|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 2 June 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTATIVE DIVISION ) N2002/1588
|
|
| |
|
|
Re |
1. KAREL SEBELA AND 2. CLEOPATRA SEBELA |
|
|
And |
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Tribunal |
Dr J D Campbell, Member |
Decision
|
|
The decisions under review are affirmed. |
...............................................
Member
Social Security - Claim for Age Pension and Partner Allowance - Australian Resident - Issue of "Resides in Australia".
Social Security Act 1991 Sections 7(1), (2), (3), 48(1) 51, 771 IA(1), 771 ID, 1208.
Hafza v Director General of Social Security (1985) 6 FCR 444.
MAY 2003 |
DR CAMPBELL |
|
1. In this matter Mr Karel Sebela and Mrs Cleopatra Sebela ("the Applicants") seek review of a decision of the Social Security Appeals Tribunal (`SSAT') dated 3 September 2002 which affirmed the decisions of an authorised review officer dated 29 May 1997 to:
(a) reject Mr Sebela's claim for age person; and
(b) reject Mrs Sebela's claim for partner allowance; and
(c) reject Mrs Sebela's claim for age pension.
2. The decisions made by the authorised review officer affirmed decisions taken by authorised delegates of the Secretary, Department of Family and Community Services ("the Respondent") to:
(a) reject Mr Sebela's age pension claim of 3 March 1997 (1 April 1997); and
(b) reject Mrs Sebela's partner allowance claim of 3 March 1997 (1 April 1997); and
(c) reject Mrs Sebela's age pension claim of 22 April 1997 (9 May 1997).
3. A hearing was held by telephone with the Applicants on 7 May 2003 at 1500 hours Sydney time, with the corresponding time in the Czech Republic being 0700 hours. Both Mr and Mrs Sebela detailed their evidence to the Tribunal. Ms Quinn, an advocate from Centrelink, represented the Respondent.
4. The following material was placed into evidence before the Tribunal:
Exhibit No. |
Matter Name |
Date |
T1 - T45 P1 - 206 |
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 |
|
A1 |
Two page letter from Mrs Sebela |
22 April 2003 |
A2 |
Letter from Mr and Mrs Sebela together with a medical report from Dr Tvaruzek |
29 November 2002 |
R1 |
Respondent's Statement of Facts and Contentions |
11 April 2003 |
ISSUES:
5. The relevant issue in this matter is whether or not Mr and Mrs Sebela were Australian residents on the relevant dates of claim for the purposes of the Social Security Act 1991.
LEGISLATION:
6. The relevant legislation is the Social Security Act 1991 ("the Act"), and in particular the following sections:
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 purpose 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.
48. (1) Subject to subsection (3), a person who wants to be granted an age pension must make a proper claim.
51. 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.
Note 1: for "Australian resident" see subsections 7(2) and (3).
Note2: the provisions of a scheduled international agreement may permit a proper claim to be made by a person who is not an Australian resident or not in Australia: see section 1208.
771IA(1) A person who wants to be granted a partner allowance must make a proper claim for that allowance.
771ID. 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.
Note: For `Australian resident' see subsection 7(2).
BACKGROUND:
7. Mr Karel Sebela lodged a claim for age pension on 3 March 1997 (T3) in which he indicated that he was born in Pozorice, Czechoslovakia, on 7 April 1930; that he migrated to Australia in June 1950; was an Australian citizen and had a joint account with his wife at the ANZ Bank, the CBA, the ANZ Trustees and a further account in his own name at the Bank of New Zealand. The total amount in these accounts was nominated at a little over $37,000. Further Mr Sebela detailed that the net household assets were $20,000, and he owned a 1992 Mercedes valued at $35,000. Mr Sebela indicated he had investments with Westpac Property Trust (4032 units), Heine Investment Management Unit ($5000) and a funeral benefit fund with Grand United (T5).
8. Mr Sebela indicated in lodged documents (T6) that he had travelled to Europe to visit his son, attend his son's marriage and holiday for the following periods respectively,
17 December 1992 - 17 February 1994
3 March 1994 - 11 May 1995
25 May 1995 - 27 February 1997.
and that he lived in the Czech Republic for the following periods;
7 April 1930 - 1949
18 December 1992 - 17 February 1994
4 March 1994 - 11 May 1995
25 May 1995 - 27 February 1997
9. Mr Sebela, detailed in a statement dated 18 March 1997 (TT) that he had finished work in 1992, had sold his house in Sydney, bought a house in the Czech Republic and lived on his savings. It was stated by Mr Sebela that it was his intention to leave Australia in June 1997, reside permanently in the Czech Republic while his son's family was growing up; then sell his house and return to Australia, as he considered his stay in the Czech Republic to be temporary.
10. Mrs Sebela, in her claim lodged for partner allowance on 3 March 1997 (T8), detailed that she was born in China in 1936, migrated to Australia in 1957, lived at 13/29 Albert Road Strathfield, held three joint accounts with her husband as detailed by him, and had travelled to Europe on two occasions (T9);
26 November 1992 until 3 June 1993;
2 July 1993 until 27 February 1997.
11. Mr Sebela's claim for age pension was denied by the Respondent on 1 April 1997 (T13), as was Mrs Sebela's claim for partner allowance (T12), with the reason for Mr Sebela's disallowance being "not residing permanently in Australia", and Mrs Sebela's disallowance being "your partner is not eligible for any pension payments."
12. Mr Sebela, in a statement dated 8 April 1997 (T14), restated that he and his wife had sold their property in Double Bay in 1993 and bought a house in 1993 in the Czech Republic and had been living on the balance of funds held in Australian Banks, together with some help from his son. Mr Sebela stated that they were living in his mother in law's unit at Strathfield, the mother in law having travelled with them to the Czech Republic in 1992, and now remains there being unable to travel. Mr Sebela stated that it was the intention of he and his wife to return to Australia and live permanently once his wife's mother died. Mr Sebela noted that he and his wife voted at the last Federal Election by way of a postal vote, and that they continued to lodge annual tax returns. Further Mr Sebela noted that the property at Strathfield is usually left vacant with occupancy occurring when family members arrive from overseas; that on his wife's mothers death, the unit may or may not be left to his wife; that his wife's mother had returned to Australia in 1993 for a cataract operation, returning to live in the Czech Republic temporarily until her medical conditions impeded her ability to travel.
13. Mr Leznar, a taxation agent, in a letter dated 8 April 1997 included a tax return for 1995/96 for both Mr and Mrs Sebela and a reconciliation statement for non-resident withholding tax deductions (T14).
14. Mr Sebela also supplied supporting documentation that he and his wife were on the electoral role for Lowe; that both held current Australian passports and drivers' licences (T14,15).
15. On 15 April 1997 the original decision maker, having reviewed the further information received, affirmed the earlier decisions and advised Mr Sebela accordingly (T18, T19). Mrs Sebela lodged a claim for age pension on 27 April 1997 (T22), and having been advised that, in their being no change in her circumstances, her claim would be denied, Mrs Sebela requested that the matter be referred to an authorised review officer (T21).
16. On 7 May 1997 Mr Trantum of A W Immigration Consultants Pty Limited made further submissions on behalf of Mr Sebela to the Respondent (T25). These included:
"His circumstances are, however, a little unusual and in some respects a little outside his control. Some of the decisions appear to have been made for practical and financial reasons rather than for any desire to reside elsewhere than in Australia."
* the circumstances surrounding the sale of their property in Double Bay; their search for an appropriate unit in Strathfield to live near an elderly mother for whom Mrs Sebela had power of Attorney (1991); the resolution of accommodation needs by Mr and Mrs Sebela occupying the mother's unit at Strathfield, in the knowledge that the mother would no longer be able to travel from the Czech Republic because of serious medical reasons;
* that there are no family connections alive in Australia, although the son is intending to return to Australia soon, with his wife, to start a business;
* that the purchase of the house in the Czech Republic was to accommodate his mother in law, and his son and his wife, and to provide accommodation for Mr and Mrs Sebela when visiting the mother in law.
* that the mother in law's unit in Strathfield had never been rented or leased and was available for occupation when Mr and Mrs Sebela returned from overseas;
* that Mr Sebela's travel to the Czech Republic since 1992 has been associated with retirement, to see his son and his wife, and to accompany his wife in the care of her mother, and that it has always been his intention to return to Australia."
17. In a letter dated 9 May 1997 the Respondent advised Mrs Sebela that her claim for age pension was denied "as you are not residing permanently in Australia." (T28).
18. In a letter to Mr Sebela dated 28 May 1997 (T35), the authorised review officer concluded;
"After considering the facts of your case I decided that the weight of evidence does not indicate that you intend to remain in Australia permanently.
I have decided that you cannot be considered to be residing in Australia. Consequently you cannot be considered an Australian resident. Therefore your claim for age pension is not a proper claim. I have decided that Strathfield office was correct to reject your claim for age pension and I affirm that decision".
19. A similar letter was sent to Mrs Sebela by the authorised review officer on 29 May 1997 (T36) affirming the earlier decision to deny Mrs Sebela's claim for age pension, again for similar reasons. A further letter dated 29 May 1997 was sent by the authorised review officer to Mrs Sebela affirming the decision to deny her claim for partner allowance, as her partner was not eligible to secure an age pension (T37).
20. The Social Security Appeals Tribunal, following a review of all the circumstances, affirmed the decision on 3 September 2002 (T2).
21. In a letter to the Administrative Appeals Tribunal dated 6 October 2002 (T1) the Applicants detailed the following additional information to support their contention that the decision of the Social Security Appeals Tribunal was in error.
* Mr Sebela had retired in December 1992 mainly due to ill health and a need for general rehabilitation, having been through a period of three years of adverse health circumstances;
* the opportunity to travel to the Czech Republic arose because his son was living there and in the need of some support. Further living expenses were cheaper, and he still hoped that they might get into some business to cover expenses;
* that at the time of their applications they had a home in Strathfield, furnished with their own belongings, his wife had a power of attorney in relation to her mother who owned the unit in which they were living and all cash and investments were held in Australian banks. Further they had paid all expenses in relation to the home unit since 1992;
* that their circumstances had now changed in relation to both their health and financial affairs, and they could no longer afford to return to and live in Australia, even if they sold their house in the Czech Republic.
22. In a submission to the Tribunal dated 22 April 2003 (Exhibit A1) Mrs Sebela detailed the following circumstances which has led to their current difficulties:
* "their son had travelled to the Czech Republic to seek work after the Applicants visited the country in August 1990. The son lodged with the wife of a deceased relative of Mr Sebela. The son met a girl, a qualified lawyer, who offered to organise things for him in relation to starting a band. The Applicants funded the activities of their son, who became engaged to the girl. A house was purchased with funds from the Applicants and the fiancee became the owner, a requirement of Czech law. Following disagreements, the marriage was cancelled, but the girl continued to seek funds from the son for the care and maintenance of the house and to assist in transfer of the house to the son. The funds were provided by the Applicants, and in early 1992 at the request of the son, Mrs Sebela travelled to the Czech Republic to assist his son in his problems and to arrange for refurbishment of the house through the auspices of the ex fiancee and at much expense.
* The Band in which the son was playing did not prosper, and despite Mr Sebela funding a CD recording and other funds, the band split when the funds ceased to flow. Both Applicants and Mrs Sebela's mother travelled to the Czech Republic, with the need for funds necessitating the sale of their unit and moving to live in the mother's unit in Strathfield.
* In the Czech Republic difficulties with the ex fiancee continued as she continued to seek money from the Applicants. After seeking legal advice and police involvement the house was signed over to Mr Sebela and a protracted legal action commenced to recover funds, which is still continuing.
* That the son met and married a Czech girl and they have a son. Mrs Sebela's mother died in March 1998."
23. In a further letter dated 29 November 2002, the Applicants again referred to their financial difficulties and also enclosed a report from Doctor Tvavuzek dated 13 November 2002, which indicated that Mr Sebela is suffering from peripheral vascular disease affecting the lower extremities and that bilateral graft operations may be required (Exhibit A2).
APPLICANT'S EVIDENCE:
24. In telephone evidence to the Tribunal, the Applicants detailed the following issues:
* in 1992 Mrs Sebela travelled to the Czech Republic to assist her son. Mrs Sebela's mother travelled with her;
* in 1993 Mrs Sebela brought her mother back to Australia for a cataract operation and both returned to the Czech Republic. The mother was in a wheel chair;
* during 1994 and 1995 the mother's health continued to deteriorate;
* that in 1997 Mrs Sebela had to return to the Czech Republic, after living in her mother's unit in Strathfield for three months, to help her daughter in law care for her mother. (Mrs Sebela);
* in 1998 her mother died leaving the unit to her grandson who sold the unit in 1998/99 and received the proceeds, which he applied towards the renovation of a house in the Czech Republic, which he had purchased;
* at the time of application the Applicants owned no property in Australia and had no other relations, with the furniture in the mother's unit becoming the property of the person who cared for the unit in their absence;
* at the time of application they had about $50,000 in bank accounts and investments in Australia;
* that the Applicants had sold the original house and purchased a smaller house where they now live;
* that in the early phases they were operating through the son's account in the Czech Republic;
* that the Tax Agent had advised that he submit a tax return as a non resident, because it would enable Mr Sebela to establish a business in the Czech Republic without Australian Taxation consequences.
CONSIDERATION AND FINDINGS:
25. The Tribunal has been particular in detailing the circumstances nominated by the Applicants in this matter in an attempt to better understand the particular circumstances that existed in March and April 1997, the period during which the Applicants lodged claims for age pension, partner allowance and age pension respectively. As a consequence the Tribunal makes the following findings of fact:
(a) Mr and Mrs Sebela both held Australian citizenship, Mr Sebela having arrived in Australia in 1950 and Mrs Sebela in 1957. Both travelled with an Australian passport, held current Australian driving licences and were enrolled to vote with the Australian Electoral Commission for the Division of Lowe;
(b) Mr Sebela had carried on business as a financial adviser, ceasing in 1992 because of a three year period of ill health, a desire to spend time in rehabilitation, and an opportunity to visit his son who was living and working in the Czech Republic;
(c) the Applicants sold their unit in Double Bay in March 1993 and used the funds derived to purchase a house in the Czech Republic;
(d) Mrs Sebela and her mother travelled to the Czech Republic on 26 November 1992 and they both remained there returning to Australia in 3 June 1993 for the purpose of the mother undergoing a cataract operation. Both returned to the Czech Republic on 2 July 1993, with Mrs Sebela returning to Australia for a period of three months between 27 February 1997 and 18 May 1997; Mrs Sebela returned to the Czech Republic to assist her daughter in law to care for Mrs Sebela's aged mother, whose health status was deteriorating. Mrs Sebela's mother remained in the Czech Republic until her death in 1998;
(e) Mrs Sebela had visited her son in the Czech Republic in early 1992 and had stayed for a period of two months to assist her son in a dispute over a house which he had purchased but was held in the name of his ex fiancee. Arrangements were made and funds provided for the refurbishment of the house in the Czech Republic;
(f) Mr Sebela travelled to the Czech Republic with his wife in August 1990 to visit and returned to Australia and acquainted their son of new opportunities in music, the son having returned from Japan in 1989.
(g) Mr Sebela travelled to the Czech Republic on 17 December 1992 and returned to Australia on 17 February 1994, departing again to the Czech Republic on 3 March 1994, returning to Australia again on 11 May 1995. He remained in Australia until 25 May 1995, returning to the Czech Republic where he remained until 27 February 1997 when he returned to Australia. Mr Sebela departed Australia on 12 May 1997 and has remained domiciled in the Czech Republic since that time;
(h) the Applicants sold their unit in Double Bay in March 1993. Furniture and household attributes were transferred to Mrs Sebela's mother's unit at Strathfield, with the Applicants managing that unit for Mrs Sebela and using the unit for accommodation when they were in Australia until it was bequeathed to their son on the death of his grandmother in 1998 and sold, with proceeds being utilised by their son;
(i) the Applicants have owned or have had access to a house in the Czech Republic prior to or at the time of Mrs Sebela and her mother's arrival in November 1992. The Applicants still own a house in the Czech Republic in which they reside;
(j) the Applicants held investments and assets in Australia in various banks and funds, as well as household furniture, the total value of which was in the order of $50,000 at the time of application in March and April 1997. These funds were being accessed by way of draw down by the Applicants from the Czech Republic with the furniture within the unit granted to the person who had been caring for the unit in their absence;
(k) that Mr Sebela is in poor health, and that the Applicants financial circumstances are stretched;
(l) that taxation returns by the Applicants were submitted as non residents, in order that Mr Sebela could take advantage of any business opportunity in the Czech Republic as advised by his taxation adviser.
26. The Tribunal in acknowledging the statutory framework nominated in paragraph six of this decision, notes that for a person who wishes to be granted an age pension or a partner allowance, a proper claim must be made (sections 48(1), 771IA(1)). For a claim to be proper a person must be an Australian resident and in Australia (sections 51,771ID), unless a scheduled international agreement exists (section 1208). An Australian resident is one who resides in Australia (section 7(2)(a)) and is one of the following - an Australian citizen (section 7(2)(b)(I)).
27. The Tribunal further acknowledges section 7(3) of the Act which nominates the factors which are to be considered in deciding whether or not a person is residing in Australia.
28. The Tribunal will now address each of the circumstances nominated in section 7(3) of the Act:
(a) The nature of accommodation used by the person in Australia;
(i) the Tribunal notes the sale of the Applicant's Double Bay property in March 1993 and the use of Mrs Sebela's mother's unit in Strathfield thereafter, which was for a period of one month in 1993, two weeks in 1994 and 1995 and ten weeks in 1997. At all times the unit was owned by Mrs Sebela's mother, who resided in the Czech Republic from November 1992 to her death in March 1998, apart from a period of one month when she returned to Australia for a cataract operation with Mrs Sebela. While Mrs Sebela had her mother's power of attorney since 1991 and managed her mother's affairs, the unit passed to the son on the death of her mother, with Mr Sebela acknowledging in his statement of 8 April 1997 that the property at Strathfield may or may not be left to his wife. As it turned out the property was sold with the proceeds passing to the son;
(ii) In assessing such circumstances the Tribunal comments that the Applicants had access to accommodation in Australia as long as Mrs Sebela's mother was alive and that there would be a determination on the use of such accommodation once the mother died
.
(b) The nature and extent of the family relationships the person has in Australia;
(i) the Tribunal notes that neither Applicant had any existing family relationships in Australia at the time of application, with their son being resident and married in the Czech Republic;
(ii) while there may have been some suggestions that the Australian educated son may return to Australia, there is no evidence to support such an activity, and indeed there is much evidence to suggest continuing domicile in the Czech Republic (marriage, child, home ownership, work).
(c) The nature and extent of the Applicant's employment, business or financial ties with Australia;
(i) the evidence is that Mr Sebela had ceased employment in Australia by late 1992 and neither Applicant was conducting any businesses in Australia. Further they had sold their property in Double Bay and had transferred funds to the Czech Republic to fund the purchase of a house. While funds were maintained in Australian Banks, these were drawn down as required by the Applicants by way of wire transfer.
(d) The nature and extent of assets located in Australia;
(i) Including the financial assets held in bank accounts and with an investment fund, assets in Australia at time of application were of the order of $60-70,000, with bank funds being able to be accessed by way of wire transfer, and household furniture ($15 - 20,000) being located in the Strathfield unit, with disposition upon mother's death to the person who had managed the unit in the Applicant's absence.
(e) Frequency and duration of the person's travel outside Australia;
(i) it is evident that from 1 December 1992 to date of Application in March 1997, Mr Sebela had lived in the Czech Republic all bar five weeks, having returned to Australia for two week periods in February 1994 and May 1995 and on 27 February 1997 prior to lodging his application for age pension on 3 March 1997;
(ii) it is evident that from November 1992 Mrs Sebela had lived outside Australia in the Czech Republic for all bar five weeks, returning to Australia in 1993 for one month when she accompanied her mother, who was undergoing eye surgery and for one week prior to her application for parenting allowance;
(iii) the Tribunal also notes that both Applicants returned to the Czech Republic on 12 May 1997 and have remained there to this time.
(f) Any other matter relevant to determining whether the person intends to remain permanently in Australia;
(i) the Tribunal has been careful to note the travel history of the Applicants to the Czech Republic in 1990 and thereafter, and it would seem that by November 1992, when Mrs Sebela and her mother left Australia to reside with the son in the Czech Republic, followed by the sale of the Applicant's resident in March 1993 and the departure by Mr Sebela for the Czech Republic in December 1992, that there had been a consolidation of the family and family assets in the Czech Republic, with only the mother's unit remaining in Australia. The Applicants stated to the Tribunal that the decisions taken at that time were taken in the best interests of their son;
(ii) the continuing transfer of assets over time to purchase a house and maintain their activities in the Czech Republic reflects in the Tribunal's view, a continuing desire to maintain the family unit in the Czech Republic, this in turn being reinforced by the infirmity of Mrs Sebela's mother, the circumstances surrounding the son, his later marriage and the arrival of a child and the growing infirmity of Mr Sebela. While both Applicants may espouse to having an intention to return to Australia, there is the evidence of their actions, which negate such espousals.
(iii) the Tribunal also notes that Mr and Mrs Sebela's tax returns are lodged as non residents, as was Mrs Sebela's mother's tax returns.
29. The Tribunal, in deciding whether the Applicants were residing in Australia at the date of Application, notes the decision of Wilcox J in Hafza v Director General of Social Security (1985) 6FCR 444, when he 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 least for the time being, not necessarily forever...
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...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'."
30. The Tribunal, while noting what Wilcox J did state at that particular time, is mindful that section 7(3) is particular in what and to which the decision maker should have regard in deciding whether the Applicants are residing in Australia at the particular date of claim.
31. The Tribunal in addressing the issues to which it must have regard, concludes that the Applicants were not residing in Australia at the time the claim was made for the following reasons:
"(a) the Applicants had access to accommodation in Australia for as long as Mrs Sebela's mother was alive, with no certainty that such accommodation would be available after her death;
(b) neither Applicant had any existing family relationship in Australia at the date of application, with the son being resident in the Czech Republic and no definite evidence of either intention or likelihood of the son and his family returning to Australia;
(c) neither Applicant had any remaining employment or business interests in Australia, while any financial assets could be and had been accessed by way of wire transfer;
(d) the totality of assets in Australia was minimal, with, apart from the financial assets of some $50,000, which could be accessed from abroad, remaining assets related to household effects of some $15,000 - $20,000;
(e) the nature of travel outside Australia as detailed clearly indicated that in the previous five years up to the date of Application a minimal period of time had been spent in Australia, by either Applicant with a major commitment of financial resource and effort to establish and maintain a residence and a physical presence by both Applicants in the Czech Republic. This was done in order to support their son, work through some financial issues surrounding property purchase, purchase property, accommodate and support Mrs Sebela's mother and support the son, his wife and their child;
(f) the Applicants both submitted their tax returns, indicating that they were non residents for taxation purposes;
(g) a longitudinal overview commencing with the Applicants visit to the Czech Republic in 1990; the decision by the Applicants to support their son in his purchase of a property in the Czech Republic and the visit by Mrs Sebela in early 1992 to work through issues surrounding the property and oversee the refurbishment of the property; the cessation of work by Mr Sebela in 1992, and the departure from Australia by Mrs Sebela and her aged mother in November 1992, followed by Mr Sebela in December 1992; The sale of the Applicant's Double Bay property in March 1993; the purchase of a residence in the Czech Republic by the Applicants following a transfer of funds arising from the Double Bay property sale and the subsequent travel by Mrs Sebela and her mother for an operation in Australia in June 1993 and their return to the Czech Republic in July 1993 together with the continued presence of the two Applicants in the Czech Republic, apart from very minimal periods in which either one or both returned to Australia; the transfer of financial assets from Australia to the Czech Republic for either purchase of a property or for living expenses; the cessation of any business activity in Australia and the continuing desire expressed by the Applicants to assist and help the son in the Czech Republic are in the Tribunal view all factors which indicate an intention by the Applicants to establish and maintain a permanent and ongoing place of residence in the Czech Republic from late 1992 onwards. The Tribunal concludes that by so doing, the Applicants have acted in such a manner as to demonstrate that they do not intend to remain permanently in Australia over the period in question and certainly not at the date of application, having established a place of residence in the Czech Republic in which they were residing and intended to reside for an indeterminate period into the future."
32. As a consequence of the Tribunal's finding that the Applicants were not residing in Australian in March/April 1997, the two Applicants failed to satisfy the definition of Australian resident contained within section 7(2) of the Act. As such claims by Mr Sebela for an age pension on 3 March 1997 and by Mrs Sebela for a partner allowance on 3 March 1997 and for an age pension on 22 April 1997 were not proper claims pursuant to sections 51, 771ID, 51 of the Act respectively. As a proper claim has not been lodged on any of the issues, the Applicant's claims for age pension, partner allowance and age pension must fail pursuant to sections 48(1), 771IA(I), 48(I) of the Act respectively.
33. In so finding the Tribunal acknowledges that the Applicants have made a series of decisions over time which have been driven by a desire to assist members of their family and which in the longer term have proceeded to be a detriment in their endeavours to secure some financial relief by way of age pension and partner allowance at a time when their retirement financial resources have dwindled.
The alternative of returning to Australia is negated both by the high cost of re establishing themselves in the Australian environment - a resource they do not possess, and by a desire to live their remaining years, burdened by deteriorating health, in an environment in which they can give and receive support from their immediate family.
34. The Tribunal also acknowledges the fact that for some forty odd years the Applicants resided in Australia and paid the necessary taxes over that period. While it was the Applicants' decision to effectively relocate and establish a residence in the Czech Republic, it is unfortunate for the Applicants that there does not exist a scheduled international agreement between Australia and the Czech Republic.
35. Nevertheless it is the Tribunal decision that for the reasons outlined in this decision, the decisions under review are affirmed.
I certify that the preceding 35 paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................................................................
Associate
Solicitor for the Applicant self-represented
Solicitor for the Respondent Ms Rachael Quinn
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/499.html