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

[2018] AATA 1963

Sullivan and Secretary, Department of Social Services (Social services second review) [2018] AATA 1963 (29 June 2018)

Division:GENERAL DIVISION

File Number:2017/2331           

Re:Brian Sullivan

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Member A Ward

Date:29 June 2018

Place:Adelaide

The Tribunal affirms the decision under review.

......................[Sgd]..................................................

Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - age pension - whether applicant meets the age pension eligibility requirements - whether applicant resident in Australia when he lodged his application for a pension - decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) s 7

Social Security (Administration) Act 1999 (Cth) s 29

CASES

Drake v Minister for immigration and Ethnic Affairs (1979) 2 ALD 60.

Re Sparrow v Secretary, Department of Social Services [2015] AATA 586

REASONS FOR DECISION

Senior Member N A Manetta
Member A Ward

29 June 2018

1. This is an application by Mr Brian Sullivan seeking a review of a Level One decision of this Tribunal dated 5 April 2017.  By its decision, the Tribunal affirmed earlier decisions taken on behalf of the Respondent that Mr Sullivan was ineligible to receive an age pension in respect of his application dated 6 June 2016.  At the hearing before us, which Mr Sullivan attended via telephone from Bali, Indonesia, Mr Sullivan represented himself; Ms Odgers represented the Respondent.  As Mr Sullivan was self-represented, we shall seek to state our reasons as clearly as possible, without setting out in detail the relevant statutory provisions.

   SUMMARY OF CONCLUSION

2. Hearing the matter afresh on the evidence before us,[1] we must decide whether Mr Sullivan met the age-pension eligibility requirements imposed under the Social Security Act, 1991 (the Act) and the Social Security Administration Act, 1999 (the Administration Act) at the time he lodged his application on 6 June 2016.  In our opinion, he was not eligible to receive an age pension in respect of this application, and we shall affirm the decision under review.  We set out below a statement of the single issue in contention before us, the background facts, our key findings, and the reasons for the conclusion we have just stated.

   [1] See Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

   SINGLE ISSUE IN CONTENTION

3. At the hearing before us, it was clear that, from the Respondent’s perspective, there was only one impediment to Mr Sullivan’s receiving an age pension.  That impediment is that he was not a resident of Australia on 6 June 2016, the date of his application.[2]  All other statutory requirements were satisfied.  We agree with the Respondent’s submission that Mr Sullivan was not a resident of Australia on that day.

   [2] See section 29 of the Administration Act and section 7 of the Act.

   BACKGROUND FACTS AND KEY FINDINGS

4. We now set out the background facts and key findings.  Mr Sullivan was born in 1948 and reached, therefore, the pensionable age of 65 in 2013.  He had pursued various vocations in the course of his working life in Australia.  It is not necessary for us to set these out.  For present purposes, it is sufficient to note that in the years leading up to December 2015, Mr Sullivan worked as an electrician on Barrow Island off the coast of Western Australia.  As we understand matters, he was working on the Island in connection with a gas exploration project.  He was a “fly-in-fly-out” employee, who lived and worked on the Island and was flown out during his rostered weeks off.  

5. We note that Barrow Island is part of Australia.  During this period of his life, Mr Sullivan was undoubtedly resident on Barrow Island, where he was employed and lived.  During this period, he was, therefore, a resident of Australia, as he had been in earlier decades of his life. 

6. Mr Sullivan gave evidence, which we accept, that, while employed on Barrow Island, he spent most of his rostered time off in Bali, Indonesia.  He returned there frequently, although he gave evidence that on some occasions he would spend time with a friend in Perth, but only, he said, for a day or two at a time.[3]

   [3] Transcript, pp 9.45 and 10.4.

7. Mr Sullivan gave evidence, which we accept, that he was retrenched towards the end of the life of the project and finished his employment on Barrow Island on or about 20 December 2015.  He gave evidence, which we accept, that he tried to find alternative work, but work was hard to come by, especially given his age.  When Mr Sullivan could not secure further work, he left for Bali, Indonesia.  

8. Records held by the Immigration Department show[4] Mr Sullivan left Australia on 22 December 2015; returned to Australia on 15 January 2016; left Australia on 23 January 2016; returned to Australia on 7 February 2016; left Australia on 10 February 2016; returned to Australia on 6 June 2016; and left Australia on 8 June 2016.  We accept these records as accurate.

   [4] Exhibit R1, T14, p 120.

9. We note that Mr Sullivan had lodged two earlier applications for an age pension before his pension application in June 2016.  The first of these applications was lodged in March 2016 and the second in May 2016.  On both these occasions, the applications were rejected on behalf of the Respondent because Mr Sullivan was not physically present in Australia when they were lodged.  Mr Sullivan gave evidence to the Tribunal that he was in fact present in Australia on these occasions, but this evidence is inconsistent with the record of his movements in and out of Australia to which we have just referred.

10. Mr Sullivan returned to Australia from Bali on 6 June 2016 and lodged a third application on that day.  This is the application with which we are concerned.  Mr Sullivan returned to Bali soon after, on 8 June 2016.  He has not returned to Australia since that departure.

11. The exact nature of Mr Sullivan’s living arrangements in Bali is not entirely clear to us, but we note Mr Sullivan’s evidence that he is living there rent-free with a friend on an ongoing basis.[5]  We infer that Mr Sullivan has formed a friendship in Bali that is sufficiently close to enable him to live there on a rent-free basis for an extended period of time.

    [5] Transcript, p.10.21.

12. Section 7(3) of the Act requires us to have regard to certain matters in deciding whether Mr Sullivan was a resident of Australia at the time of his application on 6 June 2016. We set out below our findings in respect of these specific factors.

13. The first matter required to be considered is the nature of the accommodation used by the person when in Australia.  Mr Sullivan neither owns nor rents real property in Australia.  On the few occasions he has visited Australia since his retrenchment, Mr Sullivan has stayed with his sister in Adelaide.  We note that since lodging his application in June 2016, Mr Sullivan has not returned to Australia.

14. The second matter is the nature and extent of the person’s family relationships.  We note Mr Sullivan has a sister in Adelaide and an adult son in Noosa, Queensland.  Mr Sullivan’s mother died in early 2016.   We accept Mr Sullivan’s evidence that he feels he has a close relationship with his sister and with his adult son, but we note again that since his retrenchment, Mr Sullivan has travelled infrequently to Australia.  His evidence to the Tribunal was that when he was employed on Barrow Island, his rostered time off would be spent mainly in Bali and occasionally in Perth.  These are relationships which are sustained otherwise than by personal visits by Mr Sullivan.  

15. The third and fourth matters are, respectively, the nature and extent of the person’s employment, business or financial ties with Australia and the nature and extent of the person’s assets located in Australia.  We deal with these matters together.  In Mr Sullivan’s case, the ties and assets are non-existent.  He has no business or financial ties with Australia.  He has fully retired from the Australian workforce.  He has no assets, real or even personal, located in Australia.  He specifically denied in evidence holding a bank account in Australia with any money on it.  We proceed on the basis that in June 2016 he had no bank account in Australia or, if he had one, it did not hold any significant amount of money.  Moreover, we proceed on the basis that he otherwise has no assets in Australia. 

16. It is convenient at this juncture to refer to certain monies, totalling some $179,000, that Mr Sullivan received at the time of his retrenchment.  Mr Sullivan gave evidence that when he received these monies, some $100,000 was transferred to his son (whether this was by way of gift or by way of a loan repayable on demand in the future is not clear to us on the evidence).[6]  Mr Sullivan said the remaining $79,000 (or so) has been used to meet his living expenses and the cost of air tickets.  We note that despite having access to a relatively large sum on his retrenchment, Mr Sullivan did not return to Australia for other than brief visits or explore how he might re-establish himself in Australia in the future.  

    [6] Transcript, p 13.22.

17. The fifth matter is the frequency and duration of the person’s travel outside Australia.  The overwhelming majority of Mr Sullivan’s time since December 2015 has been spent outside Australia, namely, in Bali.  This supports the Respondent’s submission that Mr Sullivan decided to live in Bali after his retrenchment and not return to Australia (unless there were a particular reason compelling him to return).

18. Finally, we must have regard to any other matter relevant to deciding whether the person intends to remain permanently in Australia.  We note Mr Sullivan’s evidence given before the Level 1 Tribunal, which we reproduce below:

    “[35] He is now living with a friend in Bali on a rent-free, informal basis. His evidence was that he could stay there as long as he wished. He has now been continuously out of Australia since 9 June 2016, some 10 months.

    [36] He stated in evidence that he has no present intention to return to Australia. His intention was to stay in Bali. He stated that only if a relative was sick would he then return to Australia.”

19. We accept this evidence as an accurate statement of Mr Sullivan’s intentions.  Mr Sullivan did mention in his evidence to us that he would return to Australia for medical purposes,[7] but we took him to mean that he would return to use Australian health services if needs be.  There is no evidence before us of any steps Mr Sullivan has taken thus far to prepare himself to resume a life in Australia.  The evidence before us suggests he took a deliberate decision not to return to Australia for any extended period after his departure on 22 December 2015.[8] 

    [7] Transcript, p 16.9.

    [8] Transcript, p 14.4.

    REASONS

20. The decision whether Mr Sullivan was a resident of Australia on 6 June 2016 is one of degree to be decided on the basis of all the evidence before us.  It is clear that a person need not be physically present in Australia to be a resident.  Moreover, a person may be a resident in two countries at the same time.  We regard these last two propositions as clearly established, and they favour Mr Sullivan.  Accordingly, even though Mr Sullivan may be a resident of Indonesia (according to Australian legal tests) that finding does not mean Mr Sullivan cannot also be a resident in Australia.[9]

    [9] See, for example, Sparrow v Secretary, Department of Social Services [2015] AATA 586 at [12] and authorities referred to therein.

21. In deciding that Mr Sullivan was not resident in Australia on 6 June 2016, however, we find it decisive that Mr Sullivan had no intention to return to Australia as at that date, that he had no property in Australia, and that he has spent the overwhelming majority of his time after his retrenchment outside Australia.  Some long-standing Australian residents− and Mr Sullivan undoubtedly was a longstanding resident on his retirement from the workforce on 20 December 2015− do decide to sell up whatever assets they have and travel or live overseas on an extended basis.  The fact that these residents do not currently own property in Australia and have left to for an overseas destination does not necessarily mean that they have ceased to be residents of Australia.  We accept that these persons do not automatically cease to be residents on departure from Australia.

22. In our opinion, however, a resident who leaves with the intention of living overseas indefinitely on an entirely open-ended basis may cease to be a resident.  In our opinion, Mr Sullivan falls into this category.  He has left Australia with no intention to return permanently unless circumstances compel him to do so.  In our opinion, when Mr Sullivan left Darwin for Bali after his retrenchment, he decided to leave Australia indefinitely on an open-ended basis, and his residence in Australia ceased at that time.  His intention in that regard has not altered in the intervening period, and, in our opinion, he was not a resident of Australia at the time of his application on 6 June 2016.

23. Finally, we wish to explain what use we have made of events after June 2016 in deciding Mr Sullivan’s application to this Tribunal.  The critical question for the Tribunal in this case is whether Mr Sullivan was resident in Australia on 6 June 2016, when he lodged his application for a pension.  That is the relevant question posed under the legislation.  The question is not whether Mr Sullivan is resident in Australia today.

24. We are not prevented, however, from looking at events after 6 June 2016 to the extent that they either confirm, or contradict, a conclusion we would otherwise have reached on the evidence before us as it stood in June 2016.  Indeed, in our opinion, we should look at them.  For example, had Mr Sullivan returned to Australia after 6 June 2016 to live here, rather than merely visit, we would have taken that evidence into account as evidence that confirmed Mr Sullivan’s submission that he was resident in Australia on 6 June 2016 and that he was merely holidaying in Bali on a temporary basis.  Equally, the fact that Mr Sullivan has not returned to Australia to live on an ongoing basis is evidence we are entitled to take into account, and it confirms our conclusion that he was not resident in Australia on 6 June 2016.  We make clear that we would have reached that conclusion without considering the events after June 2016; but we do point out that the evidence of Mr Sullivan’s circumstances after June 2016 confirms our conclusion.

25. All in all, therefore, we have concluded that while Mr Sullivan was a long-term resident of Australia up to the time of his retrenchment, he decided, once he could not secure further work, to move to Bali and now lives there with a friend.  As at 6 June 2106, he had no intention to return to Australia.  He maintains no assets in Australia and has visited here infrequently.  His only real connection with Australia that appears on the evidence before us comprises his relationships with his sister and son but we note that they do not involve frequent visits to Australia, and we do not see the relationships with either of these people as altering what is to us an inevitable conclusion; namely, that as at 6 June 2016 Mr Sullivan had ceased his residence in Australia and will only resume it at some future date if circumstances at that time require it.

26. During the course of the hearing, Mr Sullivan submitted that he was merely “holidaying” in Bali.  It follows from what we have set out above that we do not accept this conclusion.  In our opinion, Mr Sullivan was not merely “holidaying” in Bali in June 2016.  

27. Mr Sullivan also submitted that he has worked all his life in Australia and is entitled to an age pension as an Australian citizen who has paid his taxes.  The Tribunal is obliged to apply the legal tests prescribed in the legislation, and Mr Sullivan’s past residence of Australia is not directly relevant to those tests.  A person may have resided in Australia his or her entire life, but if that person ceases to be resident in Australia and then lodges an application for an age pension, he or she will fail to meet the prescribed residency test irrespective of past residency.  

    FORMAL DECISION

28. We affirm the decision under review.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

......................[Sgd]..................................................

Administrative Assistant

Dated: 29 June 2018

Date(s) of hearing:	7 March 2018
Applicant:	In person
Advocate for the Respondent:	Ms L Odgers
Solicitors for the Respondent:	Department of Human Services