Swiderska and Anor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 605

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] aata 605

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5984
    2007/5985   

GENERAL ADMINISTRATIVE DIVISION		)
Re		LIDIA SWIDERSKA & STANISLAW SWIDERSKI

Applicants

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date14 July 2008

Place            Sydney

Decision The Tribunal affirms the decision under review.

...............[sgd]...............................

Ms G Ettinger     
  Senior Member

CATCHWORDS

Australian residence - whether Applicants are qualified for age pension - whether they are residents within section 7 of the Social Security Act 1991 – cannot meet 10 qualifying years test - decision under review affirmed.

Social Security Act 1991 ss 7, 43(1)

Hafza v Director-General of Social Security (1985) 6 FCR 444

Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70

Secretary, Department of Family and Community Services and Indigenous Affairs v Baccon (2006) 90 ALD 557

Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745

REASONS FOR DECISION

14 July 2008 Ms G Ettinger, Senior Member     

1.       Mr Stanislaw Swiderski and Mrs Lidia Swiderska come from Poland. The couple who are now in their seventies, have visited Australia a number of times, and in 1997, were granted permanent residence.  Mr Swiderski worked as a dentist in Poland until 1995, and they receive a pension there. Their children Ms J Huber and Mr D Swiderski live in Sydney.

2. The couple have been in receipt of special benefit in Australia, and applied for the age pension on 24 April 2007. The application for age pension was refused by Centrelink on the basis they were not residentially qualified for it, the requirement pursuant to section 7 and 43(1) of the Social Security Act 1991 (the Act), being 10 years qualifying Australian residence.  There was no disagreement, and I accept that since 1997, Mr Swiderski and Mrs Swiderska have spent approximately 62% of their time in Australia.

3.       The Social Security Appeals Tribunal (the SSAT) affirmed the decision not to grant age pension, and the couple have exercised their rights to appeal to this Tribunal. After hearing the evidence and considering the law, I have affirmed the decision of the SSAT and Centrelink to find the couple do not qualify and are not eligible for age pension. My reasons follow.

ISSUE TO BE DECIDED

4. The issue before me is whether Mr Swiderski and Mrs Swiderska are eligible for age pension on the day they applied, being 24 April 2007. In deciding this, I must consider whether they were residentially qualified, that is whether pursuant to section 7 and 43(1) of the Act, they had ten years qualifying Australian residence at the relevant date.

LEGISLATIVE CONTEXT

5.       The relevant legislation is the Social Security Act 1991, (the Act), in particular sections 7 and 43(1). Section 43(1) states that a person is qualified for an age pension if the person has reached pension age, and any of four factors in section 43(1) apply. In the case of the Swiderskis they would qualify if they had ten years qualifying Australian residence or a qualifying residence exemption for an age pension. The note to section 43(1) refers to section 7 for qualifying Australian residence.

6. Section 7 provides:

7  Australian residence definitions

7(1)  In this Act, unless the contrary intention appears:

Australian resident has the meaning given by subsection (2).

…

qualifying Australian residence has the meaning given by subsection (5).

7. Section 7(5) states that a person has 10 years qualifying Australian residence if the person has at any time been an Australian resident for a continuous period of not less than 10 years, or the person has been an Australian resident during more than one period and:

(i) at least one of those periods is 5 years or more; and

(ii) the aggregate of those periods exceeds 10 years.

CONSIDERATION OF THE FACTS AND LAW

8.       Mr Swiderski and Mrs Swiderska who have had permanent residence in Australia since 1997, gave evidence by telephone from Poland. The Tribunal was assisted by an interpreter who spoke Polish. Ms J Huber and Mr D Swiderski who are the Swiderskis’ adult children were present at the Hearing, spoke to me in English, and made submissions. Mr K Bullock, advocate of Centrelink represented the Secretary, the Respondent in these proceedings.

9. What I had to decide was whether Mr Swiderski and Mrs Swiderska were, pursuant to sections 7 and 43(1) of the Act, residentially qualified, and eligible for age pension when they applied for it on 24 April 2007.

10.      There was no dispute, and I accept that the couple are both of an age where they can receive the Australian age pension, and that they are permanent residents.

DO MR SWIDERSKI & MRS SWIDERSKA RESIDE IN AUSTRALIA IN TERMS OF THE LEGISLATION

11.      I noted that the main reason for the rejection of the Swiderskis’ application was that they had not been Australian residents for a continuous period of not less than ten years (section 7 and 43(1) of the Act).

7(5)  A person has 10 years qualifying Australian residence if and only if:

(a)  the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or

(b)  the person has been an Australian resident during more than one period and:

(i)  at least one of those periods is 5 years or more; and

(ii) the aggregate of those periods exceeds 10 years.

12. The term Australian resident is defined in section 7(2) of the Act as follows:

7(2)  An Australian resident is a person who:

(a)  resides in Australia; and

(b)  is one of the following:

(i)  an Australian citizen;

(ii)  the holder of a permanent visa;

(iii)  a special category visa holder who is a protected SCV holder.

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

13. It is not in dispute that the couple are holders of a permanent visa, and that they do not meet the conditions in section 7(5) of the Act. In order to determine whether they reside in Australia, (section 7(2) of the Act), it is necessary to consider section 7(3) of the Act.

14.      I am mindful that residence has two elements as discussed in Hafza v Director-General of Social Security (1985) 6 FCR 444 and Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70 and confirmed in Secretary, Department of Family and Community Services and Indigenous Affairs v Baccon (2006) 90 ALD 557. They are recognised to be a physical presence in a particular place, and the intention to treat the place as home.

15.      In Baccon, the Court stated:

7  Residence, like domicile, is a factor that connects a person with a place. It is not a term of art; the precise meaning of expressions such as ‘resident’, ‘resides in’ and ‘is residing in’ in legislation will depend upon the context provided by, and the purpose of, that legislation.

8 As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70 at [36]).

9 Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450).

10 Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place (Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places.

16. I moved to consider the application of section 7(3) of the Act to decide whether or not Mr Swiderski and Mrs Swiderska can be considered to reside in Australia. I am mindful that the list of headings in section 7(3) of the Act is not exhaustive, and that relevant case law must be taken into account. As relevant section 7(3) of the Act follows:

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.

nature of the accommodation used by the applicants in australia

17.      Consideration of the nature of the couple’s accommodation indicates that they own a small apartment in Warsaw where they have lived for the past 40 years, and (bearing in mind political systems diverse from our own), which they have now owned outright for some 15 – 20 years.  Mr Swiderski told me that he had no plans to sell the apartment, but that the children and grandchildren could do what they liked with it upon inheriting it.

18.      In Sydney the couple live with Ms Huber their daughter, in rented accommodation. She told me that as a daughter, culturally, it is her duty to house her parents when they are here. Ms Huber was indignant that the Respondent pointed out that her parents live with her in rented accommodation in Sydney, whereas they own their apartment in Poland, and was at pains to point out that she used to own her own house, but that her husband had lost everything. 

19.      I asked Mrs Swiderska to give her name and address for the Tribunal. Her evidence was brief. She was unable to give her Australian address, and said that she did not know the reason why her application for pension had been refused. 

20.      In deciding the nature of the accommodation used by the Swiderskis in Australia, I note that in Poland they live in an apartment which they own, and which remains vacant while they visit Australia, and that they maintain no independent residence here. They live in a room in their daughter’s rented accommodation. That satisfies me that this factor indicates the Swiderskis’ intention is to treat their permanent home as Poland, and does not support an assertion that they live in Australia, (as discussed in Hafza and Baccon).

the nature and extent of the family relationships in australia

21.      I am satisfied that the family ties in Australia are stronger than in Poland as the Swiderskis’ two children and their four grandchildren live here, whereas in Poland there appear to only be a sibling each of Mr Swiderski and Mrs Swiderska (brother now deceased). Further, Mr Swiderski’s evidence indicated he was not on good terms with his brother. This is a strong factor supporting a finding the couple reside here.

the nature and extent of the applicants’ employment, business or financial ties with australia

22.      In considering the nature and extent of the couple’s employment, business or financial ties with Australia, I note that the couple have no employment in Australia, and that Mr Swiderski retired from dentistry in Poland in 1995. Both Applicants are now in their 70s, and it would not be expected that they would be seeking employment in Australia, although there was evidence that Mr Swiderski tried unsuccessfully to secure employment at one time. They have no business or financial ties in Australia, although their evidence is that they have a bank account which contains only small amounts of money. They are recipients of a Polish pension in Poland which they have not sought to transfer to Australia.  The above considerations mitigate against a finding they reside in Australia.

the nature and extent of the applicants’ assets located in australia

23.      A consideration of the nature and extent of the couple’s assets indicate they reside in Poland. They have lived in the same furnished apartment for some 40 years, and owned it outright for 15 – 20 years. They do not lease it out when they are not in Poland. I note in that regard the evidence of their children that it would not be easy to do so, although there was no evidence before me that they had ever attempted to lease it out. They have also indicated that they have no intention of selling the apartment.  The Swiderskis appear to have no assets in Australia except an old car, and a bank account with limited funds. Mr Swiderski said that he had a car in Poland, but sold it.

24.      Mr Swiderski told me that he receives a pension in Poland and has no other income. He told me that the pension is “blocked”, and cannot be transferred from Poland, but then conceded that there was no such agreement about that, and that he was not sure of Government policy in that regard. He thought it was just his bank which was not willing to do it. He was also not willing to change banks. I note in that regard that Mr Swiderski has not told his Government that he is a permanent resident in Australia, as that could jeopardise his pension.

25.      The fact the Swiderskis have not informed their Government that they are permanent residents in Australia, have no assets here, and have not attempted to have their pension paid here, mitigates against a finding the couple reside in Australia.

the frequency and duration of the applicants’ travel outside australia

26.      The parties were in agreement about how Mr Swiderski and Mrs Swiderska have divided their time between Poland and Australia, Mr Darek Swiderski emphasising that his parents had spent 62% of the past ten years in Australia. The dates were as follows:

·     9 May 1998 to 28 May 1999

·     13 May 2000 to 24 November 2000

·     25 July 2001 to 13 February 2002

·     10 February 2003 to 21 October 2003

·     9 October 2004 to 24 March 2005

·     20 March 2006 to September 2006

27.      I was told that the couple had departed for Poland in August 2007, and would return in approximately the middle of this year. They generally buy their air tickets in Warsaw (which means it is likely they need to return every year), because they have no money in Australia, but noted that their daughter has on occasion bought the tickets here. Mr Swiderski told me that he anticipated coming back to Australia regularly, because his children are here. He said that he did not know the amounts of money involved, but if he received the Australian pension, they would live here. His view was that the family was more important then benefits.

28.      The Swiderskis were also keen for me to know that two extended periods of stay in Poland coincided with Mrs Swiderska nursing her brother who was ill, and the management of an estate matter. Mr Swiderski told me that generally they return to Poland when they are running out of money in Australia, and also have matters to attend to in Poland. He said that he received only a small amount in connection with his parents’ estate because his brother received what appears to have been the greater proportion.

29.      I accepted Mr D Swiderski’s calculation that his parents had spent 62% of the past ten years in Australia. However the pattern of extended absences from Australia with no positive moves to increase their ties here, does not support a finding that they are residents of Australia, rather that they are regular visitors to their children here.

any other matter relevant to determining whether the applicants intend to remain permanently in australia

30.      Mrs Swiderska’s evidence was brief, but she informed me that she was not too ill to travel, and was having massage and physiotherapy for her neck pain. I had before me as Exhibits A1 – A4 medical reports from Poland regarding her health.

31.      I noted at Exhibit A7, a letter of A and S Szyma, of Sydney, people who claim to have known the Swiderskis and their children for 25 years, and who praised the family commitment of the Applicants. They commended that a pension be paid to the Applicants. The Szymas emphasised that the Applicants are independent, and that they did not wish to be a burden on their families. I am satisfied from the evidence that the Swiderskis are committed to their family.

32.      I noted at Exhibit A8, a letter of J and A Nowotko of Sydney, who claim to have known the Applicants for 20 years, and described Mr Swiderski as a man of exemplary standard, a person of extremely high moral values, and a committed family man. The Nowotkos emphasised that as the Swiderskis grew older, it was becoming more difficult “for them to continue the lifestyle they have been forced to accept due to unusual circumstances they are in and it is important for them to be able to settle down. Stan has on many occasions throughout the years expressed that his intentions are to be permanently based in Australia, where all his family are, however due to complex situation had to travel to Poland on temporary basis. Both of us support Stan and Lidia in their battle to be accepted as Australian permanent resident  …”.  It seems to be that the Nowotkos know more about complex situations which the Swiderskis face than I do, and that they do not know that Mr Swiderski and Mrs Swiderska are already permanent residents of Australia. I am mindful that the Nowotkos have confirmed that the couple are committed to their family, which I have already acknowledged in the paragraphs above.

33.      I noted the Respondent’s submissions that the Swiderskis have not informed the Polish Government of their intention to reside in Australia, neither have they sought to have their Polish pension transferred to Australia. Doing that would have been a factor towards their argument that they reside in Australia, or had an intention to permanently reside in Australia rather than just visit. I understood from the evidence that the couple left Australia in August 2007 and that they are due to arrive back again in the middle of this year.

34.      I noted Ms Huber’s objection to the Respondent’s statement in paragraph 26 of the Secretary’s Statement of Facts and Contentions, which was that the Respondent understood this was a case of an elderly couple who sought to look after themselves by staying with their family in Australia and benefiting from the pension and health system. Ms Huber told me that the health system in Poland, particularly the dental services are superior to those in Australia, and that in any case, the parents had also visited Australia while her father was still working.

35.      By way of contradiction to the above, I had before me as Exhibits A5 and A6 reports from a Sydney Medical Centre dated 4 February 2008 (written in the Swiderskis’ absence) documenting that the couple have been patients there since 1999. In relation to Mr Swiderski, the Doctor who has been caring for him since early 2006, stated: “It is essential for him to have regular medical treatment in Australia. Although he visits Poland on a temporary basis yearly, the medical treatment available to him in Poland is not easily accessible or adequate.” No further details regarding accessibility or adequacy of the treatment were provided.  In relation to Mrs Swiderska, the same Doctor who has been treating her since early 2006, wrote: “She needs regular medical review in Australia in view of her medical condition. Although she visits Poland for holidays she does not receive the necessary medical treatment there.”

36. I accepted the Respondent’s submission that the couple are not prepared to risk losing their Polish pension by disclosing their intentions to obtain an Australian pension which Mr Bullock submitted they might be able to receive in Poland. His submission was however that the legislation requires that the Applicants indicate an intention to reside in Australia permanently in order that a finding can be made that they are residents. He submitted that the Secretary considered that when all the factors in section 7(3) of the Act are taken into account, at the relevant time of the Applicants’ application in 2007, they did not meet the required residency requirement. Neither do they have the ten year qualifying residence.

37.      I am mindful that persons can be found to be residents of more than one place, for example people who spend the winter in one residence in a warm climate, and the summer in an established house or apartment where it is cooler. However that does not fit the Swiderskis’ situation, who do not maintain assets or a home in Australia, but are at home, and receive their income support in Poland.

38.      I am mindful in finding that aggregating all the circumstances, and taking a global view (ReClifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745), including those specifically nominated in section 7(3) of the Act, that the Swiderskis’ have strong family ties in Australia, and have spent 60% of their time in Australia over the last ten years, but note that they are but two factors which support their argument. In considering the weight of all the other factors, I am not persuaded that their place of residence is in Australia.

CONCLUSION

39. I am satisfied from the evidence that Mr Swiderski and Mrs Swiderska do not meet the tests in sections 7 and 43(1) of the Act in that they do not have the 10 year qualifying residence.

40. I am not satisfied that when all the factors in section 7(3) of the Act are aggregated and all of the factors are taken into account, that the Swiderskis met the requisite residency requirement at the relevant time of their application in 2007. The couple, whilst of pension age, cannot qualify and are not eligible for age pension because they do not meet the residency requirements. The decision under review must be affirmed.

DECISION

41.      The Tribunal affirms the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         ...........[sgd].....................................................................
  Associate

Date of Hearing  26 May 2008
Date of Decision  14 July 2008

Counsel for the Applicant         Self represented (on the telephone), with Ms J Huber & Mr D Swiderski present at the Sydney Hearing

Advocate for the Respondent   Mr K Bullock