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

This matter concerned an application for review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Department of Social Services' rejection of Mr Martin's claim for an age pension. The claim was rejected on the basis that Mr Martin was not an Australian resident at the time he lodged his application on 31 July 2018. Mr Martin, born in Australia in 1951, had lived and worked in Samoa since 1995, where he operated a business with his Samoan wife and their four children. He returned to Australia on 21 July 2018, initially stating on his Incoming Passenger Card that he did not intend to live in Australia for the next 12 months, with his stated reason for travel being "holiday".

The primary legal issue before the court was whether Mr Martin satisfied the criteria for being an Australian resident for the purposes of the age pension claim, specifically during the period from 31 July 2018 to 30 October 2018. This required an assessment of his physical presence in Australia and his intention to treat Australia as his home during that period, having regard to the factors outlined in subsection 7(3) of the relevant Act. These factors included the nature of his accommodation, family relationships, employment and financial ties, assets in Australia, travel history, and any other matter relevant to his intention to remain permanently in Australia.

The court considered the established legal principles of residence, which require both physical presence and an intention to treat a place as home, even if not permanently. It was noted that a person does not necessarily cease to be a resident due to temporary absence if they retain a continuity of association and an intention to return. The court also acknowledged that the factors listed in section 7(3) are guides to assess the totality of an applicant's circumstances, with no single factor being determinative. Despite Mr Martin's evidence that he returned to Australia to care for his injured daughter and subsequently formed an intention to live in Australia with his family, the court found that he had not taken concrete steps to give effect to this intention between 31 July 2018 and the end of October 2018.

Consequently, the court was not satisfied that Mr Martin was an Australian resident during the relevant period. The application for review was unsuccessful, and the AAT's decision affirming the rejection of Mr Martin's age pension claim was affirmed. The claim was therefore taken not to have been made.