Mutlukaya and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4805

Mutlukaya and Secretary, Department of Social Services (Social services second review) [2021] AATA 4805 (23 December 2021)
Division:GENERAL DIVISION
File Number: 2020/8588
Re:Murat Mutlukaya
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:23 December 2021
Place:Melbourne

The Tribunal decides to set the decision under review aside and, in substitution, decides that the applicant’s disability support pension was automatically cancelled on 12 August 2020.
..........[SGD]..............................................................
Senior Member C. J. Furnell
Catchwords
SOCIAL SECURITY – disability support pension – where applicant absent from Australia – disability support pension purportedly suspended or cancelled – whether applicant qualifies for unlimited portability of disability support pension – whether applicant is a ‘severely impaired disability support pensioner’ – whether applicant ceased to be Australian resident – whether former resident rule applied – disability support pension automatically cancelled at end of notice period – purported determinations to suspend and cancel disability support pension did not take effect – decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745
Comcare v Power [2015] FCA 1502
Commissioner of Taxation v Addy [2020] FCAFC 135
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Goodfellow and Department of Social Security [1992] AATA 301
Hafza v Director-General of Social Security [1985] FCA 164
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641
Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575
MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs [2009] FCA 1142
McDonald v Director-General of Social Security (1984) 1 FCR 354
McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835
Millar and Comcare (Compensation) [2019] AATA 4973
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
New South Wales v Kable [2013] HCA 26
Safaoui and Secretary, Department of Social Services (Social services second review) [2017] AATA 924
Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773
Secretary, Department of Social Security and Mosca [1998] AATA 586
Shearing and Director-General of Social Security [1983] AATA 116
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468
Wybrow v Secretary Department of Social Security [1992] AATA 315
Secondary Materials
Department of Social Services, Social Security Guide (version 1.287, released 8 November 2021)
REASONS FOR DECISION
Senior Member C. J. Furnell
23 December 2021

In this proceeding the applicant has sought review of a decision denying payment to him of his disability support pension (DSP).[1]
[1] T2, p.6.
The applicant’s underlying contention appears to be that, despite his absence from Australia since 15 July 2020, his DSP remains payable in the circumstances. In essence, he submits that he has the benefit of (or should, while outside Australia, be entitled to be granted) unlimited “portability” in relation to his DSP.
On the other hand, the respondent contends that the applicant was never qualified to receive the DSP or, alternatively, that when the applicant left Australia, his DSP ceased to be payable as no portability period applies in relation to his DSP.
In addressing these competing contentions, the issues to be addressed by the Tribunal flow from the task it is undertaking. That task involves doing over again that which was done in the making of the decision the subject of review.[2] Hence, a threshold issue involves identifying that decision.
[2] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51].
On 8 December 2020,[3] the Tribunal’s Social Services and Child Support Division (the SSCSD) decided (the AAT1 decision) to affirm an authorised review officer decision of 6 October 2020 (the ARO decision).[4] In the AAT1 decision, the ARO decision was described as one which had affirmed an earlier decision to suspend the applicant’s DSP “on the basis he was no longer in Australia.” According to the SSCSD, the effect of that earlier decision was that the applicant’s DSP “has not been payable since 15 July 2020”. While the decision so affirmed was expressed to be a decision of 24 September 2020, as will soon be seen, I find that it was, in fact, a decision of 1 October 2020.[5]
[3] T3, p.10.
[4] T33, p.174.
[5] When an initial decision is affirmed by an authorised review officer, what the SSCSD reviews is the decision as affirmed: Social Security (Administration) Act 1999 (SSA Act), s 142.
The Tribunal has jurisdiction to review the AAT1 decision.[6] The reviewable decision is, however, taken to be the decision as affirmed by the SSCSD.[7] The decision as so affirmed was the ARO decision. However, when, as in this case, an authorised review officer affirms an earlier decision, the officer’s decision is taken to be the decision as affirmed.[8] The decision as affirmed in the ARO decision was the decision of 1 October 2020.
[6] SSA Act, s 179.
[7] Ibid.
[8] SSA, s 142.
Hence, while the decision the subject of review in this proceeding is the AAT1 decision, that decision is taken to be the decision to suspend the applicant’s DSP from 15 July 2020, a decision made on 1 October 2020.[9]
[9] T30, p.140.
I have decided to set that decision aside and, in substitution, decided that the applicant’s DSP was cancelled with effect on 12 August 2020. I have done so for the reasons which follow. Put briefly, however:
(a)As a person continuously absent from Australia since 15 July 2020, the applicant’s DSP is not payable to him after the end of his portability period.[10]
[10] SS Act, s 1215(1).
(b)The applicant’s portability period was not unlimited. In the circumstances, a particular determination would need to have been made in order for there to be unlimited portability. No such determination was made and nor could one have been made while the applicant is absent from Australia.[11]
(c)Not only was the applicant’s portability period not unlimited, in fact, no portability period applied to the applicant’s DSP. Hence, as soon as he left Australia on 15 July 2020, his DSP ceased to be payable. This is because his portability period was effectively zero days or because the applicant did not have the benefit of any portability.
(d)The applicant’s portability period was effectively zero days. This is because, when the applicant left Australia in 2020, he ceased to be an Australian resident.
(e)Alternatively, the applicant did not have the benefit of any portability. Irrespective of whether he ceased to be an Australian resident when he left Australia in 2020, the “former resident rule” applies so that his DSP is not payable while he is outside Australia.[12]
(f)As no portability period applied to the applicant’s DSP, it ceased to be payable when he left Australia. Because the payability of the applicant’s DSP was affected by his departure from Australia, he was required to, and did, give notice of that departure to the respondent within 28 days.[13]
(g)The effect of that notice was that the applicant’s DSP was automatically cancelled at the end of that 28-day notice period, i.e., on 12 August 2020.[14]
(h)As the applicant’s DSP was automatically cancelled, the making of a determination suspending or cancelling the applicant’s DSP – which took effect on or after the automatic cancellation took effect – was not authorised.[15]
(i)The purported determination to suspend the applicant’s DSP would have taken effect on 12 August 2020, at the earliest.[16]
(j)While it was not until 14 October 2020 that the applicant’s DSP was purportedly cancelled, that cancellation would have taken effect on the day his DSP was suspended, being, at the earliest, 12 August 2020.[17]
(k)As the purported determinations to suspend and cancel the applicant’s DSP did not take effect before the automatic cancellation of his DSP, they were not authorised.
[11] SS Act, s 1218AAA(2).
[12] SS Act, s 1220(1).
[13] SSA, s 68(2). See T21, p.120 and Safaoui and Secretary, Department of Social Services (Social services second review) [2017] AATA 924 at [77]-[78]
[14] SSA, s 93(1)(h). See MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs [2009] FCA 1142 [27]-[28].
[15] SSA, s 80(2).
[16] SSA, s 118(13).
[17] SSA, s 118(11).
Before elaborating on these reasons, I should outline aspects of the factual and legislative context.
FACTUAL CONTEXT
The applicant is a 45-year-old gentleman who arrived in Australia as a baby in 1977.
The applicant’s father is deceased. His mother, wife and two daughters left Australia for Turkey in 2014 and have not returned. His daughters have now spent at least half of their lives in Turkey.
The applicant left Australia for Turkey on 20 January 2015.[18]
[18] T37, p.200.
After almost five years away, the applicant returned to Australia on 24 December 2019.[19] On that day, he commenced preparation of his DSP claim.
[19] Ibid.
On 2 January 2020, various analyses and tests were conducted in relation to the applicant, the results of which revealed signs of polycystic kidneys.[20] On 3 January 2020, he was referred to a specialist in relation to his kidney condition (Professor Wright),[21] a condition which the applicant stated had commenced in approximately June 2018.[22]
[20] T5, p.72.
[21] T5, p.61.
[22] T8, p.81; T9, p.86 – albeit that he subsequently claimed to have had his illness since birth: T24, p.127.
On 6 January 2020, the applicant contacted the respondent making a general enquiry concerning the DSP.[23] Also, on 6 January 2020, he was certified as being unfit for work.[24]
[23] T39, p.206.
[24] T6, p.73.
On 14 January 2020, the applicant submitted his claim for the DSP[25] as well as for the Newstart allowance (albeit that the “claim creation date” is the day of his return to Australia, 24 December 2019). In documentation relating to these claims, he declared that he was a resident of Australia.[26]
[25] T9, p.86.
[26] T8, p.77.
I digress simply to note that aspects of the information supplied in support of his claims were either incorrect or difficult to reconcile with other information provided by the applicant. In particular, he stated that he was currently living with his parents, rent-free in a property in Shepparton,[27] that he was the principal, sole, carer of two daughters who were living with him[28] and that he had not undertaken paid work for 12 months.[29] While I accept that the applicant was living rent-free in a property in Shepparton owned by his mother, he clearly was not living with his parents. Nor was he the sole carer of his children. Indeed, he was not then living with his children. As for his claimed work history, I note that in February 2020 the applicant is said to have stated that he worked in Turkey as a site manager for four years and that he had left his position in December 2019 to return to Australia for treatment.[30] In April 2020, the applicant stated that he had last worked in 2019, having ceased work due to his medical condition.[31] In July 2020, the applicant stated that he had last worked in June 2017 as an office manager and had been made redundant because he was struggling to work.[32]
[27] T8, p.79.
[28] Ibid.
[29] T9, p.87.
[30] T14, p.99.
[31] T19, p.110; T19, p.113.
[32] T24, p.131.
While initially rejected,[33] on 21 May 2020 the applicant’s claim for a DSP was granted with effect from 14 January 2020.[34] The impairment resulting from his medical condition was considered to attract a rating of 20 points under one of the relevant impairment tables[35] and, as such, was considered to be “severe”.[36]
[33] T11, p.90; T13, p.94.
[34] T21, p.118.
[35] T20, p.116.
[36] SS Act, s 94(3B).
As the applicant was in Australia when his DSP claim was granted, he could only have qualified for the DSP if he was then considered to be a resident of Australia.[37]
[37] SS Act, s 94(1)(ea) – this is consistent with SSA s 29, pursuant to which a claim for a social security payment may, as a general rule, only be made by an Australian resident.
In a letter of 21 May 2020 advising the applicant of his first DSP instalment, he was given notice of a requirement to “…tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you...” The listed changes included “…leave your home for more than 12 months or your Australian residence status changes.”[38]
[38] T21, p.120. While the matters identified appear under a heading separate from that under which the timeframe for notification is specified, in context, those matters are still changes in respect of which notification must be given and it would not be intended that the time for notification of them be left at large.
On 10 June 2020, the applicant contacted the respondent querying “portability” in relation to his DSP as he was then considering “going overseas in the next 4-6 weeks.”[39] He was told to call back once he had specific departure dates.
[39] T39, p.204; T39, p.222.
On 8 July 2020, the applicant contacted the respondent seeking an assessment of his condition “to see if they qualify for indefinite portability”[40] and, in particular, to determine whether he was “medically eligible to receive DSP under: -indefinite portability provisions per SSA s1218AAA (severe impairment and no future work capacity)”.[41] He then provided change of address details.[42] The applicant’s then expressed intention was to leave Australia on 15 July 2020, indefinitely but not permanently.[43]
[40] T39, p.223.
[41] T39, p.225.
[42] T39, p.224.
[43] Ibid.
By letter dated 9 July 2020, the respondent wrote to the applicant noting his plan “to depart Australia soon” and that he had:
“…enquired with this office about going overseas for longer than the maximum portability period. You have agreed to undergo an assessment to determine whether you can be paid your Disability Support Pension for an indefinite period of time. This assessment must be undertaken in Australia, prior to your departure. The assessment requires completion of medical review forms by your doctor and yourself, and also requires you to attend a Job Capacity Assessment appointment (this will generally be at your local Service Centre, or another nearby office). If you do not attend a Job Capacity Assessment appointment, the assessment cannot proceed…Please note that if you decline to undergo this medical assessment, you cannot access the indefinite portability provision.”[44]
[44] T23, p.124.
On 14 July 2020, the applicant lodged with the respondent medical forms in relation to his portability enquiry.[45] In them, he stated that he would try to receive overseas a medication unavailable to him in Australia – Tolvaptan.[46] (I note that in a submission of 2 March 2020, the applicant had identified Tolvaptan as the only treatment which could slow the growth of cysts in his kidneys but that it was a treatment unavailable to him under Australia’s Pharmaceutical Benefits Scheme.[47])
[45] T24, p.126; T39, p.232.
[46] T24, p.127; T24, p.130.
[47] T16, p,103.
On 15 July 2020, the applicant left Australia.[48] At the time of his departure, he was receiving a DSP. He has not returned.
[48] T37, p.200.
On 12 August 2020, the respondent purportedly decided to suspend the applicant’s DSP “because our records show you are still overseas.”[49] This is consistent with allowing the applicant a 28-day portability period for his DSP. Given the respondent’s acceptance in May 2020 that the applicant was then an Australian resident and in light of the legislative context (to be outlined later), implicit in that allowance was a conclusion that the applicant had not ceased to reside in Australia after he left Australia in 2015 and had not ceased to be an Australian resident when he departed Australia in July 2020.
[49] T26, p.148; T39, p.224.
On 3 September 2020, it was noted in the respondent’s records that the assessments to be conducted in connection with the applicant’s indefinite portability request could not proceed in his absence from Australia.[50] This was later characterised by the respondent as a decision to the effect that the applicant’s request for “indefinite portability” could not be granted as he was not in Australia.[51] I accept that characterisation.
[50] T39, p.232.
[51] T39, p.237.
On 25 September 2020, the applicant sought review of the original decision.[52] This would appear to be a reference to the decision of 3 September 2020.[53] While the applicant’s review application referred to a decision of 24 September 2020,[54] in that application, the decision to be reviewed was described as “Indefinite Portability of DSP”. On the material before me, no relevant decision was made on 24 September 2020,[55] albeit that the applicant suggests he was informed of the 3 September 2020 decision on 24 September 2020.[56]
[52] T39, p.236.
[53] T39, pp.237-8.
[54] T29, p.162.
[55] The respondent contends that, on 24 September 2020, it was decided that the applicant could not obtain unlimited portability as he was outside Australia, relying on T39, p.235: R SFIC [18]. The T document relied upon does not support that contention.
[56] T29, p.163.
On 1 October 2020, the respondent stated that the “original decision” was incorrect.[57] While the letter referred to a decision of 24 September 2020, it is apparent that the decision which was then considered to be incorrect was the decision of 12 August 2020 allowing the applicant a 28-day portability period. Instead, it was decided that there was no portability period because the qualification concerning departures from Australia within two years applied[58] (called the “former resident rule” in the respondent’s material, a description I adopt and a rule I elaborate on later).[59] While the decision of 3 September 2020 to the effect that a decision on indefinite portability could not be made while the applicant was not in Australia was still considered by the respondent to be correct,[60] application of the former resident rule meant that there was no portability period at all with the result that the applicant’s DSP was said to be suspended from 15 July 2020, rather than being suspended on 12 August 2020.[61]
[57] T30, p.166.
[58] T39, p.237.
[59] T30, p.166.
[60] T39, p.237.
[61] T30, p.166, T39, p.238.
In a letter of 2 October 2020,[62] the respondent again stated that the “original decision” was incorrect but, unlike the letter of 1 October 2020, the 2 October 2020 letter:
(a)elaborated on the reasons for the former resident rule being said to apply by expressly referring to the provision of the Social Security Act 1991 (SS Act) from which the rule derives: s 1220.
(b)did not state that the suspension took effect on 15 July 2020.
[62] T32, p.173.

The applicant sought review of the 1 October 2020 decision to apply the former resident rule (albeit that he characterised the decision the subject of review as one concerning indefinite portability of his DSP).[63] He then contended that the rule did not apply to preclude indefinite portability in a context where he was “permanently and severely impaired”.[64]
[63] T31, p.167.
[64] T31, p.169.
On 6 October 2020, an authorised review officer affirmed the decision to suspend the applicant’s DSP with effect on 15 July 2020, based on application of the former resident rule.[65] Again, unfortunately, the decision reviewed was described as one of 24 September 2020 but it is relatively clear from the context that the decision reviewed was that made on 1 October 2020, being the decision of which the applicant had sought review.
[65] T33, p.174; T33, p.178.
On 9 October 2020, the applicant applied to the Tribunal for review of an authorised review officer decision of 8 October 2020.[66] Again, it is relatively clear from the context that this was a misdescription and that the decision to which the application applied was the ARO decision, made on 6 October 2020. In the application, the applicant contended that those who are permanently and severely disabled are not subject to the former resident rule.
[66] T34, p.180.
On 14 October 2020, the respondent purported to cancel the applicant’s DSP.[67] As the purported cancellation decision was made after the applicant’s application to the Tribunal for review of the ARO decision, that application would be taken to be an application for review of the cancellation decision instead of the ARO decision if the latter decision was varied or substituted by the cancellation decision.[68]
[67] T41, p.251.
[68] SSA Act, s 182.
The respondent submitted the ARO decision was substituted by the cancellation decision, with the result that the application to the SSCSD for review ought to be taken to have been an application for review of the 14 October 2020 cancellation decision.[69]
[69] R SFIC [24]; Secretary’s additional submissions of 9 August 2021 [5]-[6].
A conclusion in response to this submission is unnecessary given that (for reasons outlined later) both the cancellation and suspension decisions were not authorised and, hence, not effective. Nevertheless, had those decisions been effective, it seems to me that there would have been merit in the respondent’s submission despite no reference having been made to the ARO decision in the letter notifying the applicant of the cancellation decision, a letter which simply states that the applicant’s DSP has been cancelled. The cancellation decision would have taken effect on the day on which suspension of the applicant’s DSP took effect.[70] Instead of being suspended from that date, the applicant’s DSP would then have been cancelled from that date. As I see it, effectively, the suspension decision would have been substituted by the cancellation decision.
[70] SSA Act, s 118(11).
On 8 December 2020, the SSCSD affirmed the ARO decision.
LEGISLATIVE CONTEXT: PORTABILITY
I turn now to outline some aspects of the legislative context of relevance to the “portability” of the applicant’s DSP, i.e., his entitlement to be paid the DSP while outside Australia.
If the maximum portability period applicable to the applicant’s DSP was unlimited, his absence from Australia would not have affected his entitlement to be paid the DSP.[71]
[71] SS Act, s 1214.
If the maximum portability period applicable to the applicant’s DSP was not unlimited:
(a)his absence from Australia would not have affected his entitlement to be paid the DSP throughout the applicable portability period.
(b)subject to certain irrelevant exceptions,[72] his DSP would not have been payable to him for so long as he was absent from Australia after expiry of the applicable portability period.[73]
[72] Exceptions apply, for instance, to full time students (s 1218) and new apprentices (s 1218BA).
[73] SS, s 1215.
The applicant’s DSP maximum portability period would have been unlimited if he was either a “terminally ill overseas disability support pensioner” or a “severely impaired disability support pensioner.”[74]
[74] SS Act, see items 2A and 3 of the table to s 1217.
The applicant is not a terminally ill overseas disability support pensioner. He does not, for instance, submit that he is terminally ill.[75]
[75] SS Act, s 1218AA(1)(c).
The applicant is not a severely impaired disability support pensioner. In order to have been such a pensioner, a determination would need to have been made in his favour under s 1218AAA(1) of the SS Act.[76] No such determination has been made. Moreover, in the circumstances, such a determination could not have been made after 15 July 2020 when the applicant was outside Australia (as was implicit in the 3 September 2020 decision referred to earlier to the effect that the applicant’s unlimited portability request could not proceed).[77]
[76] SS Act, s 1212.
[77] SS Act, s 1218AAA(2) – this is subject to exceptions which do not apply in the circumstances (the exceptions involving a serious accident or hospitalisation).
Accordingly, the applicant’s maximum portability period was not unlimited. As a result, his DSP was not payable for so long as he was absent from Australia after expiry of the applicable portability period.
The portability period applicable to the applicant’s DSP would have been 28 days (i.e., a period expiring on 12 August 2020, given the applicant’s departure from Australia on 15 July 2020),[78] unless he ceased to be an Australian resident when he left Australia.
[78] SS Act, s 1217(4) and items 2 and 2AA of the Table to s 1217.
If the applicant did cease to be an Australian resident when he left Australia on 15 July 2020, his portability period would, effectively, have been zero days. This is because a portability period ends “the first time during the period of absence at which the absence was not an allowable absence”.[79] The applicant’s absence from Australia would have ceased to be an allowable absence if, when he left Australia, he ceased to be an Australian resident.[80] This is because his only allowable absence was a “temporary absence.” A person’s absence can only be “temporary” for so long as the person does not cease to reside in Australia.
[79] SS Act, s 1217(4).
[80] SS Act, s 1217(2) as to the concept of “allowable absence”.
For reasons which are outlined later, I find that the applicant was an Australian resident before he left Australia in July 2020 but, on his departure, he ceased to be an Australian resident. As such, his portability period ended when he left Australia with the result that it was, effectively, zero days, not 28 days.
Even if, however, the applicant did not cease to be an Australian resident when he left Australia in July 2020, he was not entitled to the benefit of any portability in relation to his DSP. By reason of the “former resident rule,” his DSP was not payable while he was outside Australia, irrespective of his then residential status.
Essentially, pursuant to the “former resident rule”, a pension such as the DSP is not payable to a person while absent from Australia if the person had been an Australian resident, ceased to be an Australian resident, was granted (in this case) a DSP within two years of again becoming an Australian resident and then left Australia within that two-year period. Hence, even if, say, a DSP recipient is otherwise entitled to unlimited portability on the basis of being a severely impaired disability support pensioner, there is no portability whatsoever (let alone unlimited portability) when the rule applies.[81]
[81] SS Act, ss 1214(2) and 1215(2)-which provide that both limited and unlimited portability provisions are subject to s 1220.
The rule is set out in s 1220 of the SS Act. Of the pre-conditions to application of the rule prescribed in that section, those in contention in the circumstances are whether:
(a)The applicant ceased to be an Australian resident when or after he left Australia in 2015. The respondent contends that he did, while the applicant says he did not.
(b)The applicant again became an Australian resident when or after he returned to Australia in 2019. The applicant contends that he was then and remained an Australian resident. The respondent’s contention in this regard appears to be that the applicant did not again become an Australian resident.[82] (As discussed later, that contention is clearly inconsistent with the ARO decision and the decision to grant the applicant’s DSP claim. Hence, rather than seek affirmation of the AAT1 decision, in this proceeding the respondent suggests simply that the applicant’s “claim should be rejected.”[83] A decision is sought that “the Applicant’s claim for DSP be taken not to have been made.”[84] While, pursuant to s 29(2) of the SSA Act, a claim made by a person who is not an Australian resident is generally taken not to have been made, the power of the Tribunal to make a decision that is essentially declaratory of that section in the circumstances is not identified in a context where the decision of the respondent to grant the applicant’s DSP claim is not the subject of review, the SSA Act expressly provides for the ongoing effect of determinations to grant claims such as that made by the applicant[85] and I am entitled to infer that all prerequisites to the respondent’s capacity to have granted the claim (including that at the relevant time the applicant was an Australian resident) have been satisfied.[86]).
[82] R SFIC [30], where it is contended that the applicant was not a resident of Australia on 14 January 2020.
[83] R SFIC p. 6 [32].
[84] R SFIC p.11 [32]; p.28 [96].
[85] SSA Act, s 123.
[86] McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835 at 850; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164.
For reasons outlined later, I find that each of these pre-conditions to application of the former resident rule are satisfied in the circumstances with the result that the applicant’s DSP ceased to be payable when he left Australia on 15 July 2020.
Residence-relevant principles and factors
As just indicated, whether the applicable portability period was, effectively, zero days and whether the former resident rule applies depends very much on questions as to whether and, if so, when the applicant was an Australian resident.
As an Australian citizen, for the purpose of the SS Act, the applicant would only be an Australian resident at any particular time if he then resided in Australia.[87]
[87] SS Act, s 7(2).
In determining whether, at any particular time, the applicant then resided in Australia, regard is required to be had to a number of factors.[88] As those factors are not exhaustive,[89] however, I shall first make some general comments about the concept of residence and how it might be determined in the circumstances.
[88] SS Act, s 7(3),
[89] Hafza v Director-General of Social Security [1985] FCA 164; Wybrow v Secretary Department of Social Security [1992] AATA 315 at [22]; Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 at [25].
A person’s residence at a place is generally determined by reference to physical presence and an intention to treat the place as home, “at least for the time being, although not necessarily forever.”[90]
[90] Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 at [16], citing Hafza v Director-General of Social Security [1985] FCA 164 at [13]. See too Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 at [24].
A person’s physical presence is readily determined. A lack of physical presence does not preclude a finding of residency, however. This can be so even when that lack is lengthy such as might occur when the absence is for a limited time “for a singular passing purpose.”[91]
[91] Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 105 at [20]-[21] referring to Secretary, Department of Social Security and Mosca [1998] AATA 586 (a seven-year absence); Wybrow and Secretary, Department of Social Security [1992] AATA 315 (an eight year-absence, albeit that the applicant in that case was said to have only an ephemeral connection to a particular country other than Australia).
As for intention, “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.”[92] Accordingly, when a person has set up a home in a country other than Australia, ordinarily, the person will be considered to have ceased to reside in Australia.[93]
[92] Hafza v Director-General of Social Security [1985] FCA 164 at [14]; Secretary, Department of Families and Community Services and Indigenous Affairs v Baccon [2006] FCA 773 at [9].
[93] Goodfellow and Department of Social Security [1992] AATA 301; Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 at [30].
Setting up a home in a particular place does not require an intention to settle permanently in the place. Hence, for example, the applicant may be considered to reside in Turkey even if he does not intend to stay there permanently. Along similar lines, the applicant might not be considered an Australian resident even if he intends to return to Australia at some point,[94] or ultimately to reside permanently in Australia.[95]
[94] Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 105 at [66].
[95] Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 at [19].
In assessing a person’s intention, his or her statements of intent are relevant. Circumstantial, objective, evidence might, however, be such as to suggest that little weight should be given to such statements.[96] Put another way, more weight should generally be attributed to objective manifestations of intent.
[96] Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 105 at [22] where it was said that “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.” This was recently cited with approval in Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 at [27].
The principles used to establish residency according to ordinary concepts were recently set out by Derrington J (with whom, on this issue, Davies and Steward JJ agreed) in Addy.[97] There (at [76]) it was said (with my emphasis) that:
(a)A person resides where they live and dwell permanently or for a considerable period of time, being the place where they make their home.
(b) A person’s intention to make a particular place “home” either permanently or temporarily is an elemental consideration in the identification of where they reside.
(c)Once a person has a home in a particular place they do not necessarily cease to be a resident there merely because they are physically absent. The determinative question is whether they have retained a continuity of association with the place, together with an intention to return to that place which they consider remains their “home”.
(d)Determining a person’s “continuity of association” in a particular place requires a consideration of all the relevant circumstances, including whether they have retained in that locale a physical home to which they can return, a family unit, possessions and relationships with people and institutions.
(e)The person’s own evidence as to their previously held intention is admissible as are any contemporaneous statements of intention, however the objective manifestations of their state of mind at the time are usually more reliable.
(f)The facts and circumstances surrounding a person’s mode of living will be an indicator of their presence in or continued association with a particular place and the intention accompanying that presence or continued association.
[97] Commissioner of Taxation v Addy [2020] FCAFC 135 at [73]-[77]. See also Commissioner of Taxation v Pike [2020] FCAFC 158 at [9].
I turn now to outline the specific factors to which I am required to have regard in assessing the applicant’s residency status. In doing so:
(a)I note that they are intended simply to provide guidance in decision-making,[98] with no single factor being determinative.[99]
(b)I propose to take into account and apply government policy of relevance to the issue, in the absence of cogent reasons to the contrary.[100] That policy is set out in the Social Security Guide, version 1.287 (the Guide).
[98] Clifopoulos and Secretary, Department of Social Security (1995) 36 ALD 745 at 747.
[99] Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 105 at [19].
[100] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25], albeit recognising that I am not bound by such policy: Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].
Those factors are:
(a)the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d)the nature and extent of the person’s assets located in Australia;
(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.
I will seek to apply the principles and address the factors just outlined in considering three questions:
(a)whether the applicant ceased to be an Australian resident when he left Australia in 2015;
(b)if so, whether he again became an Australian resident when he returned to Australia in 2019; and
(c)if so, whether he ceased to be an Australian resident when he left Australia in 2020.
Did the applicant cease to be a resident when he left in 2015?
The applicant ceased to be a resident when he left Australia in 2015.
After having left Australia in 2015:
(a)The applicant had no accommodation remaining in Australia. The accommodation that he and his family had occupied before departure was owned by his mother and subsequently leased out to third parties. Instead, he, his wife and children lived in Turkey with his parents-in-law in a home owned by his parents-in-law.
(b)While a brother and uncle of the applicant lived in Australia, the applicant’s wife and children were in Turkey along with the bulk of his family, including his one surviving parent (his mother), three siblings and the parents and siblings of his wife. I attribute particular significance to this.[101]
(c)The applicant would not appear to have maintained any employment or business ties with Australia,[102] and had minimal financial ties with Australia (having, on his return to Australia in 2019, a small deposit with an Australian bank[103]). On the other hand, it would appear that he obtained and maintained employment in Turkey until at least 2017 and, more likely (given the weight of material before me) until 2019, when he returned to Australia.[104]
(d)The applicant had no significant assets in Australia.[105] When he left Australia, he left personal effects in a shed on the property in Shepparton owned by his mother. I note that, at least in terms of value, those personal effects cannot have been significant. In January 2020, the applicant listed his assets. Apart from some cash and a small bank account deposit, they comprised a 50% interest in household and personal effects with an aggregate value of $1000.[106] According to the applicant, his possessions fitted into a suitcase.[107]
[101] In this regard, see Guide 3.1.1.10: “Strong weight should be given to where the person's immediate family is residing…”; “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.”
[102] T8, p.84.
[103] T8, p.83.
[104] I refer to my earlier comments concerning material before the Tribunal as to the applicant’s employment history in Turkey.
[105] T8, pp.84-5.
[106] T8, pp.83-4.
[107] Applicant’s 11 July 2021 submission.

All these factors tend to suggest that the applicant had ceased to reside in Australia when he left in 2015.
The applicant submits that he never intended to leave Australia permanently, given his kidney condition. His evidence is that, when leaving Australia in 2015, his plan was that he and his family would return to Australia in June 2020 after his older daughter had graduated from middle school.
While, in his outgoing passenger card at the time, it was stated that he was departing Australia permanently, I accept the applicant’s evidence to the effect that he did not complete this aspect of the card but, rather, it was completed by an official after having been told by the applicant that the departure was to enable his daughters to be educated in Turkey. It is consistent with the form of the card before the Tribunal. The section of the card dealing with an Australian resident departing temporarily appears to have been completed but then crossed out.[108]
[108] ST1, p.253.
The applicant contends that he “… returned to the same state, same town, same house, same set of family & friends, basically almost identical set of circumstances compared to the day of my departure in 2015.”[109] While it would appear to be the case that, in 2019, the applicant returned to the same residential accommodation and, presumably, to the same set of Australian friends he had when he departed in 2015, I do not see this as adding significant weight to what would appear to be the applicant’s underlying proposition that he did not intend to depart Australia permanently. The fact that his mother continued to own a house to which the applicant was able to obtain free access on his return in 2019 does not demonstrate that the applicant had maintained a continuity of association with Australia in 2015 to 2019 such that Australia was then his home.
[109] Applicant’s statement of 21 May 2021.
The applicant’s proposition is, however, supported to some extent by other matters raised by the applicant such as his having kept an Australian bank account open and kept some possessions in storage in Shepparton.[110] As noted earlier, however, at least in terms of value, neither the bank account nor stored assets were of significance.
[110] Ibid. The applicant also notes that he remained on the electoral roll and was fined for not voting. As I see it, however, this is a function of citizenship rather than being indicative of residence.
The applicant contends that, while away, he kept in close contact with friends and family in Australia. That may be so but I note that, while he kept his Australian mobile number active when away in Turkey, it would not appear to have been used to any great extent. The applicant’s evidence is that he “had to go to the trouble of sending a text message every 90 days in order to keep the line active.”[111]
[111] Ibid.
While the applicant might not have intended to leave Australia permanently, this does not preclude a finding that he ceased to be an Australian resident (as is apparent from the principles used to establish residency according to ordinary concepts). In this regard, “an intention to return to Australia in the future is not sufficient to demonstrate residency in Australia.”[112]
[112] Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 at [57].
The applicant’s intention was to live outside Australia for over five years. According to the Guide, “[t]aken 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.”
Overall, I find that in the period 2015 to 2019 the applicant set up his home in Turkey. He lived and dwelled there “… for a considerable period of time, being the place where …[he made his] home.”[113] He maintained employment there between July 2015 and, probably, December 2019, and now lives there. His mother, wife and two children then lived there and still do, having done so since 2014. Most of his siblings lived there, and still do.
[113] See Commissioner of Taxation v Addy [2020] FCAFC 135 at [76].
Did the applicant become an Australian resident when he returned in 2019?
The applicant became an Australian resident again when he returned to Australia in December 2019.
The respondent’s contention that the applicant was not an Australian resident after his return to Australia in 2019 reflects a departure from what I characterise as the accepted position, a position reflected in the respondent’s purported decisions of 3 September, 1 October and 14 October 2020 (which were based on the “former resident rule” being applicable in the circumstances) and in the respondent’s acceptance that the applicant qualified for the DSP as at 14 January 2020 (noting that, as mentioned earlier, implicit in that acceptance is a conclusion that the applicant was then an Australian resident).
Where, as here, a party seeks to prosecute a case that reflects such a departure, the party will only succeed if I can be satisfied that the departure is appropriate[114] (so that, in that sense, the party bears a burden of persuasion[115]). I am not so satisfied in this case.
[114] Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468 at [58]-[59].
[115] Millar and Comcare (Compensation) [2019] AATA 4973 at [152]. It is a burden that will not satisfied by mere suspicion as to the appropriateness of a departure from an accepted position: Shearing and Director-General of Social Security [1983] AATA 116 at [30]. This is not to suggest that a party bears an onus of proof: see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54], where it was stated that “…the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite….”. Indeed, in Tribunal proceedings, any suggestion that a party bears such an onus, whether legal or evidential, is apt to mislead: Comcare v Power [2015] FCA 1502 at [57]; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358.
While the applicant had initially planned to return to Australia with his family in June 2020, he states that he returned earlier to seek treatment in relation to his kidney condition. He says he wanted to receive medical assistance as soon as possible. According to the applicant, the decision to return earlier than planned was made when issues with his kidneys that arose in June 2019 persisted.
I have some difficulty with this explanation. The claim to have suffered persistent difficulties with his kidneys in 2019 is not reflected in the history the applicant apparently gave to Professor Wright in January 2020. The only symptom of a kidney disease to which reference was made in the Professor’s report of 16 January 2020 was one that was said to have lasted for two days in May 2019.[116]
[116] T10, p.88.
Nevertheless, whatever difficulty I might have with the applicant’s explanation for his early return to Australia, it does not impinge on my conclusion that, when he did return, he intended to remain in Australia.
In the applicant’s incoming passenger card at the time of his return, it was stated that he was a resident returning to Australia and that he intended to live in Australia for the next 12 months at a property in Shepparton, Victoria (being the Shepparton property owned by his mother). The applicant’s evidence that, at the time of his return, he intended to remain in Australia[117] is consistent with what he apparently told Professor Wright (the specialist to whom the applicant had been referred with respect to a kidney condition) in January 2020. He is reported to have then said that his wife and two daughters would join him from Turkey in June 2020.[118]
[117] ST2, p.254.
[118] T10, p.88.
The respondent points to the fact that, on his return, the applicant stayed with those renting his mother’s house in Shepparton, without disturbing their tenancy. In this regard, I note that in the Guide it is said that in “… general, shared or hotel accommodation is considered temporary and is a low indicator that the person resides in that country.”[119] While, typically, the lack of formal living arrangements while in Australia would tell against Australian residence,[120] here the lack of such arrangements is explicable. According to the applicant, the tenants were aware of the need to vacate the premises in June 2020, consistent with what had been the planned timing for return of the applicant and his family.[121]
[119] Guide 3.1.1.10.
[120] Lester; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1575 at [37].
[121] Applicant’s 11 July 2021 submission.
According to the respondent, in contending that the applicant ceased to be an Australian resident in 2015, it is of significance that he then “chose to forego his Australian employment.”[122] I agree. Similarly, however, it is of significance that he would appear to have made a similar choice in relation to his Turkish employment when deciding to return to Australia.
[122] R SFIC [47].
The respondent notes that there is no material before the Tribunal indicative of the applicant taking steps to have his family return to Australia in June 2020, such as booking flights and arranging schools for his daughters. This, however, is unsurprising given that (as outlined later) it would appear to have been the case that the applicant had decided to leave Australia in search of treatment for his kidney condition by at least March 2020.
Cease to be resident when leave in 2020?
When the applicant left Australia in July 2020, he ceased to be an Australian resident.
As was the situation when he left Australia in 2015, when the applicant left in 2020:
(a)He had no accommodation remaining in Australia. Instead, he, his wife and children lived in Turkey with his parents-in-law in a home owned by his parents-in-law.
(b)While a brother and uncle of the applicant lived in Australia, the applicant’s wife and children were in Turkey[123] as was the bulk of his family.
(c)He would not appear to have maintained employment, business or financial ties with Australia of any significance.[124]
(d)He would not appear to have left in Australia any significant assets.
[123] In this regard, see Guide 3.1.1.10: “Strong weight should be given to where the person's immediate family is residing…”; “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.”
[124] T8, p.84.
All these factors tend to suggest that the applicant ceased to reside in Australia when he left in 2020.
His expressed purpose in leaving Australia in 2020 was to seek medical treatment unavailable to him in Australia. He says that, if it was not for his medical treatment, he and his family would now be living in Australia. While singular, there is little before me suggestive of this being a “passing” purpose.
The treatment to which the applicant refers is Tolvaptan. The applicant’s evidence is that he was not aware of Tolvaptan on his arrival in Australia in 2019 and, hence, unaware that it was a treatment for his condition that might be available outside Australia. I accept that evidence albeit that, in his report of 16 January 2020, Professor Wright noted that the applicant was “aware that tolvaptan is a treatment” for his condition.
The applicant suggests that Professor Wright initially opined in January 2020 that the applicant’s condition could be treated using Tolvaptan but then, in his subsequent report of 16 January 2020, advised that Tolvaptan was not available to the applicant given the stage to which his condition had progressed. After conducting some research, the applicant realised that Tolvaptan could be available to him in Turkey. By March 2020, the applicant had formed the intention to leave Australia to seek treatment but was unable then to do so due to travel restrictions imposed in response to the Covid-19 pandemic.
As was the case in considering the applicant’s post-2015 residency, the applicant again makes the point that he did not intend to leave Australia permanently when departing in July 2020. Indeed, when he then left Australia, his expressed intention was to leave indefinitely but not permanently.[125] However, “merely having in mind to return to Australia at some point is not sufficient.”[126] Moreover, as mentioned earlier, an intention to leave Australia permanently is not a necessary pre-condition to cessation of Australian residence.
[125] T39, p.224.
[126] Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 at [66].
In a context where the applicant has returned to live with his family in Turkey, where he resided in the period 2015 to 2019 and where his immediate family and the bulk of his extended family have, since 2014, resided, there is little before me suggestive of the applicant’s maintenance of a continuity of association with Australia after July 2020 such that it would be appropriate to characterise it as the applicant’s home.
Effect of conclusions in relation to residence
If, as I have found, the applicant ceased to be an Australian resident when he left Australia in July 2020, his portability period would have been zero days and his DSP would have then ceased to be payable.
Even if, however, the applicant did not cease to be an Australian resident when he left Australia in July 2020, his DSP would in any event have then ceased to be payable if (as I have found to be the case) he ceased to be an Australian resident after he left Australia in 2015 and again became an Australian resident after he returned in 2019. By reason of the “former resident rule,” his DSP was not payable while he was outside Australia, irrespective of his residential status after July 2020.
Hence, the applicant’s DSP was not payable as from 15 July 2020.
Effect of DSP not being payable from July 2020
Despite not being payable from 15 July 2020, the decision made in May 2020 to grant the applicant’s claim for a DSP continued in effect until certain events.[127]
[127] SSA Act, s 123.
Those events include the making of a determination under s 80 of the SSA Act to suspend the applicant’s DSP (such as was purportedly made on 12 August 2020 and on 1 October 2020), a determination under s 80 of the SSA Act to cancel the applicant’s DSP (such as was purportedly made on 14 October 2020) and a cessation of payment of the DSP under s 93 of the SSA Act (a point to which I will return).[128]
[128] SSA Act, s 123.
I note in passing that a determination to suspend or cancel a social security payment is required to be made under s 80 of the SSA Act if it is being paid to a person to whom it is not payable.[129]
[129] SSA Act, s 80(1): “If the Secretary is satisfied that a social security payment is being, or has been, paid to a person...to whom the payment is not, or was not, payable…the Secretary is to determine that the payment is to be cancelled or suspended”.
If they had been authorised (a point to which I will return), as “adverse determinations”[130] under the SSA Act, the decisions to suspend the applicant’s DSP (including the decision the subject of review) would have taken effect on the day they were made.[131] Hence, as the first decision to suspend the applicant’s DSP was made on 12 August 2020, the suspension of his DSP would have taken effect on 12 August 2020, at the earliest.
[130] SSA Act, s 117.
[131] SSA Act, s 118(13).
As for the cancellation decision of 14 October 2020, if it had been authorised, it too would have taken effect no earlier than 12 August 2020. This is because, as an “adverse determination” preceded by a suspension decision, it would be deemed to take effect on the day on which the DSP was suspended.[132]
[132] SSA Act, s 118(11).
Neither the suspension decisions of 12 August 2020 and 1 October 2020 nor the cancellation decision of 14 October 2020 were, however, authorised. In this regard, the authority to make determinations under s 80 is qualified. Importantly in the context of this matter, there is no such authority if the relevant suspension or cancellation determination would otherwise have taken effect at or after the time at which the relevant social security payment had already been suspended or cancelled through the operation of another provision of the SSA Act or SA Act.[133]
[133] SSA Act, s 80(2).
That qualification applies in the circumstances. On 12 August 2020, the applicant’s DSP was cancelled through the operation of another provision of the SSA Act – s 93(1). Hence, at the time the purported suspension and cancellation decisions of 12 August, 1 October and 14 October 2020 took effect, the applicant’s DSP had already been automatically cancelled. As a result, those decisions were ineffective as being made without authority. As they were not authorised, the making of them was infected by jurisdictional error. As such, they are to be regarded as no decisions at all[134] or nullities in the sense that they lack the legal effect which they purport to have.[135]
[134] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24].
[135] New South Wales v Kable [2013] HCA 26 at [52], cited with apparent approval in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [20].
Section 93(1) of the SSA Act provides for automatic cancellation of social security payments in certain circumstances. Those circumstances are met when:
(a)a person who is receiving a social security payment is given a notice under s 68(2) of the SSA Act. The letter of 21 May 2020 to the applicant requiring that he give notice of certain changes was such a notice.[136]
(b)The notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period. As outlined earlier, the letter of 21 May 2020 did require this.
(c)The event or change of circumstances occurs. Events of which the applicant was required to give notice did occur. The applicant did leave his home for more than 12 months and, (as concluded earlier) when he left Australia on 15 July 2020, his Australian residence status changed.
(d)The person informs the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice. The applicant did inform the respondent of his departure from Australia within the 28-day period prescribed (noting that I have adopted the 28-day period for notice rather than a 14-day period given that, when the change in circumstances of which the applicant gave notice occurred, he was, I find, residing outside Australia).
(e)Because of the occurrence of the event or change of circumstances, the relevant social security payment ceased to be payable. I find this to be the case. As outlined earlier, when the applicant departed Australia on 15 July 2020, his DSP ceased to be payable.
(f)The social security payment is not cancelled before the end of the instalment period current when the event or change of circumstances occurs. This is the case. While, if the cancellation decision of 14 October 2020 had been authorised, it would have taken effect on the day on which the applicant’s DSP had been suspended,[137] the earliest this would have occurred (assuming no automatic cancellation under s 93) would have been 12 August 2020.
[136] Cf Safaoui and Secretary, Department of Social Services (Social services second review) [2017] AATA 924 at [77]-[78].
[137] SSA, ss 118(11) and 182.
The result of the circumstances outlined in s 93(1) being met in this case is that the applicant’s DSP remained payable until the end of the 28-day notification period provided for in the letter of 21 May 2020 but was then automatically cancelled. Given that the 28-day notification period expired on 12 August 2020, the applicant’s DSP was automatically cancelled on that date.

I note that the analysis on which this conclusion rests reflects that adopted in analogous circumstances by Ryan J in MacDonald.[138]
[138] MacDonald v Secretary, Department of Family and Health and Community Services and Indigenous Affairs [2009] FCA 1142 at [24]-[28].
Decision
The Tribunal decides to set the decision under review aside and, in substitution, decides that the applicant’s DSP was automatically cancelled on 12 August 2020.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member
C. J. Furnell

.....[SGD]........................................
Associate
Dated: 23 December 2021

Date of hearing:

Date of final submissions:

15 July 2021

20 August 2021

The Applicant:

Self-represented

Advocate for the Respondent:

Cameron Munro

Solicitors for the Respondent:

Litigation and Information Release Branch, Legal Services Division, Services Australia

Date of hearing: Date of final submissions:	15 July 2021 20 August 2021
The Applicant:	Self-represented
Advocate for the Respondent:	Cameron Munro
Solicitors for the Respondent:	Litigation and Information Release Branch, Legal Services Division, Services Australia