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

The matter before the Administrative Appeals Tribunal (Social Services and Child Support Division) concerned a decision by the Secretary of the Department of Social Services regarding the portability of an age pension claimed by Mrs Nikolic. Mrs Nikolic, an Australian citizen since 1977, had resided in Australia for many years before leaving for Montenegro in March 2006. She made intermittent visits to Australia and eventually returned on 31 December 2021, subsequently claiming and being granted an age pension. Her pension was suspended upon her departure from Australia on 12 April 2023, pursuant to section 1220 of the *Social Security Act 1991* (Cth), which deals with the non-portability of pensions claimed after a short period of re-residence.

The central legal issue was whether Mrs Nikolic had ceased to be an Australian resident when she resided in Montenegro, prior to her return to Australia on 31 December 2021. This determination was critical because if she had not ceased to be an Australian resident, then the conditions for the application of section 1220 of the Act would not be met, and the pension would be portable. The Tribunal was required to consider the various factors relevant to establishing residency under subsection 7(3) of the Act.

The Tribunal reasoned that Mrs Nikolic had maintained continuing ties to Australia, which indicated she had not ceased to be an Australian resident during her time in Montenegro. The Tribunal endorsed the findings of fact made by the Administrative Appeals Tribunal and, having heard from the parties, concluded that section 1220(1) was not engaged. Consequently, the decision of the Administrative Appeals Tribunal was affirmed.