 6 October 1976 1267 days
7 October 1976 – 18 April 1977 193 days
27 August 2015 – 19 February 2016 176 days
TOTAL: 3898 days or 10.67 years
Even if the period from 7 October 1976 to 18 April 1977 when he returned to Australia is discounted, Mr Markopoulos was an Australian resident for 10.15 years.
I set aside the decision under review and substitute the decision that Mr Markopoulos qualified for the age pension when he applied on 20 November 2015.
43. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey
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Associate
30 November 2016
Date of hearing 22 November 2016 Advocate for the Applicant Ms H Styles Solicitors for the Respondent Department of Human Services
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