Rodin and Secretary, Department of Family and Community Services

[2004] AATA 533

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 533

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/46

GENERAL  ADMINISTRATIVE DIVISION

Re:         LJUBIM RODIN

Applicant

And:SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             26 May 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY ‑ age pension ‑ qualification ‑ whether residing in Australia

Social Security Act 1991 s7(2), 7(3)

Social Security (Administration) Act 1999 s29(1)

REASONS FOR DECISION

26 May 2004  G.D. Friedman, Member

1.      This is an application by Ljubim Rodin (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 15 December 2003.  The SSAT decision affirmed a decision dated 9 October 2003 of an authorised review officer of Centrelink, to refuse the applicant’s claim for age pension because he was not an Australian resident at the time of his application.

2.      At the hearing of this matter on 17 May 2003 the applicant represented himself, with the assistance of an interpreter in the Croatian language, and Mr D. Perdon, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T39), plus one exhibit (Exhibit R1) lodged by the respondent.     

BACKGROUND

4.      The applicant was born in Croatia on 11 June 1938 and arrived in Australia in 1961.  His wife arrived in 1963.  He worked as a steel welder and fabricator.  In 1975 he built four villa units in Brunswick West.  The couple have three children: a daughter born on 15 June 1962; a daughter born on 29 November 1966; and a son born on 20 October 1976.  In 1976 the applicant and his wife returned to Croatia with their children.  The applicant has visited Australia five times, for about six months on each occasion.  His wife made three visits, on one occasion in 1978/79.

5.      On 27 April 2003 the applicant and his wife arrived in Australia and have remained here since then.  On 2 July 2003 the applicant applied for age pension and Centrelink refused the application.  On 9 October 2003 an authorised review officer affirmed the decision.  On 30 October 2003 the applicant sought review of the 9 October 2003 decision by the SSAT.  On 15 December 2003 the SSAT affirmed the decision.  On 16 January 2004 the applicant lodged an application with the Tribunal for review of the SSAT decision.

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

EVIDENCE

7.      The applicant gave oral evidence that he worked hard in Australia and he and his wife became Australian citizens in 1971.  He told the Tribunal that in 1976 he and his wife decided to return to Croatia because their ageing parents needed support and care.  He explained that he sold three of the villa units to assist the family’s finances.  The applicant stated that he visited Australia in 1978, 1982, 1985, 1989 and 1995, and stayed about six months on each occasion.

8.      The applicant said that he and his brother are the joint owners of a house in Croatia left to them by their father, and that he intends to give the house to his children.  He stated that he wanted to return to Australia earlier, but was prevented by the war in Croatia, the needs of his parents and his wife’s parents, and his responsibilities to his children.  He said that his children, and six grandchildren, live in Croatia and do not wish to live in Australia.

9.      The applicant stated that he and his wife are living in the last of their villa units and propose to remain there as a retired couple, as he has reached the age of 65 and has health problems.  He said that he has ties to Australia by way of many friends and a niece and nephew who live here, and he said that he has spent a considerable amount of money on repairs to the unit.  He said that he has about $3000 remaining from an estimated $19,000 when he arrived in Australia in April 2003.

10.     Under cross‑examination the applicant stated that he failed to respond to the question Are you living permanently in Australia? on his age pension application because of a misunderstanding.  He stated that his parents died in 1989 and 1992, and his wife’s parents died in 1986 and 1989.  The applicant also agreed that the war in Croatia concluded in the mid‑1990s.

11.     Mrs R. Rodin, the applicant’s wife, gave oral evidence that, as her children were adults leading their own lives, she decided to return to Australia with the applicant, to live permanently.  She stated that she maintains regular telephone contact with her family in Croatia and hopes to visit them at least every other year.  Mrs Rodin stated that despite being absent for a long time she has always wanted to settle in Australia.  

CONSIDERATION OF THE ISSUES

12. 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.

13.     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.

14.     Mr Perdon submitted that the evidence demonstrates that the applicant’s focus remains with his family, and all his children and grandchildren live in Croatia.  Mr Perdon said that this, together with the part‑ownership of the house in Croatia, outweighs the applicant’s Australian citizenship and his ties to Australia by way of the villa unit in which the applicant and his wife have lived since April 2003.

15.     In reaching a decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

16. 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

The applicant has lived his villa unit jointly owned with his wife since his arrival in Australia on 27 April 2003. 

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

The applicant’s wife lives with him, and a niece and nephew reside in Australia.  His three children, six grandchildren and extended family live in Croatia.

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

The applicant had worked in Australia from 1961 to 1976, and obtained casual employment during several of his subsequent visits.  At the time of his claim for age pension he was not working. 

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

The applicant’s major assets appear to be a bank balance of $19,000 on arrival in 2003 (now about $3000) from accumulated rent on the villa unit,   and the villa unit itself, valued by the applicant at $220,000 ‑ $230,000.  The applicant valued the house in Croatia, which he partly owns, at about $70,000. 

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

The applicant has spent about 18 years in Australia and 48 years in Croatia. His wife has spent about 14 years in Australia and 47 years in Croatia.  Since 1976 the applicant has spent 3 years in Australia and 24 years in Croatia.  In the same period his wife has spent about 1 year in Australia and 26 years in Croatia.  Since 1976 the applicant has made 5 visits to Australia, mainly to carry out repairs and maintenance to his villa unit.  He returned to Croatia after each visit.

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

The applicant and his wife have dual Australian and Croatian citizenship.  The applicant’s most recent arrival in Australia was six weeks before he reached the age of 65 years.  By 1992 the applicant’s parents and his wife’s parents had died, and by about 1995 the hostilities in Croatia had ended, allowing freedom of travel and access to bank accounts and other assets.

17.     In weighing these matters the Tribunal accepts the submission by Mr Perdon that at the time of his application for age pension, on 3 July 2003, the applicant had been in Australia for about two months after an absence of 27 years (apart from several visits).  The Tribunal finds that the applicant and his wife sold one of their villa units in Australia and moved to Croatia on a permanent basis in 1976.  They sold other villa units in 1979 and 1996, keeping the fourth for rental and their own use.   

18.     The applicant’s stated reasons for leaving Australia in 1976 were family commitments, although by 1992 these were no longer a barrier to his return.  His stated reasons for not returning to Australia in the 1990s concerned the war in Croatia, although hostilities had ceased by about 1995.

19.     The Tribunal acknowledges that the applicant has retained his villa unit in Australia and has a niece and nephew living here.  However, the Tribunal accepts the evidence from the applicant and his wife that they maintain a close relationship with their three children and six grandchildren, all of whom reside in Croatia and have no intention of living in Australia.  The Tribunal also notes that the applicant has a half‑share in a house in Croatia which he intends to retain for his own use and that of his children.

20.     On balance the Tribunal finds that, at the date of application for age pension, the applicant’s financial and family connection with Croatia was stronger than his connection with Australia, and that he treated Croatia as his home. On the material available to the Tribunal it appears that his main reason for returning to Australia in April 2003 was for the purpose of applying for the age pension. For these reasons the Tribunal finds that, at the time of his application for age pension, the applicant 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(1). Consequently, under s 29(1) of the Administration Act the applicant was not able to make a claim for age pension.

DECISION

21.     The Tribunal affirms the decision under review.

I certify that the twenty‑one [21] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  17 May 2004
Date of decision:  26 May 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr D. Perdon, Centrelink