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

[2021] AATA 5284

Taylor and Secretary, Department of Social Services (Social services second review) [2021] AATA 5284 (10 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/1062

Re:TAYLOR

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:10 September 2021

Date of written reasons:        13 October 2021

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 10 September 2021, the Tribunal decides that the decision under review dated 2 February 2021 is affirmed.

.............................[SGD]...........................................

Senior Member M J McGrowdie

CATCHWORDS

SOCIAL SECURITY – Aged Pension – portability rate - residency requirements - 26 week period of absence - COVID-19 provisions for extension of period - whether Applicant satisfies section 7(3) indicia of residency - where Applicant has significant history of travel - decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

CASES

Taylor v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931

SECONDARY MATERIALS

Social Security Guide

WRITTEN REASONS FOR ORAL DECISION

Senior Member M J McGrowdie

13 October 2021

1. The applicant, Mr Taylor, is presently living in the Philippines. He has the benefit of an aged pension from the Australian government. This pension is being calculated at a portability pension rate under the social security legislation.

2. This is a lower rate than the full aged pension rate for persons who reside in Australia and who have not been absent from Australia for a continuous period of more than 26 weeks, subject to some degree of leeway given by COVID-19 amendments in certain circumstances.

3. The issue in this matter is whether the applicant is entitled to the aged pension at the full rate. Further issues are whether the applicant is a resident of Australia for the purposes of the legislation during the relevant period under consideration and whether he was prevented from returning to Australia within 26 weeks of his last departure from Australia due to the COVID-19 pandemic.

4. There is no issue in the proceedings that the rate Mr Taylor is being paid is the correct rate for the portability rate. Mr Taylor is a citizen of New Zealand and according to what he has said to the Tribunal, lived for many years in Australia from possibly the mid-1980s and certainly according to immigration records, since 1999.

5. Mr Taylor was living in Australia as the holder of a subclass 444 special category visa. He has been on the aged pension from 29 October 2008. Since being granted the aged pension, he has had many absences overseas. It would appear from the evidence that the applicant has essentially been living in the Philippines from mid-2019.

6. The relevant period to be considered in this matter is the period from 16 November 2019 to 16 March 2020. It was on 16 November 2019 that the applicant was last in Australia and left to return to the Philippines.

7. Section 1220A(1) of the Social Security Act 1991 (Cth) makes provision for the payment of the aged pension at the portability rate and is to be contrasted the payment of the pension at the full rate. If a person is continuously absent from Australia for more than 26 weeks then, generally, it is the portability rate which applies. Mr Taylor did not return to Australia before the end of the 26 week period, that is, by 16 May 2020. The applicant has not returned to Australia since his departure in November 2019. The reason given by Mr Taylor for not returning to Australia before 16 May 2020 was because of the effects of the COVID-19 pandemic.

8. Due to the COVID-19 pandemic, a ministerial determination was made on 10 June 2020 which allowed for an extension of the 26 week period for persons who were unable to return to Australia due to the COVID-19 pandemic.

9. The COVID determination provided for an amendment of section 1220A of the Act by inserting section 1220A(6)(c) allowing for an extension of the 26 week period if the person’s absence from Australia was temporary and they were unable to return to Australia before the end of that 26 week period because of the impact of the Coronavirus known as COVID-19.

10. According to Mr Taylor, he was precluded from returning to Australia on or before 16 May 2020 because of the impact of COVID-19.

11. Mr Taylor has been living on a small island in the Philippines and the nearest airport is at Butuun, about a two hour journey by bus.  From Butuun one could normally take a flight to Cebu Airport and on to Manila or fly directly to Manila. From Manila there would be flights to Australia. The applicant has given evidence that for all practical purposes, it was impossible for him to get a flight back to Australia before the 26 week period expired because of COVID. Firstly, he said buses weren’t running from where he lives to Butuun and that it would’ve been difficult, if not impossible, for him to have flown from Butuun to Manila.

12. He produced an undated letter from a travel agency that all domestic flights had been cancelled around that time. The respondent obtained and submitted Australian Embassy COVID-19 updates with details of flights from the Philippines to Australia at the relevant time. It is clear from those records that there certainly were some flights from Manila to Sydney with what is referred to as sweeper flights from Cebu.

13. The embassy updates also provided flight details for flights leaving Manila and gave an approximate cost of the Manila to Sydney flight of approximately $1,000 Australian dollars. Leaving the embassy updates to one side, it was the applicant’s evidence there may have been some flights out of Manila but they were at an exorbitant cost for a passenger ticket.

14. He estimated the cost of travel, should such a flight have been available, to have been in the region of $10,000 or more, including getting to Manila and the cost quarantine accommodation in Australia.

15. The information provided by the Australian Embassy would certainly be very useful for an experienced person in accessing and acting upon Australian Embassy updates but would probably be difficult for the ordinary person. There is also the difficulty of Mr Taylor having to get from where he lived to Butuun Airport and from there to Cebu or Manila.

16. Whilst it may not have been impossible for him to have travelled to Australia by 16 May 2020 it would have been a very daunting prospect. The evidence is not entirely clear how the journey would’ve been undertaken successfully from where the applicant lived to eventually arrive in Australia.

17. Whether or not the applicant was precluded from travel to Australia because of the pandemic, the ‘Covid exemption’ only applies to persons who can be regarded as an Australian resident. In determining whether or not the applicant was a resident of Australia requires consideration of the matters set out in section 7(3) of the Act.

18. Section 7(3) of the Act provides that in deciding for the purposes of the Act whether or not a person is residing in Australia regard must be had to six matters. They are the matters set out in section 7(3)(a) to (f), and include regard being had to the nature of the accommodation used by the person in Australia, the nature and extent of family relations that the person has in Australia, the nature and extent of the person's employment, business or financial ties with Australia, the nature and extent of the person's assets in Australia, the frequency and duration of the person's travel outside Australia, and any other matters relevant in determining whether the person intends to remain permanently in Australia.

19. Instruction 3.1.1.10 of the Social Security Guide provide guidelines to decision-makers in determining the question of residence. In particular the instruction refers to considering the position of people who spend considerable time overseas and the need for those persons to provide evidence that they still maintain strong connections to Australia. It goes on to provide that the aim is to establish that the person has more settled or permanent accommodation in Australia than in any other country.

20. The applicant previously owned a home in Australia when he was living with a partner here. However, that relationship broke down and the property was sold. The applicant has no blood family in Australia. He has a son who lives in England and a daughter who lives in Ireland. His wife from whom he has been separated for many years also lives in Ireland. The applicant has a bank account in Australia into which his pension is paid, but he has little funds in that account and does not have property in Australia. On his visits to Australia from the Philippines he has stayed with very close friends who he would tend to regard as being like family and who live on the Gold Coast in Queensland.

21. When one looks at the applicant's travel records in the year 2016 he spent 71 days in Australia. In 2017 he spent eight days in Australia. In 2018 he spent two days in Australia. In 2019 he also spent two days in Australia. He says he was given to understand from Centrelink that as long as he touched base in Australia once each six months his pension would continue at the full rate, and it appears that this is what continued to happen until more recent times when the applicant's file was reviewed, and the conclusion reached that the applicant was not a resident of Australia. This was also the view of the authorised review officer of Centrelink who reviewed the applicant's file.

22. The applicant gave evidence that he was a person who liked to travel, that he would travel to Ireland, that he would travel to England, to New Zealand and Australia whilst at the same time having accommodation which he occupied in the Philippines. The applicant did not seek to say that he did other than make sure he returned each six months to be able to satisfy the not more than 26 week absence from Australia.

23. There is no dispute that the applicant did not return to Australia by 16 May 2020, which was the date 26 weeks after his most recent departure from Australia. The respondent tested whether or not it was the case that the applicant may currently be in a relationship with a lady in the Philippines. The applicant said he has had various relationships with women there, but none on a permanent basis and not at the present time.

24. When the applicant's application came before the Social Services and Child Support Division of the tribunal the applicant gave evidence, and at the conclusion of the hearing a decision was made on 2 February 2021 to the effect that the decision under review be affirmed. In the course of giving evidence before the tribunal in the first instance, which I will refer to as AAT1, the applicant indicated to the member that he regarded Australia as his home, that he had formed a relationship with a lady in the Philippines, and that they wanted to come here together, she having first secured a visa before that could happen, and that they would make Australia their home and that that was his partner's dream.

25. In the course of the hearing before me the applicant indicated that he was not quite sure why he did say that to the Member in the earlier hearing because that was not the position. In the current matter his evidence was that it was now his intention to rekindle his marriage with his estranged wife who lives in Ireland and for them to settle in Australia. There is nothing before the tribunal from the applicant's wife. Although it might be an aspiration of the applicant, there is the lack of any precise plan in place.

26. The applicant said that he has interests in publishing his writings in the field of education in Australia and has recently made approaches to a number of publishing companies to further his interest in publishing in Australia. Again, there is nothing firmly in place in this regard. He had previously conducted a business in the Philippines providing education services and often facilitated the travel of Filipino students to Australia to continue their studies.

27. There is nothing to indicate that the applicant's accommodation in Australia is anything other than a temporary arrangement which he has with close friends such that he can stay there for a short period when he has travelled to Australia as previously. Also relevant is that between 1 January 2016 and 12 May 2021, the applicant spent 1,854 days out of 1,958 days out of Australia. That equates to nearly 95%.

28. In Taylor v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 Deputy President Hotop determined that:

    … the factors which are most significant in determining whether the applicant continued to reside in Australia within the meaning of section 7(2)(a) of the Act in the period immediately prior to his return to Australia on 8 December 2019 and the nature and duration of his absence from Australia in that period.

    (Nb. The applicant in that case is not the applicant in the current case)

29. Instruction 3.1.1.10 of the Guide is also relevant. It provides that 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.

30. I have reviewed in particular the period from 2016 with the conclusion that the applicant has spent very little time relatively speaking in Australia.

31. The applicant has now been living in the Philippines for some considerable time. I accept that he may have an aspiration of making Australia his home at some point of time. It appears to me that at the present that is simply an aspiration. Should it be realised then Mr Taylor could then seek to qualify for the full rate of pension. However, I conclude that in respect of this Application, the applicant cannot properly be regarded as a person who resides in Australia, having reference to the indicia in section 7(3) of the Act. Accordingly, I affirm the decision made by the tribunal; that is in AAT1 on 2 February 2021.

I certify that the preceding 31 (thirty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

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Associate

Dated: 13 October 2021

Date(s) of hearing:	25 June, 17 August & 10 September 2021
Applicant:	In person
Advocate for the Respondent:	Dr S Thompson, Sparke Helmore