Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Guido Kolominskas
[2012] AATA 513
•6 August 2012
[2012] AATA 513
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2381
Re
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
APPLICANT
And
Guido Kolominskas
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 6 August 2012 Place Brisbane The decision is affirmed.
………………..[Sgd]…………………
Deputy President PE Hack SCCATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – qualification for age pension – respondent worked in China for extended period – did not have a right to reside full-time in China – returned to Australia between periods of employment – maintained household in Australia – decision affirmed.
LEGISLATION
Social Security Act 1991 ss 7(2), 7(3), 1220
CASES
Re Clifopoulos & Secretary, Department of Social Security [1994] AATA 282; (1994) 36 ALD
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931REASONS FOR DECISION
Deputy President PE Hack SC
6 August 2012
Mr Guido Kolominskas was born in Germany in April 1946 but he is, and has been for very many years, an Australian citizen. He is a teacher by profession. Between September 1999 and April 2011 (when Mr Kolominskas turned 65) he pursued that profession in China. Shortly after his 65th birthday, and having returned to Australia, Mr Kolominskas applied for age pension. His claim was granted.
On 1 December 2011 Mr Kolominskas travelled to China. He returned to Australia on 17 December 2011. On 2 December 2011 Centrelink, on behalf of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, decided that Mr Kolominskas was not qualified to be paid age pension during the period of this absence. That decision was affirmed on internal review on 7 February 2012. On 14 May 2012 the Social Security Appeals Tribunal set aside the decision and substituted the decision that Mr Kolominskas was entitled to be paid age pension in the period from 1 December 2011 to 16 December 2011.
The Secretary seeks a review of that Tribunal's decision.
The legislative basis of the proceedings is s 1220 of the Social Security Act 1991 (Cth). So far as is relevant it provides,
(1)If:
(a) a person is an Australian resident; and
(b)the person ceases to be an Australian resident; and
(c)the person again becomes an Australian resident; and
(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i)an age pension; or
(ii)a disability support pension; or
(iii)a bereavement allowance; and
(e)after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; …
(f)…;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
The case for the Secretary is that before September 1999 Mr Kolominskas was an Australian resident, that he ceased to be an Australian resident in the period of his teaching in China between 1999 and 2011, that he again became an Australian resident in April 2011 and that, because he was absent from Australia between 1 December 2011 and 16 December 2011 i.e. within the period of two years after he again became an Australian resident, age pension was not payable to him during the period of that absence.
For his part, Mr Kolominskas contends that he remained an Australian resident throughout the period notwithstanding his absences in China between 1999 and 2011.
In the case of an Australian citizen the expression "Australian resident" is defined in s 7(2) of the Act as a person "who resides in Australia". Section 7(3) of the Act provides,
(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.
The Secretary’s submissions drew attention to the decision in Re Clifopoulos & Secretary, Department of Social Security.[1] In that case Deputy President McDonald said of s 7(3) of the Act,
The principles set out [in s 7(3) of the Act] codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that constitute the criteria will vary in each case. In the end, as is apparent from the wording in section 7(3)(f), the criteria are there to guide the decision-maker in determining the person's intention as to the place of residence. As was submitted by Mr Kearney, when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3) of the Act refers to "the nature of accommodation in Australia", the Tribunal would be entitled to consider the nature of the applicant's accommodation outside Australia.
[1] [1994] AATA 282; (1994) 36 ALD 745.
Accepting the cautionary note that the criteria are not to be applied mechanically they provide a useful starting point for consideration of the issue whether Mr Kolominskas resided in Australia during the periods of his absence in China between 1999 and 2011. And it will be useful, as well, to consider the converse of each factor at the same time.
There is no doubt that Mr Kolominskas spent considerably more time in China than he did in Australia between September 1999 and April 2011. The Secretary has undertaken an analysis of Mr Kolominskas’ departures and arrivals which demonstrates that during that period of about 11 1/2 years Mr Kolominskas was present in Australia for just over 66 weeks. The pattern that emerges from the departures and arrivals, confirmed by Mr Kolominskas in the course of the hearing, was driven by Mr Kolominskas' work pattern in China. He taught two semesters each of about five months, the first commencing in September, the second commencing in February. He had breaks in January/February and July/August each year.
Mr Kolominskas did not have a right to reside full-time in China. His Visa permitted him to reside there only during the currency of this employment. Thus, at the end of each semester, he had to leave China and could return only prior to the start of the new semester. Generally he returned to Australia during these breaks although on some occasions he travelled elsewhere internationally.
Mr Kolominskas’ employment, initially, was on the basis of 12 month contracts. Between 2002 and 2007 he was employed under a contract with a term of five years (but was still required to leave China between semesters). He reverted to single year contracts thereafter.
Mr Kolominskas’ personal circumstances during the relevant period were somewhat unusual. He was not then in a domestic relationship, his children were adults and self-supporting and, for considerable periods, lived overseas. He did not then need a large "home" in Australia.
The college where he taught in China provided accommodation for him. The accommodation was basic and prior to 2003 he had no access in it to a telephone, television or the Internet. He described it as a furnished unit; the description suggests that it was in the nature of a boarding house.
Mr Kolominskas did not own, nor rent, separate real property in Australia. Initially on his return to Australia he resided with his mother. After she passed away in 2003 he rented a room in his sister's house. His living conditions there were, he said, much more comfortable and convenient than those that he experienced in China.
As I have said Mr Kolominskas was not in any domestic relationship during this period of time and his children were grown up and self-supporting. Thus the family ties that he had with Australia were somewhat less than might normally be found. Nonetheless he maintained contact with them and visited them in parts of Australia on his trips back to Australia from China. Additionally his immediate family lived in Australia.
Mr Kolominskas had no family relationships in China.
Mr Kolominskas’s nominal employer was an Australian company with a head office in Perth. It was responsible for the payment of his salary, accommodation and medical insurance. Mr Kolominskas received superannuation payments (and paid income tax thereon) into a bank account in Australia and undertook normal banking transactions through Australian bank accounts. His personal possessions, clothing, books, papers and suchlike were kept in his room at his sister's house. That room was available to his children when visiting the family. He maintained some clothing and books but had little by way of personal possessions in China apart from a bicycle, the only means of travel for him in China.
The Secretary places great weight on the short-term nature of Mr Kolominskas’s trips back to Australia. That suggests, it is said, that he was merely taking vacations in Australia (as well as to other destinations) as opposed to maintaining any continuity of residence. The Secretary stresses that Mr Kolominskas was only present in Australia for 66 weeks out of 11 1/2 years.
Ultimately, I have come to the conclusion that during his absences in China Mr Kolominskas continued to reside in Australia. I think the proper characterisation was that he resided in Australia and travelled to China, generally twice per year, to engage in employment in that country for a period of up to 5 months. He maintained a household in Australia, albeit not a particularly substantial household, to which he returned between periods of employment. I acknowledge that during that period Mr Kolominskas was employed pursuant to a contract with a five-year term. But that contract did not give him the right to remain in China between semesters; he was still required to leave that country even when he was contracted to return.
The case is, I think, to be contrasted with the decision in Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2] to which the Secretary’s submissions drew attention. In that case the applicant was away from Australia for a continuous period of time. The key to the present case in my view is the repeated returns to Australia between periods of employment in China coupled with the maintenance of a household in this country. The case is, as the Social Security Appeals Tribunal observed, one where minds might reasonably differ as to the conclusion. Nonetheless I am of the view that Mr Kolominskas remained an Australian resident and thus did not cease to be an Australian resident.
[2] [2010] AATA 931
It follows that I would affirm the decision under review.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC. ................................[Sgd]........................................
Associate
Dated 6 August 2012
Date of hearing 23 July 2012 Respondent In person Advocate for the Applicant Mr R McQuinlan
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