Reehman and Secretary, Department of Employment and Workplace Relations

[2005] AATA 1282

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1282

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/935

GENERAL ADMINISTRATIVE DIVISION		)
Re		TASMIAH REEHMAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal M. A. Griffin, Member

Date22 December 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

[SGD] M. A. Griffin
  Member

CATCHWORDS

SOCIAL SECURITY – refusal to grant newstart allowance and health card – definition of Australian resident – decision affirmed

Social Security Act 1991 - section 7

Social Security (Administration) Act 1999 - section 29

Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985)

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

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

REASONS FOR DECISION

22 December 2005 M. A. Griffin, Member         

1.      This is an application by Mrs Reehman, the Applicant, for review of a decision by the Social Security Appeals Tribunal (“SSAT”) made on 24 June 2005 regarding her claim for newstart allowance and a low income health care card. The SSAT affirmed the decision of an Authorised Review Officer (“ARO”) to reject Mrs Reehman’s claim for newstart allowance and a low income health card on the basis that she is not an Australian resident.

Issue

2.      The single issue for the Tribunal to decide is whether or not Mrs Reehman is an Australian resident for the purposes of the Social Security legislation.

Background

3.      Mrs Reehman came from Bangladesh to Australia in December 1996 and applied for refugee protection, which was granted. Mrs Reehman has four children, two of whom came to live with her in Australia and who continue to live here as citizens.  She has two other children, a daughter living in Dubai and a son who lives in Bangladesh. Her husband, a former Bangladeshi Army Officer, is in prison in Bangladesh.

4.      Since 2000, Mrs Reehman has left Australia several times for lengthy periods. On 31 March 2000 she went to Singapore and stayed with a friend for 2 months, returning on 31 May 2000.

5.      On 1 March 2001 Mrs Reehman went to Bangladesh, where she stayed with her son and mother-in-law in the family home. She did not return to Australia until 6 August 2002.

6.      On 22 January 2003 Mrs Reehman went back to Bangladesh, again staying with her son and mother in law. Some two years later, on 17 February 2005, she returned to Australia.

7.      On 7 April 2005 Mrs Reehman made a preliminary claim for newstart allowance. On 16 April 2005 she lodged a claim for a health care card. Her statement lodged on the same day reads, in part, “…I was living in Bangladesh for the last two years…The reasons I have come back is due to medical reasons and also to see my children but I am not looking for work as I intend to go back to Bangladesh on the 28 June 2005 and I will be there for a while as my husband is a political prisoner…” (T9).

8.      Mrs Reehman’s claim for newstart allowance was refused on the basis that she did not satisfy the residence qualifications for eligibility.

9.      On 5 May 2005 Mrs Reehman wrote to the delegate asking for a review of the refusal decision. In that letter she wrote, in part, “I realise that because I intend to return back to my country after a stated period, I am not considered a permanent resident… I cannot understand the reasoning behind the denial of my claim… I had come back primarily to Australia this time as my health back in Bangladesh (the country of my residence for the last couple of years) was deteriorating badly” (T23).

10.     On 31 May 2005 an ARO decided that the decision to refuse Mrs Reehman’s claim for newstart allowance and a health care card was correct. On 24 June 2005 the SSAT affirmed the refusal decision, finding that “…the weight of evidence supports the view that Mrs Reehman resides in Bangladesh and visits Australia to see her children and obtain medical attention” (T2/9).

The Hearing

11.     At the hearing before this Tribunal, Mrs Reehman gave oral evidence and was assisted by her son. Mr Kenny appeared on behalf of the Respondent. Mrs Reehman said she had not been able to work due to a continuing medical condition. She said she relinquished the title to her Department of Housing apartment in favour of her children when she returned to Bangladesh. She said the Department told her she had to do this if she was uncertain about how long she would be away. Mrs Reehman said she had recently closed her Australian bank account but maintained an account in Bangladesh. She said her children sent money to this account to support her while living in Bangladesh.

12.     Mrs Reehman said she relied on financial support from her children and an aunt, to live and to travel. She said she needs to be in Bangladesh to support her husband and assist with his legal affairs. She said she visited him in prison, took him food, and went to the court for his appearances. She said her husband had been sentenced to death in one case and to a term of imprisonment in another case. He has four years of that term of imprisonment left to serve. The death sentence is under appeal.

13.     Mrs Reehman said she went back to Bangladesh on 28 June 2005 and returned to Australia on 23 September 2005. Mrs Reehman was asked if she intended to go again to Bangladesh. She said “yes”. She was asked for how long. She said “I can’t say, it depends on the situation in the country with the elections coming up”. Mrs Reehman tendered a number of documents from newspapers, non-government, and other reputable organisations describing her husband’s case and the political aspects of it.

14.     Mrs Reehman was asked three times how long she intended to remain in Bangladesh. Each time her answer was, essentially, ‘it depends’. She said she thinks of Australia as home and would prefer to be here but has to go back to Bangladesh out of necessity to support her husband.

Legislation

15. The relevant legislation is contained in section 29 of the Social Security (Administration) Act 1999 (“the Administration Act”) and section 7(2) and (3) of the Social Security Act 1991 (“the Act”). The effect of section 29 of the Administration Act is that a claim for a social security payment or concession card can only be made by a person who is an Australian resident and is in Australia.

16. Section 7(2) of the Act relevantly defines an Australian resident as a person who resides in Australia and is an Australian citizen.

17. Section 7(3) of the Act sets out the matters which must be considered in determining whether or not a person is residing in Australia, including the accommodation used; family relationships; employment, business or financial ties; assets; frequency and duration of overseas travel and any other matters relevant to determining intent to remain permanently in Australia.

Consideration of Issues

18.     In Re Schlageter and Secretary, Department of Social Security (AAT 1988, 7 February 1985)  the Tribunal found at paragraph 9:

“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 have some degree of permanence.” 

19.     In other Tribunal decisions in this area of the law, reference has been made to Hafza v Director-General of Social Security (1985) 6 FCR 444, the decision of Wilcox J, where his Honour said at 449:

“…As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249, by Williams J: “The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.” 

20.     In Re Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992) the Tribunal said at paragraph 23:

“It is true that s7(3) of the Act now requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia. They are, however, not expressed to be exhaustive and do not detract from the general observations which His Honour made in relation to the ordinary concept of residence. The definition however, compels a decision maker to pay some regard to the enumerated factors.”

21. I have considered all of the evidence relating to each of the factors set out in section 7(3) of the Act and to Mrs Reehman’s circumstances in Bangladesh. She is an Australian citizen and has two adult children living in Australia. She refers to Australia as her home. However, she has spent much of the past four years, in her own words, “living in Bangladesh”, where she resides with her adult son and her mother-in-law in her husband’s family home. She has no asset, employment, or financial associations with Australia. She has surrendered her apartment to her children. Mrs Reehman returned to Australia to visit her children and for medical treatment but with the express intention of returning to live in Bangladesh indefinitely to support her husband in his unfortunate situation. 

22.     In all the circumstances, I find that Mrs Reehman is not a resident of Australia.

23.     The Tribunal affirms the decision under review.

I certify that the preceding 23 paragraphs are a true copy of the decision and reasons for decision of M. A. Griffin, Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Date of Hearing  10 November 2005

Date of Decision  22 December 2005

Representative of the Applicant                 self represented      

Representative of the Respondent           Mr J. Kenny