Moore and Secretary, Department of Social Services (Social services second review)
[2015] AATA 669
•4 September 2015
Moore and Secretary, Department of Social Services (Social services second review) [2015] AATA 669 (4 September 2015)
Division
GENERAL DIVISION
File Number(s)
2015/1272
Re
Richard Moore
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 4 September 2015 Place Sydney The Tribunal sets aside the decision under review and substitutes a decision that Mr Moore did not cease to be an Australian resident between 7 December 2010 and 21 June 2014, and as such the provisions of section 1220 of the Social Security Act 1991 do not apply in this case.
.................................[sgd].......................................
Ms N Isenberg, Senior Member
CATCHWORDS
Social Security – age pension – whether applicant was a returning former Australian resident – portability of age pension – whether applicant was residing in Australia – qualifying Australian residence – the nature of the accommodation used by the person in Australia – nature and extent of the family relationships the person has in Australia – the nature and extent of the person’s employment; business or financial ties with Australia – the nature and extent of the person’s assets located in Australia – the frequency and duration of the person's travel outside Australia – decision set aside
LEGISLATION
Social Security Act 1991, ss 7, 43, 1220
Social Security (Administration) Act 1999
CASES
Clifopoulos and Secretary to the Department of Social Security [1994] AATA 282
Re Drake and Minister for immigration and Ethnic Affairs (No 2) [1979] AATA 179
Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177, [1985] AATA 184
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Re Maha Hafza v Director-General of Social Security [1985] FCA 164
Secretary, Department of Social Security v Mosca [1998] AATA 586
Secretary, Department of Family and Community Services and Kaello [2003] AATA 490 Secretary, Department of Family and Community Services and Kolominskas [2012] AATA 513Re Wybrow v Secretary, Department of Social Security [1992] AATA 315
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Ms N Isenberg, Senior Member
4 September 2015
THE APPLICATION FOR REVIEW
Richard Moore, the Applicant, was granted the age pension from 23 June 2014. At the time his age pension was granted, he was considered to be a ‘returning former Australian resident’. The effect of that decision is that under sections 1220(1)(a), (b) and (c) of the Social Security Act 1991 the portability of his pension is likely to be affected should he seek to travel overseas within 2 years of the date he was granted the age pension. Mr Moore sought internal review by the SSAT but the decision was affirmed. He now seeks review by this Tribunal.
BACKGROUND
The Applicant was born in Australia. He is currently 66 years of age, having become potentially eligible for the age pension in March 2014 when he turned 65. He has three adult children who reside in Australia. His current wife, who is a Thai national, is a permanent resident of Australia.
He gave evidence that in the late 1990s the company he worked for went into liquidation and his marriage broke down. He was unsettled and went overseas, ostensibly looking for work, but when none materialized, he just travelled extensively. He met his wife in the early 2000s and they married in 2003. He travelled backwards and forwards between Asia and Australia.
In early 2010 he returned to Australia to take care of his elderly mother, for which he received a carer’s pension. He presumed his mother, who was strong-willed and a difficult patient, would live for some time. He went overseas for some respite. His mother died somewhat unexpectedly. She had left her home on the Gold Coast to his siblings, because he had received the family farm in Singleton in 1986 when his father died. His mother had stayed on afterwards to look after the farm until she moved to the Gold Coast in the early 1990s.
The Applicant said that Centrelink was pessimistic about his job prospects and he did not want to go onto newstart allowance so he went overseas in early December 2010, to take up a teaching job in China, commencing in January 2011.
The Applicant departed Australia on 7 December 2010 and did not return until 22 June 2014. While overseas he worked for language schools in China and Vietnam. He worked virtually continuously from 2 January 2011 to 30 May 2014 on annually-renewed contracts. During that time he regularly visited Thailand, where his wife and her family lived.
LEGISLATION
The relevant legislation is contained within the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 43 of the Act sets out the qualifications for age pension:
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;
(c) the person was receiving a widow B pension, a widow allowance, a mature age allowance or a partner allowance, immediately before reaching that age;
(d) if the person reached pension age before 20 March 1997-the person was receiving a widow B pension, a widow allowance or a partner allowance, immediately before 20 March 1997.
Note 1: For qualifying Australian residence see section 7.
The term “Australian resident”, as it applies to the Act, is defined by subsection 7(2) which states:
An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
…
It was not in dispute that at all relevant times the Applicant was an Australian citizen, thereby satisfying s.7(2)(b) of the Act.
Subsection 7(3) of the Act prescribes a number of mandatory considerations for determining whether a person resides in Australia and states as follows:
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.
In considering the concepts raised in s.7(3) regard can also be had to the Guide to Social Security Law (the Guide). Although not bound by Departmental policy guidelines, the Tribunal should not depart from policy unless there are cogent reasons to do so (Re Drake and Minister for immigration and Ethnic Affairs (No 2) [1979] AATA 179). The relevant guidance is found at cl 3.1.1.10, Residence Requirements.
Section 1220 of the Act provides, in effect, that where a person has ceased to be an Australian resident and becomes a resident again there is no portability of their age pension for 2 years:
ISSUES
The issues before the Tribunal are:
(a)Whether, during the period of 7 December 2010 (when Mr Moore left Australia) to 21 June 2014, he ceased to be a resident of Australia, and if so
(b)Whether, when the Applicant returned to Australia on 22 June 2014, he commenced being a resident, and if so,
(c)Whether, the Applicant is subject to the portability restrictions set out in section 1220 of the Act.
CONSIDERATION
The respondent contended that the Applicant ceased to be an Australian resident within the meaning of s.7(2) for the period between 7 December 2010 and 21 June 2014 (the relevant period). To determine this, consideration must be given to the factors contained in s.7(3) of the Act for the relevant period, each of which are addressed below.
With respect to addressing the criteria contained in s.7(3) of the Act, the Tribunal in Clifopoulos and Secretary to the Department of Social Security [1994] AATA 282 stated:
The criteria should not be applied in some mechanical way in order to reach a determination on residency. The relevance and importance of the factors that constitute the criteria will vary in each case. The wording in subsection 7(3)(f) makes it apparent that that the criteria are there as a guide. The decision maker is also entitled to consider the converse of each factor. For example, when subsection 7(3) of the Act refers to 'the nature of the accommodation 'the Tribunal would be entitled to consider the nature of the Applicant's accommodation outside Australia.
The nature of the accommodation used by the person in Australia: s.7(3)(a)
The Guide provides (at 3.1.1.10.1):
… 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 format living arrangements simply means the other criteria at SS Act section 7(3) have greater significance.
In his claim for age pension the Applicant provided the following information in relation to accommodation and home ownership details:
I do not live in a home that is owned by myself or my partner
I do not own a home and have to live elsewhere
My home is not owned by a trust or a company that I have an interest in
l have not sold my former home....
...I do not have any life interest or formal arrangement entitling to the right of accommodation for life
We are presently living with my daughter and family rent free though we contribute to expenses and we can help with care of her 3 daughters.
In cross-examination he said that between 2004 and 2010 the farm was, for most part, rented out. When he came to Australia he mostly stayed with his daughter in Dungog.
He said that when he went to China for work after his mother died, his wife returned to Thailand. He did not think it was practical for her to live on the Singleton property on her own, nor was her moving to China or Vietnam with him practical because she was not proficient in any language except her own. Her son and elderly parents were in Thailand. Furthermore it would have been very expensive and time consuming for him to visit her in Singleton (from China or Vietnam) whereas it was convenient to visit her in Thailand.
The Applicant provided evidence to the SSAT that he rented temporary, furnished accommodation in China and Vietnam on one-year leases to coincide with his employment, and for the period of initial secondment to Vietnam, the company put him up in a hotel. A copy of a lease agreement for a property in Vietnam shows he entered into a 12 month lease for the period 1 May 2013 to 1 May 2014.
His evidence was that he nonetheless maintained accommodation at the family property at Singleton. He explained at the hearing that he had previously (at a time when he hoped to avoid high stamp duty) transferred the property to his sons; the farm and the homestead contents had been handed down from generation to generation since 1860 and he wanted his sons to have it before he died. He did not immediately tell them that he had transferred it to them, and waited till they were over 21, in 2005 or so. He said he had a right to live there for life, although that arrangement with his sons was undocumented. His sons provided a joint statement in which they confirmed their father’s right to live there. While at least 2 of his children had lived at the property from time to time, it was largely unoccupied during the relevant period. For that reason he did not use it as a mailing address. He still had cattle there, and had arranged for the cattle to be managed by a neighbour who also had (undocumented) agistment rights.
The Singleton property is again his home since his return to Australia. He did not ever want to go anywhere else; ‘[his] heart is there.’ In the unlikely event his sons ever wanted to live there, he could move into the granny flat, although the property is of sufficient size that they could all live in the main house together.
He referred to the Guide stating the aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country. He contended he had no permanent or settled accommodation in any other country; he had only lived in short term rental accommodation whilst away working during the review period and had come back to live (and die) in the family home of 150 years.
As to the properties in Thailand (referred to below) he denied they were an “investment”; in Thailand, as a foreigner, he is prohibited from owning property. He explained that his wife, her son and her aged parents were poor farmers living in primitive rural accommodation and he had ‘gifted’ her money which she used to build something better on her land. He also gave her money to buy a room in Bangkok as an alternative to paying rent or hotel fees when they rendezvoused there while he was on breaks from his work in China and Vietnam.
During the same period – some years before the relevant period, but after the transfer of the farm to his sons – he also paid for the erection of a 3 bay shed, a 100,000 litre concrete tank and several kilometres of new cattle proof fencing at Singleton plus put in a new bathroom and painted the whole house even though it was owned by his sons. He said that this too could be regarded as “gifting”.
The respondent contended that the Applicant did not press his ‘right to reside’ immediately upon his return to Australia as he was initially living with his daughter in Dungog, noting that the claim records that address. The Applicant explained that when he returned to Australia the Singleton property was rundown and needed extensive work because it had been unoccupied since 2010 and his sons had not taken care of it, assuming he would attend to the repairs on his return, although they did pay rates and taxes. It required, for example, extensive re-wiring and septic work to make it habitable – which was not finalized until relatively recently. While the work was undertaken he and his wife stayed with his daughter and her family in Dungog and it was for that reason that her address had been recorded on the claim. I accept the Applicant’s explanation.
The respondent also contended that the Applicant’s failure to maintain accommodation in his own name in Australia, is indicative of him not having strong ties with Australia. The Applicant had entered into more formal living arrangements overseas, signing formal lease documents. Further, the respondent contended the Applicant has a greater right to the properties in Thailand “held in his wife’s name” than any property in Australia. As the Applicant did not spend the majority of his time, or indeed any of his time during the relevant period at the property in Singleton the respondent contended this weighs against a finding that the Applicant had settled accommodation in Australia.
The Guide invites a comparison between whether the person has more settled or permanent accommodation in Australia than in any other country. I accept that during the relevant period the Applicant had access to the farm and could have stayed there if ever he returned to Australia, just as has occurred since his return last year. His wife owns the properties in Thailand, and presumably could deal with them as she wishes, as the Applicant has no property rights in that country. Similarly, he had only rental accommodation in China and Vietnam – at most on a year by year basis. The Guide suggests the term of a lease may be a good indicator of the permanence the accommodation. Consequently I find that consideration of this factor is in favour of the Applicant being an Australian resident.
The nature and extent of the family relationships the person has in Australia: s.7(3)(b)
The Applicant’s has three adult children, grandchildren and a brother and sister who reside in Australia. According to his evidence, he also remains close to his ex-wife.
The Applicant’s wife is a Thai citizen, who has Australian permanent residency. She has a 17 year old son and parents who live in Thailand. During the relevant period she remained in Thailand. Since they returned to Australia in June 2014 she has only departed Australia once – for a 48 day period between December 2014 and January 2015. The Applicant said that his wife’s son’s father had refused to permit him to have a passport and so he had not been able to come to Australia with them. It is the intention that, when he shortly becomes an adult and can make application on his own behalf, they will bring him to Australia to study.
The respondent submitted that the Applicant claimed to have gifted money to his wife’s family to build better accommodation. The Applicant denied this assertion. He had given money to his wife, not her family, although he conceded that her son and parents benefited from his support.
The respondent submitted that the Applicant returned to Thailand to spend time with his wife and her family whenever he had leave from his work in China and Vietnam, rather than returning to Australia. He would speak with his wife 2-3 times a week by phone when he was unable to get away. The Applicant denied that he went to Thailand to spend time with his ‘wife’s family’. He explained that they lived in the country and his wife would travel to Bangkok to meet him. On his short leave breaks it would have been impractical for him to spend 5 hours traveling to the property from Bangkok, whereas meeting his wife in Bangkok was very convenient. He went to her rural property only on rare occasions, when he had longer leave. His wife’s son is being raised by his grandparents. In any event, the Applicant’s evidence was that he wanted to spend time with his wife, not her son and his in-laws, with whom he has, it seems, only a cordial relationship, especially given the communication difficulties.
The Applicant’s daughter, Skye, who the Applicant described as the ‘hub’ of his family, provided a letter dated 5 December 2014 which states that the Applicant would skype with her at least once a week during his absences overseas. The Applicant said he would skype his daughter and the grandchildren. She sent him photographs of the grandchildren. He said he also kept in touch with his sons by phone and email, especially the older one, as the younger one preferred using Facebook, which the Applicant does not use.
The respondent noted that the Guide states (at 3.1.1.10):
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 the person is spending more time with.
The respondent contended the Applicant spent more time with his family in Thailand, and only maintained a relationship with his adult children via internet communication during the period in question. I do not accept this to be the case. The Applicant worked in China and Vietnam during the relevant period. He visited his wife in Thailand when he could, which, according to his evidence, was about 20 times during the relevant period. I accept he rarely visited his wife’s family because of distance, communications issues and an obvious preference to be with his wife. He was not overseas with his wife to the exclusion of his family in Australia, as the respondent appeared to assert.
As the Guide points out, just having a family member in a country does not constitute strong evidence that the person is residing in that country. The Guide suggests where a person has 2 families, one being from a previous relationship, the focus must be on the family the person is spending more time with. The Applicant did not spend a great deal of time with his wife in Thailand – the vast majority of his time overseas was on his own, working. The Guide suggested that maintaining a ‘casual’ relationship over the phone or internet does not constitute significant ties to family members. I do not accept that the Applicant’s relationship with his children, especially his daughter was merely ‘casual’.
I find this factor weighs in favour of a finding that the Applicant was an Australian resident during the relevant period.
The nature and extent of the person's employment, business or financial ties with Australia: s.7(3)(c)
The Applicant conceded he had limited financial ties in Australia while he was overseas because his work – the source of his income – was overseas.
His evidence was that he still had some cattle – although only about 3 – the sale of which his neighbour managed. Payment on sales went into his National Australia Bank (NAB) account. His neighbour also paid for tagging and other costs associated with the sales, so he was unclear how much he might have netted from the sale. In any event there was insufficient income to oblige him to file an Australian tax return.
He said his sons paid for some farm expenses, but only to the extent they had to, which led to it becoming rundown.
While overseas his salary had been paid into an overseas bank account which is now closed.
The Applicant states that while he was overseas he maintained an Australian bank account, which showed substantial transactions during the periods of absence and that he had financial ties with breeding cattle and sales. He provided a copy of a National Vendor Declaration (Cattle) and Waybill, which, he said was necessary in order to be able to sell cattle. However this was dated outside the relevant period, does not demonstrate a financial tie between the Applicant and Australia.
Bank records from the NAB, demonstrate that the Applicant held a bank account during the relevant period. However, the Respondent contends that these records show that the greatest closing balance was $3,105.09 on 15 February 2013, and that money was routinely transferred or withdrawn from this account internationally.
In his claim for Age pension the Applicant provided details in relation to his income and assets noting 2 joint NAB Savings Accounts with a total balance of $10. He also referred to joint Thailand Bank Savings Account with a balance of THB350,000.00. In July 2014 the balance was approximately AUD 11,310.
Between 2 January 2011 to 30 April 2013 and 2 May 2013 to 30 May 2014 the Applicant was employed by a company in China and Vietnam. An employment contract, dated 15 April 2013 covers a one year period from 2 May 2013 to 1 May 2014. The contract states the Applicant’s gross performance based salary was 26,250,000 VND per month ($1,250 USD).
The Applicant denied that his wife and her family were financially dependent on him during the relevant period, although he conceded they benefited from his financial support. He did not regard his support as an ‘obligation’, but accepted it was part of his responsibility to his wife. He had also provided a contribution to his wife’s son’s education but, candidly, regretted that he had not taken a more ‘hands on’ approach to his discipline, and, it appeared, was somewhat non-plussed by the ‘step-father’ role.
I find that this factor weighs against the Applicant being an Australian resident during the relevant period.
The nature and extent of the person's assets located in Australia: s.7(3)(d)
The Department’s records indicate the Applicant has household items valued at $1,000 in Australia, and that their car, a 2012 Mazda worth $18,000 is owned by his wife. In his claim for the age pension the Applicant listed his household and personal effects had a net value of $500.
There is little evidence in relation to any asset ownership overseas, although the Respondent notes there is evidence that the Applicant contributed to the purchase of a unit in Bangkok in his wife’s name and contributed to his in-laws property.
The Applicant conceded that he has little in the way of assets of commercial value in Australia, or elsewhere, for that matter.
At the Singleton property he had a large container in which there was a large quantity of family historical memorabilia that is of significant personal value only – old photos of family, miscellaneous old documents, including his father’s war mementoes. It also contained his personal items such as his fencing tools and his clothes.
Items of furniture from the family home which passed to his sons too were also in the container and he and his wife are using some of that furniture now.
I find this factor neither weighs in favour or against a finding that the Applicant was not an Australian resident during the relevant period.
The frequency and duration of the person's travel outside Australia: s.7(3)(e)
The respondent submitted that the frequency and duration of the Applicant’s travel outside Australia weighs against him being an Australian resident: the Applicant’s travel movement records show that the Applicant has spent all of the relevant period overseas. The Applicant readily conceded that he spent all the relevant period working overseas except for short visits to his wife in Thailand.
He was shown in cross-examination his outgoing and incoming passenger cards from 2004. Sometimes he referred to Thailand as his country of residence, which he said he wrote because he was, at that time, travelling extensively through Asia and at least his wife was there. However there was no consistency in those records in that, almost as often he referred to China as his country of residence. The respondent suggested this demonstrated that he did not regard himself as an Australian ‘resident’. I accept his evidence that he did not consider the cards to be of great consequence when he filled them out. In any event, he was in fact ‘living’ (at least in respect of the China entries) there while he worked.
With respect to a person’s frequency and duration of travel outside of Australia, the Guide to Social Security Law at instruction 3.1.1.10 provides:
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...
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 'intent1 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.
The respondent submitted that it is clear that during the relevant period the Applicant was treating China, Vietnam and Thailand as home, while working and spending time with his wife and her family. The Applicant’s evidence was that he never regarded those places as ‘home’. He worked almost continuously in China and Vietnam and spent little time with his wife – taking long weekends when he could and visiting during Tet, and spending very little time with her parents and son.
The Applicant claims that prior to the relevant period he had ‘travelled extensively to many countries and returned often to Australia’. The respondent submitted that the frequency and patterns of the Applicant’s travel before the relevant period does not demonstrate the Applicant maintained a close connection to Australia and noted that the Applicant’s travel records show long periods of absence from Australia, for example that in the 10 years between 21 June 2004 and 21 June 2014 he had spent only 758 days in Australia. The longest period of presence in Australia in this period was between 18 November 2004 and 5 September 2005 (291 days). The second longest period (187 days) fell within the period he was caring for his mother. The Applicant queried the relevance of this assertion, given that he had a 35 year work history in Australia prior to that time. He disputed that his prior absences of more than 6 months a year can be construed as being ‘regular’. During that previous period he travelled extensively to many countries and returned often to Australia, and maintained family, business and assets.
The Guide suggests that prima facie, 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. It notes that 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 future date. The Applicant was quite specific – he would have returned to Australia had his contracts not been renewed. He was only overseas while there was work, and that would end, as it did, at the latest, when he was 65. The Guide refers to a person's physical ties with a country normally taking precedence over their intentions when lengthy periods of time are involved. In this case, the Applicant regarded the farm as his home and had no permanent ties with the countries in which he worked.
I reject the respondent’s contention that this factor weighs heavily in favour of a finding that the Applicant was not an Australian resident during the relevant period and find that this factor weighs in favour of the Applicant being an Australian resident. .
Any other matter relevant to determining whether the person intends to remain permanently in Australia: s.7(3)(f)
The Applicant states that during his absences from Australia he has maintained an Australian drivers licence, Medicare, bank account and voter registration, although in his evidence conceded that these had required no effort to maintain. He thought he may have at least attempted to vote at the consulate in a federal election.
The Applicant said it had always been his intention to return to Australia. He had welcomed the opportunity to work to age 65. He knew that he would not be permitted to work in China after that age.
He had never contemplated settling with his wife in Thailand, believing that as a foreigner he would not be treated well.
He said his children love his wife, who gets on particularly well with his daughter who is of a similar age.
As to why very soon after receiving the age pension he had enquired about portability, he said he had wanted to travel, e.g. to go to Gallipoli where relatives had lost their lives. He was referred to his letter to Centrelink dated 9 August 2014 enquiring about portability in which he stated that he would like portability of his age pension because he has ‘family overseas’. As well as his wife’s parents and son, he said that his son is now working in Thailand and would like to have the flexibility of being able to visit him. He had thought, when he brought his application for review that he was precluded from travel, but now knows that he may travel, but that he will not receive the age pension while absent.
I accept the respondent’s contention that this does not weigh in favour of a finding that the Applicant was an Australian resident during the relevant period.
CONCLUSION
I was referred to the Tribunal’s decision in Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 at [20] – [22] where Senior Member Toohey explained that an individual’s residency “needs to be assessed in light of all the evidence about the (person's) circumstances”, which in some cases may lead to a finding that a person is an Australian resident despite an extended absence from Australia. However, the Respondent submits the Applicant’s circumstances are not such a case.
The Respondent contended that the evidence does not demonstrate that the Applicant maintained a strong connection to Australia, or that his connections overseas could be categorised as ‘ephemeral’: Re Wybrow v Secretary, Department of Social Security [1992] AATA 315. Nor does the evidence establish that the Applicant’s overseas absences were for a singular, passing purpose: Secretary, Department of Social Security v Mosca [1998] AATA 586, Secretary, Department of Family and Community Services and Kaello [2003] AATA 490 and Secretary, Department of Family and Community Services and Kolominskas [2012] AATA 513. Rather, it was submitted, that the Applicant’s overseas absence was motivated by not wanting to be placed on newstart allowance, obtaining work in China and Vietnam and also because his wife’s Thai son did not have a passport and her parents were based in Thailand. For the reasons expressed above, I do not consider this to be an accurate assessment of the Applicant’s absence.
The respondent referred me to Re Maha Hafza v Director-General of Social Security [1985] FCA 164, where Wilcox J stated at [13]:
... 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.
It is inescapable that the Applicant was not physically present in Australia during the relevant period. However, he did not intend to make any other place – neither Asia in general nor Thailand in particular – his ‘home’.
The respondent referred me to Re Issa and Secretary, Department of Social Security (1985) 8 ALN N177, [1985] AATA 184, where it was held that if a person continues to reside overseas after fulfilling their singular specific, passing purpose, their absence may be considered indefinite rather than temporary. In this case before me now, at the conclusion of the work contract the Applicant returned to Australia.
In summary therefore I find that, taking the evidence as a whole, that the Applicant remained an Australian resident during the relevant period. Having come to this view, it is unnecessary for me to consider issues (b) and (c) set out in paragraph [14] above.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mr Moore did not cease to be an Australian resident between 7 December 2010 and 21 June 2014, and as such the provisions of section 1220 of the Social Security Act 1991 do not apply in this case.
75. I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
..................................[sgd]......................................
Associate
Dated 4 September 2015
Date(s) of hearing 29 July 2015 Applicant In person Solicitor for the Respondent Ms Hehir, Department of Human Services
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