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

Gonen and Secretary, Department of Social Services (Social services second review) [2022] AATA 322 (25 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/6560
Re:Aviva Gonen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:25 February 2022
Place:Sydney

I affirm the reviewable decision made by AAT1 on 14 October 2020 which affirmed the ARO’s decision made on 20 August 2020, which in turn affirmed the decision made on 14 May 2020 to assess the rate of the Applicant’s Age Pension at the pensioner portability rate based on her Australian Working Life Residence.
..........................................................[sgd]....................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY — Age Pension — where Applicant was paid Age Pension at portability rate after 26-week absence from Australia — whether Applicant is a resident of Australia — Reviewable decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 15AA
Social Security Act 1991 (Cth) ss 7, 1212C, 1217, 1220A, 1221
Social Security (Coronavirus Economic Response—2020 Measures No. 16) Determination 2020 (Cth) s 36
CASES
Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Social Security Guide
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
25 February 2022
The reviewable decision

Mrs Gonen (the Applicant) has received Age Pension since 31 January 2011. Her husband died in July 2012. Since 31 August 2012 she has spent most of her time with her two sons who live in different part of the United States, and less time with her daughter who lives in Canada, although she has not been able to visit her during the COVID-19 pandemic. In summary, she has visited Australia since 2012 for the purpose of doing what she understood Centrelink told her was necessary to retain the maximum rate of Age Pension.[1]
[1] Centrelink social security payments and services are delivered by Services Australia. The term “Centrelink” is used throughout this decision.
The reviewable decision was made by the Social Services and Child Support Division of the Tribunal (AAT1) on 14 October 2020. AAT1 affirmed the Authorised Review Officer’s (ARO) decision to pay the Applicant Age Pension at the pension portability rate, following 26 weeks absence from Australia, based on her Australian Working Life Residence. The ARO decision was made on 20 August 2020. The Applicant’s portability rate is roughly a third of the maximum rate of Aged Pension.
Relevant findings of fact by the ARO and other relevant facts
The ARO made the following findings of fact:
After careful consideration of the evidence, I have made these key findings:
-    You have been in receipt of the Age Pension from 31 January 2011.
-    On 30 August 2012 you departed Australia to reside in the United States of America.
-    In 2013 you were present in Australia for 2 weeks 6 days.
-    In 2014 you were present in Australia for 2 weeks 6 days.
-    In 2015 you were present in Australia for 3 weeks 3 days.
-    In 2016 you were present in Australia for 34 weeks 6 days.
-    In 2017 you were present in Australia for 8 days.
-    In 2018 you were present in Australia for 9 days.
-    In 2019 you were present in Australia for 13 weeks 1 day, residing in a hotel.
-    In 2020 you were present in Australia for 5 days.
-    You do not own property or have financial assets in Australia.
-    You have an American bank account.
-    From 2011 your home addresses have been recorded as being in the United States of America.
-    You are no longer a permanent Australian resident and this means you are eligible to receive the proportional rate of Age Pension according to your period of AWLR.
I did not understand the Applicant to dispute the findings in relation to the periods she was in Australia, that she has no property in Australia and that she has an American bank account.
The ARO’s calculation of days the Applicant was present in Australia was accurate except for the following years: 2015 when she was absent for 69 days, 2016 when she was absent for 247 days, and 2019 when she was absent for 98 days. The discrepancies have no bearing on the outcome of this decision. Those calculations are based on the Applicant’s movement records.[2]
[2] T11, 258.
I accept the following evidence that the Applicant gave during the hearing. She has an Australia bank account into which her Age Pension is paid. That is her only financial asset in Australia. She withdraws sums from that account when she is in Australia and takes the cash to the United States. She has no family or friends in Australia and stays in a B&B or a hotel when she is in Australia. She has received medical treatment in hospital while in Australia for a condition that developed while she was here which prevented her from travelling and which explained the length of her stay from February to April 2019. While overseas, she moves between her three children. Her two sons live in the United States and her daughter lives in Canada. She spends a great deal more time in the United States than she spends in Canada. There is no evidence that she has a bank account in Canada.
Following are other relevant facts.
The Applicant was born in 1946 and at the time of the hearing was 74 years of age.
On 26 June 1998, the Applicant began to reside in Australia as the holder of a Subclass 444 Special Category Visa.
On 20 October 2000 she became an Australian citizen.
On 31 July 2015, Centrelink decided that the Applicant was a resident of the United States.
On 14 March 2016, Centrelink decided that the Applicant was an Australian resident.
On 28 January 2020, the Applicant travelled to the United States after a five-day visit to Australia.
On 29 January 2020, Centrelink notified the Applicant by letter that after 26 weeks outside Australia, her rate of Age Pension may be affected by the length of time she was an Australian resident between the age of 16 and Age Pension age.
On 11 March 2020, the World Health Organisation characterised COVID-19 as a pandemic.
On 13 May 2020, the Applicant advised the International Smart Centre of Centrelink that she usually returns to Australia every six months in order to keep or reset her maximum rate of Age Pension but is unable to return due to COVID-19 and concerns for her health. A Centrelink officer advised the Applicant that the portability rules had not changed, and that she would be paid at the pension portability rate if she was outside Australia for six months. The Applicant was not happy with that and thought she should be subject to an exception. She was advised that the rule applied to everyone.
On 14 May 2020, the Applicant contacted a different part of Centrelink, “INTL NOGS EMBARGO“, and inquired about pension reducing after six months. She was advised that that would happen until she could return to Australia. Thereafter her inquiry was treated as a request for review.
On the same day, Centrelink decided the Applicant was a resident of the United States.
On 2 July 2020, the Applicant contacted Centrelink and advised she was still an Australian resident and unable to travel outside her home due to being and ill and the risk of COVID-19 in the United States. She stated her return flight to Australia had been cancelled by the airline due to COVID-19 restrictions and requested further time to return to Australia due to extreme circumstances.
On 10 July 2020, the Applicant contacted Centrelink to query further extension to Age Pension at the non-proportional rate and sought review of the decision that she was a resident of the United States.
On 28 July 2020 the Applicant’s rate of her Age Pension reduced from the fortnightly rate of $884.80 to the portability rate of $309.68, based on an Australian Working Life Resident of 147 months.
The ARO decision affirming the decision made on 14 May 2020 to assess the Applicant’s rate of Age pension at a proportional rate, was made on 20 August 2020. The ARO stated that the main issues were whether the Applicant was permanently residing in Australia and whether she was receiving the correct rate of Age Pension.
The issues to be decided
The issues are as they were before the ARO and AAT1, whether the Applicant is a resident of Australia and whether she is receiving the correct rate of Age Pension.
The Respondent was concerned about the date of 14 May 2020 referred to by the ARO and AAT1 as being inaccurate. However, having reviewed the evidence of contact during that period, I am satisfied that date is correct.
The relevant legislation and policy
The relevant legislation is found in:
·the Social Security Act 1991 (Cth) (the Act); and
·the Social Security (Coronavirus Economic Response—2020 Measures No. 16) Determination 2020 (Cth) (the Determination).
Relevant Government policy is set out in the Social Security Guide (the Guide) and should be applied in the absence of cogent reasons to not follow such policy: Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634 at 645.
Chapter 4 of the Act is entitled International Agreements and portability. Division 2 of Part 4.2 deals with portability of social security payments.
Division 3 of Part 4.2 of the Act deals with the rate of portable payments and includes subsection 1220A(1). That subsection sets out the circumstances in which a person’s Age Pension is to be calculated at the pension portability 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
Section 36 of the Determination varies section 1220A of the Act by adding subsections (6) and (7) which provide:
(6) If:
(a) the 26 weeks mentioned in paragraph (1)(a) ends on or after 11 March 2020; and
(b) the Secretary is satisfied that the person’s absence from Australia is temporary; and
(c) the Secretary is satisfied that the person is unable to return to Australia before the end of that 26-week period because of the impact of the coronavirus known as COVID-19;
the Secretary may, in relation to the person, determine that a reference to 26 weeks in paragraph (1)(a) is taken to be a reference to another number of weeks. However, the Secretary must ensure that the determination does not result in a period referred to in that paragraph that ends after 31 March 2021.
(7) Despite Subdivision B of Division 9 of Part 3 of the Administration Act, a favourable determination (within the meaning of section 108 of that Act) that is made as a result of a determination referred to in subsection (6) of this section may be expressed to take effect on a day earlier than otherwise permitted by that Subdivision. [emphasis added]
The Determination does not define a ‘temporary absence’. The term is relevantly defined in section 1212C of the Act which is found in Division 1 of Part 4.2 and is headed “Preliminary”. That section provides:
1212C Meaning of temporary absence
For the purposes of this Part, a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of subsection 7(3)).
Section 7 of the Act is found in Part 1.2 of the Act, which sets out definitions. Relevantly, subsections 7(2) and (3) of the Act provide:
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
…
(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 Respondent noted that Part 4.2 of the Act includes various allowable ‘temporary absences’ from Australia which relate to other social security payments but are not relevant in this case because Age Pension allows ‘any absence’ from Australia and for ‘an unlimited period’.[3]
[3] Section 1217 of the Act.
Section 1221 of the Act sets out the Pension Portability Rate Calculator, according to which a person’s rate of Age Pension is to be calculated pursuant to subsection 1220A(1) of the Act. Section 1221 relevantly provides:
Module A – Overall rate calculation process
Overall rate calculation process
1221-A1 This is how to calculate a person’s portability rate:
Method statement
Step 1. Work out the period of the person’s Australian working life residence using Module B: the result is called the residence period.
Step 2. Use the persons’ residence period to work out the person’s residence factor using Module C below.
Step 3. Work out the rate that would be the person's pension or allowance rate if this Rate Calculator did not apply to the person: the result is called the person's notional domestic rate.
Step 4. Multiply the person’s notional domestic rate by the person’s residence factor: the result is the person’s portability rate.
…
Module B – Australian working life residence
Working life
1221-B1 For the purposed of this Module, a person’s working life is the period beginning when the person turns 16 and ending when the person reaches person 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 the 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 – 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
Consideration
Pursuant to paragraph 1220A(1)(a) of the Act, the Applicant’s rate of Age Pension should be calculated using the Pension Portability Rate Calculator from 28 July 2020, when she had been continuously absent from Australia throughout a period (the period of absence) of more than 26 weeks, having left Australia on 28 January 2020.
It was not in dispute that the Applicant satisfied paragraph 1220A(6)(a) because the 26-week period ended after 11 March 2020. It was not in dispute that she satisfied paragraph 1220A(6)(c) because she was unable to return to Australia prior to 28 July 2020 because of the impact of COVID-19.
However, the Applicant did not satisfy paragraph 1220A(6)(b) of the Act because her absence from Australia was not temporary. She had ceased to reside in Australia within the meaning of subsection 7(3) of the Act at least from 13 November 2016, when she commenced a period of absence from Australia of 247 consecutive days.
Considering the Applicant’s circumstances as summarised earlier in this decision, she does not meet any of the criteria set out in subsection 7(3) of the Act in relation to Australia, apart from the bank account into which her pension is paid and the periods she has returned to Australia for the purpose of maintaining the maximum rate of Aged pension. She does meet the criteria to be found to reside in the United States and has done so for some years.
Put simply, for the purpose of section 1212C of the Act, the Applicant did not “cease to reside in Australia” throughout her period of absence from Australia which commenced on 28 January 2021, because she had ceased to reside in Australia at least from 2016, about four years earlier. Her absence from Australia, which had continued up until the hearing, was therefore not temporary. She had no intention of residing in Australia. She had an intention to return for brief periods every six months to fulfil what she understood was the necessary minimum requirement to maintain the full rate of Age Pension, as she had in the past.
The Respondent set out quite lengthy contentions supporting its argument that the Applicant’s absence from Australia was not temporary, however, it is unnecessary to consider them in detail as they support the conclusion that I have come to based upon the clear language of the legislation. Those contentions support my conclusion. They included reference to the Explanatory Note relating to the variations made to section 1220A of the Act by section 36 of the Determination, section 15AA of the Acts Interpretation Act 1901 (Cth) and a number of authorities.
The Respondent also provided detailed contentions about whether the Applicant was a resident of the United States, including detailed reference to the Guide which is consistent with the Act, and to decided cases. In this case, those contentions elaborate upon and support the findings of fact that I have summarised earlier in this decision and the law which supports my interpretation of the legislation which I have set out. It is unnecessary to set out those contentions in detail. I make the following observations.
I did not understand the Applicant to assert that she intended to return to Australia to reside here. That would be contrary to her clearly expressed understanding that she only had to return every six months to be able to retain the full rate of Age Pension and her pattern of travel and periods of remaining in Australia which is consistent with that understanding, apart from the period in 2015/2016 when she was seeking to overturn a decision that she resided in the United States, in which she was successful, and in 2019, when she was unable to travel from Australia because of a health condition. Her claim to AAT1 that she viewed Australia as “home” is inconsistent with her concession that she lived permanently overseas, alternating between her children at their homes, and with her past behaviour and lack of links with Australia apart from receipt of the Age Pension into an Australian bank account, and with the periods of travel to Australia for the purpose of maintaining the maximum rate of Age pension.
Is the portability rate correct?
I did not understand the Applicant to contend that the calculation of the rate of pension was incorrect. I can see no error in the calculation set out by the Respondent.
Decision

For the above reasons, I affirm the reviewable decision made by AAT1 on 14 October 2020 which affirmed the ARO’s decision made on 20 August 2020, which in turn affirmed the decision made on 14 May 2020 to assess the rate of the Applicant’s Age Pension at the pensioner portability rate based on her Australian Working Life Residence.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate
Dated: 25 February 2022

Date(s) of hearing: 29 July 2021

Applicant: By telephone

Solicitors for the Respondent: E Ulrick, Services Australia

[2022] AATA 322

25 February 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Date(s) of hearing:	29 July 2021
Applicant:	By telephone
Solicitors for the Respondent:	E Ulrick, Services Australia