Morgan Lewis and Secretary, Department of Social Services
[2014] AATA 31
•24 January 2014
[2014] AATA 31
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4430
Re
Morgan Lewis
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 24 January 2014 Place Sydney Decision The decision under review is affirmed.
................[sgd]........................................................
Deputy President RP Handley
Catchwords
SOCIAL SECURITY - Baby Bonus – eligibility - Australian resident - whether the Applicant resided in Australia at the relevant time - relevance of intention to return to Australia - Applicant resided in the United Kingdom during the relevant period - decision under review affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth) ss 3, 21, 22, 36
Social Security Act 1991 (Cth) s 7
Cases
Ahern and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 665
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
Clifopoulos and Department of Social Security (1994) 36 ALD 745
Hafza v Director-General of Social Security (1985) 6 FCR 444
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
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 Evtushenko [2011] AATA 596
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931
REASONS FOR DECISION
Deputy President RP Handley
Mr Lewis has applied for the review of a decision made by the Social Security Appeals Tribunal (SSAT) which affirmed the decision of an authorised review officer (ARO) and delegate of the Secretary of the Department of Social Services to refuse Mr Lewis’ claim for the Baby Bonus in respect of his daughter.
BACKGROUND
Mr Lewis was born in Australia in 1977 and is an Australian citizen. In June 2001, he met his future wife, now Ms Lewis, in Australia while she was on a working holiday. They subsequently lived together in Melbourne for a short time from August until November 2001, when Ms Lewis, who is a citizen of the United Kingdom (‘UK’), left to return to her home in Northern Ireland. On 23 January 2002, Mr Lewis travelled to the UK to live with Ms Lewis. He was initially granted a working holiday permit for two years, and, on the expiry of this, he was granted a permit for a further two years based on his relationship with Ms Lewis. Each permit excluded any entitlement to assistance from public funds. Finally, on 3 March 2006 he was granted an “indefinite permit” allowing him to live and work in the UK but with the restriction that he visit the UK at least once every two years and subject to the permit being reviewed after five years.
While in the UK, Mr Lewis worked both as a self-employed roofer and for companies such as Tesco.
In 2003, Ms Lewis commenced a three year program for a Doctorate in Clinical Psychology at the University of Leeds from which she graduated in October 2006. Mr Lewis and Ms Lewis were married in June 2007. Having completed her training as a Clinical Psychologist, Ms Lewis then worked as a Clinical Psychologist for the Leeds and Yorkshire Partnerships NHS Trust from 2006 until late 2012.
In January 2011, Ms Lewis became pregnant with the couple’s daughter who was born in September 2011 while Ms Lewis was on maternity leave. On 12 April 2012, Mr and Ms Lewis returned to Australia with their daughter after she had completed a three month immunisation program in March 2012. On his incoming passenger card, Mr Lewis stated that he was a resident returning to Australia.
During the period January 2002 to April 2012, Mr Lewis visited Australia on three occasions, on each occasion returning to the UK. He was present in Australia on the following dates:
(a)17 June 2003 to 20 July 2003 for a total of 33 days.
(b)5 February 2008 to 10 March 2008 for a total of 31 days.
(c)7 April 2010 to 22 April 2010 for a total of 15 days.
After returning to Australia on 12 April 2012, a recurring medical condition affecting his vision led Mr Lewis to travel to the UK on 17 July 2012 to access medical files held by the Ophthalmologist who had treated him in Leeds. While in Leeds, Mr Lewis suffered another episode affecting his vision which required emergency treatment. He remained out of the country for 96 days before returning to Australia on 19 December 2012. Ms Lewis and their daughter accompanied him to Leeds on 17 July 2012 and Ms Lewis subsequently returned to work from maternity leave on 10 September 2012 and gave three months’ notice of the termination of her employment. At that time, Ms Lewis was still awaiting the outcome of her application for a spouse visa. She finally returned to Australia in April 2013 after her visa was issued. Mr Lewis said he found their being separated between December 2012 and April 2013 very difficult.
On 16 April 2012, Mr Lewis had lodged claims with Centrelink for the Baby Bonus and Family Tax Benefit (FTB) in respect of his daughter. On 18 May 2012, Centrelink granted Mr Lewis the FTB for his daughter from 12 April 2012 but refused his claim for the Baby Bonus. On 14 June 2012, an ARO affirmed the decision to reject his claim for the Baby Bonus on the ground that his absence from Australia during the period January 2002 to April 2012 meant that he did not meet the residency requirements to qualify for the Baby Bonus. On 23 August 2012, the SSAT affirmed this decision. On 4 October 2012, Mr Lewis applied to the Tribunal for a further review.
RELEVANT LEGISLATION AND ISSUES
Section 36 of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act) deals with eligibility for the Baby Bonus. At the relevant time in late 2011, s 36(2)(aa) required that the child in respect of whom eligibility for the Baby Bonus was sought was “an FTB child of the individual”, and s36(2)(b)(i) required that the individual (in this instance Mr Lewis) was “eligible for family tax benefit in respect of the FTB child at any time within the period of 26 weeks starting on the day of the child's birth”.
The Secretary accepts that Mr Lewis’ daughter was his ‘FTB child’ (as defined in s 22) but contends that Mr Lewis was not eligible for FTB for his daughter at the relevant time, namely during the 26 weeks between his daughter’s birth in September 2011 and late March 2012.
An individual’s eligibility for FTB is determined in accordance with s 21 of the Family Assistance Act. Relevantly, s 21(1)(b)(i) states that for the individual to be eligible for FTB the individual must be “an Australian resident”. An ‘Australian resident’ was at that time defined in s 3(1) of the Family Assistance Act as having the same meaning as in the Social Security Act 1991. Section 7(2) of the Social Security Act defines an ‘Australian resident’ as follows:
(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.
While Mr Lewis is an Australian citizen, at issue is whether he was an ‘Australian resident’. The Tribunal must determine whether he resided in Australia, during the relevant period between his daughter’s birth in September 2011 and late March 2012. His eligibility for the Baby Bonus for his daughter depends on this. Section 7(3) of the Social Security Act identifies a number of factors to which regard must be had in making this determination:
(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 converse of each factor may also be relevant. As the Tribunal observed in Clifopoulos and Department of Social Security (1994) 36 ALD 745 at [17]:
... the decision-maker is also entitled to consider the converse of each factor. For example, when s 7(3) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the nature of the applicant’s accommodation outside Australia.
EVIDENCE
Mr and Ms Lewis gave evidence at the hearing, having provided extensive documentary evidence to support their case. Mr Lewis grew up in Kiama and has been a roofer by trade since about 1996, working mostly in a self-employed capacity. He said he is also a musician. After meeting Ms Lewis while she was on a working holiday in Australia in 2001, they lived together for a short while in Melbourne and he then followed her back to the UK arriving on 23 January 2002. Initially, he intended the stay to be temporary, but Ms Lewis’ goal was to qualify as a clinical psychologist and, after gaining experience working in specialist brain injury units in Cambridge and Norwich, she was accepted into a program to undertake an NHS sponsored three year Doctorate in Clinical Psychology at the University of Leeds in 2003. For her to have undertaken a similar program in Australia would have involved a significant cost. Thus, while Mr Lewis missed his family and friends in Australia and, he said, endured taunts working on building sites in England, he put off returning to Australia to support Mr Lewis through her studies. Ms Lewis said her intention was also always to return to Australia with Mr Lewis, noting that she also has family here.
Having been awarded her doctorate in October 2006, Ms Lewis was advised to gain two years’ post-qualification experience to increase her employability. She said her intention was to consolidate her training and become a competent practitioner before moving to Australia. She gained a position as a Clinical Psychologist with the Leeds and Yorkshire Partnerships NHS Trust. By letter dated 17 December 2010, Ms Lewis gave notice of her intention to terminate her employment before moving to Australia, which she then envisaged would be in late February or early March 2011.
However, in January 2011 she became pregnant, having wanted to have a child, recognising that she was getting older. She and Mr Lewis considered returning to Australia in the later stages of her pregnancy but were advised against it and, finding that making the arrangements for moving to Australia was very stressful, they decided to remain in the UK for the birth. Soon after their daughter’s birth, Mr Lewis applied for Australian citizenship for her based on descent and she was registered as an Australian citizen by descent on 19 December 2011. Another consideration in staying on in the UK was that Ms Lewis would have the benefit of 12 months paid maternity leave if she returned to work for three months after her leave.
Ms Lewis said she feels responsible for the delay in their returning to Australia and said that it was initially her commitment to her work that resulted in their staying longer in the UK than they intended. There then followed other intervening events which further delayed their return to Australia.
After Mr and Ms Lewis’ daughter was born, they were advised that she should complete the initial immunisation program before travelling. This was encouraged by information on an Australian Government website. The immunisation program took three months and was completed in March 2012 (No further immunisation is required until the child is five years old). Thereafter, Mr and Ms Lewis had difficulty booking a flight to Australia with a bassinette, there being only a limited number of bassinettes on each aircraft.
Mr Lewis said the net result was that although it was always his intention to return to Australia, there were a number of intervening events that prevented this happening as soon as he would have liked. He described it as “a long and tough journey” but said there was always a clear path back to Australia. These events included Mr Lewis being injured in a motor vehicle accident in 2009 when, through no fault of his own, he was hit by a car when riding his motor bike, requiring his needing time to recover from his injuries. He also suffered a serious eye condition in 2009 involving his developing what he described as a blind spot/flash point in his left eye which, it subsequently turned out, following a further incident in Australia after their return in April 2012 and another serious episode in Leeds in about July 2012, was initially misdiagnosed.
After the episode with his eye in Australia in 2012, having consulted an ophthalmologist in Sydney, he was unable to obtain documents concerning the diagnosis and treatment of his condition while in Leeds that the NHS refused to provide. This was the reason for his return to the UK in July 2012 so that he could obtain these records and, as it turned out, he was able to have treatment for his condition following another episode while he was there. Treatment in England was at no cost, being covered by the NHS as a result of the reciprocal agreement between the UK and Australia. Since this time, his ophthalmologist in Sydney (Dr I-Van Ho) and his ophthalmologist in Leeds (Dr O Backhouse) are now communicating although they have still not settled on an agreed diagnosis. Mr Lewis said after the episode in Leeds he was advised not to travel because of the effect of increased air pressure on his condition. Mr Lewis said he had one further episode in February 2013 after returning to Australia when he temporarily lost all sight in one eye and underwent emergency surgery. He has now recovered his sight although he still has the blind spot/flash point that originally affected his left eye.
Mr Lewis was asked about permits issued to him while in the UK. He said the first permit, for two years, was for a working holiday and the second permit, also for two years, was based on his relationship with Ms Lewis. Neither permit entitled him to any assistance from public funds. Thereafter, he had limited permit options and was channelled into applying for what is called an ‘indefinite permit’ which was granted in 2006. This enables him to come and go from the UK which, while he is passionate about wanting to live in Australia, will be inevitable given the need to visit Ms Lewis’ parents in Northern Ireland from time to time.
Mr Lewis confirmed that he returned to Australia on three occasions while he was living in England. His family sometimes helped with the fares because it was expensive, took a lot of time and he was self-employed. Mr Lewis said that when he first went to England in January 2002, he stored his household goods and other possessions with his family and friends in Australia pending his return, he retained his personalised number plates which were stored at the Motor Vehicle Registry in Kiama, and his father looked after his “pride and joy”, his VW Kombi, which remains on his father’s farm in Tasmania. He also maintained his driving licence and would borrow his mother’s car from time to time while visiting her. During his absence from Australia, Mr Lewis also remained on the electoral roll in Kiama and maintained his bank account with the Illawarra Mutual Building Society (IMB). His mother’s home was his base when he visited Australia but he also spent a lot of time visiting his family and friends elsewhere in Australia. Mr Lewis said while in England, he and Ms Lewis never bought any “good furniture” because their stay there was always intended to be temporary. They have shipped most of the possessions they want to retain to Australia, with a few more to come.
Mr Lewis was asked about the tools of his trade. He has shipped here those which he purchased in the UK, and he has bought others since he has been back, for example to enable him to work with Colorbond for which there is little demand in the UK. Shortly after he arrived back in April 2012, he bought a second-hand “ute” for work purposes. The personalised number plates he retained while he was in the UK have now been transferred to this vehicle. He also bought a SIM card for his mobile phone on re-entering Australia and, while in late December 2012, he moved to a longer term mobile phone plan; he has retained the same telephone number.
DISCUSSION: WAS MR LEWIS AN ‘AUSTRALIAN RESIDENT’ AT THE RELEVANT TIME?
Case Law on ‘Residence’
As explained above, for Mr Lewis to be eligible for the Baby Bonus in respect of his daughter, the Family Assistance Act, read in conjunction with s 7 of the Social Security Act, requires that he was an Australian resident – that he resided in Australia – at the relevant time between his daughter’s birth in September 2011 and late March 2012. The meaning of the word ‘residence’ has been discussed by the courts in a number of cases. In the Federal Court decision in Hafza v Director-General of Social Security (1985) 6 FCR 444, Wilcox J stated at 449:
… 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 Limited v The FC of T (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 Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 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 (1969) 16 F.L.R. 231 at 236) …
In the Federal Court decision in Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 (Baccon), Branson J, in discussing the meaning of residence in the context of the Social Security Act 1991, stated at [7]-[10]:
Residence, like domicile, is a factor that connects a person with a place. It is not a term of art; the precise meaning of expressions such as ‘resident’, ‘resides in’ and ‘is residing in’ in legislation will depend upon the context provided by, and the purpose of, that legislation.
As a general concept, residence has two elements: a physical presence in a particular place and the intention to treat that place as home (Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449; Taslim v Secretary, Department of Family and Community Services (2004) 138 FCR 70 at [36]).
Of course, once a person has established a home in a place, temporary absence from that place (for example, to take a holiday) does not bring the residence to an end. However, a person’s residence in a place in which he or she is not present, depends on an intention to return and continue to treat that place as home (Hafza at 449-450).
Again, as a general concept, although most people reside in only one place, residence need not be exclusive; a person may reside in more than one place (Re Taylor; Ex parte Natwest Australia Bank Limited (1992) 37 FCR 194 at 198). For example, an individual who maintains two homes (say, one in Melbourne and one on the Gold Coast) and moves between them according to the seasons may be a resident of both places.
Dr Thompson, for the Secretary, drew the Tribunal’s attention to a number of decisions where the question of residence was at issue. Of particular relevance is the decision in Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 (Killick) where, at [19], the Tribunal noted that the factors set out 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 the individual applicant. No one factor on its own is likely to be determinative.
The Tribunal went on to observe, at [20-22]:
20. 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.
21. 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.
22. 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.
In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Evtushenko [2011] AATA 596, a case involving materially similar facts to those of the present case, a life threatening condition affecting her baby son prevented the applicant, who had been absent from Australia for about 10 years, and her partner, from returning to Australia. The issue for the Tribunal was whether the Applicant’s six visits to Australia over the course of the 10 years, in each case being of less than 13 weeks duration, constituted a “return to Australia” for the purpose of eligibility for the Baby Bonus. While the Tribunal accepted that it was the applicant’s and her partner’s plan to return to Australia, the Tribunal found the applicant was not eligible for the Baby Bonus.
In Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931, at [17], the Tribunal gave particular emphasis to the nature and duration of Mr Taylor’s absences from Australia in deciding that Mr Taylor ceased to be an Australian resident. As in the current matter, Mr Taylor spent considerably more time outside Australia rather than in Australia in the three years prior to his application for social security payments.
In Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726, the Tribunal had regard to the applicant’s immigration status in Thailand in considering the application of the 10 year residence requirement for age pension. The Tribunal found, at [21], that despite the fact Mr Boucat only held a visitor visa in Thailand, he had ceased to reside in Australia.
The s 7(3) Factors
As noted above, the factors set out in s 7(3) (and their converse) must also be considered and, as was stated in Killick at [19], “are there to guide the decision-maker in assessing the totality of an applicant’s circumstances”, although the Tribunal noted in Ahern and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 665, at [8], that they
… should not be applied in a mechanical way. The relevance and importance of the factors in s 7(3) will vary in each case.
With regard to s 7(3)(e), I note Branson J’s comment in Baccon [2006] FCA 773, at [34]:
… The legislative requirement for a decision-maker to have regard to a person’s travel outside Australia reflects an assumption that an Australian resident will ordinarily be based in Australia.
The nature of the accommodation used by the person in Australia
Prior to departing for the UK in January 2002, Mr Lewis lived in rental accommodation in various locations but immediately before leaving, had been living with his mother in Kiama. On his three visits to Australia while living in the UK, his base was with his mother but he spent much of his time visiting family and friends elsewhere in Australia. Mr Lewis did not retain any accommodation in Australia during his absence.
In the UK, Mr and Ms Lewis spent time with Ms Lewis’ family in Northern Ireland. However, while in England, where they spent most of their time, they lived in rental accommodation, including more than a year in Norwich while Ms Lewis was working in a brain injury unit, and in Leeds, where she undertook her Doctorate and subsequently worked for the Leeds and Yorkshire Partnerships NHS Trust.
The nature and extent of the family relationships the person has in Australia
Mr Lewis’ family are in Australia. His mother lives in Kiama and his father on a farm in Tasmania. While Ms Lewis’ parents and her sister and brother-in-law live in Northern Ireland, she also has family in Australia – an Aunt and her family, and an Uncle and his family - who live in Sydney.
The nature and extent of the person's employment, business or financial ties with Australia
Mr Lewis is a roofer who generally works as a self-employed tradesperson. While absent in the UK, he had no business or other employment in Australia but retained an operating bank account with the IMB. In the UK, he worked as a self-employed roofer or, on occasion, was employed in that capacity. He also had a bank account in the UK, which he said currently has no funds in it.
The nature and extent of the person's assets located in Australia
Mr Lewis said that on leaving for the UK in January 2002, he stored his household possessions with family and friends. His car, a VW Kombi, has been kept for him by his father on his farm in Tasmania. Mr Lewis retained his personalised numberplates, stored at the Motor Vehicle registry in Kiama. In the UK, it was necessary for him to buy tools and he and Ms Lewis acquired various household possessions, albeit that because they regarded their stay in England as temporary, they did not buy “good stuff”. The household possession and tools retained by Mr Lewis on leaving England have been shipped to Australia. On returning to Australia in April 2012, Mr Lewis purchased a second hand ‘ute’ for his work as well as additional tools.
The frequency and duration of the person's travel outside Australia
Mr Lewis left Australia on 23 January 2012. Apart from three short visits, detailed above, he did not return to Australia to live until 12 April 2012. It was necessary for him to return to England on 17 July 2012 to obtain access to his medical records as a result of further eye problems and, while he was there, he had another emergency episode requiring treatment. He arrived back in Australia on 19 December 2012 and has remained here since.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
The Secretary accepts that it was always Mr and Ms Lewis’ intention to ultimately return to Australia to make this their home. I am satisfied that they put this intention into effect when they returned to Australia on 12 April 2012. It was Mr Lewis’ intention to re-establish himself in Australia in order to support and provide a home for his family. Ms Lewis completed her qualifications in clinical psychology and obtained relevant experience in the UK with a view to obtaining employment as a Clinical Psychologist in Australia.
Dr Thompson referred to the Outgoing and Incoming Passenger Cards completed by Mr and Ms Lewis, and, particularly those completed by Mr Lewis. Most of these indicate that he regarded himself as an Australian resident departing temporarily with a view to spending most of his time abroad in England, although cards dated 22 April 2010 and 10 March 2008 refer to his country of residence as the UK. In my view, these two cards should not regarded as reliable evidence of intention in view of the other cards to the contrary and Mr Lewis’ evidence that he had no knowledge that significance could later be attached to how he completed these cards. He said had he realised this, he might have given more thought to how he completed the cards.
Dr Thompson also referred to the ‘indefinite permit’ issued to Mr Lewis on 3 March 2006 permitting him to live and work in the UK. The two permits Mr Lewis held previously were each of two years duration and excluded access to public funds. I accept Mr Lewis’ evidence that the indefinite permit was the option available to him having held two previous short term permits. I am not satisfied that it is significant evidence of intention in view of the other evidence.
I accept that there were various intervening events that delayed Mr Lewis’ return to Australia. These included:
·Ms Lewis’ decision to study for a Doctorate in Clinical Psychology,
·after she had obtained her Doctorate, the perceived need to obtain hands-on professional experience to assist her in obtaining employment in Australia,
·the decision to have a child,
·Mr Lewis being involved in a motor vehicle accident requiring time for his recovery,
·Mr Lewis’ eye condition requiring treatment in England,
·the birth of their daughter,
·the need for their daughter to complete a three month immunisation program before travelling to Australia,
·the need for a bassinet for the child on their flight to Australia and the limited availability of bassinets which delayed their finding a suitable flight.
Conclusion
Having regard to the facts and having considered the s 7(3) factors, the focus must be on whether Mr Lewis resided in Australia at the relevant time between his daughter’s birth in September 2011 and late March 2012. I am satisfied that it was always Mr Lewis’ intention to return to Australia and resume residing here. As stated in Killick [2010] AATA 1059, at [21], Mr Lewis’ intention is an important consideration in determining his place of residence. Intention, however, is not determinative on its own, and the Tribunal must consider all the evidence about the applicant’s circumstances. Despite Mr Lewis’ intention to return to Australia, the evidence suggests that Mr Lewis was not an Australian resident during the relevant period. He occupied rental accommodation in the UK, but did not have similar permanent accommodation in Australia. His employment and more substantial financial ties were in the UK. The evidence also indicates that Mr Lewis intended to reside in the UK in order for Ms Lewis to complete her education and further training, at least until September 2010. As a result of a number of unforeseen events, this stay was extended beyond what they had earlier envisaged.
For these reasons, and taking into account Mr Lewis’ ultimate intention to return to Australia, the evidence discussed above indicates that he resumed residence in Australia on 12 April 2012. However, before his return to Australia on that date, I find that Mr Lewis resided in the UK, albeit that his original intention to return to Australia was frustrated by various intervening events.
To be eligible for the Baby Bonus, Mr Lewis had to be a resident in Australia in the period of 26 weeks following his daughter’s birth. This period ended in late March 2012. While Mr Lewis resumed residence in Australia less than two weeks later, there is no discretion in the relevant provisions of the Family Assistance Act which would permit the Tribunal to extend that period. Regrettably, this means that Mr Lewis was not eligible to receive the Baby Bonus in respect of his daughter and the decision under review must therefore be affirmed.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty five) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley ................[sgd]........................................................
Associate
Dated 24 January 2014
Date(s) of hearing 17 January 2014 Date final submissions received 17 January 2014 Applicant In person Solicitor for the Respondent Dr S Thompson, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security - Baby Bonus – eligibility
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Residency
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Administrative Review
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