TELALOVIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 428
•22 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 428
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0711
GENERAL ADMINISTRATIVE DIVISION ) Re Alma TELALOVIC Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr I S Alexander, Member Date22 June 2011
PlaceSydney
Decision The decision under review is set aside and in substitution it is decided that the Applicant was an “Australian resident” for the purposes of section 21 of the A New Tax System (Family Assistance) Act 1999 on 15 April 2008.
.....................[sgd]......................
Dr I S Alexander
Member
CATCHWORDS
SOCIAL SECURITY - family tax benefit - definition of Australian resident - Applicant intended to return to Australia - prevented from returning to Australia by circumstances outside of her control - decision under review set aside and substituted.
A New Tax System (Family Assistance) Act 1999: s3, s 21
Social Security Act 1991: s 7(2), s 7(3)
Hafza v Director-General of Social Security (1985) 6 FCR 444
Issa and Secretary, Department of Social Security (1985) 8 ALN 177
Secretary, Department of Family and Community Services and Kaello (2003) 74 ALD 51
REASONS FOR DECISION
22 June 2011 Dr I S Alexander, Member 1. Ms Telalovic arrived in Australia from Bosnia and Herzegovina (Bosnia) with her then husband and eldest daughter in October 2003 and was granted a permanent visa in December 2005.
2. On 20 February 2006 Ms Telalovic left Australia and returned to Bosnia with her then husband and two daughters. Her second daughter was born in November 2003 and is an Australian citizen.
3. Before leaving Australia Ms Telalovic advised Centrelink that the move was temporary because at that time the family was receiving several Centrelink benefits including family tax benefit.
4. For various reasons her stay in Bosnia was extended but she continued to receive family tax benefit until it was cancelled on 1 January 2008.
5. On 15 April 2008 Ms Telalovic lodged a new online claim for family tax benefit which was rejected by Centrelink on the grounds that she no longer met the Australian residency requirements for the benefit.
6. In a decision dated 12 May 2009 the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision and Ms Telalovic now seeks review of the SSAT’s decision.
7. Ms Telalovic returned to Australia in October 2010.
8. At the hearing on 2 June 2011 Ms Telalovic was unrepresented and gave oral evidence.
ISSUES
9.It is agreed that the only issue before the Tribunal is whether Ms Telalovic was an “Australian resident” as required by section 21 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) at the time she lodged her new application for family tax benefit on 15 April 2008.
10.Section 3 of the of the Family Assistance Act states that “Australian resident” has the same meaning as in the Social Security Act 1991 (the Act).
11.Section 7(2) of the Act states that:
(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.
12.As Ms Telalovic holds a permanent visa the specific issue to decide is whether on 15 April 2008 she was residing in Australia for the purposes of the Act.
13.In deciding whether or not a person is residing in Australia I must have regard to the matters set out in section 7(3) of the Act, which are as follows:
(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.
EVIDENCE
14.Shortly after arriving in Australia Ms Telalovic’s family was offered low cost rental accommodation in a granny flat owned by friends. They lived in this flat until leaving Australia in 2006.
15.In her evidence Ms Telalovic explained that her husband did not work and received a disability pension. Although her husband was opposed to her being employed outside the home she did do some casual work and also completed an IT work skills certificate at TAFE.
16.While in Australia the family accumulated no significant assets apart from some bedroom furniture.
17.In respect of friends and family Ms Telalovic explained that she has few friends or family in either Australia or Bosnia. Her only relatives in Bosnia are her mother and a sister with whom she has had little contact for many years. She said most of her relatives and friends had left Bosnia to live in other countries.
18.In Australia she had some of her own friends including her second daughter’s godmother, a distant cousin in Melbourne and some family friends of her late father.
19.In respect of her travel outside Australia, I note that Ms Telalovic lived in Australia for about two years and five months and at the time of lodgement of her claim she had been absent from Australia for about two years and two months .
20.In respect of her reasons for leaving Australia, Ms Telalovic explained that there had been significant domestic difficulties because of her then husband’s problems with abuse of prescription medications and persistent gambling.
21.She said that although her then husband’s plans were confused, she had agreed to return to Bosnia because she wanted to support him in his attempt to sort out some of his problems, but maintained that she had expected to return to Australia after a few months.
22.At the time she left Australia Ms Telalovic was pregnant and soon after arriving in Bosnia she suffered significant complications with her pregnancy which required a period in hospital and complete bed rest until the birth of the baby.
23.I note that in a letter dated 2 May 2006 Ms Telalovic had informed Centrelink that she was unable to return to Australia because of complications with her pregnancy.
24.Her third and youngest daughter was born on 3 July 2006. Shortly thereafter Ms Telalovic arranged for her newborn daughter to be registered as an Australian Citizen by descent. The date of registration is 13 October 2006.
25.On returning to Bosnia Ms Telalovic lived in her mother’s apartment. She explained that her mother was often absent and that her then husband stayed with the family for only short periods, usually less than two weeks. He frequently travelled to Croatia and Germany and most of the time she did not know where he was or what he was doing.
26.Her financial situation was extremely difficult because her then husband did not provide sufficient support for the family and she had to rely on her family tax benefit and temporary employment to pay for essentials such as food.
27.In August 2007 Ms Telalovic informed Centrelink of her changed circumstances in particular that she was divorcing her husband.
28.She filed for divorce on 7 November 2007 with final judgment being granted on 18 June 2008.
29.The Court ruled that the children were to live with Ms Telalovic and that she was to act as their legal guardian. Her now ex-husband was given relatively free access to the children. This suited Ms Telalovic because his visits were generally brief and unpredictable. He was required to make financial contributions to support the care of the children, but he proved to be unreliable.
30.Ms Telalovic stated that after the divorce was finalised she intended to return to Australia. Her return was delayed because she needed to sort out some issues with passports and, more significantly, she was unable to pay for the airfares.
31.She also stated that her ex-husband did not object to her return to Australia with the children. As far as she was aware, there were no legal barriers apart from the requirement for her ex-husband’s consent before an Australian passport could be issued to their youngest daughter.
32.I also note a copy of an email from Ms Telalovic’s ex-husband to Centrelink dated 24 February 2009 stating that he had no objection to his children accompanying their mother when she returns to Australia.
33.On 27 October 2010 Ms Telalovic returned to Australia with her three daughters. She was able to pay for the airfares because of a loan from one of her father’s old friends who lives in Australia.
CONSIDERATION
34.Mrs Telalovic contends that she left Australia in 2006 on a temporary basis and that at all times while in Bosnia intended to return to Australia and to remain permanently in Australia on her return, but was prevented from doing so by circumstances largely beyond her control.
35.I found Ms Telalovic to be a credible witness and her uncontested oral evidence to be very persuasive.
36.In respect of the statutory criteria in subsections 7(3)(a), (b), (c), (d) and (e) of the Act, the evidence on its face does not favour Ms Telalovic’s claim. These, however, as explained in Secretary, Department of Family and Community Services and Kaello (2003) 74 ALD 51 (Kaello) at [33], do “not comprise an exhaustive list of factors and also of importance will be those kinds of connections which the person has with another country”, in this case – Bosnia.
37.The evidence given by Ms Telalovic supports her contentions that at the relevant time she did not have a strong connection with Bosnia as her accommodation there was temporary, she had few family members or friends residing there, her employment there was temporary and necessary for her to provide for her children, and she had few assets in either Bosnia or Australia.
38.The decision in Kaello goes on to say that the intention of the person claiming the benefit, as per section 7(3)(f) of the Act, will be relevant in determining her status during the period of absence from Australia.
39.In determining that she intended to return to Australia, I am guided by a number of decisions made by this Tribunal and the Federal Court.
40.In the decision of Wilcox J in Hafza v Director-General of Social Security (1985) 6 FCR 164, his Honour considered the intention of an Applicant to return to Australia and said at pages 449-450:
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 -- even involuntarily… 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… together with an intention to return to that place and an attitude that that place remains "home"… 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 that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
41.His Honour further explained at page 453 that a temporary absence would continue to be one so long as the person intended to return as long as the “absence would remain governed by the intention to fulfil a particular purpose and then return to Australia” even if the “prolongation of the absence being imposed” is “against their will”.
42.In Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177, the Tribunal specifically dealt with a temporary absence from Australia which could extend over a considerable period of time. The Tribunal noted the importance of the person’s intention in determining his or her residence. At page N183 the Tribunal said:
If the intention of the applicants was to carry out some formulated purpose not extending into the indefinite future and if that intention is demonstrated by their ultimate return after the achievement of that purpose then, however long the absence, it can properly be regarded as temporary – as (to quote the Shorter Oxford Dictionary) ‘lasting for a limited time’.
43.After considering all the evidence before me I am satisfied that Ms Telalovic did retain a continuity of association with Australia as demonstrated by her diligence in obtaining citizenship for her youngest daughters soon after their birth so that two of her daughters are now Australian citizens.
44.The documentary evidence also clearly demonstrates continuing communication with Centrelink.
45.In respect of her “intention to return” to Australia, I am satisfied that the evidence supports a conclusion that she did intend to return but was prevented from doing so by what can best be described as very difficult financial and personal circumstances. In a period of just over two years she had her third daughter after a difficult pregnancy followed by a breakdown of her marriage resulting in divorce and had to support three children with limited financial resources.
46.It would also appear that the cancellation of her family tax benefit may have, in part, contributed to the delay in her return because she was unable to pay for the airfares.
47.Finally, despite significant barriers, Ms Telalovic did return to Australia with her three daughters.
48.It is clear that her absence from Australia was temporary. Ms Telalovic at no point intended to establish residence outside Australia. Her absence was caused by difficult financial and personal circumstances and in the face of those difficulties, she maintained a continuing intention to return to Australia as evidenced by her efforts in contacting Centrelink, obtaining Australian passports for her children and eventually returning to Australia.
DECISION
49.For the reasons set out above I find that at the time of her application for family tax benefit on 15 April 2008 Ms Telalovic was an Australian resident for the purposes of section 21 of the A New Tax System (Family Assistance) Act 1999.
50.The decision under review is set aside and in substitution it is decided that the Applicant was an “Australian resident” for the purposes of section 21 of the A New Tax System (Family Assistance) Act 1999 on 15 April 2008.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I S Alexander, Member
Signed: ................[sgd].............................................................
AssociateDate/s of Hearing 2 June 2011
Date of Decision 22 June 2011
Applicant Self-represented
Appearance for the Respondent Biljana Salaji, Centrelink Advocacy Branch
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