Post by Banjo on Feb 2, 2013 7:53:06 GMT 7
www.austlii.edu.au/au/cases/cth/aat/2013/31.html
Godfrey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 31 (23 January 2013)
Last Updated: 23 January 2013
[2013] AATA 31
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2012/1781
Re
Keith Godfrey
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal
Ms A F Cunningham (Senior Member)
Date
23 January 2013
Place
Hobart
The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
SOCIAL SECURITY – disability support pension – overseas claimant – living in Indonesia with wife and son – not Australian resident – decision under review affirmed
Social Security Act 1991, ss 7, 94, 1212C, 1217, 1218AA(1)(a),(b),(c),(d),(e), 1218AAA(1), 1218AB
Social Security (Administration) Act 1999, s29
Guide to the Social Security Law, 3.1.1.10
Firdousi v Secretary, Department of Families and Community Services (2005) AATA 1304
Re Maha Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
The applicant, Keith Godfrey has been in receipt of disability support pension (DSP) after being injured during an assault which occurred in January 2002. On 2 December 2011 Centrelink made a decision to cancel Mr Godfrey’s DSP on the basis that he was not an Australian resident. Centrelink’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 17 April 2012 and Mr Godfrey seeks a review of that decision by the Administrative Appeals Tribunal.
The hearing was conducted by telephone to Mr Godfrey who is currently living in Indonesia. Mr Godfrey appeared on his own behalf and gave oral evidence. He tendered a written statement prepared by him on 25 May 2012. His wife, Yusnita Krisanti Godfrey (Nita) also gave oral evidence by telephone. Mr Brian Sparkes appeared on behalf of the respondent. The T Documents were tendered in evidence pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.
Following the conclusion of the hearing Mr Godfrey forwarded a number of e-mails and further documentation without the leave of the Tribunal. They did not appear to be relevant to the issue to be determined and were not considered.
The issue for the Tribunal to determine is whether Mr Godfrey was an Australian resident on 2 December 2011.
EVIDENCE
Mr Godfrey was born in the United Kingdom and came to Australia in 1995. He acquired Australian citizenship in 2001and was granted DSP in January 2003.
In 2003 and 2005 Mr Godfrey travelled to Thailand for a holiday. Since 2006 he has travelled extensively outside of Australia. In 2006 Mr Godfrey travelled to the United Kingdom to visit his mother. During his return journey to Australia he holidayed in Bali and Indonesia. In 2006 Mr Godfrey sought and obtained a Visa which enabled him to reside in Indonesia.
Mr Godfrey met his wife, Nita in 2008 while living in Indonesia. They married in July 2010. It was Mr Godfrey’s evidence that since April 2010 he and his wife have been working to obtain a visa for Nita so that they can return to live in Australia.
Since taking up residence in Indonesia, Mr Godfrey has returned to Australia for short periods in order to satisfy the residency requirements for his DSP. Mr Godfrey maintains that he has retained connections with Australia in that he has friends who reside in Australia and continued to pay the rent of $600.00 per month on his flat in Melbourne with funds received from his DSP. When his DSP was cancelled, Mr Godfrey was unable to continue to pay the rent on the flat. Mr Godfrey said that his friend, Andy who previously looked after his flat in Melbourne, retained his artwork when the locks were changed on the flat when Mr Godfrey was unable to continue to pay the rent.
Mr Godfrey did not dispute the record of dates of his departures and arrivals in Australia as obtained from the Immigration Department and outlined at T6, page 77. They are recorded as follows:
Departure from Australia
Arrival in Australia
2 Dec 2011
2 Sep 2011
2 Dec 2011
19 Jun 2011
1 Sep 2011
30 Apr 2011
18 Jun 2011
29 Jan 2011
30 Apr 2011
1 Nov 2010
29 Jan 2011
6 Aug 2010
1 Nov 2010
13 May 2010
5 Aug 2010
18 Feb 2010
13 May 2010
22 Nov 2009
18 Feb 2010
1 Sep 2009
21 Nov 2009
3 Jun 2009
1 Sep 2009
21 Feb 2009
3 Jun 2009
24 Nov 2008
21 Feb 2009
29 Aug 2008
24 Nov 2008
2 Jun 2008
29 Aug 2008
7 Mar 2008
2 Jun 2008
9 Dec 2007
5 Mar 2008
22 Sep 2007
7 Dec 2007
19 Jun 2007
18 Sep 2007
19 Feb 2007
20 May 2007
7 Nov 2006
3 Feb 2007
15 Jun 2005
15 Aug 2005
17 Nov 2004
14 Feb 2005
4 May 2004
8 Nov 2004
8 Nov 2003
1 May 2004
8 Sep 1998
5 May 1999
21 Jul 1998
8 Sep 1998
14 Mar 1995
It was Mr Godfrey’s evidence that he returned to Australia approximately every 13 weeks because the law required him to do so in order to maintain his DSP. He agreed that most of his visits were to Darwin and were of short duration. On some occasions he did not leave the Darwin airport premises. Mr Godfrey agreed that the purpose of the majority of his 30 return visits to Australia during the relevant period was in order to retain portability of his DSP. In 2008 he said that he had spent approximately 2 months in Melbourne with a friend from Argentina and that this was his last visit to Melbourne.
On 28 April 2011 he applied for a Visa for his wife. He said that the process which included medical and police checks, registry fees and translations cost approximately AUS$3,350.00.
Mr and Mrs Godfrey learnt of his wife's pregnancy in October 2011. He claims that they have since been saving to return to Melbourne which he estimates will cost approximately AUS$5,000.00. To date they have only been able to save $1,300.00. Their son was born in May 2012. Mr Godfrey maintained that it has always been his intention to return to live in Australia once he and his wife have saved sufficient funds.
Mrs Godfrey is a qualified teacher and speaks English as a second language. Mr Godfrey believes that she could work in Australia as a teacher but initially would remain at home to look after their son until he was old enough to attend kindergarten.
It was Mrs Godfrey’s evidence that ever since she met Mr Godfrey in 2008 she desired to move to Australia. However on discovering her pregnancy in October 2011, she decided to have her baby in Indonesia. It was Mrs Godfrey’s evidence that she has tendered her resignation at her place of work with JP Morgan and intends to look for other employment which will yield a higher income.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The qualification provisions for DSP are set out in section 94 of the Act. This provision requires that either the person is an Australian resident or is absent from Australia and a determination has been made under subsection 1218AAA(1) or the person is absent from Australia and all of the circumstances described in paragraphs 1218AA(1) (a) (b) (c) (d) and (e) are satisfied. There was no evidence that any determination has been made by the Secretary.
Section 1218AAA(1) requires that (a) a person is receiving DSP, (b) the Secretary is satisfied that the person's impairment is a severe impairment, (c) severe impairment will continue for at least the next five years and (d) that if the person were in Australia the severe impairment would prevent the person from performing any work independently of a program of support.
Section 29 of the Administration Act states as follows:
“(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made”.
Section 7(1) of the Act provides:
“Australian resident has the meaning given by subsection (2)”.
Subsection (2) states:
“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) a special category visa holder who is a protected SCV holder.
Note: For holder and permanent visa see subsection (1)”.
Subsection (3) states:
“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 unlimited portability exceptions as contained in section 1218AAA do not apply as Mr Godfrey is not terminally ill or severely disabled. Nor do Mr Godfrey's circumstances satisfy section 1218AB of the act.
Section 1217 of the Act provides that DSP is portable for any temporary absence of 13 weeks. A temporary absence is defined in section 1212C of the Act as one where the person does not cease to reside in Australia within the meaning of subsection 7(3) of the Act. Thus the issue to be determined is whether Mr Godfrey was an Australian resident when his DSP was cancelled. If I find that Mr Godfrey was not an Australian resident, then he was not eligible for DSP and the decision under review must be affirmed.
DISCUSSION AND FINDINGS
It was contended by Mr Sparkes on behalf of the respondent that the evidence clearly establishes that at the relevant time Mr Godfrey was not an Australian resident and ceased to be an Australian resident some years prior to December 2011.
An Australian resident is defined in subsection 7(2) of the Act as one who resides in Australia and is an Australian citizen. It is acknowledged that Mr Godfrey was an Australian citizen at the relevant time and the question as to whether he was "residing in Australia" is to be determined with regard to the matters set out in subsection 7(3) of the Act.
The evidence was that at the relevant time, that is when Centrelink determined to cancel his DSP, Mr Godfrey was maintaining the rent on a flat in North Melbourne. His lease on the flat was only cancelled when he was no longer able to afford to pay the rent from his DSP. Whilst Mr Godfrey retained the lease on his accommodation in Melbourne, he has not occupied it since 2005. He has rented and lived in a home with his wife in Indonesia for a number of years.
With respect to the other factors listed in subsection 7(3) the evidence was that Mr Godfrey has no family residing in Australia nor does he have any assets, business or financial ties with Australia apart from an Australian bank account to access funds from Indonesian ATMs.
The frequency and duration of his travel outside Australia clearly suggests that his place of residence was not within Australia but was in Indonesia as at December 2011 and perhaps as early as 2005/2006. The evidence was that Mr Godfrey arrived in Australia on 14 February 2005 and departed on 15 June 2005. He returned on 15 August 2005 and departed on 7 November 2006. He returned on 3 February 2007 and departed again on 19 February 2007. He returned on 20 May 2007 and departed again on 19 June 2007. He returned on 18 September 2007 and departed again on 22 September 2007. He returned on 7 December 2007 and departed again on 9 December 2007. He returned on 5 March 2008 and departed again on 7 March 2008. He returned on 2 June 2008 and departed again on 2 June 2008. He returned on 29 August 2008 and departed again on 29 August 2008. He returned on 24 November 2008 and departed again on 24 November 2008. He returned on 21 February 2009 and departed again on 21 February 2009. He returned on 3 June 2009 and departed again on 3 June 2009. He returned on 1 September 2009 and departed again on 1 September 2009. He returned on 21 November 2009 and departed again on 22 November 2009. He returned on 18 February 2010 and departed again on 18 February 2010. He returned on 13 May 2010 and departed again on 13 May 2010. He returned on 5 August 2010 and departed again on 6 August 2010. He returned on 1 November 2010 and departed again on 1 November 2010. He returned on 29 January 2011 and departed again on 29 January 2011. He returned on 30 April 2011 and departed again on 30 April 2011. He returned on 18 June 2011 and departed again on 19 June 2011. He returned on 1 September 2011 and departed again on 2 September 2011. He returned on 2 December 2011 and departed again on 2 December 2011. The 12 arrivals highlighted in bold indicate that Mr Godfrey remained in Australia for less than one day. There are a number of other arrivals which indicate that Mr Godfrey remained in Australia for less than 48 hours. Since 2007 Mr Godfrey has in effect spent a number of hours as opposed to days in Australia.
Despite Mr Godfrey’s expressed intention and desire to return to live in Australia sometime in the future, the question to be decided is whether he was an Australian resident at the time of Centrelink’s decision on 2 December 2011. The evidence referred to above convincingly indicates that he was not. Apart from paying the rent on his flat in Melbourne from his DSP, Mr Godfrey maintained no other connections with Australia during the relevant period.
His Honour Wilcox J in Re Maha Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444 stated at paragraph 13: "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" and at paragraph 14: “Physical presence and intention will coincide for most of the time" but not always. The test, he said "... 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"”.
In Firdousi v Secretary, Department of Families and Community Services (2005) AATA 1304 the Tribunal said at paragraph 27 when referring to the term "residing in Australia” and “temporarily absent from Australia" which is referred to in sections 7(2B), 7(2D) and 7(2E):
"In drawing a distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough."
Mr Sparkes referred the Tribunal to the Guide to the Social Security Law at 3.1.1.10 with respect to Residence Requirements where it is stated:
"When making a determination about whether a person is ‘residing’ - in other words ‘living’ - in Australia, the key point is to establish that Australia is the person’s settled or usual place of abode - i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases, the balance of the person’s ties will weigh more heavily in favour of one country than another.
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 in Australia under a number of different criteria listed in the SS Act section 7(3)”.
It is clear from the drafting of subsection 7(3) that there must be evidence that a person intends to remain in Australia on a permanent basis. At the time of Centrelink's decision on 2 December 2011, Mr Godfrey entered and departed Australia on the same day. He has not since returned to Australia even for a visit. Whilst Mr Godfrey was present in Australia on this day, the evidence is clear that he had no intention to remain permanently in Australia. Despite a stated desire and intention to return to live in Australia at sometime in the future, this has not and may not happen especially if Mr Godfrey and his wife are unable to raise the necessary finances. As the above authorities indicate an intention to live in Australia on a permanent basis is not sufficient of itself to establish residence in Australia.
For all of the above reasons I find that Mr Godfrey was not an Australian resident at the relevant time and accordingly affirm the decision under review.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
...................[Sgd].................................
Administrative Assistant
Dated : 23January 2013
Date(s) of hearing
19 December 2012
Applicant
In person
Solicitors for the Respondent
Mr B Sparkes, Program Litigation and Review Branch
Godfrey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 31 (23 January 2013)
Last Updated: 23 January 2013
[2013] AATA 31
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2012/1781
Re
Keith Godfrey
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal
Ms A F Cunningham (Senior Member)
Date
23 January 2013
Place
Hobart
The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
SOCIAL SECURITY – disability support pension – overseas claimant – living in Indonesia with wife and son – not Australian resident – decision under review affirmed
Social Security Act 1991, ss 7, 94, 1212C, 1217, 1218AA(1)(a),(b),(c),(d),(e), 1218AAA(1), 1218AB
Social Security (Administration) Act 1999, s29
Guide to the Social Security Law, 3.1.1.10
Firdousi v Secretary, Department of Families and Community Services (2005) AATA 1304
Re Maha Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
The applicant, Keith Godfrey has been in receipt of disability support pension (DSP) after being injured during an assault which occurred in January 2002. On 2 December 2011 Centrelink made a decision to cancel Mr Godfrey’s DSP on the basis that he was not an Australian resident. Centrelink’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 17 April 2012 and Mr Godfrey seeks a review of that decision by the Administrative Appeals Tribunal.
The hearing was conducted by telephone to Mr Godfrey who is currently living in Indonesia. Mr Godfrey appeared on his own behalf and gave oral evidence. He tendered a written statement prepared by him on 25 May 2012. His wife, Yusnita Krisanti Godfrey (Nita) also gave oral evidence by telephone. Mr Brian Sparkes appeared on behalf of the respondent. The T Documents were tendered in evidence pursuant to section 35 of the Administrative Appeals Tribunal Act 1975.
Following the conclusion of the hearing Mr Godfrey forwarded a number of e-mails and further documentation without the leave of the Tribunal. They did not appear to be relevant to the issue to be determined and were not considered.
The issue for the Tribunal to determine is whether Mr Godfrey was an Australian resident on 2 December 2011.
EVIDENCE
Mr Godfrey was born in the United Kingdom and came to Australia in 1995. He acquired Australian citizenship in 2001and was granted DSP in January 2003.
In 2003 and 2005 Mr Godfrey travelled to Thailand for a holiday. Since 2006 he has travelled extensively outside of Australia. In 2006 Mr Godfrey travelled to the United Kingdom to visit his mother. During his return journey to Australia he holidayed in Bali and Indonesia. In 2006 Mr Godfrey sought and obtained a Visa which enabled him to reside in Indonesia.
Mr Godfrey met his wife, Nita in 2008 while living in Indonesia. They married in July 2010. It was Mr Godfrey’s evidence that since April 2010 he and his wife have been working to obtain a visa for Nita so that they can return to live in Australia.
Since taking up residence in Indonesia, Mr Godfrey has returned to Australia for short periods in order to satisfy the residency requirements for his DSP. Mr Godfrey maintains that he has retained connections with Australia in that he has friends who reside in Australia and continued to pay the rent of $600.00 per month on his flat in Melbourne with funds received from his DSP. When his DSP was cancelled, Mr Godfrey was unable to continue to pay the rent on the flat. Mr Godfrey said that his friend, Andy who previously looked after his flat in Melbourne, retained his artwork when the locks were changed on the flat when Mr Godfrey was unable to continue to pay the rent.
Mr Godfrey did not dispute the record of dates of his departures and arrivals in Australia as obtained from the Immigration Department and outlined at T6, page 77. They are recorded as follows:
Departure from Australia
Arrival in Australia
2 Dec 2011
2 Sep 2011
2 Dec 2011
19 Jun 2011
1 Sep 2011
30 Apr 2011
18 Jun 2011
29 Jan 2011
30 Apr 2011
1 Nov 2010
29 Jan 2011
6 Aug 2010
1 Nov 2010
13 May 2010
5 Aug 2010
18 Feb 2010
13 May 2010
22 Nov 2009
18 Feb 2010
1 Sep 2009
21 Nov 2009
3 Jun 2009
1 Sep 2009
21 Feb 2009
3 Jun 2009
24 Nov 2008
21 Feb 2009
29 Aug 2008
24 Nov 2008
2 Jun 2008
29 Aug 2008
7 Mar 2008
2 Jun 2008
9 Dec 2007
5 Mar 2008
22 Sep 2007
7 Dec 2007
19 Jun 2007
18 Sep 2007
19 Feb 2007
20 May 2007
7 Nov 2006
3 Feb 2007
15 Jun 2005
15 Aug 2005
17 Nov 2004
14 Feb 2005
4 May 2004
8 Nov 2004
8 Nov 2003
1 May 2004
8 Sep 1998
5 May 1999
21 Jul 1998
8 Sep 1998
14 Mar 1995
It was Mr Godfrey’s evidence that he returned to Australia approximately every 13 weeks because the law required him to do so in order to maintain his DSP. He agreed that most of his visits were to Darwin and were of short duration. On some occasions he did not leave the Darwin airport premises. Mr Godfrey agreed that the purpose of the majority of his 30 return visits to Australia during the relevant period was in order to retain portability of his DSP. In 2008 he said that he had spent approximately 2 months in Melbourne with a friend from Argentina and that this was his last visit to Melbourne.
On 28 April 2011 he applied for a Visa for his wife. He said that the process which included medical and police checks, registry fees and translations cost approximately AUS$3,350.00.
Mr and Mrs Godfrey learnt of his wife's pregnancy in October 2011. He claims that they have since been saving to return to Melbourne which he estimates will cost approximately AUS$5,000.00. To date they have only been able to save $1,300.00. Their son was born in May 2012. Mr Godfrey maintained that it has always been his intention to return to live in Australia once he and his wife have saved sufficient funds.
Mrs Godfrey is a qualified teacher and speaks English as a second language. Mr Godfrey believes that she could work in Australia as a teacher but initially would remain at home to look after their son until he was old enough to attend kindergarten.
It was Mrs Godfrey’s evidence that ever since she met Mr Godfrey in 2008 she desired to move to Australia. However on discovering her pregnancy in October 2011, she decided to have her baby in Indonesia. It was Mrs Godfrey’s evidence that she has tendered her resignation at her place of work with JP Morgan and intends to look for other employment which will yield a higher income.
LEGISLATION
The relevant law is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
The qualification provisions for DSP are set out in section 94 of the Act. This provision requires that either the person is an Australian resident or is absent from Australia and a determination has been made under subsection 1218AAA(1) or the person is absent from Australia and all of the circumstances described in paragraphs 1218AA(1) (a) (b) (c) (d) and (e) are satisfied. There was no evidence that any determination has been made by the Secretary.
Section 1218AAA(1) requires that (a) a person is receiving DSP, (b) the Secretary is satisfied that the person's impairment is a severe impairment, (c) severe impairment will continue for at least the next five years and (d) that if the person were in Australia the severe impairment would prevent the person from performing any work independently of a program of support.
Section 29 of the Administration Act states as follows:
“(1) Subject to sections 30, 30A, 31, 31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) Subject to sections 30, 30A, 31, 31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made”.
Section 7(1) of the Act provides:
“Australian resident has the meaning given by subsection (2)”.
Subsection (2) states:
“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) a special category visa holder who is a protected SCV holder.
Note: For holder and permanent visa see subsection (1)”.
Subsection (3) states:
“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 unlimited portability exceptions as contained in section 1218AAA do not apply as Mr Godfrey is not terminally ill or severely disabled. Nor do Mr Godfrey's circumstances satisfy section 1218AB of the act.
Section 1217 of the Act provides that DSP is portable for any temporary absence of 13 weeks. A temporary absence is defined in section 1212C of the Act as one where the person does not cease to reside in Australia within the meaning of subsection 7(3) of the Act. Thus the issue to be determined is whether Mr Godfrey was an Australian resident when his DSP was cancelled. If I find that Mr Godfrey was not an Australian resident, then he was not eligible for DSP and the decision under review must be affirmed.
DISCUSSION AND FINDINGS
It was contended by Mr Sparkes on behalf of the respondent that the evidence clearly establishes that at the relevant time Mr Godfrey was not an Australian resident and ceased to be an Australian resident some years prior to December 2011.
An Australian resident is defined in subsection 7(2) of the Act as one who resides in Australia and is an Australian citizen. It is acknowledged that Mr Godfrey was an Australian citizen at the relevant time and the question as to whether he was "residing in Australia" is to be determined with regard to the matters set out in subsection 7(3) of the Act.
The evidence was that at the relevant time, that is when Centrelink determined to cancel his DSP, Mr Godfrey was maintaining the rent on a flat in North Melbourne. His lease on the flat was only cancelled when he was no longer able to afford to pay the rent from his DSP. Whilst Mr Godfrey retained the lease on his accommodation in Melbourne, he has not occupied it since 2005. He has rented and lived in a home with his wife in Indonesia for a number of years.
With respect to the other factors listed in subsection 7(3) the evidence was that Mr Godfrey has no family residing in Australia nor does he have any assets, business or financial ties with Australia apart from an Australian bank account to access funds from Indonesian ATMs.
The frequency and duration of his travel outside Australia clearly suggests that his place of residence was not within Australia but was in Indonesia as at December 2011 and perhaps as early as 2005/2006. The evidence was that Mr Godfrey arrived in Australia on 14 February 2005 and departed on 15 June 2005. He returned on 15 August 2005 and departed on 7 November 2006. He returned on 3 February 2007 and departed again on 19 February 2007. He returned on 20 May 2007 and departed again on 19 June 2007. He returned on 18 September 2007 and departed again on 22 September 2007. He returned on 7 December 2007 and departed again on 9 December 2007. He returned on 5 March 2008 and departed again on 7 March 2008. He returned on 2 June 2008 and departed again on 2 June 2008. He returned on 29 August 2008 and departed again on 29 August 2008. He returned on 24 November 2008 and departed again on 24 November 2008. He returned on 21 February 2009 and departed again on 21 February 2009. He returned on 3 June 2009 and departed again on 3 June 2009. He returned on 1 September 2009 and departed again on 1 September 2009. He returned on 21 November 2009 and departed again on 22 November 2009. He returned on 18 February 2010 and departed again on 18 February 2010. He returned on 13 May 2010 and departed again on 13 May 2010. He returned on 5 August 2010 and departed again on 6 August 2010. He returned on 1 November 2010 and departed again on 1 November 2010. He returned on 29 January 2011 and departed again on 29 January 2011. He returned on 30 April 2011 and departed again on 30 April 2011. He returned on 18 June 2011 and departed again on 19 June 2011. He returned on 1 September 2011 and departed again on 2 September 2011. He returned on 2 December 2011 and departed again on 2 December 2011. The 12 arrivals highlighted in bold indicate that Mr Godfrey remained in Australia for less than one day. There are a number of other arrivals which indicate that Mr Godfrey remained in Australia for less than 48 hours. Since 2007 Mr Godfrey has in effect spent a number of hours as opposed to days in Australia.
Despite Mr Godfrey’s expressed intention and desire to return to live in Australia sometime in the future, the question to be decided is whether he was an Australian resident at the time of Centrelink’s decision on 2 December 2011. The evidence referred to above convincingly indicates that he was not. Apart from paying the rent on his flat in Melbourne from his DSP, Mr Godfrey maintained no other connections with Australia during the relevant period.
His Honour Wilcox J in Re Maha Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444 stated at paragraph 13: "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" and at paragraph 14: “Physical presence and intention will coincide for most of the time" but not always. The test, he said "... 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"”.
In Firdousi v Secretary, Department of Families and Community Services (2005) AATA 1304 the Tribunal said at paragraph 27 when referring to the term "residing in Australia” and “temporarily absent from Australia" which is referred to in sections 7(2B), 7(2D) and 7(2E):
"In drawing a distinction, the provisions suggest that mere physical presence and mere intention to be in Australia even for what could be a substantial period may not be enough."
Mr Sparkes referred the Tribunal to the Guide to the Social Security Law at 3.1.1.10 with respect to Residence Requirements where it is stated:
"When making a determination about whether a person is ‘residing’ - in other words ‘living’ - in Australia, the key point is to establish that Australia is the person’s settled or usual place of abode - i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases, the balance of the person’s ties will weigh more heavily in favour of one country than another.
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 in Australia under a number of different criteria listed in the SS Act section 7(3)”.
It is clear from the drafting of subsection 7(3) that there must be evidence that a person intends to remain in Australia on a permanent basis. At the time of Centrelink's decision on 2 December 2011, Mr Godfrey entered and departed Australia on the same day. He has not since returned to Australia even for a visit. Whilst Mr Godfrey was present in Australia on this day, the evidence is clear that he had no intention to remain permanently in Australia. Despite a stated desire and intention to return to live in Australia at sometime in the future, this has not and may not happen especially if Mr Godfrey and his wife are unable to raise the necessary finances. As the above authorities indicate an intention to live in Australia on a permanent basis is not sufficient of itself to establish residence in Australia.
For all of the above reasons I find that Mr Godfrey was not an Australian resident at the relevant time and accordingly affirm the decision under review.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
...................[Sgd].................................
Administrative Assistant
Dated : 23January 2013
Date(s) of hearing
19 December 2012
Applicant
In person
Solicitors for the Respondent
Mr B Sparkes, Program Litigation and Review Branch
