Szabo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1098

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1098

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2120

GENERAL ADMINISTRATIVE DIVISION		)
Re		AGNES SZABO

Applicant

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

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date9 December 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the Applicant satisfies the requirements of s 43 of the Social Security Act 1991.  

.............[Sgd].................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – age pension – qualification –10 years qualifying Australian residence – applicant spent time between Hungary and Australia – definition of ‘Australian residence’ – physical presence and intention to treat place as home – decision set aside.  

Social Security Act 1991 ss 7(1), 7(3), 7(5), 7(6), 43

Hafza v Director General of Social Security (1985) 60 ALR 674

Re Kavedas and Secretary, Department of Family and Community Services (2004) 50 ALD 120

REASONS FOR DECISION

9 December 2008 Mr S Karas, AO, Senior Member

1.      Mrs Agnes Maria Szabo (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) on 13 May 2008 for a review of a decision made by a Centrelink Officer on 21 January 2008.  The original decision maker rejected the applicant’s claim for age pension as she did not have 10 years qualifying residence when she claimed the pension on 24 December 2007.  On 25 January 2008 the Applicant requested the decision be reviewed by Centrelink’s original decision maker.  The original decision maker affirmed the earlier decision on 30 January 2008 and on that day the Applicant sought a further review by an Authorised Review Officer.  On 15 February 2008 the Authorised Review Officer affirmed the original decision.

2.      On 21 February 2008 the Applicant appealed that decision to the Social Security Appeals Tribunal (SSAT).  On 9 April 2008 the SSAT affirmed the decision under review.

3.      A hearing of this matter was held in Brisbane on 23 October 2008.  The Applicant, accompanied by her son and daughter, appeared on her own behalf.  Mr Hamilton appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the Respondent”).  The Tribunal had before it the T-documents lodged in accordance with s 37 of the Administrative Appeals Act 1975 together with:

·   A letter from the Applicant to the Respondent’s legal advisor Mr Hamilton dated 30 September 2008, together with documentation and information provided by the Applicant;

·   A copy of the General Tenancy Agreement in the name of the Applicant and her son dated 12 February 2006 with a Bond Lodgement dated 10 June 2008 and a Statement page in the Applicant’s name with Suncorp in June-July 2006;

·   A copy of the Applicant’s travel documents to Australia in 1958 issued by Austria and provided under cover of her letter to the Tribunal dated 13 July 2008;

·   Statements by the Applicant and her children sent to the Tribunal on 19 September 2008 including a copy of a Contract for sale of a house property in Morayfield to the Applicant and her son dated 17 September 2008;

·   A copy of the Respondent’s Statement of Facts and Contentions and List of Authorities with a covering letter to the Applicant dated 17 October 2008;

·   A copy advice from a Senior Legal Officer of the Department of Immigration and Citizenship to the Respondent’s legal adviser, Mr Hamilton dated 14 November 2008 sent under cover letter of the same date to the District Registrar of the Tribunal.

BACKGROUND

4.      The Applicant came to Australia in July 1958 and resided here until 25 April 1964.  She became an Australian citizen in 1963.  She lived in Hungary from April 1964 to 1998 when she returned to Australia to live with her son.  Her daughter and husband stayed in Hungary.  Between 1998 and 2007 the Applicant lived in both Hungary and Australia for varying periods of time and this is noted as follows:

Austria	from	20/12/56	To	31/05/58
Australia	from	03/07/58	To	25/04/64
Hungary	from	??/05/64	To	2/11/98
Australia	from	04/11/98	To	10/04/99
Hungary	from	11/4/99	To	29/11/99
Australia	from	01/12/99	To	29/04/00
Hungary	from	30/04/00	To	15/10/01
Australia	from	17/10/01	To	15/03/02
Hungary	from	17/03/02	To	07/11/02
Australia	from	09/11/02	To	16/05/03
Hungary	from	17/05/03	To	08/10/03
Australia	from	09/10/03	To	10/05/04
Hungary	from	11/05/04	To	11/10/04
Australia	from	13/10/04	To	11/05/05
Hungary	from	12/05/05	To	30/10/05
Australia	from	01/11/05	To	10/05/06
Hungary	from	11/05/06	To	23/010/06
Australia	from	24/10/06	To	22/04/07
Hungary	from	23/04/07	To	10/09/07
Australia	from	12/09/07	To	present

As noted from the above, the Applicant departed and returned to Australia on several occasions, and spent more time in Hungary than Australia during the period 1998 until her application for the age pension in December 2007.  The Applicant’s husband applied for a spouse (migrant) visa on 6 December 2006 and came to Australia as a migrant in November 2007.  Her daughter is also presently in Australia and her son has resided here since 1998.

5. Section 43 of the Social Security Act 1991 (the Act) provides that a person who has reached pension age is qualified for an age pension if that person has 10 years qualifying Australian residence. “Qualifying Australian residence” is set out in s 7(5) of the Act as follows:

“s 7 Australian residence definitions

(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. “

As well as s 7(5), s 7(3) of the Act provides guidance about the matters that must be considered when determining whether a person has resided or is residing in Australia. Section 7(3) reads as follows:

“s 7 Australian residence definitions

(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. “

Section 7(6) of the Act provides that a person has a qualifying residence exemption if among other things he/she was a “refugee” or a “former refugee”. Section 7(6) reads as follows:

“s 7 Australian residence definitions

(6)  A person has a qualifying residence exemption for a social security pension, a social security benefit (other than a special benefit), a mobility allowance, a pensioner education supplement, a seniors health card or a health care card if, and only if, the person:

(a)  resides in Australia; and

(b)  is either:

(i)  a refugee; or

(ii)  a former refugee. “

A “former refugee” is defined in s 7(1) of the Act as follows:

“s 7 Australian residence definitions

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

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

designated temporary entry permit means:

(a)  an old PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People's Republic of China if that citizen holds an old PRC (temporary) entry permit; or

(b)  a new PRC (temporary) entry permit held by the partner or a dependent child (if any) of a citizen of the People's Republic of China if that citizen holds:

(i)  an old PRC (temporary) entry permit; or

(ii)  a new PRC (temporary) entry permit.

former refugee means a person who was a refugee but does not include a person who ceased to be a refugee because his or her visa or entry permit (as the case may be) was cancelled.

holder, in relation to a visa, has the same meaning as in the Migration Act 1958.

new PRC (temporary) entry permit means an entry permit within class 437 of Division 2.6--Group 2.6 in Part 2 of Schedule 1 to the Migration (1993) Regulations as in force before 1 September 1994.

old PRC (temporary) entry permit means a PRC (temporary) entry permit within the meaning of the Migration (1989) Regulations as in force before 1 February 1993.

permanent visa, special category visa, special purpose visa, temporary visa and visa have the same meaning as in the Migration Act 1958.

protected SCV holder has the meaning given by subsections (2A), (2B), (2C) and (2D).

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

qualifying residence exemption has the meaning given in subsections (6) and (6AA). “

6.      The Respondent conceded that the Applicant has been in Australia for over 10 years before her application for the age pension in December 2007 but disputes that the Applicant satisfies the 10 year qualifying residence requirement for the age pension.

ISSUES

7.The issues for the Tribunal to determine are:

(a)Whether the Applicant had 10 years qualifying Australian residence at the time of her claim for the age pension in December 2007 and, if so

(b)Whether she is qualified for an age pension.

EVIDENCE

8.      At the hearing, where an interpreter was present to assist the parties, the Applicant gave evidence to the effect that:

·   At the time of the application for an age pension she had spent over 10 years in Australia.

·   She maintained she had come to Australia as a refugee in 1958 and remained one.  She spent one week at the Bonegilla camp and she did not have to repay her fare to Australia.

·   She returned to Hungary in 1964 to assist her sick mother but she always intended to return to Australia.  Her Australian passport was “confiscated by the communists”.

·   As it was always in her mind to return to Australia she did so after the fall of communism in Hungary.  It was intended that her whole family come to Australia and her son did so after he completed his studies in Hungary.

·   She worked in Hungary from 1965 to 1990 when she received a Hungarian pension.  Her husband, whom she married in 1972, worked until he got his Hungarian pension and after that only on a part time basis until he sold the house and returned to Australia permanently in July this year.

·   Her family are all now in Australia.  She has some friends in Australia but during her earlier visits here she stayed with her son in tenanted houses and she also became a co tenant.  She had documented bank accounts in Australia both in her name alone and jointly with her son Gregory.  It was always her intention to own a house here and she could only bring limited amounts of money with her.  However, after the sale of the Hungarian properties she transferred more money and has now bought a house here with her son.  Settlement of the new home was on 29 October 2008 and the applicant intends to move into her home on 10 December 2008.

·   She could not entirely relocate to Australia earlier as her daughter was studying there, the properties had not been sold and there were Hungarian pension considerations for her and her husband.

·   Relocating to Australia was a slow process as she did not want to act or do anything “on the spur of the moment” and later regret it.

·   She was unable to obtain employment in Australia but had a tax file number.  She did get occasional work like delivering newspapers for a week.

·   She always intended to live in Australia permanently and finds the climate here better as well.  Since her responsibilities in Hungary ceased she has remained in Australia.

·   She always bought enough money to live off here.  She had worked in Australia earlier until leaving in 1964.  Her and her husband’s pensions are paid into a bank account in Hungary and they have not tried to have them paid to an Australian bank account.

·   Her furniture and goods in Hungary have now been moved to Australia and since the house was sold there in May 2008 she and her husband no longer have anything there.  They have transferred their money here.

·   She stated that she always abided by and followed what she was told by Centrelink.  She has always been honest in her dealings with Centrelink and she did not wish to deceive anyone.  She prepared herself and her family to move and live in Australia.  She always did the right thing.  She always bought enough money to live off and feared doing anything before that would affect her Hungarian pension.  As property was sold in Hungary the money was brought to Australia where her ties became greater as her plans to finally settle here gained fruition.  All of her family is now settled in Australia and her earlier trips and stays here were to build up her residency requirements to satisfy the Centrelink 10 year requirement as explained to her by Centrelink.

9.      The Applicant’s children supported their mother and her evidence.  Her son Gregory told of the Applicant’s aim to secure her children’s future in Australia and how she wanted to bring the family back here “for a long time”.  However, communism in Hungary affected her and the family’s plans.  He stated he came to Australia in 1998 permanently and how the family was to follow as conditions permitted.  His mother lived with him while here and she would always book her next trip to Australia after returning to Hungary as it was all part of their program to be here permanently.

10.     The Applicant’s daughter emphasized that her mother “did it all by the law”.  She told how she first travelled to Australia as a “tourist” as she did not become an Australian citizen until 2002 or 2003 and she stayed to complete her studies in Hungary.  However, as with the other family members she always intended to come and stay in Australia.

11. Mr Hamilton referred to the earlier discussions in this matter and to the legislative requirements noting that in December 2007 when the Applicant applied for an age pension she was unable to meet the 10 year residency requirement particularly s 7(b)(ii) of the Act. The Respondent’s legal adviser referred to the concept and meaning of the residency requirements noting that one needed to have one’s home and to be dwelling permanently in Australia. One needed to have one’s abode here rather than living or being somewhere temporarily. He also referred to s 7(3) of the Act concluding that the Applicant resided in Hungary and not Australia during the relevant times. As well he submitted that the Applicant was not a refugee for the purposes of the Act. He referred to the Applicant’s circumstances noting that her ties with Australia became greater after 2006. Mr Hamilton referred to the Applicant’s intentions as being part of the matter but that her intentions should be given little weight while more weight should be given to her actions. He submitted the Applicant may have misread the Act’s requirements and that she was not a permanent resident here from 1998-2006. She had built her life in Hungary and was bound by the law regarding the need for 10 years residency in Australia. Mr Hamilton noted that on the authority of Hafza v Director General of Social Security[1] a person could have two places of residence at the one time but that the Applicant’s place of residence was Hungary until at least 2006.

[1] Hafza v Director General of Social Security (1985) 60 ALR 674.

12.      After the hearing Mr Hamilton obtained an opinion from the Department of Immigration and Citizenship regarding the Applicant’s status as a refugee.  As noted earlier the Department’s Senior Legal Officer responded to this request by letter to Mr Hamilton on 14 November 2008.  A copy letter was also sent to the Applicant at her Sandgate address.

CONSIDERATION OF FINDINGS

13. The Tribunal found the Applicant to be an honest and forthright witness. It has considered the evidence and material provided in this matter. It is accepted by the parties to this matter that the Applicant has spent more than 10 years in Australia prior to her application for an age pension in December 2007 over a number of visits here since 1998 and her earlier period of residency before leaving Australia in 1964. It is not in dispute that the Applicant has reached the pension age, she is an Australian citizen and has been an Australian resident for at least one continuous period of 5 years or more before leaving Australia in 1964. However, the question to determine is whether she has 10 years of qualifying residence in terms of s 7(5) of the Act. That is to say, whether the periods she has resided in Australia between 1998 and December 2007 combined with the continuous period of residence between 1958 and 1964 constitute 10 years of qualifying residence.

14.     The legislation contemplates a person living “on and off” in Australia over a period of time as being part of the qualifying residence period and that the periods of time spent here can be aggregated over time to reach the residency qualification.  Indeed, the Tribunal notes that the Residence criteria material, published by Centrelink refers to the 10 year period being made up of periods of residence at any time in a person’s life, as long as at least one period is more than five continuous years.

15.     In Hafza’s case the Federal Court[2] noted that “residence includes two elements: physical presence in a particular place and the intention to treat that place as home”.  The Court went on to note that:

“Physical presence and intention will coincide for most of the time.  But few people are always home.  Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place (Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149) together with an intention to return to that place and an attitude that that place remains “home” (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place – see the facts of Lysaght and the reference by Williams J to “a home or homes” – 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 that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained”.[3]

[2] Hafza v Director General of Social Security (1985) 60 ALR 674 at 680.

[3] Hafza v Director General of Social Security (1985) 60 ALR 674 at 680-681.

16.     The evidence in this matter indicates that the Applicant first left Australia in 1964 to care for her sick mother in Hungary.  While away circumstances conspired to prevent her from returning here.  It appears while in Hungary, her Australian passport was confiscated by the then Communist authorities, she married and had a family.   For many years she was unable to return to Australia due to travel and other restrictions applied under the Communist regime.

17.     The Tribunal does not doubt the Applicant’s intention to settle and reside in Australia again with her family permanently, however, as identified by the Tribunal in Re Kavedas and Secretary, Department of Family and Community Services[4] a subjective intention to reside in Australia is insufficient for a determination of residency. The criterion in s 7(3) of the Act needs to be considered objectively.

[4] Re Kavedas and Secretary, Department of Family and Community Services (2004) 50 ALD 120.

18. The Tribunal considered the oral and written evidence in this matter and takes into account each of the factors listed in s 7(3) of the Act.

(a)  The nature of the accommodation used by the person in Australia

19.     Up until recently the Applicant has not owned a house in Australia.  She was a co tenant with her son in rented accommodation and stayed with him during her trips to Australia after 1998.  However, the Tribunal notes that once the intention to settle in Australia was made the Applicant moved to bring assets to Australia largely from the sale of properties in Hungary to purchase a house to settle here.

(b)  The nature and extent of family relationships with the person in Australia

20.     During the period 1998 to 2007 the Applicant’s family was split between Australia and Hungary.  Her son had moved here permanently while her daughter and husband stayed in Hungary.  The daughter was studying and earlier could only come to Australia as a tourist.  The Applicant’s husband worked in Hungary and received a pension there and he did not come to Australia until November 2007.  However, the Tribunal finds that the special circumstances of the Applicant’s situation led to the family being separated.  This separation does not resile from the intention of all to reside permanently in Australia but for reasons of study, property disposition, pensions and the like, the ties with Hungary appeared more linked to Hungary than to Australia for a time.

(c)  The nature and extent of the person’s employment business or financial ties with Australia.

21.     The Applicant endeavoured to obtain work in Australia but for a host of reasons including her age, she was unable to work except for short periods like the week delivering newspapers, she did not have a business here and her financial ties came from the monies she brought and transferred over time largely after the disposal of properties in Hungary.

(d)  The nature and extent of the person’s assets located in Australia.

22.     The Tribunal finds that over the years since 1998 the Applicant moved assets from Hungary to Australia as circumstances allowed.  Although it took time for assets in Hungary to be disposed of, there was a continuing movement in this regard since 1998 during her visits to Australia.  The Applicant produced a number of bank statements indicating that monies were deposited and available to her here.  She was associated with her son in rental accommodation while here and they have now purchased a house in their names.

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

23.     As noted earlier the records available indicate that after the Applicant left Australia in 1964 to care for her mother a number of trips were made to Australia for various periods from 1998 to 2007.  Although the Applicant spent more time in Hungary than in Australia during that period the reasons for her being in Hungary for family, pension, property assets and other appear reasonable in the circumstances.

(f)  Any other matter relevant to determining whether the person intends to remain permanently in Australia

24.     The Applicant after a period of time has finally disposed of all of the family property and assets in Hungary.  She has now moved her furniture and personal goods here and she and her son have jointly purchased a house here for the family to reside in.  In a note on the Centrelink file dated 14 February 2008 the officer refers to wanting to see “a little more proof that she (the Applicant) is intending to remain here permanently such as showing that her house is actually on the market in Hungary and that she has moved furniture/assets to Australia”.  The officer went on “I would definitely want stronger proof that her intentions during this time were to remain in Australia permanently and not just to acquire residence”.

25.     The Tribunal finds that the Applicant and her family’s actions since 1998 were to fulfil the intention to live permanently in Australia.  Unlike in other cases where there was no real effort to move personally and permanently to Australia or to move assets and acquire property here, the Applicant and her family, albeit slowly, have moved deliberately to establish this permanent abode and residence in Australia down the years.  Earlier their circumstances were different due to the then Communist and post Communist era in Hungary.  However, when able, the Hungarian properties were sold and assets were repatriated to Australia.  Also delays occurred due to the children’s education and perhaps a misconception about their pension entitlements in Hungary and Australia.  All in all, the Tribunal finds on the balance of probabilities that since 1998 the Applicant retained or demonstrated a continuity of association with Australia as well as an intention to return to Australia and an attitude that Australia would become home.  The Tribunal accepts the evidence of the Applicant who was found to be truthful and that her actions and pattern of behaviour over the years supports the above conclusion.

26.     The Tribunal finds that in the circumstances of this case the Applicant satisfied both the elements of the Hafza test at the civil standard of proof by demonstrating a continued association with Australia. Her son had moved to Australia in 1998 and she had an intention to return to Australia with an attitude that Australia would be and remain “home”. Therefore, the Tribunal finds that the Applicant has on balance qualified for an age pension by satisfying the 10 year qualifying Australian residence requirements referred to in ss 43(c) and 7(5) of the Act.

27. Given this conclusion on the facts and circumstances of this matter the Tribunal finds that it is not necessary to address the matter of whether the Applicant could be classed as a refugee or former refugee for the purposes of the exemption referred to in s 7(6) of the Act.

CONCLUSION

28. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the Applicant satisfies the requirements of s 43 for an age pension.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed:         ...........................[Sgd].....................................................
  Elizabeth Young, Research Associate

Date/s of Hearing  23 October 2008
Date of Decision  9 December 2008
For the Applicant  Mr G H Szabo, Applicant's son
For the Respondent                  Mr B Hamilton, Departmental Advocate