Post by rowdy on Apr 19, 2012 17:13:05 GMT 7
Below is an extract of part of the judgement in the case of:
Re Kenneth George Wybrow and Secretary Department of Social Security [1992] AATA 315 (19 October 1992)
Link to case below.
Why it is important is that it deals with the Tribunals interpretation of residency and in particular the application of section 7(3) of the SSAct. I have bold text some areas of interest.
Section 7(3) of the Act now requires simply that an applicant, who is an Australian citizen, must reside in Australia.
In Hafza v Director-General of Social Security, Wilcox J. was concerned with the test of "usual place of residence" which appeared in s 103(1) of the predecessor to the present Act. Nevertheless, he made useful observations on the test of residence as such. He said - 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.
The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd by Williams J: "The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."
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, even involuntarily 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 with an intention to return to that place and an attitude that that place remains "home".
It is important to observe, firstly, that a person may simultaneously be a resident in more than one place - see the facts of Lysaght and the reference by Williams J. to "a home or homes" - and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence
of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been
maintained."
It is true that s 7(3) of the Act now requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia. They are, however, not expressed to be exhaustive and do not detract from the general observations which His Honour made in relation to the ordinary concept of residence. The definition however, compels a decision maker to pay some regard to the enumerated factors.
The first factor is the nature of the accommodation used by the person in Australia. It appears from the correspondence that the applicant lived with his wife in a substantial house in a suburb of Sydney before moving to Japan in 1984. This is a clear residential connection. The second factor to consider is the nature and extent of the family relationships the applicant has in Australia. So far as appears from the material before me, the applicant has a wife and adult children and great grand children in this country. His family connections, therefore, point to Australian roots. The nature and extent of the applicant's employment, business or financial ties with Australia, have been extensive in the past. The present work with PASS has a particular connection with Australia. Although his activities could not be described as in the nature of business or financial activities, they are certainly activities that are recognised by the Australian Government as having relevance to this country's interests.
The nature and extent of the applicant's assets are not described in detail in the correspondence. However it appears that if the applicant is paying income tax in Australia, he must have investments located here. He certainly has a home, subject to competing claims from his wife. The evidence is that he has no assets in Japan. The frequency and duration of the applicant's travel outside Australia, is not illuminating as he has been outside Australia for the past 8 years, except for one brief period. The final matter to which regard must be paid is the intention of the applicant to remain permanently in Australia. I have Mr. Whybrow’s stated intention, corroborated to some extent by the statements he has made to his associates in PASS. I have no evidence to the contrary and I have stated that I am prepared to accept what appears in the papers, as both parties wish the application to be decided in this way.
The uncontested evidence, therefore, is that Mr Whybrow intends to return to Australia and to live here permanently after his return. The future of PASS has not been referred to in the correspondence, but the nature of its concerns means that it must have a finite future.
In considering whether residence is established, a court considers a man or a woman's whole environment, especially in relation to their spouse or family and not merely a person's physical situation. The importance of a claimant's intentions are emphasised in Re Issa. None of the observations made in those cases is contradicted by the adoption of the new statutory formula for residence.
As is pointed out in the annotations to the Social Security Act 1991 by Sutherland and Johnson in paragraph, the statutory factors are not exhaustive and it is just as appropriate to consider the converse of these factors in relation to the applicant's circumstances outside Australia. Thus, it is appropriate to consider the nature of the accommodation overseas, the family relationships in the overseas country where the person is living, employment business or financial ties overseas and property located overseas. All of these factors produce a negative result so far as Mr Whybrow is concerned. His accommodation is ephemeral. He has no family relationships in Japan. I accept his evidence that his ties with PASS are temporary. He has no property in Japan.
Having regard to all the factors that are relevant, I have come to the conclusion that Mr Whybrow should be considered as resident in Australia at the time he made his application for pension. I am in no position, of course, to determine whether or not he meets the other requirements of the Act, enabling a full pension to be paid to him in Japan. An assessment of his assets may prove negative. The pre-conditions for portability may no be met. I am not, however, called upon to decide these matters. I have simply limited myself to a consideration of the legal nature of his Australian residence.
The decision under review is therefore set aside and the matter is remitted to the respondent with a direction that at the time of the application, the applicant was an Australian resident.
www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1992/315.html?stem=0&synonyms=0&query=title(Wybrow%20)
Re Kenneth George Wybrow and Secretary Department of Social Security [1992] AATA 315 (19 October 1992)
Link to case below.
Why it is important is that it deals with the Tribunals interpretation of residency and in particular the application of section 7(3) of the SSAct. I have bold text some areas of interest.
Section 7(3) of the Act now requires simply that an applicant, who is an Australian citizen, must reside in Australia.
In Hafza v Director-General of Social Security, Wilcox J. was concerned with the test of "usual place of residence" which appeared in s 103(1) of the predecessor to the present Act. Nevertheless, he made useful observations on the test of residence as such. He said - 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.
The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd by Williams J: "The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."
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, even involuntarily 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 with an intention to return to that place and an attitude that that place remains "home".
It is important to observe, firstly, that a person may simultaneously be a resident in more than one place - see the facts of Lysaght and the reference by Williams J. to "a home or homes" - and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence
of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been
maintained."
It is true that s 7(3) of the Act now requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia. They are, however, not expressed to be exhaustive and do not detract from the general observations which His Honour made in relation to the ordinary concept of residence. The definition however, compels a decision maker to pay some regard to the enumerated factors.
The first factor is the nature of the accommodation used by the person in Australia. It appears from the correspondence that the applicant lived with his wife in a substantial house in a suburb of Sydney before moving to Japan in 1984. This is a clear residential connection. The second factor to consider is the nature and extent of the family relationships the applicant has in Australia. So far as appears from the material before me, the applicant has a wife and adult children and great grand children in this country. His family connections, therefore, point to Australian roots. The nature and extent of the applicant's employment, business or financial ties with Australia, have been extensive in the past. The present work with PASS has a particular connection with Australia. Although his activities could not be described as in the nature of business or financial activities, they are certainly activities that are recognised by the Australian Government as having relevance to this country's interests.
The nature and extent of the applicant's assets are not described in detail in the correspondence. However it appears that if the applicant is paying income tax in Australia, he must have investments located here. He certainly has a home, subject to competing claims from his wife. The evidence is that he has no assets in Japan. The frequency and duration of the applicant's travel outside Australia, is not illuminating as he has been outside Australia for the past 8 years, except for one brief period. The final matter to which regard must be paid is the intention of the applicant to remain permanently in Australia. I have Mr. Whybrow’s stated intention, corroborated to some extent by the statements he has made to his associates in PASS. I have no evidence to the contrary and I have stated that I am prepared to accept what appears in the papers, as both parties wish the application to be decided in this way.
The uncontested evidence, therefore, is that Mr Whybrow intends to return to Australia and to live here permanently after his return. The future of PASS has not been referred to in the correspondence, but the nature of its concerns means that it must have a finite future.
In considering whether residence is established, a court considers a man or a woman's whole environment, especially in relation to their spouse or family and not merely a person's physical situation. The importance of a claimant's intentions are emphasised in Re Issa. None of the observations made in those cases is contradicted by the adoption of the new statutory formula for residence.
As is pointed out in the annotations to the Social Security Act 1991 by Sutherland and Johnson in paragraph, the statutory factors are not exhaustive and it is just as appropriate to consider the converse of these factors in relation to the applicant's circumstances outside Australia. Thus, it is appropriate to consider the nature of the accommodation overseas, the family relationships in the overseas country where the person is living, employment business or financial ties overseas and property located overseas. All of these factors produce a negative result so far as Mr Whybrow is concerned. His accommodation is ephemeral. He has no family relationships in Japan. I accept his evidence that his ties with PASS are temporary. He has no property in Japan.
Having regard to all the factors that are relevant, I have come to the conclusion that Mr Whybrow should be considered as resident in Australia at the time he made his application for pension. I am in no position, of course, to determine whether or not he meets the other requirements of the Act, enabling a full pension to be paid to him in Japan. An assessment of his assets may prove negative. The pre-conditions for portability may no be met. I am not, however, called upon to decide these matters. I have simply limited myself to a consideration of the legal nature of his Australian residence.
The decision under review is therefore set aside and the matter is remitted to the respondent with a direction that at the time of the application, the applicant was an Australian resident.
www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/AATA/1992/315.html?stem=0&synonyms=0&query=title(Wybrow%20)