Vassiliou and Secretary, Department of Social Services (Social services second review)

[2015] AATA 510

Vassiliou and Secretary, Department of Social Services (Social services second review) [2015] AATA 510 (15 July 2015) 

Division	General Division
File Number	2014/5319
Re	Abraham Vassiliou
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms S Taglieri, Member
Date	15 July 2015
Place	Hobart

The decision under review is set aside and the matter remitted to the Respondent to give effect to this decision.

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Ms S Taglieri, Member

Catchwords

Disability support pension; overseas applicant; length of Australian Working Life Residence; whether resident in Australia in specific period; whether absence temporary

Legislation

Social Security Act 1991

Cases

Hafza v Director-General of Social Security [1985] FCA 164

Secretary, Department of Families and Community Services v Baccon [2006] FCA 773

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Hussein & Anor v Secretary Department of Employment and Workplace Relations [2007] AATA 17

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Ms S Taglieri, Member

INTRODUCTION

1. This application relates to whether the amount of Disability Support Pension (DSP) paid to Mr Vassiliou has been correctly determined. Mr Vassiliou was granted DSP and advised of the rate at which he would be paid by notice dated 26 May 2014.[1]

   [1] T6 at pages 48 to 50 of T documents

2. There are a number of components to the methodology applied under the relevant Social Security law to determine the correct rate of payment of DSP to Mr Vassiliou.[2]  Only one component of the methodology was in dispute in this case. That was the number of months the Respondent had identified for “Australian Working Life Residence” (AWLR), being 275 months (after review by the Authorised Review Officer).[3]

   [2] Social Security (International Agreements) Act 1999 and schedule 11 of that Act; section 7 Social Security Act 1991 for meaning of Residence

   [3] See T7 at pages 51 to 57 of T documents

   THE CONTENTIONS

3. Mr Vassiliou contended that the Respondent had incorrectly refused to include the period 3 October 1992 to 28 October 1994 in the number of months arrived at for his AWLR.

4. The Respondent argued that it had correctly identified 275 months for AWLR, because Mr Vassiliou had not been an Australian resident during the period 3 October 1992 and 28 October 1994.[4]

   [4] A requirement of section 16 of the Social Security (International Agreements) Act 1999

5. The issue to be decided is whether Mr Vassiliou was an Australian resident between 3 October 1992 and 28 October 1994 and if so, then that period should be added to the 275 months identified by the Respondent for AWLR.

   THE EVIDENCE ABOUT RESIDENCY

6. Mr Vassiliou came to Australia with his family on 9 December 1965 when he was 11 years old. He resided here continuously for many years and became an Australian Citizen in 28 January 1975.

7. He studied as a youth in Australia and later gained qualifications in Hairdressing. He also was a musician and accumulated various musical instruments and equipment associated with the music industry.

8. He gave evidence that in 1992 his parents decided to return to Cyprus, the country of their birth, to trial a permanent relocation there. At the time, he had a sister, uncles and cousins still living in Cyprus, but he also had brothers, an aunt, nephews and nieces and cousins who lived in Australia.

9. Due to his mother’s poor health (Osteoarthritis, particularly affecting the knee and a heart condition), he accompanied his parents on the flight to Cyprus. He intended to assist his parents settle into a home in Cyprus, stay for a short holiday and then return to live his life in Australia. While in Cyprus at this time, he stayed with his parents in a property they had rented for 12 months.

10. He solely owned a house in Australia which he had initially purchased with his father in around 1973. Later he had purchased his father’s interest. He said he had lived in it for a time but later rented it out. In early 1992 he said he was not renting the property but instead was fixing it up, because the tenants who had been in it had caused damage to it.

11. By 1992, Mr Vassiliou had entered into a serious personal relationship with a lady, who he said he had engaged. They intended to move in together after he returned from assisting his parents relocate to Cyprus. He accompanied his parents to Cyprus on 8 February 1992 and returned to Australia in May 1992. Mr Vassiliou said that the relationship ended when he overstayed his time in Cyprus after he returned there in October 1992. In particular, he said it had ended “within a year of him going back”, that is October 1993 at the latest.

12. Mr Vassiliou said that on his return to Australia in May 1992 he lived with his brother and this was to be temporary, while he repaired his house. He had stored his belongings at his brother’s home too before accompanying his parents to Cyprus earlier that year.

13. During the five months following his return to Australia in May 1992, he said that he looked for work and also did bits and pieces of music work. He was having problems with his spine, so was limited in what he could do.

14. Then in October 1992, Mr Vassiliou said that he returned to Cyprus because his mother was required to undergo surgery to her knees. He went back to assist her and his father, who was elderly and his health was not good either. He said that at this time, his sister was not able to provide much help to his parents because she had her own family to care for and was also pregnant, expecting another child.

15. When he returned to Cyprus, he said his mother needed to have physiotherapy to improve her mobility and have treatment for a long standing heart condition, before surgery would be performed on her knees. It therefore transpired that she did not have the surgery until October 1993.[5]

    [5] Letter from Dr Liassides, Orthopaedic Surgeon

16. In the intervening period, because Mr Vassiliou had stayed longer than initially intended and was still a citizen of Cyprus, he was called upon to do compulsory national service. He did not live on site at the army barracks, but reported daily. He said he would have had to remain enlisted for 3 years, but with the assistance of contacts and because of his back condition, he was able to get early discharge, so only served 4.5 months. The documents Mr Vassiliou submitted about this, suggest that he entered national service in July 1993 and exited in October 1993[6], which generally corroborates his oral evidence. His exit from the national service also seemed to coincide with the discharge of his mother from hospital after the bilateral total knee replacements.[7]

    [6] Exhibit A4 and A5

    [7] Discharge from hospital was 12.10.1993 per Dr Liassides

17. In the time when he was not engaged in national service, Mr Vassiliou said that he assisted with caring for his parents and did some casual work as a musician. He was asked if he collected Social Security benefits in Cyprus during this time. He said he did not believe he was eligible to receive that but was unsure if he did or did not.  For the period in dispute, he did agree that he had 66 weeks of insurance for the Cyprus Pension Fund. He said that it related to 18 weeks for national service and 48 weeks for employment.

18. The certified record of weekly contributions provided by the Cyprus authorities clearly evidences that the 66 weeks is for national service and unemployment[8], so I prefer this evidence to the uncertain evidence Mr Vassiliou gave.

    [8] T4 at page 37 of T documents

19. Mr Vassiliou ultimately did not return to Australia until one year after his mother’s surgery and his discharge from national service.  He did not provide an acceptable explanation for remaining in Cyprus this long.

20. While in Cyprus between October 1992 and October 1994, Mr Vassiliou stayed with his parents in the house they had rented and later in the house they purchased after being evicted from the rental property. There was a legal dispute with the landlord of that rental property and Mr Vassiliou said that he was involved in assisting his parents with that.

21. The Respondent’s counsel cross-examined Mr Vassiliou at the hearing. There was some challenge of his evidence about dates completed in forms and inconsistency in what he had said in evidence to the Social Security Appeals Tribunal (SSAT) and elsewhere. Despite this, I found the Applicant’s evidence largely consistent and given the number of times he has given the relevant history which relates to events over 20 years ago, I was satisfied that his evidence was largely reliable. Particularly because in several instances it was corroborated by documents which were taken into evidence or produced after the hearing consequent to leave he was granted.

    CONSIDERATION OF ISSUES AND FINDINGS

22. The Respondent essentially relies on Mr Vassiliou’s physical absence from Australia during the period in dispute to demonstrate that he does not satisfy the meaning of Australian resident in section 7(2) of the Social Security Act 1991 (SSAct).  Counsel for the Respondent argued that because Mr Vassiliou ate, slept and had a settled abode in Cyprus in the period, he could not be regarded as an Australian resident within the meaning of the term, as has been established by case authorities and by reference to section 7(3) of the SSAct.

23. I was also referred to the relevant extracts of the Guide to Social Security Law, which provided policy guidance to the interpretation of the criteria in section 7(3) of the SSAct.

24. The evidence establishes that Mr Vassiliou was not in Australia between 3 October 1992 and 29 October 1994, a period over two years. This alone does not necessarily mean he was not an Australian resident, if the absence is regarded as temporary.[9]  Further, it has been held that in general, residency is not an exclusive concept and a person may reside in more than one place.[10] However, residence involves two elements, physical presence in a place and the intention to treat it as home.[11]

    [9] Hafza v Director-General of Social Security [1985] FCA 164 at paragraph 15

    [10] Secretary, Department of Families and Community Services v Baccon [2006] FCA 773 at paragraph 9

    [11] Hafza at paragraph 13

25. On the evidence I am entirely satisfied that when Mr Vassiliou first left Australia in 1992, he had no intention of residing in Cyprus. Instead he went there to assist his parents and then was planning to return to Australia and continue to reside here with his fiancé.

26. However, after he returned to Australia in May 1992, rather than staying on, I find that he went back to Cyprus because of his parents circumstances and only intended that to be a short stay and temporary. This changed as his mother had to undergo treatment before she could have the knee surgeries and while that was occurring Mr Vassiliou was required to do national service.

27. I am satisfied that the prolonged stay remained temporary and unintended until he extracted himself from national service and his mother had surgery. After this though, he remained in Cyprus for a full year before returning to Australia.  The reason he stayed is largely unexplained because his mother’s serious heart problem did not arise until February 1995.[12] Further, it seems unlikely there was post-surgery care/assistance for a full year. At best for Mr Vassiliou, he remained because he chose to care for his parents who were old and did not have good health, but that explanation is not compelling because he did return to Australia later, while the age and health of his parents did not materially alter.

    [12] As evidenced by report of 3.6.15 from Dr Hadjantonas, Cardiac specialist

28. An absence from Australia for two years in the above circumstances is not easily characterised as temporary because that concept also involves transience.[13]  It is also necessary to carefully consider the factors in section 7(3) of the SSAct in my view to arrive at the correct and preferable decision about whether he remained an Australian resident in the period 3 October 1992 and 29 October 1994.

    [13] Hafza at paragraph 20

    NATURE OF ACCOMMODATION USED IN AUSTRALIA

29. Mr Vassiliou’s uncontested evidence is that when he first went to Cyprus in 1992, he was not living in the property he owned in Greenslopes and was fixing it to so he and his fiancé could move in when he returned.  The evidence does not permit a definite finding about where he lived prior to going to Cyprus in early 1992 but it clearly establishes that he did not live in the house he owned at any time between early 1992 and his permanent return to Cyprus in March 1995.

30. During this three year period he stayed in accommodation owned by his brother whenever he was in Australia. He described having an area to himself and the photos submitted in evidence do not in my view depict a settled home situation, but rather furniture in a storage situation in part of a residence.

31. On Mr Vassiliou’s evidence he had a vacant house at Greenslopes, but did not live in it. While it may have needed repairs in early 1992 as he said in evidence, I cannot accept that a person residing in Australia in the sense of eating, sleeping and having a settled abode here and intending to reside permanently here, would not have done the repairs and moved into the property within three years, despite being in Cyprus for parts of this time.

32. The accommodation Mr Vassiliou had in Australia at his brother’s property could only be described as temporary and was not a settled place of abode. The house he owned could not be regarded as his accommodation, as on his evidence it needed repair before he would move into it and he never did move into it after 1992.

    NATURE AND EXTENT OF FAMILY RELATIONSHIPS IN AUSTRALIA

33. The evidence establishes that between October 1992 and October 1994 Mr Vassiliou had the following family and friends in each country.

    In Cyprus:

    ·His mother and father;

    ·His sister and brother in law;

    ·His niece and nephew;

    ·Uncles on his father’s side;

    ·Distant cousins;

    ·Some musician friends.

    In Australia:

    ·Brothers;

    ·Aunt;

    ·Cousins (aunt’s children);

    ·Friends; and

    ·Fiancé (until they broke up in 1993).

34. Although Mr Vassiliou gave evidence that he had little to do with his uncles and cousins in Cyprus, it is apparent from an assessment of the family relationships above that he had strong and probably equal connections in both countries. This consideration therefore does not particularly assist in resolving the question of whether Mr Vassiliou was an Australian resident.

    NATURE AND EXTENT OF EMPLOYMENT, BUSINESS OR FINANCIAL TIES WITH AUSTRALIA

35. During the period in dispute Mr Vassiliou had no employment in Australia. In the period between early 1992 and March 1995 (when he permanently returned to Cyprus), he only did some casual work in the music industry in Australia.  He did not exercise his professional qualification as a hairdresser or do other work in Australia during this period.

36. He had no true business interests in Australia either, although he did have the rental property. On the evidence before the Tribunal it seems that he did receive rental income from the property during the period in dispute and I have taken this into account.

37. Other than the rental property, Mr Vassiliou had no other financial ties to Australia. He held a bank account, but taking into account the Guide to Social Security Law relating to residence requirements[14], this is to be given no weight, given the ease of opening an account in Australia.

    [14] As authorised by Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

    NATURE AND EXTENT OF ASSETS IN AUSTRALIA

38. I am satisfied on the evidence that Mr Vassiliou had the bulk of his assets in Australia. He had the property at Greenslopes, furniture, musical instruments and equipment.  By contrast it seems he had none of these in Cyprus as he lived in property rented or owned by his parents, used his father’s car and other belongings in his parents’ home.

39. This is a significant factor weighing in favour of Australian residency, but is it enough to satisfy the Tribunal that when all relevant considerations are taken into account, he remained resident in Australia.

    ANY OTHER RELEVANT MATTER

40. I was persuaded by Mr Vassiliou’s evidence that he originally intended to remain a resident of Australia in the period in question. I accept that he had genuine ties to the country and fully intended he would remain living here permanently once he had assisted his parents.

41. However, on all the evidence it is far from clear whether that intention persisted following the failure of his relationship with his fiancé. The fact that he remained in Cyprus for a full year after the time he was discharged from national service and his mother’s knee surgery, strongly suggests that during 1993 when the relationship with his fiancé broke down, he probably decided to stay on in Cyprus for an indeterminate period. The evidence causes significant doubt about whether Mr Vassiliou’s absence from Australia remained temporary after this, such that he could still be regarded as an Australian resident.

42. Mr Vassiliou also relied on evidence he adduced that he had renewed health insurance, Medicare, driver’s licence and only had an Australian passport to demonstrate that he was an Australian resident. The Tribunal has given consideration to these matters.[15]

    [15] Hussein & Anor v Secretary Department of Employment and Workplace Relations [2007] AATA17 at paragraph 35

    SUMMARY AND EVALUATION

43. The evaluation of relevant considerations for the period 3 October 1992 to 28 October 1994 can be summarised as follows:

Actual physical presence in the period	Cyprus, so weighs against
Nature of accommodation in Australia	Temporary and with brother; but similar in Cyprus because he lived in parent’s home
Family relationships in Australia	Had strong and roughly equal number in both countries
Nature and extent of employment, business and financial ties in Australia	None in either country, except for very limited casual musical work and forced temporary national service in Cyprus
Nature and extent of assets in Australia	Owned a property which he rented out in Australia. This was not sold until 1998. He also had a significant amount of furniture and other items in Australia which he only disposed of after returning to Cyprus in 1995. He did not own and have similar property in Cyprus
Frequency of travel	No return trips to Australia in 2 years, but did return after the period in dispute
Intention to reside in Australia	Yes, when first went back, but there is a strong inference the intention changed by October 1993, this countered by his return to Australia in October 1994. He then only returned to Cyprus when his mother had serious heart related issues in 1995.

1. The above summary demonstrates how the weighing of considerations is very finely balanced. The various considerations might suggest that he could be regarded a resident of both Australia and Cyprus during the period.[16]  Despite this, I have reached the conclusion that Mr Vassiliou was a resident of Australia for only part of the period in dispute.

   [16] As can be the case and observed in Baccon at paragraph 10

2. I am persuaded by the evidence that it is likely Mr Vassiliou decided to remain in Cyprus indefinitely once his relationship with his fiancée had failed and the need to assist care for his mother prior to knee surgery passed. I accept that he returned there in October 1992 temporarily only and this together with his continuing ties to Australia as identified at paragraph 43 lead me to the conclusion that he was an Australian resident for some of the period in dispute.

3. The circumstances seem analogous to that described by Wilcox J in Hafza at paragraph 19:

   “I think that it follows from my view as to the meaning of the word "temporary" that the intention of the absentee is of considerable importance; indeed, it will often be decisive. If the businessman on his world sales tour should decide to abandon his plan to return to Australia at the expiration of three months and to remain indefinitely in New York, his absence from Australia will cease to be a temporary absence. It will become an indefinite absence, notwithstanding that it may turn out not to be a permanent absence. Similarly, if an endowee, who has left Australia upon a compassionate visit to a sick relative, should decide indefinitely to stay on at the relative's home after the completion of that purpose, the absence will cease to be temporary notwithstanding an intention eventually to return to Australia.”

1. The application is allowed in part. The decision under review is set aside and the matter remitted to the Respondent to give effect to this decision. Namely, that the Applicant continued to be an Australian resident between 3 October 1992 and 15 October 1993, being the date he was discharged from national service and after his mother’s knee surgery.

48.      

49.     I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member)

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Administrative Assistant

Dated 15 July 2015                 

Date of hearing	2 June 2015
Applicant	Mr Abraham Vassiliou (Self-represented)
Solicitor for the Respondent	Mr Brian Sparkes, Department of Social Services