Armstrong and Secretary, Department of Social Services (Social services second review)

Armstrong and Secretary, Department of Social Services (Social services second review) [2017] AATA 1545 (18 August 2017)
Division:GENERAL DIVISION
File Number(s):2017/0080
Re:Gary Armstrong
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Senior Member Bill Stefaniak AM, RFD
Date:18 August 2017
Date of written reasons: 19 September 2017
Place:Canberra

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
...............................................................
Senior Member Bill Stefaniak AM, RFD
CATCHWORDS
SOCIAL SECURITY – suspension of payment – whether ceased to be an Australian resident – whether payment portable in circumstances of short residence – resuming residence in Australia – incorrect advice – Scheme for Compensation for Detriment caused by Defective Administration – decision under review affirmed
LEGISLATION
Social Security Act 1991, ss 7, 1220
Social Security (Administration) Act 1999, s 80
CASES
Re David and SDFaCS (2004) 80 ALD 792
SECONDARY MATERIALS
Guide to Social Security Law
WRITTEN REASONS FOR ORAL DECISION
Senior Member Bill Stefaniak AM, RFD
19 September 2017

The decision under review is a decision made by the Social Services and Child Support Division (AAT1) on 29 November 2016 affirming a decision made by an Authorised Review Officer (ARO) on 3 September 2016 that the Applicant was a returning resident for the purposes of s 1220 of the Social Security Act 1991 (the Act) as amended, and that his Age Pension was correctly suspended – and I stress, suspended, not cancelled.
The Secretary also noted that the Age Pension was cancelled on 11 August 2016. The issue for determination is whether the payment of the Applicant’s Age Pension should have been suspended on 11 August 2016 under the power conferred by s 1220 of the Act. The Secretary contends that it is necessary for the Tribunal to determine whether or not s 1220 is enlivened and I need to consider whether the Applicant ceased to be an Australian resident during his absence from Australia for the period 21 January 2014 to 31 May 2016 and if so, whether he had ‘again become’, from 3 June 2016, the date of claim, an Australian resident for the purposes of s 1220(1)(c) of the Act.
It has also been put to me by the representative from the Respondent that even if I found him to be an Australian resident at some time during 21 January 2014 to 31 May 2016, that may well have no effect on any decision I might make as a result of the law being somewhat strict and inflexible in relation to these particular matters.
If I found that he wasn’t an Australian resident as at 3 June 2016, the effect of that would be he would have to pay a back payment for what he has got to date. I say at this stage that I am certainly satisfied, as was the ARO, in June 2016 for the purposes of the exercise, that he was an Australian resident and he was rightfully given the Age Pension, and I certainly accept that decision. Some of the other points are perhaps a little bit more problematic.
Mr Armstrong was born in Australia on 3 March 1950 and he has been a resident. This is undisputed because he didn’t live anywhere else from then up until about 2008. He has certainly spent a lot of time in Vietnam from May 2009 until 31 May 2016. He went back to Vietnam in August last year and came back to Australia, I believe it was in April of this year, and has been here since, and has had to reapply for an Age Pension which he got in April 2017.
At paragraph 35 of the Secretary’s Statement of Issues, Facts and Contentions, the Respondent lists the number of days from 2008 onwards when the Applicant was overseas and the number of days he was in Australia. The Applicant accepted this as being accurate.
In 2008 he was absent for 50 days and present for 316 days in Australia. In 2009 he was outside Australia for 246 days, present for 119. In 2010, 328 days outside Australia, 37 days in Australia. In 2011, 351 days outside Australia, 14 days in Australia. In 2012, 351 days outside Australia, 14 in Australia. In 2013, he was overseas from 1 January 2013 to 18 September 2013 and that is 261 days. From 13 September to 31 December 2013 he was back in Australia. He was back here for health reasons and during that time he obtained, on 3 October 2013, a Disability Support Pension (DSP). I am not sure exactly what for or what the various points awarded were, that isn’t really relevant in terms of the scope of what I am looking at, but he received a DSP.
In 2014, for the first 21 days of that year, he was in Australia and on 21 January 2014, until the end of December, he was back in Vietnam, that is, for 345 days. He spent all of 2015 in Vietnam, that is, 365 days, and in 2016, the first 151 days, which takes us up to 30 May 2016, and he was back in Australia for 72 days from 31 May 2016 and until 10 August 2016, and then back in Vietnam from 11 August 2016 through to 31 December 2016.
He then arrived back in Australia, on 11 April 2017. Before that he was in Vietnam.
The Applicant had been a hard working Australian right up until about 2009. At that time he received a redundancy payment of approximately $52,000 for 12 years of work. He was and remains the part-owner in a house with his then partner at Chisholm. He has children and grandchildren.
Due to personal reasons at the time, he decided to go and work in Vietnam at Vung Tau. He was not a returned serviceman but he had done aid work there before and had worked for an agency before, not long before he retired and that is why he went back.
Since 2009, he certainly has been part of the community there, renting various places and at certain times, he has had a lease for a year or so on a place.
He makes no bones about the fact that it is a lot cheaper in Vietnam, the climate is better and it would be a lot harder for him to live in Australia. At present he has nothing left of the $52,000, but has some other assets in Canberra in the shed of the property he and his ex -partner still own and now reside in at Chisholm. It seems an amicable arrangement and in his evidence before the Tribunal which I will go into shortly, he listed his circumstances in relation to his various ties with Australia.
The rules in relation to portability at the time, for a DSP, were that a person could go overseas for six weeks and would then have to return to Australia otherwise his or her DSP would be suspended and he or she would then be able to have it reinstated (with effect from the date of return) upon coming back to Australia.
I am told the rules have changed. I am well aware from other cases before this Tribunal, that it is now four weeks, and the Tribunal deals with a number of cases where people overstay their overseas trip. Often people go for family reasons and something goes wrong and they overstay by a few weeks and they are penalised and quite often they will seek redress through the Tribunal and there are certain rules in relation to this (which are not relevant in this case) namely – exceptional circumstances. It may be that these rules might have been relevant had the decision to cancel the Applicant’s DSP in 2014 been appealed by the Applicant, which it wasn’t. Certainly there is a lot of case law and precedent in relation to people overstaying the allowed four weeks – or in this case, six weeks for a DSP.
I am satisfied that it appears not to be an issue that the Applicant may have been able to qualify for indefinite portability. He has made no application to the Department. It is a very severe test. He may well not have qualified. At any rate, it has not been raised and I can only conclude that is not something I need consider.
So the Applicant was stuck with the six weeks rule here. I am also satisfied and there is quite voluminous correspondence and notes in his application and indeed, the Departmental notes before the Tribunal that details the various conversations that were had, dating back from February 2014 right through to the decision on 29 May to cancel his DSP and even a couple of days after that.
Suffice to say I can fully understand the position he found himself to be in and the confusion that he felt. He told the Tribunal that initially when he was advised in February 2014 of the six weeks rule, he fully intended to come back to Australia if that was what he had to do.
He then appears to have got confused by receiving a document on 7 March 2014 which seemed to contradict, in his mind at least, a document on 5 March 2014 that he got which indicated his DSP would cease (if he did not return). A closer look at the 7 March 2014 document would indicate that what he received was merely a statement of a fortnightly payment but that to him did seem to indicate that he was now going to be paid, and it was dated after the time he had received the 5 March notification that said he was not. It led him to erroneously believe that his concerns had been, in fact, taken into account by the Department.
He was told a number of things by officers of the Department including that there were computer malfunctions and it certainly appears that the various officers he dealt with were not as efficient or accurate in terms of the information they gave him as one would have hoped them to be.
All of this culminated with the decision by the ARO on 29 May 2014 to suspend his DSP which it seems was subsequently cancelled as a result.
At this stage the Applicant was not doing terribly well financially and was having trouble basically surviving. He would do work with friends so that he at least could get board and food, and was borrowing money. In fact he has indicated he still owes about $35,000 all up as a result of borrowing money from 2014 to 2016 to survive.
I am certainly satisfied, having no reason to doubt his evidence given under oath before the Tribunal that it became very difficult for him to even get back to Australia from this time onwards. It was only after he was able to borrow money from his mother, who told him that he could still apply for an Age Pension that he came back and was subsequently successful as of 3 May 2016 in getting an Age Pension.
Having come back and got his Age Pension he then made further enquiries from the Department. He indicated that the people he spoke to were quite helpful and he spoke to an officer at Woden in the Australian Capital Territory who indicated that he thought he would be right to go back to Vietnam but he really should check with – I think he called it, the ‘international section’. He spoke to a person in that section and was told (on three occasions) that he would suffer perhaps a minor loss of some pension such as housing and electricity allowance but would be able to have portability of his pension. This was certainly not the correct advice.
He unfortunately did not get that in writing (although even if he did it is doubtful if that would have helped him, but it certainly may have been of help with any compensation claim he might make). Had he got it in writing, one would assume that the officer concerned would have had to have checked with a superior to authorise that assurance, and hopefully the correct situation would have been told to him.
The Applicant indicated to the Tribunal that clearly he would not have gone back to Vietnam except perhaps to tidy up his affairs if he was allowed, if he was going to lose his pension again.
He went back in the belief that he was going to continue to receive his Age Pension. This was not so, and, as I indicated, after the passage of time and after obtaining further loans, he was able to return to Australia again and pick up an Age Pension as at April 2017.
Unfortunately, I am not looking at that decision by the Respondent (and a number of issues might flow from that in April 2017). I am looking at the decision in November 2016 and not what occurred after that. Nor, unfortunately, am I looking at the decision to cancel his DSP in 2014.
The law in relation to residence requirements is to be found at s 7(3) of the Act and it lists the factors that have to be taken into account when deciding 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.
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 a 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 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 to Australia, and there are a number of different criteria, and that is the criteria which is listed in s 7(3) of the Act.
Section 1220(1) of the Act provides details in relation to portability as follows:
1220 No portability where claim based on short residence
(1)       If:
           (a)       a person is an Australian resident; and
           (b)       the person ceases to be an Australian resident; and
           (c)       the person again becomes an Australian resident; and
(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

(i)        an Age Pension; or
(ii)       a disability support pension; or
(iii)      a bereavement allowance; and
(e)       after the pension or allowance is granted, or the person is transferred to the          pension or allowance, as the case may be, but before the end of that    period of 2 years, the person leaves Australia; and
(f) financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;
a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
Section 80 of the Social Security (Administration) Act 1999 (the Administration Act) has also been referred to in relation to cancellation and suspension determinations. Section 80 states:
(1)      If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)      who is not, or was not, qualified for the payment; or
(b)       to whom the payment is not, or was not, payable;   the Secretary is to determine that the payment is to be cancelled or     suspended.
The Act goes on to make other observations which may or may not be necessarily relevant in this case. This case has got nothing to do with Parenting Payments or Youth Allowance, et cetera, for example.
Section 1220(1) consists of some of the relevant considerations that have to be looked at in this case.
The Department clearly has deemed the Applicant in 2013 to be a resident of Australia because on 3 October 2013 he gets a DSP.
The questions he was asked, and we had a fair bit of evidence in relation to this on 29 May 2014, very much related to residency and the Departmental officer there deemed him not to be a resident, which led to the cancellation of his DSP. As indicated earlier he has not sought redress to that decision. This is perhaps unfortunate but in all the circumstances I think, probably quite understandable, given the amount of issues and the difficulties with correspondence that he had in February through to the end of May 2014.
The Department obviously, on 3 June 2016 (I said 3 June but it made its decision on 6 June 2016 with effect 3 June 2016), felt that he was, for the purposes of applying for the Age Pension, an Australian resident at that date, and I certainly do not quibble in any way with that decision, as I have already indicated.
One of the questions is his status as an Australian resident. Certain things may potentially flow from that and perhaps are relevant to him in relation to what other options are indeed available to him. The Tribunal considered this issue.
Firstly, and very importantly, ‘the frequency and duration of a person’s travel outside Australia’ is indeed a very important factor because whilst no single factor can be taken as conclusive, some factors provide greater indication than others. Most weight is normally given to the time spent in Australia, and it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria.
The first criterion is the ‘frequency and duration of a person’s travel outside Australia’. The Guide to Social Security Law (the Guide) says that a person does not need to continuously be present in a country in order to reside in it. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away. It is necessary to find the reason for being overseas, and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside here. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia. The absence must be for a short duration. There must be a purpose for the absence, and there must be a proposed end date for the absence.
Examples are given; one example is not necessarily too far off the mark:
Derek is single, aged 56, and has spent the last 2 years in Thailand as he prefers the climate and cost of living. He initially went for a short holiday and when he came back he rented out his furnished property in Australia on an indefinite basis and took on a long term lease of an apartment in Thailand. He is not employed. He keeps in contact with extended family by phone and has a return trip booked to Australia for medical treatment. He has to renew his Thai visa every year and does not consider himself to be a resident of Thailand because he is not eligible for a permanent visa there. He plans to return to Australia one day and for this reason has not sold his house.
That is given as an example based on the duration of his absence and the fact that his plans to return to live in Australia are vague. At this point in time he is considered to be residing in Thailand.
The other interesting example is a couple who I would hardly expect to qualify for any social security:
John and Belinda are both retired and have rented out their home in Australia for 2 years while they are in Europe. Their vehicle is on loan to John's brother in Australia who is looking after their furniture. They have purchased a townhouse in Perugia in Italy for their daughter who will be studying at a nearby university for 4 years and they see it as a good investment. They plan to have an extended holiday in Europe after their daughter has settled into her first year of study. They have a firm plan to return to Australia at the end of the 2 years as John expects to be doing contract work for his previous employer. Due to the fact that their plans in Europe are for a defined period and a short term purpose and there is other supporting evidence, they are considered to still be residing in Australia.

I find that an interesting example and I certainly would imagine they probably would not qualify for benefits. I assume it is given because there is a defined period they will be overseas and there is a definite time period when they are going to return and a reason to actually return.
I would have to say in relation to that, in the Applicant’s case, he makes absolutely no bones about why he went to Vietnam, how he has found it over there, some of the issues he has had, some of the struggles he has had, especially in the last couple of years because he did not have any money and what he hopes to achieve over there.
I must say it appears to me his intentions are indeed very honourable and laudatory in that he is helping the people of Vietnam by doing various jobs on projects around the Vung Tau area, and helping other expats who are helping him it seems too, in terms of him just surviving in these difficult times for him over the last two or so years. He is to be commended, for what he is doing.
The law, however, does not give discretion to enable the Tribunal to reward effectively what amounts to very laudable and commendable activities, because it has to cover all circumstances, but is somewhat more black and white in its application rather than shades of grey.
The Applicant has indicated that he certainly prefers to live there, and certainly, for the periods 2010, 2011, and 2013 and up until he comes back to Australia on 13 September 2013; in my view, to all intents and purposes, and certainly in terms of travel outside Australia, he is very much a resident of Vietnam.
After that period however, he comes back, he is accepted by the Department, as having come back to Australia as an Australian resident, and he gets his DSP; I cannot overlook that fact. And then we have this kerfuffle from February 2014 and the ensuing confusion which leads to his DSP being cancelled in May 2014.
So it is an interesting period that he separately lists here because he has been accepted in October 2013 as a resident of Australia, but certainly I would have to say for the period I have mentioned earlier, (i.e. up to September 2013) and from what he said himself, is a very strong indication he is more of a resident of Vietnam than Australia.
The ‘nature of the accommodation used by the person in Australia’ is an important criterion to consider. The Applicant has always owned his home in Chisholm; and has done so for many years before he even went to Vietnam. In fact he has been paying the mortgage up until 2013 when he simply could not afford to pay it anymore. He has his longstanding partner who is still there. Whilst he does not have children by her she is a very good stepmother and step-grandmother it seems, and they have a very amicable relationship. They separated, which was one of the catalysts to him going off to Vietnam it seems in 2009.
She looked after him when he came back ill; she looks after him now; I could perhaps see the Department wondering whether in fact this is actually such a situation where they both may qualify for a partner pension or something similar. I am not going to go into that because clearly the Department has accepted that he is entitled to a single pension, but for whatever reason I certainly note it is a very amicable arrangement, no impediment is put to stop him going back to his home, they both effectively own it, and they have an arrangement in place as to what is to happen when they die. It is very much a permanent structure and fixture and he stays there when he comes to Australia. It is a lot more than a lot of people have in terms of accommodation used by the person in Australia.
I note the Applicant told the Tribunal that he does attempt at times to stay with relatives when he has come back, but even when he does, he still always uses the shed at the Chisholm property and it seems he still has some goods and chattels stored there on a permanent basis.
The ‘nature of the accommodation used by the person in Australia’ indicates in that criterion that people who spend considerable time overseas will need to provide evidence they are still maintaining strong connections to Australia and one consideration is the nature of the accommodation they use. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country, and that they have made arrangements for an extended period of accommodation in Australia. If the accommodation and circumstances are the same in both countries, more weight should be given to the nature of the accommodation where they spend the majority of their time. Having legal title to a house that a person ordinarily lives in is a good indication the person resides in the country. Shared hotel accommodation is considered temporary and is a low indicator a person resides in the country, however it needs to be recognised that many people receiving a social security payment have few assets and do not have formal living arrangements.
I would have to say the Applicant’s accommodation in Australia is far more stable than settled than his accommodation has been in Vietnam, and whilst he has taken long leases on properties his accommodation in Vietnam seems somewhat more precarious, certainly in more recent years than one could say of his accommodation in Australia.
A further criterion is ‘the nature and extent of the family relationships the person has in Australia’. This basically indicates that simply contacting your relatives by phone or maybe emails and Facebook is not a really good indicator. It does not necessarily constitute strong evidence. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas.
Strong weight should be given to where the person’s immediate family is residing or where the person is providing a significant level of care for a member of their family, or where the person spends the most amount of time with their family.
In the Applicant’s case he sees his family when he is in Australia. All his family live in Australia. When he was ill in 2013 he went back to his former partner and she looked after him in their Chisholm home until he returned to Vietnam in January 2014. One can deduce from that that a strong family relationship existed at that time.
From 2009 until September 2013 he did not spend much time in Australia, only coming back for weddings and funerals and indeed, not much afterwards (from January 2014) because he simply could not get back here to be with his family members due to the circumstances already discussed.
The ‘nature and extent of the person’s employment, business or financial ties in Australia’ is a criterion. The Applicant owns property. He is retired, he does not have a job, and he took a redundancy.
He does not actually have any business ties as such, or financial ties as such in Vietnam, although he obviously does work there for people and minds their businesses. They pay him a bit of money, or pay him in kind. So effectively, there are no business or employment ties in Australia, but he has limited financial ties. He has an Australian bank account.
I now come to next criterion – ‘the nature and extent of the person’s assets located in Australia’. I would have to say his main asset, namely the half share in his house at Chisholm is a substantial one. He also owns some goods and chattels which he stores in his shed at the Chisholm property. He states his assets in Vietnam are some beds, furniture and a TV set. He says they are worth about $200.
If he is correct in his valuation of his assets in Vietnam ($200) or even if they were worth more, it would be unlikely it would be much more and certainly under $1,000. Looking at the current Canberra market where properties are the third most expensive after Sydney and Melbourne, even if he had a half share in the worst house in Chisholm, the house would be worth a minimum of $400,000 making his share $200,000. We do not know what his other goods and chattels are worth but the Tribunal can deduce it would not be a great amount.
Clearly, the majority of his assets in terms of value are in Australia.
Other matters that should be looked at include whether the person intends to remain permanently in Australia, (the examples given are people with family, who work in both places, or people looking for work in other countries). This does not really fit the Applicant’s circumstances although whether he intends to remain in Australia is obviously relevant.
One can say in terms of these criteria, the Applicant has perhaps been his own worst enemy with his honesty in relation to where he wants to spend his time, why he is there and where he sees his life panning out.
One of his biggest problems I think is a lack of a definite indication of just when he is going to finally come back to Australia. It would seem obviously his preferred option would be when he simply cannot do anymore in Vietnam, but that is a little bit vague, and whilst I commend his honesty that does not particularly help him.
Obviously if he had something more definite, even if it was something like, ‘I reckon I’ve got another 18 months in me, I’m wearing out, and I’ll be definitely be back here then, I won’t be there in Vietnam past 2018’, that would give a definite time, and that would actually assist him. I note that realistically that might well be the situation anyway. So, to an extent, his honesty has caused him some problems there.
He has given very strong reasons why he wishes to be in Vietnam, and as I said earlier, I am certainly satisfied that taking all of those criteria into account, his wish to go back to Vietnam for a while longer does point to the conclusion that he could well be deemed to be a resident there.
This may well be despite the fact that all his family live in Australia, including his elderly mother, his children and grandchildren, and his ex‑partner who still lives in and owns a half share in his house in Chisholm. This can be compared with the fact that he formerly had a relationship with a woman in Vietnam, which he initially told the Department was a fairly strong relationship and a permanent relationship; but it turned out not to be so and it seems she was probably only using him.
There were no children by that relationship. The woman had a son apparently in his teens. The Applicant has not seen the woman or her son for some time now. I would therefore class that relationship as a temporary relationship. Apart from his friends around Vung Tau he does not really have any longstanding ties in Vietnam. The relationship with the woman and her son may have been a little bit more clouded back in 2009 through to about 2013, and perhaps even up until the end of May 2016, but clearly if there was any longstanding relationship it had gone by May 2016. In fact his evidence was, ‘I think it was really gone probably by 2014’.
So how do all of these facts sit with the law? Looking at s 1220 of the Act I would have to say this. Mr Armstrong was certainly an Australian resident in 2009. He went to Vietnam. It could well be said, and I would certainly find that in my view he ceased to be an Australian resident effectively I would say in 2010, and that continued until September 2013 when he came back to Australia, and on 3 October 2013 the Department deemed him to be an Australian resident for the purposes of a DSP.
He then goes back to Vietnam in January 2014. His intention, during all the confusion from February until 29 May 2014, seems to be that if he has to come back to Australia, he would come back to Australia because of the six weeks requirement on his then DSP. Had he done so we probably would not be here, but because of the confusion that arose between late February and mid-March, which I find understandable.
I think it is a shame and had he had a closer look at the documents in his possession this might have helped him, but I appreciate he says he has been told different things by different people in the relevant Department. Because of that confusion he remains in Vietnam and at this stage, with his payments stopped, he starts having money issues.
His DSP then ceases in late May 2014. Despite some further enquiries over the next few days after the 29 May 2014 decision, he does not appeal that decision. Again had he done so, the situation may have been quite different, but he does not do so.
I find he ceases to be an Australian resident from 2010 to 2013. I find he is obviously an Australian resident as of 3 October 2013 and the Department indeed deems him so to be. We can now consider s 1220(1)(d):
(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

(i)        an Age Pension; or
(ii)       a disability support pension; or
(iii)      a bereavement allowance…
The Applicant is granted a DSP. To get that he has to be an Australian resident. So, he has become an Australian resident when he comes back here and he is sick and he applies for his DSP. The Department accepts him then as an Australian resident. As a result of that he gets a DSP, and so within a period of two years after he becomes an Australian resident he is granted that DSP. In fact it would be a matter of days, not two years.
Section 1220(1)(e), goes on to state ‘after the pension or allowance is granted… but before the end of that period of 2 years, the person leaves Australia’. As soon as he is better in January 2014 off he goes, back to Vietnam. Clearly he does not fall within the exemption to this policy as financial assistance is not payable to him under the medical treatment overseas program, and the Act says a pension or allowance based on that claim is not payable to the person during any period during which the person is outside of Australia.
He falls back on the rules of the DSP, which at the time allows him to be out of Australia for no longer than six weeks, because he does not have portability. Events then occur in early 2014 culminating effectively in his DSP being cancelled.
So in terms of the provisions of s 1220, he is an Australian resident, he gets his DSP, it is certainly within two years of becoming an Australian resident. The two year rule applies there, the DSP is cancelled, and he is stuck in Vietnam. He next comes back in late May 2016. He is accepted by the Department with effect 3 June 2016 as a person entitled to the Age Pension, and I accept that as well.
He then, after making inquiries and being assured verbally that it is all right and that he can go back to Vietnam without jeopardising his pension, save for maybe some specific allowances, goes off to Vietnam and jeopardises his new Age Pension,
Looking at s 1220 again, in, June, July and August 2016, he is an Australian resident. He ceased to be a Vietnam resident by coming back here and claiming his Age Pension. When he gets back to Australia he has again become an Australian resident for the purpose of the Department, and within two years after he again becomes an Australian resident (indeed again within days of returning) he is granted in this case an Age Pension. In August 2016, acting on incorrect advice and within two years of being granted an Age Pension off he goes again to Vietnam and his pension stops.
Unfortunately, there have been a series of mishaps and problems that have occurred in 2014 and again in 2016 that have caused Mr Armstrong grief and grief he certainly does not deserve, but grief nevertheless has been caused as a result of the operation of the various Acts that are applicable to him.
In relation to that, I make the following findings (if they are not already obvious).
In my view on all the evidence before me I find, (and it is not by very much because of some strong factors in terms of assets and family, but because of what the Applicant thought himself) that the Applicant between 1 January 2010 and 18 September 2013 was a resident of Vietnam.
The Department then granted him a DSP with effect 3 October 2013 and he remained in Australia until January 2014 when he returned to Vietnam. Between February 2014 and 29 May 2014, he was in communication with the Department in relation to his DSP as already referred to above and his DSP was cancelled on 29 May 2014.
He did not appeal that decision and remained in Vietnam until 30 April 2016. He arrived back in Australia on 31 May 2016 and is granted the Age Pension with effect from 3 June 2016. I am satisfied the Department officer who granted that pension was quite correct in deeming him then to be an Australian resident. As I have indicated earlier, s 1220 is enlivened effectively back in September/October 2013 and again in May/June 2016 with two different types of pensions.
On 11 August 2016 he went back to Vietnam. I am satisfied too and I find that he believed he was entitled to go back to Vietnam and his belief was (wrongfully held as it turned out) that he would not lose his Age Pension. This was as a result of incorrect advice given to him by an official in the relevant part of the Department. I am satisfied that he made all reasonable inquiries and his only error was perhaps not to have it in writing.
Unfortunately, the Department then did not have any choice but to suspend his Age Pension. The case of Re David and SDFaCS (2004) 80 ALD 792 is authority for the proposition that s 1220(1) applies where ‘the person leaves Australia’ before the end of a period of two years and is a strict test of physical departure from Australia, not of whether the person had once again ceased to be an Australian resident.
I am prepared to accept that he again became a resident of Vietnam after 29 May 2014 as he did not appeal the decision of the Department in cancelling his DSP and because he then stayed on in that country until April 2016 as already discussed. That said this should not preclude him from any entitlement to compensation from the Department as a result of the incorrect information given to him and the way the matter was handled by various officers of the Department between February 2014 and 29 May 2014.
He is again recognised as resuming his residence in Australia when he returns on 11 April 2017 and is granted several days afterwards his Age Pension.
Having listened to his evidence and having due regard to his actions and enquiries of the Department in August 2016 to ensure he could return to Vietnam without losing his pension, I note he then returns to Vietnam, finds out subsequently that the advice was wrong and appeals the decision to suspend and cancel his Age Pension on 11 August 2016.
As he indicated to the Tribunal that he would not have gone back to Vietnam had he been advised correctly, I am satisfied that on this occasion he remained an Australian resident and I further note that he returned to Australia to prosecute his appeal at the first opportunity he could, given his stained financial circumstances. I also note the considerable ties he has always had with Australia.
Accordingly, I find that from 31 May 2016 the Applicant has been a resident of Australia.
Unfortunately, this does not particularly help him in this appeal as the Respondent correctly noted in its submissions. Had he remained an Australian resident from September 2013 onwards, he would not have a problem. But as a result of the fact situation detailed above, by accepting the cancellation of his DSP in May 2014 and then remaining for nearly another two years in Vietnam he reverted after 29 May 2014 to becoming once again a resident of Vietnam until he arrived back in Australia in May 2016.
Accordingly, as the two year rule applies in this case, in my view his Age Pension was legally suspended once he left our shores in August 2016.
I query whether in fact in April 2017, his pension should simply just have been reactivated upon him returning to Australia, rather than him having to apply again as the Act does refer to a suspension of pension when a person goes overseas, not a cancellation.

There is one factor which I do not necessarily accept from the submissions of the Respondent on this point and perhaps the Department might like to look at it further and that is, when does the two year period commence? In the Applicant’s case he was back in Australia for some two and a half months, and then he goes off again to Vietnam and has been back in Australia now since April 2017. It is now late August so he has had another four months in Australia.
If the period, when he was granted his Age Pension, ran from 3 June 2016, ceased in mid-August 2016 then was reactivated in late April 2017, he has certainly spent six plus months in Australia.
If the period runs from when he again becomes an Australian resident, which I deem to be from 31 May 2016 onwards, due to the circumstances of this case, then it is 15 months.
The representative for the Respondent submitted that unfortunately a person effectively has to stay for a full two year period, unless the Department gives him or her permission to go overseas (and that could be for anything as simple as going to New Zealand, in Mr Armstrong’s case for a wedding), and there is provision for the Department to do that. Otherwise, the Respondent says, unfortunately a person has to be here in Australia for two years without interruption before he or she gets the unlimited portability.
Now, that is not quite how I read it. It would seem that in a situation like that, that could certainly prevent someone from going overseas for two years, but would have the effect of preventing people from going for milestones in relatives’ lives, weddings, death of a loved one, like a father or a mother overseas, all those unintended consequences, where people would may well be prepared to go overseas for a few weeks, not receive the Age Pension whilst they are overseas, but pick it up again after they return and not have the two year period start all over again. I find it hard to think this would have been the intent of the legislature.
So I simply flag that as an issue, in my view, in this case a more logical interpretation would be that firstly, the two year period starts on 31 May 2016 and ends on 31 May 2018. During that time, if the Applicant went overseas, he would not be paid the pension whilst he was out of Australia, but after the two year period was up on 31 May 2018 he could go overseas and have portability. Or, conversely the fact that he has only spent six and a half months in Australia might mean he still has to spend another 17 and a half months physically in the country before the two years is deemed to be up.
I also query why the Department saw fit to cancel his pension as well as merely suspending it. Surely situations such as this one should be akin the DSP recipients who over stay their time overseas and pick up their pension once again upon their return without having to reapply.
If I am wrong in my interpretation, and the legislation precludes the Department from so acting, then this might be something that might need amending by the Federal Parliament if they were so mindful because cancellation of the pension in August 2016 does not seem to me to be terribly logical when one looks at the intent of this legislation.
None of this helps the Applicant who has at any rate received the Age Pension since 3 June 2016 when he has been in Australia, as he should have and who has not received it when he was absent from 11 August 2016 until his return in April 2017 (as was the correct decision on any interpretation of the legislation). It is only relevant for the future and does need in my view further clarification.
I noted earlier that the Applicant may be entitled to compensation for the events of February 2014 to 29 May 2014 and the same certainly applies as a result of the well intentioned, but totally incorrect advice he received in August 2016 that led him to return to Vietnam. As indicated by the Respondent at the hearing the name of the relevant fund is the Scheme for Compensation for Detriment caused by Defective Administration (CDDA) and the Applicant may have other avenues of redress, for example the Commonwealth Ombudsman.
The CDDA is basically a compensation fund set up by the Departments which people can go to where there clearly is an issue where through no fault of the person or persons aggrieved, they have been given the wrong advice and they have acted on it. In the Applicant’s case, it certainly seems that as a result of incorrect advice that he was given in August 2016, for the period 11 August 2016 to 11 April 2017, he suffered financial loss.
The Applicant might also consider getting some advice from the Legal Aid Office or elsewhere as well in relation to these issues.
As the decision appealed from is only the decision to suspend payment of his Age Pension, for the reasons given above, the decision under review is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate
Dated: 19 September 2017

Date(s) of hearing: 25 July 2017; 18 August 2017

Applicant: In person

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1545

18 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Date(s) of hearing:	25 July 2017; 18 August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services