Saba and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2592
•8 December 2017
Saba and Secretary, Department of Social Services (Social services second review) [2017] AATA 2592 (8 December 2017)
Division:GENERAL DIVISION
File Number: 2017/0864
Re:Lena Saba
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr I Alexander, Member
Date:8 December 2017
Place:Sydney
The decision under review is affirmed.
.................................[sgd]..................................
Dr I Alexander, Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – residence requirements – whether applicant resided in Australia during the qualification period – applicant does not meet residence requirements – decision under review is affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 7
Social Security (Administration Act) 1999 (Cth), Sch.2, s 29
CASES
Hafza v Director-General of Social Security [1985] 6 FCR 444
Secretary of Family and Community Services and Indigenous Affairs v Baccon [2006] FCA 773; (2006) 90 ALD 557
Taslim v Secretary, Department of Family and Community Services [2004] FCA 789
REASONS FOR DECISION
Dr I Alexander, Member
8 December 2017
Ms Saba, who is 53 years old, arrived in Australia from Lebanon in January 1991. She was granted Australian citizenship in July 1996.
On 8 November 2016, Ms Saba lodged a claim (‘the claim’) for Newstart Allowance (‘NSA’) under the Social Security Act 1991 (‘the Act’).
The claim was rejected by Centrelink, both initially and on internal review, on the basis that Ms Saba did not meet the statutory Australian residence requirements for NSA.
In an oral decision dated 7 February 2017, the Social Services & Child Support Division (‘AAT1’) of the Administrative Appeals Tribunal found that Ms Saba was not qualified to receive Centrelink benefits at the time of her claim in November 2016 because she “does not” meet the definition of resident under Social Security Law.
In this proceeding, Ms Saba seeks review of the decision of AAT1.
At the time of the hearing, Ms Saba was resident in Lebanon and attended the hearing by telephone. She was self-represented and did not require the assistance of an interpreter.
ISSUES
The general rule with regard to a claim for a social security payment is set out in section 29 of the Social Security (Administration) Act 1999 (‘the Administration Act’) which states as follows:
1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia
2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
The rules for determining the qualification period with respect to claims for social security payments are set out in Schedule 2 of to the Administration Act. Clause 4(1) of Schedule 2 provides that a person’s qualification for a social security payment is to be considered for a period of 13 weeks from the date of claim. Therefore, ‘qualification period’ for Ms Saba’s for NSA is between 8 November 2016 and 7 February 2017.
The Respondent contends that although Ms Saba was in Australia during the qualification period when she lodged her claim she was not an “Australian resident” and therefore did not satisfy 29(1)(a) of the Act and did not qualify for NSA.
The reference to “Australian resident” in s 29(1)(a) of the Administration Act is defined in section 7 of the Act which provides as follows:
7 Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the same meaning given by subsection (2)
(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)a special category visa holder who is a protected SCV holder
(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 permanent in Australia.
It follows that the central issue in this matter is whether, during the qualification period, Ms Saba was an Australian resident. As there is no dispute that Ms Saba was an Australian citizen at the relevant time the definitive issue is whether during the claim period Ms Saba was residing in Australia within the meaning of the definition in s 7 of the Act.
EVIDENCE
Immigration records confirm that, since 2007, Ms Saba has travelled to Lebanon on multiple occasions and spent considerable time living in Lebanon.
On 27 June 2010, Ms Saba travelled to Lebanon and did not return to Australia until 11 June 2011.
During that year in Lebanon, Ms Saba was married for a second time on 20 December 2010. Since her marriage Ms Saba has spent significantly more time residing in Lebanon than in Australia.
The records indicate that in the almost 7 years since her marriage she has returned to Australia on 5 occasions for periods of 25, 12, 12, 13 and 15 weeks, that is, more than 75% of the time was spent residing in Lebanon with her husband
On her most recent trip to Australia, she arrived on 7 November 2016 and returned to Lebanon on 27 February 2017 where she currently resides.
Ms Saba visits Australia to spend time with her adult son and daughter and their families. While in Australia, she would live with her son. During the last visit, she was no longer able to stay because her son was rebuilding his home. She has not been able to stay with her daughter because of family issues.
In a brief written statement dated 23 September 2017, Ms Saba’s son indicated that he was building his own home and was living with his father’s family and could not provide accommodation for his mother. Ms Saba told the Tribunal that her son had only recently moved into his new house.
At the hearing, Ms Saba conceded that apart from the accommodation that had been provided by her son she had no other means of accommodation in Australia.
Ms Saba told the Tribunal that she had no assets in Australia, no longer had an active bank account in Australia, had no capacity for earning income because of her health problems, and that if she stayed in Australia her only source of income would be Centrelink payments.
Ms Saba told the Tribunal that in Lebanon she lives with her husband in a “unit” that is part of an unsettled inheritance and that the title of the property is “controlled by the bank”. Her husband is a carpenter and has his own business as a subcontractor but work is limited and there are financial difficulties.
Ms Saba told the Tribunal that she is the second youngest of six siblings and has three brothers and two sisters. She explained that her siblings and their families who all live in Lebanon provide significant emotional and social support. In particular one of her sisters, who is a doctor, allows her maid to help with domestic chores such as cleaning. She added that her husband had two sisters and several uncles who live in Lebanon.
Ms Saba told the Tribunal that her intention is to live in Australia permanently but her husband has not been willing to relocate. He has not travelled to Australia or applied for a visa. The reasons for her husband’s reluctance to come to Australia are unclear but appear to be partly related to financial and business issues.
CONSIDERATION
The effect of the definition of Australian resident in s 7(2) of the Act is that an Australian citizen must reside in Australia in order to qualify for a social security payment. However, the Act does not provide a precise definition of resides in Australia
The concept of residence has been discussed in Hafza v Director-General of Social Security [1985] 6 FCR 444 and Taslim v Secretary, Department of Family and Community Services [2004] FCA 789 and confirmed in Secretary of Family and Community Services and Indigenous Affairs v Baccon [2006] FCA 773; (2006) 90 ALD 557. The concept is said to have two elements, namely, a physical presence in a particular place and the intention to treat the place as home.
In Baccon, the Court stated:
7 Residence, like domicile, is a factor that connects a person with a place. It is not a term of art; the precise meaning of expressions such as ‘resident’, ‘reside in’ and ‘is residing in’ in legislation will depend upon the context provided by, and the purpose of, that legislation.
8 As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat this place as home…
9 Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as a home.
Also, as noted above, s 7(3) of the Act provides a list of issues that must be considered, in deciding for the purposes of the Act, whether or not a person is residing in Australia.
There is no dispute that Ms Saba was in Australia at the date of claim and during the qualification period and she contends that she was residing in Australia when she lodged her claim for NSA.
Ms Saba submitted that she has been a citizen for more than 20 years and expressed a strong allegiance to Australia. At the hearing, she conceded that in recent years, she has spent considerable time living in Lebanon but submitted that her history of loyal citizenship should be a major consideration in deciding whether or not she was qualified for NSA. She referred to frequent visits and time spent in Australia with her two adult children and their families. She explained that her intention is to live permanently in Australia but that, since her second marriage in 2010, this has not been possible because her husband does not wish to relocate to Australia for financial and other reasons.
The difficulty for Ms Saba is that, in my view, the available evidence does not support her contention.
Ms Saba lodged her claim for NSA on the day after her most recent return to Australia and she returned to Lebanon shortly after the end of the qualification period.
Since Ms Saba remarried in November 2010, she has lived with her husband in Lebanon for most of the time. She has visited Australia for relatively short periods on five occasions to visit her adult children and during those visits she has been accommodated in her son’s home.
Ms Saba has no established permanent accommodation of her own in Australia. She has no financial or other assets and no sources of income in Australia.
In Lebanon, Ms Saba is dependent on her husband and receives emotional and other support from her own relatively extended family.
The evidence, in my view, demonstrates that since 2010, Ms Saba’s ‘established home’ has been in Lebanon with her husband. Her visits to Australia can best be described as temporary absences from her home in Lebanon.
Although Ms Saba states her intention is to return to Australia on a fulltime basis, there is no evidence to support a conclusion that this is likely to occur in the foreseeable future. It is clear that her husband has made no effort to come to Australia and appears to have no wish to relocate.
Therefore, I am not persuaded that for the purposes of the Act, Ms Saba was residing in Australia during the qualification period and therefore was not qualified for NSA.
DECISION
For the reasons set out above, Ms Saba was not qualified for New Start Allowance.
The decision under review is affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member
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Associate
Dated: 8 December 2017
Date of hearing: 20 November 2017 Applicant: In person Solicitors for the Respondent: Mr G Lozynsky, Department of Human Services
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