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Social Security Reporter |
Age Pension: whether 10 years qualifying Australian residence
Decided: 21st June 2006 by Branson J.
On 4 February 2005 Baccon lodged a claim for age pension. She was qualified only if she had ‘10 years qualifying Australian residence’ (s.43(1)(a) of the Social Security Act 1991 (‘the Act’)). To have 10 years qualifying Australian residence it was necessary for Baccon to have been an Australian resident for a continuous period of not less than 10 years or for periods that aggregate more than 10 years with one of those periods being five years or more (s.7(5) of the Act).
Baccon first came to Australia in 1988. She stayed for approximately two years. After that time she spent a total of 19 weeks in Australia, the maximum being four weeks in 1997.
Centrelink rejected Baccon’s claim for age pension. The AAT reviewed the matter on the papers and determined that Baccon was entitled to age pension on the basis that she had been an Australian resident for a continuous period of not less than 10 years. The DFaCSIA appealed the decision.
A person who has reached age pension age is qualified for an age pension if they satisfy any of the criteria in s.43(1) and (1A) of the Act. The criteria which the AAT found Baccon satisfied was ‘10 years qualifying Australian residence’ (s.43(1)(a) and s.7(5) of the Act).
In determining whether a person has been an ‘Australian resident’, s.7(3) of the Act requires the decision-maker to have regard to the following factors:
(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 Court discussed the concepts of ‘residence’ and ‘permanently’. Concerning ‘residence’ the Court said:
As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-general of Social Security [1985] FCA 164; (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family & Community Services [2004] FCA 789; (2004) 138 FCR 70 at 36).
Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place to which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450).
The Court noted that ‘permanently’ does not mean forever, and it does not mean without ever leaving Australia. It requires the person to have an enduring commitment to Australia as home (Taslim).
The DFaCSIA argued that if a person becomes a resident of another country, this is an indication that his or her ‘continuous period’ of Australian residence may have ended or been interrupted. The Court accepted this submission, but added that it may be arguable that a person cannot be an Australian resident and a resident of another country at the same time.
The DFaCSIA submitted that the AAT did not have regard to the factors in s.7(3) of the Act, either at all, or in the way required by the Act, in determining whether Baccon had 10 years qualifying residence.
The AAT noted that in the early years Baccon lived in Coonamble, and then owned a house in Coonamble until 1994. The Tribunal then referred to an assertion made by Mr Baccon in a letter that he and his wife had lived with Mr Baccon’s brother at two different addresses and that although they did not own their own property they ‘have the right to use free for life’. The Tribunal’s reasons stated that ‘there is no evidence on the papers to suggest that the homes in Australia did not, and do not, exist, and are not used from time to time’.
The Court held that whilst it was relevant for the AAT to determine whether Baccon had a home in Australia which she used from time to time, it was also required to determine what light, if any, the nature of that accommodation threw on whether Baccon had 10 years qualifying Australian residence.
In every case it is for the decision-maker to work out what, if anything, the nature of the accommodation used by the person in Australia during a particular period reveals about whether the person was residing in Australia during that period. However, the decision-maker must consider this question. In determining whether a person had 10 years qualifying Australian residence, the decision-maker must have regard to the nature of the accommodation used by the person in Australia over the whole of the period on which reliance is placed. The nature of that accommodation, which could have varied from time to time, might suggest that the person was residing in Australia for none or some or all of that period. (Reasons, para.24)
The Court held that the AAT failed to have regard to the nature of the accommodation used by Baccon in the sense required by s.7(3). Further, the AAT failed to consider the nature of the accommodation used by Baccon in Australia throughout the relevant period.
The AAT noted that Baccon had a daughter in Queensland but no other family members in Australia. The Court commented that there did not appear to be any material before the AAT which disclosed how long Baccon’s daughter had lived in Australia, or if she lived there when Baccon had been an Australian resident.
Again the Court found that the AAT’s reasons did not suggest that it gave consideration to the relevance of the limited nature and extent of Baccon’s family relationships in Australia for the purpose of identifying what light, if any, they threw on whether she had 10 years qualifying Australian residence.
The Court held that whilst the AAT noted there was no evidence of employment or business ties with Australia, and sparse financial ties, it again failed to consider these factors for the purpose of determining whether she had 10 years qualifying Australian residence.
The AAT noted that Baccon had no assets, except for household contents with a market-value of $5,000, which the Court inferred were located in Thailand.
The Court held that the AAT’s decision did not disclose that it gave consideration to the nature and extent of Baccon’s assets in Australia since she first came to Australia in 1988.
The AAT noted that since 1990 Baccon had lived outside Australia except for periods of two or four weeks which occurred about every 18 months. The Court found that the AAT’s decision did not suggest that it gave consideration to the relevance of Baccon’s living pattern to its determination of whether she had 10 years qualifying Australian residence. In particular, it did not consider the fact that since 1990 Baccon appeared to have travelled to Australia, rather than travelling from an Australian base.
The AAT stated that the fact Baccon’s husband received an Australian age pension was relevant in forming an opinion as to whether Baccon intended to reside permanently in Australia, however the Court held that the AAT did not indicate how it was relevant. The Court noted that having qualified for, and been granted, an age pension, Mr Baccon was not required to reside in Australia for the pension to be payable.
The Court concluded that by attaching weight to the fact that Mr Baccon received an age pension, the AAT took into account a factor that was irrelevant to determining whether Baccon had 10 years qualifying Australian residence.
The Court determined that the AAT’s decision was affected by legal error. In determining that Baccon had resided in Australia for the necessary period the AAT (i) failed to have regard to the requirements of s. 7(3) of the Act and (ii) took into account an irrelevant consideration. The Court set aside the AAT decision and remitted the matter to the AAT to be determined according to law.
[J.F.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2006/39.html