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

Mahon and Secretary, Department of Social Services (Social services second review) [2021] AATA 373 (3 March 2021)
Division:GENERAL DIVISION
File Number: 2020/2430
Re:Nicholas Mahon
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

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

The Reviewable Decision, being the decision of an authorised review officer of the Respondent dated 21 October 2019, as affirmed by the AAT1 on 16 April 2020, is affirmed.
.......................[Sgd].................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions and benefits – age pension – suspension of age pension – whether the Applicant was a returned resident – portability – residency – whether the Applicant was a resident of Australia – factors to be taken into account to determine if a person is residing in Australia – whether Applicant given incorrect information by the Department – Applicant granted age pension as a returned resident but travelled outside Australia within a two year period – payment not portable – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 7(3), 7(3)(a), 7(3)(b), 7(3)(c), 7(3)(d), 7(3)(e), 7(3)(f), 1220, 1220(1), 1220(1)(a), 1220(1)(b), 1220(1)(c), 1220(1)(d), 1220(1)(e), 1220(1)(f)
CASES
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Hafza v Director-General of Social Security (1985) 6 FCR 444
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, 7.1.4
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
3 March 2021
BACKGROUND TO THE APPLICATION

The Applicant is an Australian citizen who migrated to Australia from Ireland in 1955. He was granted Australian citizenship in 1976 (T5/48-49).
From 13 May 2009, the Applicant spent extensive periods of time outside of Australia in South East Asia, spending a total of 30 weeks in Australia over numerous visits until the present time (T13/104-105; T2/16).
After being overseas for a period, the Applicant returned to Australia on 28 March 2019 and lodged a claim for an age pension the following day (T13/104; T5/45).
The Applicant’s claim was successful, and he was granted an age pension with effect from 29 March 2019 (T13/101; T16/129) on the basis that he was a “former resident” of Australia.
On 8 April 2019, the Applicant’s nominee contacted the Department of Human Services, now Services Australia (Centrelink) to discuss the portability of the Applicant’s age pension and how this would affect his payment. The Centrelink electronic file note records that the nominee was “[a]dvised of 2 year former resident rule and not payable for those 2 years for any travel outside Australia” (T16/119). The same file note also recorded that the Applicant then contacted Centrelink and was given the same information (T16/119).
Another Centrelink electronic file note records that the Applicant contacted Centrelink via the internet on 21 April 2019 to ask about the portability of his age pension. This note records that the Applicant was told that the “[f]ormer Residence provisions prevent portability of AGE [pension]” and that the pension “stops on departure from Australia” (T16/121).
The Applicant departed Australia on 21 April 2019 and returned on 11 July 2019 (T13/104). He left Australia again on 6 August 2019 (T13/104).
At some point during one of the Applicant’s departures from Australia the Applicant’s age pension was suspended. It is unclear from the Centrelink records as to exactly when this occurred although the records do indicate that there may have been some delay in suspending the Applicant’s age pension when he travelled overseas on 6 August 2019 due to a coding error not properly recording his departure (T16/124).
Relevantly, an email dated 13 October 2019 from the Applicant’s nominee, a Mr Hale from an agency called “Retirement Essentials” to Centrelink states that, on 17 September 2019, Mr Hale enquired about a “previous suspension notice … [that the Applicant received] on or around the 15^th September [2019]”.
Mr Hale stated in his email of 13 October 2019 that the Centrelink officer he spoke with on 17 September 2019 stated that “it was clear that [the Applicant] should have his pension and that he would restore it while we were on the phone”. Mr Hale also wrote in his email that the officer “went on to tell [him] that [the Applicant] was entitled to the ‘full Australian Age Pension’, minus some extras which would not apply when he was outside of Australia” (T11/92), and further (T11/93):
I have notes from that conversation that can be reviewed for an appeal. The most salient of the points, was that [the Applicant] need not return to Australia. In order to reassure myself that I had not made any mistake with the enquiry, I asked [the Centrelink officer] to repeat it for me, that [the Applicant] need not return. [The Centrelink officer] repeated it three times and described [the Applicant] as a ‘normal Australian Pensioner’. I passed this information onto [the Applicant] upon which he took actions to stay in Asia.
Mr Hale stated in his email that it was following this conversation that the Applicant received a letter from Centrelink dated 17 September 2019 (T9/88) advising him that his age pension was granted again with effect from 11 July 2019 (T11/93). The wording of the letter was that the Applicant’s age pension was “granted … from 11 July 2019” (T9/88; see also T11/93).
The Tribunal therefore infers that the Applicant’s age pension was retrospectively suspended on approximately 15 September 2019 before being retrospectively granted again (on 17 September 2019) to commence from 11 July 2019.
Mr Hale further wrote in his email of 13 October 2019 that he had another conversation with a different Centrelink officer on 20 September 2019, and that during this conversation he again enquired about whether there was any requirement for the Applicant to return to Australia. Mr Hale stated that he was told that the Applicant “need not return” (T11/93).
On 3 October 2019, Centrelink again suspended the Applicant’s age pension. The suspension periods were for the periods that the Applicant had been outside of Australia, namely 21 April 2019 to 10 July 2019, and from 6 August 2019 onwards (T13/100). The letter advising the Applicant of the suspension stated that “[y]our Age Pension has been stopped because you left Australia within two years of your most recent return” (T10/90-91).
On 21 October 2019, an Authorised Review Officer (ARO) of Centrelink affirmed the decision to suspend the Applicant’s age pension from 21 April 2019 to 10 July 2019 and from 6 August 2019 onwards (T13/100) (ARO Decision).
The Applicant appealed the ARO Decision to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal). However, on 16 April 2020, the AAT1 affirmed the ARO Decision (T2/12).
It is the ARO Decision of 21 October 2019, as affirmed by the AAT1 on 16 April 2020, that is the Reviewable Decision currently before the Tribunal.
On 27 April 2020, the Applicant sought review of the Reviewable Decision (T1) in the General Division of the Tribunal (AAT2).
ISSUE
The issue for determination by the Tribunal is whether the Applicant’s age pension was correctly suspended whilst he was outside Australia from 21 April 2019 to 10 July 2019, and from 6 August 2019 onwards. This will depend on whether the Applicant was subject to the portability restrictions in s 1220 of the Social Security Act 1991 (Cth) (the Act).
WAS THE APPLICANT SUBJECT TO THE PORTABILITY RESTRICTIONS IN SECTION 1220(1) OF THE ACT?
Overview of portability restrictions
Section 1220 of the Act provides:
(1) If:
(a)a person is an Australian resident; and
(b)the person ceases to be an Australian resident; and
(c)the person again becomes an Australian resident; and
(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i) an age pension; or
(ii) a disability support pension; and
(e)after the pension is granted, or the person is transferred to the pension, but before the end of that period of 2 years, the person leaves Australia; and
(f)financial assistance is not payable in respect of the person's absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;
a pension based on that claim is not payable to the person during any period during which the person is outside Australia.
In summary, s 1220 of the Act provides that if a person is granted an age pension on the basis of being a returned resident, but then travels overseas within two years, the age pension will cease to be payable for any period that they are outside Australia. That is, the person is not qualified to receive the payment while they are outside Australia because the payment is not portable. There is no discretion to allow portability of the payment, as indicated by “is not payable”.
Section 1220 of the Act is also explained in the Guides to Social Policy Law: Social Security Guide (the Guide), at [7.1.4]:
Since 20 September 2000, a former resident who returns to Australia and is granted Age or DSP, or who transfers to Age under SS(Admin)Act section 12, cannot take that pension outside Australia if they leave within 2 years of having resumed residence in Australia. The purpose of this legislation is to discourage people from travelling to Australia just to get an Australian pension to take back overseas.
The 2-year period includes, as separate full days, the day on which the recipient returns to Australia to resume Australian residence and the day on which they leave again.
There is no discretionary power to allow portability of Age or DSP during the 2-year period (note, some exceptions to the 2-year rule apply - see below).
Payment may be suspended for short overseas absences during the 2-year period and does not have to be reclaimed on return to Australia. A short absence from Australia (as long as the person is still classed as an Australian resident) will not impact on the end date of the 2-year period (i.e. the absence still counts towards the person's 2-year period).
…
Australian resident—s 1220(1)(a) of the Act
The subsections in 1220(1) of the Act are cumulative, as indicated by “and” at the end of each subsection. That is, each subsection must be satisfied for the portability restrictions in s 1220(1) to apply.
Section 1220(1)(a) of the Act firstly requires that “the person is an Australian resident”. When read with subsection (b), which requires that “the person ceases to be an Australian resident”, and subsection (c), which requires that “the person again becomes an Australian resident”, the starting point is effectively whether the Applicant was a resident. As noted in the background section above, the Applicant resided in Australia from 1955 and became a citizen in 1976. It was not until 13 May 2009 that the Applicant started to spend extended periods of time overseas. He therefore was an Australian resident prior to May 2009, and

s 1220(1)(a) of the Act is satisfied.
Again becomes an Australian resident—s 1220(1)(c) of the Act
As noted above, s 1220(1)(c) of the Act requires that “the person again becomes an Australian resident”. The Tribunal notes that in the Applicant’s age pension claim form the Applicant declared his country of residence to be Australia from “28/3/19 to present”. The Applicant declared Indonesia to be his previous country of residence from 26 August 2016 to 28 March 2019 (T5/50).
Consequently, he was granted the age pension on 29 March 2019 as a former resident of Australia. Therefore s 1220(1)(c) of the Act, that “the person again becomes an Australian resident” is satisfied, as the Applicant again became an Australian resident on 29 March 2019.
Ceases to be an Australian resident—s 1229(1)(b) of the Act
The primary question for the Tribunal is whether s 1220(1)(b) of the Act, which requires that “the person ceases to be an Australian resident”, is satisfied. That is, whether the Applicant ceased to be an Australian resident whilst living overseas from 13 March 2009 until his return on 28 March 2019 (the Relevant Period).
At the AAT2 hearing the Applicant expressed the view that he has always been an Australian resident, despite the time he has spent away from Australia. He stated (transcript/12):
… as an Australian resident, I was never a resident outside of Australia. I was travelling, backpacking around South East Asia. I came back. They told me I wasn’t an Australian resident, but to back that up, I was given an Australian seniors card in 2016 and my Medicare card is valid to 2021.
The seniors card can only be given to an Australian resident. I was given that by Centrelink. So if sometimes I’m an Australian resident and sometimes I’m not, I didn’t really understand that, but I mean, that - that’s what I was told and I was saying, ‘Well, okay, if that’s what you’re saying, well, that’s what you’re saying’. But, yes, I - I was always an Australian resident. I was never not an Australian resident. I - I was paying rent. I had a car registered. I mean, I had my Australian licence all the time.
Why - I’m - I’m not somebody who is moving overseas, moved overseas. I never was. I was never that. I - I was travelling …
Section 7(3) of the Act lists relevant factors that can be considered to determine 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 Guide, at [3.1.1.10] repeats the factors listed in s 7(3) of the Act and provides some guidance to decision makers when they are evaluating these factors:
SSAct section 7(3) lists the factors to be taken into account when deciding whether a person is residing in Australia. These are:
1.the frequency and duration of the person’s travel outside Australia
2.the nature of the accommodation used by the person in Australia
3.the nature and extent of the family relationships the person has in Australia
4.the nature and extent of the person's employment, business or financial ties in Australia
5.the nature and extent of the person's assets located in Australia, and
6.any other matter relevant to determining whether the person intends to remain permanently in Australia.
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. For example, in Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 Senior Member Toohey discussed section 7(3) of the Act [18]–[22]:
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 mature 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”.
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 Tribunal will now apply the relevant factors in s 7(3) of the Act, with reference to the Guide, at [3.1.1.10], to the Applicant’s situation in order to make an assessment as to whether the Applicant ceased to be an Australian resident during the Relevant Period.
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 AAT1 hearing the Applicant’s evidence was that “he continued to pay rent for accommodation based in Australia until about mid-2013” (T2/15). At the AAT2 hearing the Applicant confirmed this evidence was correct (transcript/28). The Applicant further confirmed at the AAT2 hearing that between August 2016 and 28 March 2019 when he was outside of Australia, he was not paying rent on any properties in Australia (transcript/ 28-29).
On his age pension claim form the Applicant stated that he was sharing a house with a friend when he returned to Australia on 28 March 2019 (T5/54). At the AAT2 hearing the Applicant said that when he came back to Australia in March 2019, “my friends offered me a room I was renting. I - so that, I, yes, I intended to stay in Australia” (transcript/30). The AAT1 noted that the Applicant “left [Australia] again on 6 August 2019 because he was in extreme pain from a flare-up of the tendonitis and his accommodation arrangements had become untenable due to the erratic behaviour of the partner of the owner of the property where he was staying” (T2/15).
At the AAT2 hearing the Applicant agreed that he did not have a permanent address in Australia after August 2016 (transcript/29).
Ceasing to pay for accommodation in mid-2013 is suggestive that the Applicant was not residing in Australia during the Relevant Period. Staying with friends, even if rent is paid, is indicative of temporary accommodation, as is the lack of any evidence that the Applicant made arrangements for an extended period of accommodation in Australia, such as entering into a lease agreement to rent a property.
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.
At the AAT2 hearing, the Applicant agreed with the AAT1’s finding (T2/16) that “he has family in Sydney and friends based in Australia”. He confirmed that he has a brother in Queensland and cousins in Sydney (transcript/27). In his claim form the Applicant crossed the box to indicate that he had “never married or lived with a partner” (T5/53).
The Applicant does not have immediate family in Australia, such as a spouse and children, and there is no evidence that he intended to live in Australia to be close to any family members. This factor does not support the Applicant being a resident of Australia.
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.
In his income and assets form dated 29 March 2019, the Applicant indicated that, other than having an Australian bank account with a balance of $1,228, he did not have any employment or business interests in Australia, had no other sources of income, no assets (including financial assets) and no superannuation (T6).
The AAT1 also recorded the Applicant’s evidence that he had a market business which “involved him spending time in Indonesia sourcing items to sell at the market in Australia” (T2/15). At the AAT2 hearing the Applicant confirmed that after he returned to Indonesia in August 2016, he ceased running that business (transcript/30-31).
The Applicant’s lack of any financial or business ties to Australia is also suggestive that he was not residing in Australia during the Relevant Period. 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.
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).
At the AAT2 hearing, the Applicant agreed with the AAT1 finding that he “has no assets in Australia” but that he has an Australian bank account (T2/16; transcript/27). The Applicant’s evidence was that he had a car but sold it in approximately 2015 because his registration had expired (transcript/28).
Additionally, at the AAT2 hearing the Applicant agreed that by the time he left Australia in August 2016, he had disposed of all his assets (transcript/29).
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 Applicant disposing of his assets, and having no assets except for a bank account does not suggest that he was residing in Australia during the Relevant Period.
Frequency and duration of the Applicant’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.)
Immigration records show that between 13 May 2009 and 6 August 2019 (approximately 10 years), the Applicant was only present in Australia for 210 days (approximately 30 weeks) (T13/104-105).
Relevantly, prior to returning to Australia and lodging his age pension claim on 28 March 2019, the Applicant was continuously outside Australia for a period of 31 months. As noted above, in his age pension claim form the Applicant declared his country of residence to be Indonesia from 26 August 2016 to 28 March 2019 (T5/50).
The lengthy period of time that the Applicant has spent outside Australia is also suggestive that he was not residing in Australia during the Relevant Period. As noted in the Guide, the extended period the Applicant has spent outside Australia will outweigh any stated intention that he intended to reside permanently in Australia.
Any other matter relevant to determining whether the Applicant 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.)
This section of the Guide refers to the person’s intention as being relevant. In Hafza v Director-General of Social Security (1985) 6 FCR 444, Wilcox J discussed the concept of intention when determining residence (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 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 AAT1 recorded the Applicant’s evidence regarding his intention to permanently remain in Australia as (T2/15):
[The Applicant] said that he has always lived frugally and spends his time travelling in South East Asia on tourist visas. His decision to return to Australia in 2019 was prompted by information and advice he received from an agency, “Retirement Essentials”. When he came back in order to lodge his claim, he was not really sure what his plans would be. He said that he would like to be in a position to have an Australian pension with the flexibility of living “pain free”. In this regard he says he suffers from tendonitis and this condition is better suited to the climate of Indonesia.
However, his evidence at the AAT2 hearing was somewhat equivocal (transcript/29-30):
MS HINWOOD:         … when you came back in March 2019 and you put in your aged pension claim at that point, your intention was then to stay in Australia permanently or to go back to Indonesia?
APPLICANT:              My intention was to do whatever was required. I was corresponding with Retirement Essentials on the email which is in here I think. It’s all documented there. They said because I’m an Australian resident they listed everything. I can - I can travel. I can travel again after I received it so in my mind, well, okay, whatever, and then when I applied for it, I was told that I haven’t - I now have to stay in Australia. I normally like to travel and - and I (indistinct) like, okay. So I - whatever I was told, I had to agree with because that’s the rules, yes. And when I - - -
…
TRIBUNAL:Sorry, that’s not quite the question. So the question is, when you came back in March 2019 and put your claim, did you intend to stay in Australia or to go back to Indonesia?
APPLICANT:              Yes. Yes, yes, well, I intended to - to h- well, when they told me I had to stay in Australia, yes, I did intend to stay in Australia. That’s why my friends offered me a room I was renting. I - so that, I, yes, I intended to stay in Australia.

It appears to the Tribunal from this exchange that the Applicant, relying on incorrect advice from Retirement Essentials, intended to do “whatever was required” to obtain an age pension. If this involved residing in Australia, then he was willing to do so. This indicates that, up until 28 March 2019, it was not the Applicant’s objective intention to permanently reside in Australia, and even at that time, his intention was equivocal. That is, he did not have a definite intention to reside permanently in Australia, but rather to comply with any residency requirements for his age pension.
Paragraph [3.1.1.10.6] of the Guide also refers to the purpose of the travel being relevant. The Tribunal notes the following explanation from an email from the Applicant’s then representative, Mr Hale, to Centrelink on 13 October 2019 (T11/94-95):
[The Applicant] also found during this time in Australia, that a physical complaint of tendonitis flared up whilst he was in the drier and colder climate and was one of his original reasons for being in Asia. He sought advice and medication from a well known health practitioner in Western Australia renowned for his expertise on the condition. …
Thus, it appears that one of the reasons for the Applicant residing in Indonesia for lengthy periods of time was because his health condition was relieved from being in a warmer and more humid climate, as opposed to seeking temporary medical treatment in Indonesia and then returning to Australia.
Overall, this evidence suggests that the Applicant did not have a definite intention to continue to reside in Australia.
Evaluation of the s 7(3) factors
In summary, between 2009 and 2019 the Applicant only spent 30 weeks in Australia within a 10-year period. Relevantly, after leaving Australia in August 2016, he did not return for 31 months when he lodged his age pension claim. Although the Applicant has some family and a bank account in Australia, when he left Australia in August 2016, he had no assets, no ongoing accommodation, and no employment, business or financial ties to Australia. He did not have an intention to reside permanently in Australia, but rather intended to comply with any residency requirements for his age pension.
Overall, and after considering the factors contained within s 7(3) of the Act, the Tribunal finds that the Applicant was not residing in Australia during the Relevant Period.
This means that the Applicant ceased to be an Australian resident during the Relevant Period and therefore s 1220(1)(b) of the Act is satisfied.
CONCLUSION ON PORTABILITY RESTRICTIONS
The Tribunal has found that ss 1220(1)(a), (b) and (c) of the Act have been satisfied.
For completeness, the Tribunal will now consider the remaining subsections of s 1220(1) of the Act.
Specifically, having declared to Centrelink that he was resident in Australia from 28 March 2019, the Applicant was granted a pension on 29 March 2019 (s 1220(1)(d) of the Act). This fell within the period of two years after he became an Australian resident again. However, the following month, on 21 April 2019 he departed Australia until 11 July 2019, before again departing Australia on 6 August 2019. That is, he left Australia before the end of the two-year period after his age pension was granted (s 1220(1)(e) of the Act). This is not a matter where financial assistance, as described in s 1220(1)(f) of the Act would be payable.
In conclusion, the Tribunal finds that the Applicant is subject to the portability restrictions in s 1220 of the Act. Unfortunately for the Applicant, this means that the age pension was not payable to the Applicant for the periods 21 April 2019 to 10 July 2019, and from 6 August 2019 onwards because s 1220(1) states that, “a pension based on that claim is not payable to the person during any period during which the person is outside Australia”. This is a prohibition on payment of an age pension where a person meets the requirements in s 1220(1) of the Act and there is no discretionary power to permit portability, as was noted in 7.1.4 of the Guide.
Therefore, the Applicant’s age pension was correctly suspended whilst he was outside Australia from 21 April 2019 to 10 July 2019 and from 6 August 2019 onwards, and the correct or preferable decision is to affirm the Reviewable Decision.
OBSERVATIONS ABOUT ADMINISTRATION
The Tribunal acknowledges, as did the Respondent at the hearing, that the Applicant has not done anything wrong. He followed the advice that he was given by Centrelink and Retirement Essentials. The Applicant referred to several electronic file notes as confirming these conversations (see Centrelink electronic file notes in A3). However, the file notes are in fact recording the Applicant and Mr Hale telling Centrelink that they had been previously advised that he could travel overseas. Although there are no other Centrelink file notes of Mr Hale’s conversations with Centrelink on 17 September 2019 and 20 September 2019, the Tribunal finds, on the balance of probabilities, that they did occur. As discussed above at paragraphs [9]-[10], there was certainly a conversation on or around 17 September 2019. The letter of that same date stating that the Applicant’s pension had been granted again adds weight to the version of events put forward in Mr Hale’s email. It seems likely to the Tribunal that Mr Hale was given incorrect information by Centrelink which he passed onto the Applicant and which the Applicant relied on. Further, these interactions were not properly recorded in Centrelink file notes.
As suggested by the AAT1, “[i]f the Applicant believes that he has suffered detriment as a result of defective administration, he may wish to inquire about the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme)”, which is not a scheme over which the Tribunal has any jurisdiction.
The Applicant also stated at the AAT2 hearing that had he known that he could not receive his age pension overseas he would have returned to Australia last year, however due to the COVID-19 pandemic, he was “stuck” in Indonesia (transcript/38-39). The Tribunal sympathises with the Applicant and requests that Centrelink liaise with the Applicant to determine if he is entitled to any other type of assistance due to this current predicament.
The Tribunal also requests that the Respondent facilitate an investigation into the defects in Centrelink’s record keeping practices that resulted in the conversations of 17 September 2019 and 20 September 2019 not being properly recorded in Centrelink file notes. Further, how the Applicant came to be given conflicting (and incorrect) information regarding the portability of his age pension by Centrelink should also be investigated. The Tribunal asks that the findings of this investigation be shared with the Applicant.
DECISION
The Reviewable Decision, being the decision of an authorised review officer dated
21 October 2019, as affirmed by the AAT1 on 16 April 2020, is affirmed.

76. I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........[Sgd]............................................................
Dated: 3 March 2020

Date of hearing: 21 January 2021

Applicant: Self-represented

Counsel for the Respondent: Ms L Hinwood

Solicitors for the Respondent: Sparke Helmore Lawyers

[2021] AATA 373

3 March 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Date of hearing:	21 January 2021
Applicant:	Self-represented
Counsel for the Respondent:	Ms L Hinwood
Solicitors for the Respondent:	Sparke Helmore Lawyers