Robinson and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 809

Administrative

Appeals

Tribunal

 

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 809

ADMINISTRATIVE APPEALS TRIBUNAL      Nº W2006/3

GENERAL ADMINISTRATIVE DIVISION

Re:         GARY PHILIP ROBINSON

Applicant

And:SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             21 September 2006

Place:            Perth

Decision:The Tribunal affirms the decision under review.

...(Sgd G D Friedman).......

Senior Member

CATCHWORDS

SOCIAL SECURITY – age pension ‑ qualification ‑ whether a resident of Australia

Social Security Act 1991 s 7(2) and s 7(3)

Social Security (Administration) Act 1999 s 29(1)

REASONS FOR DECISION

21 September 2006  G.D. Friedman, Senior Member

1.      Dr Gary Robinson was born in Australia on 6 July 1940 and has lived in Indonesia since 1978.  He reached age pension age on 6 July 2005 and on 21 July 2005 Centrelink refused his application for age pension because he was not considered to be an Australian resident at the time of his application.  The Social Security Appeals Tribunal affirmed the decision on 16 December 2005, and  Dr Robinson has sought review of the decision.

2. With the consent of the parties, the Tribunal decided to make a decision on the review application without holding a hearing. The material before the Tribunal comprised the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 and written submissions from both parties.

Issue

3.      The issue before the Tribunal is whether Dr Robinson was an Australian resident at the time of his application for age pension.

Background

4.      Dr Robinson is an Australian citizen.  He resides in Bandung, near Jakarta, with his wife and mother-in-law, who are Indonesian citizens.  In material submitted to the Tribunal Dr Robinson stated that he has not been granted permanent resident status in Indonesia, and is required to leave the country every six months to renew his visa.  He said that he is not permitted to open a bank account in his name or his wife’s name, and his superannuation payout after resigning from the Bureau of Mineral Resources (now the Australian Geological Survey) in 1989 has been depleted due to the economic situation in Indonesia.

5.      Dr Robinson said that during the period 1978 to 1989 he was considered to be an Australian resident for taxation purposes in Australia, and he spent six weeks each year in Australia on annual leave during this time.  In material presented to the Tribunal he indicated that he had no bank accounts, property or business interests in Australia, and that he last visited Australia on 2 January 1987.  In a letter to Centrelink dated 6 August 2005 Dr Robinson stated that he had no intention of residing permanently in Australia because of his financial position and the cultural difficulties that his wife and mother-in-law would face.       

6.      In support of his application Dr Robinson said that since his retirement he has performed editing surveying work in Indonesia on a voluntary basis, and this has enhanced goodwill and understanding between Indonesia and Australia.  He said that the Australian Government should help its citizens who find themselves in difficult circumstances through no fault of their own.  

Is Dr Robinson An Australian Resident?

7. Section 29(1) of the Social Security (Administration) Act 1999 (the Administration Act) provides that a claim for a pension or benefit may only be made by a person who is in Australia and is an Australian resident.

8.      The term Australian resident is defined in s 7(2) of the Social Security Act 1991 (the Act):

An Australian resident is a person who:

(a)resides in Australia; and

(b)is one of the following:

(i)an Australian citizen;

(ii)the holder of a permanent visa;

(iii)a special category visa holder who is a protected SCV holder.

Section 7(3) of the Act sets out the criteria to which regard must be had in deciding whether a person is residing in Australia. They are:

(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.

9. The Tribunal has considered each of the factors listed in s 7(3) of the Act:

(a)       the nature of the accommodation used by the person in Australia;

Dr Robinson has not visited Australia since 1987 and has no permanent accommodation in Australia.  He and his wife live in a house owned by his wife in Indonesia, and he has greater stability of accommodation in Indonesia than he has in Australia. 

(b)the nature and extent of the family relationships the person has in Australia;

Dr Robinson has given no information to suggest that he has close family members in Australia.  As his wife of 27 years and his mother-in-law live with him in Indonesia, he has stronger family relationships in Indonesia than he has in Australia.

(c)the nature and extent of the person's employment, business or financial ties within Australia;

Dr Robinson retired from the workforce in 1989 and his superannuation payments are made to his wife’s bank account in Indonesia.  There is no evidence that he has any current or future business, employment or financial ties to Australia.   

(d)       the nature and extent of the person's assets located in Australia;

Dr Robinson has not provided evidence of any assets located in Australia.  He has provided information on ownership (with his wife) of a home, a motor vehicle and small bank accounts in Indonesia.  

(e)       the frequency and duration of the person's travel outside Australia;

Dr Robinson stated that he lived in Papua New Guinea from 1970 to 1976 and has lived in Indonesia since 1978.  Information available to the Tribunal shows that he has not visited Australia between 1987 and the date of his application for age pension.  Since 1978 he has spent almost all his time in Indonesia.

(f)any other matter relevant to determining whether the person intends to remain permanently in Australia.

Dr Robinson has stated that he does not intend to reside permanently in Australia because of financial factors and for cultural reasons concerning his wife and mother-in-law.  

10. The Tribunal acknowledges that Dr Robinson believes the Australian Government should offer assistance to its citizens in circumstances such as his. However, in assessing his circumstances against the criteria in s 7(3) of the Act, the Tribunal concludes that Dr Robinson has been living in Indonesia for many years and his connection with Indonesia is far stronger than his connection with Australia, and he has no intention to reside permanently in Australia.

11. For these reasons the Tribunal finds that, at the time of his application for age pension, Dr Robinson was not a person residing in Australia for the purposes of s 7(2)(a) of the Act, and was not an Australian resident for the purposes of s 7(2) of the Act. Consequently, under s 29(1) of the Administration Act, he was not able to make a claim for age pension.

DECISION

12.     The Tribunal affirms the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of G.D. Friedman, Senior Member

Signed:         ..(Sgd S da Motta)...........
  Associate

Date of hearing:  Not applicable: decision on the papers
Date of decision:  21 September 2006