Wehbe and Secretary, Department of Family and Community Services
[2004] AATA 674
•29 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 674
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/199
GENERAL ADMINISTRATIVE DIVISION ) Re Yvette Wehbe Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Rear Admiral A Horton, Member Date29 June 2004
PlaceSydney
Decision The Tribunal affirms the decision under review
[sgd] Rear Admiral A Horton, Member
CATCHWORDS
SOCIAL SECURITY - portability of age pension - applicant Australian citizen - Australian residency - extent of travel overseas and whether applicant ceased to be Australian resident - definition of Australian resident and consideration of relevant issues - grant of age pension - applicant ceased to be Australian resident - applicant again became Australian resident - no portability within two years of becoming Australian resident - decision affirmed
LEGISLATION
Social Security Act 1991 sections 7(2), 7(3), 1217(1), 1220
REASONS FOR DECISION
29 June 2004 Rear Admiral A Horton, Member 1. This is an application to review a decision of the Social Security Appeals Tribunal made on 5 January 2004 that affirmed a decision of an Authorised Review Officer made on 7 November 2003 that Mrs Yvette Wehbe will not be eligible for age pension if she travels overseas before 22 June 2005.
2. At a hearing before the Administrative Appeals Tribunal on 18 June 2004, Mrs Wehbe was self represented. Ms C Collis, an advocate from the Centrelink Service Recovery Team appeared for the Secretary, Department of Family and Community Services (“the Respondent”). The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative AppealsTribunal Act 1975, the T documents and the Respondent’s Statement of Facts and Contentions (ExhibitR1).
BACKGROUND
3. Mrs Wehbe was born in Lebanon in 1940 and migrated to Australia in 1956, becoming an Australian citizen in 1971. She married Mr Tony Wehbe in 1957 and she and her husband had 6 children. In 1972 she returned to Lebanon with her family, and shortly thereafter, the family split up, her husband, one son and three daughters deciding to live in Lebanon whilst she and the remaining daughter and son chose to remain in Australia. All children, with the exception of Mark in Lebanon, are married. Mrs Wehbe’s mother also lives in Australia.
4. Records obtained by the Respondent from the Department of Immigration and Multicultural Affairs show that Mrs Wehbe travelled to and from Lebanon at various times and for various periods in subsequent years. The last recorded occasion of departure from Australia for Lebanon was 17 February 2000, and she arrived back in Australia on 22 June 2003, after an absence of some 40 months.
5. Mrs Wehbe became eligible for the age pension on 7 August 2002. On 14 July 2003, after her return to Australia, she lodged a claim for pension and it was granted from that date, Centrelink having accepted that she was an Australian resident for pension purposes. On 27 October 2003, Mrs Wehbe advised Centrelink that she intended to travel to Lebanon on 17 December 2003 for the wedding of her son, (travel which did not in the event occur). She was informed by Centrelink on 27 October that she would not be eligible for the age pension whilst overseas should she depart Australia prior to 22 June 2005. That is, her pension would not be portable within two years of her last arrival in Australia in accordance with the relevant legislation.
LEGISLATION
6. The age pension is portable under the provisions in section 1217(1) of the Social Security Act 1991. That portability may be constrained or indeed denied under the provisions of subsection 1220(1) of the Act which precludes “portability where claim based on short residence”, and relevantly states:
“1220(1) If:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident: and
(c) the person again becomes an Australian resident; and
(d) within the period of two years after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i) an age pension
…and
(e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia”.
7. “Australian resident” is defined in subsection 7(2) of the Act, and subsection 7(3) provides guidance as to the circumstances that should be considered when determining whether or not a person is residing in Australia. They respectively, and relevantly, state:
“7(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i)An Australian citizen;
…
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 matters relevant to determining whether the person intends to remain permanently in Australia”
8. The position of the Respondent is that Mrs Wehbe is an Australian citizen, and that she was previously an Australian resident but ceased to be so in accordance with the criteria in subsections 7(2) and 7(3) of the Act. The Respondent accepts that Mrs Wehbe again became an Australian resident on return from Lebanon on 22 June 2003. Within a period of two years thereafter (on 11 July 2003) she was granted the age pension, but then became subject to the conditions in subsection 1220(1) of the Act, in that before the end of two years after again becoming an Australian resident, the pension would not be payable should she leave Australia.
9. The position of Mrs Wehbe is that she has remained an Australian resident at all times, and hence the conditions of subsection 1220(1) do not apply. The only issue in dispute is whether Mrs Wehbe ceased to be an Australian resident before her arrival in Australia on 22 June 2003.
EVIDENCE
10. Mrs Wehbe gave evidence that she and her husband holidayed in Lebanon in 1972. She and her husband subsequently separated, he and four of their six children returning to live in Lebanon. The family owned a home at Guildford and had interests in other properties. Her evidence was that these were sold, and “they [she and her husband] got nothing”. The remaining children reside in Australia, and accordingly Mrs Wehbe has immediate family residing in both countries. Her mother and some siblings also live in Australia. In her view, she remains at all times an Australian resident – and she is of course an Australian citizen – whether she be in this country or visiting her children in Lebanon.
11. Her periods out of Australia have varied in length, and the records of the Department of Immigration and Multicultural Affairs (T5), whilst not complete in the early 1970’s, show that Mrs Wehbe has spent considerably more time in Lebanon than in Australia. This is particularly the case in the last 10 to 12 years, and in reaching a decision in this matter as to whether Mrs Wehbe had become a former resident, the SSAT took particular account of that period, relevant dates being as follows:
“Departed Australia for Lebanon 12/1/91 - returned 3/11/92
Departed Australia 13/12/94 - returned 20/3/95
Departed Australia 7/10/95 - returned 6/8/99
Departed Australia 17/2/00 - returned 22/6/03”
12. These dates indicate that in this period, Mrs Wehbe lived in Lebanon for some 111 months and Australia for 37 months. Mrs Wehbe did not dispute these figures. In evidence she stated that she lived with her unmarried son Mark whilst in Lebanon, this being in relatively close proximity to the homes of her daughters. She gave evidence that when in Lebanon, she is supported by her children and in particular her father-in-law, who provides financial support for some of the necessities of life. In Australia, she has generally lived with her son and his wife, but such periods are usually confined to about three months because of the attitude of her daughter in law. Her air fares to and from Lebanon have been financed by her family.
13. In 1992, Mrs Wehbe was allocated Department of Housing accommodation, on a short term basis, such housing being vacated on return to Lebanon in 1994. This allocation coincided with a return to Australia to finalise the education of her son Mark who subsequently completed high school, but failed at university and returned to Lebanon. After her latest return to Australia in 2003, she applied for Housing Commission accommodation, this being allocated in early 2004 for a two year period subject to satisfactory performance during the first year. She has never rented any other property, nor owned her own home, and she has no property in Australia.
14. Her financial assets in Australia, and seemingly Lebanon, are negligible; only recently has she opened a bank account for the age pension payments. She agreed that she had received social security payments by way of child payments when the children were growing up and lived in Australia. She also referred to a “widow allowance” which the Tribunal assumes was a form of single parent pension in the appropriate period. Her only income at present is the age pension.
15. The Respondent submits and the SSAT agreed that Mrs Wehbe has never worked in Australia. In a written statement accompanying her application for review by the Tribunal she stated that she had been informed that the two year “penalty” in respect of continuing to receive age pension on leaving Australia related to her not working, and her statement argues that she had worked when setting up and operating an export business.
16. In evidence, Mrs Wehbe stated that she had set up a business, funded by her father-in-law, under the name “Tariff Trade” to import furniture and clothing from Lebanon. She thought this had occurred in about 1985, but as it apparently related to her period in Australia with her son Mark, it seems more likely that it occurred in the early 1990’s. She told the Tribunal that whilst the first container arrived safely, the second was held up by Customs for 4 months, presumably on suspicion that it contained some form of illegal goods, and when finally released at a cost of $47,000, the contents were water damaged and could not be sold. The $47,000 was provided by her son Bassame, living in Sydney.
17. Mrs Wehbe stated that she has been seeking compensation from Customs ever since, with no success. She does so through her solicitor who would be paid only if successful. When questioned as to her frequency in pursuing this matter given her lengthy absences in Lebanon, she replied that she spoke with Mr Benson quite frequently. She stated that in the last two weeks she has sought assistance from the 60 Minutes television programme, but as yet has had no response. There was no documentary evidence before the Tribunal in support of these claims, nor was this business venture raised before the SSAT. When questioned as to why this issue had now arisen, Mrs Wehbe stated that after the SSAT hearing, Legal Aid Parramatta advised her that her business (work) endeavour was relevant to the issue before the Trbunal.
18. Mrs Wehbe emphasised that her family commitments in Lebanon required relatively frequent visits, but she had always returned to Australia, and had always considered herself a resident of this country. She was unable to provide any reasons other than to see her family in respect of why her recent periods in Lebanon (46 months and 40 months) had been of such duration. She was quite adamant that unless she received adequate financial compensation in respect of the customs matter, which would allow her to live comfortably in Australia and to bring out and set up Mark (he being a qualified civil engineer) in business, she would be obliged to live in Lebanon where she could be properly supported.
19. The Respondent submitted that the circumstances described by Mrs Wehbe were the factors that required consideration under the provisions of subsection 7(3) of the Act, in deciding whether or not she resided in Australia in the relevant period. The Respondent opined that whilst financial circumstances in Australia and Lebanon were similar, Mrs Wehbe’s ties to Lebanon, on her evidence and the visit records, were much stronger. Her periods in Lebanon, particularly in more recent years, have been considerably greater than those in Australia. Except for the currently allocated Housing Commission home, she has had no home of her own in this country since 1994, no assets, and no employment. For those reasons, the Respondent submitted that she ceased to be a resident from 1994.
DECISION
20. The Respondent’s position is that Mrs Wehbe is an Australian citizen, that she has been an Australian resident since 22 June 2003, and that she was properly granted an age pension. The Tribunal accords, on the evidence, with that position. The Respondent further submits that Mrs Wehbe ceased to be an Australian resident from 1994 (until her return to Australia on 22 June 2003), and hence the conditions under subsection 1220(1) of the Act apply, in that pension is not payable should she leave the country prior to 22 June 2005. The issue before the Tribunal is therefore whether Mrs Wehbe ceased to be an Australian resident, the considerations defined in subsection 7(3) of the Act being relevant.
21. The SSAT considered that Mrs Wehbe ceased to be an Australian resident in 1994. The reason for the determination of that date is unclear, other than that it coincided with the date at which she left rental accommodation, as it followed 25 months in Australia and preceded a relatively short 3 month period in Lebanon. However a year later, Mrs Wehbe departed Australia for 46 months, followed shortly thereafter with a further 40 months in Lebanon, and minimal time in Australia. What is evident is that the periods out of Australia have been increasing in length.
22. Subsection 7(3) requires regard to be given to such issues as the circumstances of accommodation in Australia, family relationships, employment and business ties, assets in Australia and the frequency and duration of travel outside Australia. The latter has been well identified, and Mrs Wehbe clearly spends most time in Lebanon. She has stated in previous hearings that she “visits” the family in Australia, implying some lack of permanency, and she gave evidence as to the difficult circumstances for long term accommodation in Australia. She has never owned property, and until recently, has not lived in rented accommodation since 1994.
23. Mrs Wehbe has no financial assets in Australia, and only recently has opened a bank account. Seemingly she is in a similar situation in Lebanon. In this hearing she has raised, and spoken at length of, her endeavour to establish a business in Australia. Whilst the exact dates are not available, the business was of relatively short duration, and ceased with the problems of the second container. That seemingly occurred about 1994 - 1995, albeit Mrs Wehbe gave varying estimates of dates, and at one point stated she had no idea of when the second container incident occurred.
24. For the period in question in this matter, her business has not existed. Her argument that her attempts to achieve compensation from the Customs Department may be evidence of her determination to recover her costs, but it cannot be considered in the context of operating a business or as work as she claims. Further, there is no evidence of any progress in this matter in the 10 years or thereabouts since it happened; there is no documentary evidence before the tribunal to support her contentions. In summary, the Tribunal cannot find that the evidence supports the contention that Mrs Wehbe was either in business or working in the period since about 1994 – 1995, and thereafter, she was primarily residing in Lebanon.
25. As was the case with the SSAT, the Tribunal gives weight to the frequency and duration of Mrs Wehbe’s travel outside Australia. Clearly, her periods in Australia in recent years have been relatively short, realistically in the nature of visits rather than of long term residency. Accordingly, and taking account of other relevant factors, the Tribunal finds that Mrs Wehbe ceased to be a resident prior to her return to Australia on 22 June 2003, and hence the criteria in subsection 1220(1) is satisfied. Accordingly, she cannot be paid age pension if she travels overseas within 2 years of regaining residency, that is from 22 June 2003. Finally, her attention is drawn to the letter to her from Centrelink dated 30 October 2003, which clearly defines the conditions relevant to a temporary absence from Australia should that occur prior to 22 June 2005.
26. The decision of the SSAT is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A Horton, Member
Signed: Guy Moloney .....................................................................................
Associate
Date/s of Hearing 18 June 2004
Date of Decision 29 June 2004
Representative for the Applicant Self
Representative for the Respondent Cheryl Collis
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