Bollinger and Secretary, Department of Social Services (Social security)

[2025] ARTA 1860

Bollinger and Secretary, Department of Social Services (Social security) [2025] ARTA 1860 (6 May 2025)

Applicant:  Mr Bollinger

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink    

Tribunal Number:   2025/H192979 

Tribunal:             General Member A Shelley

Place:  Canberra

Date:  6 May 2025

Decision:  The Tribunal affirms the decision under review.

SOCIAL SECURITY – Disability Support Pension – portability – payments suspended – long absence from Australia – separated and travelled overseas – COVID-19 pandemic closed borders – met non-Australian new partner – first claim denied on medical grounds – medical criteria changed – new claim granted – misinformation about leaving the country again – former resident – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

1. Mr Bollinger is a recipient of disability support pension whose payments were suspended by Services Australia (Centrelink) while he was recently outside Australia.

2. Mr Bollinger was in [Country 1] from [July] 2019 to [June] 2022, and from [September] 2022 to [May] 2024.

3. On 21 May 2024, Mr Bollinger made a claim for disability support pension, which was subsequently granted.

4. Mr Bollinger was outside Australia again from 6 November 2024, returning on 23 November 2024.

5. On 1 November 2024, Centrelink wrote to Mr Bollinger to advise that disability support pension would not be paid while he was outside the country and, on 6 November 2024, wrote to him advising that his claim was suspended. Payments resumed from 23 November 2024, following Mr Bollinger’s return.

6. On 25 November 2024, Mr Bollinger sought review of the decision.

7. On 23 January 2025, Centrelink’s authorised review officer (ARO) affirmed the decision to suspend payments. The next day, Mr Bollinger applied to the Tribunal.

8. The matter proceeded to a hearing on 2 May 2025. I had before me the hearing papers numbered 1 to 138, and a recording of a call Mr Bollinger made to Centrelink on 1 November 2024.

ISSUES

1. Because of how Mr Bollinger puts his case, it is necessary, in the first instance, to identify the scope of the decision under review.

2. The decision to suspend Mr Bollinger’s disability support pension was predicated on a factual finding that Mr Bollinger is a ‘former resident’ (in the sense described in more detail below – in short, that he was not a resident of Australia at some time in the two years before his claim was granted).

3. Mr Bollinger presumes that at the time his disability support pension claim was granted, on 13 August 2024, there was a concurrent decision made that he was a ‘former resident’, which Centrelink neglected to notify him about. In the hearing, he identified that decision as the subject of his application.

4. The first time Mr Bollinger was given notice that he was considered a former resident, with attendant consequences for his disability support pension, was in the letter of 1 November 2024 (which Mr Bollinger said he did not receive until quite some time later). Even then, the letter explains Centrelink’s position somewhat obliquely. It is not clear when that finding was made, if it was deliberately made at all (and not merely a product of information derived from Mr Bollinger’s claim form in which he declared dates he had been resident in [Country 1]).

5. A significant part of Mr Bollinger’s grievance now is that if he had been told of a decision that he was a former resident earlier, he would have (1) sought review of it earlier, so as to avoid the situation he found himself in, and (2) made different travel arrangements and not left Australia in November 2024. Instead, he was led to understand that payments would continue for 28 days (including in the call of 1 November 2024 and – Mr Bollinger says – a number of earlier calls).

6. I do not think that a decision (in the sense of being a decision in respect of which Mr Bollinger could have sought review) was in fact made until 6 November 2024. Indeed, there was no decision to make until the issue of continuation of payments arose when Mr Bollinger left or was in the course of leaving Australia. There is no discrete legislative power to designate a person to be a ‘former resident’. The provision that precludes payment to ‘former residents’ (set out below), does not apply until a person actually leaves Australia.

7. At the point there was a question about whether disability support pension was payable, Mr Bollinger’s status as a ‘former resident’ was a factual finding to be made in connection with whether disability support pension was payable and not itself a statutory decision.

8. The decision under review, then, is the ARO’s decision dated 23 January 2025, which affirmed the decision dated 6 November 2024 to suspend payments.

9. Accordingly, the issue before me is whether Mr Bollinger is entitled to disability support pension payments for the period he was overseas, 6 to 22 November 2024. And as will appear, that requires determination of the ‘former resident’ question.

10. I acknowledge, though, that the ‘former resident’ question is more significant to Mr Bollinger than some 17 days of payment. I have returned to that matter at the end of these reasons.

CONSIDERATION

1. The provisions of the law relevant to this application are contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).

2. The continuation of a social security payment while a recipient is overseas is known as portability. Section 1213 of the Act provides that Chapter 4, Part 4.2, Division 2 of the Act, which concerns portability, applies to a person during a period of absence from Australia if, immediately before the period of absence, they were receiving a social security payment and during the period of absence the claim for such a payment was granted under the Administration Act.

3. Section 1218AAA of the Act permits the Secretary (whose powers may be exercised by Centrelink officers) to make a written determination that the maximum portability period for disability support pension is an unlimited period, if certain conditions are met. The person must be in Australia, or unable to return to Australia because of a serious accident or hospitalisation, at the time the determination is made.

4. Despite that, section 1220 of the Act precludes portability in some cases where the person has been resident in Australia for only a short time before making a claim for a social security payment. A claim is not payable while a person is outside Australia if all the following apply:

   ·      The person was an Australian resident, ceased to be an Australian resident, and then became an Australian resident again.

   ·      Within 2 years of resuming Australian residency, the person is granted or transferred to a disability support pension.

   ·      Within 2 years of the grant or transfer, the person leaves Australia.

   ·      Financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program.

5. Whether section 1220 applies to Mr Bollinger is the central question in this application.

6. Section 7 of the Act provides that in order to be an ‘Australian resident’ the person must have citizenship or a permanent or protection visa, and reside in Australia, and in making that assessment 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.

1. The Australian Government has published policy guidance, for the purposes of interpreting and applying social security legislation, in its Social Security Guide. The Tribunal is not bound to apply government guidelines but will usually do so unless there are cogent reasons not to.[1]

   [1] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

2. The Social Security Guide says,[2] in relation to applying those criteria in assessing whether a person resides in Australia, that:

   ... the key point is to establish that Australia is the person's settled or usual place of abode - for example, that the person makes Australia his or her home. It is not generally 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. Note that it is just as important to take into account the converse of each factor.

   The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in [section 7].

   [2] At 3.1.1.10.

3. Section 80 of the Administration Act requires Centrelink, if satisfied that a person is not qualified for a payment or that the payment is not payable, to cancel or suspend the payment.

Is Mr Bollinger a person to whom section 1220 of the Act applies?

1. With the benefit of Mr Bollinger’s evidence, the facts are these:

   ·      In 2019, Mr Bollinger separated from his then wife. He moved into his mother’s house in Tasmania for a short time.

   ·      [In] July 2019, he left Australia for [Country 1]. He had been quite often before that, but only for short times. He had a return ticket, but it seems he did not have a fixed plan as to how long he would stay, save that at that stage a tourist visa would last for only 6 months and had to be reapplied for outside [Country 1]. He reapplied in [Country 2] that year.

   ·      In 2019, Mr Bollinger resided in [Country 1] in a series of short-term leases, from place to place.

   ·      In or about late 2019, his mother visited. She caught one of the last flights out of [Country 1] before the COVID-19 pandemic closed borders. Mr Bollinger remained in [Country 1], waiting to see how things played out.

   ·      Once it became clear that travel and tourism were suspended, Mr Bollinger took up a 12-month lease in [Country 1]. He said that, with the impact on the tourism industry, he was offered a rental deal too good to refuse.

   ·      In about 2021, he met his current partner, who is [a Country 1 citizen].

   ·      [In] June 2022, he returned to Australia for the express purpose of claiming disability support pension.[3] He had been unable to qualify while he was married because of his partner’s income. He had wanted to claim earlier than 2022 but could not get to Australia. Centrelink advised him that he could wait in [Country 1] while his claim was being considered, and he left Australia again [in] September 2022.

   [3] Section 29 of the Administration Act provides that subject to some exceptions (which would not have applied to Mr Bollinger) a claim can only be made by a person who is an Australian resident and is in Australia.

   ·      Mr Bollinger thought that might take a few months, but it took closer to 18 months. His claim was denied on medical grounds. The decision was reviewed and affirmed by an ARO and – in February 2024 – by the Administrative Appeals Tribunal.

   ·      Mr Bollinger felt encouraged to make a new claim, though, because the medical criteria changed in 2023. He returned to Australia [in] May 2024, lodging a claim for disability support pension on 21 May 2024.

   ·      On 13 August 2024, that claim was granted.[4]

   [4] Page 117 of the hearing papers.

   ·      In about September 2024, Mr Bollinger and his partner decided that they would marry in Australia [in] November 2024 and then honeymoon (including a [Country 1] civil ceremony) in [Country 1].

   · On 24 September 2024, Mr Bollinger enquired about indefinite portability (that is, a determination under section 1218AAA of the Act). Centrelink’s record indicates that he wanted to travel to [Country 1] on 22 October 2024.[5]

   [5] Page 93 of the hearing papers.

   ·      On 18 October 2024, Mr Bollinger told Centrelink he was going to get married [in] November 2024 and would travel to [Country 1] thereafter.[6] (Separately, that was the first time he had told Centrelink about his partner, which resulted in a number of other administrative steps.)

   ·      On 1 November 2024, Mr Bollinger spoke to Centrelink about the status of a determination for indefinite portability. I have listened to that call. It is apparent that both Mr Bollinger and the Centrelink officer had an understanding that he would be able to spend at least 28 days overseas while payments continued, whether or not a determination was made in that time.[7]

   ·      As above, Centrelink wrote to Mr Bollinger the same day to advise that disability support pension could not be paid if he left Australia.

   ·      Mr Bollinger left Australia on 6 November 2024, as planned. Payments were duly suspended on 6 November 2024. That came to Mr Bollinger’s attention because his mother took a ‘Mod P’ (partner details) form to Centrelink on 6 November 2024,[8] not because of either letter.

   ·      The cessation of payments caused Mr Bollinger to return to Australia on 23 November 2024, earlier than he planned, and he was not able to participate in the [Country 1] wedding ceremony. He has not left Australia since.

   · A determination under section 1218AAA was made on 3 January 2025.

   ·      Mr Bollinger’s partner is currently with him in Australia, on a tourist visa. She has [children of varied ages], who remain in [Country 1]. Mr Bollinger hopes to settle the whole family in Australia. He says that at no point did he intend to indefinitely move to [Country 1]. He has a preference for warmer weather (which suits his medical conditions) and ultimately expects to move to Queensland or Western Australia. He was stuck in [Country 1] for a time and more recently has been there because of his partner.

   ·      Mr Bollinger has not worked since 2014. He does not have any business dealings in either [Country 1] or Australia, save for a short-lived investment in [a business of a friend in Country 1] (from which he did not derive any money). He previously had a car in [Country 1] but now has no car in either country. At all times since 2019, he has lived in either rental accommodation in [Country 1] or at his mother’s house in Tasmania.

   ·      Mr Bollinger does not keep many belongings in [Country 1], having arrived originally with only a suitcase.

   ·      Other than his partner and her children (and his partner is currently in Australia), Mr Bollinger has no family in [Country 1]. In Australia, he has his mother and until recently his grandmother in Tasmania, and a [sibling] on the Central Coast.

   [6] Page 95 of the hearing papers.

   [7] In fact, a determination could not have been made in the time Mr Bollinger was outside the country because of the requirement in section 1218AAA that the person be in Australia at the time the determination is made.

   [8] Page 56 of the hearing papers.

2. In Mr Bollinger’s view, he has never emigrated to [Country 1] (which is the word used in the letter of 1 November 2024) and is in fact a tourist in that country (in keeping with his visa status at all times he was there).

3. The question, though, is whether Mr Bollinger ceased to be an Australian resident at any time in the two years before his claim was granted. That question is not directly answered by reference to visa status and citizenship but by reference to the 6-factor test in section 7 of the Act.

4. In my view, Mr Bollinger was a resident in [Country 1] at most times from 2019 to 2024 and certainly from 2022 to 2024. I accept he was a tourist upon arriving in 2019, but over time the factors pointing to residency in [Country 1] came to outweigh the factors pointing to residency in Australia. When Mr Bollinger returned to [Country 1] in 2022, he had had a lease of up to 12 months and no property of his own in Australia. He had a car. He had a partner. There are no significant assets, employment or business dealings in either country. The scales are unavoidably tipped, though, by the duration of his stay in [Country 1]. Mr Bollinger remained in [Country 1] after he was free to travel (save for a short time in Australia, which was for the express purpose of making his claim). He may have stayed longer than he expected to but – having spent all but 3 months over a nearly 5-year period in [Country 1], most of it voluntarily – it cannot be said that he nonetheless resided in Australia.

5. That Mr Bollinger had a long-term plan to settle in Australia and that his visa status may have prevented him from more formally emigrating to [Country 1] does not displace the finding that in the shorter term he intended to reside in [Country 1].

6. As a person who was an Australian resident, then a non-Australian resident, who was granted disability support pension within 2 years of resuming Australian residency (and where there is no suggestion that the Medical Treatment Overseas Program applies), Mr Bollinger is a person to whom section 1220 applies at any time he leaves Australia in the 2 years from being granted disability support pension.

What are the consequences for Mr Bollinger?

1. Section 1220 displaces the ordinary rules about portability. Disability support pension was not payable during Mr Bollinger’s absence from Australia in November 2024. Section 80 of the Administration Act compelled Centrelink to suspend payments.

2. The decision under review will be affirmed.

3. As I noted, Mr Bollinger is more concerned with the factual finding about his status as a former resident than the 17 days of missed payment. That is because even though a determination has now been made under section 1218AAA, that will not take precedence over the section 1220 preclusion on portable payments for the two years after the grant of his claim. Unfortunately for Mr Bollinger, on my view of the evidence, he will face suspension of disability support pension payments on any occasion he leaves Australia in that two-year period.

4. As a final matter, I acknowledge Mr Bollinger’s quite understandable grievance that Centrelink did not give him proper advice about the preclusion before he was committed to leaving Australia. On his account, there were a number of opportunities for that to happen. At all times, Mr Bollinger has accepted Centrelink’s advice in good faith. As one consequence, that led him to plan a honeymoon in [Country 1] that could have happened in Australia. Mr Bollinger has separately initiated a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration. The merits of that claim are not a matter for the Tribunal.

DECISION

The Tribunal affirms the decision under review.

Date(s) of hearing: Friday, 2 May 2025