Editors --- "Portability: whether resident in Australia" [2009] SocSecRpr 35; (2009) 11(3) Social Security Reporter, Article 13

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Portability: whether resident in Australia

SECRETARY TO THE DFHCSIA and CURCIC and MISKAR

(2009/186)

Decided: 19th March 2009 by R. Perton

Background

Both Curcic and his partner Miskar had migrated to Australia from Yugoslavia, the former in 1982 and Miskar in around 1975. They commenced living together in about 1994 and had a 10 year old son. They were Australian citizens. They had been receiving disability support pension (DSP) since 5 February 1998 and 21 April 2000 respectively. They travelled overseas for about two months in 2002 and then departed Australia again on 5 November 2003. At this time Centrelink informed them that they were entitled to receive DSP indefinitely while living overseas. They returned to Australia on 25 January 2005. On 22 November 2005 Centrelink determined that they were resident in Australia. The impact of this decision was that if they returned overseas to live, their DSP payments would only continue for 13 weeks.

They stated that it was not their intention to reside in Australia permanently again. Miskar wanted to return to Serbia and Curcic wanted to live where she preferred. As at November 2005 they considered themselves temporarily in Australia. On 15 October 2007 they sought review by an authorised review officer (ARO) of the decision concerning their residency. On 9 November 2007, the ARO affirmed the decision. On 29 May 2008 the Social Security Appeals Tribunal (SSAT) set aside the decision under review deciding that they were not Australian residents and that their entitlements to DSP should be considered on that basis. On 1 July 2008, the Secretary lodged an application for review of this decision.

The issue

The issue was whether or not Curcic and Miskar were Australian residents and were therefore entitled only to limited portability of their DSP.

The Legislation

Clause 135 of Schedule 1A to the Social Security Act 1991 (Cth) (‘the Act’) sets out that a DSP recipient may be paid DSP for an indefinite period while living overseas if that person was absent from Australia on 1 July 2004. If the person returns to Australia after 1 July 2004 on a temporary basis and then goes back overseas, then they can maintain the DSP payments indefinitely. If the person resumes residence of Australia after 1 July 2004 and then later returns overseas, they are subject to the provisions in s.1217 of the Act which sets a maximum portability period. For DSP, the portability period is 13 weeks. Section 1218AA allows for an extended portability period for DSP in very limited circumstances which did not apply in this case.

Section 7(3) of the Act sets out a number of factors to be taken into account in determining whether a person is residing in Australia.

(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.

Consideration

The Tribunal heard evidence from Curcic and considered all the documentary evidence from the Centrelink file and then considered the evidence under the relevant headings in s.7(3) of the Act.

The Tribunal noted that neither Curcic nor Miskar worked in Australia or owned a business. After Centrelink made the residency decision Curcic claimed carer allowance (CA) and family tax benefit (FTB). But the Tribunal accepted his evidence that he only did this because of the residency decision. He knew that he might have to pay back those benefits if the Tribunal found he was not resident in Australia.

The Tribunal accepted that when they left Australia in November 2003, it was their intention to live in Serbia. When they returned in January 2005 they intended to return to Australia temporarily for an unknown period.

The Tribunal noted that before returning to Australia in January 2005, Curcic had contacted Centrelink three times to ask what the effect of returning to Australia temporarily would be on his and Miskar’s DSP payments. During the first call he was told that he could stay in Australia for a holiday but that if he returned permanently to Australia and then left again, he would only receive DSP for 13 weeks. During the second call Curcic informed Centrelink that he and his family were returning to Australia on a temporary basis. He also asked if his son could attend school while they were here and reinforced that their visit was temporary. During the third call he was advised that if his son went to school in Australia for six to 12 months, this would not affect his pension. He was also advised that he would not be entitled to a concession card or rent assistance.

The Secretary submitted that before and after their return to Australia on 25 January 2005, Curcic and Miskar had engaged in a course of conduct that suggested that they intended to resume permanent residence in Australia:

Curcic and Miskar purchased a property in Doveton in which they were residing on 7 November 2005. They also purchased an investment property in another street in Doveton for which they obtained an investment loan. They purchased a car. They sold property in Serbia (in November 2004).

Curcic’s response on his boarding pass when returning to Australia indicated an intention to resume residence in Australia. He ticked yes to a question as to whether he intended to live in Australia for the next 12 months and described himself as a resident returning to Australia rather than a visitor or temporary entrant.

The Tribunal did not accept the submission that Curcic had expressly stated that he would only stay in Australia for six months and had exceeded that period of time thereby changing his intention. Curcic told the Tribunal that Centrelink told him that he could stay in Australia for up to 3.5 years and still be considered as temporarily in Australia. The Tribunal accepted his explanation as to why they had bought and sold property and accepted that while in many cases, such property transactions would provide objective evidence of an intention to reside in Australia, because of the particular facts and timing of the purchases in this matter, this factor was given less weight than it might in other cases. The Tribunal accepted that the purchase of the house in November 2005 arose in the context of lower DSP payments following the residency decision and as a result of cash assets from property sales in Serbia and Australia.

The Tribunal accepted Curcic’s explanation that it was Centrelink’s decision that had caused them to stay in Australia longer than originally intended. As neither of them was able to work they would not have income for more than three months if they returned to Serbia. The Tribunal was satisfied that Curcic’s intention was to live wherever his partner wanted to, which was Serbia. The Tribunal noted that many of the actions which could be viewed as confirming that they saw themselves as resident in Australia were the result of the residency decision.

Decision

The Tribunal affirmed the decision under review.

[C.E.]