Lester; Secretary, Department of Social Services and (Social services second review) - [2021] AATA 1575

Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 (3 June 2021)
Division:GENERAL DIVISION
File Number: 2020/2625
Re:Secretary, Department of Social Services
APPLICANT

AndKen Lester
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:3 June 2021
Place:Perth

The Reviewable Decision, being the decision of an authorised review officer of Centrelink dated 29 January 2020, as set aside by the AAT1 on 31 March 2020, is set aside.
It is substituted with a new decision that the Respondent was not an Australian resident when he lodged his claim for age pension on 25 June 2018. Therefore, he was not qualified to receive an age pension under s 43(1) of the Social Security Act 1991 (Cth) because, pursuant to s 29(2) of the Administration Act, his claim was taken not to have been made.
.................[Sgd].......................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions and benefits – age pension – residency – appeal by Secretary from AAT1 – determination of the reviewable decision where ambiguity in AAT1 decision – whether Respondent qualified to receive age pension – whether the Respondent was an Australian Resident at the time he lodged his claim – factors to be taken into account to determine if a person is residing in Australia – Reviewable Decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act (Cth) – s 43(1)
Social Security Act 1991 (Cth) – ss 7(2), 7(3), 7(3)(a), 7(3)(b), 7(3)(c), 7(3)(d), 7(3)(e), 7(3)(f), 43(1)
Social Security (Administration) Act 1999 (Cth) – ss 29, 29(2), 179, 179(1), 179(2)(c), 179(2)(d)
CASES
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
Goodfellow and Department of Social Security [1992] AATA 301
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Re Clifopoulos and Secretary, Department of Social Security [1994] AATA 282
Re Hafza v Director-General of Social Security (1985) 6 FCR 444
Re Wybrow and Secretary, Department of Social Security [1992] AATA 315
Department of Social Security and Steficek (unreported, Decision No 5392, 22 September 1989)
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide – paras 3.1.1.10, 3.1.1.10.1, 3.1.1.10.2, 3.1.1.10.3, 3.1.1.10.4, 3.1.1.10.5, 3.1.1.10.6,
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
3 June 2021
BACKGROUND TO THE APPLICATION

The Respondent is 71 years of age. He was born in Australia and is an Australian citizen (T5/104, 106; T19/189).
The Respondent’s wife is an Indonesian national (T5/106). The Respondent and his wife married in Indonesia in 2008 and were married again in Australia according to Australian law in 2010 (T2/11; T5/111). The couple have two young children who are Australian citizens with Australian passports (transcript/19).
The Respondent lodged a claim for an age pension on 25 June 2018 (T5/100–39).
On 10 September 2018, the Respondent’s claim for an age pension was rejected because the Department of Human Services, now Services Australia (Centrelink) had not received a reply to letters they sent him asking him to provide information (T8/144–45).

On 25 September 2018, the Respondent requested a review of Centrelink’s decision to reject his claim for an age pension (T14/166).
On 23 January 2019, Centrelink varied the decision to reject the Respondent’s claim for an age pension. This decision found that the Respondent was ineligible for age pension on the basis that he was not living in Australia on a permanent basis (T9/146). On 16 January 2020, the Respondent requested a review of this variation decision (T14/166).
However, on 29 January 2020, an Authorised Review Officer (ARO) of Centrelink affirmed the variation decision to reject the Respondent’s claim for an age pension on the basis that he did not satisfy the residence requirements (T14/165–68) (ARO Decision).
The Respondent successfully appealed the ARO Decision to the Social Services and Child Support Division (AAT1) of this Tribunal. The decision of the AAT1 will now be discussed in more detail.
THE REVIEWABLE DECISION
On 31 March 2020, the AAT1 decided the application for age pension in the Respondent’s favour. The AAT1 Decision was (T2/10):
The Tribunal sets aside the decision under review and, in substitution:
· decides that Mr Lester is, and at the time of his claim for the age pension was, an Australian resident for social security purposes; and
· remits the matter to the Secretary to assess the claim.
(Emphasis added.)
The AAT1 decision itself is curious because s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) does not permit a decision to be substituted and remitted; rather, the Tribunal can set aside a reviewable decision and then substitute or remit. Section 43(1) provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(Emphasis added.)
The wording of the AAT1 decision creates difficulty for this Tribunal in determining the Reviewable Decision under s 179 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) which provides:
Application for AAT second review
(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2)For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a)if an AAT first review affirms a decision—that decision as affirmed; or
(b)if an AAT first review varies a decision—that decision as varied; or
(c)if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or
(d)if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.
(Original emphasis.)
By virtue of s 179(1), the AAT2 clearly has jurisdiction to review a decision of the AAT1 under s 43(1) of the AAT Act. The Tribunal finds that although there is ambiguity in the wording of the decision, there is no doubt that the decision was made under s 43(1) and therefore that the AAT2 has jurisdiction to review it. It is, however, unclear as to exactly what the decision of the AAT1 is. That is, whether it is a decision described by s 179(2)(c) or 179(2)(d) of the Administration Act.
This Tribunal notes the following wording at the end of the AAT1 reasons for decision (T2/12):
… the Tribunal finds that at the time he claimed the age pension, Mr Lester was an Australian resident for social security purposes and his claim should not have been rejected on the basis that he was not.
The claim should be remitted to the Secretary for assessment.
(Paragraph numbers omitted.)
This Tribunal infers from this wording that the AAT1 most probably intended to set aside the ARO Decision, and remit it to the Secretary with a direction that the Respondent was an Australian resident for social security purposes so that the Secretary could then assess the remaining eligibility requirements of the Respondent’s age pension claim. Therefore, the AAT1 decision is most likely a decision contemplated by s 179(2)(d) of the Administration Act. However, even if this Tribunal similarly decides in favour of the Respondent, this Tribunal will need to vary the AAT1 Decision to correct it.
Thus, broadly speaking, it is the ARO Decision of 29 January 2020, as set aside by the AAT1 on 31 March 2020, that is the Reviewable Decision currently before the Tribunal.
The Secretary received the AAT1 Decision on 9 April 2020 (T1/2). On 5 May 2020, the Secretary sought review of the Reviewable Decision (T1) in the General Division of this Tribunal (AAT2) on the basis that the AAT1 “erred in finding that [the Respondent] had satisfied subsection 7(2) of the Social Security Act 1991 and section 29 of the Social Security (Administration) Act 1999”.
ISSUE
The issue for determination by the Tribunal is whether the Respondent was qualified to receive an age pension as at 25 June 2018 when he lodged his claim. This will depend on whether the Respondent was an Australian resident at that time.
RELEVANT LEGISLATION
Qualification requirements for age pension
Section 43(1) of the Social Security Act 1991 (Cth) (the Act) sets out the qualifying requirements for an age pension:
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).
(Original emphasis.)
Australian resident
An “Australian resident” is defined in s 7(2) of the Act as follows:
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.
(Original emphasis.)
Relevantly, s 29 of the Administration Act provides that a claim for social security can only be made by a person who is an Australian resident in Australia. It provides:
(1)Subject to sections 30, 30A, 31 and 31A, 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 and 31A, 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.
The Secretary does not dispute that the Respondent is an Australian citizen. However, the Secretary contends that the Respondent was not an Australian resident at the time he made his claim for an age pension, as required by s 29 of the Administration Act (Secretary’s Statement of Facts, Issues and Contentions (SFIC) paras [23]–[24]).
Whether a person is resident in Australia
Section 7(3) of the Act sets out the factors that should be considered when determining whether a person is residing in Australia. It provides:
(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 Guides to Social Policy Law: Social Security Guide (the Guide), at [3.1.1.10], gives the following guidance to decision makers who are applying the factors in s 7(3) of the Act:
When making a determination about whether a person is ‘residing’ - in other words ‘living’ - in Australia, the key point is to establish that Australia is the person’s settled or usual place of abode - i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than 1 country at the same time. In most cases, the balance of a person’s ties will weigh more heavily in favour of one country than another.
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in SSAct section 7(3).
The application of the factors listed in s 7(3) of the Act has been discussed in the case law.
In Re Hafza v Director-General of Social Security (1985) 6 FCR 444, Wilcox J stated at 449:
There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) (1941) 64 CLR 241 at 249, by Williams J.:
“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place —even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VR 383 — a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place — Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at p 149 — together with an intention to return to that place and an attitude that that place remains “home”: see Norman v Norman (No 3) (1969) 16 FLR 231 at 236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place — see the facts of Lysaght (supra) and the reference by Williams J to “a home or homes” — and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.
(Emphasis added.)
The factors in s 7(3) are not exhaustive and no single factor is conclusive. In Re Wybrow and Secretary, Department of Social Security [1992] AATA 315 at [22] (Wybrow), Deputy President McMahon explained:
It is true that s 7(3) of the Act now requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia. They are, however, not expressed to be exhaustive and do not detract from the general observations which His Honour made in relation to the ordinary concept of residence.
In Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 (Killick), Senior Member Toohey discussed s 7(3) of the Act and relevant case law concerning s 7(3), including Re Clifopoulos and Secretary, Department of Social Security (1994) 36 ALD 745 and Wybrow.
The Senior Member observed that no single factor in s 7(3) is determinative and that the factors in s 7(3) are there to guide the decision-maker, who will consider the specific facts of each individual case [18]–[22]. For completeness, references to an “applicant” in the following discussion of the case law refer in the current application to the Respondent.
In Re Clifopoulos and Secretary, Department of Social Security [1994] AATA 282; (1995) 36 ALD 745 at 747, the Tribunal described its task in applying s 7(3) as follows:
The principles set out above codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident. The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that constitute the criteria will vary in each case. In the end, as is apparent from the wording in section 7(3),(f), the criteria are there to guide the decision-maker in determining the person’s intention as to the place of residence. As was submitted by [the Department], when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the [nature] of the applicant’s accommodation outside Australia.
The considerations in s 7(3) are there to guide the decision-maker in assessing the totality of an applicant’s circumstances; the determination will depend on the facts as found in relation to each individual applicant. No one factor on its own is likely to be determinative.
So, for example, in Re Wybrow and Secretary, Department of Social Security [1992] AATA 315, an absence from Australia for eight years except for one brief period did not preclude a finding that the applicant remained resident in Australia; the Tribunal was satisfied that the applicant had retained his connections to Australia and had only ephemeral connections to Japan.
An applicant’s intention is an important consideration in determining his or her residence. The Tribunal has found that, where a person intends to be absent for a limited time and for a “singular passing purpose”, an absence of seven years is not necessarily incompatible with residence: Re Secretary, Department of Social Security and Mosca [1998] AATA 586.
However, a mere statement of intention is not sufficient. It needs to be assessed in light of all the evidence about the applicant’s circumstances in order to determine what weight it should be given.
(Emphasis added.)
Senior Member Toohey further stated, at [66] that “merely having in mind to return to Australia at some point is not sufficient”. That is, a subjective statement of intention to reside in Australia will not be enough and must be assessed together with a consideration of all the available evidence of a person’s circumstances.
In Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931, Deputy President Hotop stated, at [19]:
Although the Tribunal accepts that the applicant has at all material times regarded, and continues to regard, Australia as “home” – having been born and raised in Australia and having maintained the continuity of association with Australia indicated by his abovementioned evidence regarding the factors specified in s 7(3) of the Act – and that he intends ultimately to reside permanently in Australia, it does not follow therefrom that, in the meantime, he must be taken to be continuing to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, throughout long periods of absence from Australia.

The concept of residence for the purpose of s 7(2) is different to the concept of “domicile” (see Goodfellow and Department of Social Security [1992] AATA 301 (Goodfellow) at [22]-[23]). In Goodfellow, the Tribunal cited the following passage from an unreported decision of the Tribunal, Department of Social Security and Steficek (unreported, Decision No 5392, 22 September 1989), at [14]:
The concept of “residence” or where a person “resides” is different from that of his domicile which has acquired a specific meaning and which was adopted in social security legislation in earlier times. A person having a domicile in one country may stop living in that country and move his place of living to another country but still retain his domicile in that first country. It is possible that he may retain that original domicile whether or not he returns to live in that country although that will depend on the facts of the case. In ordinary language, however, he has ceased to reside in that country when he has set up home in another.
(Emphasis added.)
The Tribunal will now apply the relevant factors in s 7(3) of the Act to the Respondent’s situation, with reference to the Guide at [3.1.1.10], in order to make an assessment as to whether the Respondent was an Australian resident at the date of his claim for an age pension.
Nature of the accommodation used by the person in Australia—s 7(3)(a) of the Act
Paragraph [3.1.1.10.2] provides, with respect to this consideration:
People who spend considerable time overseas will need to provide evidence that they still maintain strong connections to Australia. 1 consideration is the nature of the accommodation used by the person in Australia and overseas. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country and that they have made arrangements for an extended period of accommodation in Australia. If the accommodation circumstances are the same in both countries then more weight should be given to the nature of the accommodation where they spend the majority of their time.
Having legal title to a house that a person ordinarily lives in is a good indication that a person resides in that country. If the person pays rent for public or private housing this is also a good indication that the person intends to live in that country. In such cases the term of the lease may be a good indicator of how permanent their accommodation is.
In general, shared or hotel accommodation is considered temporary and is a low indicator that the person resides in that country. However it needs to be recognised that many people receiving a social security payment have very few assets and do not have formal living arrangements. For example in some cases informal shared accommodation (e.g. with family) is a normal and indefinite arrangement. The lack of formal living arrangements simply means the other criteria at SSAct section 7(3) have greater significance.
At the time of his claim, the Respondent did not own any real estate in Australia. He did not have a rental property in Australia. In his claim form, the Respondent indicated that he did not own a home and that he had not sold a home within the last 24 months (T5/114).
In his claim form, the Respondent also indicated that he stayed in accommodation in Australia where he paid no rent (T5/114). Specifically, when the Respondent was in Australia with his wife and minor children, he would stay with one of his three adult sons or his adult daughter, using his caravan as accommodation (transcript/16). The Respondent, his wife and minor children would travel around Australia using the caravan for their accommodation (R1, transcript/8, 15–17, 19).
When the Respondent was in Indonesia, he, his wife and minor children would stay with his wife’s family (transcript/17).
The Respondent used his adult son’s address as his postal address (transcript/36; ST5/34).
The lack of formal living arrangements when the Respondent is in Australia, which includes staying with family and travelling in a caravan, is indicative that the Respondent’s accommodation is of a temporary nature. Overall, this factor weighs against a finding that the Respondent was an Australian resident at the date of his claim for an age pension.
Nature and extent of the family relationships the person has in Australia—s 7(3)(b) of the Act
With respect to this factor, the Guide explains at [3.1.1.10.3]:
Another factor that should be used to indicate what country the person is residing in is the nature and extent of the person's family relationships in Australia and overseas.
The term family member is not defined in SSAct section 7(3), however in general it includes the person's spouse, children, parents, brother, sister etc.
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas.
Strong weight should be given to where the person's immediate family is residing, or where the person is providing a significant level of care for a member of their family or where the person spends the most amount of time with their family. Conversely, having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members. Similarly communicating with family in other parts of the world does not make that person a resident of those countries.
In cases where the person's immediate family such as a spouse and children live overseas and only extended family live in Australia, more weight should be given to the fact that the person's immediate family is overseas. Generally a person would be regarded as having stronger ties to their dependent children than to other family members they may have caring responsibility for. To make a decision on where a person lives it is necessary to look at where their partner and children are and how settled they are there. In some cases a person may have 2 families, one being from a previous relationship. In these situations, the focus must be on the family that the person is spending more time with.
Some people do not have a family or have lost connection with members of their family. In these situations the person will need to rely on the other factors listed in SSAct section 7(3) to establish their residence in Australia.
As noted above, the Respondent has three adult sons and an adult daughter from a previous marriage living in Australia (T14/171). His adult children have been providing him with support whilst his pension issues were being resolved (T12/158).
The Respondent’s wife is not an Australian citizen. According to an undated letter from the Respondent to the Department (T10/149), the Respondent’s wife was granted a three-year visa to visit Australia for three month stays at a time, requiring her to travel back to Indonesia before the expiry of each three-month period. The Respondent does not have permanent residency status in Indonesia. He relies on a visa sponsored by his wife to remain in Indonesia (transcript/23).
When the Respondent’s wife travels back to Indonesia, the Respondent and the couple’s two minor children travel with them. The Respondent is a good father who is devoted to his wife and children and helps care for them. The Respondent’s children are Australian citizens with Australian passports (T10/149; transcript/19). The Respondent’s eldest child attended school in Indonesia until 2017 when the Respondent and his wife took the child out of formal schooling to travel and to learn from the Respondent whilst travelling (transcript/21). The Respondent’s eldest child was not enrolled in a virtual school in Australia until 18 November 2019 for the 2020 school year, approximately one year and four months after the date of claim.
Although the Respondent has adult children in Australia, more weight should be given to the fact that his immediate family, consisting of his wife and dependent minor children, primarily reside in Indonesia. Overall, the Tribunal finds that this factor also weighs against a finding that the Respondent was an Australian resident at the date of his claim for an age pension.
Nature and extent of the person's employment, business or financial ties in Australia—s 7(3)(c) of the Act
The Guide further explains at [3.1.1.10.4]:
If the person is employed or self-employed, their place of employment or their main place of business is a good indication of where the person resides.
The nature and extent of the employment of the person's partner is also a factor in terms of the person's family ties. Therefore, if the person is a member of a couple, it is also necessary to find out where the person's partner is employed and whether their employment is permanent or temporary as this will influence where the person chooses to reside.
Financial ties such as business investments in Australia can be an indicator of where the person is living. However, given the nature of global banking today, simply having an investment in Australia is, by itself, a weak indicator of where the person is residing. Having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia.
Care should be taken to ensure that poverty and lack of employment are not counted against a person's claim to be residing in Australia. The lack of employment, business or financial ties simply means the other criteria at SSAct section 7(3) have greater significance.
The Respondent does not have any employment, business or financial ties to Australia. Given that the Respondent is of pension age, this is somewhat understandable. The Respondent has a joint bank account (held jointly with his wife) containing an amount of savings and two other bank accounts in his name containing minimal cash (T5/126; T19/194). As stated in the above excerpt from the Guide, only having an Australian bank account is not enough to indicate that a person resides in Australia and therefore carries no weight.
Consequently, the Tribunal finds that this factor should have a neutral weighting.
Nature and extent of the person’s assets located in Australia—s 7(3)(d) of the Act
The Guide explains at [3.1.1.10.5]:
Owning assets in Australia may also assist in the determination that a person is residing in Australia. However, by itself this would not be a conclusive determinant. If a person owns a house which has been rented out for a short period this could indicate that the person is only overseas temporarily and intends to return to Australia. A person may also be temporarily keeping their furniture or personal items such as clothes in storage, which is another indicator that they are only overseas temporarily. Conversely the sale or gifting of assets such as a car, furniture, or family home prior to leaving Australia, would be a strong indicator that the person has left Australia to live overseas for an extended period of time.
Owning assets for investment purposes may not necessarily indicate that the person is residing in Australia. The key is to establish the extent of a person's assets in Australia and whether the presence of these assets in Australia indicates that they have an ongoing connection to Australia. In many cases because of lack of income and poverty a person will have only very limited assets either in Australia or overseas. In these cases more weight should be placed on the other factors listed in SSAct section 7(3).
The Respondent only has temporary residence status in Indonesia (transcript/23), where his visa conditions prevent him from owning property or from obtaining employment (T14/167). However, having only temporary residence status in another country does not necessarily mean that a person is an Australian resident (see Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726 at [21]).
The Respondent owns a pick-up truck worth $45,000 and a caravan worth $50,000, which were both purchased in late 2017 or 2018 (T5/125; transcript/17).
In his pension claim form, the Respondent stated that he owns $5,000 worth of household contents and personal effects (T5/124). He explained at the hearing that these included a generator, diesel heater and other equipment related to his caravan (transcript/26).
Sometimes a person claiming a social security benefit will have few or no assets, and so as the Guide indicates, this factor is not determinative. However, the Respondent’s car and caravan in Australia, which are assets of a relatively substantial value, weigh slightly in favour of a finding that the Respondent was an Australian resident at the date of his claim for an age pension.
Frequency and duration of the person’s travel outside Australia—s 7(3)(e) of the Act
Paragraph [3.1.1.10.1] of the Guide provides the following assistance:
A person does not need to be continuously present in a country in order to be residing there. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away.
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
Taken in isolation, a 3 year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable.
The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence. For example, a person working on an 18 month overseas contract posting would still be considered to reside in Australia as long as they have demonstrated ongoing physical ties to Australia and a commitment to return to Australia at the end of the posting.
It is not uncommon for a person to remain overseas for a lengthy period of time but state that they intend to return to Australia to live at some uncertain, future date. In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person's 'intent' becomes less of a factor as the length of the absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
A person who has spent the majority of their time overseas in the last few years and who returns to Australia to claim a benefit will not necessarily be eligible from the day they return to Australia. The person must demonstrate that their physical ties with Australia have been re-established, or are in the process of being established and that they intend to reside again in Australia.
(Emphasis added.)
In the months leading up to the Respondent’s age pension claim, he had spent very little time in Australia. In his claim form, the Respondent stated that he resided in Indonesia from 2009 until December 2017, and that his wife was at that time living in Australia, having last entered Australia in 2017 (T5/107–8).
However, immigration records show that immediately prior to lodging his age pension claim, the Respondent had last entered Australia on 15 June 2018. This was 10 days before making his claim (T19/186, 188). These records show that between December 2017 and 25 June 2018 when the Respondent lodged his claim for an age pension, being 206 days, the Respondent was only present in Australia for 75 days (T19/186–8; Secretary’s SFIC para [35.16]).
The time that the Respondent spent outside Australia prior to making his age pension claim also weighs against a finding that the Respondent was an Australian resident at the date of his claim for an age pension.
Any other matter relevant to determining whether the person intends to remain permanently in Australia—s 7(3)(f) of the Act
The Guide provides the following assistance regarding this factor at [3.1.1.10.6]:
The term ‘any other matters’ includes the person's stated intention and any other evidence that does not fit under the other criteria, for example whether the person is prevented from returning to Australia because of custody laws in the country they are in.
Evidence to support the person's intention would include the purpose of the travel - for example, overseas travel may be for the purpose of pursuing a contract of employment for a specified period time, or receiving medical treatment, or caring for someone. This type of purpose would in isolation suggest the absence is temporary but the other criteria should also be evaluated before making a determination.
The only time a decision would be based solely on the person's intention (and evidence of that intention) is where they have no ties under any of the other factors either in Australia or overseas - for example, newly arrived refugees. In these cases there are likely to be valid reasons why the person has not yet established new ties in Australia or fully broken their ties in their previous country.
In the case of former residents, all the factors under section 7(3) should be considered to determine both whether the person can be said to have been residing in Australia during their absence and whether they are now residing in Australia on their return.
In general, when a person states that they are leaving Australia temporarily with the intention of returning, the person's ‘intent’ becomes less of a factor as the length of absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
It is also worth noting that a person claiming Age may have plans to retire overseas. This does not automatically mean that they are not residing in Australia at the time of their claim. The issue is whether the person can, at the time of the decision, be said to be residing in any other country.
(Emphasis added.)
The Respondent’s evidence was that his wife was required to travel outside of Australia every three months under the conditions of her visa. However, the time that the Respondent spent in Australia did not amount to periods of close to three months. The Respondent’s movement records, which show that the greatest amount of time the Respondent spent in Australia between December 2017 and 25 June 2018 was 49 days when the Respondent arrived in Australia on 17 February 2018 and departed on 6 April 2018 (T19/186–8; Secretary’s SFIC para [35.16]). Indeed, the Respondent spent only 12 days in Australia between 2 December 2017 and 13 December 2017, three days between 4 May 2018 and 6 May 2018 and 11 days between 15 June 2018 and 12 July 2018. Regarding the three days between 4 May 2018 and 6 May 2018, the Respondent stated that it was “impossible” that he would only have stayed in Australia for such a brief period (transcript/27). However, there is no evidence to the contrary (transcript/33), and the Tribunal finds that the official movement records are likely to be the most reliable confirmation of the dates that the Respondent arrived in and departed from Australia.
At the date of his age pension claim, the Respondent had not applied for a spouse visa for his wife to permanently reside in Australia. The Respondent’s evidence was that the application process for his wife’s visa commenced in 2019, but that the application was not made until approximately September or October of 2020 when his wife was able to return to Indonesia. The Respondent’s evidence was that the process was delayed due to coronavirus travel restrictions (transcript/34). Thus, although the Respondent may have planned to take steps to return to Australia permanently in the future, including securing a partner visa for his wife, those steps had not eventuated at the time the Respondent lodged his claim for an age pension. As noted in this section of the Guide, and in Killick, an intention to return to Australia in the future is not sufficient to demonstrate residency in Australia.

The Respondent has also held a health insurance policy in Australia since 27 June 2000 (ST4/3). This suggests some ties to Australia, however the Respondent held this policy during times when he conceded he was not living in Australia, being the period between 2009 and 2017 (T5/108).
At the time of the Respondent’s claim for age pension, his bank was charging him a non-resident withholding tax on the account that the Respondent holds jointly with his wife (ST3/2). In his evidence at the Tribunal hearing, the Respondent stated that he did not know he was being charged this withholding tax (transcript/24). This tax is, however, suggestive that the Respondent was not an Australian resident at the time he lodged his claim for an age pension.
On approximately 19 June 2018, the Respondent engaged an age pension consultant agency to assist him with his claim for an age pension (ST1/1–3). File notes and emails from this agency refer to the Respondent travelling to and from Indonesia and not being permanently based in Australia (ST5/25–36). For example, a file note created on 10 April 2019 recorded that the Respondent (ST5/25):
Has been out of the country non stop since 2010. The times he has been out have been for long periods of time. We have 24/4/19 to come back to Australia and stay her[e] for 2 years. Once he leaves during this period he will loose [sic] the pension.
A further file note dated 19 June 2018 stated in part that the Respondent, “has been living overseas but has returned here permanently. Have advised that he needs to stay here [for] two years and that there’s likely to be questions regarding residency” (ST5/25–6).
However, a further file note made on 20 June 2019 (ST5/25) states, “[the Respondent] called and discussed he will be going back and forth between overseas and oz [sic]”. An email dated 21 June 2019 referred to the Respondent’s “travel history” and that “[y]our only option as far as receiving a pension from here is concerned is to make the application and to remain here for the whole time until the pension is paid” (ST5/27).
The above evidence indicates that approximately a year after the Respondent lodged his claim on 25 June 2018, he was travelling extensively outside of Australia and that he was not resident in Australia. Further, the Tribunal agrees with the Secretary’s submission (Secretary’s SFIC, para [35.25]), and finds that the Respondent was using an agency to assist in his age pension claim because he was residing outside of Australia at the date of his claim, and for a period of approximately one year after the date of his claim.
As well as this, the Respondent did not update his electoral enrolment until 5 September 2019, over a year after making his age pension claim (T12/152), which suggests that at the time of the claim he was not an Australian resident.
Overall, these “other factors”, including the application for his wife’s partner visa after the date of the Respondent’s claim, the non-resident withholding tax being imposed on his bank account, the engagement of an agent to assist with his age pension claim and the file notes and correspondence with the agent, weigh against a finding that the Respondent was an Australian resident at the date of his claim for an age pension.
Evaluation of the s 7(3) factors
In summary, in the 209 days leading up to his claim, the Respondent only spent 75 days in Australia. Although the Respondent has adult children in Australia, his immediate family, being his wife and two minor children were primarily residing in Indonesia. The Respondent’s accommodation in Australia was of a temporary nature, and he did not have any employment ties (understandably), or other business or financial ties to Australia. He had minimal assets in Australia, including bank accounts, a utility and a caravan in Australia.
The Respondent most likely had an intention to reside permanently in Australia in the future, and started to take steps to fulfil that intention, including by enrolling his son in school, changing his electoral address and starting the process of applying for a partner visa for his wife. However, those steps were taken after the Respondent made his claim for an age pension. His engagement and correspondence with the age pension agency are further indications that the Respondent required assistance because he was residing outside of Australia.
Overall, the s 7(3) factors generally weigh against the conclusion that the Respondent was an Australian resident at the date of his claim for an age pension.
CONCLUSION
Overall, and after considering the factors contained within s 7(3) of the Act, the Tribunal finds that the Respondent was not an Australian resident as at 25 June 2018 when he made his age pension claim.
This means that the Respondent was not qualified to receive an age pension under s 43(1) of the Act because, pursuant to s 29(2) of the Administration Act, his claim was taken not to have been made.
The Respondent will no doubt be disappointed with this decision. At the hearing, the Respondent expressed his frustration at being denied an age pension, expressed the view that he was entitled to it and stated that he has always been an Australian resident.
The Respondent told the Tribunal about the service that he had given to the Australian community as a Victorian police officer and through serving Australia overseas until 2012 as part of Australia’s contribution to the Asia-Pacific Economic Cooperation (APEC) (transcript/6–8). However, being an Australian citizen who is entitled to reside permanently in Australia is not the same as being an Australian resident for social security purposes. Whilst the Respondent’s service to the Australian community in the past is commendable, it unfortunately does not have any bearing on the current application, which is governed by social security law.
After consideration of the factors in s 7(3) of the Act, it is clear to the Tribunal that the Respondent did not meet the requirements of being an Australian resident at the time he made his age pension claim on 25 June 2018.
Fortunately for the Respondent, he was granted an age pension after making a subsequent claim on 6 May 2020.
DECISION
The Reviewable Decision, being the decision of an authorised review officer of Centrelink dated 29 January 2020, as set aside by the AAT1 on 31 March 2020, is set aside.
It is substituted with a new decision that the Respondent was not an Australian resident when he lodged his claim for age pension on 25 June 2018. Therefore, he was not qualified to receive an age pension under s 43(1) of the Social Security Act 1991 (Cth) because, pursuant to s 29(2) of the Administration Act, his claim was taken not to have been made.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

............[Sgd]..........................................................
Dated: 3 June 2021

Date of hearing: 29 April 2021

Representative for the Applicant: Mr A Quanchi, Services Australia

Representative for the Respondent: Self-represented

Date of hearing:	29 April 2021
Representative for the Applicant:	Mr A Quanchi, Services Australia
Representative for the Respondent:	Self-represented