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

This matter concerned an appeal by Mrs Kocaburak against a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) affirming Centrelink's rejection of her claim for an age pension. The core dispute revolved around whether Mrs Kocaburak met the requirement of 10 years of qualifying Australian residence to be eligible for the age pension. Mrs Kocaburak, a Turkish national who migrated to Australia in 2006, had spent a significant period, approximately five years and seven months, in Turkey between October 2007 and May 2013.

The legal issue before the Tribunal was to determine whether Mrs Kocaburak was an Australian resident during her extended absence in Turkey, thereby impacting her eligibility for the age pension. Specifically, the Tribunal had to consider the factors outlined in subsection 7(3) of the relevant Act to assess her residency status, particularly in light of the lengthy period she spent outside Australia. The Tribunal was required to weigh her stated intention to return to Australia against her physical ties and activities during her time in Turkey.

The Tribunal reasoned that while Mrs Kocaburak maintained some ties to Australia, including stable accommodation and family relationships, her prolonged absence of over five years in her country of birth, where she partly owned a house, received a pension, and maintained local relationships, weighed heavily against her being considered an Australian resident during that period. Applying the principles from the Guide to Social Security Law, the Tribunal emphasised that for Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be of short duration, and there must be a clear purpose and proposed end date. The Tribunal concluded that the length of Mrs Kocaburak's absence meant her physical ties to Australia were not sufficiently re-established or maintained, and her intention to return, while genuine, was outweighed by the duration and circumstances of her time overseas. Consequently, the Tribunal affirmed the decision that Mrs Kocaburak did not meet the 10-year qualifying Australian residence requirement.