Yatikkaya and Secretary, Department of Family and Community Servi Ces
[2003] AATA 877
•8 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 877
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/396
GENERAL ADMINISTRATIVE DIVISION ) Re Osman YATIKKAYA Applicant
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date8 September 2003
PlaceSydney
Decision The decision of the Social Security Appeals Tribunal is affirmed.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – age pension – Australian citizen - during how much of Applicant’s continuous physical absence from Australia is Applicant considered resident - decision affirmed.
LEGISLATION
Social Security Act 1991 sections 7 and 43.
CASE LAW
Re Goodfellow and Secretary, Department of Social Security (AAT 92160, 8 October 1992)
Re Mengi and Director-General of Social Security (1984) 6 ALN N320
Re Issa and Department of Social Security (1985) 8 ALN N177
Re Gnisios and Secretary, Department of Social Security (AAT 10759, 22 February 1996)
Re Clifopoulos and Secretary, Department of Social Security (AAT 9745, 21 September 1994)
Re Raad and Secretary, Department of Family and Community Services [2000] AATA 387
Hafza v Director-General of Social Security (1985) 60 ALR 674
Re Wybrow and Department of Social Security (1993) 71 SSR 1025
REASONS FOR DECISION
8 September 2003
Ms N Isenberg, Member
DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Secretary, Department of Family and Community Services ("the Respondent") dated 4 July 2002 (T17, p64)) as affirmed by the Authorised Review Officer (“ARO”) on 13 December 2002 (T30, p86) and the Social Security Appeals Tribunal (“the SSAT") on 17 February 2003 (T2, p4), to reject Mr Osman Yatikkaya’s (“the Applicant”) claim for age pension.
BACKGROUND
2. The Applicant and his wife arrived in Australia from Turkey on 24 April 1990 and became an Australian citizen on 4 June 1992.
3. On 17 August 1994 the Applicant and his wife left Australia for Turkey and did not return until 17 June 2001.
4. The Applicant claimed age pension on 21 June 2002 (T12, p30). The claim was rejected on 21 July 2002 for want of 10 years total and 5 years continuous residence (T15, p62). This decision was affirmed by the original decision-maker on 4 July 2002 (T17, p64).
5. The Applicant requested review on 30 October 2002 (T24, p75) and the decision was affirmed by the ARO on 13 December 2002 for the same reason (T30, p86). The Applicant appealed to the SSAT on 7 January 2003 (T31, p91).
6. The ARO decision was substantially affirmed by the SSAT decision, dated 17 February 2003 (T2, p4). The decision was varied to recognise the period from 17 August 1994 to 3 September 1996 as a period of temporary absence during which the Applicant could be properly regarded as an Australian resident for the purposes of subsection 7(3) of the Social Security Act 1991 (“the Act”). Accordingly, on the SSAT's reasoning, the Applicant had been continuously resident in Australia from 24 April 1990 to 3 September 1996.
ISSUE BEFORE THE TRIBUNAL
7. The central issue before the Tribunal is during how much of the Applicant’s continuous physical absence from Australia during the period 17 August 1994 to 17 June 2001 can the Applicant be considered to be an Australian resident within the meaning of subsection 7(3) of the Act.
APPEARANCES
8. A hearing was held before the Tribunal on 15 August 2003 at which the Applicant appeared without representation but with the assistance of Mr I Akdeniz, accredited interpreter in the Turkish language.
LEGISLATION
9. The relevant legislation in this matter is the Social Security Act 1991, in particular section sections 7 and 43. These sections, so far as is relevant, provide as follows:
“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 matter relevant to determining whether the person intends to remain permanently in Australia.
…
7(5) A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
…
43(1)A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a) the person has 10 years qualifying Australian residence;
(b) the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
…”
EVIDENCE: Documents
10. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.
11. In addition, the following documents were tendered:
Exhibit Document Date A1 Letter from the Applicant 24 June 2003 A2 Photocopy of passport of Applicant A3 Electoral enrolment details of Applicant 19 May 2003 R1 Respondent’s Statement of Facts and Contentions 3 August 2003 EVIDENCE and SUBMISSION: the Applicant and Mrs Yatikkaya
12. The Applicant and his wife both gave sworn evidence and were cross-examined on behalf of the Respondent. Questions were also put to the Applicant and his wife by the Tribunal.
13. The Applicant confirmed the information he and his wife had given to the SSAT. In addition, the Applicant and his wife told the Tribunal that when they had come to Australia in 1990 they had left Turkey with only their clothes. This was because the cost of freight was so expensive they decided to start afresh here. They gave away their household goods to the Applicant’s sons. As they had left their household goods in Turkey they needed to buy everything again The air tickets had cost about US$5000 each.
14. They brought with them cash of only about $2500. On arrival the Applicant and his wife lived, for about two years, with the Applicant’s sister in law in Kogarah, and then rented a property in Cronulla. The Applicant gained employment in a service station and then at the Turkish Welfare Association. Mrs Yatikkaya worked in a factory but left the job after about two and a half years in order to care for her husband.
15. In 1994, Mrs Yatikkaya learned that her father was very ill and was missing them so she and her husband decided to go to Turkey for a couple of months to visit him. Because of the urgency they bought one-way tickets. They had difficulty even affording those tickets. They planned to save enough for the return tickets while in Turkey. They intended to do this by Mrs Yatikkaya undertaking tutoring. In addition Mrs Yatikkaya’s younger sister would be contributing to the family’s budget.
16. The Applicant and his wife left some furniture, household goods and clothing in storage with a friend and left about $400-$500 in their joint savings account.
17. On arrival in Turkey they discovered that Mrs Yatikkaya's father was terminally ill and they decided to stay in Turkey to help care for him. The Applicant said he regarded his father-in-law as more like a friend. Mrs Yatikkaya told the Tribunal it was ”not an option” for her to think of herself. Although Mrs Yatikkaya’s father spent some time having treatment in hospital, while at home Mrs Yatikkaya assisted in administering his medication, bathing and dressing him as her elderly mother was unable to fully undertake the role. Mrs Yatikkaya’s younger sister lived and worked in Istanbul, some 600 kms away, and had 2 children in her care.
18. Mrs Yatikkaya’s father ultimately passed away on 3 March 1996.. Her mother was particularly distressed on losing her husband of 55 years. The period of mourning, including some religious rituals, lasted for about 18 months. Mrs Yatikkaya’s older sister, who had also come from Australia returned home to care for her son and her younger sister also returned to her family in Istanbul.
19. Although the Applicant wanted to return to Australia he and his wife decided to stay on to care for Mrs Yatikkaya’s mother. Another alternative was for Mrs Yatikkaya’s mother to immigrate to Australia but she was reluctant to do so. Finally, she agreed at the end of 1999 or early 2000 when the Applicant insisted that he and his wife would be returning to Australia. An application was made but was not readily processed. From that time they started to save for their return tickets.
20. On 17 June 2001, after Mrs Yatikkaya's younger sister moved closer to her mother the Applicant and his wife returned to Australia. Their evidence was that if the sister had not moved to Ankara then they would have remained in Turkey until the Applicant’s mother –in –law’s immigration application was accepted. They considered it their responsibility to support Mrs Yatikkaya’s mother for as long as was necessary.
21. During their time in Turkey the Applicant and his wife accumulated no assets. Mrs Yatikkaya tutored students as planned and the money went into a joint account she had with her mother. Their only purchase in Turkey was a bed for themselves, otherwise they were living in the mother’s house. Mrs Yatikkaya paid some bills and replaced her mother’s washing machine and vacuum cleaner when they broke.
22. On return to Australia the Applicant and his wife made no enquires about the bank account they had held, believing the money may have been forfeited ”to Treasury” because the account had been inactive for so long. They were concerned that with bank fees they may actually owe money.
23. In Australia their only relatives are Mrs Yatikkaya’s older sister and her son. In Turkey the Applicant has 5 siblings but they are not close. The Applicant has 2 adult sons in Turkey, neither of whom is married. Mrs Yatikkaya’s mother and sister continue to live in Ankara. The Applicant considers his wife’s family to be his own.
24. As the Applicant was himself unwell, he was in no position to travel to and reside in Australia independently of his wife. The Applicant submitted that it was unfair to ”punish” him because of his wife’s family responsibilities, as he had no option but to acquiesce.
25. Since his return to Australia on 17 June 2001 the Applicant has been continuously resident in Australia.
SUBMISSION: Respondent
26. The advocate for the Respondent submitted that the SSAT was correct to conclude that there came a point in time after the death of Mrs Yatikkaya's father when the Yatikkaya’s ceased to be visitors to Turkey and commenced to be indefinitely resident there to look after Mrs Yatikkaya's mother, the initial purpose of the visit being long spent.
27. Having regard to the criteria in subsection 7(3) for determining whether a person intends to remain permanently in Australia the advocate for the Respondent invited the Tribunal’s attention to the following:
• the Applicant and his wife rented premises in Australia before their departure and on their return, but had lived with family while in Turkey;
• although Mrs Yatikkaya had a sister living in Australia, the more significant family ties were in Turkey, where Mrs Yatikkaya had parents and a sister and the Applicant had 5 siblings and 2 adult sons. Significantly, it was filial responsibilities which kept the Applicant and his wife absent from Australia for so long;
• Mrs Yatikkaya worked in Turkey throughout her stay. Meanwhile, the Applicant and his wife lacked business ties with Australia and had only a small amount of savings left in their Australian account. Otherwise, they lacked significant assets in either country;
• the duration of the Applicant and his wife’s physical absence of nearly 7 years was far too long to be considered temporary in the context of the reasons for its prolongation; and
• the circumstances of their care for Mrs Yatikkaya's mother required an indefinite commitment, until alternative arrangements could be made, to a mother who could well enjoy longevity. This indefinite commitment had overtaken their original intentions first to visit a sick father and then to remain with him for the duration of his terminal illness, both for periods, which were inherently temporary and not likely to be of long duration.
28. The advocate for the Respondent submitted that the SSAT's allowance of 6 months after the father's death as a period of mourning and to settle the mother is a reasonable one. Thereafter, it is not reasonable to assess the Applicant as temporarily absent from Australia. A passing purpose had been accomplished and an open-ended commitment had begun. The links with Australia were relatively ephemeral compared to links with Turkey.
29. When the Applicant claimed age pension on 21 June 2002 he did not have the 10 years qualifying Australian residence required by subsection 7(5) of the Act. The factors of age, illness, length of citizenship and the stress of periodic accountability for the benefit he receives advanced by the Applicant are not relevant to the factors which are required to be taken into account under subsection 7(3) in determining the length of a person's Australian residence. The law does not provide an overriding discretion to allow a decision-maker to set aside the statutory criteria on compassionate grounds.
FINDINGS
30. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.
31. The advocate for the Respondent conceded that it was appropriate that the Applicant’s period of residence should be calculated as being from 24 April 1990 to 3 September 1996 and from 17 June 2001 to date, as had been decided by the SSAT. That view had been reached by accepting that it was reasonable for the Applicant and his wife to return to Turkey while the Applicant’s father-in-law was ill and to remain there until 6 months after his death. The result of such a concession was that the Applicant meets the first requirement of section 7(5)(b) in that he has a continuous period of 5 years as a resident. However it remains a requirement under section 7(5)(b)(ii), that the aggregate of the Applicant’s periods of residence exceeds 10 years. On present calculations, if the Applicant remains in Australia, he will be eligible for age pension early in 2005.
32. The issue for the Tribunal is to determine if additional periods during which the Applicant was continuously physically absent from Australia should he be considered to be an Australian resident within the meaning of subsection 7(3) of the Act.
33. The Tribunal then turned to consider the concept of residence.
34. In Re Goodfellow and Secretary, Department of Social Security (AAT 92160, 8 October 1992) the Tribunal concluded, in distinguishing ‘residence’ from ‘domicile’:
“. A person having a domicile in one country may stop living in that country and move his place of living to another country but still retain his domicile in that first country. It is possible that he may retain that original domicile whether or not he returns to live in that country….. In ordinary language, however, he has ceased to reside in that country when he has set up home in another.”
35. In Re Goodfellow (supra) the Tribunal found that during a five-year absence, the Goodfellows had intended returning to Australia, but for reasons related to their health and the need to complete work on their house in England, they did not return as planned. Although they knew some people in Australia, they had had no accommodation or assets in the country but maintained a very clear wish that Australia be their place of residence. They were found to be unable to satisfy the provisions of the Act.
36. The Tribunal examined the provisions in Section 7(3) of the Act insofar as they relate to the Applicant. Before doing so the Tribunal noted the decision in Re Wybrow and Department of Social Security (1993) 71 SSR 1025 where the Tribunal discussed the relevance of considering the converse of factors as provided in subsection 7(3). Shortly put, not only was the Tribunal looking at the Applicant’s relationships and ties with Australia but also those with Turkey.
Section 7(3)(a): the nature of the accommodation used by the person in Australia
37. Prior to leaving Australia the Applicant had first lived with his sister-in-law and then in rented accommodation. When he and his wife left Australia they gave up the rented premises and stored their furniture in a friend’s garage. While away, the friend himself decided to return to Turkey and the furniture was lost to them.
38. In Turkey the Applicant and his wife lived with the Applicant’s mother-in-law. They contributed Mrs Yatikkaya’s earnings as a tutor toward household expenses. Little, if any, money could be saved on an ongoing basis until the decision was made to return to Australia and funds were required for airline tickets. Capital purchases such as a washing machine and vacuum cleaner were made for the household, and it was necessary for them to purchase a bed.
Section 7(3)(b): the nature and extent of the family relationships the person has in Australia
39. Other than his wife, the Applicant has no immediate family members in Australia. He is, however, said to be closer to his sister-in-law in Australia than to his own siblings and sons who are all in Turkey.
40. The Applicant’s evidence was that his wife’s family was his own. Mrs Yatikkaya’s evidence was of her dilemma between her family responsibilities and her responsibility to her husband, who wanted to return to Australia.
41. The principal familial relationship is between the Applicant and his wife, upon whom he is very dependent. Mrs Yatikkaya was present in Turkey with the Applicant. Had his sister-in-law not moved closer to the widowed mother-in-law, then the Applicant and his wife would have remained in Turkey until his mother-in-law’s immigration application was accepted. They considered it their responsibility to support her for as long as was necessary.
42. In Re Raad and Secretary, Department of Family and Community Services [2000] AATA 387 the Tribunal commented upon the dual family responsibilities of migrants to Australia:
“105. The Tribunal is also concerned that decision-makers must be careful, when deciding on such matters, to note that a person who has migrated to another country will, even if resident in that country not necessarily cease to have any connection with their country of origin nor any family or friends who remain there. That a person might travel on holiday or for some other short term purpose to their country of origin does not indicate that a person does not have a connection with the country of migration nor an intention to reside there. One must not fall into the trap of considering a person in isolation from their origins and roots. People’s lives must be considered on a continuum and in a global sense. It is behind the purpose of such travel and such association with the country of origin that decision-makers must go to tease out the complexity of factors involved.
106. When considered objectively, the Tribunal is of the view that the periods of absence from Australia in Lebanon were related principally to the need and responsibility Mr Raad felt for the care of his family or for holidays. After his mother died in 1996, Mr Raad was required to try to resolve some family issues and also to arrange for the care of his younger brother. This having been done, he returned to Australia, as was his pattern. It seems to the Tribunal that each time Mr Raad felt that the family situation in Lebanon had resolved and was managed in that his mother’s health had improved or his brother’s care and management was arranged, he then returned to Australia.”
43. In this case, however, the Applicant did not have a pattern of returning to his original homeland to attend to family crises. He returned to Turkey with his wife to visit his ill father-in-law and did not return for 7 years.
Section 7(3)(c): the nature and extent of the person's employment, business or financial ties with Australia
44. The Applicant had not been employed in Australia for some years before he returned to Turkey. Neither, however, did he work in Turkey, apparently being supported by his wife who tutored in maths and chemistry.
45. The only financial ties which the Applicant had with Australia was one bank account in which remained about $400. The Applicant and his wife believed that in their absence this account may have been dissipated by fees, or because it was unactioned for so long, have been forfeited to the government. Formal enquiries do not appear to have been made and pursuit of outstanding monies has apparently not occurred.
46. The Applicant also had no business or financial ties with Turkey.
Section 7(3)(d): the nature and extent of the person's assets located in Australia
47. On their departure from Australia the Applicant and his wife retained no property in Australia, other than the bank account referred to, and the stored furniture. They had no investments, real estate, insurance policies, cars or other major items.
48. In Turkey they lived in Mrs Yatikkaya’s family home and the only property of their own which was acquired was a bed. When the washing machine and the vacuum cleaner broke down Mrs Yatikkaya replaced them with the proceeds of her tutoring.
Section 7(3)(e): the frequency and duration of the person's travel outside Australia
49. When the Applicant and his wife left Australia they purchased a one-way ticket only. They had insufficient funds for a return ticket.
50. It was the Applicant’s evidence that the intention had been to visit his father-in-law for a period of a couple of months but only learned on arrival that his condition was terminal. Unfortunately departure cards were not available to confirm, contemporaneously, this intention.
51. In Re Clifopoulos and Secretary, Department of Social Security (AAT 9745, 21 September 1994) the nature of the air ticket was not considered to be significant as the Applicant in that case regularly travelled between Greece and Australia. In this case, however, the Applicant was not a regular traveller and there was no pattern from which any inference could be drawn.
52. In Re Gnisios and Secretary, Department of Social Security (AAT 10759, 22 February 1996) although the Applicant had purchased a one-way ticket from Greece to Australia a preponderance of other factors, including family ties and property ownership in Greece, led the Tribunal to conclude that he was not ’residing in Australia’.
53. In Hafza v Director-General of Social Security (1985) 60 ALR 674 the Court noted that:
“Whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that it’s duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose”
54. In the Applicant’s case, his absence was not for a short period but for seven years. The ‘specific passing purpose’ was to visit the Applicant’s ill father-in-law. That gave way, understandably, to a delayed return when he was found to be terminally ill. There followed an extended period of mourning. The purpose changed again, ultimately, to remaining in Turkey to provide support to the Applicant’s mother-in-law until her decision to apply for immigration to Australia and until the Applicant’s sister-in-law relocated to be closer to her.
55. In Re Issa and Department of Social Security (1985) 8 ALN N177 , the Tribunal referred with approval to Hafza (supra) and commented:
“I think that the adjective ”temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose ... [w]hatever the purpose, it seems to me to be implied in the concept of ”temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific passing purpose.”
56. The ‘passing purpose’ having lapsed and the continued absence lasted seven years, a period the Tribunal considered was far too long to be considered to be a temporary one.
Section 7(3)(f): "any other matter relevant to determining whether the person intends to remain permanently in Australia"
57. This sub-section allows the Tribunal to take into account other matters, which may be relevant. In Re Clifopoulos (supra) , the Tribunal discussed the application of the statutory factors:
“17. The principles set out above codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that constitute the criteria will vary in each case. In the end, as is apparent from the wording in s 7(3)(f), the criteria are there to guide the decision-maker in determining the person’s intention as to the place of residence.”
In this case there are other relevant matters in attempting to explain the Applicant’s prolonged absence.
58. The Applicant regarded his wife’s family as his own and there was a dilemma for the Applicant between family responsibilities in Turkey and his own preference to return to Australia. He was reliant upon his wife, he being then in poor health with high blood pressure. Nonetheless, he did not insist upon a return to Australia until his mother-in-law had agreed to apply to immigrate and his sister-in-law had agreed to take care of her in the interim.
59. The Applicant was not prevented from returning to Australia, unlike in Re Issa (supra) where her husband was bed-ridden and there were visa problems. In Re Mengi and Director-General of Social Security (1984) 6 ALN N320 the Applicant’s wife, although absent from Australia for nine years, was found to be temporarily absent as she repeatedly attempted to return to Australia but was refused entry by the Australian authorities on health grounds. As the Applicant in this case was an Australian citizen there were no such impediments had he sought to return.
60. The difficulty in this case is that the Applicant has few ties of the type outlined in section 7(a)–(e) in either Australia or Turkey. His closest familial relationship is with his wife, with whom he remained in Turkey for seven years. He regarded his father-in-law as a friend, and by his continued presence at his wife’s behest in Turkey, must also be seen as having a close relationship with his mother-in-law. His sister-in-law, with whom he is also said to be close, returned to Australia after the father’s death, but he did not do so.
61. The Tribunal cannot accept that the Applicant remained resident in Australia for the duration of his seven year absence overseas, notwithstanding that living in Australia may have been his preference.
62. The Tribunal referred to Hafza (supra) in which it was considered that the concept of residence includes consideration of both physical presence and intention to treat a place as home, if not indefinitely, at least for the time being. In that decision, the Court determined:
“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 ...
Physical presence and intention will coincide for most of the time ... 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 the place remains ”home”. ...
a change of intention may be decisive of the question whether residence in a particular place has been maintained.”
63. As far as the Applicant is concerned, he had retained little continuity of association with Australia although it was his intention to return to here. Indeed, it was his preference to be in Australia but felt duty-bound to remain in Turkey while he and his wife provided emotional support to his mother-in-law.
64. Had Mrs Yatikkaya’s sister not relocated to Ankara, or her mother not agreed to apply to immigrate to Australia, the inference from the evidence of the Applicant and his wife is that they might not have returned to Australia until the Applicant’s mother herself passed away, and been appropriately mourned and her affairs put in order.
65. The Tribunal agrees with the findings of the SSAT that it was appropriate that the Applicant’s period of residence should be calculated as being from 24 April 1990 to 3 September 1996, the latter date being 6 months after the death of the Applicant’s father-in-law. Residence resumed on 17 June 2001 and continues.
DECISION
66. The decision of the Social Security Appeals Tribunal is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: A. Krilis
AssociateDate of Decision 8 September 2002
Representative for the Applicant Self Represented
Representative for the Respondent Mr. John Kenny
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