Wornum and Secretary, Department of Social Services (Social security)
[2024] ARTA 322
•22 October 2024
Wornum and Secretary, Department of Social Services (Social security) [2024] ARTA 322 (22 October 2024)
Applicant/s: Ms Wornum
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/M190397
Tribunal: Member K Hamilton
Place:Brisbane
Date:22 October 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
SOCIAL SECURITY – Age Pension – residentially qualified – alternate qualification criteria for a widow – Australian resident – residing in Australia despite physical absence – owned residence overseas – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
This is an application for review of a decision made by Services Australia – Centrelink (Centrelink) to reject Ms Wornum’s claim for age pension on the basis that she was not residentially qualified.
On 23 March 2023 Ms Wornum applied for age pension. This claim was rejected by Centrelink. This decision is not before the Tribunal.
[In] July 2023 Ms Wornum departed Australia.
[In] April 2024 Ms Wornum returned to Australia and lodged a second claim for age pension. This claim was rejected by Centrelink on the basis Ms Wornum did not meet the residence requirements.
Ms Wornum sought internal review of the decision to reject her second claim for age pension. On 2 August 2024 an authorised review officer affirmed the decision.
Ms Wornum then applied to the Administrative Appeals Tribunal (AAT) for independent review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A hearing was held on 22 October 2024. Ms Wornum participated in the hearing by telephone and was represented by her daughter, [named]. The Tribunal was assisted by an interpreter in the Mandarin language.
The Tribunal had regard to the following material:
· relevant documents produced by Centrelink, numbered 1-140;
· additional documents submitted by Ms Wornum, numbered A1-A13; and
· a letter from Ms Wornum provided to the Tribunal on 14 October 2024.
ISSUES
10.The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
11.The issue which arises in this case is whether Ms Wornum was residentially qualified for age pension at the time of her second claim on 5 April 2024 and, in particular, whether Ms Wornum remained a resident of Australia during the period of her overseas absence from [July] 2023 to [April] 2024.
CONSIDERATION
12.Section 43 of the Act sets out the qualification requirements for age pension. Generally speaking, in addition to being of age pension age, a person must have 10 years of qualifying Australian residence or a qualifying residence exemption. Ms Wornum accepted at hearing that she does not have 10 years qualifying Australian residence or a qualifying residence exemption.
13.However, subsection 43(1A) of the Act provides an alternate criteria by which a widow may qualify for age pension. It requires that:
·the woman be of age pension age;
·the woman’s partner has died;
·both the woman and her partner were Australian residents when her partner died; and
·the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for age pension.
14.Section 7 of the Act contains the definition of “Australian resident”. It provides that a person is an Australian resident if the person is the holder of a permanent visa and “resides in Australia”.
15.Ms Wornum and her husband both held visa subclass 143, being a “contributory parent visa”. Ms Wornum’s visa was granted on 21 December 2017 and she then entered Australia [in] April 2018. A visa subclass 143 grants the holder the right to reside permanently in Australia.
16.Ms Wornum’s husband passed away [in] June 2022. At the time of his death, Ms Wornum and Mr Wornum were residing in Australia. Ms Wornum therefore satisfies subparagraphs 43(1A)(a) – (c) of the Act.
17.The question in the present case is whether Ms Wornum also satisfied subparagraph 43(1A)(d) of the Act. That is, was Ms Wornum an Australian resident for a continuous period of 104 weeks immediately before she lodged her claim for age pension on 5 April 2024.
18.As Ms Wornum was absent from Australia from [July] 2023 to [a date in] April 2024, I am required to consider whether Ms Wornum could be said to still be “residing in Australia” notwithstanding her physical absence from Australia. If Ms Wornum was not residing in Australia during this period, she would not meet the requirement to have 104 weeks of continuous Australian residence immediately prior to 5 April 2024.
19.Subsection 7(3) of the Act contains a list of factors that must be considered by a decision-maker when determining whether a person is residing in Australia. It is generally accepted that a consideration of the converse of those factors is also relevant to the determination of whether or not a person is residing in Australia.
20.In Hafza v Director-General of Social Security (1985) 60 ALR 674, Wilcox J stressed that a decision maker needed to identify whether a person has retained a “continuity of association” with a place together with an intention to return “and an attitude that that place remains ‘home’” (at 680-681):
There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept 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. The concept was explained in a taxation case, Koitaki Para Rubber Estates Ltd v FC of T (1941) 64 CLR 241 at 249, by Williams J: “The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.”
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily (see Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains “home” (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe, firstly, that a person may simultaneously be a resident in more than one place — see the facts of Lysaght and the reference by Williams J to “a home or homes” — and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as “home”, a change of intention may be decisive of the question whether residence in a particular place has been maintained.
Issue 1 – Was Ms Wornum an Australian resident for a continuous period of at least 104 weeks ending immediately prior to 5 April 2024?
21.In considering whether Ms Wornum remained an Australian resident in the period [July] 2023 to [April] 2024, the Tribunal had regard to each of the factors listed in subsection 7(3) of the Act.
Nature of accommodation used by the person in Australia
22.Paragraph 7(3)(a) of the Act requires consideration of the nature of the accommodation used by the person in Australia.
23.Ms Wornum told the Tribunal that prior to her husband’s death, they resided in a rental unit. After Mr Wornum’s death, and because Ms Wornum was ineligible for age pension, she was not able to stay in this unit or secure her own alternate accommodation.
24.Ms Wornum then moved in with her daughter and her daughter’s family. When in Australia, Ms Wornum stays with her daughter. She took with her to her daughter’s house some furniture, including her bed, and household items such as cookware. Her possessions stay in her daughter’s home when Ms Wornum is absent overseas.
25.Ms Wornum owns an apartment in [Country 1] which she and her husband purchased more than 30 years ago, prior to Ms Wornum’s retirement. The apartment is fully furnished and Ms Wornum left all her furniture and household possessions in this apartment when she migrated to Australia. Ms Wornum stays in her own apartment when she is in [Country 1]. She does not rent out her apartment at all during periods she is not in [Country 1].
26.While Ms Wornum has stable accommodation in both Australia and [Country 1], she owns a fully furnished apartment in [Country 1] whereas in Australia she stays in her daughter’s home. This factor weighs against a finding that Ms Wornum remained an Australia resident during her absences from Australia.
Nature and extent of family relationships the person has in Australia
27.Paragraph 7(3)(b) of the Act requires a consideration of the nature and extent of family relationships in Australia.
28.Ms Wornum told the Tribunal that her daughter, son-in law and 2 grandchildren (aged 7 and 13) live in Australia. She lives with them and assists her daughter with the children including doing some school pick-ups and drop-offs and minding the children after school.
29.Ms Wornum’s mother and 4 siblings live in [Country 1]. Ms Wornum travels to [Country 1] frequently to help take of her mother who is of an advanced age. Ms Wornum does not see her siblings often when she is in [Country 1], but her siblings take turns to care for their mother.
30.Ms Wornum has close family ties in both Australia and [Country 1], and this factor does not weigh strongly either for or against a finding that Ms Wornum remained a resident of Australia. However, on balance, Ms Wornum’s closer ties with her daughter and grandchildren would tend to support a finding that she continued to be an Australian resident.
Nature and extent of the person’s employment, business or financial ties
31.Paragraph 7(3)(c) requires analysis of the nature and extent of a person’s employment, business or financial ties.
32.Ms Wornum has been retired for a number of years and has no employment or business ties in either Australia or [Country 1]. Consideration of this factor does not weigh strongly either for or against a finding that Ms Wornum remained a resident of Australia.
Nature and extent of the person’s assets
33.Paragraph 7(3)(d) provides for consideration of the nature and extent of a person’s assets located in Australia.
34.As noted above, Ms Wornum owns an apartment in [Country 1] which is fully furnished. She does not own any real property in Australia but has a small amount of furniture and personal possessions in her daughter’s home. She does not own a car either in Australia or [Country 1].
35.[The representative] told the Tribunal that her mother wanted to sell the apartment in [Country 1] but was not able to do so until a project to install a lift in the building was finished. Ms Wornum does not rent out the apartment when she is not in [Country 1] as there is no demand and she would not get a high enough rental to cover the costs of having a tenant. Since the lift has been installed in the building, Ms Wornum’s elderly mother is now living in the apartment.
36.Ms Wornum is also entitled to a state pension from [Country 1]. She receives approximately [Country 1] [amount] per month and is paid this pension whether she is living in [Country 1] or overseas.
37.Ms Wornum holds a number of bank accounts with [Bank 1]. She holds money in both Australian dollars (AUD) and [Country 1 currency]. Ms Wornum’s claim form discloses 5 Australian bank accounts, 3 held with [Bank 1] and 2 with [Bank 2]. One of the [Bank 1] accounts supports a number of term deposits, totalling over AUD$110,000 (as at March 2024); the remaining Australian accounts have negligible balances.
38.Centrelink’s papers disclose at least 4 [Bank 1] accounts, described in Ms Wornum’s claim form as “overseas savings accounts”, where funds are held in [Country 1 currency]. This includes Ms Wornum’s account in which her monthly [Country 1] pension is deposited, an account for term deposits totalling [amount], and a further account holding [amount].
39.[The representative] noted that the ARO has incorrectly stated that most of Ms Wornum’s liquid assets are held in overseas bank accounts. [The representative] said this is not correct; all of her mother’s accounts were opened with the [Bank 1] [named] Branch in Australia. There are more funds held in Australian accounts than in the overseas accounts ([amount] being equivalent to approximately AUD$27,500).
40.[The representative] said that the reason funds are still held in [Country 1 currency] is because there are strict restrictions on transferring money from [Country 1] overseas, with an annual limit of AUD$50,000 applying. Ms Wornum has been transferring money from [Country 1] to her Australian accounts since migrating to Australia.
41.While the bulk of Ms Wornum’s liquid assets are held in Australian dollars, the extent of Ms Wornum’s assets in [Country 1], which include her furnished apartment, are more substantial than those in Australia. She also receives an ongoing monthly [Country 1] government pension. Consideration of this factor weighs against a finding that Ms Wornum remained a resident of Australia.
Frequency and duration of travel outside of Australia
42.Paragraph 7(3)(e) requires consideration of the frequency and duration of the person’s travel outside Australia.
43.Immigration data shows that Ms Wornum, from the time she was granted a permanent visa, travelled outside Australia in the following periods:
· [November] 2017 to [April] 2018;
· [October] 2018 to [November] 2018;
· [December] 2018 to [April] 2019;
· [November] 2019 to [May] 2021; and
· [July] 2023 to [April] 2024.
44.Between the date on which her visa was granted on 21 December 2017 and the date of her second claim for age pension on 5 April 2024, Ms Wornum had spent 1,057 days outside of Australia and 1,241 days inside Australia.
45.[The representative] pointed out that Ms Wornum’s absence from [November] 2019 was much longer than intended due to the COVID-19 pandemic. Ms Wornum provided evidence indicating that she and her husband originally had flights booked to return to Australia in April 2020, however these flights were cancelled due to the pandemic.
46.Ms Wornum also advised the Tribunal that Ms Wornum’s absence from [July] 2023 was also longer than anticipated. She travelled to [Country 1] in 2023 to assist her elderly mother and to finalise aspects of her late husband’s estate. She had intended to return to Australia around October 2023 as she required a follow-up appointment from an earlier eye surgery. Ms Wornum did not, however, book any return flights to Australia when arranging her travel for July 2023.
47.Ms Wornum said that it took much longer than expected to finalise her husband’s financial and property affairs in [Country 1]. She then also had to stay longer as work had commenced on installing an elevator in her apartment building, and access to Ms Wornum’s apartment was needed to connect the elevator to the apartment.
48.Ms Wornum has frequently travelled to [Country 1] and stayed for lengthy periods, however has spent more time in Australia than in [Country 1]. On balance this factor would tend to support a finding that Ms Wornum was an Australian resident.
Any other matter relevant to determining whether the person intends to remain permanently in Australia
49.Paragraph 7(3)(f) requires consideration of any other matter relevant to determining whether the person intends to remain permanently in Australia.
50.Ms Wornum stressed to the Tribunal that she sees Australia as her home. She enjoys her life in Australia and helping her daughter out around the home and with her grandchildren. She receives support from community age carers. Her siblings in [Country 1] are elderly and cannot take care of her. Her frequent travel to [Country 1] is largely because of cultural expectations that she participate in the care of her own elderly mother.
51.This matter is finely balanced, with factors weighing both for and against a finding that Ms Wornum remained an Australian resident. Overall, however, and particularly having regard to Ms Wornum’s assets held in [Country 1] including a residence which she owns and lives in while in [Country 1], I find that Ms Wornum was not an Australian resident during her absence from Australia from [July] 2023 to [April] 2024.
Issue 2 – Was Ms Wornum qualified to receive age pension?
52.As Ms Wornum was not an Australian resident for a continuous period of at least 104 weeks immediately prior to claiming age pension on 5 April 2024, she was not qualified for age pension under subsection 43(1A) of the Act. Centrelink’s decision to reject Ms Wornum’s claim for age pension lodged 5 April 2024 was therefore correct.
Other matters
53.[The representative] noted at hearing that at the time of Ms Wornum’s first claim for age pension lodged on 23 March 2023, the period of time that Ms Wornum had been continuously residing in Australia was less than 2 months short of the required 104 weeks. Ms Wornum lodged her claim for age pension early as she understood the process for a grant of age pension could be slow. Her claim was not finalised until August 2023, at which time she was overseas and she was then told she had to wait until she returned to Australia to make a new claim.
54.When Ms Wornum left for [Country 1] on [July] 2023, she had a total of 115 weeks of continuous residence in Australia. She thinks this should have been taken into account when Centrelink was assessing her claims for age pension.
55.As noted above, the rejection of Ms Wornum’s claim of 23 March 2023 is not before this Tribunal. It is open to Ms Wornum to request a Centrelink authorised review officer to review the rejection of her first claim and consider whether the early claim provisions can apply in Ms Wornum’s circumstances.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | Tuesday, 22 October 2024 |
| Representative for the Applicant: | [Named] |
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