Harrison and Secretary, Department of Social Services (Social services second review) - [2017] AATA 411

Harrison and Secretary, Department of Social Services (Social services second review) [2017] AATA 411 (31 March 2017)
Division:GENERAL DIVISION
File Numbers: 2015/5708
Re:Charles Harrison
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member

Date:31 March 2017
Place:Sydney

The decision under review is affirmed.
............................[sgd].................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – family tax benefit – age pension – whether applicant is residentially qualified to receive the age pension – whether applicant an Australian resident to receive the family tax benefit – applicant found to be not residentially qualified or an Australian resident – applicant overpaid family tax benefit – whether debt to Commonwealth should be waived – decision affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) ss 3, 21
Australian Citizenship Act 1948 (Cth), s 13
Social Security Act 1991 (Cth), ss 7, 43, 1223, 1236, 1237A, 1237AAD
Social Security (Administration Act) 1999 (Cth), ss 29, 42
REASONS FOR DECISION
Dr L Bygrave, Member
31 March 2017

The applicant, Mr Charles Harrison, applied for the family tax benefit on 11 November 2013 and the age pension on 12 November 2013. Both claims were subsequently granted to Mr Harrison.
On 21 January 2015, the Department of Human Services (the Department) decided to cancel Mr Harrison’s family tax benefit payments and age pension on the basis that he was not residentially qualified to receive them and had not been residentially qualified from the dates the payments commenced.
The Department decided to raise and recover the following debts from Mr Harrison:
·on 22 January 2015, a family tax benefit debt of $5,628.62 for the period 11 November 2013 to 30 June 2014;
·on 10 March 2015, a family tax benefit debt of $801.90 for the period 1 July 2014 to 14 January 2015; and
·on 11 March 2015, a debt of age pension of $24,922.41 for the period 12 November 2013 to 14 January 2015.
These decisions were affirmed in an internal review by the Department on 29 April 2015.
Mr Harrison appealed to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal. The SSCSD affirmed the Department’s decision on 29 September 2015.
On 31 October 2015, Mr Harrison applied to the General Division of the Administrative Appeals Tribunal for a review of the SSCSD decision.
The matter was heard in Sydney on 20 and 21 February 2017. Mr Harrison attended the hearing in person and was self-represented.
ISSUES
The determinative issues for the Tribunal are whether Mr Harrison:
·was residentially qualified for the purposes of receiving the age pension;
·was an Australian resident for the purposes of family tax benefit;
·has debts to the Australian Government, and if so, whether there are any grounds for waiving all or part of the debts.
RELEVANT LEGISLATION
Qualification for age pension
Mr Harrison applied for the age pension on 12 November 2013.
Section 42 of the Social Security (Administration Act) 1999 (Cth) (Administration Act), provides that the relevant period to assess Mr Harrison’s entitlement to the age pension is the date of his claim or within 13 weeks of his date of claim, that is the period between 12 November 2013 and 11 February 2014.
The payment of all pensions, benefits and allowance under the Social Security Act 1991 (Cth) (Social Security Act) include an Australian residence requirement. The residence requirement for the age pension is set out in subsection 29(1)(a) of the Administration Act and subsection 43(1) of the Social Security Act.
Section 29 of the Administration Act provides:
29 General rule
(1) Subject to sections 30, 30A, 31,31A and 32, a claim for a social security payment or a concession card may only be made by a person who:
(a)is an Australian resident; and
(b)is in Australia.
(2) Subject to sections 30, 30A, 31,31A and 32, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
Section 43 of the Social Security Act states:
43 Qualification for age pension
(1) A person is qualified for an age pension if the person has reached pension age and any of the following applies:
(a)the person has 10 years qualifying Australian residence;
(b)the person has a qualifying residence exemption for an age pension;
(c)the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d)if the person reached pension age before 20 March 1997—the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1: For qualifying Australian residence see section 7.
Note 2: For pension age see subsections 23(5A), (5B) (5C) and (5D).
[emphasis in original]
The definitions for ‘Australian resident’ and ‘qualifying Australian residence’ are contained in section 7 of the Social Security Act:
7 Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning given by subsection (2).
…
qualifying Australian residence has the meaning given by subsection (5).
…
(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;
…
(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.
…
(5) A person has 10 years qualifying Australian residence if and only if:
(a)the person has, at any time, been an Australian resident for a continuous period of not less than 10 years; or
(b)the person has been an Australian resident during more than one period and:
(i) at least one of those periods is 5 years or more; and
(ii) the aggregate of those periods exceeds 10 years.
[emphasis in original]
Qualification for family tax benefit
Mr Harrison applied for family tax benefit on 11 November 2013.
The eligibility criteria for family tax benefit are set out in section 21 of A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act). Subsection 21(1)(b) of the Family Assistance Act requires that a person is an Australian resident in order to receive family tax benefit payments. Section 3 of the Family Assistance Act stipulates the definition of ‘Australian resident’ has the same meaning as in the Social Security Act.
This means that Mr Harrison’s qualification for family tax benefit also requires him to satisfy the definition of Australian resident. However, qualification for family tax benefit does not require Mr Harrison to satisfy 10 years qualifying Australian residence and qualification is determined at the date of claim, rather than the date of claim and the following 13 weeks.
EVIDENCE
The Tribunal considered the following evidence in this decision:
·folio documents (Exhibits T1 (pages 1–591), ST1 (pages 592–1165) and ST2 (pages 1164a, 1165a and 1166–1255) filed by the Department;
·documents (Exhibits A1–A4) filed by Mr Harrison; and
·oral evidence provided by Mr Harrison on 20 and 21 February 2017.
On 23 February 2017, following the conclusion of the Tribunal hearing, Mr Harrison provided a further written submission and three references regarding his employment experiences in Zimbabwe, Thailand and Fiji.
I have regard to the Secretary’s contention that there is no further evidence mentioned in Mr Harrison’s submission that had not been considered in the course of the Tribunal hearing on 20 and 21 February 2017.
I also note that the Secretary has no objections to the references from Zimbabwe, Thailand and Fiji going into evidence. Consequently, the Tribunal takes the following documents into evidence as Exhibit A5:
·Reference by TB Mitchell from Ministry of Water Resources and Development in Zimbabwe dated 24 September 1986.
·Reference by N Welsh from Northeast Village Water Resource Project in Thailand dated 21 December 1989.
·Reference by GG Green from Ministry of Infrastructure and Public Utilities in Fiji dated 13 August 1993.
The facts and the Tribunal’s consideration of the evidence are set out in chronological order below.
September 1948 – 1981
Mr Harrison was born in England in September 1948. He studied civil engineering at Nottingham University and graduated in 1973. He subsequently worked in South Africa and first came to Australia in 1975.[1]
[1] Exhibit A1, Applicant’s statement dated 1 September 2015.
August 1981 – October 1983
On 26 August 1981, Mr Harrison arrived in Australia on a permanent resident visa. He lived with his first wife and their two daughters in Western Australia, and worked for the Western Australian Government. His son with his first wife was born in August 1982.[2]
[2] Exhibit A1, Applicant’s statement dated 1 September 2015.
During this period, he resided with his family in Safety Bay and Dardanup, Western Australia.[3] While the Tribunal has no documentary evidence of Mr Harrison purchasing properties in Safety Bay and Dardanup, his oral evidence to the Tribunal and written statement about this period was consistent.
[3] Exhibit A1, Applicant’s statement dated 1 September 2015.
The Tribunal is satisfied that, for the period of August 1981 to October 1983 (2 years and 2 months), Mr Harrison was residing in Australia on a permanent resident visa.
October 1983 – October 1986
In 1983, Mr Harrison applied for a position with the Australian International Development Assistance Bureau (AIDAB), then the Australian Government Department that managed Australia’s international aid program.
At the Tribunal hearing, Mr Harrison said he worked for AIDAB in Zimbabwe from October 1983 to October 1986. During this period, his family resided in Dardanup although they visited him in Zimbabwe and he periodically returned to visit them in Western Australia. Mr Harrison said his salary was paid by the Australian Government via a managing agent, described by Mr Harrison as ‘a Russian sounding name based in Canberra’,[4] into a Commonwealth Bank account.
[4] Exhibit A4.
Mr Harrison produced emails from the current Aid Management Branch in the Department of Foreign Affairs and Trade (DFAT) dated 8 November 2016 and 8 February 2017, which confirmed that the Australian aid program during this period funded a program of staffing assistance providing the ‘costs of nominated Australian citizens recruited to serve in established public sector positions to provide technical skills in sectors such as … civil engineers … [and] operated in a number of developing countries including Zimbabwe and Fiji’.[5] However, DFAT was unable to confirm that Mr Harrison was employed directly by the Australian Government in the period of October 1983 to October 1986.
[5] Exhibit A4.
A reference by TB Mitchell dated 24 September 1986 noted that Mr Harrison was employed on a three year contract in the Ministry of Water Resources and Development in Zimbabwe.[6]
[6] Exhibit A5.
Based on the evidence, the Tribunal is satisfied that for the period of October 1983 to October 1986, Mr Harrison was employed to work in Zimbabwe on a contract and was paid by an agent who in turn was paid by the Australian Government. The Tribunal is also satisfied that Mr Harrison held an Australian permanent visa and his family continued to reside in Australia.
The Tribunal is not satisfied that Mr Harrison was directly employed by the Australian Government or resided in Australia during this period.
October 1986 – December 1987
Mr Harrison returned to Australia in October 1986. He told the Tribunal he sold his farm in Dardanup and relocated with his family to Tasmania. He worked at a university campus in Launceston and during this period, bought three properties and sold two properties. There are no contemporaneous documents before the Tribunal to support Mr Harrison’s statements. However, there is an unsigned and undated Contract for the Sale of Real Estate, and related emails and correspondence that indicate Mr Harrison sold a property in Tasmania in 2003.[7]
[7] Exhibits ST15 and ST16, pp 736-760.
Mr Harrison said his marriage to his wife concluded and she returned to England in 1987.
In December 1987, Mr Harrison became an Australian citizen as he met the residence requirements at that time as set out in the Australian Citizenship Act 1948 (Cth) (Citizenship Act). Subsections 13(1)(d) and (e) required a person to have been present in Australia as a permanent resident for a period of one year during the 2 years immediately preceding the application, and periods amounting in the aggregate to 2 years during the period of 5 years immediately preceding the application.
The Tribunal is satisfied that, for the period of October 1986 to December 1987 (1 year and 2 months), Mr Harrison was residing in Australia on a permanent resident visa and he became an Australian citizen in December 1987.
1988 – 1991
Mr Harrison’s written[8] and oral evidence for the period 1988 to 1991 is inconsistent.
[8] Exhibit A1, Applicant’s statements dated 1 September 2015 and 22 February 2016.
Mr Harrison stated that in early 1988, he went to Thailand to work as a civil engineer on a four-year contract with AIDAB. The managing agent for his contract was MPW, a company later purchased by Coffey, which provided project management services.
While DFAT confirmed the Australian aid program funded a project in Thailand called the Northeast Village Water Resource Project from 1986 to 1992, DFAT was unable to Mr Harrison’s statement that he was employed by the Australian Government in the period of 1988 to 1991.[9]
[9] Exhibit A4.
A reference by N Welsh from the Northeast Village Water Resource Project dated 21 December 1989 confirmed that Mr Harrison was employed as Project Engineer on the Thai Australia Water Resources Project in Thailand.[10] This reference did not set out periods of employment or which agency paid Mr Harrison’s salary.
[10] Exhibit A5.
At the Tribunal hearing, Mr Harrison said that he met and began a relationship with his second partner shortly after he arrived in Thailand, and this relationship continued until 1991 when his partner left him and went to the United States of America.
Mr Harrison’s oral evidence to the Tribunal was not consistent. On 20 February 2017, he said his partner came to Australia and they lived in South Australia ‘for a few months’. On 21 February 2017, he said he married his partner towards the end of 1989 and they lived together in South Australia until 1991. He told the Tribunal he worked for Kinhill Engineers in Adelaide and undertook contracts in India.
Mr Harrison’s statement dated 1 September 2015 noted he purchased three properties in Adelaide and sold two of these properties during this period. However, this is not supported by Centrelink records for Mr Harrison that documented his addresses in Adelaide in February 1992 and October 1993, which is after this period.[11]
[11] Exhibit T75, p 503.
Mr Harrison also stated that he worked for the Government in Papua New Guinea (PNG) in 1989, when he contracted cerebral malaria that resulted in his hearing impairment.[12] At the Tribunal hearing, Mr Harrison said he worked for Unitech, which received funding from AIDAB, and agreed his contract was not with the Australian Government.
[12] Exhibit A1, Applicant’s statement dated 1 September 2015.
There is no evidence before the Tribunal that Mr Harrison was residing in Australia between 1988 and 1991. Mr Harrison has stated that he worked in Thailand, PNG, India and Australia during this period. However, there are no documents before the Tribunal to support any of Mr Harrison’s statements about the dates – or even broad timeframes – of where he lived and the work he completed during this period. Furthermore, Mr Harrison’s statements are unclear, inconsistent and contradictory. Consequently, the Tribunal cannot be satisfied that Mr Harrison was directly employed by the Australian Government or resided in Australia from 1988 to 1991.
1991 – 1997
Mr Harrison departed Australia about September 1991 to undertake a four-year contract ‘working on an AIDAB assignment’ in Fiji.[13] Mr Harrison told the Tribunal that his employment contract was managed directly with AIDAB.
[13] Exhibit A1, Applicant’s statement dated 1 September 2015.
A reference by GG Green from the Ministry of Infrastructure and Public Utilities in Fiji dated 13 August 1993 stated that Mr Harrison worked in the Public Works Department from July 1991.[14] Further documentary evidence about Mr Harrison’s employment in Fiji is a Claim for Newstart Allowance form he completed on 8 October 1996 in which he stated his last job was with ‘Gov^mof Fiji’ [sic] in Suva, a position that finished in July 1993.[15]
[14] Exhibit A5.
[15] Exhibit ST1-ST2, p 598.
These documents are inconsistent with Mr Harrison’s statement that he worked for the Australian Government in Fiji over a four-year period from 1991 to 1995.
Between 1991 and 1998, Mr Harrison had two relationships with women in Fiji. With his third partner, he had four children between July 1993 and September 1998; and with his fourth partner, he had a child in 1994 and accepted paternity for another three children born between 1996 and 1998.
It is difficult to extrapolate from Mr Harrison’s evidence the extent to which he was in Australia, Fiji or elsewhere between 1991 and 1997. His oral evidence about where he resided while working in Fiji changed over the two days of the hearing. On 20 February 2017, he told the Tribunal that a property lease he purchased at Fletcher Road in Suva was the ‘matrimonial’ home for him and his third partner, and they lived there in the early-mid 1990s. This home was destroyed by a cyclone in 2013 but in 2015 he was still paying rates for this property.[16] On 21 February 2017, Mr Harrison said he lived in rental premises in Suva that were provided in accordance with his work contract between 1991 and 1995, and he did not purchase the lease of the Fletcher Road property in Suva until 2000.
[16] Exhibit ST2, p 1182.
Mr Harrison told the Tribunal that he married his fourth partner after the birth of their child in 1994 and they subsequently moved to Adelaide before divorcing in 1997.
The Tribunal has Mr Harrison’s immigration records from September 1994, which document Mr Harrison’s arrival in and departure from Australia. These records show that from 1995 to 1997, Mr Harrison spent:
1995: 63 days in Australia and 302 days outside Australia.
1996: 55 days in Australia and 310 days outside Australia.
1997: 125 days in Australia and 240 days outside Australia.[17]
[17] Exhibit R1.
1998 – 2000
Mr Harrison provided limited oral evidence to the Tribunal about where he resided between 1998 and 2000.
Centrelink records document that Mr Harrison provided an address in Coffs Harbour in January and February 1998 and May 1999.[18] On 22 January 1998, Mr Harrison completed forms to receive child support for three of his children with his third partner as his partner was living in Fiji.[19] A statement by Mr Harrison dated 10 February 1998 refers to his relationship with his third partner, her visa issues and subsequent travel to New Zealand.[20] A further statement by Mr Harrison dated 24 February 1998 noted his intention to travel to Fiji with his children and stated he would not be reconciling with his third partner.[21]
[18] Exhibit T75, p 503.
[19] Exhibit T71, p 432.
[20] Exhibit T69, pp 413-414.
[21] Exhibit T66, p 373.

At the Tribunal hearing, Mr Harrison said that in about 1998, his third partner moved to Australia but was unhappy and subsequently moved to New Zealand. He further noted his fourth child with this partner was born in September 1998.
Documents before the Tribunal may show Mr Harrison moved from Coffs Harbour to Armidale around August 1999. An unsigned letter from Mr Harrison to a removalist company noted that he will only be at the property for a short time,[22] and council notices are in the name of ‘CA Williams’.[23] The Tribunal places limited weight on this evidence because the documents are unsigned and not in the name of ‘Charles Harrison’.
[22] Exhibit ST16, p 762.
[23] Exhibit ST17, pp 767-779.
Mr Harrison’s immigration records for 1998 to 2000 show he was in Australia for:
1998: 69 days in Australia and 296 days outside Australia.
1999: 56 days in Australia and 309 days outside Australia.
2000: 73 days in Australia and 292 days outside Australia.[24]
[24] Exhibit R1.
2000 – 2013
Mr Harrison resided in Zimbabwe from 2000 to 2007. He purchased a compound (described as a house on a quarter acre block) in Mutare in 2000;[25] as he is not a citizen of Zimbabwe he is unable to legally own land and so continues to hold this property on trust. Mr Harrison met and lived with his fifth partner in Zimbabwe, and they had three children born between 2002 and 2008. Centrelink records show that on 13 October 2003, Mr Harrison lodged a claim for family tax benefit for his two eldest children with his fifth partner.[26]
[25] Exhibit ST2, p 1208.
[26] Exhibit T65, p 333-364.
Mr Harrison’s living arrangements in 2006 are unclear and contradictory. In 2006, Mr Harrison advised Centrelink that he was permanently residing in Zimbabwe.[27] However, at the Tribunal hearing, Mr Harrison said that he lived in Adelaide in 2006 and worked for Kinhill Engineers and assisted with a project in India. He said that he travelled between Adelaide, where he undertook deskwork, and India. Mr Harrison also provided a statement to Centrelink dated 29 November 2012 noting he was employed by Kinhill Engineers in Adelaide in 2006.[28] Mr Harrison’s statements at the Tribunal hearing and to Centrelink on 29 November 2012 are not supported by his immigration records that show he was in Australia for a total of 17 days in 2006.[29]
[27] Exhibit T74, p 494.
[28] Exhibit ST1-ST3, p 629.
[29] Exhibit R1.
Mr Harrison had a relationship with his sixth partner in Kenya from 2008, and they had three children together between 2009 and 2015. In a written statement seeking an extension for his matter to be heard by the Tribunal, Mr Harrison noted he had another daughter who was born in 2009 to a woman from Uganda.[30]
[30] Exhibit A1, Applicant’s statement dated 14 September 2016.
On 16 June 2011, Mr Harrison provided a statement to Centrelink that:
… for the past 2 years, I have been living in Zimbabwe at my ex-wife’s compound. Undertaking repairs and growing food.[31]
[31] Exhibit T6, p 74.
In November 2013, Mr Harrison arrived in Australia and lodged claim forms for family tax benefit and aged pension. In December 2013, he purchased a property at Moad Place Orange and he continues to pay utilities and related expenses for this property.[32]
[32] Exhibit A2.
There is also evidence before the Tribunal that Mr Harrison owned property in New Zealand, including a property at Taupo Road, Taumarunui in November 2013.[33]
[33] Exhibit ST2, pp 1209-1210.
Mr Harrison’s immigration records for 2001 to 2013 show he spent a total of 317 days in Australia over a 13-year period. This is an average of approximately 24 days per year.[34]
[34] Exhibit R1.
2014 – 2016
Mr Harrison departed Australia in May 2014. Mr Harrison told the Tribunal that his mother passed away so he returned to the United Kingdom to attend her funeral and deal with related issues. He then travelled to Zimbabwe and worked in Lesotho.[35]
[35] Exhibit ST2, pp 1240-1244.
In July 2015, Mr Harrison came to Australia with his sixth partner and their three children. His partner continues to reside in his home in Orange but they are now separated.[36]
[36] Exhibit ST1-ST7, pp 668-680.
Documents before the Tribunal indicate Mr Harrison purchased additional properties in New Zealand in September 2015.[37]
[37] Exhibit ST2, p 1225-1229
Mr Harrison’s travel records show he spent 136 days in Australia between 3 July 2015 and 7 June 2016. This included a period of 100 days from December 2015 to March 2016, which is the longest continuous time Mr Harrison has spent in Australia since computerised immigration records commenced in September 1994.[38]
CONSIDERATION
[38] Exhibit ST1-ST12, pp 704-706.
Was Mr Harrison residentially qualified for the purposes of receiving age pension?
Section 43 of the Social Security Act relevantly requires that a person qualifies for the age pension if the person has reached pension age and has 10 years qualifying Australian residence.
The Tribunal is satisfied that Mr Harrison was born in 1948 and so has reached the pension age.
In determining whether or not Mr Harrison has resided in Australia between 1981 and 2013, the Tribunal has had regard to the factors set out in section 7(3) of the Social Security Act, which are addressed below.
The nature of the accommodation used by the person in Australia
Mr Harrison asserts that he has maintained a property in Australia since 1981 and despite living overseas for extensive periods, has always viewed Australian as ‘home’. There is evidence that Mr Harrison sold a property in Tasmania in 2003 and at various times he has been able to provide Centrelink with addresses in Adelaide, Coffs Harbour, Armidale and Orange. There is documentary evidence that he purchased a property in Moad Place, Orange in December 2013 and he told the Tribunal he continues to own this property although he does not currently live there.
There is also evidence before the Tribunal that Mr Harrison has maintained a property in Fiji since the 1990s; purchased a property in Zimbabwe in 2000, which he continues to own on trust; and currently owns property in New Zealand in which his third partner and some of their children reside.
The nature and extent of the family relationships the person has in Australia
Mr Harrison has had children with partners from the United Kingdom, Fiji, Zimbabwe, Kenya and Uganda; and has families and children currently living in Australia, New Zealand, Fiji and Uganda. He told the Tribunal he has not returned to Britain since his mother passed away in 2014.
The nature and extent of the person’s employment, business or financial ties with Australia
Mr Harrison has limited employment, business and financial ties to Australia. He has been a member of the Institution of Engineers Australia since 1982;[39] a professional membership for his work as a civil engineer. He has an Australian passport and drivers licence, and also maintains a United Kingdom passport and United Kingdom drivers licence.
[39] Exhibit ST1-ST25, pp 889, 891, 894.
Mr Harrison told the Tribunal that he has not worked or lodged a tax return with the Australian Tax Office since the late 1990s. However, documents before the Tribunal indicate he worked at least on the following occasions:
·Singapore in May 2013;[40]
·Afghanistan in October 2013;[41]
·Lesotho in February 2015;[42]
·Kiribati in March 2016.[43]
[40] Exhibit ST2, pp 1188-1195.
[41] Exhibit ST2, p 1223.
[42] Exhibit ST2, pp 1240-1243.
[43] Exhibit ST2, p 1177.
When Mr Harrison was shown these documents at the Tribunal hearing, he conceded he had worked on these occasions but had not provided any details of his salary to the Australian Government because he thought his income was under the tax-free threshold.
The nature and extent of the person’s assets located in Australia
When Mr Harrison applied for the aged pension on 12 November 2013, he declared his savings totalled $4,200 in a National Australia Bank account.[44]
[44] Exhibit T1-T32, p 190.
However, this is not an accurate representation of Mr Harrison’s assets. Documents before the Tribunal show Mr Harrison also held at least the following bank accounts and balances:
·Barclays Bank Account in the United Kingdom – balance £3,943 on 8 May 2013;[45]
·Heartland Bank in New Zealand – balance of NZ$57,850 on 25 August 2013;[46]
·Standard Chartered Bank in Dubai – balance of US$74,451 on 31 October 2013.[47]
[45] Exhibit ST2, p 1183.
[46] Exhibit ST2, p 1184.
[47] Exhibit ST2, p 1223.
An Ord Minnett Portfolio Valuation dated 12 November 2013 stated Mr Harrison held shares valued at A$213,584, which provided an estimated annual income of A$7,521.[48] Mr Harrison told the Tribunal these shares were sold to pay for his property at Moad Place Orange; however, this Portfolio was still valued at A$88,176 on 21 January 2015.[49]
[48] Exhibit A2.
[49] Exhibit A2.
The frequency and duration of the person’s travel outside Australia
Immigration records for Mr Harrison show that between 1995 and 2013, he spent 758 days in Australia and 6177 days outside Australia.[50] This means that he spent approximately 12 per cent of his time in Australia.
[50] Exhibit R1.
The pattern of Mr Harrison travel to Australia between 1 September 1994 and 7 June 2016 show that he usually travels to Australia for a few days or weeks at any time. As noted in paragraph 68 above, the longest single time he has spent in Australia since September 1994 was 100 days from December 2015 to March 2016.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
There is no evidence before the Tribunal that demonstrates Mr Harrison has any intention to permanently reside in Australia.
Mr Harrison told the Tribunal that he could not afford to live in Australia unless he received the age pension. This statement is not consistent with Mr Harrison’s travel movements when he received the age pension in November 2013. On that occasion, he left Australia for a 3-week holiday in January 2014 and then left Australia in May 2014 for the subsequent 14 months.
Conclusion
The Tribunal accepts Mr Harrison’s statement that he views Australia as ‘home’. However, since Mr Harrison arrived in Australia in August 1981 on a permanent resident visa, there are only two periods of time in which the Tribunal can be satisfied he resided in Australia. These periods are August 1981 to October 1983 and October 1986 to December 1987, a total of 3 years and 4 months.
The evidence before the Tribunal does not show that Mr Harrison worked for the Australian Government when he undertook contracts as a civil engineer in Zimbabwe from October 1983 to October 1986, in Thailand from 1988 to 1991 or in Fiji from 1991 to 1995. Indeed, the contradictory and inconsistent evidence that Mr Harrison has provided to the Department and the Tribunal raises significant questions regarding the validity of Mr Harrison’s statements about where he resided and worked in the periods between 1988 and 1991, 1991 to 1997, 1998 to 2000, 2000 to 2013 and 2013 to 2016.
The most transparent evidence before the Tribunal about Mr Harrison’s residency in Australia is the frequency and duration of his time in Australia and travel outside of Australia. Mr Harrison’s immigration records show that for the period from 1994 to 2013, he has only spent 12 per cent of his time in Australia.
Mr Harrison told the Tribunal this lifestyle of overseas travel has been ‘thrust upon him’ due to his work as a civil engineer and his families living in Fiji, New Zealand, Zimbabwe and Kenya.
The Tribunal does not accept this proposition.
Mr Harrison told the Tribunal he has not worked since the late 1990s. Documents before the Tribunal, however, indicate Mr Harrison has undertaken contract work as a civil engineer at least between 2013 and 2016, and he returned to Australia in at least 1996, 1998 and 2003 to apply for social security payments before again travelling overseas.
Moreover, Mr Harrison has provided statements to Centrelink that he is permanently residing overseas. He holds properties in New Zealand, Zimbabwe and Fiji, as well as having significant financial holdings in overseas bank accounts.
The pattern of Mr Harrison’s travel to Australia between 1988 and 2016 does not reflect a person who intends to permanently remain in Australia. Rather, it suggests he visits Australia periodically before departing.
As the Tribunal is satisfied Mr Harrison has only resided in Australia for a total of 3 years and 4 months, he does not meet the requirement of 10 years qualifying Australian residence because he does not meet either the criteria in subsections 7(5)(a) or 7(5)(b) of the Social Security Act.
Finally, the Tribunal notes that Mr Harrison’s claim for age pension and pension bonus signed on 11 November 2013 did not disclose the current status of his relationship, the history of his travel records, or his income and assets.[51]
[51] Exhibits T31 and T32.
Was Mr Harrison an Australian resident for the purposes of family tax benefit?
For the reasons set out in paragraphs 69 to 94 above, the Tribunal is satisfied that Mr Harrison was not an Australian resident for the purposes of receiving family tax benefit.
The Tribunal notes that Mr Harrison’s claim for paid parental leave and family assistance signed on 11 November 2013 did not disclose his travel in the three years prior to the application or all of his financial investments.[52]
[52] Exhibit T30, pp 113-159.
Does Mr Harrison have debts for the period of 11 November 2013 to 14 January 2015?
Subsection 1223(1) of the Social Security Act provides:
1223 Debts arising from lack of qualification, overpayment etc.
(1)Subject to this section, if:
(a)a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…
Based on the evidence, the Tribunal is satisfied that Mr Harrison was not residentially qualified for the purposes of receiving the age pension nor was an Australian resident for the purposes of receiving family tax benefit.
The Tribunal is satisfied that Mr Harrison was overpaid the family tax benefit debt in the amounts of $5,628.62 for the period 11 November 2013 to 30 June 2014, $801.90 for the period 1 July 2014 to 14 January 2015, and overpaid the age pension in the amount of $24,922.41 for the period 12 November 2013 to 14 January 2015.
Are there any grounds for writing off or waiving all or part of the debt?
Should the debt be written off?
Section 1236 of the Social Security Act provides, in part:
1236Secretary may write off debt
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
…
There is no evidence to suggest that any of the conditions set out in subsection 1236(1A) are met. The Tribunal is not satisfied that the debt should be written off.
Should the debt be waived by reason of ‘administrative error’?
Pursuant to section 1237A of the Social Security Act, a debt arising from error may be waived:
1237A Waiver of debt arising from error
Administrative error
(1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
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There is no evidence of sole administrative error by the Commonwealth in relation to this debt. The Tribunal is not satisfied the debt should be waived due to administrative error.
Should the debt be waived by reason of ‘special circumstances’?
Section 1237AAD of the Social Security Act provides:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)The debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
As noted in paragraphs 94 and 96 above, Mr Harrison did not disclose information about his financial situation, travel records or his current relationship when he completed his claims for the aged pension and family tax benefit in November 2013. At the Tribunal hearing, Mr Harrison acknowledged he should have declared this information to the Department.
I am not satisfied that any or all of Mr Harrison’s debts should be waived.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[sgd]..........................................
Associate
Dated: 31 March 2017

Dates of hearing: 20 and 21 February 2017

Date final submissions received: 3 March 2017

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

Dates of hearing:	20 and 21 February 2017
Date final submissions received:	3 March 2017
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services