Rahn and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 429 (7 June 2011)

Last Updated: 22 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 429

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4273

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LORIS RAHN

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

G. D. Friedman, Senior Member

Date 7 June 2011

Place Melbourne

Decision

The Tribunal affirms the decision under review.

..................[signed]............................
Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL

MR G. D. FRIEDMAN, Senior Member

No. 2010/4273

RAHN

and

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

TUESDAY, 7 JUNE 2011

MS RAHN appears in person

MR DE URAY appears for the respondent

SOCIAL SECURITY – Age Pension – Applicant living in South Africa – nature and extent of employment, business or financial ties, accommodation, family relationships, and assets in Australia - whether Australian resident because of intention to return

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [3.23 pm]


MR FRIEDMAN: Now, the matter before me is a decision by the Social Security Appeals Tribunal which affirmed the decision by a Centrelink authorised review officer on 22 June 2010 to refuse Mrs Rahn’s claim for age pension on the basis that she did not meet the Australian residency requirements. So I have to determine whether at the date of her claim she did meet the Australian residency requirements that would entitle her to be eligible for the age pension. Now, there’s no dispute that Mrs Rahn was born in Australia and that she is an Australian citizen, and she resided in Australia from the date of her birth on 1 June 1945 to 6 December 1969, when she left Australia to live in South Africa with her then husband.

She has continued to reside in South Africa since then, although since that time she has made a number of visits to Australia. She told me that some of those visits have been for lengthy periods. The only information available to the Tribunal is since 1997, and the visits to Australia have generally been of short duration and usually not more than one month. Mrs Rahn turned age pension age on 1 December 2008, and she applied for age pension on 17 May 2010, after which she returned to South Africa. She said in her claim that the permanent country in which she resides was South Africa and that her permanent Australian address was 100 Pembroke Road, Mooroolbark in Victoria, which is the address of her brother, Peter Dolphin, and she said in her application to this Tribunal that her current address is 92 Kerry Road, Parkview in South Africa, which she told me is a home that is owned by her former partner and where she has been living since 2003, although she said she is not paying any rent, and her former partner wishes her to leave the property, but she is seeking to take legal action to prevent her being removed from the property.

There’s no dispute that she has continued to reside in South Africa since December 1969. She sold her property in Parkview in South Africa in 2003, as I’ve said, and then moved to 92 Kerry Road, Parkview. She bought a property in Belfast, which is near to Johannesburg. That property has been the subject of legal proceedings. She said in an affidavit and before the Tribunal today that the property in Belfast was originally intended to be used as a sort of a resort and contained a number of parcels of land ... As I understand it, she has sold part of the land and wishes to sell the remaining part and found a purchaser, but a caveat was placed on the sale, and for various legal reasons, including a High Court decision in South Africa, the sale of the property has been subject to legal proceedings, and she has been unable to complete the sale.

She says that that is the main reason why she has not come to Australia even though it has been her intention to move back to Australia for a number of years. She said that she’s not living in the Belfast property. She’s not renting it out, and I understand the reasons are that she does not have enough money to pay the outgoings, and it’s not feasible for her to live on the property. She has said that the need to remain in South Africa to finalise the sale is the primary reason, as I’ve just mentioned, that she has not been able to move back to Australia. She said that she has no money ... [and] no income in South Africa. She has some gold jewellery, and as far as property in Australia is concerned, she says that she has $147 in a Police Credit Union account.

She did have some shares, and she had a Commonwealth Bank account, but ... she no longer has any shares, and there is no money in the Commonwealth Bank account, and, in fact, I believe that ... [it] has been closed. The relevant law is the Social Security Act 1991 and the Social Security (Administration) Act 1999, and to determine whether Mrs Rahn qualifies for a social security pension, she must be an Australian resident as required by section 29 subsection (1) of the Administration Act, and whether a person is an Australian resident is determined by the provisions of the Social Security Act. Section 7 subsection (2) provides:

An Australian resident is a person who:

(a) resides in Australia; and

(b) is one of the following:

(i) an Australian citizen -

and there are two others which are not relevant. Now, the question of whether a person is resident in Australia is a matter to be determined by considering the factors set out in section 7 subsection (3) of the Social Security Act. Subsection (7) paragraph (3) ... provides:

In deciding for the purpose[s] 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.

So that’s what I have to consider. Now, going through each of those, the nature of the accommodation used by the person in Australia: Mrs Rahn said today she does not own any property in Australia. She has stayed with relatives. Usually she stays with her brother in his Mooroolbark accommodation, and she has property in South Africa, and she formerly owned property in South Africa, and I’ve already noted that since selling her house in 2003, she has resided in Johannesburg’s suburb of Parkview in a property owned by her ex-partner. She said in her affidavit:

My home is in Australia with my family, and I intend to be physically present in Australia.

So in relation to the nature of the accommodation, she has stayed predominantly for her short visits with her brother, and she said she has also had significant contact with other relatives, which brings me to the next item, family relationships. She has relatives in South Africa, presumably from her ex-husband’s side. Her brother in Melbourne seems to be the most significant family member in Australia. She told me that she has a huge extended family in Australia, including nephews. It would appear that she does have a number of people who could be described as extended family members, although from the material available to me, it would appear that her major contact is with her brother and her brother’s four adult children rather than the huge extended family that she said she has living in Australia.

As far as employment, business and financial ties are concerned, it would appear on the material before me that ... for the last 40 years, her employment, business and financial ties have been predominantly in South Africa and not Australia, and I note her evidence that she hasn’t worked in Australia because she hasn’t lived here since 1969 ... [and] that the major property dealing[s] have been in South Africa. I’ve already outlined that she did sell a house and does have the Belfast property, and I’ve already noted her evidence, which I accept, that her only assets in Australia would appear to be an account with the Police Association Credit Union in the amount of $147, which was opened by her brother, and in evidence to the Tribunal today, her brother confirmed that ... [the] amount in that account is the only ... asset she has in Australia.

She told me that she has some furniture and suggested maybe some entitlement to an inheritance in Australia, and I accept her brother’s evidence, given that her brother has been responsible for her financial affairs over a number of years. I accept his evidence that that one bank account of $147 represents the only asset she has in Australia and ... my findings in relation to that are relevant to factor (d), the nature and extent of the person’s assets located in Australia.

The frequency of travel outside Australia: I’ve already noted that since 1969, she has made a number of visits, although the movement records, which only go back to 1997, confirmed that her visits to Australia have generally been of short duration and usually no more than one month. In some cases, they’ve been as little as two weeks.

Now, under section 7 subsection (3), I’m considering any other matter relevant to determining whether the person intends to remain permanently in Australia. The affidavit provided by Mrs Rahn indicates that she intends to be physically present in Australia, and I’ve noted her evidence that in fact, her intention to come to Australia has been present for a number of years and has been thwarted solely by the difficulties that she has faced in selling her property in South Africa. I note that she does not have a Medicare card or an Australian drivers’ licence. So in weighing up all those matters, it’s my view that although she has expressed an intention to come to Australia, that when I take into account the factors in section 7 subsection (3) of the Social Security Act, her accommodation has been only short term, staying with her brother; her family relationships are only with her brother and to a lesser extent, some nephews; that she has very little, if any employment, business or financial ties with Australia; has virtually no assets in Australia; and has made a number of short visits to Australia.

... [M]y finding[s], on weighing all those matters up, are that despite her stated intentions to reside permanently in Australia, that for the reasons that I’ve already indicated for each of those factors, ... Mrs Rahn is not an Australian resident as defined under section 7 subsection (2) of the Social Security Act. I’ve noted in coming to that view that Mrs Rahn believes that having paid taxes for a long time and having been treated unjustly, as she says, by the Australian Government, that in effect, she is owed an Australian age pension, particularly as she is an Australian citizen and has paid taxes for many years. Those matters I’ve taken into account, but I’m required to confine my decision to the relevant legislation as set out in the Social Security Act, and ... I cannot give a lot of weight to any of those matters, as they do not come within the provisions of the social security legislation.

In view of my findings that she is not an Australian resident, I find that she does not qualify for a social security pension or benefit as required by section 29 subsection (1) of the Administration Act. Therefore, she does not qualify for an age pension, and I affirm the decision made by the Social Security Appeals Tribunal.


END OF EXTRACT [3.40 pm]