SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and ZORAN CURCIC AND VESNA MISKAR

[2009] AATA 186

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 186

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2954

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And ZORAN CURCIC AND VESNA MISKAR

Respondent

DECISION

Tribunal Regina Perton

Date19 March 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – disability support pension – ongoing portability of payment – whether respondents resumed permanent residence of Australia – decision under review affirmed 

Social Security Act 1991 ss 7(3), 1217, 1218AA, Clause 135 of Schedule 1A

REASONS FOR DECISION

19 March 2009 Regina Perton       

1.      Zoran Curcic migrated to Australia from Yugoslavia in 1982 as a young man. His partner, Vesna Miskar, migrated from Yugoslavia around 1975. They commenced living together in Australia around 15 years ago.  They have a son who is almost ten years old.  Mr Curcic, Ms Miskar and their son are Australian citizens. 

2.      Mr Curcic has been receiving disability support pension (DSP) since 5 February 1998.  Ms Miskar has been receiving DSP since 21 April 2000. 

3.      Centrelink administers DSP for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary).

4.      Mr Curcic and Ms Miskar travelled overseas for just over two months in  2002 and then departed Australia on 5 November 2003.  When they left in November 2003, Centrelink informed them that they were entitled to receive DSP indefinitely while living overseas.    

5.      Mr Curcic and Ms Miskar returned to Australia on 25 January 2005.  On 22 November 2005, after Mr Curcic and Ms Miskar had been back in Australia for almost ten months, Centrelink determined that they were again resident in Australia.  The impact of this decision is that if they return overseas to live, their DSP payments will only continue for 13 weeks. 

6.      Mr Curcic and Ms Miskar state that it was not their intention to reside in Australia permanently again.  Ms Miskar, in particular, is anxious to return to Serbia.  Mr Curcic does not really care if he lives in Australia or Serbia but wishes to live where his partner prefers.  Ms Miskar is in a fragile state and if she is happier in Serbia, then that is where he will live.  Mr Curcic and Ms Miskar considered themselves temporarily in Australia when Centrelink decided that they had resumed residency in Australia. 

7.      On 15 October 2007 Mr Curcic and Ms Miskar sought internal review by an authorised review officer (ARO) of Centrelink’s decision concerning their residency.  On 9 November 2007, the ARO affirmed Centrelink’s decision. 

8.        On 27 November 2007 Mr Curcic and Ms Miskar lodged applications for review with the Social Security Appeals Tribunal (SSAT).   On 29 May 2008 the SSAT set aside the decisions under review deciding that Mr Curcic and Ms Miskar are not Australian residents and that their entitlements to DSP be considered on that basis. 

9.      On 1 July 2008, the Secretary lodged an application for review of the SSAT’s decision.

10.     The issue for the Tribunal is whether Mr Curcic and Ms Miskar have resumed residence of Australia and are therefore entitled only to limited portability of their DSP.

LEGISLATIVE REQUIREMENTS

11. Clause 135 of Schedule 1A to the Act sets out that a DSP recipient may be paid DSP for an indefinite period while living overseas if that person was absent from Australia on 1 July 2004. If the person returns to Australia after 1 July 2004 on a temporary basis and then goes back overseas, then they can maintain the DSP payments indefinitely. If the person resumes residence of Australia and then later returns overseas, they are subject to the provisions in s 1217 of the Act which sets a maximum portability period of pension payments. For DSP, the portability period is 13 weeks after departure from Australia. Section 1218AA allows for an extended portability period for DSP in very limited circumstances primarily where a person is terminally ill.

12. Section 7(3) of the Act sets out a number of factors to be taken into account in determining whether a person is residing in Australia.

(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.

ARE MR CURCIC AND MS MISKAR RESIDING IN AUSTRALIA?

13. Mr Curcic represented himself and his partner at the hearing. Ms Miskar was not well enough to give evidence. In considering whether Mr Curcic and Ms Miskar reside in Australia, the Tribunal will consider the evidence under the relevant headings in s 7(3) of the Act.

The nature of the accommodation used by the person in Australia

14.     When Mr Curcic and Ms Miskar returned to Australia they initially stayed with Mr Curcic’s brother.  On 7 November 2005 they purchased a house in Doveton  in which they now live.  Mr Curcic gave evidence that they had purchased the house because their pensions had been reduced as they had sold a property in Australia and another in Serbia.

The nature and extent of family relationships the person has in Australia

15.     Ms Miskar has a married adult son from a previous relationship living in Australia. 

16.     Mr Curcic has a brother who lives in Dandenong whom he says he rarely sees.   His brother has no children.  He has a sister also living in Dandenong whom he sees regularly.

The nature and extent of the person’s employment, business or financial ties with Australia

17.     Neither Mr Curcic nor Ms Miskar is working in Australia nor do they own a business.  After Centrelink made its decision that they had resumed residence in Australia, Mr Curcic claimed carer allowance and family tax benefit.  He told the Tribunal that he had done so only because Centrelink had made a decision that he was a resident.  He said that he thought he may as well apply for the benefits he had not applied for previously as he believed he was a still temporary resident.

The nature and extent of the person’s assets located in Australia

18.     Mr Curcic and Ms Miskar purchased a property in Doveton in which they now live on 7 November 2005.  They also purchased an investment property in another street in Doveton for which they obtained an investment loan.  The investment property is rented out.  They have purchased a car.

The frequency and duration of the person’s travel outside Australia

19.     Mr Curcic and Ms Miskar were outside Australia from 17 July 2002 to 21 September 2002.  They left Australia on 5 November 2003 and returned on 25 January 2005.  When they left Australia in November 2003, it was their intention to live in Serbia.  They foreshadowed that they would be returning temporarily in January 2005 for an unknown period. 

Any other matter relevant to determining whether the person intends to remain permanently in Australia.

20.     Before returning to Australia on 25 January 2005, Mr Curcic contacted Centrelink three times to ask about the ramifications for his and Ms Miskar’s DSP payments if they returned to Australia temporarily.  Centrelink records verify that Mr Curcic contacted Centrelink regularly while living in Serbia and later in Australia to update financial details, sales of assets and the like.  

21.     Mr Curcic phoned Centrelink on 4 January 2005, 17 January 2005 and 20 January 2005 about his proposed temporary return to Australia.  During the first call, he was told that he could stay in Australia for a holiday.  He was also informed that if he returned permanently to Australia and then left again, he would only receive DSP for 13 weeks.  At that stage, Mr Curcic told Centrelink that he was unsure about when he and his family would travel.  On 17 January 2005, Mr Curcic informed Centrelink that he and his family were returning to Australia on a temporary basis.  He provided his brother’s address in Australia as their initial address.  He also asked if his son could attend school while they were here and reinforced that their visit was temporary.  On 20 January 2005, Mr Curcic again contacted Centrelink.  He was advised that if his son goes to school in Australia for six to 12 months, this would not affect his pension.  He was also advised that as he was only returning temporarily, he would not be entitled to a concession card, rent assistance or the like.   

22.     At the hearing, Mr Curcic said that he had only applied for family tax benefit and carer allowance after Centrelink declared that he and his wife were now considered to be permanently residing in Australia.  He pointed out that he had not applied for the additional entitlements of a resident until then.  He said that if Centrelink thought he was a resident, he may as well have the entitlements of a resident.  He said that he was aware that he may have to pay back those additional benefits if the Tribunal found he was not resident in Australia.    

23.     Mr Curcic said that it had always been Ms Miskar’s wish for the return to be temporary and that he did not care if he lived in Australia or Serbia.  He said that he is concerned for his partner and his only wish is for her to feel happy about where they live.  If she wanted to be in Serbia, then that was where he wanted to be.  Mr Curcic said that Ms Miskar’s illness made life quite difficult for him and that he would still be working had his mental health not gone downhill following her injuries and ongoing poor health.   

24.     This is a case where the Tribunal must balance evidence that the respondents were intending to stay temporarily in Australia against factors that tend to show they had resumed residence.   

25.     Centrelink submitted that before and after their return to Australia on 25 January 2005, Mr Curcic and Ms Miskar had engaged in a course of conduct that was suggestive that they intended to resume permanent residence in Australia. 

26.     Centrelink submitted that buying property in Australia and selling property in Serbia provides objective evidence of an intention to reside in Australia rather than Serbia.  Centrelink cited the sale of a flat in Serbia with settlement in November 2004 without the purchase of a replacement property as an indicator that Mr Curcic and Ms Miskar intended to return to Australia.  Mr Curcic stated that he had sold the property because his wife was not comfortable there.  They had bought a new apartment off the plan.  His wife did not like living in the third floor apartment so they sold it after six to seven months of purchase.  Mr Curcic told the Tribunal that in Serbia he owned a one-third share of what had been his parents’ home and a two bedroom flat that was rented out.   He said that Ms Miskar is also entitled to live in the three-bedroom flat where she was born, which had been her father’s.  On the other hand, Mr Curcic and Ms Miskar have now purchased two properties in Melbourne, both at the lower end of the property market.  The Tribunal accepts that in many cases, property transactions such as those entered into by Mr Curcic and Ms Miskar would provide objective evidence of an intention to reside in Australia.  However, because of the particular facts and timing of the purchases in this matter, the Tribunal gives less weight to this factor than it might in other cases.

27.     Centrelink suggested that Mr Curcic’s response on his boarding pass when returning to Australia indicated an intention to resume residence in Australia.  He ticked yes to a question as to whether he intended to live in Australia for the next 12 months and described himself as resident returning to Australia rather than visitor or temporary entrant.    The Tribunal does not accept Centrelink’s submission about the boarding pass response.  Mr Curcic was a resident returning to Australia and he had already foreshadowed that the temporary stay could be up to 12 months.  His responses were accurate and are not evidence of an intention to stay permanently.

28.     Mr Curcic sought advice before he returned from Serbia about whether and for how long his son could attend school in Australia.  He said he always advised Centrelink of changes of assets.  He told the Tribunal that he had only purchased a home because his and Ms Miskar’s pensions had been reduced due to the cash they held from the sale of assets.  He said that he had intended to purchase a property for his son to use should he wish to return to Australia from Serbia to undertake university studies.  On asking Centrelink if he could do this, he was told that he would exceed the gifting provisions of the Act if he did so.  He therefore bought property in his name and that of Ms Miskar.

29.     The Tribunal does not accept Centrelink’s submission that Mr Curcic had expressly stated that he would only stay in Australia for six months and had exceeded that period of time thereby changing his intention. Centrelink’s records show that Mr Curcic had asked if his son could go to school in Australia for six to 12 months and was told that his son could and that such a stay could still be considered temporary.  Mr Curcic told the Tribunal that he had been advised by Centrelink Hobart that he could stay in Australia for up to 3.5 years and still be considered as temporarily in Australia.  Asked why he had bought a one-way ticket to Australia rather than a return ticket, Mr Curcic said that on Ms Miskar’s preferred airline, a return ticket was only valid for six months and they had anticipated that they might stay longer than that on a temporary basis.    

30.     Mr Curcic is in a difficult situation given the health and intentions of his partner.  The Tribunal is satisfied that Ms Miskar wishes to return to Serbia where she still has available a property where her late father had lived.  The Tribunal accepts that as at November 2005, Mr Curcic had only decided to purchase the property in Doveton in which they live because of the significant lowering of his and his partner’s DSP due to the amount of their liquid assets from property sales both in Serbia and Australia.

31.     Centrelink submitted that the failure by Mr Curcic and Ms Miskar to wind up their affairs in Australia is further evidence that they are residing in Australia.  The Tribunal accepts Mr Curcic’s explanation that it was Centrelink’s decision that has caused them to stay in Australia longer than originally intended.  Both Mr Curcic and Ms Miskar are unable to work and would not have income for more than three months if they returned to their preferable place of residence, Serbia.  The Tribunal received a report from Dr Peter Farnbach, the respondents’ general practitioner.  Dr Farnbach stated that he had been seeing both of them as patients for approximately 10 years.  He described the origin and seriousness of Ms Miskar’s condition and that of Mr Curcic and indicated their inability to work.  Given Mr Curcic and Ms Miskar have a dependent child and little if any capacity to work, it is not surprising that they have not yet made any effort to wind up their affairs here as it is impractical for them to do otherwise.

32.     Considering the evidence as a whole, the Tribunal accepts that Mr Curcic and Ms Miskar left Australia in 2003 with the intention of no longer residing in Australia.  The Tribunal also accepts that when they returned to Australia in January 2005, they intended to stay in Australia temporarily.  Mr Curcic was frank in giving evidence that he would have been prepared to stay in Australia if his partner had changed her mind and wanted to stay here.  However, she has not.  The Tribunal is satisfied that Mr Curcic’s intention was to live wherever his partner seemed to be more content.  In this case, it appears to be Serbia rather than Australia.

33.     Many of Mr Curcic’s and Ms Miskar’s actions which could be viewed as confirming that they saw themselves as resident in Australia were the result of Centrelink’s decision in November 2005.  Prior to that, they had not applied for any of the benefits to which they were entitled as residents.   The Tribunal accepts that the purchase of the house in November 2005 arose in the context of lower DSP payments as a result of cash assets from the property sales.  The Tribunal is satisfied that had it not been for Centrelink’s decision in November 2005, the respondents would not have applied for benefits such as family tax benefit, concession cards or the like. 

34.     The Tribunal agrees with the SSAT that Mr Curcic and Ms Miskar returned to Australia temporarily in January 2005 and have not resumed residence in Australia. 

DECISION

35.     The Tribunal affirms the decision under review.

I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of Ms Regina Perton, Member

(sgd) Mara Putnis

Clerk

Date of hearing:  18 December 2008

Date of decision:  19 March 2009
Advocate for the applicant:          Mr T de Uray, Centrelink Legal Services Branch
Advocate for the respondents:     Mr Z Curcic