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

This matter concerned an appeal by the Applicant, Mr. Peng, against a decision by the Secretary of the Department of Social Services. The core dispute revolved around whether Mr. Peng was an Australian resident at the time he lodged his claim for social security benefits. The appeal was heard by a judge of the Federal Court.

The legal issues before the Court were whether the Administrative Appeals Tribunal (AAT) had correctly determined that the Applicant was not an Australian resident for social security purposes, and whether the AAT’s adverse credit findings against the Applicant were justified. The Court was required to consider the meaning of "residency" for social security purposes, referencing relevant authorities and the Social Security Guide.

The Court acknowledged the Applicant's extensive documentary evidence supporting his claim of Australian residency, including records of his legal and medical issues in Singapore, which explained his prolonged absences from Australia. The Respondent's case relied on evidence such as a letter from the Applicant providing a Chinese address, bank transaction history showing no activity for a period, and Centrelink records. The Court found that the Respondent had not disputed factors favouring a finding of residency and that the AAT's adverse credit findings were not justified. The Court concluded that the decision under review was not correct or preferable, particularly because the Respondent had not accurately assessed the Applicant's time spent in Australia or adequately considered the reasons for his absences.

Consequently, the reviewable decision was set aside. The matter was remitted to the Respondent for reconsideration, with the Court recommending an accurate reassessment of the evidence in light of the Tribunal's findings.