Taslim and Secretary, Department of Family and Community Services

[2004] AATA 28

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/1272

GENERAL ADMINISTRATION DIVISION		)
Re		KARAR TASLIM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr M Thorpe, Member

Date16 January 2004

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Dr M Thorpe, Member

CATCHWORDS

SOCIAL SECURITY – Applicant not an Australian resident prior to 16 September 2002 – Applicant not entitled to Transitional Residence Certificate – Applicant not considered to be a “protected special visa holder” – Applicant did not reside in Australia during relevant period – Applicant’s six-day stay in Australia did not amount to residence – decision affirmed

Social Security Act 1991 ss 7(2C), 7(3)

Migration Act 1958 s58

Wybrow and Secretary, Department of Social Security (AAR 8321, 19 October 1992)

Levene v Inland Revenue Commissioners (1928) AC 217

REASONS FOR DECISION

16 January 2004 Dr M Thorpe, Member       

1.      This is a review of the decision of the Social Security Appeals Tribunal (“SSAT”) on 8 July 2003, which affirmed a decision of an Authorised Review Officer (“ARO”) dated 24 February 2003 and a delegate of Secretary, Department of Family and Community Services (“the Respondent”) on 20 January 2003 that Mr Taslim was not an Australian resident prior to 16 September 2002. As a result, Mr Taslim was not entitled to be issued a Transitional Residence Certificate, as he was not considered to be a “protected special category visa holder” under the Social Security Act 1991 (“the Act”).

LEGISLATION

2. The relevant provision of the Act is subsection 7(2C) which allows a person to be a protected Special Category Visa holder if they commenced or recommenced residing in Australia during the period of 3 months beginning on 26 February 2001 and if;

“(a)the time is the period during the period of 3 years beginning on 26 February 2001; or

(b)       the time is after the end of that period, and either:

(i)a determination under subsection (2E) is in force in respect of the person: or

(ii)the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.”

CONSIDERATION

3.      For this application to succeed, Mr Taslim was required to show that he commenced residing in Australia in the period from 26 February 2001 to 25 May 2001.

BACKGROUND

4. Mr Taslim is a citizen of New Zealand and at the relevant time was not an Australian citizen or the holder of a permanent visa. As a New Zealand citizen he is a holder of a temporary visa called a “special category visa” (“SCV”) which is issued to holders of New Zealand passports under section 58 of the Migration Act 1958.

5.      His evidence was that he arrived in Australia on 21 May 2001 and remained in Australia for six days. He stayed with a friend at Campsie. His wife, who remained in New Zealand, did not accompany him. He returned to New Zealand on 27 May 2001 because his wife was unwell. Mr Taslim believed that any period of stay within the three months would qualify him as a SCV holder

6.      Under examination by Mr Carter, Mr Taslim said he made no contribution to the outgoings at Campsie and he did not pay rent. He did not work during this period but he did open a bank account with the Commonwealth Bank at Campsie. The SSAT decision states that he applied for a tax file number, job search registration and a Medicare card at that time. (T2/5). Mr Taslim has no relatives in Australia.

7.        Mr Taslim returned to Australia on 16 September 2002 and his wife and child joined him in Australia in 22 October 2002. Mr Taslim and his family continue to reside in Australia. He has passed the English test requirement for overseas veterinary surgeons and said he intends to do the qualifying examination for Veterinary Surgery.

8. To satisfy subsection 7(2C) of the Act Mr Taslim must show that he commenced or recommenced residing in Australia during the period of three months beginning on 26 February 2001. Section 7(3) of the Act sets out some of the factors the Tribunal must take into account:

“(a)     the nature of the accomodation used by the person in Australia

(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.”

9.      In Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992), Deputy President McMahon held that whilst the Act requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia, they are not intended to be exhaustive and are made in the relation to the ordinary concept of residence.

10.     The term residence encompasses temporal and emotional factors. Thus to establish residence there must be both a physical presence in the particular place as well as the intention to treat that place as ’home’. In Levene v Inland Revenue Commissioners (1928) AC 217 Viscount Cave LC defined ‘reside’ as:

“ the word ‘reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning to dwell permanently or for a considerable time“.

11.     In determining the issue of whether Mr Taslim was resident in Australia, the Tribunal had regard to the following enumerated factors:

(a)Mr Taslim lived with a friend on a temporary basis for six days during that three-month period. At best this constitutes a visit and cannot be construed as setting up residence. A brief visit with the said intention to reside in Australia also does not constitute residence.

(b)Mr Taslim had no family in Australia during that period. He was a citizen of New Zealand and his family was in New Zealand.

(c)Mr Taslim had no employment or prospects of employment in Australia, at that time and he had no business or financial ties. He subsequently passed the English exam for foreign veterinarians to qualify to take the qualifying exam in veterinary surgery but that was not relevant, for the three-month period.

(d)Mr Taslim had no personal assets in Australia during that period apart from opening a bank account during his brief stay.

(e)Mr Taslim only visited Australia once and was effectively living in New Zealand for the three-month period except for his six- day visit.

(f)As to other matters relevant to determining whether the person intends to remain in Australia, Mr Taslim referred to advice from the Respondent to the effect that if he returned to Australia by 2004 he would be considered an Australian resident. . A note on file by Christian Ellston states  (T6/15):

:”27 / 05 /01. Reconsider issue of Certificate if claimant returns and reclaims before 26/02 / 04”.

Mr Carter, at the hearing, advised that this referred to a Certificate of Australian residency and not a SCV.

12.     I do not consider the interpretation of the note by Christine Ellison relevant.  A subsequent letter from the Respondent dated 10 September 2001 stated that there was not enough evidence to issue Mr Taslim with a residence certificate. It is the task of this Tribunal to determine his resident status for the three-month period.

13.     Mr Taslim returned to Australia on 16 September 2002 and the Respondent has accepted that he has resided here on a permanent basis since that date. In order to qualify as a SCV holder he is required to show that he had taken up residency or had commenced residing in Australia during the 3-month period 26 February 2001 to 26 May 2001.

14. He does not fulfil the criteria as set out in section 7(3) of the Act to establish that he commenced residing in Australia during that 3-month period and therefore cannot qualify as a SCV holder. A brief visit as described by Mr Taslim does not meet with the requirements of commencing to reside in this country, as required in the Act nor does the six day visit satisfy the ordinary concept, that he commenced residing during that three month period.

15.      I therefore consider that Mr Taslim is unable to be treated as an Australian citizen prior to 16 September 2002, because he had not been issued a Transitional Residence Certificate as he was not considered to be a ‘protected category visa holder ‘

16.     The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Thorpe, Member

Signed:         A. Krilis
  Associate

Date/s of Hearing  9 December 2003
Date of Decision  16 January 2003
Representative for the Applicant    Self Represented
Advocate for the Respondent        Mr Luke Carter