Sivasubramaniam and Secretary, Department of Family and Community Services

[2004] AATA 352

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 352

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1665

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RAVEENDRAN SIVASUBRAMANIAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date16 March 2004

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.

[SGD] N Bell
    Member

CATCHWORDS

SOCIAL SECURITY – New Zealand citizen – protected special category visa holder – residency requirements - whether Applicant could be considered resident at a given time  – decision affirmed

Social Security Act 1991 – ss 7, 72A, 72C, 72E(b), 73

REASONS FOR DECISION

16 March 2004   Ms N Bell, Member     

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Member N Bell

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  16 March 2004

Date of Decision  16 March 2004

Representative for Applicant      Self-represented

Solicitor for Respondent              Mr Andrew Zhang

ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N03/1665
By Ms N.P. BELL, Member
R. SIVASUBRAMANIAM and DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, TUESDAY, 16 MARCH 2004

MS BELL:   I affirm the decision of the Social Security Appeals Tribunal. 

The remaining concession now available to New Zealand citizens in respect of permanent resident visas and Social Security entitlement is that they may be what is referred to as a protected special category visa holder. The relevant provision in the Social Security Act 1991 is section 7 and that provides for five instances where protected SCV or special category visa holder visa status may be conferred.

Most relevant to the circumstances of the applicant is that section 72A provides that the protected SCV holder has to be in Australia on 26 February 2002. However section 72C provides that if a person commenced living in Australia within three months of 26 February 2001 then that person can ask that a determination be made under section 72E(b) to the effect that they had commenced residing in Australia within three months of 26 February 2001.  Such a determination was requested by the applicant and Centrelink refused the request on the grounds that the applicant did not commence residing in Australia on 24 May 2001 as he contended.  24 May 2001 is, I understand, the last day in the period of three months following 26 February 2001.

Section 73 of the Act lists factors which are to be taken into account in deciding whether a person is residing in Australia.  They include the nature of the accommodation used by the person in Australia, the nature and extent of the family relationships the person has in Australia, the nature and extent of the person's employment, business or financial ties with Australia, the person's assets located in Australia, the frequency and duration of the person's travel outside Australia and any other matter relevant to determining whether the person intends to remain permanently in Australia.

Let me say at the outset that I considered the applicant's evidence to be straightforward and honest and I appreciate the honesty with which he gave his evidence.

I accept his evidence that he is a New Zealand citizen who arrived in Australia on 24 May 2001.  He lodged an application for an Australian resident's certificate on 29 May 2001.  He opened a bank account at the Commonwealth Bank with an initial deposit of some $5, registered as a job seeker and applied for a tax file number.

The applicant brought with him $2000 and stayed with friends and began to look for a place to rent.  He looked at two or three properties.  He had a flexible air ticket which allowed him to return to New Zealand within three months and he did so on 2 June 2001.  I accept that he had originally purchased such a ticket so that he could return to New Zealand about one or two months later to bring his family back to Australia.

The applicant did not return to Australia until 23 November 2002.  I accept his evidence that at that time, that is in May 2001, his wife had been ill for some time and that her illness in May had escalated and continued to fluctuate throughout 2001.  I accept that one of the applicant's aims was to obtain family support for his wife, given that a number of members of her family live in Australia.  I accept the applicant's evidence that in December 2001 his wife's sister, who normally resides in the UK, convinced her to make the move to Australia and that his wife and their daughter arrived in Australia in May 2002 and stayed with her cousin who is a consultant psychiatrist.

When the applicant returned to New Zealand in June 2001 he resumed a course in laboratory technology that he had commenced and completed the course at the end of 2001.  I note that the applicant had enrolled in that course in November or December 2000.

The applicant arrived in Australia in November 2002 with his son and I accept that he did not accompany his wife in May 2002 because he had to make arrangements for his father, who had settled in New Zealand and he also did not wish to interrupt his son's schooling.  I accept that the applicant had become a New Zealand citizen in January 2001 and at that time decided to migrate to Australia.

I accept that the applicant was not encumbered by home ownership or other significantly valuable possessions and would have been able to move his family to Australia at short notice.  I accept the evidence of Mr Manikkawasekan that the applicant did intend to reside in Australia when he arrived in May 2001.

I consider that the applicant, when he arrived in Australia in May 2001, had the intention of residing here, however I consider that an obstacle to that residence remained in the form of his wife's condition and his concerns for her preparedness to move to Australia and his concerns for her medical treatment needs and her ability to travel.

It was the applicant's wife's condition that compelled the applicant to return to New Zealand in June 2001, less than two weeks after his arrival, and it was not until May 2002 that this obstacle could be overcome.  The applicant then faced another obstacle in the form of his father's need for his assistance in New Zealand.  When this further obstacle was dealt with he made good his intention to reside in Australia.

I accept that it was the applicant’s intention to reside in Australia but he was not able, for the reasons outlined above, to put that intention into effect until November 2002.

Mr Zhang for the respondent urged me to compare the applicant's circumstances in May 2001 when he first arrived in Australia with his circumstances in November 2002.  I consider that to be a useful approach and it leads me to conclude that the applicant did not become resident in Australia until November 2002.

For these reasons I consider that the applicant was not resident in Australia on 24 May 2001 and I affirm the decision under review.