White and Secretary, Department of Family and Community Services

[2005] AATA 569

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/2

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANTHONY EDWARD WHITE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Miss Mary Imlach (Senior Member)

Date10 June 2005

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Miss Mary Imlach)

Senior Member

CATCHWORDS

Social Security - application for age pension - whether applicant a resident.

Social Security Act 1991 - ss7(2) and 1220(1)

Wybrow and Secretary, Department of Social Security (1992) AAT No 8321 Hafza v Director-General of Social Security (1985) 6 FCR 444

REASONS FOR DECISION

10 June 2005 Miss Mary Imlach (Senior Member)         

1.      The applicant has applied for a review of a decision made by Centrelink on 28 September 2004 to cancel the applicant’s age pension.

2.      On 5 October 2004 the applicant asked for a review of the decision and it was affirmed by the original decision-maker.   The matter was referred to an Authorised Review officer (ARO) who affirmed the decision on 18 October 2004.

3. The ARO decided that the applicant had ceased to reside in Australia in September 2000, and had been absent from Australia for 182 of the next 186 weeks. The ARO applied s1220 of the Social Security Act 1991 (“the Act”) which meant that as Mr White had been granted an age pension within two years of returning to reside in Australia, the age pension was not portable for a period of two years.

4.      A review of this decision by the Social Security Appeals Tribunal (SSAT) on 16 December 2004 affirmed the decision.

5.      The applicant appealed to this Tribunal on 6 January 2005.

6.      As the applicant lives in Thailand the hearing was held by telephone and the applicant gave evidence on his own account.   Mr Brian Sparkes an advocate from Centrelink represented the respondent.

Issue

7.      The relevant issue in this matter is whether or not Mr White is qualified to receive an age pension whilst he resides overseas.

Background

(a)The applicant was born in England on 5 April 1939 and turned 65 on 5 April 2004.

(b)He lived in Australia from September 1980 to September 2000.

(c)Mr White left  Australia in September 2000 and was at that date separated from his wife and the owner with his wife of property in Australia.

(d)Mr White was divorced in Australia in late 2001.

(e)Mr White was required to sell the house he owned with his former wife pursuant to a property settlement made in the Federal Magistrates Court on 10 May 2002.

(f)He was married in Thailand on 9 June 2003.

(g)Mr White returned to Australia on 14 April 2004.

(h)He claimed an age pension 15 April 2005.

(i)Mr White left Australia on 21 May 2004.

Submissions (Applicant)

8.      The applicant stated that the reasons for his travels overseas had been because he had been retrenched and was seeking work overseas.    He claimed also that events relating to his divorce and subsequent marriage to a Thai citizen had caused him to leave Australia.    Mr White explained that it was his wish to be granted an Australian age pension and to live on it and his UK pension for part of the year in Australia with family and friends and the rest of the year in Thailand.

9.      Mr White argued that he had not immigrated to another country as claimed by Centrelink.   He had dual citizenship of Australia and the UK and did not intend taking  out citizenship of a third country.

Submissions – (Respondent)

10.     The respondent contended that the relevant law applicable to this case is contained in the Social Security Act 1991 (“the Act”) in particular s7 and s1220.

11.     The respondent claimed that the applicant who was an Australian citizen prior to departing Australia in September 2002 ceased to be an Australian resident at  some time before returning to Australia in April 2004.

12. The respondent contended that as Mr White had ceased to be an Australian resident pursuant to the requirements of s7 of the Act before returning to Australia in April 2004, then his age pension portability would be limited by the operation of s1220 of the Act.

Consideration of Law and Findings

13.     As stated earlier the sole issue for the Tribunal to determine is whether Mr White is qualified to receive an age pension whilst he resides overseas.

14. In determining that issue the Tribunal must look at the law applicable to Mr White’s circumstances. Section 1220(1) of the Act, which is applicable 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 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

(i)        an age pension; or

(ii)       a disability support pension; or

(iii)      a bereavement allowance; 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.”

15. The respondent contended that the applicant had ceased to be an Australian resident at some time before he returned to Australia in 2004, therefore, the provisions of s1220 of the Act applied to his circumstances.

16. Fundamental to the respondent’s contention is the preliminary issue of what is meant by the term “Australian resident” mentioned in s1220(1)(a).

17. The respondent referred the Tribunal to s7(2) of the Act which says a person is an Australian resident if the person resides in Australia. Section 7(3) sets out certain criteria for the purpose of determining whether or not a person resides in Australia.

18. Section 7(3) states:

“ 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.”

19.     The respondent referred the Tribunal to the case law in Hafza v Director-General of Social Security (1985) 6 FCR 444 at p 449, Wilcox J stated:

“There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249, by Williams J:

"The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."

Physical presence and intention will coincide 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" …

20.     The respondent contended also that the appropriate framework for consideration of the issues is set out by Deputy President McMahon in Wybrow and Secretary, Department of Social Security (1992) AAT No 8321 at paragraph 22:

“It is true that s 7(3) of the Act now 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, however, not expressed to be exhaustive
and do not detract from the general observations which His Honour made in
relation to the ordinary concept of residence.  The definition however,
compels a decision maker to pay some regard to the enumerated factors.”

21. The respondent submitted in relation to the factors in s7(3) that Mr White had no accommodation or living arrangements in Australia after September 2000, and he had by then made his home overseas in Thailand. On the two short occasions after September 2000 when he returned to Australia it was to attend to and finalise his affairs. The applicant in evidence had also stated that he had set up a home in Thailand.

22.     The respondent submitted also that Mr White’s present family ties are with his wife with whom he resides in Thailand, that he has no financial, employment or business ties to Australia and has not been employed in Australia since before September 2000.   Mr White has had no or few assets in Australia since late 2002.

23.     The respondent produced evidence from the Department of Immigration that the applicant had been absent from Australia for 182 out of 186 weeks from September 2000 until his return in April 2004.

24.     The Tribunal accepts the respondent’s contention that even if Mr White’s intention were to retain Australia as his place of permanent residence, that subjective intention does not displace the objective assessment of the factual circumstances of the matter.    Those circumstances indicate clearly that Mr White did not maintain a continuity with Australia, such as to constitute ongoing residency.

25. Therefore the Tribunal accepts the respondent’s contention that Mr White ceased to be an Australian resident at the latest by the end of 2002 and as a consequence s1220 meant that his age pension was not portable when he left Australia on 21 May 2004.

26.     The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Miss Mary Imlach (Senior Member)

Signed:   K L Miller (Administrative  Assistant)

Date/s of Hearing  26 April 2005
Date of Decision  10 June 2005
Counsel for the Applicant         Applicant appeared on own behalf
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink