Smolic and Department of Family and Community Services - [2000] AATA 921

DECISION AND REASONS FOR DECISION [2000] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/764

GENERAL ADMINISTRATIVE DIVISION          )
           Re      DRAGO SMOLIC
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Adj. Prof. L. S. Rodopoulos, Member

Date23 October 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review. Mr Smolic does not qualify for age pension pursuant to paragraph 7(2)(a) of the Social Security Act 1991.

......(Sgd) L. S. Rodopoulos.......
Member
CATCHWORDS
SOCIAL SECURITY – age pension – qualification – Australian resident – whether residing in Australia
Social Security Act 1991 ss 7(2), 7(3), 43(1), 51
Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Raad and Secretary, Department of Family and Community Services (2000) 4(4) SSR 53
Re Galati and Director-General of Social Security (1984) 6 ALD 538
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177
Re Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745

REASONS FOR DECISION

23 October 2000 Adj. Prof. L. S. Rodopoulos, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") sought by Mr Drago Smolic concerning a decision made by the Social Security Appeals Tribunal ("the SSAT") on 3 May 2000. The decision of the SSAT was that Mr Smolic was not an Australian resident as defined in sub-section 7(2)(a) of the Social Security Act 1991 ("the Act") at the date of application for age pension and therefore did not qualify for an age pension. The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services ("the Department") that, as at 9 November 1998, Mr Smolic did not qualify for an age pension (T19). The ARO's decision affirmed the original decision of a delegate of the Department made on 11 February 2000 (T18).
A hearing was held before the Tribunal in Melbourne on 25 September and resumed on 27 September 2000. Mr Smolic attended the hearing and provided oral evidence. Ms Janine Garner, a barrister instructed by the Coburg/Brunswick Community Legal & Financial Counselling Centre Inc, represented Mr Smolic. Ms Pat D'Cunha, of the Centrelink Advocacy and Administrative Law Team, represented the Department. Witnesses for Mr Smolic were Mr Frank Burin and Mr Slavko Goles and for the Department, Ms Pamela Webb and Ms Letizia Barco. Three, Level 3, interpreters in the Croatian language assisted the Tribunal at various stages of the proceedings, Ms Klara Maksimovic (on the afternoon of the 25th); Ms Monika Mayson (on the morning of the 27th) and Mr Ned Zakarija (on the afternoon of the 27th). The Tribunal admitted into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T25) and supplementary documents marked A1 to A7 (64 pages) and R1 to R2 (7 pages). A statement of facts and contentions was provided by the Applicant dated 7 September 2000 and the Respondent dated 7 September 2000.
The following exhibits were tendered (to avoid confusion with the supplementary documents herein identified in lower case) as follows:
Exhibit No. Description Date
a1       Tradesman's certificate C 6101 Drago Smolic. In the classification of Boilermaker 15 July 1970.
a2       Letter from Father Mato Krizanac Croatian Catholic Centre    23 September 2000
a3       Copies of income tax returns
a4       Copy of Westpac Passbook 05/06/98-18/09/00.
a5       Medical certificate Viewbank Family Medical Group     26 September 2000
a6       Letter from Sky Air Services         Undated
a7       Two Centrelink appointment letters         30 December 2000 13 January 2000
a8       Investment valuation          4 August 2000
r1        Letter and questionnaire sent by Centrelink to Ms L. Barco, Accountant      1 August 2000
r2        Passenger disembarkation card (copy - three pages) from Mary Bajurin, International Movement Records, Department of Immigration And Multicultural Affairs    26 September 2000
Legislation
A determination of this matter requires consideration of the provisions of the Act relating to qualification for an age pension.
Subsection 43(1) of the Act deals with qualification for age pension and states that:
"43(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a)the person has 10 years qualifying Australian residence;
(b)the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997."
Section 48 of the Act deals with making a proper claim for pension and "proper claim" is defined within section 49 of the Act as it relates to the form. Section 50 of the Act relates to the manner of lodgment and section 51 deals with the claimant's residence or presence in Australia. As relevant, section 51 of the Act states:
"51      A claim by a person is not a proper claim unless the person is:
(a)       an Australian resident; and
(b)       in Australia;
on the day on which the claim is lodged."
Subsection 7(2) of the Act defines an Australian resident and, as relevant, states:
"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)     the holder of a special category visa who is likely to remain permanently in Australia;
(iv)    the holder of a special purpose visa who is likely to remain permanently in Australia."
To determine whether a claimant "resides in Australia", the Act provides criteria for consideration within subsection 7(3) of the Act. As relevant, subsection 7(3) of the Act states:
"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."

Issue

It is not in dispute that Mr Smolic has reached pension age and has ten years qualifying Australian residence and thereby satisfies paragraph 43(1)(a) of the Act. Mr Smolic is also an Australian citizen (A2) and therefore satisfies subparagraph 7(2)(b)(i) of the Act. Mr Smolic was in Australia on the day on which he lodged his claim thereby satisfying subsection 51(b) of the Act. The issue before the Tribunal is whether Mr Smolic made a proper claim for pension pursuant to subsection 51(a) of the Act, that is, whether on 18 December 1999 Mr Smolic was an Australian resident, as defined within paragraph 7(2)(a) of the Act.
Background
It is not in dispute that Mr Smolic was born in Croatia on 28 December 1934 (A2, page 5). He grew up in Croatia and completed a technical qualification as a structural boilermaker/welder (T21, page 74). In May 1963, two years after he completed his schooling in Croatia, he immigrated to Australia. He obtained employment three days after his arrival in Australia. He subsequently obtained a tradesman's certificate as a boilermaker to enable him to obtain work with a range of government and non-government factories (Exhibit a1). Throughout the years he was always in employment. His last employment was as a subcontractor with Steelcon. In November 1997 he accepted a redundancy payment from Steelcon, as there was no further employment available.
On 19 September 1964 Mr Smolic married Darinka Cosic. During a visit to Croatia in 1984 Mr and Mrs Smolic adopted Marta, born on 13 June 1984, and brought her back to Australia. For a period of seven years hereafter Mrs Smolic left the workforce to raise Martha. Over the years Mr and Mrs Smolic undertook a number of overseas holiday trips and members of both their extended families made visits to Australia (Transcript, page 11). In 1996, on one of their trips to Croatia, Mr and Mrs Smolic met with Marta's birth-mother and she requested that Marta learn the Croatian language and be schooled there. Subsequent to this holiday Mrs Smolic decided that she would return to Croatia. This was because she wanted to contribute to the care of her elderly parents who had been badly affected by the war in Croatia (1991-1995).
Following the sale of their house on 22 November 1997 (Transcript, page 23), Mr Smolic went to Croatia one month before his wife and daughter joined him there in 1998 (Transcript, page 61). Soon after their arrival in Croatia they purchased a house. Mr Smolic returned to Australia on 28 November 1999.
Evidence of Mr Smolic
In addition to presenting the significant milestones in his life, summarised in the previous paragraphs, Mr Smolic explained to the Tribunal that when they had adopted Marta they had not met the birth-mother. His daughter had requested that they meet with her (Transcript, page 12). When they did so, in 1996, it had been traumatic as the birth mother had requested that they take Marta back to Croatia. Further, he explained that the events during the war in Croatia had greatly distressed his wife to the extent that she had required medical assistance. She had wanted to go to Croatia to fight and had suffered a break down. She was homesick. He stated that:
"She was very upset at the time when there was a war going on there and she wanted to go an [sic] see her parents and help them and she had a nervous breakdown at the time". (Transcript, page 12)

Mr Smolic said that his wife felt a strong commitment to assisting her parents, as was the cultural tradition. Children expected to take care of their ailing parents. Mrs Smolic's parents, being elderly, had suffered greatly as a consequence of the war that ended in 1995. The economy there was very poor and little work was available. When his wife insisted that she return to Croatia to care for her parents, he felt that there was no way out but to comply with her wish. After 35 years of marriage he did not want a divorce (Transcript, page 12).

As far as Marta was concerned, Mr Smolic said that she was a very good student and that they had endeavoured to broaden her experience by taking her on trips inside and outside Australia. On their first visit to Croatia their relatives were very pleased to see how she was progressing. She had experienced difficulties in adapting to life in Croatia and had to learn the language. She was not completely happy with the current arrangements. The plan is that she will remain in Croatia until she completes her education when she turns eighteen. At this time it will be up to her to make up her mind as to whether she wishes to return to Australia to carry on with her tertiary studies.
Mr Smolic told the Tribunal that the decision to sell up the family home in 1997, a home they had established in Rosanna and lived in for 24 years, had been difficult. They had built the house in a very nice area and it was a "beautiful house with a beautiful garden" and "friendly people" surrounded them. The house, jointly owned, sold for $180,000 but in Mr Smolic's estimation should have sold for $230,000. Asked how he felt about the sale he expressed, through the interpreter, that he "felt that it was not his house any longer".
Some of the furnishings in the house were sold, other items given to friends and some were stored at the house of a friend, Mr Paseta. Other items, including the lounge suite, dining table and chairs and television, were sent to Croatia in a shipping container. It was important to make these arrangements to ensure that the house that they subsequently purchased for $170,000 in Croatia was furnished. It had been very hard because he had to organise everything to live there. It had been difficult to start from scratch again. Initially they had lived with his brother and sister-in-law in Croatia and then bought the house in order that his daughter and wife had somewhere to live. The house is in the same region as his and his wife's extended families and Mrs Smolic's parents live on an island offshore, about a mile away. Mrs Smolic's sister also lives on the island. Her parents come across to the mainland from time to time and live with Mr and Mrs Smolic. In describing these living arrangements, Mr Smolic reiterated that, if he had not agreed to these arrangements, he had "no choice but to get divorced". As far as purchasing the house in Croatia Mr Smolic said:
"There were no prior arrangements but it just cropped up suddenly and then, you know, my wife insisted that this happens, and then I agreed. I did not have much choice, and I did not want to get divorced or anything." (Transcript, page 20)
Socially, Mr Smolic said that over the years in Australia he had established a wide range of friendships through his involvement with the Melbourne Knights soccer club and the Croatian church in Clifton Hill. He assisted the priest, when asked, practically and financially. He was active in the social club and attended dinner dances and other social occasions. He has two very close Croatian friends, Mr Frank Burin and Mr Slavko Goles, and a brother with whom he is "fairly close" and sister-in-law residing in Australia. A brother of Mrs Smolic also lives in Australia (Transcript, page 11). Mr Smolic has a brother and sister in Croatia. He misses his friends as he spent a lot of time with them in the past. Before he left for Croatia he had "made a BBQ" and his friends had expressed surprise that, for family reasons, he was leaving for Croatia. Some of these friends, including Mr Frank Burin, have visited him in Croatia (Transcript, page 19).
Addressing the question as to what his intention was in leaving for Croatia in 1998, Mr Smolic told the Tribunal that he had never said that he would not be coming back to Australia. Australia was his country and he had spent most of his time here:
"Well, my idea was to come back here and get a job. Since I was unable to obtain a job, then I approached Centrelink and I filled in the forms for - or I wanted to get the unemployment benefit but then they referred me to an [sic] another department and then just told me that I should rather fill in the forms for the aged pension." (Transcript, page 35)
He said that he had told his friends that it was his intention to bring his family back to Australia "…because life is better and easier here". They had asked him how he felt and how he lived back there. He had told them that one day he would see them back in Australia (Transcript, page 20). Mr Smolic further claimed:
"Well, my intention was to find a place to live and then settle down and start receiving my pension and eventually I hoped my wife, after things settled with her parents, I wanted her to come back here so that we can sell the house that we have there and buy something here." (Transcript, page 25)
As far as his wife is concerned, Mr Smolic said that she planned to return to Australia, as she had loved Australia as much as he did. If it had not been for family reasons she would not have gone back to Croatia. She had been more active socially than he had been here and life was much easier here (Transcript, page 39). Marta had visited him in July/August 2000 and he believed that when she completed her schooling in Croatia she would return. However she was still undecided and it depended upon where she could undertake her studies (Transcript, page 40). As far as his plans went he would only go to Croatia if someone died to attend the funeral out of respect to his wife. Australia was his country always and had provided him "…a good life all the way through" (Transcript, page 40).
In making his financial arrangements to leave Australia Mr Smolic left an amount of $120,000 in investment and bank accounts. He has drawn, and continues to draw, upon these investments to support his current living needs and those of his family in Croatia. He now has around $92,000 left in investments in Australia (Transcript, page 39). He explained to the Tribunal that, because of the uncertainties of the political and economic climate in Croatia, these investments were more viable here. The economy there is "poor and still is" and there is not much work. He also claimed that he had left these savings in Australia, as he was "…certain that he would come back and live here one day". In his absence, his niece, Nives Cosic (A3), handles his financial affairs.
At several points throughout the hearing Mr Smolic commented that, after 36 years of work in Australia, he considered that he deserved to receive the age pension. Both he and his wife had worked hard and he had earned good money. He had not applied for any benefit in the past and had never received a cent from the government. He had worked and paid off his home. For instance, in response to a question from the Tribunal, Mr Smolic said:
"…my wife and daughter are still there and I came back to live here and I am here. I don't really think that it is fair that I am here and I don't have any kind of assistance and I have lived and worked here for 36 years and I believe that I deserve something in return, some sort of pension or something." (Transcript, page 43)

In response to a question from Ms D'Cunha as to whether he had returned to Australia on 28 November 1999, a month before turning 65 years of age, with the intention of applying for the age pension, Mr Smolic said:

"Listen, I have to live. I was – I had to look for work because I have no help. I cannot imagine that after 36 years at work here that I have just been thrown onto the street like that." (Transcript, page 89)

In response to a question from Ms Garner, Mr Smolic sought to clarify that there had been no particular reason for his return to Australia at this time. He was an Australian citizen, liked the country in which he had lived all these years, and neither his wife nor daughter had any difficulties with his coming back. On his arrival he first resided with Mr Paseta, with whom he had stored some furniture items, and contributed only to the cost of his food. As Mr Paseta has since gone overseas he is now staying with Mr Slavko Goles, again rent free, covering only his food costs. Mr Goles insisted that he is "welcome at any time" but Mr Smolic questioned how long this arrangement could continue. This was of particular concern as he had not succeeded in finding employment nor in securing the age pension. As he was living off his savings he could not afford to pay rent. He had failed to secure a health and travel card benefit (Transcript, pages 22 & 36 refer).
Questioned by Ms Garner as to his activities since his return, Mr Smolic said that he had unsuccessfully sought employment with Steelcon. As he was not able to obtain employment he lodged the application for age pension. (T3, 4, 5, & 6, pages 21-41).
He also lodged income tax returns for himself and his wife (Exhibit a1). Mr Smolic explained that an accountant, Ms Letizia Barco, had filled out 85% of the application form, consisting of a number of Modules, for him. The Centrelink officer had filled out the rest. He said that he had gone to the accountant alone without an interpreter. He had not read the form either prior or after attending her office. "I just trusted her and I believed that she knew what she was doing" (Transcript, page 24). Questioned about the information provided on this claim form at Question 3 (T3, page 14) where a cross is marked in the "NO" box aside the question "Do you intend to stay in Australia permanently" Mr Smolic emphasised that it was a mistake. He was not really familiar with the form and had not checked it. As he had previously told the Tribunal, his intention was to remain in Australia permanently, to find a place to live and settle down after receiving his pension.

Referred to Module R (T6, page 40), which requests real estate details, Mr Smolic said that the writing was different from that of the other section of the form and was filled out by the Centrelink officer. The officer had made an error by ticking Question 1, which, he incorrectly assumed, indicated that that he owned a property of more than 2 hectares. During the hearing it was clarified that Mr Smolic had misinterpreted the lay out of the form and the tick did not refer to information, referring to "acres" lying in a parallel column to this question. It was also conceded that Module R did not need to be filled out as Mr Smolic only jointly owned the house in Croatia.
When Mr Smolic took his application form to the Centrelink office, on 22 December 1999, Module P, Partner Details, had already been signed by his wife. (T4, page 34). On this day he was interviewed by Ms Pamela Webb. According to Mr Smolic, Ms Webb was not very helpful. He claimed that:
"Well, just that she was the kind of person that really wasn't helpful and instead of explaining what the whole thing was about, you know, she didn't do that and she didn't – really didn't help.
Ms Garner: But do you say that you understood her completely at that time without an interpreter? I didn't understand her completely. I do understand quite a lot but not completely." (Transcript, pages 37 & 38)

According to Mr Smolic, Ms Webb was fairly negative saying that he was not eligible because he was not a citizen of Australia. He had found this "very hurtful". He asked her to provide an on-site interpreter but she wanted to use a telephone interpreter. Another appointment was arranged but, in the meantime, he received notification of rejection of the age pension, dated 23 December 1999 (T12).

Mr Smolic complained that, upon receipt of this rejection, he was not invited to attend an interview. (However, his rights to seek review from an ARO are set down in this notice.) Asked to comment on the file note, prepared by Ms Webb, of the interview conducted on 22 December 1999 (T10, page 49) Mr Smolic claimed that he did not declare that he did not intend to stay in Australia permanently. Nor had he mentioned that he had booked a trip and was returning to Croatia in January 2000. He had just booked a one-way ticket and there was no discussion about his returning to Croatia.
Referred to a file note, prepared by Ms Webb, of his subsequent attendance at her office on 13 January 2000 (T15, pages 56-57), Mr Smolic reiterated that he had requested an on-site interpreter in preference to the suggested telephone interpreter. A further appointment was made for 27 January 2000 for him to attend the office. This was the only time he was interviewed, by Ms Webb, with an interpreter. He claimed that he was not asked questions, on 13 January 2000, regarding the reason as to why his wife and daughter were in Croatia. This explained why Ms Webb had only noted his reference to his wife's homesickness.
At the interview on 27 January 2000, Mr Smolic signed a statement in Ms Webb's presence that records:
"My form was filled out by somebody else and the question 3 where it asks Do you intend to stay in Australia permanently is answered incorrectly, this should be YES. The house in Croatia is in my wife's name and I stayed there for eight months with her and our daughter. My wife bought the house because she was homesick. We have been staying there to see if it helps her. I came back to Australia to claim Pension as I am unable to get a job. I was staying with friends but I am now renting a bed-sitter and have a 6 month lease. I feel I need a card for transport and medication and I still have to support my family, if I could get work I would not come to Centrelink." (T16, page 58)

Mr Smolic said that aspects of this statement were incorrect. He came to Australia with a view to remaining here. He did not have a six month lease but he could not live much longer with his friend and this was the reason that he wanted the age pension. The house in Croatia was in both their names.

Mr Smolic denied that in his interview with Ms Webb he had said that he was planning to return to Croatia. In re-examination he told the Tribunal that he had been upset by Ms Webb's treatment of him and that a person who did not speak English should be paid more attention. This is the reason why he "asked to speak to someone who can speak Croatian" (Transcript, page 107).
Mr Smolic confirmed that Mr Burin had assisted him with his application to the SSAT (T21, page 73).
Responding to questions from Ms D'Cunha, Mr Smolic said that when he arrived in Australia he did not speak English. He had attended English classes in Australia for maybe six months but not as much as he wished. He had learnt the basics and did not require the English skills to read the drawings that he had to work to because he was well experienced. In administrative situations, such as presented in the Tribunal hearing, he required interpreting assistance. At Steelcon, where he last worked, he worked mainly with Italians and had become reasonably proficient in the Italian language. He spoke Croatian with his wife and daughter and read Croatian newspapers.
He further told the Tribunal that at Steelcon he worked as a sub-contractor and was only paid for the work he actually did. He became redundant in November 1997 but otherwise would have continued to work for Steelcon.
Through subsequent questioning Ms D'Cunha sought to clarify some apparent inconsistencies in the documentation regarding when Marta was adopted and the years and number of holidays (trips to Croatia) undertaken by the Smolic family. At this point the Tribunal indicated that it was satisfied that Marta was adopted two months after she was born. It was also satisfied that the family had undertaken a number of trips, as verified in the documents provided to the Respondent by the Department of Immigration and Ethnic Affairs and that these trips indicated Mr Smolic's strong links to Croatia. Further the Tribunal accepted that the family's meeting with Marta's birth-mother took place in 1996 and that a constellation of factors had resulted in the family purchasing the house in Croatia (Transcript at pages 71 & 102).
Ms D'Cunha also questioned Mr Smolic's motivation in lodging the income tax returns when he returned to Australia, indicating that his action was for financial gain rather than an indication of his plans to maintain his ties to Australia as argued before the SSAT. The Tribunal indicated that this was a spurious line of questioning given that all taxpayers have a duty to lodge their income tax returns and also a right to a monetary return if they are so eligible (Transcript, page 97). However, the Tribunal also indicated that it did not find this action persuasive in terms of Mr Smolic's intention to maintain his ties with Australia on a permanent basis.
Responding to another question from Ms D'Cunha, as to whether he had sold the family home before or after he learnt about his redundancy, Mr Smolic clarified that he was made redundant about a month before he sold the house on 22 November 1997. The decision to go to Croatia was made, according to Mr Smolic, after they had sold the house and during the three month period they had to move out (Transcript, page 73). In going ahead to Croatia, before his wife and daughter, Mr Smolic explained that a term deposit of $45,801 with the Bank of Melbourne (A5, page 29) had been cashed out in November 1997 and not transferred to Croatia. They had purchased airline tickets and met the costs of the shipping container in which they transported their furniture to Croatia (Transcript, page 82). The monies had also gone on other purchases, made by himself and his wife, but he could not recall exactly how these monies were spent. He thought it possible that, after he had left Australia, his wife had purchased jewelry and clothes. She had taken about $10,000 to Croatia. Other financial investments remained in Australia, as documented in evidence before the Tribunal (Transcript, page 83). Mr Smolic acknowledged that such investments are easily transferable to Croatia.
Mr Smolic was questioned by Ms D'Cunha, and later Ms Garner, about his passenger disembarkation card for his arrival in Australia in November 1999 (Exhibit r2). Three of the boxes "of choice" are marked. Mr Smolic agreed that he had marked "Holiday" under category "(B) Visitor or temporary entrant". However, Ms Garner suggested that his response was unclear as he had marked all the boxes (Transcript, page 111). The other two boxes refer to "(A) Migrating permanently to Australia" and "(C) Resident returning to Australia". Mr Smolic explained that he did not understand why age pension had been refused:
"I don't see the reason. First they said that I'm not a resident. I don't believe that Centrelink can take that away from … a citizen of this country." (Transcript, page 89)

Evidence of Ms Webb

Ms Pamela Webb has been a public servant for twenty-nine years and with Centrelink since its establishment. She was asked to speak to her file note of the 13 January 2000. The file note reads:
"Customer presented today for I/V as soon as he sat down he asked for an Interpreter. He had not requested one when he rang to make appt.
He has ticked 'NO' on form where it asks do you want and interpreter.
He asked why his pension had been rejected stating that he had only been overseas for a holiday, that his wife and daughter were living there because of his wife's homesickness.
He showed Tax returns and citizenship papers and stated that this should be enough for pension as he had lived here for 37 years.
I explained that this was not relevant and showed on forms where he had ticked his intention not to stay here permanently. At which time he requested an interpreter again I explained that it takes 5 days to have an interpreter at interview and had to make another appt for him with interpreter for 27/1/00 at 10.40 am." (T15, page 56-57)
Ms Webb confirmed the content of this file note, stating that the age pension was not a welfare payment and that his 37 years in Australia were irrelevant to his claim. As an interpreter had been requested she was reluctant to continue with the interview and did not question Mr Smolic about the details as to why his wife and daughter were in Croatia. Nor did she seek to explore Mr Smolic's understanding of the requirements for entitlement. At the first interview she had not told Mr Smolic her decision as she had wanted to check the legislation. She did reject the claim later the same day.
The main thing that had "popped out" to her attention on the application form was that Mr Smolic had ticked that he was not intending to stay in Australia permanently (Transcript, page 140). Ms Webb detailed the process by which appointments are organised through the Centrelink Call Centre and how assessment interviews are conducted. She explained how she assessed the English capacity of individuals. She said that she tended to pick up whether a person understood what she was saying even though a person spoke in broken English (Transcript, page 138). She felt that she had developed a "terrific rapport" with Mr Smolic. She said: "…I think I made a bit of a quip as I sometimes tend to with non English speakers that his English was a lot better that my Croatian, …" (Transcript, page 143). He had not ticked the box to indicate that he required an interpreter and she had asked Mr Smolic whether he spoke English "okay". He had replied: "Yes, I've lived here for thirty seven years. My English is fine". It was on this basis that she conducted the interview without an interpreter. (Transcript, page 140).
On the 13 January 2000 Mr Smolic's name appeared on her appointment list. Even though she had put his file away she had a "fairly good idea" as to why he was seeking to see her. At this interview Mr Smolic requested an interpreter. She endeavored to answer his question regarding the rejection of the age pension but did not go into too much detail. In the circumstances, she considered it preferable to wait until an interpreter was available to attend a subsequent interview arranged for 27 January 2000. She said, inter alia, that:
…I thought well, if he needs an interpreter, it is no good me explaining that the payment is not a welfare payment, it is not based on the number of years you have worked here, it is not a superannuation payment. I felt that was better explained through an interpreter if he was already having trouble understanding me."

And later, when pressed as to how long the interview lasted, Ms Webb said:

"… He threw the questions at me. I answered him as best I could, hoping he was understanding, and then he asked for an interpreter again, so I felt it wasn't worth my while going on because the man obviously wasn't understanding. …" (Transcript, page 147)

Ms Webb pointed out that the statement recording the outcomes of the interview conducted on 27 January 2000, had been interpreted to Mr Smolic and then signed by him.

In cross examination (Transcript, pages 154-176) Ms Garner sought Ms Webb's views on the possible discrepancies and meanings that could be ascribed to the expressions used in the age pension application form. The expressions highlighted were "living in"; "lived"; "stay in Australia permanently"; "remaining here permanently" and "residency". Ms Webb pointed out that she had not designed the questions and conceded that these words, in the context of the form, had legal implications. Ms Garner also sought comment on the discrepancies between Mr Smolic having obtained assistance to fill out the form with his having ticked the box as not requiring an interpreter. Ms Webb said that it had not occurred to her that assistance was required "after the conversation that I had had with him" (Transcript, page 158). Later, in cross-examination, she admitted that a potential error could arise if someone else had filled out the application form (Transcript, page 169) and conceded that he could have misunderstood questions such as who owned the house in Croatia (Transcript, page 172). Nor had she raised with Mr Smolic the question of pension portability (Transcript, page 177).
Ms Garner explored whether Ms Webb had discussed with Mr Smolic the fact that his having ticked "No" to Question 3, about remaining permanently in Australia, had "severely compromised" his likelihood for entitlement.
"Ms Webb: No I didn't … Because I don't give a definite answer at the primary interview.
Ms Garner: Okay, but you didn't suggest to him – did you say to him: Is there any possibility of a mistake or anything at that stage, just to clarify with him that he didn't intend to stay in Australia permanently?
Ms Webb: No. I didn't because he mentioned that he had sold his home there and bought one - home here and bought one in Croatia and that was where his wife and child were." (Transcript, page 160)

Ms Webb said that she had not explored her initial response to the application with Mr Smolic as she wasn't absolutely sure at that time that he wasn't entitled and needed to check her facts. She said she did not want to upset Mr Smolic. (Transcript, page 163)
Evidence of Mr Burin

Before his retirement, Mr Frank Burin was a Public Servant for 28 years. He spoke to the Tribunal without interpreting assistance. He told the Tribunal that he has known Mr Smolic since his arrival in Australia in 1963. They lived close to each other and jointly undertook various, voluntary projects, for the Croatian Soccer Club - The Melbourne Knights. They attended every soccer match together and their families socialized over the years. Mr Burin visited Croatia in January 1999 and, after some effort to locate Mr Smolic, visited him there. He said that the entire Smolic family was always talking about wanting to come back to Australia. On his return to Australia in November 1999 Mr Smolic, according to Mr Burin, contacted him "maybe" in early December only a week or so after his arrival. He told him that he had been staying with Mr Karmelo Paseta and his family and trying to get job. Mr Burin said that Mr Smolic was reasonably fit for his age and preferred to find employment.
Later, at a soccer match, he learnt from Mr Smolic that he had failed in finding work and that he had attended a Centrelink office to apply for the unemployment benefit and was advised to apply for the age pension. This application was rejected. Mr Burin said that as he could not believe that Mr Smolic's application had failed so he offered to assist him. His wife word-processed an appeal statement that Mr Burin prepared on Mr Smolic's behalf for the SSAT hearing (T21, pages 73-75). He also represented him at the SSAT hearing. Mr Burin reiterated that it was his "honest" view that all the family considered Australia as their place of residence. Mr Smolic was "very highly regarded by everyone who knew him for his honesty and integrity".
Responding to questions from Ms D'Cunha, about the preparation of T21, Mr Burin described the "few contradictory years" Mr Smolic had experienced since 1996. He explained that Mr Smolic was just a "simple man" with little understanding of the requirements for the age pension. Mr Smolic had told him what he wanted to say in the statement. He had hand written and his wife had word-processed the statement. The statement was read out to Mr Smolic who then signed it. He said that Mr Smolic, as far as he knew, had always wanted to "come back" to Australia. Croatia had been torn apart by the "dirty war". He was now trying to remake his life in a lot of ways. Australia was the best place to live. He was actually surprised that the family had not returned much earlier. When he had visited them in Croatia he talked to them for about two hours. He understood that the only thing that was "tying them up" were family problems, especially the wish expressed by the Marta's birth-mother that Marta learn Croatian. He said that Mr Smolic had not talked to him about obtaining the age pension from Australia. It was his understanding that he had sought work here as in Croatia there was little employment available and no employment offices.
He repeated that Mr Smolic was a simple, sincere and genuine man who did not complicate things. He was family man and did not "show off". It was a very unusual thing for him to have to fill out forms. He did not have the knowledge or skills to deal with matters of an administrative nature.
Evidence of Mr Goles
Mr Slavko Goles gave evidence in the presence of an interpreter "just to make sure". He is now retired. Since Mr Smolic's arrival in Australia they have been "very, very, close family friends". They were involved in soccer, card playing and other social activities. He was surprised when Mr Smolic said that he was preparing to go back to Croatia. He understood that it was "just for a holiday". Mr Smolic had referred to family matters but he did not press him for an explanation. He knew that Mr Smolic was "very sad, very sad" about selling his house in Australia. Mr Smolic had considered this a "big mistake". For a couple of months now Mr Smolic has been living with Mr Goles and his wife. There was no reason for him to move out of their spare room, as there is just him and his wife. Marta recently visited and stayed there also. She has since returned to Croatia and it was Mr Goles' view that she was angry about going back. He had not discussed the reason why the family moved to Croatia, as this was "too private". However, he was aware that Mr Smolic always referred to Australia as "his country" where he had spent all his working life and the war in Croatia had created a lot of uncertainty about the future there. Asked by Ms Garner as to whether Mr Smolic had discussed his return to Croatia, he said "Never to me or never, never, never. He always was saying that this is his country and he spend all his working life here and now over there is entirely - never sure what can happen over there any minute, they are at war again or - got no one." (Transcript, page 133).
Evidence of Ms Barco

Ms Barco is a Certified Practicing Accountant who has run her own business since 1965. She mainly deals with taxation matters but has some familiarity with social security matters. She gave her evidence via conference telephone. She said that she first met Mr Smolic on 18 December 1999 when he asked her to fill out his age pension application form (T3, page 13). In filling out the form on his behalf Ms Barco said that she asked Mr Smolic questions in English and without an interpreter. She was of the opinion that he did not have any difficulty in understanding what she was asking (Transcript, page 183). She had some experience in filling out such forms for non-English speaking clients. Responding to questions from Ms Garner, Ms Barco said that Mr Paseta had arranged for Mr Smolic to see her. She was confident that there was no confusion about his understanding of the questions and answers concerned. Asked about the tick in the "No" box against the question "Have you lived in Australia for the last 10 years" Ms Barco could not "remember exactly" but was confident that, if Mr Smolic had said "Yes", that is what she would have ticked. Similarly, asked about other boxes and specifically the "No" tick against "Do you intend to stay in Australia permanently", Ms Barco said that she could not remember exactly in what form he answered at the time, but that she wrote down what he answered. "I mean it is possible he changed his mind after all …… mean yes or no. You know, I can't comment on that." (Transcript, page186). She said: "I just filled out the form for him." (Transcript, page 188). She did not go into details with him.
Submissions
51. In arguing her case, Ms Garner relied on the decisions of Re Raad and Secretary, Department of Family and Community Services (2000) 4(4) SSR 53 and Re Galati and Director-General of Social Security (1984) 6 ALD 538. Pointing out that Australia is a multicultural society, Ms Garner asked the Tribunal to take account paragraph 105 in Re Raad, which says:
"One must not fall into the trap of considering a person in isolation from their origins and roots. People's lives must be considered on a continuum and in a global sense. It is behind the purpose of such travel and such association with the country of origin that decision makers must go to tease out the complexity of factors involved."

In terms of the accommodation requirement, she asked the Tribunal to distinguish between the concept of "used by the person in Australia" with "owned or any interests held by the person" (Transcript, page 190). Ms Garner submitted that to place more weight on the "bricks and mortar" concept of accommodation was to not take account of the family circumstances that have resulted in a house being purchased in Croatia. In terms of the extent of family relations in Australia, Ms Garner pointed to the recent visit of Marta as indicative of her continuing links with Australia, and the letter from Mr Smolic's niece regarding her aunt's likely finite absence from Australia (A3, page 18). Weight should not be placed upon the timing of Mr Smolic's return to Australia, according to Ms Garner, as he was a credible witness and, on his evidence, was seeking employment. In any event, referring to Re Galati (at pages 550-551), Ms Garner argued that nothing should turn on a person who comes to Australia to organize their affairs:

"…[part 4.2 provides], subject to certain conditions, for portability of pensions granted to people who have not always lived in this country. One purpose of these provisions is to make this country more attractive to people from other countries. For almost 40 years, with varying intensity, we have encouraged people from other countries to come here. The extension of social security benefits to these people has been part of that encouragement; … The conditions on which Parliament has chosen to permit portability are set out in the Act. Those conditions have encouraged many people to come to this country who have subsequently decided to remain here permanently. Others, so encouraged, have come and decided not to remain. It is as legitimate for those people who do not remain to take the benefits which were provided by the Act in order to encourage them to come here as it is for those who do remain. Australia, in effect, …took a calculated risk when Parliament enacted these provisions with a view to making the country attractive to migrants. … If it is considered that portability of pensions is undesirable, that is a matter for Parliament. …"

Further, Ms Garner argued that the family home purchased in Croatia is offset by the assets he has left in Australia. It was further submitted that residency in one place did not negate the reverse and that Mr Smolic continues to maintain contacts with Australia through his return visits (Transcript, page 193).

Ms D'Cunha reiterated the significant milestones regarding this application and discrepancies in factual aspects in Mr Smolic's evidence (already dealt with at paragraphs 35 & 36 of these reasons). In light of these discrepancies, she asked the Tribunal to look carefully at the evidence. Regarding his reasons for leaving Australia, she compared Mr Smolic's current, temporary living arrangements with friends in Australia with the actions he took once in Croatia to secure permanent accommodation The fact that he does not reside with his sister and brother-in-law in Australia is indicative, she argued, of the lack of close relationships he has with his family in Australia. She noted that the disembarkation card has a box that identifies "Employment" as a reason for coming to Australia. Mr Smolic did not mark this box, in addition to marking "Holiday", even though he claims that he returned to Australia to secure employment. Similarly, she pointed out that Mr Smolic attended Centrelink with a financial plan prepared by an accountant that included an assessment of the age pension he would receive. He attended Centrelink three weeks after his arrival in Australia (Transcript, page 200). In summary, she argued that putting all these facts together, it was difficult to accept that Mr Smolic intended to remain permanently in Australia while his wife and daughter remain overseas indefinitely (Transcript, page 202).
Discussion and Consideration
In making its determination, the Tribunal has taken account of the following principles as set down in the cited cases. The concept of "residence" is discussed by Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 444, who observes that (at pages 449-450):
"…As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. …
Physical presence and intention will co-incide for most of the time. But few people are always at home. Once a person has established a home in a particular place …It is important to observe firstly, that a person may simultaneously be a resident in more than one place … and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat the place as 'home', a change of intention may be decisive of the question whether residence in a particular place has been maintained.
…"
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177 dealt with temporary absence from home which could, in fact, extend over some length of time, even years. In that decision, the Tribunal noted the importance of a claimant's intentions in determining his or her residence. At N184 the Tribunal commented:
"As has been pointed out on a number of occasions (see for example recently Smith's case (1985) 7 ALN N371) subjective considerations are the golden threads that consistently run through the fabric of social security situations. Having regard to the nature of the questions that have to be answered, this is not surprising. Subjective considerations (like pain) are real and tangible and can be proved like any other fact. Where they depend upon the word of the person most closely effected, satisfactory proof usually involves corroboration by objective facts. The absence of those facts, however, does not necessarily mean that the subjective consideration has not been proved. …"
In Re Clifopoulos and Secretary, Department of Social Security(1995) 36 ALD 745, the Tribunal accepted (at page 747) that the converse of each factor could be considered:
"(17) The principles set out above 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 s 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 …, when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. …"
In order to determine whether Mr Smolic was an Australian resident, as defined in paragraph 7(2)(a) of the Act, as at 18 December 1999, the Tribunal addressed the criteria in paragraphs 7(3)(a)-(f).
"(a) the nature of the accommodation used by the person in Australia"
The Tribunal does not agree with Ms Garner that more emphasis should be placed on the concept of accommodation "used" rather than "owned" by Mr Smolic in Australia. The Tribunal finds that Mr Smolic has sold his house in Australia, which was the family home for 24 years and a source of pride and accomplishment (refer to paragraph 15 above). He and his wife have jointly purchased a house in Croatia. This house is approximately the same value as that of the sale price of the house in Australia. Mr and Mrs Smolic sent a significant number of items of household furniture over to Croatia in a shipping container to furnish this house. It is questionable that this expense would have been incurred if the stay in Croatia was envisaged to be short term in nature.
During his absence from Croatia his daughter and wife remain in the family home there. Mr Smolic has lived with friends since his return to Australia in November 1999. Even though Mr Smolic has indicated that he will ultimately need to lease accommodation, the evidence from Mr Goles, with whom he is currently staying, is that he is welcome to remain in his home indefinitely. Further, Mr Smolic's evidence has been contradictory as he has claimed that he had leased accommodation but this is not the case. Nor does the Tribunal place any weight on his statements that he intends to establish a permanent place of abode here. Mr Smolic has indicated that he cannot establish his own residence without the age pension. He does, though, have some investments at his disposal that would enable him to lease accommodation, if he so wished.
Further, the Tribunal does not accept that, even if the age pension is granted, that Mr Smolic will either "own or use" accommodation in Australia in the immediate future. The Tribunal finds that the circumstances that he claims led to the move to Croatia have not changed. His wife's parents are still alive and his daughter's future plans are indeterminate. It is difficult to accept that his wife plans to return to Australia given that one reason for the move to Croatia was to overcome her homesickness and to assist her return to better health. A note from the Viewbank Medical Group confirms that, in 1994, Mrs Smolic was referred to a psychologist because of her chronic anxiety symptoms (Exhibit a5).
It is also difficult to accept, on the evidence before it, Mr Smolic's claim that he will now be remaining permanently in Australia, returning only to Croatia to attend a funeral out of respect for his wife (Transcript, page 40) This contradicts the reasons he has given for the purchase of the house in Croatia in the first place, that is, to avoid physical separation and possible divorce. The Tribunal finds that Mr Smolic has no permanent accommodation in Australia, and no intention to establish such accommodation in the immediate future. Accordingly, the Tribunal finds that up until 1998 Mr and Mrs Smolic had a "physical presence" in Australia and "treated" Australia as their home. Since 1998 the reverse has occurred.
"(b) the nature and extent of the family relationships the person has in Australia"
Whilst Mr Smolic has a brother and sister-in-law in Melbourne with whom he has contact, he is not currently residing with them. A niece looks after his financial affairs when he is out of Australia and he maintains close social contacts with a network of friends he has made in Australia. Some of these friends have visited him in Croatia. His immediate, nuclear family is living in Croatia. In the past, extended family living in Croatia, have visited the Smolic family in Australia. The Tribunal finds that, as in the past, when he resided in Australia, Mr Smolic maintains contact with his family and friends here and in Croatia. However, unlike in the past, his temporary absences are now from Croatia not Australia. The reality is that, as observed in Re Raad, immigrants, such as Mr Smolic, consider themselves as having two homelands and retain an affinity and emotional tie to both.
"(c) the nature and extent of the person's employment, business or financial ties within Australia"
Apart from his financial investments, Mr Smolic does not have any other business or employment ties within Australia. He claims that he has returned to Australia to find employment in his trade. This claim is contradicted by the strength of his conviction that, because of his age, long term residency and employment record in Australia, he is now entitled to the age pension. It is also contradicted by Mr Smolic's statements regarding whether his intention was to find employment or get the age pension when he returned in 1999 (refer to paragraph 19). The Tribunal finds that, apart from his financial assets, discussed below, Mr Smolic has no employment or business ties with Australia.
"(d) the nature and extent of the person's assets located in Australia"
Ms Garner asked the Tribunal to place counterbalancing weight on the fact that, even though Mr Smolic had sold his house, he has assets in the form of investments in Australia. His stated intention is to retain these assets in Australia as the economic and political circumstances do not make for viable investment in Croatia. He draws upon these assets to support himself and his family in Croatia. The Tribunal finds that, as argued by Ms D'Cunha, these assets are readily transferable to Croatia. The retention of the assets in Australia is indicative of Mr Smolic's views regarding the viability of his investments rather than being indicative of his intention to reside in Australia.
"(e) the frequency and duration of the person's travel outside Australia"
Throughout his working life Mr and Mrs Smolic and their daughter have made a number of trips outside Australia, predominantly to Croatia. It is not in dispute that, up until his move to Croatia in 1998, these trips were family holidays - temporary absences from Australia. The family maintained their house in Australia and returned to work and domestic life in Australia. As commented in Re Raad (at paragraph 98): "The fact that a person may return to his or her country of origin from time to time is not in itself determinative of not residing in a country other that the country of origin." The Tribunal acknowledges that this can be the case in some situations but does not find this to reflect Mr Smolic's situation. Even though Mr Smolic has not found employment in Croatia, the centre of this family's life is now in Croatia. The Tribunal places little weight on the fact that Mr Smolic only purchased a one-way ticket to Australia. This is not indicative of his intention to remain in Australia given that he has investments in Australia that he draws upon to make such purchases.
"(f) Any other matter relevant to determining whether the person intends to remain permanently in Australia"
It is Mr Smolic's judgment that his financial investments will be more viable if retained in Australia. The intentions of both his wife and daughter are indeterminate and it is difficult to assess when a significant change in their individual circumstances will occur and, even if the change does occur, that they will return to Australia and re-establish a household here. Whilst not questioning the credit of either witness that spoke on his behalf, the Tribunal places little weight on their claims regarding their understanding of Mr Smolic's and his family's intentions. They are very close friends and anxious to assist Mr Smolic in pursuing his claim. It is the Tribunal's view that, notwithstanding claims to the contrary, Mr Smolic's actions are those of an individual not planning to live Australia in the immediate future.
Indeed, some comments made by Mr Smolic throughout the hearing are suggestive of marital tension regarding his claimed immediate plans to live and work in Australia. Mr Smolic, in response to questions from Ms D'Cunha regarding his wife signing the application form, said that "She was so aggressive on the telephone. She said you are asking for your aged pension. I am not old enough for the aged pension." Mrs Smolic is 11 years younger than her husband (Transcript, page 66). He had told her "I am applying for the old age pension because I am 65 years old and I am entitled to it." (Transcript, page 69). She did not want to give her husband her passport (Transcript, page 70).
Conclusion
Accordingly, the Tribunal finds that a constellation of factors contributed to Mr Smolic and his family selling the family home in Australia and purchasing a home in Croatia. It finds that these factors have not changed since the original move to Croatia in 1998. Following Hafza, the Tribunal considers that there has been a change of intention as to where "home" is to be based physically and the house in Croatia, unlike in the past, is now treated as the centre of the domestic life of the Smolic family. Therefore, Mr Smolic cannot be considered, at the time of the lodgment of his claim for age pension, to be an Australian resident pursuant to subsection 51(a) of the Act.
In Re Raad, that Tribunal cautioned against bringing "prejudice or bias to the matters under consideration" (paragraphs 98). A coincidence of events surround Mr Smolic's return to Australia. It was a month prior to his sixty-fifth birthday. He obtained a financial plan from an accountant. This financial plan included an estimation of the age pension he was likely to receive and he lodged his application for age pension. These events do point to Mr Smolic returning to Australia for the purpose of testing his eligibility for age pension. However, it is the Tribunal's view that Mr Smolic's actions are reasonable in the circumstances and should not be viewed prejudicially. As Ms Garner pointed out, the age pension is portable and can be paid overseas, a factor not addressed by Ms Webb. The Tribunal is of the view that the dilemma posed for persons in circumstances, such as presented in this application, by paragraph 7(2)(a) of the Act are unreasonable. As discussed in Re Galati, the Tribunal finds that Mr Smolic is endeavoring to organize his affairs in a manner he sees appropriate and nothing should turn on this. Mr Smolic, as well as being a citizen, has over 36 years of residence in Australia. He has lived and worked here throughout these years; established a family and purchased his own residence. He has succeeded in establishing some modest financial investments and is a recognized active contributor to community activities through his involvement with the soccer and his church. He has paid his taxes and submitted income tax returns. Further, he has maintained his extended family and social contacts here and in Croatia through frequent visits/holidays in his county of origin and will, no doubt, continue to do so. In these circumstances it is understandable that Mr Smolic anticipated that when he turned 65 years of age he would be in a position to test his eligibility for age pension in Australia. Had it not been for the purchase of accommodation in, and the transfer of domestic arrangements to Croatia, prior to his sixty-fifth birthday, this barrier to testing his entitlement would not apply. Ms Garner's references to the matters of Re Raad and Re Galati are strongly endorsed by this Tribunal.

The adverse outcome of this application is by no means a finding that Mr Smolic has acted without credit. That his responses to contradictory aspects of the evidence, as put by the Respondent, are in themselves contradictory is recognized by the Tribunal. However, the Tribunal is of the view that they are attributable to English not being Mr Smolic's first language; his reliance on others to handle his application and his changing understanding as to what factors were likely to satisfy the age pension requirements. If he more fully had understood these requirements perhaps he would have forestalled selling his home in Australia and purchasing the home in Croatia!
Mr Smolic's contradictory responses are also attributable to his lack of understanding of administrative matters, as confirmed by Mr Burin's description of his friend as "a simple man". Mr Smolic has had to rely on others to fill out his forms and to assist him in this application process. His mark against a number of the boxes of the disembarkation card is an example of his limited comprehension of written and spoken English. A factor that Ms Webb, with so many years of experience in dealing with non-English speaking background social security customers, should have been more sensitive to.
Mr Smolic holds the reasonable belief that, once he turned 65 years of age, he was entitled to receive the age pension. That Ms Webb did not fully explore Mr Smolic's belief and obtain details of his circumstances is of concern to the Tribunal, as is her somewhat prejudicial attitude that this is not a welfare or superannuation payment. Ms Webb commented that Mr Smolic's 37 years residency in Australia was not relevant. However, clearly, it was relevant to Mr Smolic and needed to be carefully explored with him when he first contacted the Centrelink. Notwithstanding these comments, the Tribunal is satisfied that Ms Webb acted in good faith and accurately recorded Mr Smolic's responses, as did Ms Barco.
For the reasons given, the Tribunal will affirm the decision under review.
I certify that the seventy-one (71) preceding paragraphs are a true copy of the reasons for the decision herein of
Adj. Prof. L. S. Rodopoulos, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  25 and 27 September 2000
Date of Decision  23 October 2000
Counsel for the Applicant        Ms J. Garner
Solicitor for the Applicant         Coburg/Brunswick Community Legal & Financial Counselling Centre Inc.
Solicitor for the Respondent    Ms P. D'Cunha, Centrelink