Papagiannis; Department of Family and Community Services [1999] AATA 31 (22 January 1999)

Last Updated: 28 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/1481

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MICHAEL PAPAGIANNIS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date

Place Sydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision THAT:

the Respondent, Michael Papagiannis, is not entitled to payment of Age Pension pursuant to Part 2.2 of the Social Security Act 1991.

..............................................

M D ALLEN

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL ) No N1998/1481

)

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MICHAEL PAPAGIANNIS

Respondent

CORRIGENDUM TO DECISION [1999] AATA 31

Tribunal Senior Member M.D. Allen

Date 2 February 1999

Place Sydney

The Tribunal decision in this matter dated 22 January 1999 is amended as follows:

details at end of decision on page 12 are to read:

"Solicitor for the Applicant Ms C Collis,

Department of Family and Community Services

Solicitor for the Respondent Ms S Koller

Welfare Rights Centre"

..........................................

M.D. ALLEN

Senior Member

CATCHWORDS

SOCIAL SECURITY - Age Pension. Entitlement. Whether resident at time claim made.

Social Security Act 1991 - s.51, ss.7(2) and (3)

Hafza v Director-General of Social Security 6 FCR 444

Commissioner of Taxation v Miller 73 CLR 93

Levene v Inland Revenue Commissioners [1928] AC 217

Re Goodfellow and Department of Social Security (Unreported AAT No 8296)

Re Wybrow and Secretary, Department of Social Security (Unreported AAT No 8321)

Re Issa and Secretary, Department of Social Security 8 ALN N177

REASONS FOR DECISION

Senior Member M D Allen

1. By application made 20 October 1998, the Secretary of the Department of Social Security (now the Department of Family and Community Services) sought review of a decision by a Social Security Appeals Tribunal that set aside a determination by a delegate of the Applicant and determined that the Respondent was an Australian resident at the time of his application for Age Pension and hence entitled to that benefit.

2. In passing, in must be stated that the decision of the Social Security Appeals Tribunal is difficult to put in a time context. It correctly records the decision of the Applicant's delegate as being made on 29 May 1998 but then records its own hearing as occurring on 26 February 1998 and its decision as being made on 17 November 1998. The date of dispatch of the said decision is said to be 23 September 1998. (See Document T2 p7.) Although Social Security Appeals Tribunal proceedings are claimed to be informal, this informality should not extend to tolerating obvious errors in recorded decisions which are documents having legal effect.

3. When this matter came on for hearing before me at Sydney on 12 January 1999 the following documents were taken in and marked as exhibits, namely:

T1 - T13 : The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit A1 : The Applicant's Statement of Facts and Contentions

Exhibit R1 : The Respondent's Statement of Facts and Contentions

Exhibit R2 : Medical report in the Greek language dated 21 December 1998

Exhibit R3 : Photograph of the Respondent's utility

Exhibit R4 : Photograph of the Respondent's house in Petrovitza Village.

4. The Respondent had previously lived in Australia between 1956 and 1979, when he returned to Greece with his wife and children. On 13 May 1998 he arrived in Sydney and, on 17 May 1998, signed a form claiming Age Pension.

5. Section 51 of the Social Security Act 1991 provides inter alia that a claim for Age Pension is not a proper claim unless the claimant is, on the day on which the claim is lodged, an "Australian resident". The term "Australian resident" is defined in ss.7(2) and 7(3) of the said Act as:

"7(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) the holder of a special category visa who is likely to remain permanently in Australia;

(iv) the holder of a special purpose visa who is likely to remain permanently in Australia.

Note: For the holder, permanent visa and special purpose visa see subsection (1).

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."

6. The Respondent gave evidence that he was born in Petrovitza in the Thesprotia Province of Greece on 15 March 1930. After a rudimentary schooling interrupted by the Second World War and the Greek Civil War, he migrated to Australia in 1956, after completing his compulsory service in the Greek Army. In Australia, he undertook factory and labouring type work. For five years he was employed as a waterside worker.

7. On 13 October 1961, he was naturalised and thus holds a dual citizenship. He married in 1965 and the four children of the marriage were all born in Australia. In 1979, he and his wife made the decision to return to Greece. In conformity with this decision, they sold the family home at Bexley and remitted the proceeds of the sale, some $33,000, to Greece where it was invested.

8. Upon returning to Greece, the Respondent and his family resided in his father's house in Petrovitza. As I understand the Respondent's evidence, he performed agricultural labouring work in the area and the family farmed four fields owned by his father which provided a level of subsistence for the family except for meat and fruit. No surplus produce from the farming activity was sold, it being only enough to provide for the family.

9. In 1983 the Respondent's father died and his mother died in 1986. Since that time, disputes have arisen with his brothers in Greece as to the disposition of the father's house and lands.

10. After initially living at home with their parents, the Respondent's children moved to Athens for tertiary education and work. Because of disputes with his brothers, regarding his father's estate, the Respondent locked up the house in Petrovitza and moved to Athens in March 1997. His wife had relocated to Athens some six months previously, where they lived with some of their children in a two bedroom unit. The house at Petrovitza and associated lands remain unoccupied and untilled.

11. According to his evidence, the Respondent and his wife had discussed returning to Australia for some time. He returned to Australia in May 1998. His wife did not accompany him as one of his daughters had become ill with cancer and the wife remained in Greece to take care of her.

12. Throughout the course of his evidence, the Respondent was uncertain and vague regarding his wife's intentions. He stated that when he left, he had brought with him the sum of $600 and left $1,800 equivalent with his wife for her to live on. At the time he left Greece, he understood his daughter's condition would improve and thus allow his wife to join him but, in answer to a question from his solicitor, he stated "I hope she will come" when daughter is well.

13. At present the Respondent is residing with his sister-in-law, Mrs Manos. He also has a sister who lives in Australia. I accept the evidence of Mrs Manos that she had had telephone conversations with the Respondent, his wife and her prior to the Respondent coming and that she understood her sister remained in Greece because of her daughter's illness. I also accept her evidence that the Respondent can, at present, stay with her family for the foreseeable future.

14. Mrs Manos did say, however, that in discussions between the parties prior to the Respondent coming to Australia, that it was proposed "for him", that is the say the Respondent, to come and stay here and that the stay was to be for one or two years. Asked if she expected her sister to come, she replied that she "hoped so" when her niece was well.

15. The Respondent stated that after arrival in Australia, he went initially to Centrelink in order to obtain assistance in finding a job but, on learning his age, he was told to apply for an Age Pension. He has looked for work, one position at Camden being refused, as he wished his wife to see the area before he committed them to living there. He has also obtained one day's work on a building site but was regarded as "too slow".

16. Paragraph 7(2)(a) of the Social Security Act 1991 states that an Australian resident is a person who resides in Australia. I agree with the submission by Ms Koller, the solicitor for the Respondent, that the concept of residency has to be assessed at the time the Respondent applied for the Age Pension. The concept of what amounts to residence was discussed by Wilcox J in Hafza v Director-General of Social Security 6 FCR 444. Although decided with reference to the Social Security Act 1947, the general concepts discussed by His Honour have not been altered by the 1991 Act. At pp449/450 His Honour said:

"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: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VR 383 - 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 - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains 'home': see Norman v Norman (No 3) (1969) 16 FLR 231 at 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place - see the facts of Lysaght (supra) and the reference by Williams J to 'a home or homes' - 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."

17. In Hafza above, Wilcox J referred to a "continuity of association". That concept had previously been stated by the High Court in Commissioner of Taxation v Miller 73 CLR 93 at p99 where Latham CJ said:

"I should have thought that there was no doubt that a man resided where he lived, and I do not think that there is any interpretation of the word 'reside' by the courts which makes it impossible to apply the ordinary meaning of the word 'reside' in the present case. In Levene v. Inland Revenue Commissioners (1928) A.C. 217, at p.222, Viscount Cave L.C. said:-

'. . . the word 'reside' is a familiar English word and is defined in the Oxford English Dictionary as meaning 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.' No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word 'reside'. In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.'"

The concept of residence being a person's settled or usual abode was applied by the Tribunal in Re Goodfellow and Department of Social Security (Unreported AAT No 8296).

18. In ascertaining whether a person is residing in Australia for the purposes of ss.7(2) of the Social Security Act 1991, ss.7(3) imposes certain guidelines. As was pointed out in Re Wybrow and Secretary, Department of Social Security (Unreported AAT No 8321), these factors enumerated in ss.7(3) are not exhaustive and do not detract from the general observations of Wilcox J in Hafza supra. Although a decision-maker is compelled to pay some regard to these factors, it is just as appropriate to consider the converse of those factors. In particular, I adopt what Deputy President McMahon said at paragraph 26 of Wybrow supra, namely that in considering whether residence is established, a court considers a man's whole environment, especially in relation to their spouse or family, and not merely a person's physical situation.

19. I propose to discuss the guidelines in ss.7(3) seriatim:

"(a) the nature of the accommodation used by the person in Australia;"

The Respondent is dependant upon the good will of relatives in Australia for his accommodation. In Greece he has access to a house in his home village and was, whilst in Athens, residing with his wife and children, albeit in somewhat cramped conditions.

"(b) the nature and extent of the family relationships the person has in Australia:"

Whereas the Respondent has a sister and a sister-in-law resident in Australia, his immediate family remains in Greece including his wife and a daughter who was in serious ill health at the time he travelled to Australia. He also has other siblings in Greece.

"(c) the nature and extent of the person's employment, business or financial ties with Australia;"

The Respondent had, at the time of his arrival, no employment ties in Australia and was aged 68 years. Although he stated "I just thought I would find a job", the Applicant must have known that at his age, given the type of work for which he was qualified, namely labouring, he would be at a disadvantage in the labour market. He had worked in Australia previously and must have known the general retiring age was 65 and that older workers are not favoured in labouring occupations. Even in Athens he had found difficulty in obtaining work. In addition, he stated that whilst on the aircraft coming to Australia he had asked a fellow passenger, a Frenchman sitting next to him, to fill out his Passenger Entry Card because he could not write due to arthritis in his wrists. Again, the Respondent must have known that any physical impediment such as arthritis would have mitigated against his being able to undertake labouring work. He also admitted to having arthritis in his leg, although it did not affect him so much in Greece. I do not accept that, given his age and physical condition, he seriously contemplated obtaining regular employment in Australia.

"(d) the nature and extent of the person's assets located in Australia;"

The Respondent has no assets in Australia except some $500 in a bank account accumulated since the grant of Age Pension to him by the Social Security Appeals Tribunal. He said to me he left Greece with $600 and apparently told the Social Security Appeals Tribunal that he had $800 on arrival in Australia, which he had spent. In Greece he has a share in his father's estate and, prior to going to Athens, was living in his deceased father's house and had use of the family agricultural holdings. There is also a farm vehicle which is able to be driven for agricultural purposes, but not on a highway.

"(e) the frequency and duration of the person's travel outside Australia;"

The fact is the Respondent and his family disposed of all their Australian assets in 1979 and returned to Greece which has been their abode until the Respondent's return to Australia in May 1998. During that time there has been no visit to or involvement with Australia.

"(f) any other matter relevant to determining whether the person intends to remain permanently in Australia."

(i) the concept of "permanent" is, generally speaking, consistent with the notion of residence - cf Hafza supra and Levene v Inland Revenue Commissioners supra. Although reference was made to the concept of permanent as discussed in Re Panke and Director-General of Social Services 4 ALD 179, that matter was in respect of a pension for incapacity to work. Nevertheless, the concept of a contrast to "temporary" and a reference to a condition which is likely to last indefinitely, as opposed to one which is likely to last only for a time, is not inconsistent with the remarks of Viscount Cave LC in Levene supra, namely:

"... the word 'reside' is a familiar English word and is defined in the Oxford English Dictionary as meaning 'to dwell permanently or for a considerable time ...'"

The Shorter Oxford Dictionary 3rd edition ascribes the following meaning to the word "permanent", namely:

"Lasting or designed to last indefinitely without change; enduring; persistent: opposite to temporary."

Accepting, as I do, that the Respondent indicated on his Passenger Entry Card that he intended to remain in Australia for a finite period, namely two years, this is indicative of an intention of not remaining in Australia permanently but of a sojourn in the country.

(ii) Exhibit R1 includes a copy of a Passenger Entry Card to Australia, completed on behalf of the Respondent. He stated that, because of the arthritis in his wrists, he had asked the Frenchman, sitting next to him in the plane, to complete that card for him. He was re-examined on this point and reiterated his earlier evidence that he had said to this Frenchman, just to tick what he had ticked on his card. The Respondent also stated that he had not given to that person his passport but just spelt names for him.

(iii) I do not accept the Respondent's evidence on this point. He stated that question 9 had been filled in in the manner described above, yet question 9 contains the following entries:

Question: B1 "Intended length of stay in Australia"

Answer: "2 years"

Question: B2 "Main reason for coming to Australia"

Answer: "Employment"

One must ask why the reference to two years, or was that just a happy coincidence. In addition, question 9 C(1) reads:

Question: "Time you have been away from Australia"

This has been filled in and apparently then altered, and so I conclude some attention must have been directed to it. In addition, earlier details, such as the Respondent's date of birth and marital status, remain unexplained if a mere random ticking was engaged in.

(iv) In the course of his cross-examination the Respondent stated that an Age Pension was payable in Greece upon attaining age 70, if classified by a committee as unable to work. The Respondent has abandoned farming life and has arthritis. He also stated he found difficulty obtaining work in Athens. On his Passenger Card he states that he intended to stay in Australia for two years. That stay of up to two years was confirmed by his sister-in-law, Mrs Manos. As the Respondent is currently aged 68 years, two years would take him up to the age when pension is payable in Greece.

20. In Re Issa and Secretary, Department of Social Security 8 ALN N177, the importance of a claimant's intentions was emphasised in assessing whether they were resident. The best proof of a person's intentions is their overt acts. In this matter the Respondent has, at the age of 68 years and after an absence of 19 years, returned to Australia, leaving his wife and adult children in Greece. He is uncertain of when, and if, his wife will join him and has no money presently available for her fare. On an examination of the criteria in ss.7(3), all indicia are that his ties are still in Greece. Further, his evidence as to the completion of the Passenger Entry Card makes me doubt his other evidence, except where corroborated.

21. I am satisfied that at the time when the Respondent made application for the Age Pension, he was not residing in Australia. A mere temporary period, sufficient to apply for and obtain a pension and to render it portable, is not sufficient to constitute residence. There must be some indicia that the applicant, for the benefit, intends Australia to be his or her settled abode.

22. The decision under review will be set aside and the Tribunal substitutes in lieu thereof its decision that the Respondent, Michael Papagiannis, is not entitled to payment of Age Pension pursuant to Part 2.2 of the Social Security Act 1991.

I certify that this and the 11 preceding pages are a true copy of the decision and reasons for decision herein of

Senior Member M D Allen

Signed: .....................................................................................

Associate

Date/s of Hearing 12 January 1999

Date of Decision

Solicitor for the Applicant Ms S Koller,

Welfare Rights Centre

Solicitor for the Respondent Ms C Collis,

Department of Family and Community Services