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

This matter concerned an application for review of a decision by the Secretary, Department of Social Services, regarding the applicant's eligibility for a disability support pension while overseas. The applicant, who had been granted Australian citizenship in 2007, departed Australia on 13 January 2009 and did not return until 22 February 2015, remaining in Bangladesh for over six years due to significant mental health issues. Upon his return, Centrelink determined that a two-year non-portability period applied to his disability support pension from 22 February 2015 to 22 February 2017, meaning the pension was not payable during any period he was outside Australia within that timeframe. The applicant sought to challenge this decision, arguing he remained an Australian resident throughout his absence and was therefore entitled to portability of his pension.

The primary legal issues before the Tribunal were whether the applicant was an Australian resident for the period he was overseas from 13 January 2009 to 21 February 2015, whether he was eligible for portability of his disability support pension during the two-year period from 22 February 2015 to 22 February 2017, and whether he was eligible to be paid the pension while overseas from 13 December 2016 to 27 February 2017. The Tribunal was required to interpret and apply the provisions of the Social Security Act 1991 (Cth), particularly concerning the definition of an Australian resident and the portability provisions for disability support pensions.

The Tribunal found that the applicant was not an Australian resident for the purposes of the Act during the period from 13 January 2009 to 21 February 2015. This conclusion was based on an assessment of the matters set out in subsection 7(3) of the Act, which include the nature of accommodation, family relationships, and employment or financial ties with Australia. The Tribunal was satisfied that during this period, the applicant had no accommodation or family in Australia, his financial ties were negligible, and he remained outside Australia. Consequently, the Tribunal determined that the applicant ceased to be an Australian resident when he departed on 13 January 2009 and again became an Australian resident upon his return on 22 February 2015. Applying subsection 1220(1) of the Act, the Tribunal found that the applicant was not eligible to be paid disability support pension for any period he was outside Australia from 22 February 2015 to 22 February 2017, as this fell within the two-year non-portability period. The Tribunal also noted that the applicant's pension payments were suspended when he departed Australia on 13 December 2016 and resumed upon his return on 28 February 2017.