Snell and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1522

Snell and Secretary, Department of Social Services (Social services second review) [2020] AATA 1522 (2 June 2020)
Division:GENERAL DIVISION
File Number(s):      2019/3233
Re:Peter Snell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Date:2 June 2020
Place:Perth

The decision made by the Department on 5 November 2018 to reject the Applicant’s claim for age pension is remitted for reconsideration in accordance with the direction that it be reconsidered on the basis that he was, at all relevant times, and is, an Australian resident for the purposes of his application.
...................[sgd].....................................................
Member M East
CATCHWORDS

SOCIAL SECURITY – pensions, allowances and benefits – age pension – Australian resident – Australian citizen – “residence” – nature of accommodation used in Australia – nature and extent of family relationships in Australia – nature and extent of person’s employment, business or financial ties with Australia – nature and extent of person’s assets located outside Australia – frequency and duration of the person’s travel outside Australia – whether person intends to remain permanently in Australia – “intent” – decision under review remitted
LEGISLATION
Social Security Act 1991 (Cth) – ss 7(2), 7(2)(b), 7(3), 7(3)(f), 23, 43
Social Security (Administration) Act 1999 (Cth) – ss 11, 29, 29(2), 30, 30A, 31A, 32, 37(1)
CASES
Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726
Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Re Kenneth George Wybrow v Secretary, Department of Social Security [1992] AATA 315
Re Maha Hafza v Director-General of Social Security [1985] FCA 164
Re Ronald Irvine Goodfellow v Department of Social Security [1992] AATA 301
SECONDARY MATERIALS
Guide to Social Security, Department of Social Services vers. 1.266 - instruction 3.1.1.10
REASONS FOR DECISION
Member M East
2 June 2020
INTRODUCTION
Decision under Review

The Applicant is seeking a review of the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 5 April 2019.
On 5 April 2019, the AAT1 affirmed a decision made by an Authorised Review Officer (ARO) of the Department of Human Services (the Department) on 5 November 2018
to reject the Applicant’s claim for age pension lodged on 5 September 2018.
ISSUE
The issue for determination by this Tribunal is whether the Applicant was an ‘Australian resident’ at the date of his claim for age pension on 5 September 2018 and therefore had validly lodged his claim for age pension.
BACKGROUND FACTS
From a review of the documents lodged by the parties in matter, the Tribunal has concluded the following facts. The Applicant is an Australian citizen who was born in Australia in March 1953. He resided continuously in Australia from 1953 to 2015 when he started visiting Timor Leste regularly.
The Applicant lodged his claim for age pension on 5 September 2018.
On 24 October 2018, the Department rejected his claim on the basis that the Applicant was not an Australian resident at the time of his claim.
On 5 November 2018, an ARO affirmed the decision to reject the Applicant’s claim for
age pension.
On 8 January 2019, the Applicant lodged an application for review with the AAT1.
By decision dated 5 April 2019, the AAT1 affirmed the decision dated 5 November 2018.
On 13 June 2019, the Applicant lodged an application for Extension of Time application and an application for second review with the General Division of the Administrative Appeals Tribunal (AAT2).
On 26 August 2019, the AAT2 granted the Applicant’s extension of time application.
THE HEARING
The hearing was held by telephone on Wednesday 7 April 2020. Mr Snell was
self-represented. The Respondent was represented by Ms Hinwood of Services Australia.
At the hearing, the following evidence was before the Tribunal:
·Centrelink document Nov: Peter Snell Response (Exhibit A1);
·AAT T Doc Response dated 12 October 2019 (Exhibit A2);
·
Secretary’s Statement of Issues, Facts and Contentions dated

21 November 2019 (Exhibit R1);
·Secretary’s List of Authorities (Exhibit R2); and
·Statement of Joan Van Denberg dated 3 April 2019 (Exhibit R3).
The following evidence was also before the Tribunal, having been supplied as part of the application for Extension of Time heard at the interlocutory hearing on
13 August 2019:
·Application for Extension of Time dated 13 June 2019 (Exhibit IHA1);
·Application for review dated 31 May 2019 (Exhibit IHA2);
·Administrative Appeals Tribunal decision dated 5 April 2019 (Exhibit IHA3);
·Comments by Mr Snell received 10 June 2019 (Exhibit IHA4);
·Centrelink statement completed by the applicant dated 5 September 2018 (Exhibit IHA5);
·Email from Mr Snell dated 12 August 2019 with attached email from
Andrew Skinner of the Office of Senator Louise Pratt dated 28 May 2019 (Exhibit IHA6);
·Email from Mr Snell dated 12 August 2019 with attached phone log (Exhibit IHA7); and
·Extension of time submissions (Exhibit IHR1)
At the hearing, Mr Snell gave evidence by telephone. No witnesses were called.
RELEVANT LAW
The Respondent has provided a useful summary of the relevant legislation in their Statement of Issues, Facts and Contentions (SIFC), parts of which are adopted below.
Section 11 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides that a person who wants to be granted a social security payment must make a claim in accordance with Division 1, Part 3 of the Administration Act. An age pension is a social security payment in accordance with the definitions of ‘social security payment’ and ‘social security pension’ in s 23 of the Social Security Act 1991 (Cth) (the Act).
Section 37(1) of the Administration Act provides that the Secretary must determine that a claim for a social security payment is to be granted if the Secretary is satisfied that:
(a) the claimant is qualified for the social security payment; and
(b) the social security payment is payable.
The circumstances in which an age pension can be made are limited by s 29 of the Administration Act which specifically provides that, subject to ss 30, 30A, 31A and 32 of the Administration Act, an age pension claim can only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia
Subsection 29(2) of the Administration Act provides that:
a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
The term ‘Australian resident’ is defined in subsection 7(2) of the Act to mean a person who ‘resides in Australia’ and is (relevantly) an ‘Australian citizen’.
It is not in dispute that the Applicant is an Australian citizen and that he was in Australia when he lodged his claim. The issue is therefore whether the Applicant was an ‘Australian resident’ at the date of the claim. It should be noted that the Applicant informed the Tribunal that he had since resumed living in Australia with his partner and has made a subsequent claim for age pension which has been accepted.
Subsection 7(3) of the Act prescribes a number of considerations to which the decision-maker must have regard to in deciding whether a person resides in Australia.
That subsection provides:
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 GUIDE
Instruction 3.1.1.10 of the Guide to Social Security (the Guide) is consistent with subsection 7(3) of the Act. In determining whether a person resides in Australia, the Guide states:
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in [the Act] section 7(3).
In Re Kenneth George Wybrow v Secretary Department of Social Security [1992] AATA 315, the AAT following the previous decision of the Federal Court in Re Maha Hafza v Director-General of Social Security [1985] FCA 164, noted that although s 7(3) requires certain factors to be taken into account, it is not an exhaustive list in determining whether someone is residing in Australia.
Therefore, in deciding whether someone is residing in Australia, the Tribunal must have regard to all of the available evidence and no one single factor should be taken to be conclusive or decisive on its own.
SECRETARY’S CONTENTIONS
The Tribunal has extracted the Secretary’s contentions from their Statement of Issues, Facts and Contentions dated 21 November 2019 below.
The Secretary contends that the Applicant ceased to be an Australian resident from
July 2015, noting the Applicant had:
(a)separated from his former wife in 2015;
(b)sold his former matrimonial home in May of 2015;
(c)closed down his business in 2015 before departing Australia;
(d)moved to Timor Leste to undertake a long-term community service project as the project manager and where he re-partnered with his current partner; and
(e)given his partner the sum of $25,000 in about May of 2016 (which represented the bulk of his savings at the time) to purchase land in Timor Leste, where they both reside.
DETERMINING WHAT IS AN “AUSTRALIAN RESIDENT”
…
(a) The nature of accommodation used in Australia
The Secretary submits that, as of 5 September 2018, the Applicant did not have any long-term or permanent accommodation arrangement in Australia for at least the previous 3.5 years (since May 2015), including no title over property or interest in any rental accommodation in Australia.
The Applicant indicated that he lives at his aunt’s home when he returns to Australia.
The Secretary contends this has a temporary quality in contrast to the position where he purchased land in Timor Leste with his own funds on which he resides with his partner and her family (T2/21).
It was in evidence before the AAT1 that the Applicant had sold his former matrimonial home in Australia in May 2015 before moving to Timor Leste to undertake the position of a project manager. The Applicant appears to have been using his relatives’ addresses in Australia as his mailing address for convenience from July 2015, including the use of his aunt’s home in Rossmoyne WA as a mailing address, as stated by her in a signed written statement dated 3 April 2019, which reads as follows (Annex A):
…I have been aware of his marriage difficulties and also his community project work in Timor Leste from 2007. I had discussions with Peter regarding his decision to separate from his wife and sell the family home. As he had personal items and his vehicle I offered my home to him as a residence where he can store his vehicle. His vehicle and personal items have been at my house since his separation in July 2015.
As I do not have internet connects (sic) or a computer, peter has used other people address’s (sic) for a mailing address so these people can contact him by internet for any mail sent to him. My Daughter has been monitoring his mail and contacting him since he began using my address also as his mailing address.
(Original emphasis.)
Further, the Applicant has nominated an address in Sorrento WA as the mailing address for his bank statements from Bendigo Bank in 2018 (T12/129-133). The Secretary notes that this address in Sorrento WA is actually the address of ‘Joan Varian’, who is a friend of the Applicant (T5/98).
Further, in the Applicant’s claim submitted 5 September 2018, the Applicant declared that he was not living in Australia on a permanent basis (T4/92), that he had started to reside overseas since 23 July 2015 (T4/93), and was living with his current partner on a property in Timor Leste that he had helped purchased [sic] in May 2016 with the bulk of his savings of $25,000 (T1/13).
The Secretary submits that the accommodation used by the Applicant in Australia is temporary in nature in contrast to his ongoing and permanent residence in Timor Leste. For this reason, the Secretary submits that this consideration weighs in favour of a finding that the Applicant was not an Australian resident at the time of his claim.
(b) The nature and extent of the family relationships the person has in Australia
It is not in dispute that the Applicant has a number of adult children with his former partner, as well as family members who reside in Australia, whom the Applicant maintains contact with when he returns to Australia.
In contrast, the Applicant has indicated that he has maintained a strong relationship with his current partner from Timor Leste that commenced in 2015, which is evidenced by the Applicant’s significant financial contribution to the purchase of a property in Timor Leste. In addition, the Applicant also indicated that since the purchase of this property in 2016, he has been living on this property with his partner and members of his partner’s family.
While it is recognised that the Applicant has family relationships in Australia, the Secretary submits that the Applicant has developed a strong connection with his current partner and his partner’s family in Timor Leste, which has been ongoing since 2015. It is therefore submitted that the pull of his current partner and her family whom reside on land purchased with his funds firmly support residency in Timor Leste.
For this reason, the Secretary submits that this consideration weighs in favour of a finding that the Applicant was not an Australian resident at the time of his claim.
(c) The nature and extent of the person’s employment, business or financial ties with Australia
It is uncontentious that the Applicant wound up his business in Australia in 2015,
and ceased having any employment, business or financial ties with Australia when he departed Australia in July 2015 to live in Timor Leste to undertake work as a project manager with a community service project (T4/94).
The Secretary also notes the Applicant has no superannuation in Australia,
and that he withdrew all his superannuation in 2017, save for $5,000 that was paid to him in December of 2018 upon attaining a prescribed age.
In contrast, the material presented by the Applicant indicates that between 2015 and 2018, his involvement in Timor Leste grew significantly due to his work as a project manager for a community service project. Additionally, the Applicant has provided a significant financial contribution towards the purchase of a property with his partner in Timor Leste where they both reside.
…
(d) The nature and extent of the person’s assets located outside Australia
In the claim submitted 5 September 2018, the Applicant declared that he had a life interest in the property in Timor Leste (T4/93). In contrast, the Applicant had nominal savings and other relatively modest personal possessions in storage at his aunt’s house in Australia, which had been in storage since his departure from Australia in July 2015 (see Annex A).
The Secretary also notes that a car stored at his aunt’s premises in Australia has been unlicensed since 5 May 2017. In response to a question by the AAT1 as to why he has not licenced [sic] it and used it during any of his short stays in Australia, the Applicant is recorded in the decision of the AAT1 at [29] as stating that he will licence [sic] it when he returns to Australia for an extended period.
The ARO further observed in his decision that, You hold a bank account with an institution based in Australia but there is nothing to show you have any other financial ties in Australia (T9/108). In this regard, the Secretary notes Instruction 3.1.1.10 of the Guide that provides in part as follows:
Financial ties such as business investments in Australia can be an indicator of where the person is living. However, given the nature of global banking today, simply having an investment in Australia is, by itself, a weak indicator of where the person is residing. Having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia.
On balance, the Secretary submits that this factor weighs against finding that the Applicant was an Australia resident as of 5 September 2018.
(e) The frequency and duration of the person’s travel outside Australia
Since the Applicant’s departure from Australia in July 2015 until the date of his claim for age pension in September 2018 (over a 3.5 years period), his immigration records indicate that he has returned to Australia only around twice in each of those years, and usually for around a week on each occasion (T9/112).
The Applicant’s immigration records also indicate that between 2016 and 2018,
he spent 978 days outside Australia and 118 days in Australia. This means he only spent approximately 12% of his time in Australia during the previous three years prior to his claim for age pension (T13/135).
The Secretary observes the Applicant resides in Timor Leste on a tourist visa, and that he is required to exit every 90 days.
In Boucaut and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 726, an application with some similarity to the present matter, the Tribunal observed:
Mr Boucaut’s temporary immigration status in Thailand does not alter the fact that it has become his home and he is no longer a resident of Australia. As he was not a resident at the time of his application, I must affirm the decision under review.
The Secretary submits that this factor, assessed objectively, weighs in favour of a finding that the Applicant was not an Australian resident as at 5 September 2018 because of the high frequency of the Applicant’s travel outside Australia, and the comparatively brief periods of time the Applicant had spent in Australia prior to claiming.
(f) Any other matter relevant to determining whether the person intends to remain permanently in Australia
The Secretary contends that the Applicant’s intention to remain a resident of Australia must be assessed in the context of the objective evidence as a mere statement of intention is not sufficient: Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 at [22].
To that end, the Secretary submits that the following observations collectively demonstrate that the Applicant did not have a genuine intention to reside permanently in Australia at the time of his claim on 5 September 2018:
(a)the Applicant had been substantially absent from Australia for the preceding 3.5 years prior to his brief return to Australia to lodge the claim for age pension on
5 September 2018;
(b)the Applicant departed from Australia to Timor Leste around two weeks immediately after he lodged his claim for age pension;
(c)in his claim for age pension, the Applicant stated ‘I am not living in Australia on a permanent basis’ in response to a question about his residence (T4/92);
(d)when asked by the AAT1 about his intention to permanently return to Australia at the hearing on 5 April 2019, the Applicant indicated that he had no fixed plans or timeframe of when this would occur (Footnotes omitted);
(e)the Applicant also indicated that he had no idea about when his partner might relocate to Australia (Footnotes omitted);
(f)the Applicant has not provided any evidence to indicate that he has applied for an Australia visa for his partner in order to reside in Australia;
(g)the Applicant has not made any permanent arrangements for accommodation or real estate in Australia (such as securing a residential lease);
(h)the Applicant has not taken steps to remove his personal belongings from storage, which have been in storage at his aunt’s house since July 2015 (see Annex A);
(i)the Applicant has not taken steps to redirect his mail to a permanent address belonging to him; instead his bank statements from Bendigo Bank continue to be directed to his friend’s address in Sorrento W [sic]; and
(j)the absence of any firm objective steps taken by the Applicant to resume residency in Australia.

THE EVIDENCE

The Applicant described to the Tribunal his working background. He said he was involved with Telstra for ‘quite a few years’ (Transcript, page 10) and that he also had his own automotive business which had become unviable. After separating and divorcing his wife, he wanted to work in Timor Leste under a contract which was paid by the Melbourne Rotary Clubs. He said he wanted to continue working to secure his retirement and he thought he would have a five year contract with a paid position. His intention was to save sufficient money to buy a house in Harvey, WA.
His intention was that he would go to Timor Leste in 2015, get some experience and be well placed to commence in the Rotary position in 2016 when the current occupant of the position was ready to leave. His evidence was:
He was trying to get out of the contract one year early. So his contract would have terminated in 2016 but we had a number of conversations where he wanted to get out a year early so then I made arrangements to go up there to take over his position and then he decided to stay on for another year for various reasons and then I thought when his contract was up he’d move over because he wanted to get out of it and I was the only one in the country that had the experience and facilities to take over but due to a number of issues where he was going outside of the rules in Timor the whole position come under scrutiny by the Customs and authorities and then he ended up leaving the country with under a thousand US dollar debt.
So that killed the decision.
(Transcript, page 12)
The Tribunal asked the Applicant when he started spending time in Timor Leste and he said it was from about 27 July 2015. The Tribunal asked how he was supporting himself financially at the time. His evidence was that he sold his house and gave $25,000 to his partner to buy a property to operate his projects from. He said her family built a house on the property for them to live in and he also used his money for living expenses as well as airfares. He said by 2018 when he lodged his pension claim he had used most of his money. He further stated that he ‘always believed that by 2016/17 I would’ve been able to take up the Rotary Liaison position because I’d set myself up with all the facilities to just take over’ (Transcript, page 13).
The Tribunal accepts from the Applicant’s oral evidence that his intention when initially going to Timor Leste in 2015 was to take up a paid position working for Rotary in its charitable projects and he used his personal funds to finance himself during this time with the objective that he would be in paid work from around 2016. The Applicant offered to provide the Tribunal and the Respondent with documents confirming the discussions he had had with Rotary with respect to the paid position but both the Tribunal and the Respondent were willing to accept his oral evidence in this regard.
The Applicant gave further evidence that Rotary were paying $20,000 USD to hire the property to operate the business from. His objective in giving his partner the money to buy the property was that it would save Rotary the ongoing expense of hiring a property because he would be able to operate the business from the property which had been purchased.
The Applicant further stated that when the position ended with the previous employee:

‘It was handed over to a couple of the local people and that guy after he got charged took off back to Indonesia and it was left up to Rotary lawyers and district governors to try and sort out the mess. So then they backed out of it altogether and just reduced it right down and left the locals to try and organise things’ (Transcript, page 14).
The Applicant was cross examined by the Respondent. In cross-examination the Applicant confirmed that in September 2018 he had no clear plans to move back to Australia because he would not have had any income. He also confirmed that at that time he had not taken any specific steps to move back to Australia because ‘that would’ve meant trying to have some sort of income and being so close to the pension age it would’ve been extremely difficult to try and get some sort of employment’ (Transcript, pages 14-15).
He further said: ‘As I was so close to the pension age I thought that the best way is just to wait until the pension came through so I had an income to make everything happen but without an income it’s virtually impossible’ (Transcript, page 15).
The Respondent questioned the Applicant about his living arrangements in Australia and whether his aunt’s address was a permanent or temporary one. His response was that it was temporary in the ‘situation of trying to build up the funds to do it, which would be – take considerable time’ (Transcript, page 15).
He further said his intention was to do aged care training and get additional employment. He stated that until he got some sort of indication as to what was happening with his pension he couldn’t make any plans at all.
The Applicant gave evidence that he continued with charitable work in Timor Leste and had four or five 40-foot containers of donations arrive every year. He said it was a full-time job unloading and distributing these throughout the country during those years.
The Respondent asked and the Applicant agreed that the majority of his time between 2015 and 2018 and continuing on after that was spent in Timor Leste rather than Australia.
The Respondent queried whether the property in Timor Leste was jointly owned between the Applicant and his partner. The Applicant denied that and said he would not expect his partner to return any of the money to him if the property was sold. He firmly denied having any interest in the property.
The Applicant confirmed he was on a tourist visa which required him to leave the country every 90 days. He said he did not return to Australia every 90 days because of the expense. He said it was far cheaper and easier to go to West Timor or Bali. The Applicant stated that he returned to Australia within every six months but spent the majority of his time outside Australia. He said because of the volume of charitable donations that were being received in the containers in Timor Leste it was virtually a full-time, voluntary job. The Applicant agreed, after providing an explanation that he was spending at least
10 months each year outside of Australia.
The Tribunal clarified with the Applicant some inconsistencies between his oral evidence and what was recorded on his claim form (T4, p.91).
The Applicant stated that he went into the Centrelink office and gave oral answers which were transcribed onto the claim form by a Centrelink officer. In the claim form it states that the Applicant is not living in Australia on a permanent basis and has been living in Indonesia since 23 July 2015. The Applicant said he had never said he was living in Indonesia and had told the officer that, ‘I was doing a lot of project work in East Timor and I was spending a lot of time in Timor. So he has – he has just put down whatever suite[d] the – the claim there’ (Transcript, page 18).
The claim form further states that the Applicant has a ‘formal agreement documenting my right to accommodation for life’ (Transcript, page 19) and that he is ‘living with partner in Timor Leste’ (T4, p.93).
When questioned by the Tribunal, the Applicant denied saying that and said he does not have a formal agreement. He further said he had not received a written copy of the application form and strongly disputed the record of his conversation as noted by the Centrelink officer.
He said when living in Timor Leste, he and his partner live in a converted sea container on the property. He said his partner’s two brothers and their wives and children live in a brick and steel residence which the family built on the property. He said he regards his sea container as a temporary building because it could be sold off and moved out of the property at any time. He said he did not consider selling the property in Timor Leste because the sale price would have been insufficient to buy a property here and he would have had no employment and no opportunity to obtain finance to purchase a property.
With respect to his voluntary work, the containers he received were unloaded into a trucking container yard and distributed from that point.
CONSIDERATION
Having reviewed both the documentary and oral evidence the Tribunal has formed the following conclusions.
Firstly, the Applicant moved overseas in July 2015 with the objective of securing a position paid for by Rotary in relation to charitable works they undertook in Timor Leste.
The Applicant had sold his property in Perth and in May 2016 gifted $25,000 to his partner to purchase some land which her family built a residence on. The Applicant’s objective in doing so was to have an area that could be used for the unloading and storage of the containers for Rotary.
The position with Rotary did not eventuate because of alleged wrongdoing by the previous occupant of the position. The Applicant continued to spend significant periods of time in Timor Leste, leaving the country every 90 days to renew his visa but mostly visiting
West Timor and Bali to do so. He said he returned to Australia within every six months to have discussions with Rotary about the unpaid voluntary work he was doing in
Timor Leste. He conceded that he spent the majority of his time between 2015 and 2018 and afterwards out of Australia. Departmental records as reflected at T9, pp.112-113 indicate that between July 2015 and the date of claim (4 September 2018) the Applicant spent a total of 1033 days offshore and 102 days onshore in Australia.
The Applicant, in his oral evidence, confirmed that he lived with his aunt when he was in Australia and continues to live there with her now with his partner. Whilst overseas,
his aunt’s address was used for mail delivery and storage of his personal items.
The Applicant stated that since selling his property in Australia in 2015 he has not been in a position to purchase and/or finance a property and living with his aunt benefits them both as she is elderly and appreciates having some company in the house. The Tribunal accepts that the Applicant has not been in a financial position to purchase his own property since 2015.
The Applicant has adult children in Perth as well as a grand-daughter. He also has siblings in Perth.
The Applicant purposely went overseas to obtain further employment to try and secure a future for himself after his divorce. He had been previously employed and had operated a business in Australia but felt that due to his age it would be very difficult for him to find employment. His intention was to earn enough money to buy a house in Harvey, Western Australia.
The Applicant’s evidence made it quite clear that he was passionate about the projects in which he was involved in Timor Leste. This is reflected in his evidence that he continued to live in Timor Leste distributing donated goods on a voluntary basis. The Tribunal has undertaken some of its own research and notes several online articles devoted to the Applicant’s charitable activities during this time.
The Applicant also provided further evidence regarding his car which remains unlicensed.
As noted above, the Tribunal is required to consider whether, having regard to a number of considerations as prescribed by s 7(3) of Act, the Applicant is an ‘Australian resident’ as defined in s 7(2) of the Act. If the Applicant is found to not be an Australian resident at the time of his claim on 5 September 2018, then his claim is taken not to have been made:
s 29(2) of the Administration Act.
In Re Ronald Irving Goodfellow v Secretary, Department of Social Security [1992] AATA 301, the Tribunal observed that ‘residence’ is to be compared with ‘domicile’.
The Tribunal accepted that a person ceases to reside in one country when he has set up home in another.
In Re Maha Hafza v Director-General of Social Security [1985] FCA 164, His Honour Wilcox J stated that a person can establish a home in a particular place but 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 that particular place.
The Tribunal has considered each of the prescribed criteria in the legislation whilst noting that no single factor is conclusive or determinative.
The nature of accommodation used in Australia
The Applicant’s evidence is that he lived with his aunt when he was in Australia.
He confirmed that he had sold his former matrimonial home and owned no other property either in Timor Leste or Australia. His oral evidence was clear that he lacked the financial ability to purchase any property. The Tribunal accepts that the Applicant was unable to afford his own home in Australia and without an income source was also unable to rent one. Even though his accommodation with his aunt was infrequent and of limited duration the Tribunal is satisfied that this accommodation was nonetheless permanent and a stable base to which he returned when he was in Australia. He also stored his personal belongings at this house. The Tribunal is not satisfied that the Applicant has either a legal or equitable interest in the property in Timor Leste. His evidence was unequivocal that he gifted that money to his partner to purchase the land and that he has no rights to the return of the money. Whilst this may be viewed as an unusual decision by him, it does not necessarily mean it is unreasonable or untrue. The Tribunal is persuaded by the Applicant’s oral evidence that the money was genuinely gifted and he has no expectation of its return.
The Applicant’s evidence was that he and his partner now live with his aunt and whilst this is not relevant to the circumstances that existed at the date of his claim, it is supportive of his contention that his accommodation with his aunt was of a permanent nature when he was in Australia. The aunt gained company in return for providing him with a room and also benefitted from the arrangement.
The Tribunal is satisfied that the Applicant’s accommodation when he was in Australia was both long-term and permanent in nature. There is no suggestion in any of the evidence that the Applicant had transient or short-term accommodation in Australia.
In fact, it is clearly the opposite.
The nature and extent of the family relationships the person has in Australia
The Respondent has conceded that it is not in dispute the Applicant has several family members in Australia, including his adult children, siblings and the aunt whom he and his partner now live with.
The Respondent has contended that the Applicant has developed strong family ties with his partner and her family in Timor Leste and this strongly indicates that the
‘pull of his current partner and her family whom reside on land purchased with his funds firmly support residency in Timor Leste’ and that this ‘consideration weighs in favour of a finding that the Applicant was not an Australian resident at the time of his claim’
(R1, pp.39-40).
The Tribunal does not accept this contention. The Applicant readily admits his close association with his partner which no doubt extends to her family who are living on the property in Timor Leste. However, this does not detract from the number of strong relationships he has with his own family in Australia, including his own adult children.
The Tribunal finds that the Applicant has close and enduring relationships with many family members in Australia.
The nature and extent of the person’s employment, business or financial ties with Australia
The Applicant, in his evidence, confirmed that he had previously been employed in Australia, had operated his own business which had since ceased and at the date of his claim had little to no employment or financial ties with Australia.
The Applicant said that after he divorced he went to Timor Leste with the objective of securing new employment funded by Rotary Melbourne. He stated he felt his employment prospects in Australia were slim due to his age. He thought it was the only way to secure his financial future so he would be able to buy a property in Harvey, undertake aged care training and fund his own retirement. That position did not eventuate, however he stayed in Timor Leste in a voluntary capacity distributing donated goods that had been sourced from Australia. The liaison for this role was through Rotary Australia, which in the Tribunal’s view is evidence of a strong business tie. The Applicant gave oral evidence that part of the reason he returned to Australia twice a year was to have discussions with Rotary about the ongoing charitable projects.
The Tribunal is satisfied that the Applicant, whilst having limited means during the relevant period and at the date of claim, nonetheless had maintained close business ties with Australia.
The nature and extent of the person’s assets located outside Australia
The Tribunal has previously noted its finding that the Applicant does not have an interest in any assets outside Australia. It is accepted that he gifted $25,000 to his partner and her family but the Tribunal accepts that he has given away any rights to that capital.
The Applicant freely admits he has no assets in Australia, having used any funds he had after his divorce to support himself from 2015 to 2016 when he was preparing to take over the paid liaison role in Timor Leste.
The Tribunal finds that the Applicant doesn’t have any assets either in Australia or overseas.
The frequency and duration of the person’s travel outside Australia
The Tribunal finds that since July 2015 until the date of his claim in September 2018,
the Applicant spent the majority of his time overseas, returning on average, twice a year for usually only for a one week period.
The Tribunal, whilst accepting that no one factor is determinative in deciding whether a person is a ‘resident’, nonetheless places substantial weight on this factor in making its determination. It cannot be denied that the Applicant spent the vast majority of his time in Timor Leste, undertaking charitable, voluntary works, returning only rarely to Australia for short periods of time.
While this is very persuasive, the Tribunal has also considered the reasoning behind why the Applicant made so few return visits during that period of time.
The Tribunal accepts the Applicant’s oral evidence that he was deeply involved in his charitable works at the time which was akin to working a full-time, unpaid job. Furthermore, he lacked the financial resources to return to Australia even though his visa conditions required him to leave Timor Leste every 90 days. The Tribunal accepts his evidence that the cost of crossing into West Timor or travelling to Bali was far less than the cost of returning to Australia.
The Applicant has also returned to Australia permanently with his partner and is currently living with his aunt.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
Instruction 3.1.1.10 of the Guide relevantly states that if a person states they are leaving Australia temporarily with the intention of returning, the person’s ‘intent’ becomes less of a factor as the length of absence increases. A person’s physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
The Guide refers to no single factor taking precedence over another.
The Tribunal has taken note of the original intention of the Applicant when he started spending more time in Timor Leste. That is, he was undertaking work of a humanitarian nature in a region that is unstable both politically and economically.
CONCLUSION
The Tribunal finds that even though the Applicant’s original claim form for age pension on its face indicated that he was not a resident of Australia, after having had the benefit of his oral evidence, the Tribunal is satisfied that he was at the relevant time, an ‘Australian resident’.

The Tribunal is satisfied that the Applicant’s intention in 2018 was to return to Australia and resume residing here. His intention is an important consideration in determining his place of residence. Intention alone, however, is not determinative.
After a thorough review of the Applicant’s documentary and oral evidence, the Tribunal firstly, is satisfied that the nature of the Applicant’s accommodation in Australia,
even though not his own, was nevertheless, of a ‘permanent nature’. The evidence disclosed that he only returned to this address when he visited Australia and is now living there with his partner.
Secondly, the Applicant has demonstrated that he has had and continues to have several strong, close, family relationships in Australia.
Thirdly, the Applicant at all times maintained close business ties with Australia through his ongoing charitable works with Rotary.
Fourthly, the Tribunal accepts that the Applicant has no assets of any significance in Australia. The Tribunal further accepts that the Applicant gifted $25,000 to his partner and her family in Timor Leste and that he has foregone any right to an interest in the property and has no expectation of any return of his money. The Applicant therefore has minimal assets both in Australia and overseas.
Fifthly, the Tribunal accepts the Applicant has spent considerable periods of time overseas both prior to and at the date of his claim and continuing on until last year.
On first inspection, this would weigh heavily in favour of the Applicant not being an Australian resident. However, after taking into account the Applicant’s explanation as to why he did not return to Australia more frequently and the purpose of his stay in
Timor Leste (i.e. to undertake charitable works), the Tribunal is not satisfied that this negated his status as an Australian resident.
Finally, as noted above, the Applicant went to Timor Leste initially to take up a paid position with Rotary to try and earn sufficient money to secure his retirement.
When this did not eventuate, he stayed in the area distributing donated goods on a voluntary basis. His oral evidence was that this was equivalent to a full-time job which he did on a charitable basis. The Tribunal does not consider that this should be a factor which weighs against him in determining his residency.
Having regard to all the factors prescribed by the legislation the Tribunal is satisfied that the Applicant, at the date of his claim for age pension on 5 September 2018 was an Australia resident as defined by the legislation.
DECISION
The decision made by the Department on 5 November 2018 to reject the Applicant’s claim for age pension is remitted for reconsideration in accordance with the direction that it be reconsidered on the basis that he was, at all relevant times, and is, an Australian resident for the purposes of his application.

I certify that the preceding 113
(one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member M East

.......................[sgd].....................................
Associate
Dated: 2 June 2020

Date of hearing: 7 April 2020

Representative for the Applicant: Self-represented

Counsel for the Respondent: Laura Hinwood

Solicitors for the Respondent: Services Australia

Date of hearing:	7 April 2020
Representative for the Applicant:	Self-represented
Counsel for the Respondent:	Laura Hinwood
Solicitors for the Respondent:	Services Australia