Boland and Secretary, Department of Social Services (Social services second review)
[2021] AATA 1132
•4 May 2021
Boland and Secretary, Department of Social Services (Social services second review) [2021] AATA 1132 (4 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/3447
Re:Patricia Boland
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:4 May 2021
Place:Sydney
The Tribunal remits the decision under review to the Secretary with the direction that Ms Boland’s Australian Working Life Residence be calculated on the basis of her being an Australian resident from 21 January 1969 to 30 August 1995.
................................[SGD]........................................
Mr S Evans, Member
CATCHWORDS
AGE PENSION – AAT second review – determining the Applicant’s Australian Working Life Residence (AWLR) for the purposes of calculating rate of Age Pension – provisions of the Social Security (Administration) Act 1999 (Cth) considered – provisions of the Social Security Act 1991 (Cth) considered – nature of accommodation used in Australia considered – nature and extent of family relationships in Australia considered – nature and extent of employment, business or financial ties with Australia considered – nature and extent of assets located in Australia considered – frequency and duration of travel outside of Australia considered – other factors considered – decision under review set aside and remitted with directions.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (International Agreements) Act 1999 (Cth)
CASES
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
Hafza v Director-General of Social Security (1985) 60 ALR 674
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Social Security and Nelly Mosca [1998] AATA 586
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Mr S Evans, Member
4 May 2021
The applicant, Patricia Boland, lives in Iowa in the United States of America. In 2018 she applied for Age Pension (“AP”). For Australian citizens living in the USA, AP may be paid at a reduced rate if they have spent periods of their working life outside of Australia. As Ms Boland left Australia in 1995 her pension was paid at a reduced rate. Ms Boland contends that she was an Australian resident for her entire working life and is therefore entitled to the full rate of AP.
INTRODUCTION
Patricia Boland (“Ms Boland”) applied for and was granted the AP with effect from 21 July 2018. A delegate of the Secretary of the Department of Social Services (“the Respondent”) determined that Ms Boland’s pension would be paid at a proportional rate owing to her not having been an Australian resident since she departed Australia in August 1995 to live and study in the USA.
Ms Boland sought an internal review of the decision to pay her pension at the proportional rate and on 22 January 2019 an Authorised Review Officer (“ARO”) affirmed the decision.
Ms Boland sought review of the ARO’s decision at the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) and on 21 May 2019 the AAT1 varied the decision so that Ms Boland’s pension rate was to be calculated on the basis of her having been an Australian resident until 8 August 1996.
On 17 June 2019, Ms Boland sought review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal.
BACKGROUND
Ms Boland was born in Australia in 1953. On 30 August 1995, she and her two school age children departed Australia for the USA where Ms Boland intended to study a Master’s degree at the Maharishi University (“Maharishi University” or “the University”) in Fairfield, Iowa.
At that time she owned a property in Bondi, NSW (“the Bondi residence”) which consisted of two separate units. Shortly after leaving Australia, Ms Boland rented both the units on short-term six-month leases which would continue on a month-by-month basis at the end of the lease. When she departed Australia, she and her and her children took only what they could carry in their suitcases. The remainder of their possessions and personal belongings were left at the Bondi residence.
Ms Boland first returned to Australia on 6 July 1996. She returned to the USA on 9 August 1996 and did not return until July 2000. In May 2005, Ms Boland won the “green card lottery” which allowed her to remain indefinitely in the US and in 2015 she became a US citizen. She continues to reside in the USA.
ISSUE TO BE DETERMINED
The issue to be determined is whether Ms Boland was an Australian resident during her “Australian working life residence” (“AWLR”). AWLR is defined in module B of section 1221 of the Social Security Act 1991 (“the Act”) as the period between turning 16 years of age and reaching pension age, with the resulting number of months being the AWLR.
Ms Boland contends that she is entitled to the full rate of the AP which requires her to have an AWLR of at least 420 months. The Secretary initially submitted that Ms Boland’s AWLR commenced in January 1969 and ceased in August 1996. Following Ms Boland’s evidence at the hearing, the Secretary contends that Ms Boland ceased being an Australian resident on 30 August 1995.
In order to determine Ms Boland’s AWLR the Tribunal must consider whether Ms Boland was an Australian resident between turning 16 years of age in January 1969 and 21 January 2004, the point at which her AWLR would be 420 months. As it is not in contention that Ms Boland was an Australian resident for the purposes of the Act prior to August 1995, the Tribunal will consider Ms Boland’s status between 30 August 1995 and 21 January 2004, which I will refer to as the “relevant period”.
RELEVANT LEGISLATION
Section 29 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that generally a claim for a social security payment may only be made by a person who is an Australian resident and in Australia at the time of the claim. However, a claim may be made pursuant to a scheduled international social security agreement including the Agreement Between the Government of Australia and the Government of the United States of America (“US Agreement” contained in schedule 13 of the Social Security (International Agreements) Act 1999 (Cth) (“International Agreements Act”)).
Section 1220A of the Act sets out the rate at which the AP is payable in circumstances where a person is absent from Australia. It relevantly provides:
1220A Proportionality—age pension rate
(1) A person’s rate of age pension is to be calculated using the Pension Portability Rate Calculator at the end of section 1221 if:
(a) the person has been continuously absent from Australia, throughout a period (the period of absence) of more than 26 weeks; and
(b) either:
(i) immediately before the period of absence commenced, the person was receiving the age pension; or
(ii) during the period of absence, the person’s claim for the age pension is granted under the Social Security (Administration) Act 1999.
Module B of section 1221 sets out the formula for calculating a person’s AWLR.
Module B—Australian working life residence
Working life
1221‑B1 For the purposes of this Module, a person’s working life is the period beginning when the person turns 16 and ending when the person reaches pension age.
Note: For pension age see subsections 23(5A), (5B), (5C) and (5D).
Australian working life residence (general)
1221‑B2 Subject to points 1221‑B3 and 1221‑B4, a person’s period of Australian working life residence as at a particular time is the number of months in the period, or the aggregate of the periods, during the person’s working life during which the person has, up to that time, been an Australian resident.
Note: For the method of calculating the number of months in the period see points 1221‑B3 and 1221‑B4 below.
Calculation of number of months
1221‑B3 If a person’s period of Australian working life residence would, apart from this point, be a number of whole months, the period is to be increased by one month.
1221‑B4 If a person’s period of Australian working life residence would, apart from this point, be a number of whole months and a day or days, the period is to be increased so that it is equal to the number of months plus one month.
Module C of section 1221 sets out how to calculate the proportional rate using the AWLR.
Module C- Residence factor
Residence factor (period of Australian working life residence 35 years or more)
1221‑C1 If a person’s period of Australian working life residence is 420 months (35 years) or more, the person’s residence factor is 1.
Note: If a person’s residence factor is 1, the person’s pension will be payable outside Australia at the full domestic rate.
Residence factor (period of Australian working life residence under 35 years)
1221‑C2 If a person’s period of Australian working life residence is less than 420 months (35 years), the person’s residence factor is:
Person’s period of Australian working life residence
420
Under subsection 7(2) of the Act an “Australian resident” is a person who resides in Australia and is an Australian citizen or other applicable visa holder. The definitions for “Australian residence” are set out in section 7 of the Act. Subsection 7(3) lists the factors that decision makers must have regard to when considering if a person is residing in Australia or not:
(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 Social Security Guide (“the Guide”) contains relevant policy. Consistent with the decision in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, whilst the Tribunal is not bound to apply policy guidelines of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless there are cogent reasons not to.
WAS MS BOLAND AN AUSTRALIAN RESIDENT DURING THE RELEVANT PERIOD?
Evidence
As mentioned, Ms Boland departed on 30 August 1995 for the USA with her two children. During the relevant period, she visited Australia with her children on a regular basis. When in Australia, Ms Boland would stay with family, friends or a motel in Sydney, or with her mother in Brisbane, and her children would stay with their father.
Ms Boland initially studied at Maharishi University in Iowa whist staying in accommodation provided for students with children between 1995 and 2002. Ms Boland later bought a small house off campus in 2002, which she contends was a temporary investment.
Whilst Ms Boland attended the University, her sons benefitted from the experience and schooling. She describes that her children thrived and were happy in the US, settling in well at school soon after they arrived. Consequently, when she returned to Australia in July 1996, she decided she wanted her children to stay at their school and she wanted to continue her studies. By this time her former husband had a new partner and Ms Boland found the situation in Australia negative and complicated.
Having initially agreed to visit her and their children in the USA every six months, after two years Ms Boland’s former husband stopped visiting the USA, paying their children’s school fees and fulfilling other financial obligations. In August 1997, Ms Boland began working at the University to pay for her sons’ school fees. She lived in a trailer park on the University grounds. During this time, she says she relied on various sources of income, namely income from her investments in Australia, including the Bondi residence.
Until May 2005, Ms Boland held a series of temporary USA visas and she did not try and apply for a permanent visa until she entered and was successful in obtaining a Green Card through the US diversity lottery which allowed her to obtain permanent residency in May 2005.
In 2002, she moved out of temporary student accommodation having purchased a small house off campus. Ms Boland explained that she was required to buy a house as she was discriminated against whilst seeking rental accommodation as a single parent.
Ms Boland claims that she planned to return to Australia when she finished her studies and her sons had completed their schooling. However, one of her sons won a scholarship from the University of Iowa and began a relationship whilst her other son went to study in Adelaide. Ms Boland was considering doing a PhD in October 2003 when she found out about the US diversity lottery and entered on a whim. She later found that she could apply for permanent resident status in September 2004 and was granted permanent residency in May 2005. She applied for and was granted US citizenship in 2015.
The Tribunal heard from two witnesses who were called by Ms Boland: Dr Ashley Deans, who is a former director of the Maharishi School who provided details of the school and the benefits of consciousness-based education; and Mr James Pearson, who is a US based attorney specialising in immigration law. Mr Pearson confirmed that for non-permanent residents of the US, as Ms Boland was during the relevant period, there is no automatic entitlement to qualify for legal permanent residence.
Considerations under section 7 of the Act
The Tribunal must determine whether Ms Boland was an Australian resident during the relevant period between 30 August 1995 and 21 January 2004. In considering whether Ms Boland is an Australian resident, I shall consider whether she can be regarded as a person who resides in Australia as per subsection 7(2) of the Act. I am also required to consider the matters listed in subsection 7(3) of the Act.
The nature of the accommodation used in Australia
When she left Australia, Ms Boland owned the Bondi residence. She contends that she kept her personal effects and furniture at the Bondi residence until she sold it in 2003. The property comprised of two units which she rented out until she sold them in October 2003. While she was in the US, Ms Boland rented the units out on short term, six-month leases which would continue on a month-by-month basis afterwards. Following the sale of the Bondi residence, Ms Boland’s personal effects and household furniture was moved to her mother’s home in Brisbane. It was not until 2004 that Ms Boland shipped some of her furniture to the US.
For the purposes of considering the evidence relevant to paragraph 7(3)(a) of the Act the Tribunal may also consider the nature or Ms Boland’s accommodation outside Australia. Ms Boland and her children initially lived on campus at Maharishi University in Iowa in accommodation provided for students with children between 1995 and 2002. In 2002, Ms Boland bought a small house off campus.
During the relevant period, Ms Boland was living in accommodation in the US which she considers temporary. She says that while in America she lived in “… temporary, furnished student accommodation or in temporary, furnished premises required by, and at the convenience of, the university I interned … and worked with.” She writes that while she was physically present in a trailer park she did not intend to treat a trailer park meant for students as her home and that “it in no way represented an abode of any permanence”.
When Ms Boland retuned to Australia she would stay at the Bondi residence if her travels coincided with one of the units being between leases. Failing that, she would stay with friends or relatives and her children resided with their father. Most of Ms Boland’s time in Australia was spent staying with her mother in Brisbane. Ms Boland would often take her mother on holidays and travel to other parts of Australia where they would stay in holiday accommodation.
When considering the nature of the accommodation Ms Boland used with in Australia, the purpose is to establish if she had more settled or permanent accommodation in Australia or the US. Ms Boland contrasts the standard of her trailer park accommodation to her Bondi residence. Although she may have preferred the Bondi residence to her accommodation in the US, she was committed to living in the accommodation provided by the University such that she paid rent there and had an ongoing agreement to retain the accommodation. In 2002 she purchased a house in the US, which she describes as modest and in need of repair. She states that she did so because she had difficulty finding suitable rental accommodation because she was discriminated against as a single mother.
I am satisfied that the majority of the time Ms Boland was in Australia during the relevant period she had access to temporary accommodation. In contrast, she had long term, stable rental accommodation provided by the University in the US, up until she purchased her own home in 2002. As such, this consideration does not support a finding that Ms Boland was an Australian resident during the relevant period.
The nature and extent of family relationships in Australia
Ms Boland submits that there “…were extensive family, friends and colleagues relationships in Australia, but none in the USA.” In addition to her family, she contends that her spiritual and business relationships in Australia were extensive.
Ms Boland was also part of the community around the Maharishi Foundation Australia Ltd as she was involved with meetings, special events and gatherings in Australia.
Ms Boland notes that during the relevant period, her mother, siblings, aunts and uncles were in Australia and she would regularly spend time with them for as long and as regularly as was possible. She points out that the restrictions placed on her by school holidays and financial means limited her ability to travel to Australia.
The Guide at 3.1.1.10 states that “[j]ust having a family member in a country does not constitute strong evidence that the person is residing in that country.” The Guide also suggests that the main indicator when establishing the level of connection is to look at how much time the person spends with them in Australia or overseas. In considering residence, it is suggested that strong weight should be given to where the person’s immediate family is residing, or where the person spends the most amount of time with their family.
Consistent with the Guide, the Secretary contends that strong weight should be given to Ms Boland’s relationship with her children, who both lived in the USA with her and attended school there from 1995 to at least 2007 and that this indicates that her children were her most significant family ties.
Whilst I accept Ms Boland’s contention that she would have visited her friends and relatives more often in Australia should she have been able to, as she was living in the US with both her children during the relevant period this consideration does not support her being an Australian resident in the relevant sense.
The nature and extent of Ms Boland’s employment, business or financial ties with Australia
Ms Boland submits that her financial ties were complex and extensive indicating she was living in Australia. She said that it would have been easier to set up her banking and investing in the US but continued to manage her financial affairs in Australia as it was her intention to return so the inconvenience was necessary. Ms Boland told the Tribunal that when she came back to Sydney to visit she would attend to her financial affairs.
Ms Boland also maintained membership and involvement in the Maharishi Foundation Australia Ltd and has attended meetings online and would attend in person when she visited Australia. She continued to maintain full membership of CPA Australia as a CPA and fulfil the continuing professional development requirements for full membership. She was also a member of the City Tattersalls Club in Sydney through until 2005.
She told the Tribunal that she worked as a consultant to the accounting practice that she and her former husband established and that she held an interest in the firm until March 2002.
She contends that her employment or earnings were entirely from Australia and her business and financial ties were all in Australia and she had nearly $1m in assets after she sold the Bondi residence and paid her debts.
In a written submission Ms Boland writes in part:
In my case, financial ties are an indicator of where I was living. They were complex, and extensive. Up to approximately 2002, trying to maintain and manage assets, trying to recoup monies etc was a complex process … From 2003 and after it became even more challenging when trying to appropriately set up a diversified portfolio … of Australian stocks and financial investments while balancing risks vs returns.
…
Creating and managing a portfolio of Australian investments faced significant challenges… However I continued management of interests in Australia… made most of my earnings from these, and had to spend a considerable amount of time on them such that self-employment, business and financial ties with Australia were significant and extensive.
The evidence supports a finding that Ms Boland derived financial benefit from her assets in Australia.
Whilst she had been employed in the USA since 1997, she contends that her employment in the USA was for a period an internship, temporary or without cash payment for a total of nearly seven and a half years in the USA. She argues that her primary place of employment was not the US as she made more money from her investments in Australia.
Before the Tribunal are bank statements from Ms Boland’s Australian bank account and evidence that Ms Boland has an Australian superannuation account. Consistent with the Guide the Secretary contends that having bank accounts in Australia should be afforded little weight as they are relatively easy to maintain without being physically present. Ms Boland argues that managing her affairs in Australia whilst living in the US was not a straightforward task, particularly early in the relevant period when the internet was less mature.
I do not consider that the management of Ms Boland’s Australian investments or occasional advice provided to her former husband outweighs the extent of her work commitments in the US. Consequently, this consideration does not support Ms Boland being an Australian resident during the relevant period.
The nature and extent of the assets located in Australia
The Social Security Guide at 3.1.1.10 states that owning assets in Australia may assist in the determination that a person is residing in Australia. The Guide advises that If a person owns a house which has been rented out for a short period this could indicate that the person is only overseas temporarily and intends to return to Australia. Relevantly, it also notes that temporarily keeping the furniture or personal items such as clothes and storage is another indicator that an individual is only overseas temporarily. Conversely the sale or gifting of assets such as a car, furniture, or family home prior to leaving Australia, would be a strong indicator that the person has left Australia to live overseas for an extended period of time.
Ms Boland had a car in Australia when she first returned but after that she hired a car and would drive up to Brisbane and leave the car there. The car was used by her former husband until it was sold.
Whilst she wanted to keep the Bondi residence she was unable to do so. After a series of financial setbacks she maintains that she was forced to sell the property in October 2003. She contends she kept her assets in Australian bank accounts and lodged annual tax returns in Australia until 2005.
The Secretary submits that there is a lack of documentary evidence to substantiate that Ms Boland maintained ownership of the Bondi residence or when it was sold. Consequently it is argued that the Bondi residence should be given little weight and to the extent it weighs in her favour, it should only do so until it was sold in October 2003.
The evidence as to the extent and nature of Ms Boland’s assets over the course of the relevant period is incomplete. However, based on Ms Boland’s evidence and consistent with the finding of the AAT1, I am satisfied that Ms Boland’s assets were primarily located in Australia during the relevant period. As such, this factor supports Ms Boland’s claim to be an Australian resident.
The frequency and duration of travel outside Australia
The Guide states at 3.1.1.10 that a person need not be continuously present in a country in order to be residing there and that a person holidaying or working temporarily overseas does not necessarily cease to reside in Australia whilst they are away. It also specifies that 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.
It is not in question that Ms Boland has spent the vast majority of her time located in the USA since August 1995. Since 30 of August 1995 to 21 January 2004 Ms Boland spent just over 93% of that time outside Australia. 2859 days out of 3066 days spent outside Australia.
The Secretary argues that Ms Boland’s absences from Australia are significant, particularly in the period of 9 August 1996 to 13 July 2000 and that this factor weighs heavily against a finding of Ms Boland being an Australian resident until at least 21 January 2004. It is argued by the Secretary that Ms Boland has not provided compelling evidence that she had an intention to return, reside or remain permanently in Australia during the relevant period.
At 3.1.1.10 the Social Security Guide states:
In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person's 'intent' becomes less of a factor as the length of the absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
A person who has spent the majority of their time overseas in the last few years and who returns to Australia to claim a benefit will not necessarily be eligible from the day they return to Australia. The person must demonstrate that their physical ties with Australia have been re-established, or are in the process of being established and that they intend to reside again in Australia.
I accept that that the lengthy period of time Ms Boland has spent outside Australia is strongly suggestive that she was not residing in Australia during the relevant period.
Other considerations
Paragraph 7(3)(f) of the Act provides for the consideration of any other matter relevant to determining whether a person intends to remain permanently in Australia. In a written submission Ms Boland writes that her case is unique with mitigating circumstances. She contends that her case does not fall in the majority of cases where the most weight should be given to the time spent in Australia. She argues that she needed to stay in the US for her and her children’s emotional health, safety, education and training.
CONSIDERATION
Having regard to the factors listed in subsection 7(3) of the Act, I must determine if Ms Boland was an Australian resident from 30 August 1995 when she initially departed Australia until 21 January 2004. With the exception of her assets in Australia, all of the considerations listed would indicate that Ms Boland was not an Australian resident during the relevant period.
The sum of the considerations outlined in section 7 of the Act indicate that Ms Boland was not an Australian resident during the relevant period. She lived in the US for over 90 percent of the lengthy period in question. When she did return she generally stayed in temporary accommodation. She had investments in Australia which she managed from the USA, including the Bondi residence, which she used to fund her living abroad. She had family and friends in Australia, but her most significant relationships were between her and her sons, both of whom lived with her in the US.
In considering Ms Boland’s application I have taken into consideration the case of Hafza v Director-General of Social Security (1985) 60 ALR 674 (“Hafza”) where the issue of an applicant’s intention to return to Australia was considered in the context of residency and temporary absence:
The intention to return to Australia at the expiration of a particular time — being, in recognition of the word “passing”, relatively short — will normally be a feature of an absence which, within the meaning of s 103(1)(d), may properly be described as temporary. There may, however, be exceptions. A person may travel overseas to fulfil a particular purpose which is expected to occupy a relatively short time, the exact extent of which is not known in advance and with the intention thereafter of returning to Australia. An example would be to undertake a particular journey or to attend the bed of a sick relative. I see no problem about describing such an absence as a “temporary” absence from Australia because it is a short term absence to fulfil a particular purpose.
On appeal, Justice Wilcox observed that where there is a prolongation of an initial temporary absence the extended period may continue to be temporary provided it is governed by the intention to fulfil a particular purpose and then return to Australia. Like the case of Hafza, Ms Boland maintains that her absences from Australia “…were of a temporary nature, with a time limit, and with a specified purpose: being educational and the intention of returning to Australia.”
In Ms Boland’s case she made an initial decision to leave, to complete a degree of fixed duration and to then return. But by her own account that transitioned soon after leaving Australia. She told the Tribunal that shortly after arriving in the US she saw her children were happy. Prior to temporarily returning to Australia in July 1996, she had taken steps to extend her stay in the US so that she could complete her initial degree and undertake further study.
Ms Boland submits that her temporary visa in the US during the relevant period supports her contention she was an Australian resident and evidence was provided regarding her US visas. As noted in Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726 at [21], “Mr Boucaut's temporary immigration status in Thailand does not alter the fact that it has become his home and he is no longer a resident of Australia”. Similarly, I do not accept Ms Boland’s contention that having temporary US visas with no guaranteed pathway to permanent residency alters the fact that the US was her home.
Ms Boland further draws a comparison between her application and the case of Secretary, Department of Social Security and Nelly Mosca [1998] AATA 586 (“Mosca”). In 1989, Ms Mosca returned to Uruguay to care for her terminally ill sister. She was in Uruguay for some months after the passing of her sister in 1996. The Tribunal determined that she was a resident for part of the time in which she was in Uruguay, even though she had no financial ties or assets in Australia. The Tribunal found that Ms Mosca’s case was “…unusual and complex…” and that: “In reaching a determination in this matter the Tribunal considers it crucial that one goes beyond the superficial, beyond a mere mathematical exercise in evaluating the various factors involved.”
Ms Boland argues that unlike the applicant in Mosca, she had employment, business ties and substantial assets in Australia during the relevant period. Like the applicant in Mosca, Ms Boland writes “I had time limited by education goals and the immigration laws…” and a “specific purpose”, being the education of her and her sons.
Mosca demonstrates the importance of taking into consideration the entirety of an applicant’s circumstance when considering residency. In making its decision the Tribunal notes that:
Mrs Mosca had a disabled daughter, a terminally ill sister and a high sense of duty which was beyond the duty that she owed either to herself or her husband at that time.
Contrary to Mosca, I do not accept that Ms Boland’s circumstances are either complex or unusual. She left Australia to study in 1995 and unlike the applicant in Mosca she has returned to visit but not to live in Australia. Ms Boland has instead built a life in the US, successfully pursuing and achieving greater educational goals for herself whilst providing a safe and positive environment for her sons. She put her sons through school in the USA, she bought a home and eventually became a US citizen.
With regards to Ms Boland’s intention to return, she maintains that she originally went to study in the US for 12 months and intended to return to Australia thereafter. In cross examination she conceded that prior to leaving the USA for her 1996 return trip she had already applied to study a PhD, in addition to completing her Master’s degree.
The AAT1 found that Ms Boland intended to return to the USA on 8 August 1996, the same day she returned. The Tribunal heard from Ms Boland that she wanted to have her sons finish school in the USA within two months of arriving in the US in August 1995 and that she had already enrolled in the PhD course prior to returning to Australia. On the basis of this evidence the Tribunal is satisfied that that Ms Boland’s absence was not for limited time and for a singular passing purpose. Consequently, I have concluded that Ms Boland was no longer an Australian resident as of 30 August 1995.
Additional contentions
Ms Boland submits that the AWLR changed in 2014, increasing the requirement from 25 (300 months) to 35 years (420 months) without a phase in or transition period. She also notes that she began working at age 14, but her AWLR is only considered to begin from age 16. It is certainly arguable that the amendments to the operation of the scheme have unfairly impacted people of Ms Boland’s age, but this is the way in which the law was intended to operate and it is beyond the remit of the Tribunal to address these considerations. Ms Boland’s contentions that she has “…fallen through the gaps…” of Australia’s welfare system or that being paid the proportional rate of AP is not compliant with the overall goal of the International Agreements Act is not accepted by the Tribunal.
CONCLUSION
For the reasons stated above the Tribunal is satisfied that Ms Boland was an Australian resident between 21 January 1969 and 30 August 1995 and her AWLR should be determined on that basis.
DECISION
The Tribunal remits the decision under review to the Secretary with the direction that Ms Boland’s Australian Working Life Residence be calculated on the basis of her being an Australian resident from 21 January 1969 to 30 August 1995.
I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
...............................[SGD].........................................
Associate
Dated: 4 May 2021
Date(s) of hearing: 20 October 2020 and 25 January 2021 Date final submissions received: 25 January 2021 Applicant: Self-represented Solicitor for the Respondent: Dr S Thompson, Services Australia
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