Maniatis Department of Family and Community Services [1999] AATA 89 (17 February 1999)

Last Updated: 18 February 1999

DECISION AND REASONS FOR DECISION [1999] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/776

GENERAL ADMINISTRATIVE DIVISION )

Re John MANIATIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 17 February 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

.......Sgnd M T Lewis...............

Mrs M T Lewis

Senior Member

CATCHWORDS

SOCIAL SECURITY - rejection of claim for disability support pension - cancellation of special benefit - whether the Applicant was an Australian resident at time of application - conflicting statements of intention made by Applicant

Phrase - Australian resident

Social Security Act 1991 - ss 7, 106, 110, 729(2)

Galati and Director General of Social Security (1984) 6 ALD 538;

Gnisios and Secretary, Department of Social Security, AAT 10759, 22/2/96;

Goodfellow and Department of Social Security, AAT 8296, 8/10/92

Hafza v Director General of Social Security (1985) 6 FCR 444;

Mengi and Director General of Social Security (1984) 6 ALN 320;

Papagiannis and Secretary, Department of Social Security, AATA 31, 22/1/99;

Wybrow and Secretary, Department of Social Security, AAT 8321, 19/10/92;

Zaharakis and Secretary, Department of Social Security, AAT 11254, 20/9/96

REASONS FOR DECISION

17 February 1999 Mrs M T Lewis, Senior Member

1. This is an application lodged by John Maniatis ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 9 June 1998 (T2) affirming a decision of an Authorised Review Officer ("ARO") dated 8 April 1998 (T39) which affirmed two decisions made by a delegate of the Secretary, Department of Social Security (now the Department of Family and Community Services: "the Respondent"). The first decision dated 10 February 1998 (T27) was to reject the Applicant's claim for Disability Support Pension ("DSP") and the second decision dated 23 March 1998 (T33) was to cancel payment of Special Benefit.

2. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (exhibit T1). The Applicant provided a copy of his Certificate of Australian Citizenship dated 21 July 1988 (exhibit A). The Respondent provided a statement by the Applicant dated 13 August 1998 (exhibit 1). At the hearing the Applicant was unrepresented and the Respondent was represented by a Departmental advocate. The Applicant gave oral evidence through a Greek interpreter.

issue

3. The issue for the Tribunal is whether the Applicant was an Australian resident pursuant to s 7 of the Social Security Act 1991 ("the Act") at the time he lodged his claim for DSP and Special Benefit, and at the time his claim for DSP was rejected and his Special Benefit was cancelled.

legislation

4. In order to be paid DSP an Applicant must "make a proper claim" (s 106 of the Act) and s 110 provides:

110 A claim by a person is not a proper claim unless the person is:

(a) an Australian resident; and

(b) in Australia;

on the day on which the claim is lodged.

In order to qualify for Special Benefit a person must also be an "Australian resident" (s729(2)(f)).

Section 7 of the Act defines an "Australian resident":

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.

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.

evidence

5. The Applicant was born in Greece in 1933 and arrived in Australia with his wife, Ourania Maniatis, in April 1963. He worked as a printing assistant at John Sands Printing between 1963 and 1973 until he left work to look after his sick wife and his children (T8). In 1988 he sold his house in Australia and returned to Greece with his wife. He said they bought a house in Greece with the proceeds and survived off the money he received performing work as a labourer and the DSP his wife received from Australia.

6. On 29 November 1997 the Applicant returned to Australia leaving his sick wife in Greece to be looked after by a paid carer and their son. The Applicant resided in Belfield with their other son and daughter-in-law for about 5 months. He applied for and was granted Special Benefit from 10 December 1997 and a computer file note from the Respondent dated 9 December 1997 (T10) states "...was overseas and aust citizen states came back to australia to claim age pension then he would go back to greece permanently."

7. On 17 December 1997 the Applicant lodged an application for DSP (T11) and responded "yes" to the question "Do you intend to stay in Australia permanently?" In the application he stated that he had $20 in a savings account and $10 in cash. In oral evidence he said he brought $1,500 to Australia. An undated file note was made about this time which reflected a conversation between an unspecified departmental officer and the Applicant (T12). The file note states:

Went o/s 1988 with wife.

Wife did not return with a/n because she is very sick. She could not return here as we do not have a house here. I am staying with son. I am paying a woman to take care of wife in Greece.

I may go back to Greece but I do not know when but my wife is there.

8. On 2 February 1998 a statement was written on behalf of the Applicant by a departmental officer, with the assistance of a Greek language interpreter (T24):

I want to advise that I went overseas with my wife in 1988. My wife did not return with me because she is very sick. I have provided medical evidence to prove her conditions. She did not return with me because of her conditions and also we do not have a house here to stay. I am presently living with my son at the above address, however I will eventually return to Greece as I am paying a woman to look after my wife in my absence.

In his oral evidence the Applicant said in respect of this document that he believed the interpreter was not interpreting properly. The Applicant said that he meant he would return to Greece "if the law will permit me to return".

9. On 10 February 1998 the claim for DSP was rejected on the basis that the Applicant was not an Australian resident pursuant to s 7 of the Act (T27). A computer file note records the delegate's conclusion that the Applicant temporarily left his permanent place of residence in order to claim the pension (T26).

10. On 17 February 1998 the Applicant requested a review of the decision to reject his claim for DSP (T30). A statement was written by a departmental officer on behalf of the Applicant with the assistance of a Greek language interpreter (T28):

I now wish to state that I intend to remain in Australia. I intend to stay with my son.... My wife overseas pays for help to assist her while I am in Australia, from her pension payment.....I last voted in elections three or four years prior to leaving Australia in 1988.....I am going to ring my wife and ask her to return to Australia and then I will separate from her.

In his oral evidence the Applicant said he did not think he would have said that he would separate from his wife as he never intended to divorce her. A file note from the Respondent dated 18 February 1998 (T31) noted "special benefit cancelled". However the Applicant received payments until 19 March and was only notified on 23 March that his benefit was cancelled (T33).

11. On 1 April 1998 the ARO conducted a telephone interview with the Applicant with the assistance of a Greek language interpreter. The following comments were recorded in the file note from the interview (T35):

....if he is not getting his pension he will write to her to come back here. He left her in Greece and she (sic) paying someone to look after her, she doesn't really have the money to come here.....

It's my wife, I can't leave her like that. Will stay as long as law says I have to stay here. She's his wife and can't divorce her, will go over there for a holiday and see her.

12. On or about 2 April 1998 the ARO conducted a face to face interview with the Applicant with assistance from a Greek language interpreter. In the record of interview the ARO noted (T36):

feels should be paid as he is a legal resident and his view is he is an Australian citizen, have children and grandchildren here and his home is here. There will be times he will go back to Greece as he has people there;

since 1973 wife had accident, health reasons they had to go back to Greece

when he came back to Australia recently he was hoping for some assistance and go back to look after wife;

if it can't be done, he'll just stay here and leave his wife on her own;

wife thinks he is going back to Greece, he hasn't told her that he might not be;

if we pay him he'll go back, if we don't he'll stay here.

At the interview the Applicant was assisted to lodge a claim for Age Pension as he had turned 65 years of age (T37).

13. On 8 April 1998 the ARO affirmed the decision to cancel Special Benefit and reject the claim for DSP. This was also affirmed by the SSAT on 9 June 1998 (T2). The SSAT decision referred to the Applicant's oral evidence:

.... initially Mr Maniatis said that he came to Australia in November 1997 because he wanted to visit his children and grandchildren. He later said that he came because he was about to turn 65 years old and knew he could get the "old age pension";

Mr Maniatis initially said that when he arrived in November 1997 it was his intention to "do whatever they want me to". Later during the hearing he said it was his intention to stay permanently in Australia and that prior to his arrival he had spoken to his wife about this but she refused to come with him to Australia because they have another son in Greece......He said that when he claimed disability support pension in December 1997 his intention was "to get the pension and take it back if I can take it out of Australia". His intention changed after the pension was refused and now he intends to stay here permanently.

14. On 13 August 1998 a statement was written by a departmental officer on behalf of the Applicant (exhibit 1) which relevantly states:

I understand that my pension claim was rejected on the basis that it was decided that I did not have the intention to remain in Australia.

Upon being informed of this decision I immediately changed my intention.....

My original intention was to return to Greece in order to care for my wife Ourania Maniatis who is very sick following a car accident in Australia. However following the decision to reject my appeal I totally changed my plans and decided to bring my wife to Australia in order to care for her...

On the basis of this statement a delegate of the Respondent decided the Applicant's circumstances had changed, that he was an Australian resident as at 13 August 1998, and the Applicant's claim for Age Pension ("AP") was granted from 20 August 1998.

15. The Applicant's wife arrived in Australia on 25 August 1998 and they took out a six-month lease on a flat in Marrickville where they currently reside.

16. The Applicant's oral evidence was that he has no assets in Australia, although he jointly owns a house in Greece with his wife. He did not sell the house because it is located in a small village and would be hard to sell. He said he asked his son to find someone to sell the house but he was told that it would be very hard and no further attempt was made. He said that when he came to Australia he intended to live with his son for as long as he could, and to bring his wife over and then make other accommodation arrangements. However, around April 1998 the Applicant said he left his son's house "to keep the peace" and resided at a friend's house.

17. At the time of his application for DSP the Applicant's wife, son and sister lived in Greece and he had another son, two brothers and a cousin in Australia were. The Applicant's oral evidence was that he sees his brothers at least once a fortnight and he contacts his son in Sydney mainly by telephone.

18. In oral evidence the Applicant said that he came back to Australia because he did not have any real future in Greece, he was too old to do the labouring work which he had done in the past and so it was getting harder for him to live there. He thought he could return to Australia, receive the pension and have a more secure life. He said that the only reason he came to Australia alone was because he could not afford to pay for two airfares. He agreed that he had to pay for his wife's care while she remained in Greece, although he stressed that his son also helped with her care. He said that he arrived in Australia on a one-way ticket that cost $700. He said that he told his wife that he would go to Australia, get some money and then bring her over. The Applicant said that once he realised that in order to be granted a pension he needed to live in Australia permanently he sent the money to his wife for an airfare. He said he obtained the money for her airfare from his friend with whom he lived. He could not afford to return to Greece in order to accompany his wife to Australia.

submissions

19. The Applicant submitted the decision to reject his application for DSP and cancel his Special Benefit was wrong as he was an Australian citizen. He provided a copy of his Certificate of Australian Citizenship dated 21 July 1988 (exhibit A), which reveals that he was granted citizenship on 28 April 1975. He said that he felt he had been victimised and he questioned how the Respondent expected him to live without any money. He stated that he was in financial hardship at the time and he had to go to the Salvation Army for meals and relied on a friend and on his son for support. He said he still owes them money from that time.

consideration of evidence and findings

20. The issue for determination is whether the Applicant was an Australian resident pursuant to s 7 of the Act. The Applicant fulfils s 7(2)(b)(i) as he is an Australian citizen. The remaining question is whether, pursuant to s 7(2)(a), he was residing in Australia at the time he lodged his claim.

21. The Federal Court in Hafza v Director General of Social Security (1985) 6 FCR 444 considered a similar provision, "usual place of residence", in the Social Security Act 1947 ("the 1947 Act") and the general concepts discussed are applicable to the 1991 Act. At 449/450 Wilcox J stated:

As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at the least for the time being, not necessarily forever.

........

Physical presence and intention coincide 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 Inland Revenue Commissioners v Lysaght (1928) AC 234 at 248 and Kiel v Kiel (1947) VLR 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 the place remains "home" (see Norman v Norman (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 and the reference by William J to "a home or concept of residence to any particular case must depend upon 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."

22. The Tribunal accepts the Respondent's submission that an appropriate framework for consideration of the issue is set out by Deputy President McMahon in the Tribunal's decision Re Wybrow and Secretary Department of Social Security (AAT 8321, 19 October 1992). At paragraph 22 the Tribunal noted that s 7(3) of the 1991 Act requires certain factors to be taken into account in deciding whether a person is residing in Australia, but they are not expressed to be exhaustive and do not detract from the general observance Wilcox J made in Hafzar in relation to the ordinary concept of residence. Deputy President McMahon also noted at 25:

In considering whether residence is established, a court considers a man's or woman's whole environment, especially in relation to their spouse or family, and not merely a person's physical situation (Mengi and Director General of Social Security (1984) 6 ALN N320 at N323).

23. Further in Re Wybrow at paragraph 26 it was noted that the factors in s 7(a) to (d) relate to the person's relationships and ties in Australia, but "it is just as appropriate to consider the converse of these factors in relation to the applicant's circumstances outside Australia."

24. The Tribunal now turns to discuss the factors in s 7(3) relevant to the Applicant:

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

The Applicant does not own any real estate in Australia. When he arrived in Australia he lived with his son and there was no indication at that time as to the duration of this arrangement. After 5 months he moved into his friend's house and it was not until he brought his wife to Australia and he was granted the AP that he made arrangements to move to separate rented accommodation. In Greece the Applicant has a house which he bought with the proceeds of selling his house in Australia in 1988. The Tribunal finds that he did not intend to sell the house in Greece. The Applicant explained the house was in a small village and therefore difficult to sell. However the Tribunal notes he did not make any attempts to try to sell it and his wife and son were residing in it at the time.

It was submitted for the Respondent that the evidence strongly indicates that the Applicant made only temporary accommodation arrangements on arrival in Australia, which suggests that at that time he did not intend to reside in Australia on an indefinite basis.

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

At the time of his arrival in Australia the Applicant had immediate relatives in both Greece and Australia. The Tribunal agrees with the Respondent's submission that the most difficult element for the Applicant is that his wife remained in Greece. The Applicant's evidence was that he had looked after her for 25 years and had hired a paid carer to look after her in his absence. The Tribunal finds that the provision of a paid carer for his wife in Greece can only have been a temporary arrangement and that the Applicant considered it his role to look after her. The Applicant's evidence was that when he realised he needed to have a more settled approach to living in Australia in order to be paid a pension he brought his wife to Australia.

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

The Applicant has no employment, business or financial ties in either Greece or Australia.

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

The only significant asset the Applicant owns is a house in Greece. Despite giving evidence to the Tribunal that he brought $1,500 to Australia, less that a month after his arrival he completed a claim for DSP stating that he had $20 in a savings account and $10 in cash.

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

The Applicant has not been to Australia since 1988.

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

The Applicant failed to vote in any Australian election during his absence from Australia and has not re-enrolled since his return.

25. The Tribunal next turns to the question of intention. It was submitted for the Respondent that one of the most important factors relevant to determining whether the Applicant is an Australian resident is the intention of the Applicant at the time of application. The Tribunal notes that the Applicant has given various statements to the Respondent, SSAT and the Tribunal concerning his intentions about permanently remaining in Australia. Other than stating on his DSP application form dated 17 December 1997 that he intended to live permanently in Australia the Applicant's earlier statements to the Respondent indicate that he hoped to be granted the pension, in a relatively short period, and then return to Greece to continue looking after his wife. In oral evidence the Applicant clarified that he meant "if the law will permit me to return" which the Tribunal finds to be a retrospective addition in an attempt to support his case.

26. It was submitted for the Respondent that the Applicant's earlier statements as to his intention were to be preferred over his later revised statements of intention. The Tribunal finds that these revised statements do not assist the Applicant further, in fact they confirm that the Applicant's intention was to comply with the requirements for the pension before returning with it to reside in Greece permanently. The Tribunal agrees with the Respondent's submissions that the Applicant had no knowledge of the residence test and that he has shown a willingness to provide answers for which he thinks the Respondent is looking.

27. The Applicant's statement dated 13 August 1998 makes it clear that it is only after his pension claim was refused that he changed his mind and intended to reside permanently in Australia. It is at that stage that he brought his wife to Australia. It is apparent that before his statement of 13 August 1998 he hoped that his appeal would be successful. The Tribunal finds that as at 13 August 1998 the Applicant had formed an intention to reside permanently in Australia.

28. In relation to the Applicant's current intention to reside in Australia the Tribunal notes that:

"the fact that the settled purpose was to remain in Australia for a sufficient period to bring himself within a legislative provision is irrelevant to the consideration of whether he was "residing in Australia" (Galati and Director General of Social Security (1984) 6 ALD 538)

29. The Respondent referred to the following Tribunal decisions involving similar fact situations to support its submissions: Re Papagiannis and Secretary, Department of Social Security (AATA 31, 22 January 1999), Re Zaharakis and Secretary, Department of Social Security (AAT 11254, 20 September 1996) and Re Gnisios and Secretary, Department of Social Security (AAT 10759, 22 February 1996). The Tribunal's decision in Re Goodfellow and Department of Social Security, (AAT 8296, 8 October 1992) was distinguished on the facts.

30. The Tribunal finds that the Applicant was not residing in Australia at the time of application and at the time of the relevant decisions. Whilst the Applicant was physically present in Australia and held Australian Citizenship, this of itself is not sufficient. The Tribunal considers it relevant that the Applicant had only arranged temporary accommodation in Australia and he still owned a house in Greece that clearly he did not intend to sell. Employing a paid carer for his wife was a temporary solution and there was no evidence in late 1997/early 1998 that he intended to bring his wife to Australia. The Applicant mentioned in statements at the relevant time that he could not bring out his wife because they did not have a house to stay in yet he made no attempts to find a suitable house. There is no evidence before the Tribunal that the Applicant intended to remain permanently in Australia, even through he arrived in Australia on a one-way ticket. The Applicant's statements to the Respondent and the Tribunal make it clear that his original intention was to stay in Australia long enough to be granted a pension and then return to Greece. The Tribunal finds that at the relevant times the Applicant had only temporarily left Greece, that being his permanent place of residence at the time.

31. The Tribunal recognises that the Applicant was in financial hardship but stressed to him at the hearing that this was not a relevant issue, the sole issue being whether he was an Australian resident at the time of application.

32. Despite the Applicant's current intention to remain permanently in Australia the Tribunal finds that at the time of lodgement and at all relevant times the Applicant's intention was to stay in Australia temporarily to make an application for a pension and then to return to Greece with it. After considering all the evidence the Tribunal is satisfied the Applicant cannot be considered as residing in Australia as at the time of lodgement and the relevant decisions.

33. As a result the Tribunal finds the Applicant's claim for DSP was not a proper claim pursuant to s110 of the Act and the decision to grant Special Benefit was made in error as a person must be an "Australian resident" to qualify for Special Benefit pursuant to s729(2). The Tribunal notes the Respondent's evidence that there was no recoverable debt associated with the payment to him of Special Benefit as payment was made due solely to administrative error.

34. The Tribunal affirms the decision under review.

I certify that this and the preceding 12 pages are a true copy of the decision and reasons for decision herein of

Mrs M T Lewis, Senior Member

Signed: ..........Sgnd J Finlay.........................................

Associate

Date/s of Hearing 27 January 1999

Date of Decision 17 February 1999

Solicitor for Applicant N/A, Mr Maniatis unrepresented

Advocate for the Respondent Mr Bernard Slattery, Centrelink