Sanmugasundaram and Secretary, Department of Family and Community Services

[2004] AATA 1158

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1158

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION            N2004/830

Re: Buvanentharan    Sanmugasundaram

Applicant

And: Secretary, Department of Family and Community Services

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             5 November 2004

Place:            Sydney

Decision:The tribunal affirms the decision under review.

. . . . . . . . . . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

Social Security – applicant a New Zealand citizen - application for certificate of Australian residence – applicant present in Australia for five days in three months commencing 26 February 2001 before returning to New Zealand – whether applicant residing in Australia in three months commencing 26 February 2001 – applicant has little ties with Australia in relevant period – applicant not a protected special visa holder – decision affirmed

Social Security Act 1991 s.7

Migration Act 1958 s.32

Commissioner of Taxation v Miller (1946) 73 CLR 104

Taslim v Secretary, Department of Family and Community Services [2004] FCA 789

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. On 3 June 2004 the Social Security Appeals Tribunal affirmed the decision by a Centrelink review officer that Buvanentharan Sanmugasundaram is not an ‘Australian resident’, as defined by s.7 of the Social Security Act 1991 (the Act). That is the decision to be reviewed in this matter.

background

2.      The applicant was born in Sri Lanka on 26 April 1952.  He is married to Leela Sanmugasundaram and they have three children, aged 14,10 and 5. He is a resident of New Zealand and became a citizen of New Zealand on 2 April 2001.

3. Travelling alone, the applicant entered Australia on 15 May 2001 and on that day applied to Centrelink for a certificate of Australian residence. On 15 August 2001 Centrelink wrote to the applicant at 60 Bombay Street, Lidcombe, in Sydney, to tell him that the application could not be processed because they believed he had left Australia. Further, he was informed that his application could be reconsidered if he returned to Australia before 26 February 2004 but he would have to demonstrate that he had commenced to reside in Australia before 26 May 2001 (T15 in the documents lodged with the tribunal under s.37 of the Administrative Appeals Tribunal Act 1975).

4.      On 19 December 2001 the applicant asked Centrelink (T25) to reconsider his application and that the following information be taken into account in addressing the requirement that he reside in Australia before 26 May 2001:

1) Firstly, there was a burglary took place at my residence on 28.04.2001.  When I was in Australia in May 2001 my wife called me over the phone and asked me to return immediately saying that they were scared to live without me because of burglaries taking place in my area.  So, I hurried my return journey to New Zealand.

2) Secondly, my wife had been undergoing medical treatment for her nerves and muscle condition since 2000.  I could not stay longer away from her because I had to take her for treatment.

3) Thirdly, my wife and children were wanting to receive their New Zealand citizenship.  Hence, I could not bring them to Australia immediate. [sic]

5.      The applicant returned to Australia on 1 April 2002 accompanied by his wife and children.  He contacted Centrelink about his residency status on 3 April 2002 and was told that his application had been rejected.

6.      On 18 December 2003 the applicant advised Centrelink that he wished to apply for a transitional Australian residency certificate (T35). The applicant made a statement on 12 January 2004 in support of his application and stated that his only purpose for arriving in Australia on 15 May 2001 was to live here permanently. He opened a bank account, registered at the Australian Taxation Office, signed a residential lease and tried to get a job.  Unfortunately, after three days in the country, his wife asked him to return to New Zealand, for the reasons previously set out in his letter of 19 December 2001. He stated that he came again to Australia with his family on 1 April 2002, after they had obtained their New Zealand citizenship.  He concluded by saying that Australia offered his children greater options for higher study, a climate more favourable for his wife’s health and the opportunity to be with family and friends. He gave Centrelink, among other things, copies of his wife’s medical reports, his application for a tax file number and police reports about the burglary.

7.      On 17 February 2004 an authorised review officer confirmed Centrelink’s decision to reject the application for a certificate of Australian residence. The SSAT affirmed that decision and the applicant then appealed to the tribunal.

evidence

8.      At the hearing the applicant gave evidence with assistance from an interpreter in the Tamil language.  He said he did not dispute any of the factual material referred to in the SSAT’s reasons for decision under the heading ‘Information provided at the hearing’.

9.      After returning to New Zealand on 19 May 2001, he said he did not leave that country again until he came to Australia with his wife and family on 1 April 2002. He has not travelled out of Australia since 1 April 2002.

10.     In cross-examination he agreed that before coming to Australia in May 2001, a friend had told him about the proposed changes to Australia’s social security laws that would affect New Zealand citizens in Australia. He knew that he should come to Australia before 26 May 2001 in order that he not jeopardise his eligibility for social security payments. Asked why he opened the bank account and applied for the tax file number on 16 May 2001, the day after he arrived in Australia, and on the following day entered into a tenancy agreement, he explained that he was staying with relatives and did not want to be a burden on them. He intended to find employment immediately since he brought only $500 with him. In that regard, he said his friend Sivaguru Manogharan, who had a construction business, would help him get a job. The applicant said that prior to coming to Australia in May 2001, he told his New Zealand employer that he intended staying here. 

11.     The applicant said his family did not accompany him to Australia because they were waiting on their New Zealand citizenship. His wife assured him that she would cope with looking after the children while he was living in Australia.  To encourage her, he told his wife he had a return ticket to New Zealand. As it turned out, she phoned him just days after his arrival and asked for him to return. She was not coping because of difficulties with her health, specifically her abdomen and her right arm.  As well, she and the children were scared living in the house alone because it and neighbouring properties had recently been burgled. He said that when he returned to New Zealand, his wife told him about seeing a prowler on one of the nights he was away and this also made her frightened. He said he had forgotten about this incident until recently.  However Mrs Sanmugasundaram, who also gave evidence, provided an inconsistent account, saying that she told her husband about the prowler when she phoned him in Australia.  In relation to the numbness and pain in her upper limbs, she said that she first developed symptoms in her left arm and she now experiences symptoms in both arms but not the hands.  This evidence is inconsistent with the applicant’s, who referred only to his wife having problems with her right arm and hand.

12.     Mr Manogharan gave evidence. He confirmed he was the person named as the landlord on the tenancy agreement (T8) and that he had shown the property to the applicant. Mr Manogharan said that at the time, he was living in that property at Bombay Street, Lidcombe, but was planning to buy it and that the applicant was aware of that plan. This evidence contradicted the applicant’s evidence, and the evidence he gave at the SSAT, that he did not know whether Mr Manogharan owned the property. Mr Manogharan did not go ahead with the purchase and he said that explained why the copy of the tenancy agreement in the T documents was unsigned. He said he was going to employ the applicant in his building and construction business, doing clerical and administrative work and some cleaning. Because he trusted the applicant, Mr Manogharan said he also wanted him to look after the cash payments to his contractors. He said the applicant told him he had to leave Australia because of an emergency in New Zealand.

13.     The applicant made enquiries with the relevant Australian authorities in February 2002 about bringing his car into Australia (T27-45). He explained that he had not done so prior to coming here in May 2001, because he thought the car might be useful to his wife in New Zealand if she decided to learn to drive.

14.     In New Zealand, the applicant was the co-ordinator of a Tamil school and welfare association. Although he has not taken up a similar position in Australia, he said he contributes to his community by helping in the temple and collecting money for it.

consideration and findings

15. This matter requires consideration of the provisions of the Act that deal with residency. The Act states that the term ‘Australian resident’ is defined in s.7(2)

7(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.

Note: For holder, permanent visa and special purpose visa see subsection (1).

16. The applicant is not an Australian citizen and is not the holder of a permanent visa. As a New Zealand citizen and holding a New Zealand passport, he is a special category visa holder under s.32 of the Migration Act 1958. It is necessary to decide whether he is a ‘protected SCV holder’, an expression dealt with in s.7(2A) as follows:

7(2A) A person is a protected SCV holder if:  

(a)  the person was in Australia on 26 February 2001, and was a special    category visa holder on that day; or

(b)  the person had been in Australia for a period of, or for periods totalling, 12      months during the period of 2 years immediately before 26 February 2001,           and returned to Australia after that day.

The applicant does not satisfy s.7(2A) because he was not present in Australia on 26 February 2001, it not being in dispute that he first visited Australia on 15 May 2001.

17. There are a number of other provisions in the Act regarding a protected SCV holder. As the applicant had not previously been in Australia before 15 May 2001, he does not satisfy s.7(2B), which reads:

7(2B) A person is a protected SCV holder if the person:

(a)  was residing in Australia on 26 February 2001; and

(b)  was temporarily absent from Australia on 26 February 2001; and

(c)  was a special category visa holder immediately before the beginning of         the temporary absence; and

(d)  was receiving a social security payment on 26 February 2001; and

(e)  returned to Australia before the later of the following:

(i)  the end of the period of 26 weeks beginning on 26 February 2001;

(ii)  if the Secretary extended the person's portability period for the           payment under section 1218C—the end of the extended period.

Similarly, he does not satisfy s.7(2D) which requires the person to have been residing in Australia on 26 February 2001.

18. Next, s.7(2C) of the Act falls for consideration:

7(2C) A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:

(a)  the time is during the period of 3 years beginning on 26 February 2001; or      (b) the time is after the end of that period, and either:

(i)  a determination under subsection (2E) is in force in respect of the                  person; or

(ii)  the person claimed a payment under the social security law during                 that period, and the claim was granted on the basis that the person                 was a protected SCV holder.

19.     Did the applicant commence to reside in Australia during the three months from 26 February 2001 when he was present here for only five days? Whether a person resides in a place is a question of fact (Commissioner of Taxation v Miller (1946) 73 CLR 104).

20. The applicant maintains that on coming to Australia in May 2001, he intended to stay here alone until his family left New Zealand and joined him. Unexpectedly, he had to return to New Zealand. But before doing so, he had taken certain action –opening the bank account, obtaining the tax file number, finding a property to lease and setting about to get a job – that demonstrates his intention to reside in this country. However, in a recent case concerning s.7 of the Act, Beaumont J held that “ … the term ‘residence’ encompassed both temporal and emotional factors, so that, relying on the ordinary dictionary meaning, there must be both a physical presence in the particular place, as well as the intention to treat that place as ‘home’.” (Taslim v Secretary, Department of Family and Community Services FCA [2004] 789 at [36]).  

21. Section 7(3) of the Act sets out a non exhaustive list of matters to be taken into account in deciding whether a person is residing in Australia:

7(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 permanently in Australia.

I will discuss the evidence relating to each of these paragraphs in s.7(3).

22.     While present in Australia for five days in May 2001, the applicant stayed with relatives of his wife. He did not have to pay for the accommodation. He told the tribunal  that he wanted to find his own place because he did not want to be a burden on them. Although he said he had an agreement to rent the Lidcombe property for six months from 17 May 2001, his evidence about his planned occupancy of the property was inconsistent with Mr Manogharan’s evidence. Moreover, the applicant did not give the Lidcombe property as his address to the ATO or to the bank.  I am not satisfied that the tenancy agreement was genuine. I also note that there was no change in the family’s living arrangements in New Zealand prior to April 2002.  They did not move out of the premises that had been burgled.

23.     Taking into account his evidence about not wanting to burden his relatives, I formed the impression that the applicant does not have close family in Australia. There is no evidence before me that would suggest otherwise.  His immediate family did not accompany him here, choosing to remain in New Zealand because they wanted to obtain their New Zealand citizenship.  His family ties in the three month period in question were much closer to that country, not Australia.

24.     The applicant came to Australia without any employment having been arranged.  Although he told his New Zealand employer that he was coming to Australia to settle, on his return the following week he resumed that employment. I infer that he did not take any formal steps to end his employment arrangements in New Zealand. There was no evidence of his having any business ties to Australia.

25.     As for assets, the applicant did open a bank account at Strathfield during the three month period. However, he also kept open the joint account with his wife in New Zealand. He left his car in New Zealand even though his wife does not drive and, given her upper limb problems, it would be unlikely that she might learn to drive. There was no evidence that the car would be sold while he was in Australia. This factor also militates against finding a connection with Australia.

26.     The applicant visited Australia for only five days in the period.  For the rest of that time, he was living in New Zealand. Indeed, until he settled here in April 2002, that has been the applicant’s only visit to Australia.

27. The applicant suggested that Centrelink’s letter of 15 August 2001 stating that his application for a certificate of Australian residence may be reconsidered if he returned to Australia before 26 February 2004, induced him to stay in New Zealand. I accept the respondent’s submission that this letter is referring to s.7(2F)(b)(ii) of the Act. That is, if a person can establish they were a residing in Australia in the three months from 26 February 2001, they must apply to the Secretary before 26 February 2004 to make a determination that they were so residing.

28. The question remains: was the applicant residing in Australia within that period? Taking account of the factors set out in s.7(3), I am satisfied that he was not residing in Australia in that period. His presence in Australia was limited to the five day visit in May 2001. Consequently, I find as a fact that he did not then commence to reside here. He returned to New Zealand after that brief visit, where he remained for almost a year. Moreover, contrary to his assertion, I am not satisfied that he had the intention of residing in Australia on arrival on 15 May 2001. I have come to that conclusion based on the inconsistencies in the applicant’s evidence about the tenancy agreement with Mr Manogharan; the nature of his wife’s upper limb symptoms which he thought affected her right arm and hand; the timing of the discussion with his wife regarding the prowler incident; the joint account that he kept open in New Zealand and his reason for leaving the car behind in New Zealand.

29. Accordingly, I find that the applicant does not satisfy s.7(2C) and is not a protected SCV holder. Thus he is not covered by s.7(2)(b) and is not an Australian resident as defined in s.7(2). Centrelink’s decision not to grant him a certificate of Australian residence was correct.

30.     The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of P J Lindsay, Senior Member:

Signed:         .....................................................................................
  Associate

Date of Hearing  29 October 2004
Date of Decision  5 November 2004
Applicant  Self-represented

Respondent’s representative  Centrelink