Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 931

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 931

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0626

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT TAYLOR

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date19 November 2010

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – portability of age pension – applicant an Australian citizen – applicant absent from Australia from September 2007 to December 2009 – applicant returned to Australia in December 2009 when turned 65 years and claimed age pension – age pension granted to applicant – applicant subsequently departed Australia in December 2009 – applicant ceased to be an “Australian resident” during absence from Australia from September 2007 to December 2009 – applicant again became an “Australian resident” when returned to Australia in December 2009 – age pension not payable to applicant when outside Australia from December 2009 – decision under review affirmed

Social Security Act 1991 (Cth), s 7(2), s 7(3) and s 1220(1)

REASONS FOR DECISION

19 November 2010 Deputy President S D Hotop

Introduction

1.       Robert Taylor (“the applicant”), who had been living outside Australia since September 2007, returned to Australia and made a claim for age pension under the Social Security Act 1991 (Cth) (“the Act”) on his 65^th birthday in December 2009, and he was granted age pension with effect from that date.

2.       On 17 December 2009 the applicant informed Centrelink that he was going overseas on 23 December 2009 and he was notified by a Centrelink officer, by letter of the same date, that it had been decided that age pension would not be payable to him while he was overseas until he had resided in Australia for a period of two years.

3.       That decision was affirmed by a Centrelink Authorised Review Officer (“ARO”) on 23 December 2009, and the ARO’s decision was in turn affirmed by the Social Security Appeals Tribunal (“SSAT”) on 29 January 2010.

4.       The applicant has applied to this Tribunal for review of the ARO’s decision as affirmed by the SSAT.

The Issue and the Tribunal’s Determination

5. The issue for the Tribunal’s determination is whether the applicant, while he was overseas from September 2007 to December 2009 immediately prior to his returning to Australia and claiming age pension, ceased to be an “Australian resident”, within the meaning, and for the purposes, of the Act. If he had ceased to be an “Australian resident” prior to returning to Australia in December 2009, age pension will not be payable to him under the Act during any period in which he is outside Australia within the period of two years after he again became an “Australian resident”.

6.       For the reasons which follow, the Tribunal has determined that the applicant did cease to be an “Australian resident” while he was outside Australia in the period from September 2007 to December 2009.

The Evidence

7.       The evidence before the Tribunal comprised:

· the “T Documents” (T1–T10, pp 1–90) lodged on behalf of the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     Statement of Appeal, filed on 30 August 2010, tendered by the applicant (Exhibit A1);

·     Exhibits R1 and R2 tendered by the respondent; and

·     the oral evidence of the applicant.

The applicant’s evidence

8.       The applicant confirmed that he departed Australia on 18 September 2007 and did not return to Australia until 8 December 2009.  He said that he bought a 1-way ticket to Denpasar and he subsequently travelled to Lombok and then to Java.  He said that he just wanted “to get away from it all” and that a period of six months away was what he had “in the back of [his] mind”.  However, he stayed in Java for 12 months living in “homestays” with local people who provided accommodation and meals for a very low charge, and he then met an Australian couple in Java who invited him to go sailing with them, and he agreed.

9.       In his Statement of Appeal (Exhibit A1) the applicant described the circumstances which led to his departure from Australia, and his intention at that time, as follows:

“ When I departed for overseas in September 2007, it was my intention to holiday and recover from the mindset that I had found myself in and return some time sooner rather than later.  As it turned out the stay was much longer than originally contemplated but nevertheless was still a temporary absence as I started by backpacking around Indonesia and spent the last 12 months sailing around the Indonesian archipelago on a yacht owned by an Australian couple.  The cause of the ‘enforced’ holiday was a result of severe depression caused by attendance at Centrelink and job counselling agencies and non-response to multitudes of job applications.  I am a qualified Accountant and was applying for numerous jobs such as payroll clerk, accounts payable clerk, bookkeeper, office manager and other such jobs which were well below my levels of expertise and qualifications.  An additional contributing factor to my depression was the degradation of standing in a queue of lowlifes whilst waiting to submit a fortnightly form to claim the dole.  In addition I was required to attend regular interviews at a nominated employment agency where a young girl would lecture me on the manner in which I should conduct myself at job interviews.  I was also required to attend training courses such as computer education when I was already fully computer literate.

All of the above were contributing factors to my depression and of sufficient severity that I refused to enter a Centrelink office to claim the dole.”

He then addressed the factors specified in s 7(3) of the Act (see paragraph 12 below) as follows:

“ (a)     Nature of accommodation in Australia

I live with my niece in what is almost a granny flat situation with a large bedroom and ensuite at the other end of the house that has its own entrance.  I am fully self contained and have all my personal belongings, office paperwork, computer etc in my room.  My accommodation here is substantial and almost on a par with my one bedroom unit that I leased for 12 months on the South Perth foreshore for $400 per week prior to moving to my brother’s house.  This situation did not change in any respect during my absence or since my return.

(b)     Nature and extent of family relationships in Australia

The following is a summary of my family relationships.

Parents:  Both have passed away.

Brother:  An extremely close relationship.  My brother was the one who insisted I terminate my unit lease and come to live with him as he was greatly concerned about my depression and drinking at the time.  There is no suggestion whatsoever that my brother was not willing to accommodate me for any length of time but rather because his house is not large it was more advantageous to move to my niece’s house at her request.

Niece:  An extremely close relationship.  It was she who insisted I come to live with her due to the large house and better accommodation than my brother’s.

Nephew:  Not a close relationship but one of such significance that I regularly watch him play football and cricket.

Sister:  Not a close relationship but we see each other from time to time and always maintain phone contact.

Niece on sister’s side:  Not a close relationship as she lives most of the time in the Northwest but we maintain regular contact by phone and email.

Ex-wife:  Not a close relationship but maintain contact on birthdays, xmas etc.

This situation did not change in any respect during my absence or since my return.

(c)     Nature of employment, business or financial ties with Australia

I maintain several ANZ bank accounts and have an ANZ gold visa credit card which have been my source of funding my travels for the period in question.

I maintain share trading accounts with Commsec Securities and Macquarie Bank and have a small share portfolio.

I have lodged tax returns in years 2008 and 2009.

Up to the change of statutory regulations in respect to witnessing of legal documents, I was a registered Commissioner for Declarations in Western Australia.

Quite obviously I had no employment ties in Australia as the reason for my travels are outlined above.

I am a Director of an ASIC registered company that is in the final research and development stages of producing collapsible shipping containers and should be ready to manufacture the first prototypes within the next few months.  This position is unpaid although it does take up not an inconsequential amount of time.

This situation did not change in any respect during my absence or since my return.

(d)     Nature and extent of assets in Australia

I purchased a home unit off the plans in Mandurah in 2007 however in December 2008 due to the economic crisis I was unable to sell the unit and as I was unable to pay the interest on the loan, the mortgagor (sic) foreclosed on the property.  At present I do not own any property other than personal belongings.

I maintained a convertible Ford Capri motor vehicle until January 2009 which my niece sold for me as it was deteriorating by not being under cover or being used.  I also intended buying a campervan as I have in my future plans to travel around Australia and that it (sic) is the reason why I don’t have a vehicle at present.

My niece and her partner have 3 cars between them and I therefore have no problem with use of a motor vehicle.

This situation did not change in any respect during my absence or since my return.

(e)     Frequency and duration of travel outside of Australia

Over my lifetime I have travelled extensively.  Most of my travel over the past 15 or so years have (sic) been to Southeast Asia on golfing holidays with likeminded friends.  I am a keen golfer and have played at senior amateur level.  My handicap has ranged between 3 and 4 over the past 20 years.  I am a Foundation Member of Melville Glades Golf Club and have held numerous Board positions including Club Captain.  Most of the trips were of short durations ranging from 7 to 12 days with the occasional longer trip when time and finances permitted.  This situation did not change in any respect during my absence or since my return.

(f)      Any other matter relevant to determining whether the person intends to remain permanently in Australia

During my absence I retained:

·     my West Australian driver’s licence;

·     my Medicare card;

·     my West Australian internet service provider for emails (iinet);

·     my West Australian Seniors Card;

·     my Australian Padi Open Water Divers Accreditation;

·     my Commsec Securities and Macquarie Bank share trading accounts;

·     my Qantas frequent flyer membership.  I recently used frequent flyer points to travel to New Zealand to attend a friend’s surprise birthday party.

I am a member of the RSL and served in the army reserve for four and a half years and received an honorary discharge with the rank of a sergeant.

Prior to leaving Australia I took out multi-trip travel insurance with 1Cover Australia which covered me for any emergency medical expenses for a period of 12 months.

Prior to leaving Australia I attended the Australian Electoral Office and completed appropriate forms to exempt me from voting in upcoming elections as I didn’t know how long or where I would be (sic) at the forthcoming elections.  I have remained on the electoral roll and voted in the recent federal elections”.

10.      In an earlier Statement of Appeal, filed on 22 March, 2010, the applicant stated:

“ …

1.The entire time recently spent overseas was purely an ‘enforced’ holiday during which time I backpacked around Indonesia and spent the last 12 months sailing around the Indonesian archipelago on a yacht owned by an Australian couple.

2.The ‘enforced’ holiday was a result of severe depression caused by attendance at Centrelink and job counselling agencies and non-response to multitudes of job applications.  There was no point in returning home prior to my 65^th birthday as I had no employment prospects and had no intention of going to Centrelink to claim the dole.

3.At all times my absence from Australia was intended to be a temporary absence until such time as I was in a position to return home and become eligible for the aged (sic) pension.

4.I continue to be an Australian taxpayer and lodged my tax returns in years 2008 and 2009.

5.Prior to leaving Australia I took out multi-trip travel insurance with 1Cover Australia.  Whilst overseas I made a claim for medical expenses incurred when I was hospitalised for 4 days overseas due to extremely low blood sugar levels resulting in fainting spells and a coma.  The cause of the illness was never determined.

6.Prior to leaving Australia I attended the Australian Electoral Office and completed the appropriate forms to exempt me from voting in upcoming elections as I didn’t know how long I would be absent from Australia and where I would be at the forthcoming elections.

In conclusion I would like to make the following statement:

I am an Australian resident…. I have always been an Australian resident…. I will always continue to be an Australian resident.  It is my intention to travel to see other parts of the world that I have not yet seen as long as health and finances permit but at the end of the day my residence and permanent abode is and always will be Australia.”  (Exhibit R2)

11.      In his oral evidence the applicant said that he was “always going to return to Australia to claim the pension”.

The Legislation

12. The relevant provisions of the Act are as follows:

“ 7(1)        In this Act, unless the contrary intention appears:

‘Australian resident’ has the meaning given by subsection (2).

…”

“ 7(2)        An Australian resident is a person who:

(a)  resides in Australia; and

(b)  is one of the following:

(i)      an Australian citizen;

(ii)     the holder of a permanent visa;

(iii)     a special category visa holder who is a protected SCV holder.”

“7(3)        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.”

“ 1220(1)    If:

(a)a person is an Australian resident; and

(b)the person ceases to be an Australian resident; and

(c)the person again becomes an Australian resident; and

(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:

(i)   an age pension; or

(ii)  a disability support pension; or

(iii) a bereavement allowance; and

(e)after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and

(f)financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;

a pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.”

Analysis

13. It is common ground that the applicant is, and has at all material times been, an Australian citizen. Accordingly, he will be an “Australian resident” as defined in s 7(2) of the Act, if he “resides in Australia”.

14. The critical matter for the Tribunal’s determination is whether, in the period when the applicant was absent from Australia from 18 September 2007 to 7 December 2009, he continued to “reside in Australia” or ceased to “reside in Australia”, within the meaning of s 7(2)(a) of the Act. If he continued to “reside in Australia” throughout that period, he will have continued to be an “Australian resident” (as defined in s 7(2) of the Act) throughout that period, but if he ceased to “reside in Australia” during that period, he will have then ceased to be an “Australian resident” within the meaning of s 1220(1)(b) of the Act.

15. Section 7(3) of the Act specifies various factors to which regard must be had in deciding, for the purposes of the Act, whether or not a person is “residing in Australia”. The applicant’s evidence in respect of those factors (see paragraph 9 above) was not disputed by the respondent, and the Tribunal accepts it (subject to the qualification regarding his recent overseas travel in paragraph 17 below).

16. Although the applicant’s evidence in relation to the factors specified in paras (a), (b), (c), (d) and (f) of s 7(3) of the Act indicates that he has retained an ongoing association with Australia in the respects referred to, that evidence does not necessarily lead to the conclusion that the applicant has, at all times, continued to “reside in Australia” within the meaning of s 7(2)(a) of the Act. In other words, that evidence is not inconsistent with the applicant’s ceasing to “reside in Australia”, within the meaning of s 7(2)(a), from time to time.

17. It seems to the Tribunal that the factors which are most significant in determining whether the applicant continued to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, in the period immediately prior to his return to Australia on 8 December 2009 are the nature and duration of his absence from Australia in that period. Although the applicant’s evidence was that most of his overseas trips “were of short durations ranging from 7–11 days with the occasional longer trip when time and finances permitted”, a perusal of departmental immigration records (T9, pp 74–78) reveals that, from December 2006, the applicant has spent considerably more time outside Australia than in Australia. According to those records, the applicant was outside Australia:

·     from 3 December 2006 to 1 February 2007;

·     from 14 March 2007 to 3 September 2007; and

·     from 18 September 2007 to 8 December 2009.

As regards the last-mentioned absence from Australia, having regard to the long duration (over two years) of that absence, and the applicant’s own evidence that:

·     he departed Australia on 18 September 2007 on a 1-way ticket to Denpasar;

·     he wanted to “get away from it all” and to do some travelling and sightseeing in Indonesia;

·     he was unsure how long he would be absent from Australia although he always intended to return by the time he turned 65 in December 2009 so that he could  claim age pension;

the Tribunal is satisfied that he ceased to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, and that he therefore ceased to be an “Australian resident”, within the meaning of s 1220(1)(b) of the Act, in that period.

18. The Tribunal is also satisfied that, when the applicant returned to Australia on 8 December 2009, he again became an “Australian resident” within the meaning of s 1220(1)(c) of the Act, although the Tribunal is not satisfied that he then intended to remain in Australia. In this connection, the Tribunal notes that the applicant departed Australia for Vietnam on 7 April 2010 (Exhibit R1) and it understands that he remained absent from Australia until shortly before the hearing of this matter on 28 September 2010.

19. Although the Tribunal accepts that the applicant has at all material times regarded, and continues to regard, Australia as “home” – having been born and raised in Australia and having maintained the continuity of association with Australia indicated by his abovementioned evidence regarding the factors specified in s 7(3) of the Act – and that he intends ultimately to reside permanently in Australia, it does not follow therefrom that, in the meantime, he must be taken to be continuing to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, throughout long periods of absence from Australia.

20. The applicant acknowledged that he had ceased to “live” in Australia from 18 September 2007 to 7 December 2009 but he submitted that he did not cease to “reside” in Australia in that period and that he retained his “status” as an Australian resident throughout that period. The answer to that submission is that the phrase “Australian resident” (as defined in s 7(2) of the Act) does not involve a fixed “status” such as that of a “permanent resident” under the Migration Act 1958 (Cth). Rather, as defined in s 7(2) of the Act, it refers to a person who falls within one of the categories referred to in s 7(2)(b) and who “resides in Australia”.

Conclusion

21. In the present case the Tribunal has found that the applicant had ceased to “reside in Australia”, within the meaning of s 7(2)(a) of the Act, during his long absence from Australia from 18 September 2007 to 7 December 2009. Accordingly, the Tribunal finds that he “cease[d] to be an Australian resident”, within the meaning of s 1220(1)(b) of the Act, in that period.

22. The Tribunal also finds that the applicant “again [became] an Australian resident”, within the meaning of s 1220(1)(c) of the Act, when he returned to Australia on 8 December 2009.

23. It is common ground that the applicant was granted an age pension within the period of 2 years after he again became an Australian resident, and, accordingly, s 1220(1)(d) of the Act is satisfied in this case.

24. It follows that, pursuant to s 1220(1) of the Act, age pension is not payable to the applicant during any period in which he is outside Australia within the period of 2 years referred to in that subsection.

Decision

25.      For the above reasons the Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  28 September 2010
Date of Decision  19 November 2010
Representative of the Applicant:           Self-represented

Representative of the Respondent:      Ms M Conlon

Legal Services Branch
  Centrelink