Post by Banjo on Sept 30, 2013 17:20:55 GMT 7
Ahern and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 665 (18 September 2013)
REASONS FOR DECISION
Ms N Bell, Senior Member
18 September 2013
Leon Ahern has been in receipt of disability support pension since 1992. He was diagnosed with chronic schizophrenia in 1988 and found to be severely disabled and manifestly incapacitated for work.
After years of psychiatric treatment, including the use of heavily tranquilising anti-psychotic drugs, Mr Ahern found a way of managing his illness through meditation and adherence to the teachings of the Brahma Kumaris. He said this was suggested to him by one of his psychiatrists. It became important to him to be in India as much as possible so that he could better access their teachings, courses and retreats and to pursue a style of life that allowed him to stick to a particular regimen and manage his illness. From 1993, Mr Ahern travelled to India frequently, sometimes staying more than a year at a time. At all times he continued to receive his pension.
From 1 July 2004 changes were made to the portability rules for disability support pension. Generally, all payments were made portable for up to 13 weeks absence from Australia. Previously, for Mr Ahern, payments were portable indefinitely.
For people like Mr Ahern, who were in receipt of disability support pension and were also outside Australia with unlimited portability immediately before 1 July 2004, savings provisions were introduced which meant Mr Ahern could continue with indefinite portability of pension provided he did not return to Australia as a permanent resident.
On 5 May 2007 Mr Ahern returned to Australia to obtain medical treatment and has remained here since then.
In late 2010, Centrelink decided Mr Ahern was no longer temporarily in Australia and was instead a permanent resident. This meant he lost indefinite portability and would be subject to the 13 week limitation. The issue for me to decide is whether Mr Ahern’s presence in Australia over the last six years amounts to residence here. If I find that he is not a resident then Mr Ahern will continue to be paid his disability support pension under the savings provisions with indefinite portability.
IS MR AHERN A RESIDENT OF AUSTRALIA?
Section 7(3) of the Social Security Act 1991 (Cth) sets out a number of matters that must be taken into consideration in deciding whether a person is residing in Australia:
Australian residence definitions
...
(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.
The statutory factors above should not be applied in a mechanical way. The relevance and importance of the factors in section 7(3) will vary in each case. The factors are there as a guide and:
... the decision-maker is also entitled to consider the converse of each factor. For example, when s 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant’s accommodation outside Australia. (Clifopoulos & Department of Social Security, Re [1994] AATA 282; (1994) 36 ALD 745)
The nature of the accommodation used by the person in Australia
In Australia, Mr Ahern is itinerant. He has not claimed and does not receive rent assistance. He goes on walking trails, sometimes around Perth and Darwin, to save on accommodation costs and help make ends meet. When he is in cities he sometimes stays in hostels. However, when he is in India he stays at the same guesthouse where he has stayed for the last 15 years. He said he knows the owners of the guesthouse, the same people for all of that time, and they know him.
Mr Ahern said he has known the people in his ashram in India for 20 years.
The nature and extent of the family relationships the person has in Australia
Mr Ahern has a brother and a stepmother in Australia, but he has not seen them since his return in 2007. He said that when he wrote to his brother to ask whether Mr Ahern’s one quarter share of his late parents’ property, the subject of a testamentary trust, could be purchased from him, he received no reply.
The nature and extent of the person's employment, business or financial ties with Australia
Mr Ahern has not been employed for 21 years. He draws no income from the trust that administers his parents’ estate. He has an Australian bank account into which his disability support pension is paid and which he accesses when he is in India. He said he plans to transfer to an ANZ account in India.
The nature and extent of the person's assets located in Australia
Mr Ahern has a 25% share in a property at Echuca, the subject of a testamentary trust, but his attempts to realise his share have been unsuccessful. He expressed doubt that he would ever be able to access it and has no reliance on it.
The frequency and duration of the person's travel outside Australia
Mr Ahern has been spending time in India since at least 1997, according to available official records. The ‘Immigration Advised Movements’ contained in the T documents show “permanent absences” in India in 1997, 1999, 2000, 2001, 2003, 2004 and 2006. Most of his absences in India were for extended periods.
However, Mr Ahern has been in Australia for the last six years. He said that following the decision in 2010 to classify him as an Australian resident, he needed to stay in Australia in order to appeal the decision and have his indefinite portability reinstated. As to the years preceding the decision, Mr Ahern said he had to return to Australia in 2007 because of a heart condition. He described his difficulty when attempting to return to Australia for treatment and suffering severe chest pain towards the end of a flight from Delhi to Singapore. He said he decided to break the journey and seek medical advice in Singapore. After consulting the airline, it was agreed that he would board the next flight to Sydney at 7.00 pm the next day. He attended the Tanglin Clinic and was prescribed Cardiprin which resolved the problem. When he returned to the airport the next day he found there had been miscommunication about the flight he was intended to have boarded and he had missed it. He was unable to get a refund and so had to arrange further funds from his bank on his already overdrawn credit card. He purchased a ticket to Sydney and arrived with a significant credit card debt.
Mr Ahern explained that the repayment of his credit card debt required payments of $250 per month for the next six months. This, he said, made it particularly difficult to raise the funds he needed to return to India, particularly on a sole income of disability support pension payments.
Mr Ahern said that over the next couple of years, he made various attempts to obtain cheap fares to India and, in particular, some from Perth which he pursued only to find that the fares were no longer available and the relevant travel agent no longer operating. A close study of the computer generated file notes contained in the T documents shows that Mr Ahern advised Centrelink on numerous occasions in 2008 and 2009 that he intended to depart imminently.
The file notes also show that Mr Ahern frequently requested payments of disability support pension in advance.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
Documents concerning Mr Ahern’s grant of disability support pension show that his psychosis in 1992 was florid and disabling. He was described as having auditory hallucinations, persecutory and paranoid ideation and poor concentration. He was suffering the effects of heavily tranquilising medication. After adopting the meditation and other practices he learned in India, he no longer takes medication. He presented at the hearing as a somewhat reticent but calm and intelligent person.
Mr Ahern said he attends a Brahma Kumari Centre in Ashfield when possible so that he can stay in touch with the organisation in India. However, he said this is no substitute for the higher spiritual advice he has access to in India.
He said he does not receive rent assistance because he considers he does not live here. He said he never applied for the pensioner supplement and the pensioner concession card he now receives. He said he was never consulted and simply commenced to receive them.
As to his circumstances in India, Mr Ahern said it is very hard to get anything but a tourist visa in India unless he marries there or enrols in a University course, neither of which is likely. He said he has to leave the country every so often and then apply for a visa from across the border. Notwithstanding this, India is where he wants to be. He said he is able to attend all day classes and fortnight long retreats at the ashram in India. He said this gives him more control and makes him happier and more at peace. “India is home” he said.
A person’s intention has been given considerable weight in judgments of the Federal Court and previous decisions of the Tribunal. (See Hafza v Director-General of Social Security (1985) FCR 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70; Issa and SDSS [1985] AATA 184; Clifopoulos and Department of Social Security, Re [1994] AATA 282; (1994) 36 ALD 745; Wybrow and SDSS [1992] AATA 8321; Mihai and Secretary Department of Employment and Workplace Relations [2007] AATA 1894.)
The Secretary referred me to the Tribunal’s decision in Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931, that mere intention is not sufficient and must be seen in the context of objective evidence. I consider that, in Mr Ahern’s case, there is evidence of both his clear and persistent intention to return to India and the absence of ties to Australia. In Australia he is itinerant and isolated. In India he lives in a settled manner, always at the same guest house whose owners he knows, and connected to the people at the ashram he attends. To him, India is home.
Circumstances, including the decision made by the Secretary, have forced Mr Ahern to remain in Australia for these past six years. He has remained itinerant for all of that time, preserving his intention to return to India and his alienation from the usual indicia of residence in Australia.
I consider that Mr Ahern is not residing in Australia. It follows that he remains entitled to indefinite portability of his disability support pension.
DECISION
The Tribunal sets aside the decision under review and instead decides that Mr Ahern is not an Australian resident and consequently he remains entitled to indefinite portability of his disability support pension.
www.austlii.edu.au/au/cases/cth/aat/2013/665.html
REASONS FOR DECISION
Ms N Bell, Senior Member
18 September 2013
Leon Ahern has been in receipt of disability support pension since 1992. He was diagnosed with chronic schizophrenia in 1988 and found to be severely disabled and manifestly incapacitated for work.
After years of psychiatric treatment, including the use of heavily tranquilising anti-psychotic drugs, Mr Ahern found a way of managing his illness through meditation and adherence to the teachings of the Brahma Kumaris. He said this was suggested to him by one of his psychiatrists. It became important to him to be in India as much as possible so that he could better access their teachings, courses and retreats and to pursue a style of life that allowed him to stick to a particular regimen and manage his illness. From 1993, Mr Ahern travelled to India frequently, sometimes staying more than a year at a time. At all times he continued to receive his pension.
From 1 July 2004 changes were made to the portability rules for disability support pension. Generally, all payments were made portable for up to 13 weeks absence from Australia. Previously, for Mr Ahern, payments were portable indefinitely.
For people like Mr Ahern, who were in receipt of disability support pension and were also outside Australia with unlimited portability immediately before 1 July 2004, savings provisions were introduced which meant Mr Ahern could continue with indefinite portability of pension provided he did not return to Australia as a permanent resident.
On 5 May 2007 Mr Ahern returned to Australia to obtain medical treatment and has remained here since then.
In late 2010, Centrelink decided Mr Ahern was no longer temporarily in Australia and was instead a permanent resident. This meant he lost indefinite portability and would be subject to the 13 week limitation. The issue for me to decide is whether Mr Ahern’s presence in Australia over the last six years amounts to residence here. If I find that he is not a resident then Mr Ahern will continue to be paid his disability support pension under the savings provisions with indefinite portability.
IS MR AHERN A RESIDENT OF AUSTRALIA?
Section 7(3) of the Social Security Act 1991 (Cth) sets out a number of matters that must be taken into consideration in deciding whether a person is residing in Australia:
Australian residence definitions
...
(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.
The statutory factors above should not be applied in a mechanical way. The relevance and importance of the factors in section 7(3) will vary in each case. The factors are there as a guide and:
... the decision-maker is also entitled to consider the converse of each factor. For example, when s 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant’s accommodation outside Australia. (Clifopoulos & Department of Social Security, Re [1994] AATA 282; (1994) 36 ALD 745)
The nature of the accommodation used by the person in Australia
In Australia, Mr Ahern is itinerant. He has not claimed and does not receive rent assistance. He goes on walking trails, sometimes around Perth and Darwin, to save on accommodation costs and help make ends meet. When he is in cities he sometimes stays in hostels. However, when he is in India he stays at the same guesthouse where he has stayed for the last 15 years. He said he knows the owners of the guesthouse, the same people for all of that time, and they know him.
Mr Ahern said he has known the people in his ashram in India for 20 years.
The nature and extent of the family relationships the person has in Australia
Mr Ahern has a brother and a stepmother in Australia, but he has not seen them since his return in 2007. He said that when he wrote to his brother to ask whether Mr Ahern’s one quarter share of his late parents’ property, the subject of a testamentary trust, could be purchased from him, he received no reply.
The nature and extent of the person's employment, business or financial ties with Australia
Mr Ahern has not been employed for 21 years. He draws no income from the trust that administers his parents’ estate. He has an Australian bank account into which his disability support pension is paid and which he accesses when he is in India. He said he plans to transfer to an ANZ account in India.
The nature and extent of the person's assets located in Australia
Mr Ahern has a 25% share in a property at Echuca, the subject of a testamentary trust, but his attempts to realise his share have been unsuccessful. He expressed doubt that he would ever be able to access it and has no reliance on it.
The frequency and duration of the person's travel outside Australia
Mr Ahern has been spending time in India since at least 1997, according to available official records. The ‘Immigration Advised Movements’ contained in the T documents show “permanent absences” in India in 1997, 1999, 2000, 2001, 2003, 2004 and 2006. Most of his absences in India were for extended periods.
However, Mr Ahern has been in Australia for the last six years. He said that following the decision in 2010 to classify him as an Australian resident, he needed to stay in Australia in order to appeal the decision and have his indefinite portability reinstated. As to the years preceding the decision, Mr Ahern said he had to return to Australia in 2007 because of a heart condition. He described his difficulty when attempting to return to Australia for treatment and suffering severe chest pain towards the end of a flight from Delhi to Singapore. He said he decided to break the journey and seek medical advice in Singapore. After consulting the airline, it was agreed that he would board the next flight to Sydney at 7.00 pm the next day. He attended the Tanglin Clinic and was prescribed Cardiprin which resolved the problem. When he returned to the airport the next day he found there had been miscommunication about the flight he was intended to have boarded and he had missed it. He was unable to get a refund and so had to arrange further funds from his bank on his already overdrawn credit card. He purchased a ticket to Sydney and arrived with a significant credit card debt.
Mr Ahern explained that the repayment of his credit card debt required payments of $250 per month for the next six months. This, he said, made it particularly difficult to raise the funds he needed to return to India, particularly on a sole income of disability support pension payments.
Mr Ahern said that over the next couple of years, he made various attempts to obtain cheap fares to India and, in particular, some from Perth which he pursued only to find that the fares were no longer available and the relevant travel agent no longer operating. A close study of the computer generated file notes contained in the T documents shows that Mr Ahern advised Centrelink on numerous occasions in 2008 and 2009 that he intended to depart imminently.
The file notes also show that Mr Ahern frequently requested payments of disability support pension in advance.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
Documents concerning Mr Ahern’s grant of disability support pension show that his psychosis in 1992 was florid and disabling. He was described as having auditory hallucinations, persecutory and paranoid ideation and poor concentration. He was suffering the effects of heavily tranquilising medication. After adopting the meditation and other practices he learned in India, he no longer takes medication. He presented at the hearing as a somewhat reticent but calm and intelligent person.
Mr Ahern said he attends a Brahma Kumari Centre in Ashfield when possible so that he can stay in touch with the organisation in India. However, he said this is no substitute for the higher spiritual advice he has access to in India.
He said he does not receive rent assistance because he considers he does not live here. He said he never applied for the pensioner supplement and the pensioner concession card he now receives. He said he was never consulted and simply commenced to receive them.
As to his circumstances in India, Mr Ahern said it is very hard to get anything but a tourist visa in India unless he marries there or enrols in a University course, neither of which is likely. He said he has to leave the country every so often and then apply for a visa from across the border. Notwithstanding this, India is where he wants to be. He said he is able to attend all day classes and fortnight long retreats at the ashram in India. He said this gives him more control and makes him happier and more at peace. “India is home” he said.
A person’s intention has been given considerable weight in judgments of the Federal Court and previous decisions of the Tribunal. (See Hafza v Director-General of Social Security (1985) FCR 449; Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70; Issa and SDSS [1985] AATA 184; Clifopoulos and Department of Social Security, Re [1994] AATA 282; (1994) 36 ALD 745; Wybrow and SDSS [1992] AATA 8321; Mihai and Secretary Department of Employment and Workplace Relations [2007] AATA 1894.)
The Secretary referred me to the Tribunal’s decision in Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931, that mere intention is not sufficient and must be seen in the context of objective evidence. I consider that, in Mr Ahern’s case, there is evidence of both his clear and persistent intention to return to India and the absence of ties to Australia. In Australia he is itinerant and isolated. In India he lives in a settled manner, always at the same guest house whose owners he knows, and connected to the people at the ashram he attends. To him, India is home.
Circumstances, including the decision made by the Secretary, have forced Mr Ahern to remain in Australia for these past six years. He has remained itinerant for all of that time, preserving his intention to return to India and his alienation from the usual indicia of residence in Australia.
I consider that Mr Ahern is not residing in Australia. It follows that he remains entitled to indefinite portability of his disability support pension.
DECISION
The Tribunal sets aside the decision under review and instead decides that Mr Ahern is not an Australian resident and consequently he remains entitled to indefinite portability of his disability support pension.
www.austlii.edu.au/au/cases/cth/aat/2013/665.html
