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

This matter concerned an application for an Australian age pension by the Applicant, an Australian citizen, against the Secretary of the Department of Social Services. The core dispute revolved around whether the Applicant was residing in Australia at the time he lodged his claim for the age pension. The Administrative Appeals Tribunal (AAT) was tasked with reviewing a prior decision that rejected the Applicant's claim.

The legal issues before the Tribunal were to determine whether the Applicant was an Australian resident for the purposes of the age pension claim, and specifically, to ascertain his place of residence at the time of lodging his claim. This required an assessment of whether Australia constituted his settled or usual place of abode, meaning he made Australia his home.

The Tribunal applied the principles outlined in the relevant Guide, which states that residence is established by a person making Australia their home. It is generally not possible to reside in more than one country simultaneously, and the balance of a person's ties will typically favour one country. The Guide further directs that the decision must be based on the balance of all available evidence, with no single factor being conclusive, though time spent in Australia is usually given the most weight. The Tribunal considered the frequency and duration of the Applicant's travel outside Australia, noting that temporary overseas work does not necessarily mean ceasing to reside in Australia. However, to maintain Australian residence during an absence, a claimant must demonstrate continued ties to Australia, a short duration of absence, and a clear purpose and proposed end date for that absence. The Applicant's movements indicated extended periods overseas, with brief returns to Australia for specific purposes such as renewing a driver's licence or lodging his pension claim, which were not considered indicative of an intention to reside in Australia. His home address provided for the claim was his sister's address in Australia, where he resided only during these short visits.

The Tribunal affirmed the decision to reject the Applicant's claim for an age pension, finding that he was not residing in Australia at the time of his claim.