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

This matter concerned an appeal by the applicant, Mr Liu, against a decision by the Secretary of the Department of Social Services. The dispute centred on whether the applicant had met the qualifying Australian residence requirements to be eligible for an age pension. The appeal was heard by Senior Member Chris Puplick AM of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the nature and extent of the applicant's ties to Australia, specifically in relation to his accommodation, family relationships, employment, business or financial ties, and the frequency and duration of his travel outside Australia. The Tribunal was required to assess whether these factors, when considered collectively, established the applicant as being residentially qualified for the age pension under the relevant social security legislation.

The Tribunal's reasoning focused on the applicant's significant absences from Australia. Between 1 June 1997 and 10 June 2016, the applicant was absent for 6,505 out of 6,950 days, representing 93.6% of the relevant period. While a substantial portion of this absence was due to detention by Chinese authorities, the Tribunal noted that the legislation does not permit the cause of absence to be a determining factor in residential qualification, except in specific circumstances related to refugee status. The Tribunal found a lack of evidence of any assets held by the applicant in Australia during the relevant period, including real estate, savings, or superannuation. Furthermore, the applicant's travel patterns were not consistent with short-term assignments in China with regular returns to an Australian home base; rather, the reverse appeared to be true. The Tribunal also considered the respondent's contention that the applicant's short stays in Australia were likely facilitated by visa conditions allowing for further stays in China, and that the applicant had not provided passports to substantiate his travel history. Despite finding the applicant to be a credible witness, the Tribunal concluded that there were insufficient factors to establish a residential link between the applicant and Australia.

The Tribunal affirmed the decision under review.