Post by Banjo on Sept 3, 2013 16:08:58 GMT 7
Note that while they talk about frequency of travel being the most important factor, the bottom line is ties to Australia.
Interesting points on grandfathering.
Cecil and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 556 (8 August 2013)
TRIBUNAL’S FINDING
Is Mr Cecil an Australian resident?
As well as the information provided by Mr Cecil to the SSAT at the hearing of this matter, Mr Cecil has provided three emailed statements to this Tribunal. Mr Cecil does not dispute any of the information purportedly provided to him and recorded in the SSAT reasons. Mr Cecil claims his medications and medical treatment is cheaper outside Australia, and this motivates him to spend so much time away. Mr Cecil claims his family ties in Australia, and the frequency of his return visits, make him a resident of Australia. Mr Cecil stated that he ‘lost all’ in a Family Law Court settlement, and was obliged to sell his car and house to pay his legal fees.[7] He claims his sister has allowed him to stay with her rent free because of his medical disabilities, which prevent him from working. Mr Cecil also points out that he has no fixed address, even overseas, and claims this proves he is not a resident of any overseas country.
The Secretary contends that many of the visits Mr Cecil has made to Australia have been of short duration, and have been to Darwin, a city where Mr Cecil has no relatives. His return visits to Australia, according to the Secretary, have been for the purpose of maintaining his eligibility for DSP, and have not been for the purpose of maintaining family relationships. Further, Mr Cecil has no personal assets in Australia apart from some clothing left at his sister’s residence in Banora Point. According to the Secretary, that Mr Cecil spent only 20% of time in Australia from 28 May 2009 to 21 May 2013; and only 6% of his time from 30 August 2010 to 27 April 2012, suggests that he ordinarily resides in a country other than Australia.
The Secretary referred me to the matter of Hafza,[8] which, it was contended, is authority for a position that the Tribunal should consider the intention of a person, when considering the matter of residency . It was contended that Mr Cecil’s intention has been to make countries other than Australia his home since at least 2005.
In deciding whether Mr Cecil is a resident I must have regard for the nature of Mr Cecil’s accommodation, family relationships, employment, financial or business ties and assets in Australia, the frequency and duration of his travel outside Australia, any intentions to remain permanently in Australia, and any other matters that may be of relevance.
The Guide to Social Security Law (“the Guide”) explains the approach a delegate of the Department is to take when determine matters such as residency . Whilst not binding on this Tribunal, the Guide will be followed to ensure consistency, unless there are cogent reasons for not doing so.[9] The Guide states:
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in SSAct section 7(3).[10]
Accommodation and Assets
The evidence before me indicates that Mr Cecil has not had his own home in Australia for many years. Mr Cecil has stated that his last home was sold when he divorced his former wife.[11] He stated in a telephone conversation with Centrelink that he received about $40,000 after legal fees from the property settlement, however he currently has only a few thousand dollars in his bank account.[12] The evidence suggests that Mr Cecil has no fixed address in Australia. Centrelink has an address in Bali for Mr Cecil, and their records indicate that Mr Cecil has leased land in Bali. There are no details about that lease before this Tribunal and it is not clear whether that land was habitable. Mr Cecil told Centrelink that he was living in a property at Eungai Creek from 1989 until 2007. He further claimed he has no fixed address overseas, and that he lives with friends, and has had to leave three houses so the occupants can ‘have their privacy back’.[13] The SSAT reported Mr Cecil as having said he occasionally spends time with his girlfriend in the Philippines.[14]
Having few personal possessions and no fixed address is a factor that should be not always given a great deal of weight in every case in which the question of residency is being considered. There are some unfortunate persons who for largely financial reasons, lead a somewhat simple and nomadic lifestyle, and move from one place to another when the opportunity for free or cheap accommodation presents. I get the impression Mr Cecil is one of those persons. Mr Cecil appears to be a man who has very few personal possessions, and little attachment to most of the property he does own, such as the clothing left at his sister’s home. I think it is likely that he would not have many assets or a permanent address no matter what country he resides in.
Employment, financial and business interests
He has not worked since 2009, and given his current medical conditions and age it is unlikely that he will ever choose to work again. The only financial, business or employment interest Mr Cecil appears to have with Australia is one bank account into which his DSP was paid until it was cancelled. Having a bank account in Australia is not something that carries any weight when determining if a person is an Australian citizen.[15] Mr Cecil’s bank account may well have been opened years before he departed from Australia.
Centrelink records indicate he owned a block of land at Eungai Creek that is held with a liquidator. Mr Cecil asserts that he no longer owns this property. I assume therefore there is no likelihood that he will have any future ongoing involvement in that property.
The SSAT referred to land Mr Cecil has leased in Bali at some time in the recent years, however it is not clear for what reason Mr Cecil leased the land. Leases in land for any purpose in Australia are generally for periods of no less than six months, and I assume that is also the case in Bali. That Mr Cecil leased land in Bali suggests that at least for a time his intention was to have some interest in that country associated with the land, whether financial, residential or both. Of course people can conduct business in other countries and spend a considerable time outside of Australia attending to business interests, however still be Australian residents. The significance of the lease in Bali is that it appears to be the only financial interest in any country that Mr Cecil has had for a number of years.
Family connections
In addition to his sister, Mr Cecil has a son, two daughters and four grandchildren. Mr Cecil’s parents are deceased. The SSAT recorded Mr Cecil as stating that he was unsure where his son was living and he has not heard from him for a while. His daughters both live in Hervey Bay. He exchanges emails with one of his daughters, and has not seen either since 2010. Mr Cecil has returned to Australia on at least nine occasions between August 2010 and April 2012. The total number of days he stayed in Australia during those visits was about 37 days. Mr Cecil did not visit his children on any of those return trips and I consider it unlikely he visited his sister, as she lives in NSW and most of his return trips were for short periods to Darwin.
The Guide states:
...having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members.
...
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas. ...[16]
When considering whether a person’s family ties are indicative of residency , the nature and frequency of contact with family members needs to be taken into consideration. Having relatives living in Australia, even closely related family members, such as children and siblings, is not sufficient in itself to support a claim for residency . Relationships with family members, which are limited to telephone, emails and letters, and do not include regular physical reunions, are not significant enough to support a case for residency . There is a need to demonstrate a much closer ongoing union, such as the intention to at some time in the future recommence living in close proximately for the purpose of maintaining those relationships. Mr Cecil appears to have a more significant relationship with his girlfriend than his family in Australia. Mr Cecil has visited her in the Philippines on some occasions over the last few years.
Time spent in Australia
Time spent in Australia is the most important factor in deciding whether Mr Cecil is a resident of Australia. According to immigration records, Mr Cecil has spent the majority of his time overseas since DSP was granted in March 2009.
I agree with the respondent that a person’s intent is a factor that must be taking into account when deciding the matter of residency . Mr Cecil returned to Australia on nine occasions between August 2010 and April 2012. On face value these frequent return visits may suggest some sort of connection with Australia that may support his case that he is an Australian resident. In deciding the significance of those return visits, Mr Cecil’s reason for returning on those occasions, and the length of the visits must be examined. On two of those occasions Mr Cecil returned to Australia to attend the funerals of his parents. On four of Mr Cecil’s return visits he only stayed one day, and he has told Centrelink that he was only returning to Australia every 13 weeks to maintain his qualifications for DSP, and that his return trips were brief due to the high cost of accommodation. I find that the majority of Mr Cecil’s return trips to Australia from August 2010 until April 2012 have been for the purpose of maintaining his qualifications for pension. The evidence points to Mr Cecil having intentionally resided outside of Australia since August 2010. Mr Cecil has not indicated he intends to return to Australia permanently at any set point in time. Mr Cecil’s absence from Australia has been planned, and was not unanticipated.
Conclusion
Mr Cecil has spent the majority of his time since August 2010 outside of Australia. He has no significant ties to Australia in any of the criteria listed in subsection 7(3) of the Act. He has expressed an intention to reside in Indonesia to take advantage of the cheaper cost of living. I find that Mr Cecil has not been an Australian resident since on or before April 2012 when his DSP was cancelled.
Does Mr Cecil have a qualifying residence exemption for disability support pension?
As stated above, a person is allowed to remain outside of Australia for an unlimited period provided they satisfy all the conditions set out in s 1218AA of the Act. Although Mr Cecil claims to have medical conditions, of which some are not curable, he does not claim to be terminally ill, and there is no evidence which points to that being the case. Further, although he has a girlfriend in the Philippines, whom he occasionally visits, Mr Cecil spends the majority of his time in Bali, where he has no family members. He therefore does not satisfy the requirements of s 1218AA of the Act, and does not qualify for unlimited portability in relation to DSP.
Certain pensioners are exempt from the provisions of s 94(1)(ea) of the Act, which commenced on 1 July 2011. I understand Mr Cecil claims to be one of these persons when he claims to be ‘grandfathered’. The exemptions only apply to certain pensioners who were overseas immediately before 20 September 2000 and who have not since returned to Australia, and to certain DSP recipients who were absent from Australia immediately before 1 July 2004. According to immigration records, Mr Cecil was not outside of Australia immediately before either of these dates. He therefore does not qualify for an exception from s 94(1)(ea) of the Act.
As Mr Cecil’s DSP was cancelled on 27 April 2012 he is not able to take advantage of the changes in the legislation that commenced on 1 July 2012.
DECISION
As Mr Cecil is not an Australian resident, nor has he been since some years prior to 27 April 2012 when his DSP was cancelled. He does not satisfy the requirements of s 1218AA of the Act, and so is not exempted from the application of s 94(1)(ea) of the Act. He therefore does not satisfy the requirements of eligibility for DSP. The Tribunal affirms the decision under review.
Interesting points on grandfathering.
Cecil and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 556 (8 August 2013)
TRIBUNAL’S FINDING
Is Mr Cecil an Australian resident?
As well as the information provided by Mr Cecil to the SSAT at the hearing of this matter, Mr Cecil has provided three emailed statements to this Tribunal. Mr Cecil does not dispute any of the information purportedly provided to him and recorded in the SSAT reasons. Mr Cecil claims his medications and medical treatment is cheaper outside Australia, and this motivates him to spend so much time away. Mr Cecil claims his family ties in Australia, and the frequency of his return visits, make him a resident of Australia. Mr Cecil stated that he ‘lost all’ in a Family Law Court settlement, and was obliged to sell his car and house to pay his legal fees.[7] He claims his sister has allowed him to stay with her rent free because of his medical disabilities, which prevent him from working. Mr Cecil also points out that he has no fixed address, even overseas, and claims this proves he is not a resident of any overseas country.
The Secretary contends that many of the visits Mr Cecil has made to Australia have been of short duration, and have been to Darwin, a city where Mr Cecil has no relatives. His return visits to Australia, according to the Secretary, have been for the purpose of maintaining his eligibility for DSP, and have not been for the purpose of maintaining family relationships. Further, Mr Cecil has no personal assets in Australia apart from some clothing left at his sister’s residence in Banora Point. According to the Secretary, that Mr Cecil spent only 20% of time in Australia from 28 May 2009 to 21 May 2013; and only 6% of his time from 30 August 2010 to 27 April 2012, suggests that he ordinarily resides in a country other than Australia.
The Secretary referred me to the matter of Hafza,[8] which, it was contended, is authority for a position that the Tribunal should consider the intention of a person, when considering the matter of residency . It was contended that Mr Cecil’s intention has been to make countries other than Australia his home since at least 2005.
In deciding whether Mr Cecil is a resident I must have regard for the nature of Mr Cecil’s accommodation, family relationships, employment, financial or business ties and assets in Australia, the frequency and duration of his travel outside Australia, any intentions to remain permanently in Australia, and any other matters that may be of relevance.
The Guide to Social Security Law (“the Guide”) explains the approach a delegate of the Department is to take when determine matters such as residency . Whilst not binding on this Tribunal, the Guide will be followed to ensure consistency, unless there are cogent reasons for not doing so.[9] The Guide states:
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in SSAct section 7(3).[10]
Accommodation and Assets
The evidence before me indicates that Mr Cecil has not had his own home in Australia for many years. Mr Cecil has stated that his last home was sold when he divorced his former wife.[11] He stated in a telephone conversation with Centrelink that he received about $40,000 after legal fees from the property settlement, however he currently has only a few thousand dollars in his bank account.[12] The evidence suggests that Mr Cecil has no fixed address in Australia. Centrelink has an address in Bali for Mr Cecil, and their records indicate that Mr Cecil has leased land in Bali. There are no details about that lease before this Tribunal and it is not clear whether that land was habitable. Mr Cecil told Centrelink that he was living in a property at Eungai Creek from 1989 until 2007. He further claimed he has no fixed address overseas, and that he lives with friends, and has had to leave three houses so the occupants can ‘have their privacy back’.[13] The SSAT reported Mr Cecil as having said he occasionally spends time with his girlfriend in the Philippines.[14]
Having few personal possessions and no fixed address is a factor that should be not always given a great deal of weight in every case in which the question of residency is being considered. There are some unfortunate persons who for largely financial reasons, lead a somewhat simple and nomadic lifestyle, and move from one place to another when the opportunity for free or cheap accommodation presents. I get the impression Mr Cecil is one of those persons. Mr Cecil appears to be a man who has very few personal possessions, and little attachment to most of the property he does own, such as the clothing left at his sister’s home. I think it is likely that he would not have many assets or a permanent address no matter what country he resides in.
Employment, financial and business interests
He has not worked since 2009, and given his current medical conditions and age it is unlikely that he will ever choose to work again. The only financial, business or employment interest Mr Cecil appears to have with Australia is one bank account into which his DSP was paid until it was cancelled. Having a bank account in Australia is not something that carries any weight when determining if a person is an Australian citizen.[15] Mr Cecil’s bank account may well have been opened years before he departed from Australia.
Centrelink records indicate he owned a block of land at Eungai Creek that is held with a liquidator. Mr Cecil asserts that he no longer owns this property. I assume therefore there is no likelihood that he will have any future ongoing involvement in that property.
The SSAT referred to land Mr Cecil has leased in Bali at some time in the recent years, however it is not clear for what reason Mr Cecil leased the land. Leases in land for any purpose in Australia are generally for periods of no less than six months, and I assume that is also the case in Bali. That Mr Cecil leased land in Bali suggests that at least for a time his intention was to have some interest in that country associated with the land, whether financial, residential or both. Of course people can conduct business in other countries and spend a considerable time outside of Australia attending to business interests, however still be Australian residents. The significance of the lease in Bali is that it appears to be the only financial interest in any country that Mr Cecil has had for a number of years.
Family connections
In addition to his sister, Mr Cecil has a son, two daughters and four grandchildren. Mr Cecil’s parents are deceased. The SSAT recorded Mr Cecil as stating that he was unsure where his son was living and he has not heard from him for a while. His daughters both live in Hervey Bay. He exchanges emails with one of his daughters, and has not seen either since 2010. Mr Cecil has returned to Australia on at least nine occasions between August 2010 and April 2012. The total number of days he stayed in Australia during those visits was about 37 days. Mr Cecil did not visit his children on any of those return trips and I consider it unlikely he visited his sister, as she lives in NSW and most of his return trips were for short periods to Darwin.
The Guide states:
...having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members.
...
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas. ...[16]
When considering whether a person’s family ties are indicative of residency , the nature and frequency of contact with family members needs to be taken into consideration. Having relatives living in Australia, even closely related family members, such as children and siblings, is not sufficient in itself to support a claim for residency . Relationships with family members, which are limited to telephone, emails and letters, and do not include regular physical reunions, are not significant enough to support a case for residency . There is a need to demonstrate a much closer ongoing union, such as the intention to at some time in the future recommence living in close proximately for the purpose of maintaining those relationships. Mr Cecil appears to have a more significant relationship with his girlfriend than his family in Australia. Mr Cecil has visited her in the Philippines on some occasions over the last few years.
Time spent in Australia
Time spent in Australia is the most important factor in deciding whether Mr Cecil is a resident of Australia. According to immigration records, Mr Cecil has spent the majority of his time overseas since DSP was granted in March 2009.
I agree with the respondent that a person’s intent is a factor that must be taking into account when deciding the matter of residency . Mr Cecil returned to Australia on nine occasions between August 2010 and April 2012. On face value these frequent return visits may suggest some sort of connection with Australia that may support his case that he is an Australian resident. In deciding the significance of those return visits, Mr Cecil’s reason for returning on those occasions, and the length of the visits must be examined. On two of those occasions Mr Cecil returned to Australia to attend the funerals of his parents. On four of Mr Cecil’s return visits he only stayed one day, and he has told Centrelink that he was only returning to Australia every 13 weeks to maintain his qualifications for DSP, and that his return trips were brief due to the high cost of accommodation. I find that the majority of Mr Cecil’s return trips to Australia from August 2010 until April 2012 have been for the purpose of maintaining his qualifications for pension. The evidence points to Mr Cecil having intentionally resided outside of Australia since August 2010. Mr Cecil has not indicated he intends to return to Australia permanently at any set point in time. Mr Cecil’s absence from Australia has been planned, and was not unanticipated.
Conclusion
Mr Cecil has spent the majority of his time since August 2010 outside of Australia. He has no significant ties to Australia in any of the criteria listed in subsection 7(3) of the Act. He has expressed an intention to reside in Indonesia to take advantage of the cheaper cost of living. I find that Mr Cecil has not been an Australian resident since on or before April 2012 when his DSP was cancelled.
Does Mr Cecil have a qualifying residence exemption for disability support pension?
As stated above, a person is allowed to remain outside of Australia for an unlimited period provided they satisfy all the conditions set out in s 1218AA of the Act. Although Mr Cecil claims to have medical conditions, of which some are not curable, he does not claim to be terminally ill, and there is no evidence which points to that being the case. Further, although he has a girlfriend in the Philippines, whom he occasionally visits, Mr Cecil spends the majority of his time in Bali, where he has no family members. He therefore does not satisfy the requirements of s 1218AA of the Act, and does not qualify for unlimited portability in relation to DSP.
Certain pensioners are exempt from the provisions of s 94(1)(ea) of the Act, which commenced on 1 July 2011. I understand Mr Cecil claims to be one of these persons when he claims to be ‘grandfathered’. The exemptions only apply to certain pensioners who were overseas immediately before 20 September 2000 and who have not since returned to Australia, and to certain DSP recipients who were absent from Australia immediately before 1 July 2004. According to immigration records, Mr Cecil was not outside of Australia immediately before either of these dates. He therefore does not qualify for an exception from s 94(1)(ea) of the Act.
As Mr Cecil’s DSP was cancelled on 27 April 2012 he is not able to take advantage of the changes in the legislation that commenced on 1 July 2012.
DECISION
As Mr Cecil is not an Australian resident, nor has he been since some years prior to 27 April 2012 when his DSP was cancelled. He does not satisfy the requirements of s 1218AA of the Act, and so is not exempted from the application of s 94(1)(ea) of the Act. He therefore does not satisfy the requirements of eligibility for DSP. The Tribunal affirms the decision under review.
