Liu and Secretary, Department of Social Services (Social services second review) - [2022] AATA 3237

Liu and Secretary, Department of Social Services (Social services second review) [2022] AATA 3237 (5 September 2022)
Division:GENERAL DIVISION
File Number(s): 2021/6768
Re:Guang Zhao Liu
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:5 September 2022
Place:Sydney

The decision under review is affirmed.
................................[sgd]........................................
Chris Puplick AM, Senior Member
Catchwords
SOCIAL SECURITY – age pension – whether applicant has qualifying Australian residence – nature of accommodation – nature of family relationships – employment, business or financial ties – nature and extent of assets – frequency and duration of travel outside Australia – other matters – decision affirmed
Legislation
Social Security Act 1991 (Cth) ss 7, 43
Social Security (Administration) Act 1999 (Cth) ss 29, 147
Cases
Begaj and Secretary, Department of Families, Community Services and Indigenous Affairs [2011] AATA 826
Hafza v Director-General of Social Security [1985] FCA 164; (1985) 6 FCR 444
Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Kolominskas [2012] AATA 513
Wybrow and Secretary, Department of Social Security [1992] AATA 315
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 September 2022

Mr Guang Liu (the Applicant) has had his application for payment of age pension rejected by the Secretary, Department of Social Services (the Respondent) and he is dissatisfied with this decision. As a result he has applied to this Tribunal for that decision to be reviewed.
The Age Pension
The Age Pension (AP) is one of a number of social security benefits paid under the provisions of the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
As with all social security payments there are qualifications which an applicant must meet before they are eligible to be paid the benefit.
The qualifications for an AP in relation to this Applicant are set out in section 43 of the Act as follows (emphasis added):
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;
The Applicant has reached the pension age. He was born (in China) in April 1945 and the current pension age applies to people who were born before 1 July 1955.[1]
[1] Social Security Guide (1 January 2022 to 19 March 2022) at 14. The Applicant reached the pension age on 18 April 2010.
The term “qualifying Australian residence” is defined in subsection 7(5) of the Act (emphasis added):
(5) A person has 10 yearsqualifying 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.
Hence, the ten years requirement need not be a single continuous period; it may be an aggregation of periods, provided that at least one of those has been for a continuous period of five years.
There is a further requirement which is imposed by subsection 29(1) of the Administration Act (emphasis added):
29 General rule[2]
(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] The references to sections 30, 30A, 31 and 31A of the Administration Act are not relevant to this application.
Going back to the Act, an “Australian resident” is defined in subsection 7(2) as (emphasis added):
(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;
(iii) a special category visa holder who is a protected SCV holder.
The determination as to who “resides in Australia” is set out in subsection 7(3):
(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.
There are some limited “exemptions” from required residential qualifications in subsection 7(6) but these apply only to people who are refugees or former refugees, and as such, do not apply in this instance.
This application
As noted, the Applicant was born in China in 1945. On 4 November 1996 he was granted a Permanent Subclass 105 visa[3] which allowed him to remain in Australia and to travel as a permanent resident. The evidence is that the Applicant first arrived and started living in Australia on 1 June 1997.[4]
[3] Concessional family visa – the Applicant’s sponsors were his then sister-in-law and her husband.
[4] Tribunal documents (T-documents) at 32.
On 16 August 2000 the Applicant was granted Australian citizenship.
It is not necessary to go into detail about the lengthy history of the Applicant’s various and numerous appeals for grant of the AP. Suffice to say that the Applicant applied for the AP on 27 June 2016 and this application was rejected on 1 August 2016 on the basis that the Applicant did not meet the requirements to have a period of 10 years qualifying residence in Australia at the time he made his application. This decision was disputed by the Applicant and was then subject to both an internal review and then a review by an Authorised Review Officer (ARO) of the Department who affirmed the initial decision on 24 November 2016, namely that the Applicant was not qualified for the AP because of his lack of residential qualification as at the date of his application.
In the meantime, as a result of the rejection of his AP claim and in recognition of his family responsibilities, the Applicant was granted Special Benefit payment as from 19 March 2020 and is currently in receipt of Family Tax Benefit (FTB).
Although the relevant decision was made on 24 November 2016 the Applicant did not seek review of that decision to this Tribunal until 26 May 2021. The Social Security and Child Support Division of this Tribunal (AAT1) rejected that appeal on 5 August 2021 and the Applicant subsequently sought a second-level review at this Tribunal on 6 September 2021. The matter was heard on 22 August 2022 with the Applicant representing himself in-person and having the assistance of a Mandarin interpreter.
The sole matter at issue
It is important to emphasise that there is only one disputed issue in these proceedings. Namely, whether the Applicant meets the test of qualifying residence – in other words, whether he lived in Australia for a ten-year period prior to the lodgement of his application.
It is necessary to set out at first instance what the Courts have said constitutes “the legal concept of residence”. In short, there are two elements which go to make up residency: “physical presence in a particular place” and “the intention to treat that place as home”.[5] It is not necessary for that place to be a person’s home forever, the key test being some “continuity of association with the place.”[6]
[5] Hafza v Director-General of Social Security [1985] FCA 164 at [13].
[6] Ibid at [14].
Furthermore the Federal Court has suggested that a person cannot be “resident” in two places at the same time,[7] although a person can live in two different places at two different times, and this may be done on a regular basis (for example spending six months in place A and six months in place B regularly).
[7] Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 at [16].
Under the Act, assessment of this matter must be guided by having “some regard to the enumerated factors” [8] in subsection 7(3) of the Act. In doing so, the Court has made it clear that no one factor alone can be determinative and that all the evidence must be considered related to an applicant’s circumstances.[9]
[8] Wybrow and Secretary Department of Social Security [1992] AATA 315 at [22].
[9] Begaj and Secretary, Department of Families, Community Services and Indigenous Affairs [2011] AATA 826 at [36].
This point is given additional cogency by the provisions of the Social Security Guide (the Guide) which is published to assist decision-makers in their interpretation of the provisions of the complex social security system. At 3.1.1.10 of the Guide it states:
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 [Social Security Act] section 7(3).
Although the application was lodged on 27 June 2016, the combined impact of section 42 and Clause 3 of Schedule 2 of the Administration Act means that the relevant period in which to assess the Applicant’s residential status is a 13-week period extending from 27 June 2016 to 26 September 2016.
The calculation of any period of residency must start from 4 November 1996 when the Applicant was first granted his permanent residency, although as noted the Applicant only commenced residing in Australia in June 1997.
There are certain matters of fact to be taken into account which relate to the Applicant’s movements between Australia and China. These details can be established by reference to the official movement records maintained by the Australian Government, and they are before the Tribunal.[10]
[10] T-documents at 120-131.
What they show is that, in the period from 1 June 1997 to 10 June 2016:
·The Applicant made some 40 departures from Australia for overseas;
·In that period of 6,950 days he was present in Australia for 445 days and was absent from Australia for 6,505 days;
·His longest period of absence from Australia was between 8 March 2007 and 10 June 2016, a period of 9.2 years;
·None of his periods of residency was for a continuous period of five years or more.
Since 2016 the Applicant has been resident in Australia and the AAT1 noted in its decision that this may well mean that the Applicant would be residentially qualified for the AP on or about 22 June 2022.[11] Surprisingly, at this Tribunal hearing the Secretary’s representative was unable to confirm whether or not this remained the Secretary’s position.
[11] Ibid at 14.
The Applicant’s narrative
The Applicant has set out his narrative in a series of statements[12] and emails to the Tribunal and in his oral testimony. In effect it amounts to this:
[12] Ibid at 63-67 and Statement dated 10 May 2022.
(a)The Applicant is a highly qualified specialist who worked in the area of water management and related environmental technologies. He is a graduate of Nanjing University. As a result of his expertise and the presence of other family members in Australia (his original sponsors) he was persuaded to settle in Australia as a permanent resident.
(b)His expertise was recognised, and he was invited by Australian authorities, apparently the Government of Victoria[13] and the CSIRO to work with the Chinese Ministry of Science and Technology promoting Australian technological services and projects in China.
(c)This necessitated him spending a large amount of time in China effectively working in the Australian “national interest”.
(d)He holds an official Chinese Government document, issued on 10 October 2022, which recognises him as an Australian national and a registered “foreign expert”.[14]
(e)In 1997 he and his partner (Ms Zhirong Hua to whom he was married in 1986 in China) commenced living in Croydon, Victoria. The couple had a son (Liang, born April 1989). His relationship with Ms Hua ended in 2010. It was the Applicant’s sworn evidence that his wife commenced divorce proceedings while he was being held in some form of detention in China (between 2008-2016) and that the divorce proceeded and was granted without him taking any active part in the process of signing any relevant documentation.
(f)Apparently the Applicant entered into another relationship, in China, with a Ms Xin Xu with whom had a daughter (Katie, born April 2008) who came into his shared care in 2016 and for whom he receives payment of FTB. Obviously this relationship with Ms Xu in China was contemporaneous with that with Ms Hua in Australia. Ms Xu at some stage spent some time in Australia[15] and is now resident here with her daughter. The relationship with Ms Xu ended in February 2020.
(g)Between August 1997 and June 2016 the Applicant is recorded as living at two addresses in Victoria (1997 to 2016) in a property owned by himself and his wife (at the time) and then two addresses in Bondi Junction (NSW).
(h)In 2008 following some sort of dispute with the Chinese authorities, the Applicant was detained in China. The Applicant’s evidence is obscure on the relevant details but from what can be gleaned it amounts to him claiming that a senior officer of the Shanghai Police attempted to coerce him into paying “protection money” or grant him a share in a lucrative contact which he had signed recently.[16] Upon his refusal to do so, the Police arrested him (3 December 2008) and he was put before the Courts (in 2009 and 2010) on “trumped up” charges.[17] He was found guilty but on appeal this decision was reversed in 2013 but he was not freed from detention until 3 June 2016. While there is no empirical basis upon which to doubt what the Applicant told the Tribunal, neither is there any independent verification of any of it. It appears that he was in some sort of prison or detention centre where he suffered “assaults both physically and mentally”[18] until, with the intervention of the Australian Consulate he was able to leave China and return to Australia.
(i)He returned to Australia in June 2016 and lodged his application for AP that same month.
(j)He has not left Australia since that date.
[13] In one of the photos submitted by the Applicant (T-documents at 84) he is shown at a formal presentation with the then Victorian Minister for State Development.
[14] Tribunal Exhibit A1.
[15] Ibid at 29-33.
[16] Applicant’s email correspondence dated 30 June 2022 and in oral testimony.
[17] Applicant’s Statement dated 10 May 2022.
[18] Ibid at 65.
Home is where…?
The essence of this dispute is that the Applicant claims, in effect, that “home is where the heart is”[19] and the Respondent claims that essentially, home is where the body is.
[19] A saying attributed to everyone from Pliny the Elder (AD 23-79) to JJ McCloskey in Davey Crocket and Other Plays, to Lord Byron’s poem Don Juan (1819) to an anonymous poem in the Fayetteville Weekly Observer (1829).
The Applicant makes his case around the fact that he is an Australian citizen; he says that he loves and respects Australia; he has been a home/property owner in Australia; he had family in Australia; he worked for Australian governments/companies/interests in China; he has contributed to Australia throughout the last two decades of his working life; he has never owned property or assets in China and that he suffered for his devotion to Australian (as opposed to Chinese) national interests.[20]
[20] Applicant’s Statement, T-documents at 63-67; and emails dated 20 September 2021, 10 March 2022, 30 June 2022, 19 August 2022.
The Respondent says that all of that may well be so, but that the Applicant was not a “resident” for the purposes set out in legislation.
In determining whether or not a person is “resident in Australia”, the decision-maker must consider each of the factors set out in s 7(3) of the Act.
Nature of accommodation
The nature of accommodation requires attention to a factual matter: the presence of a place of residence and a subjective matter, the intention to reside there.[21] At the time when he lodged his application the Applicant did not own any property in Australia as ownership of his family home had been transferred to his ex-wife on their divorce in 2010. The applicant was, at the time, renting accommodation in Bondi Junction. It is the Applicant’s evidence that for most of the period prior to his application he was living in rented accommodation in either Shanghai, Jiangjing or Binji[22]. His evidence throughout was that he lived in the same premises that served as his offices in Shanghai[23] and that when he was in a relationship with Ms Xu, she and their daughter lived with Ms Xu’s sister. He certainly had no permanent accommodation in Australia and was spending most of his time overseas, although his testimony was supportive of the fact that it was always his intention to reside in Australia at some point.
[21] Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 at [23]-[24]; Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449.
[22] Applicant’s email to the Tribunal dated 19 August 2022.
[23] Ibid.
Nature of family relationships
The Applicant was divorced from Ms Hua in 2010 although until that time he had been paying the level of household expenses and expenses related to his son, as would have been expected.[24] There is no evidence before the Tribunal about the state or nature of the Applicant’s relationship with his wife and son from the time of their marriage, or the birth of the son (1989) until his first departure from Australian in June 1997. Thereafter, until the time of his divorce (2010) he travelled between Australia and China some 40 times. The longest period he spent in Australia was 170 days (in June November 1997) and thereafter the longest period of return was some 15 days on any one occasion. During these return visits the Applicant said he made an effort to stay with his family (in Melbourne) whenever possible but the nature of his business meant that, again on numerous occasions, he had to spend time out of Melbourne with the Chinese clients who he was escorting around Australia on a variety of commercial projects.
[24] T-documents at 60.
The Applicant candidly admits in relation to his business commitments:
“In the following 20 years I devoted all my assets to the cause. I lost my health because of the working hours and I travelled frequently between China and Australia for many years hence neglecting my family.”[25]
[25] T-documents at 63.
It appears that during the majority of this period the Applicant was actually in a relationship with Ms Xu in China where she was supporting him (and her daughter) during his period of detention/incarceration.
Employment, business or financial ties
The evidence on this is somewhat confusing in that the Applicant claims that he was working for and promoting Australian business interests in China, although he was employed by the Chinese Government to do so.[26] Despite his claims to have been supported in his business endeavours by the Victorian State Government and the CSIRO there is no documentary support to establish that this is the case. In the Respondent’s Statement of Facts, Issues and Contentions (SFIC) the Secretary states:
“114. The Applicant had registered a company, Sun A International Pty Ltd in NSW on 11 May 2004. Such company was set up to export environmental services and to provide technical support. The Applicant advised that the company ceased trading in February 2007. The directors of the company were Mrs Xu and the Applicant.
115. Evidence obtained by the Secretary indicates that the Applicant was in charge of a Chinese company, Shanghai Sanai Environmental Water Engineering Co. Ltd. It was established on 2 June 2004 with headquarters in Shanghai at 1, Unit 225, 128 Guoyuan Road, Luchaogang Town, Pudong New Area. The company had 1 to 5 employees with registered capital of CNY 10 million yuan. The scope of business was water treatment, water body comprehensive treatment, bioenvironmental design and construction, services of environmental technology and professional technology, water-related materials (except professional conduct), instruments and devices and sale. The company was trading from 2 June 2004 to 1 June 2014.”[27]
[26] T-documents at 15. Applicant’s email to the Tribunal dated 30 June 2022.
[27] Respondent’s SFIC dated 1 June 2022.

The details on the Foreign Expert certificate issued by the Chinese Government give the Applicant’s employer as Shanghai Sanai Environment Technology Energy Company Limited and the Applicant says that minor changes of name of the company were not infrequent.
The Tribunal accepts the Applicant’s oral testimony to the effect that he was engaged in a series of projects, some involving considerable investment, which may have engaged both Australian and Chinese companies but there is no documentary evidence to establish any details about any of these projects. The Applicant stated that he had provided some information about both his domestic and business arrangements at a Centrelink office but that such documents were never properly filed and appear to have been lost. Again, the Tribunal cannot safely come to any conclusion about this.
There is nothing in the evidence to suggest that the Applicant was actually employed by or responsible to any employer in Australia; nor did he have any registered business interests in this country. He does not ever appear to have been an Australian taxpayer. The Applicant’s own statements discuss facilitating business interests between the Victorian State government and Jiangsu Province in China, but again there are no details to allow any assessment of the nature, value, utility, outcomes or even existence of such business arrangements.
Nature and extent of assets
There is no evidence of the Applicant holding any assets in Australia during the relevant period. He owns no real estate or other property; there is no reference to any savings or superannuation arrangements and if anything, the Tribunal notes the Applicant’s own statement to the effect that due to the malevolent intervention of Chinese authorities:
“However, the project was suspended since 2008 because of the unexpected unjust case, which resulted to destroy of all my personal investment and the investment of my company on this project in early stages.”[28]
[28] T-documents at 60.
Frequency and duration of travel outside Australia
This matter has been canvassed at length and the evidence is clear that between 1 June 1997 and 10 June 2016 the Applicant was absent from Australia for 6,505 of the relevant 6,950 days (93.6%). Albeit that a large period of this (some eight years) was as a result of the Applicant’s detention by the Chinese authorities, and appalling as this may have been, the legislation does not allow for the causes of the absences[29] to be a factor in determining whether the Applicant was residentially qualified.
[29] Other than factors related to status as a refugee.
Other matters
It is hard to ascertain that there are any factors of another nature which would help to establish some sort of residential link between the Applicant and Australia. In the period before his detention, that is from November 1997 to January 2008, he was absent from Australia for most of that time. Indeed from 22 December 1997 to 4 March 2007 he was only present for some 164 days. The Applicant’s work pattern cannot be assessed as being a series of short-term assignments in China with a regular return to home base in Australia.[30] If anything, the reverse was true. The Respondent also raised and further answered this point, noting in their SFIC that:
“157. The Secretary contends that being no longer a Chinese citizen would have required the Applicant to be subject to business travel requirements for a Chinese visa when travelling to China. There would have been a maximum duration of stay permitted under the visa with the duration of stay issued on the visa being at the discretion of the Chinese Embassy/Consulate. Furthermore, the Applicant would have been required to leave China and return to Australia under the conditions of his Chinese visa in order to have his visa renewed or granted for his next visit to China. The Secretary contends that his short stays in Australia were made under the conditions of his visa for further stays in China. The Secretary notes that the Applicant has not provided his passports holding the previous visas and showing his past travel movements.”
[30] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Kolominskas [2012] AATA 513.
Discussion
This is a case beset by an unfortunate lack of documentation being provided by the Applicant. In his lengthy oral testimony, the Tribunal found him to be a person of credibility. He was not evasive in any of his answers, nor did he seek to contest any of the facts put before the Tribunal by the Respondent.
The entire gravamen of his evidence was that his absences from Australia were a direct result of his commercial activities, in a field as vital as water management, on behalf of Australian interests which he was promoting in China. In due course, he says, he fell into difficulties as a result of corrupt activity on the part of some Chinese official authorities and was then caught in the notorious web of the Chinese “judicial” system.
All of this is plausible. None of it is confirmed by independent testimony or evidence.
This leaves no possible way of avoiding the clear requirements set out in sections 43 and 7(5) of the Act which require an Applicant to establish a continuous period of ten years residential status in Australia or an aggregate of residencies including one of at least five years’ duration, adjudged with reference to all the factors set out in subsection 7(3).
Whatever his circumstances, the Applicant cannot meet this requirement. He is therefore not qualified for the Age Pension based on his application of 27 June 2016.
A glimmer of hope
Although no retrospective payment of age pension can be made (which would, in any event have been backdated only to 26 May 2021[31]) it does appear that the Applicant is now qualified for the AP, at least in relation to his meeting the residential requirements.
[31] Administration Act s 147(8).
Prior to his initial application, the Respondent was satisfied that the Applicant had four years, four months and 25 days of qualifying residency.[32] The Applicant attests that he has been permanently resident in Australia since 10 June 2016 and the Respondent does not contest this. If this is the case, then the Applicant meets the ten-year requirement by aggregating his periods of residence with one continuous period (10 June 2016 to 10 June 2021) of five years. In its decision of 5 August 2021 the AAT1 stated:
The Secretary’s position is that Mr Liu will qualify for the age pension on their calculation on 22 June 2022 in the absence of any further overseas travel before that date.[33]
[32] Respondent’s SFIC at 20.
[33] T-documents at 14; AAT1 decision at [20].
The Tribunal hopes that, for the Applicant’s sake, this was a correct position for the Respondent to take and it encourages the Applicant to lodge a new application for AP at the earliest date and hope with some expectation, for a favourable outcome on that occasion.
DECISION
The decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 5 September 2022

Date(s) of hearing: 22 August 2022

Applicant: In person

Solicitors for the Respondent: Mr G Lozynsky, Services Australia

Date(s) of hearing:	22 August 2022
Applicant:	In person
Solicitors for the Respondent:	Mr G Lozynsky, Services Australia