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

This matter concerned an appeal by an applicant for an age pension against a decision affirming the rejection of his claim. The sole issue before the Tribunal was whether the applicant was an Australian resident at the time he lodged his claim on 25 August 2015. It was accepted that the applicant met all other qualification requirements for the age pension, including being physically present in Australia when he made the claim. The applicant, an Australian citizen born in Italy, had arrived in Australia in 1979 but departed in 2009 and had primarily resided in India since then. He had made brief visits to Australia in 2011 and 2013 before returning on 22 August 2015 to lodge his claim, departing again on 3 September 2015.

The Tribunal was required to determine the applicant's Australian residency status at the time of his claim, as section 29 of the *Social Security Administration Act 1999* stipulates that a claim for a social security payment can only be made by a person who is an Australian resident and is in Australia. A claim made by a person who is not an Australian resident, or not in Australia, is taken not to have been made. The definition of an Australian resident under section 7(2) of the Act includes a person who resides in Australia and is an Australian citizen, a permanent visa holder, or a protected special category visa holder. Crucially, section 7(3) mandates that in determining whether a person is residing in Australia, regard must be had to specific factors, including the nature of accommodation, family relationships, employment and financial ties, assets in Australia, frequency and duration of travel outside Australia, and any other matter relevant to the person's intention to remain permanently in Australia.

In its reasoning, the Tribunal considered the factors outlined in section 7(3) of the Act, drawing guidance from the *Guide to the Social Security Law* and the principles established in *Drake and Minister for Immigration and Ethnic Affairs*. Regarding accommodation, the Tribunal noted that the applicant did not purchase property in Australia until December 2015, after his claim was rejected, and had stayed in hotels or with family during his previous short visits. In contrast, he jointly owned an apartment in India, purchased in 2015. The Tribunal found that the evidence regarding accommodation did not support the applicant's claim for Australian residency at the time of his claim. Furthermore, while the applicant had family in Australia, the Tribunal observed that his visits to them were infrequent and of short duration, and his claim was lodged during a 12-day visit. The applicant's submission that he intended to return to Australia for retirement and that his absence was temporary was not sufficiently supported by the evidence concerning his established ties and accommodation arrangements at the time of his claim.

The Tribunal affirmed the decision that the applicant was not an Australian resident at the time of his claim for age pension.