Taylor and Secretary, Department of Social Services (Social services second review) - [2024] AATA 3343

Taylor and Secretary, Department of Social Services (Social services second review) [2024] AATA 3343 (18 September 2024)
Division:GENERAL DIVISION
File Number: 2023/5522
Re:Richard Taylor
APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date of written reasons: 18 September 2024
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 20 June 2023 to suspend the Applicant’s entitlement to Age Pension from 1 March 2023, is set aside and substituted with a decision that the Applicant was not an Australian resident between 25 February 2020 and 4 March 2023.
.......................[Sgd].................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – age pension – job seeker pension – whether Applicant was an Australian resident – departure from Australia – where Applicant resided in Indonesia for significant periods – portability of the age pension – suspension of the age pension – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – 7, 7(2), 7(2)(a), 7(3), 7(3)(a), 7(3)(b), 7(3)(c), 7(3)(d), 7(3)(e), 7(3)(f), 1220, 1220(1)
Social Security (Administration) Act 1999 (Cth) – 29, 29(1), 66A(2), 68(2)
CASES
GOODFELLOW V SECRETARY, DEPARTMENT OF SOCIAL SECURITY [1992] AATA 301
HAFZA V DIRECTOR-GENERAL OF SOCIAL SECURITY [1985] FCA 201
KILLICK AND SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2010] AATA 1059
KIM V MINISTER FOR HOME AFFAIRS [2020] FCCA 2528
KOCABURAK AND SECRETARY, DEPARTMENT OF SOCIAL SERVICES [2018] AATA 942
MINISTER FOR HOME AFFAIRS V G AND ANOTHER [2019] FCAFC 79
SECRETARY, DEPARTMENT OF FAMILIES AND COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND BACCON [2006] FCA 773
TAYLOR AND SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS [2010] AATA 931
Taslim v Secretary, Department of Family and Community Services (2004) 37 FCR 70
SECONDARY MATERIALS
Australian Government ‘Guides to Social Policy Law: Social Security Guide’ (version 1.319, 12 August 2024) – 3.1.1.10
REASONS FOR DECISION
Member L M Gallagher
18 September 2024
THE APPLICATION

The Applicant seeks review of decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 20 June 2023 (the Reviewable Decision).[1] The AAT1 affirmed the decision of an Authorised Review Officer (ARO) made on 16 March 2023[2] to suspend the Applicant’s entitlement to Age Pension (AP) from 1 March 2023 (ARO Decision).[3]
[1] R1, T2.
[2] R1, T15.
[3] R1, T2.
ISSUE
The issues before the Tribunal are:
(a)Whether, for the purpose of subsection 29(1) of the Social Security (Administration) Act 1999 (Cth) (SS Administration Act), the Applicant was an Australian resident at the time he made his claims for:
(i)JobSeeker Payment (JSP) on 27 January 2023; and
(ii)AP on 6 February 2023.
If the Applicant was not an Australian resident on these dates, then he would not have been able to lodge a claim for JSP or AP under section 29 of the SS Administration Act.
(b)If the Tribunal finds that the Applicant was an Australian resident on 27 January 2023 and 6 February 2023:[4]
(i)Whether, for the purpose of section 1220 of the Social Security Act 1991 (Cth) (SS Act), the Applicant had ceased to be an Australian resident in the two years prior to being granted age pension from 28 February 2023; and if so;
(ii)Whether after being granted AP, the Applicant left Australia within two years of the Applicant’s recommencement of becoming an Australian resident; and
(iii)Whether, after again becoming an Australian resident, AP was not payable during the period 1 March 2023 to 4 March 2023 whilst the Applicant was overseas pursuant to subsection 1220(1) of the SS Act.
[4] As the Tribunal has found that the Applicant was not an Australian resident at the relevant times [see 98 below], it has not gone on to consider the issues set out at [2(b)(i)], [2(b)(ii)] and [2(b)(iii)] above. It is not required to do so.
BACKGROUND
On 27 January 2023, the Applicant lodged an online claim for JSP.[5] In that claim form, the Applicant stated:
(a)He was currently living in Australia;[6]
(b)His home address was a property in [street number and name, suburb], WA;[7]
(c)Words to the effect that his residential status was in accommodation where he paid ‘lodgings’ of $120 per week to his daughter’;[8]
(d)He last entered Australia in 2021;[9]
(e)In response to a question as to other countries he had lived in, the Applicant relevantly listed “Indonesia from 1 February 2020 to 14 April 2021; Australia from 15 April 2021 to 1 November 2022 and Indonesia from 2 November 2022 to 23 January 2023.”[10]
[5] T5, pp 88 to 94.
[6] R1, T5, p 89.
[7] R1,T5, p 88.
[8] R1, T5, p 90.
[9] R1, T5, p 89.
[10] R1, T5, p 89.
In support of his JSP claim, the Applicant also lodged an employer letter authored by Derby Lodge Director, Mr Geoff Harwood which advised the Applicant was employed as a casual housekeeper and kitchen hand and ceased employment voluntarily on 1 November 2022.[11]
[11] R1, T6, p 95.
On 5 February 2023, the Applicant’s JSP was granted with effect from 3 February 2023.[12]
[12] R1, T18, p 150.
On 6 February 2023, the Applicant lodged an online ‘Transfer to AP.’ In that claim, he stated:
(a)He was residing in Australia from 24 January 2023;[13]
(b)His home address was a property in [street number and name, suburb], WA;[14]
(c)He last entered Australia in 2021;[15]
(d)In response to a question regarding other counties lived in the Applicant relevantly listed
(i)Indonesia from 1 February 2020 to 14 April 2021;
(ii)Australia from 15 April 2021 to 1 November 2022; and
(iii)Indonesia from 2 November 2022 to 23 January 2023;[16] and
(e)He had money invested in Australian Superannuation.[17]
[13] R1, T7, p 97.
[14] R1, T7, p 96.
[15] R1, T7, p 97.
[16] R1, T7, p 97.
[17] R1, T7, p 97.
On 7 February 2023, the Applicant’s AP claim was prospectively assessed and granted with effect from 28 February 2023.[18] The advice granting the Applicant’s AP advised he was required to tell Centrelink if any of the changes below happened or were likely to happen, within 14 days pursuant to subsections 66A(2) and 68(2) of the Administration Act:
Other:…your Australian residence status changes[19]
…
Travel outside Australia: For information about how your payments or concession card may be affected when travelling outside Australia and when you should contact us, go to servicesaustralia.gov.au/payments overseas.[20]
(Original emphasis.)
[18] R1, T18, p 152.
[19] R1, T10, p 104.
[20] R1, T10, p 104.
On 28 February 2023, the Applicant reached AP age. The Applicant made an online update to his portability status which advised he would be departing Australia for Indonesia on 1 March 2023 for between 6 to 26 weeks.[21]
[21] R1, T17, p 131 and T18, p 153.
On 3 March 2023, the Applicant was issued a letter from Centrelink containing information about receiving payments and concession card entitlements when he advised of his intention to depart Australia.[22] The letter states:
[22] R1, T12, p 108.
When you leave Australia
·Your Age Pension, Energy Supplement, Pension Supplement and Rent Assistance cannot be paid.
If you once lived in Australia, emigrated to another country and then returned to Australia to live and claimed AP, you must stay in Australia for two years before you can receive AP outside of Australia. Your AP cannot be paid outside Australia because it was granted to you within the last two years.
…
Your payments may be impacted if your return to Australia is delayed.
Following receipt of the advice, the Applicant contacted the Agency on the same day to enquire about his AP suspension.[23]
[23] R1, T18, p 154.
The Applicant had a portability interview where he advised he was intending to return to Australia on 28 February 2024.[24]
[24] R1, T18, p 155.
On 5 March 2023, the Applicant arrived in Australia from Indonesia in response to his AP suspension.[25]
[25] R1, T17, p 131.
The Applicant lodged an ‘Explanation for formal review of a decision’ form with a handwritten statement.[26] In this handwritten statement, the Applicant requested his AP to be reinstated so that he could resume his overseas travel.[27] In particular he advised the following:[28]
I have quality of life and [travelling] helps with my health which I really cannot do in Australia. I will still be returning to Australia to see my 4 children, 8 grandchildren and my elderly mother at times as well.
I ask you to consider my request to reinstating [sic] my pension so I may continue my travelling for my mental health and physical health reasons.
[26] R1, T13, pp 110 to 112.
[27] R1, T13, p 111.
[28] R1, T13, p 112.
The Applicant’s AP was accordingly restored with effect from 5 March 2023 as he had returned to Australia (AMR 302).[29]
[29] R1, T17, p 131.
On 7 March 2023, the Applicant sought review of the Agency’s decision.[30]
[30] R1, T18, p 157.
On 16 March 2023, an ARO made the ARO Decision.[31]
[31] See [1] above.
On 20 June 2023, the AAT1 made the Reviewable Decision.[32]
[32] See [1] above.
By Application for Review of Decision lodged on 17 July 2023, the Applicant sought merits review of the AAT1 decision in the General Division of the Administrative Appeals Tribunal.[33]
[33] R1, T1, pp 1 to 6.
RELEVANT LEGISLATION
The relevant legislation is contained in the:
(a)SS Act, and
(b)SS Administration Act.
As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy set out in the Social Security Guide (the Guide), unless there are cogent reasons not to do so.[34]
[34] G at [57]-[62].
EVIDENCE
The matter was heard in Perth on 29 May 2024. The Applicant was self-represented and appeared in person. The Respondent was represented by Mr David McLaren of Mills Oakley, who appeared by Microsoft Teams.
The Applicant gave oral evidence at the hearing. No witnesses were called.
During cross-examination, the Applicant took no issue with the dates he departed from and returned to Australia that were recorded in his movement records, or any other factual matters put to him by the Respondent or detailed in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). The Applicant was an honest and straightforward witness in this regard.
Rather, the Applicant expressed various concerns with historical incidents of misinformation by the Agency (which the Respondent acknowledges) and which are irrelevant to the issues for review and hence not addressed in this decision.
The Tribunal admitted the following documents into evidence:
(a)Applicant’s submissions dated 18 December 2023 (Exhibit A1);
(b)Applicant’s email correspondence dated 28 May 2024 (Exhibit A2);
(c)Respondent’s Section 37 T-documents comprising T1 to T19, pages 1 to 165, dated and filed 24 August 2023 (Exhibit R1);
(d)Respondent’s Supplementary T documents, comprising ST1, pages 1 to 4, dated and filed 27 October 2023 (Exhibit R2);
(e)Services Australia telephone call recordings from 13 February 2023 and 17 February 2023 (Exhibit R3);
(f)Respondent’s SFIC dated and filed 20 December 2023 (Exhibit R4); and
(g)Response from Agency’s Portability and Residence Team dated 1 December 2023 (Exhibit R5).
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
CONSIDERATION
The Tribunal must first consider the issue of whether the Applicant was an Australian resident at the time he made his claims for JSP on 27 January 2023 and AP on 6 February 2023.
The determinative question in deciding whether the Applicant was an Australian resident at these times is whether he was residing in Australia at the relevant times.
In determining whether the Applicant was an Australian resident, the Tribunal will need to apply the definitions in section 7 of the SS Act:
7         Australian residence definitions
(1) In this Act, unless the contrary intention appears:
Australian resident has the meaning in subsection (2).
…
Permanent visa… has the same meaning as in the Migration Act 1958
…
(2) An Australian resident is a person who:
(a)    resides in Australia; and
(b)    is one of the following:
…
(ii) the holder of a permanent visa
….
Note: For holder and permanent visa see subsection (1).
…
(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.
Qualification criteria for Australian residency
The six factors in section 7(3) of the SS Act must be considered for the purpose of determining whether the Applicant was residing in Australia, and therefore an Australian resident at the relevant times. A single factor should not be taken to be conclusive.
In that regard, Instruction 3.1.1.10 of the Guide provides that generally, the most weight will be given to the factor in section 7(3)(e) – the frequency and duration of the person’s travel outside Australia:
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 SS Act] section 7(3).
In Hafza v Director-General of Social Security [1985] FCA 201, the court found that the concept of residence includes two elements:
… physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever.
… a person does not necessarily cease to be a resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place.
Further, a mere subjective statement of intention to regard oneself as a resident of Australia is not sufficient. It needs to be assessed in light of all the other objective and corroborative evidence: Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 (Killick).
Finally, the concept of residence in section 7(2)(a) of the SS Act is to be distinguished from the concept of domicile, as the Tribunal observed in Goodfellow v Secretary, Department of Social Security [1992] AATA 301:
The concept of "residence" or where a person "resides" is different from that of his domicile which has acquired a specific meaning and which was adopted in social security legislation in earlier times. A person having a domicile in one country may stop living in that country and move his place of living to another country but still retain his domicile in that first country. It is possible that he may retain that original domicile whether or not he returns to live in that country although that will depend on the facts of the case. In ordinary language, however, he has ceased to reside in that country when he has set up home in another.
(Emphasis added.)
As for a person’s stated intention to reside in Australia, the Tribunal said in Killick:[35]
An applicant’s intention is an important consideration in determining his or her residence. The Tribunal has found that, where a person intends to be absent for a limited time and for a “singular passing purpose”, an absence of seven years is not necessarily incompatible with residence: Re Secretary, Department of Social Security and Mosca [1998] AATA 586.
However, a mere statement of intention is not sufficient. It needs to be assessed in light of all the evidence about the applicant’s circumstances in order to determine what weight it should be given.
…
… merely having in mind to return to Australia at some point is not sufficient.
[35] KilIick paragraph [21]-[22] and [66].
Section 7(3)(e) – The frequency and duration of the person’s travel outside Australia
The Tribunal considers it appropriate to address section 7(3)(e) of the SS Act first, given its flow on effect to the other relevant factors in section 7(3) of the SS Act.
The Guide at Instruction 3.1.1.10 relevantly states (emphasis added):
Frequency & duration of the person’s travel outside Australia
A person does not need to be continuously present in a country in order to be residing there. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away.
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
(Emphasis added.)
Since 25 February 2020, the Applicant has resided outside of Australia (in Indonesia) for significant periods, and has only visited Australia for shorter periods.[36]
[36] See Applicant’s movement records at R1, T17, pp 133 to 137.
From 25 February 2020 to 5 March 2023, the Applicant has spent approximately 70% of his time outside of Australia.[37]
[37] See Applicant’s movement records at R1, T17, pp 133 to 137.
The Applicant lodged his claim for JSP on 27 January 2023 (three days after the Applicant’s arrival in Australia) and his AP claim on 6 February 2023.
At the time of lodging his AP claim, the Applicant had been in Australia for approximately two weeks, following a previous 82-day absence.
The Applicant’s return to Australia on 24 January 2023 was for the purpose of lodging his claims for JSP (lodged on 27 January 2023) and transfer to AP (lodged on 6 February 2023).
The Applicant left Australia on 1 March 2023, immediately after reaching AP age and his AP becoming payable.[38]
[38] T17, 135.
The AAT1 concluded that between 25 February 2020 until the most recent return on 24 January 2023 and prior to the grant of AP, the Applicant was not an Australian resident.[39]
[39] R1, T2, p 14.
The AAT1’s predominant reason for finding the Applicant was not an Australian resident was the physical presence of the Applicant being outside of Australia more than inside Australia and the Applicant’s intention to treat Indonesia as his primary place of residence.[40]
[40] T2, 14.
On 1 March 2023, the Applicant was notified by letter that his AP had been granted from 28 February 2023. The Applicant then departed Australia again on the same day as that notification.
On 5 March 2023, the Applicant returned upon becoming aware of his AP suspension.
The Tribunal is satisfied that the Applicant’s dominant reason for being in Australia from 24 January 2023 was to lodge his AP claim.
The Applicant was living in Indonesia from 25 February 2020. The Applicant’s absences from Australia from 25 February 2020 were not short absences.
There is no evidence that the Applicant’s absence from Australia from 25 February 2020 were for any other purpose than to live in Indonesia indefinitely.[41]
[41] Although it is noted in the AAT1 decision at [22] that the Member recognised the COVID-19 pandemic, border closures and airline disruptions as impacting on the Applicant’s ability to travel (R2, T2, p 14).

After the Applicant was able to return to Australia on 15 April 2021 (which was after the COVID-19 pandemic had started), he still decided to return to Indonesia 119 days later on 13 August 2021, where he remained for an additional 267 days before his next return.
In Kocaburak and Secretary, Department of Social Services [2018] AATA 942 [40], the Tribunal observed that section 7(3)(e) normally attracts the greatest weight:
… Whilst the case law makes it clear that when making a determination there is no single factor which of itself is conclusive, the majority of cases and the Guide place most weight on time spent in Australia. Additionally, the Guide also states that taken in isolation, a three-year continuous absence would be the upper limit considered as residing in Australia unless there are special circumstances delaying return. The case law clearly articulates that the purpose of an overseas absence is relevant as an indication of whether a person continues to reside in Australia.
(Emphasis added.)
In Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 [17] – [19], Deputy President Hotop decided:
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 s7(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.
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 s1220(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.
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.
The Respondent contended and the Tribunal agrees that:
(a)The frequency and duration of the Applicant’s international travel with shorter returns to Australia weighs strongly in favour of a finding that the Applicant did not reside in Australia from 25 February 2020.
(b)The Applicant’s return to Australia on 24 January 2023 was for the purpose of lodging his JSP and AP claims. Therefore, the Applicant did not resume residing in Australia on this date.
Section 7(3)(a) – The nature of the accommodation used by the person in Australia
For a person to be residing in a country, they must have a settled home in that country. It need not be the person’s only home, but it must have some degree of permanence: Taslim v Secretary, Department of Family and Community Services (2004) 37 FCR 70.
The Guide at Instruction 3.1.1.10 relevantly provides:
People who spend considerable time overseas will need to provide evidence that they still maintain strong connections to Australia. One consideration is the nature of the accommodation used by the person in Australia and overseas. The aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country and that they have made arrangements for an extended period of accommodation in Australia.
Having legal title to a house that a person ordinarily lives in is a good indication that a person resides in that country. If the person pays rent for public or private housing this is also a good indication that the person intends to live in that country. In such cases the term of the lease may be a good indicator of how permanent their accommodation is.
In general, shared or hotel accommodation is considered temporary and is a low indicator that the person resides in that country. However it needs to be recognised that many people receiving a social security payment have very few assets and do not have formal living arrangements. For example in some cases informal shared accommodation (e.g. with family) is a normal and indefinite arrangement. The lack of formal living arrangements simply means the other criteria at SSAct section 7(3) have greater significance.
…
Example 2: Kevin sold his home in Australia 6 years ago and lived in Fiji with his second wife who inherited the house from her parents. He separated from her when she decided not to come to Australia to live. Kevin is staying with his adult children in different parts of Australia and hasn't decided where exactly to settle but has transferred money back to Australia to buy a house in the near future. In the last year he has only been outside Australia briefly to visit his daughter from his second marriage. He stays in a hotel when back in Fiji. Although Kevin now uses short-term accommodation in both countries, he is considered to be now residing in Australia as a former resident, based on his demonstrated intention to settle in Australia, his transfer of assets, his family relationships and the length of time he has now been back in Australia.
In his transfer to AP lodged on 6 February 2023,[42] the Applicant stated that his permanent address was [street number and name, suburb], WA. In his earlier JSP claim lodged on 27 January 2023, the Applicant stated that he lived in accommodation where he paid lodgings of $120 per week to his daughter.[43]
[42] R2, T7, p 96.
[43] R2, T5, p 90.
When corresponding with the ARO regarding his living arrangements, it was recorded that:[44]
[He] sold a property in 2019 and walked away with $12,000 from the sale. [He] sold the property with the intention of travelling overseas, as [he] could not afford to keep a mortgage at the same time.
[He] said [his] ex-partner lives in Seminyak. [He] [was] residing with his ex-partner and their 3 children.
[44] T15, 117.
When giving evidence to the AAT1 regarding his living arrangements, the Applicant stated:[45]
Mr Taylor said that he has no assets in Australia. Everything has been sold. When he returns to Australia, he lives with his adult children who really don’t have the space or time for him. He has no home in Australia.
[45] T2, 13.
The AAT1 concluded that:[46]
Mr Taylor’s presence in Indonesia, and a maintenance of a single residence in Indonesia, and no clearly identifiable residence being maintained in Australia, weighs towards Mr Taylor being seen as living, or residing, in Indonesia prior to his claim for age pension. The tribunal finds the weight of evidence suggests that Mr Taylor was not residing in Australia for most of the period from February 2020.
[46] T2, 14.
The nature of the accommodation utilised by the Applicant in Australia at the time of his AP claim is to be compared with the permanent residence that he has established in Indonesia. For the limited periods that the Applicant has been in Australia since 25 February 2020, he has temporarily stayed at his children and their family’s homes paying lodgings. In contrast, when living in Indonesia, the Applicant has lived either by himself or with his former wife and children and considers his wife’s home as his home.[47]
[47] T16, 127.
Overall, the Respondent contended and the Tribunal agrees that:
(a)The nature of the Applicant’s permanent residence in Indonesia as compared to his temporary accommodation in Australia, weighs strongly in favour of a finding that the Applicant did not reside in Australia from 25 February 2020.
(b)It also supports a finding that the Applicant had actively severed his accommodation commitments in Australia before his departure from Australia on 25 February 2020.
(c)There is no evidence that the nature of the Applicant’s accommodation in Australia changed on his return to Australia on 24 January 2023.
Section 7(3)(b) – The nature and extent of the family relationships that person has in Australia
The Guide at Instruction 3.1.1.10 relevantly states:
The term family member is not defined in SSAct section 7(3), however in general it will include the person's spouse, children, parents, brother, sister etc.
Just having a family member in a country does not constitute strong evidence that the person is residing in that country. In order to determine the level of connection to a family member the main guide is to look at how much time the person spends with them in Australia or overseas.
Strong weight should be given to where the person's immediate family is residing, or where the person is providing a significant level of care for a member of their family or where the person spends the most amount of time with their family. Conversely, having family in Australia where a person merely maintains a casual relationship over the phone or internet does not constitute significant ties to those family members. Similarly communicating with family in other parts of the world does not make that person a resident of those countries.
In cases where the person's immediate family such as a spouse and children live overseas and only extended family live in Australia, more weight should be given to the fact that the person's immediate family is overseas. Generally a person would be regarded as having stronger ties to their dependent children than to other family members they may have caring responsibility for. To make a decision on where a person lives it is necessary to look at where their partner and children are and how settled they are there. In some cases a person may have 2 families, one being from a previous relationship. In these situations, the focus must be on the family that the person is spending more time with.
The ARO recorded of the Applicant:[48]
During our conversation you said your ex-partner lives in Seminyak. You were residing with your ex-partner and their 3 children. You love the children dearly, and your ex-partner want to recommence a relationship. They are very upset and want you to return to Indonesia. You said you would also like to re-establish a relationship with your ex-partner.
[48] R2, T15, p 118.
The Applicant told the AAT1 at paragraph [16] that:[49]
[The Applicant] has children in Australia and his mother lives in a retirement facility. He has little to do with them and [the Applicant] stated he has been abandoned by his children. He stated that he always helped his children whilst they were growing up and settling down but they have now forgotten him in his time of need. His mother is elderly and lives in supported accommodation. She cannot support him or provide accommodation.
[49] R2, T2, p 13.
The AAT1 recorded at paragraph [17] of the decision that the Applicant has a partner and stepson. He was stated to say that he has many friends and his “life is over there. [his] home, [his] clothes, [his] family….”[50]
[50] T2, 13.
The Applicant has not provided any further evidence of his relationship with his children who reside in Australia.
There is no evidence that the Applicant provides any care to these children, their partners, his grandchildren or his mother during his short visits to Australia or otherwise.
In comparison, the Applicant has a partner in Indonesia with whom he lives. It is accepted there is limited evidence before the Tribunal regarding this relationship.
In the Applicant’s application for review dated 11 April 2023, the Applicant advised the following:[51]
I have for the last 3 years been in a relationship in Indonesia and live in my wife’s home, being my Indonesian family home in Sumatra. Now living out of a suitcase from family members home to another…By receiving my full pension, I would still be able to return to Australia to visit my family including my elderly mother….By granting me to continue receiving my age pension and return to Indonesian family would be beneficial to my health and wellbeing, due to weather and support I will have.
(Emphasis added.)
[51] T16, 123.
The available evidence of the Applicant’s living and travel arrangements indicate he spends more time with his “Indonesian family” – his partner and her children – than he does ‘visiting’ family in Australia. Hence, the Tribunal gives more weight to the relationship the Applicant has with his partner and her family in Indonesia than those relationships he maintains in Australia.
The Applicant’s biological children are no longer dependent on him and the Applicant’s mother is in supported accommodation.
As such, the Tribunal finds that:
(a)The Applicant did not reside in Australia on 25 February 2020;
(b)On the limited evidence as to the nature of the Applicant’s relationships in Australia prior to his departure on 25 February 2020 (and also his subsequent departure on 2 November 2022), the Tribunal cannot be satisfied that he is close with his Australian relations; and
(c)There is no evidence the nature of the Applicant’s relationships in Australia changed on his return to Australia on 24 January 2023.
Section 7(3)(c) – The nature and extent of the person’s employment, business of financial ties with Australia
The Guide at Instruction 3.1.1.10 relevantly states:
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.
Care should be taken to ensure that poverty and lack of employment are not counted against a person's claim to be residing in Australia. The lack of employment, business or financial ties simply means the other criteria at SSAct section 7(3) have greater significance.
(Emphasis added.)
A letter from Mr Geoff Harwood, Derby Lodge Director, dated 27 January 2023[52] advised that the Applicant was working in the capacity of a casual housekeeper and kitchenhand.[53] The Applicant voluntarily ceased work on 1 November 2022, being the day before the Applicant departed Australia for Indonesia.[54]
[52] R1, T6, p 95.
[53] R1, T2, p 13.
[54] T6, 95.
In the Applicant’s JSP claim dated 27 January 2023, the Applicant advised he commenced work on 19 May 2022 and ceased work with Derby Lodge on 26 October 2022 because there were not enough work hours.[55] The Respondent noted that this is inconsistent with Mr Harwood’s letter and his departure from Australia on 2 November 2022.
[55] T5, 91.
In the Applicant’s evidence to the AAT1:
(a)The Applicant did not disclose any employment or business ties with Australia or Indonesia.[56]
(b)The Applicant additionally disclosed that he has bank accounts in both Australia and Indonesia but has no other financial ties in either country.[57]
[56] T2, 13.
[57] T2, 13.
The extent of the Applicant’s financial ties with Australia are that he maintained an Australian bank account into which his JSP and Australian AP was paid.
While the Applicant’s casual employment with Derby Lodge from May to November 2022 weighs in favour of the Applicant being an Australian resident during this period, the Respondent noted the Applicant did appear to be sending funds “home” to Indonesia.
Aside from this period, there is no evidence of the Applicant having more substantial business, employment, or financial ties with Australia over Indonesia in the periods from 25 February 2020 to May 2022 or from 2 November 2022 to 5 March 2023.
Section 7(3)(d) – The nature and extent of the person’s assets located in Australia
The Guide at Instruction 3.1.1.10 relevantly states:
Owning assets in Australia may also assist in the determination that a person is residing in Australia. However, by itself this would not be a conclusive determinant. If a person owns a house which has been rented out for a short period this could indicate that the person is only overseas temporarily and intends to return to Australia. A person may also be temporarily keeping their furniture or personal items such as clothes in storage, which is another indicator that they are only overseas temporarily. Conversely the sale or gifting of assets such as a car, furniture, or family home prior to leaving Australia, would be a strong indicator that the person has left Australia to live overseas for an extended period of time.
Owning assets for investment purposes may not necessarily indicate that the person is residing in Australia. The key is to establish the extent of a person's assets in Australia and whether the presence of these assets in Australia indicates that they have an ongoing connection to Australia. In many cases because of lack of income and poverty a person will have only very limited assets either in Australia or overseas. In these cases more weight should be placed on the other factors listed in SSAct section 7(3).
In his JSP claim, the Applicant indicated he was not paid any income or he did not hold any assets in Australia.
The Applicant has provided no evidence that he holds any other assets in Australia.
The Applicant indicated to the AAT1 that he contributed to the construction costs of the home in Indonesia with his partner and contributes to ongoing utilities.
As the Applicant does not have assets in Australia and he claims everything of value is located in Indonesia, the Respondent contended and the Tribunal agrees that this weighs in favour of a finding that the Applicant did not reside in Australia from 25 February 2020.
There is no evidence to indicate the nature of the Applicant’s assets in Australia changed on his return to Australia on 24 January 2023.
Section 7(3)(f) – Any other matter relevant to determining whether the person intends to remain permanently in Australia
Regarding ‘permanently’ in subsection 7(3)(f) of the SS Act, Branson J held in Secretary, Department of Families and Community Services and Indigenous Affairs and Baccon [2006] FCA 773, that it requires the person to have an enduring commitment to Australia as home.
Instruction 3.1.1.10 of the Guide also relevantly states:
In general, when a person states that 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.

In Kim v Minister for Home Affairs [2020] FCCA 2528 (Kim), the Court considered the meaning of ‘temporary absence’ in the context of the Australian Citizenship Act 2007.
The Respondent contended that while this legislation and the SS Act are for different purposes, Kim is analogous in that it considers the meaning of residence:[58]
…Whether a person is ordinarily resident in Australia is a question of fact and degree. In Kim Gleeson J cited (at [16]) the Supreme Court of New Zealand’s remarks in Geothermal Energy NZ Ltd v Commissioner of Inland Revenue [1979] 2 NZLR 324 at 341 as to the broad meaning of “home” as:
“Home” is where the heart is; it is the location of the axis around which for the present, the normal course of one’s life revolves. Put another way, it is the place where the centre of gravity of one’s domestic life is to be found ...
Importantly, according to Foster J, a person’s permanent abode is merely “the place where he or she regularly or customarily lives” (Lee at [98]). This was not disputed by the Respondent.
[58] Kim paragraph [123]-[124].
In the Applicant’s age pension claim lodged on 6 February 2023, the Applicant acknowledged residing in Indonesia from 1 February 2020 to 14 April 2021, and from 2 November 2022 to 23 January 2023.[59]
[59] T7, 97.
While the Applicant claims to have been residing in Australia from 24 January 2023, the Respondent contended that on the balance of the above evidence, the Applicant was not an Australian resident from 25 February 2020 and only returned to Australia on 24 January 2023 to lodge his claim for JSP and AP, noting he departed to Indonesia on 1 March 2023 shortly after being granted AP on 28 February 2023.
When the Applicant departed on 1 March 2023, he stated his intention was to return on 28 February 2024. The Respondent contended the Applicant's return on 5 March 2023 was due to the suspension of his AP.
The Applicant’s own evidence is that he lives in Indonesia because it is more economical, is better for his health and wellbeing due to the weather and emotional attachments.[60]
[60] T16, 123.
The Respondent contended and the Tribunal finds that the Applicant’s intention is clearly to remain living in Indonesia and that this was his intention at the time he departed Australia on 25 February 2020, when he lodged his transfer to AP on 6 February 2023, and when he departed Australia again on 1 March 2023.
The majority of the factors in subsection 7(3) of the SS Act weigh strongly in favour of a finding that the Applicant was not residing in Australia on 25 February 2020, well before he lodged his transfer to AP claim.
Notwithstanding that he remained an Australian citizen during that time, pursuant to subsection 7(2) of the SS Act, the Applicant will only be considered an Australian resident for social security purposes if he was also residing in Australia at that time.
The Tribunal therefore finds that that the Applicant was not an Australian resident on 25 February 2020.
The Applicant has remained in Australia since the suspension on 1 March 2023, having returned on 5 March 2023. This suggests that the Applicant did not recommence residing in Australia until 5 March 2023.
As the Tribunal has found that the Applicant was not an Australian resident on 24 January 2023, it has not gone on to consider the remaining issues set out at paragraph 2(b) above.
CONCLUSION
The Tribunal has found that the Applicant was not an Australian resident at the time he made his claims for JSP on 27 January 2023 and for AP on 6 February 2023.
As the Applicant was not an Australian resident on these dates, he would not have been able to lodge a claim for JSP or AP under section 29 of the SS Administration Act.
The Tribunal has also found that the Applicant was not an Australian resident between 25 February 2020 and 4 March 2023. Therefore, the Applicant was not entitled to receive AP during that period.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 20 June 2023 to suspend the Applicant’s entitlement to Age Pension from 1 March 2023, is set aside and substituted with a decision that the Applicant was not an Australian resident between 25 February 2020 and 4 March 2023.

I certify that the preceding 104 (one-hundred and four) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.......................[Sgd]...............................................
Associate
Dated: 18 September 2024

Date of hearing: 29 May 2024

Applicant’s Representative: Self-represented

Respondent’s Representative: Mr David McLaren of Mills Oakley

Date of hearing:	29 May 2024
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Mr David McLaren of Mills Oakley