Helja Kallioinen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 810

[2012] AATA  810

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1778
Re	Helja Kallioinen
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms N Bell, Senior Member
Date	24 October 2012
Place	Sydney

The Tribunal affirms the decision under review.

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Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – Age Pension – pensioner concession card – residency requirement – decision under review is affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 43(2A)

Social Security Act 1991 (Cth), s 7(3)

REASONS FOR DECISION

Ms N Bell, Senior Member

19 November 2012

1. At the conclusion of this hearing of this application the terms of the decision intended to be made and the reasons for it were stated orally. After service upon the parties of a copy of the decision that was made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to her a statement in writing of the reasons of the Tribunal for the decision.

2. The following statement of reasons, amended and reordered to better exhibit the Tribunal’s reasoning, is drawn from the transcript of the proceedings by Auscript, the Commonwealth Reporting Service.

3. That transcript is annexed to this statement of reasons and furnished to the Applicant and to the Respondent.

4. Ms Kallioinen receives an Australian age pension by virtue of the operation of the international agreement between Australia and Finland.  That agreement makes no provision for pensioner concession cards.

5. The main issue in this application is whether, at the time Ms Kallioinen requested a pensioner concession card and the decision was made to refuse it, she was residing in Australia and thereby met that eligibility requirement for age pension. 

6. Section 7(3) of the Social Security Act1991 (Cth) sets out a number of matters that must be taken into consideration in deciding whether a person is residing in Australia:

   Australian residence definitions

   …

   (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.

7. The nature of Ms Kallioinen’s accommodation in Australia is temporary, usually a boarding house in Kirribilli, because, on her own evidence, she does not know whether she is going to stay in Australia for long or not.  That was the case at the time she requested a pensioner concession card and it is the case now.

8. In Finland Ms Kallioinen owns a bedsit apartment.  That is where she keeps the possessions that she does not have in her suitcase when she travels.  Her household effects are in Finland.  She has some relatives in Finland, but she is not close to them.  She has no relatives in Australia.

9. Ms Kallioinen has a bank account in Finland with approximately 89,000 Euros in it.  She has a bank account in Australia with approximately $26,000 in it. 

10. In the period from 2002 to 2011, Ms Kallioinen was outside Australia for more than 80 per cent of that period.  When she claimed age pension twelve months ago, she had been in Australia for approximately three months, and prior to that she had been away for a full 12 months.  Immediately prior to that, she was in Finland from April 2009 to March 2010.  That is a lot of time outside Australia.

11. For these reasons, I conclude that Ms Kallioinen was not resident in Australia at the time of the decision under review.

12. The Tribunal affirms the decision under review.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated 19 November 2012

Date of hearing	24 October 2012
Applicant	In person
Solicitors for the Respondent	Ms S Forrester, Centrelink Program Litigation & Review Branch