YLRG and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 1536

YLRG and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1536 (26 August 2025)
Applicant:YLRG
Other Parties: Secretary, Chief Executive Centrelink
Tribunal Number: 2024/7552
Tribunal:Senior Member T Hamilton-Noy (second review)
Place:Melbourne
Date:26 August 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 26 August 2025 at 9:55am
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) – 201(1B) of the Social Security (Administration) Act 1999.

Catchwords
Disability support pension rejection – whether residing in Australia – extended periods outside Australia – wife and children in third country – no business or financial ties to Australia – no stable accommodation in Australia – no assets in Australia – decision to reject claim affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 831
Statement of Reasons
Background

This matter relates to the Applicant’s qualification for disability support pension and, in particular, whether he meets the residency requirements to qualify for the payment.
The Applicant lodged a claim for disability support pension with the Respondent (Services Australia – Centrelink) on 16 January 2023. The claim was initially rejected by an employee of Centrelink on 28 February 2023 on the basis that the Applicant did not meet the medical qualification to be paid disability support pension. This decision was affirmed by an authorised review officer of Centrelink on 26 July 2023 and by the Administrative Appeals Tribunal (the AAT) at first review on 19 September 2023.
The Applicant then sought a second review of the decision by the AAT and, on 14 March 2024, the matter was settled by consent. The terms of the consent agreement were that the Applicant satisfied the medical qualification requirements for disability support pension as of 16 January 2023, when the claim was made, and that payability was subject to him meeting all other qualification requirements.
On 22 April 2024, an employee of Centrelink decided to reject the Applicant’s claim, made on 16 January 2023, on the basis that he did not meet the residency requirements to qualify for the payment. This decision was affirmed by an authorised review officer of Centrelink on 29 April 2024 and by the AAT at first review on 21 August 2024.
The Applicant sought a second review of the decision on 1 October 2024.
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 (Cth) (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.
The Tribunal held a hearing in this matter on 24 July 2025. The Applicant and Respondent both participated in the hearing by MS Teams video. At the hearing, the Tribunal had documents that had been provided by the Applicant and Respondent, the relevant parts of which are referred to further below. The parties confirmed they had each received the same documents the Tribunal had before it.

Issues and relevant law

The qualification requirements for disability support pension are set out in section 94 of the Social Security Act 1991 (Cth) (the Social Security Act). In addition to meeting the qualification requirements in the Social Security Act, Division 1 of Part 3 of the Social Security (Administration) Act 1999 (Cth) (the Social Security Administration Act) sets out the requirements for making a claim for a social security payment. A “social security payment” is defined at section 23 of the Social Security Act to include a social security pension and the same section defines a social security pension to include a disability support pension. The Applicant was required to meet Division 1 of Part 3 of the Social Security Administration Act at the time of the claim for disability support pension.
At section 29 of the Social Security Administration Act, the general rule for residence requirements for claimants is set out as follows:
(1) Subject to sections 30, 30A, 31 and 31A, a claim for a social security payment or a concession card may only be made by a person who:
(a) is an Australian resident; and
(b) is in Australia.
(2) Subject to sections 30, 30A, 31 and 31A, a claim made at a time when the claimant is not an Australian resident or is not in Australia is taken not to have been made.
Sections 30, 30A, 31 and 31A of the Social Security Administration Act modify the residence requirements for a range of specified payments which do not include a disability support pension. The Applicant was required to be an Australian resident and to reside in Australia at the time of his claim.
Section 7 of the Social Security Act provides the Australian residence definitions. Subsection 7(2) of the Social Security Act defines an Australian resident as 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.
Subsection 7(3) of the Social Security Act then states that, in deciding for the purposes of the legislation whether or not a person is residing in Australia, regard must be had to:
(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.
The Respondent noted, in written submissions provided to the Tribunal, that the Social Security Guide at Part 3.1.1.10 provides the following guidance about the above factors:
When making a determination about whether a person is ‘residing’ – in other words ‘living’ – in Australia, the key point is to establish that Australia is the person’s settled or usual place of abode – i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than 1 country at the same time. In most cases, the balance of a person’s ties will weigh more heavily in favour of one country than another. 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).
The Tribunal is not bound by policy, but is able to take policy into account where relevant (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The Tribunal considered that the policy set out above – in addition to the further guidance provided by the policy referred to below with respect to each factor – is relevant to the Tribunal’s determination in this matter.

Consideration

The Tribunal had the benefit of hearing detailed evidence from the Applicant at the hearing, in addition to having a large number of documents before it, relevant parts of which are referred to further below. The Tribunal considered the following relevant evidence, and made the following findings, about each of the factors set out in subsection 7(3) of the Social Security Act.

The nature of the accommodation used by the Applicant in Australia

The Tribunal accepted that the Applicant arrived in Australia on 15 January 2023 and lodged the claim for disability support pension with Centrelink on 16 January 2023. He remained in Australia for a two-month period, before departing Australia on 21 March 2023. He gave evidence at the hearing that, at the time of his return to Australia in January 2023, he had pre-arranged to stay with a friend for two weeks and to then stay in a caravan park.
The Tribunal heard evidence from the friend, ‘JR’ during the hearing, who told the Tribunal that the Applicant had stayed with him from January 2023, he believed for the entire two month period. JR was unable to clarify whether the Applicant had money as of January 2023, stating that he has no idea as he doesn’t ask these types of questions. He referred to the Applicant having purchased a caravan in Australia and was unclear as to whether this had occurred as of January 2023. When asked about the clarity of his memory back to January 2023, despite first asserting that his memory was good, he later stated that he just remembers the Applicant coming to stay with him, doesn’t remember what assets the Applicant had, doesn’t know what business the Applicant conducted while in Australia and was unable to tell the Tribunal what the Applicant was doing while he was staying in his home.
The Tribunal also heard evidence from a witness, EP, who told the Tribunal he had picked up the Applicant from the airport in January 2023, that the Applicant had not stayed with him and that he had used EP’s house as a postal address because EP is there all the time. EP’s recollection was that, as of January 2023, the Applicant was “buying land and a few other things”, and he was not sure where the Applicant was staying at that time. EP stated that the Applicant usually stays in Australia for a couple of months at a time, that he returned back to take care of his family in Sweden and that it would surprise him to learn the Applicant was only in Australia for four months during 2023.
The Applicant’s brother, MB, gave evidence at the hearing that he had seen the Applicant in January 2023 when the Applicant was in Australia. MB agreed the Applicant had not had many assets in Australia at the time. As to where the Applicant was staying, MB stated that he thinks he was “couch hopping on occasions”. MB stated that, from memory, the Applicant had not had a lot of money when in Australia in January 2023, that their mother had assisted him on occasions with money here and there, and that MB had been concerned to learn on occasions that that Applicant was sleeping in his car. MB observed that the Applicant had come and gone from Australia on a regular basis since the pandemic restrictions had been lifted.
The Applicant’s treating psychologist also spoke to the Tribunal as a witness at the hearing. The psychologist gave evidence that the Applicant had unstable accommodation in Australia as of January 2023, describing to the Tribunal that his understanding had been that the Applicant had been at times with a friend, living in a room with a friend, and other times living from a car and from a caravan. The psychologist gave evidence that at all times the Applicant was telling him his intention was to reside in Australia. In response to the observation that the Applicant had left Australia after two months, the psychologist stated that his impression was that the Applicant wanted to ultimately reside in Australia with his children and his wife and that the Applicant had been consistent with him about this intention.
The Applicant also called a witness, RR, at the hearing, who gave evidence of having spoken to the Applicant, he thought around January 2023, about the Applicant purchasing a block of land from him. RR also gave evidence of the Applicant having stayed with him in January 2023, although when questioned about this, then stated that the Applicant had stayed elsewhere and had used his address for mail, although he was unsure whether that occurred in January 2023. RR gave evidence that the Applicant had used the block of land (possibly in mid-2024) for storing items and had been given permission to stay in the shipping container on the land.
RR gave evidence of the Applicant having “come and gone” from Australia, with the intention to bring his family to reside in Australia. As to whether the Applicant had ultimately purchased the land, RR stated that they are “still negotiating”; the Applicant had put down a deposit in the early days of discussion and RR had subsequently refused other offers for the land. The Applicant then stated he couldn’t proceed, so RR had sold part of the block and reserved the “next bit of land in his mind” for the Applicant. As to when this had occurred, RR stated it was “many years ago now” and he had returned the deposit to the Applicant.
The Tribunal found from the above evidence that, at the time he returned to Australia in January 2023, the Applicant did not have a formal accommodation arrangement in place, and that, when he first arrived, he stayed with a friend, JR, in a lease-free, informal arrangement. While the Applicant sought to portray this arrangement as a formalised arrangement at the hearing, the evidence given by his witnesses suggested that, for some periods during the two months he was in Australia, the Applicant was effectively homeless, in that he spent some time couch hopping and sleeping in his car. The Applicant also gave evidence that his original intention had been to stay with the friend for two weeks and then in a caravan park.
The Tribunal considered that references by the witnesses to a caravan, and to residing on land the Applicant was intending to purchase, referred to later periods in Australia. The Tribunal found on the evidence before it that, at the time he claimed disability support pension in January 2023, the Applicant did not have formalised, long-term accommodation arranged and used a range of ad hoc living situations. He did not have any permanent accommodation for the duration of the two-month trip to Australia between January 2023 and March 2023.
Subsequent to the claim, the Applicant returned to Australia in May 2023 for 12 days and again in November 2023 for 49 days. He lodged a claim for jobseeker payment in November 2023, at which time he indicated he was of no fixed address.
The Applicant returned to Australia in March 2024. From this time, he had several addresses listed with Centrelink (as evidenced in the “Address History (ADH)” screens provided to the Tribunal). The Applicant’s evidence at the hearing was that the addresses from March 2024 related to a place he stayed at, the property where he was looking to purchase a block of land and a postal address. The Applicant gave evidence that, as of December 2024, he had again advised Centrelink he had no fixed address because the person he was staying with told him not to advise Centrelink of the address, because it was none of their business. The Applicant asserted that the accommodation in question was not unstable, on the basis that the owner of the home owned the home and was not entitled to a social security payment.
The Tribunal accepted that the Applicant had sought housing through his state-based office of housing organisation and that he had had appointments arranged for this purpose in February 2023, April 2024 and May 2024. The Tribunal accepted that the housing organisation had sent the Applicant correspondence in July 2025 confirming the Applicant’s registration of interest in housing. The Tribunal found on the evidence before it that the Applicant had not been provided government housing at the time of the disability support pension claim or at any time subsequent to the claim.
The Applicant gave evidence at the hearing that his intention remains to bring his wife and children to Australia to live and that, at the time of the Tribunal hearing, he was still trying to achieve that. The Applicant’s wife provided three letters in support of the Applicant, prepared in June 2024, March 2025 and July 2025, which also reflected the family’s intention that the Applicant’s wife and children intend to reside in Australia at some time in the future.
The Applicant was asked about his living arrangements in Sweden at the Tribunal hearing. The Tribunal accepted the Applicant’s evidence that he has a right of residency in Sweden, through a residency permit that was obtained prior to his daughter’s birth in 2015, which means he does not need to depart Sweden every 90 days. He gave evidence that his current residency permit expires during 2025; it is a five-year visa and he has renewed it once to date. He was, in the Tribunal’s view, evasive in his answers as to whether he would be able to renew the residency permit. The Applicant sought to portray his living arrangements in Sweden as “staying” with his wife and children in his wife’s home, rather than residing in the home. The Tribunal had some difficulty accepting this evidence. The evidence before the Tribunal is that, aside from some brief time in a third country in 2019, the Applicant has been living in Sweden with his wife and young children aside from the time he has travelled to Australia, in stable accommodation owned by his wife.
The Respondent submits that the Applicant has no formal living arrangement in Australia and that this indicates the Applicant was not residing in Australia, but rather was visiting and staying in temporary accommodation. The Respondent submits that this factor weighs against a finding that the Applicant was an Australian resident at the time of claim.
The evidence before the Tribunal is that the Applicant, as of January 2023 when the claim was lodged, did not have secure, long-term accommodation in Australia. He spent part of the time between January and March 2023 couch surfing and staying in a car. He did not have secure, long-term accommodation in Australia in two subsequent trips in 2023. His living arrangements in Australia during this time contrasted significantly with his stable living arrangements in Sweden and weigh against a finding that he was residing in Australia at the time of the disability support pension claim.

The nature and extent of the family relationships the Applicant has in Australia

The Tribunal accepted the Applicant’s evidence that he had married his wife in 2015 in Australia and noted this was consistent with a marriage certificate contained in the documents provided to the Tribunal. The Tribunal accepted the Applicant and his current wife have four children together: a daughter who is nine years of age, a son seven years of age, a son four years of age and a new baby who was born in April 2025. The eldest daughter has obtained Australian citizenship by descent. The Applicant’s wife and four children reside in Sweden.
The Tribunal accepted the Applicant has three adult children from previous relationships, all of whom reside in Australia. The Applicant acknowledged a strained relationship with two of the three adult children and of having contact with the third adult child. This evidence was consistent with oral evidence given by the Applicant’s brother, MB, at the Tribunal hearing.

The Applicant gave evidence of having no relationship with his grandchildren due to his strained relationship with his daughter. The Applicant also gave evidence of having visited his mother in Australia in January 2023 and the Tribunal noted that he has a relationship with his Australian-based brother MB, who the Tribunal heard from during the hearing. The Tribunal accepted the evidence given by the Applicant about his family members in Sweden and in Australia.
The Respondent submitted that the Applicant’s family connections in Australia are limited and are not indicative of a person who was residing in Australia at the time of claim. The Respondent noted the following guidance in the Social Security Guide at Part 3.1.1.10 relating to this factor:
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 Tribunal accepts that the Applicant’s wife and four young children reside in Sweden, but that other family members, including three adult children and a brother, reside in Australia. The Tribunal accepts the Applicant has stronger relationships with family members in Sweden than in Australia and finds that this weighs in favour of a finding that the Applicant was not residing in Australia at the time of the claim.

The nature and extent of the Applicant’s employment, business or financial ties in Australia

At the Tribunal hearing, the Applicant spoke of having previously represented Australian businesses overseas for work. The Tribunal was of the understanding that these events related to a pre-COVID-19 pandemic period, and possibly up to 10 years earlier. The Tribunal found on the evidence before it that, at the time of claim in January 2023, the Applicant did not have any notable employment, business or financial ties in Australia.
The Applicant spoke at the hearing of having dealt with several years of income tax returns upon his return to Australia. The Tribunal had regard to the “Electronic lodgement declaration forms” contained in the papers and noted that returns for the 2016/17, 2017/18, 2018/19, 2019/20, 2020/21, 2021/22 and 2022/23 financial years had all been signed on 22 December 2023. However, while these appear to have been signed during a subsequent trip to Australia, emails contained in the papers indicate the Applicant intended to complete income tax returns in January 2023 and that he had sought legal advice about accountant error. The Tribunal was prepared to accept from this evidence that the Applicant intended to complete a number of income tax returns and submit the tax returns to the ATO while in Australia in January 2023. The income tax returns do not evidence, however, any ongoing employment or business ties in Australia as of January 2023.
The Tribunal accepted that, in or around January 2023, the Applicant had spoken to his friend, RR, about purchasing a block of land from him and had provided the friend a $1 deposit for this purpose. RR gave evidence at the hearing that the land in question is still for sale, and that the Applicant had provided a deposit of $1 and then subsequently said he couldn’t proceed with the sale. RR stated that they are “still negotiating”. The Tribunal accepted this evidence and found from this evidence that the Applicant does not have financial ties to Australia in the form of land or real estate.
The Tribunal found that the Applicant arrived in Australia in January 2023 with no money. He gave evidence of having received a “small stipend” while in Sweden, based on being a father to Swedish children. He described the payments as amounting to around $20 per day and as being for a defined period of time after the birth of a child. When asked for further details of the stipend, the Applicant spoke of transferring the stipend to his partner. The Tribunal accepted that the Applicant has had financial assistance from the Swedish government due to having children who were born in Sweden.
The Respondent submits that that Applicant has not demonstrated any employment, business or financial ties to Australia and that this weighs in favour of finding that the Applicant was not a resident of Australia at the time of claim. The Respondent noted in written submissions that the Social Security Guide at Part 3.1.1.10.4 states the following:
If the person is employed or self-employed, their place of employment or their main place of business is a good indication of where the person resides. The nature and extent of the employment of the person’s partner is also a factor in terms of the person’s family ties. Therefore, if the person is a member of a couple, it is also necessary to find out where the person’s partner is employed and whether their employment is permanent or temporary as this will influence where the person chooses to reside.
The Tribunal finds that, at the time of the disability support pension claim, the Applicant had no employment, business or financial ties to Australia. He had access to a small amount of money from the Swedish government, in addition to his wife’s income from self-employment. The Tribunal finds that the lack of employment, business or financial ties to Australia at the time of claim weighs against a finding that the Applicant was residing in Australia at the time the disability support pension claim was lodged.

The nature and extent of the Applicant’s assets located in Australia

In the claim for disability support pension, the Applicant declared that two of his bank accounts had been closed, he had $0 in another savings account, that he had no cash on hand, and that in relation to a Mazda station wagon and a “home made caravan 1950”, these assets were no longer held.
When asked at the hearing about assets he had held in Australia at the time of claim, the Applicant agreed he had not had a car, caravan or trailer in Australia. He asserted that he had had other assets in storage at the time of claim, but that these had not been declared as he hadn’t realised they needed to be included in the claim form. The Applicant stated that these assets included a glass statue, seven years of paperwork and a couple of items of furniture. Photos provided by the Applicant for the review appear to show the shed in question with items inside, although aren’t clearly identifiable as the Applicant’s belongings. The Tribunal is prepared to accept that, in addition to the assets declared in the claim form, the Applicant had other ad hoc household items and paperwork in storage at the time of claim.
In written submissions provided to the Tribunal, the Respondent noted that the Applicant’s claimed assets are of limited value and should be given little weight as evidence of the Applicant residing in Australia and that his lack of assets should be viewed as evidence that he was residing overseas at the time of claim. The Respondent also noted that the following commentary in the Guide provides the following assistance in relation to this factor, at 3.1.1.10:
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).
The Tribunal finds that, at the time of claim, the Applicant had not retained any significant assets in Australia that were indicative of him residing in Australia. His household belongings were, on his own evidence, in storage and do not appear to be items that would enable the Applicant to establish a household in Australia. The Tribunal finds that this factor weighs against a finding that the Applicant was residing in Australia at the time of claim.

The frequency and duration of the Applicant’s travel outside Australia

Given the Applicant’s submissions that the COVID-19 pandemic had disrupted his pattern of travel to Australia, the Tribunal had regard to the “Travel Outside Australia Summary (TOAS)” Screen provided by the Respondent and noted from this information that, prior to the disability support pension claim lodging on 16 January 2023, the Applicant had been in Australia for the following periods from mid-2017 onwards:
·   The Applicant had arrived in Australia on 21 June 2017 and left on 3 February 2018 (228 days);
·   The Applicant had arrived in Australia on 7 February 2018 and left on 11 February 2018 (5 days);
·   The Applicant had arrived in Australia on 19 February 2018 and left on 5 April 2018 (46 days);
·   The Applicant had arrived in Australia on 4 May 2018 and left on 16 May 2018 (13 days);
·   The Applicant had arrived in Australia on 22 May 2018 and left on 5 June 2018 (15 days);
·   The Applicant had arrived in Australia on 14 June 2018 and left on 20 June 2019 (7 days);
·   The Applicant had arrived in Australia on 20 September 2018 and left on 6 November 2018 (48 days);
·   The Applicant had arrived in Australia on 21 November 2018 and left on 20 January 2019 (61 days);
·   The Applicant had arrived in Australia on 22 February 2019 and left on 25 March 2019 (32 days);
·   The Applicant had arrived in Australia on 10 May 2019 and left on 19 May 2019 (10 days);
·   The Applicant had arrived in Australia on 22 May 2019 and left on 9 June 2019 (19 days);
·   The Applicant had arrived in Australia on 14 August 2019 and departed on the same date (1 day);
·   The Applicant had arrived in Australia on 15 August 2019 and left on 17 August 2019 (3 days);
·   The Applicant had arrived in Australia on 15 January 2023 and lodged the claim for disability support pension the following day, on 16 January 2023.
The Applicant gave evidence at the hearing that he has a history of travel in and out of Australia, as he had previously represented Australian businesses overseas for contract work, but that the trips had all had defined start and end dates. The Applicant stated that when the COVID-19 pandemic arose, he had left Australia three months earlier. He had been “severely disturbed” and had been put in a mental health facility in a third country and was deported to Australia because he was considered an Australian resident. He returned to Europe and the pandemic commenced a couple of months after that time, with Europe closing its borders. He suffered a heart attack and had surgery for this in Sweden and was unable to travel during the recovery period. He then required a hernia surgery in December 2022 and one month later he got on the plane to Australia. He arrived in Australia on 15 January 2023 and the following day attended Centrelink to advise that he had no money. He had returned on a one-way ticket and returned to Australia to establish a home to bring his family from Sweden to. He was also returning to Australia to confront his fears following an assault that had occurred previously. He found being back in Australia triggering and left Australia after 70 days.
The Tribunal accepted that, following his arrival on 15 January 2023:
·   The Applicant next departed Australia on 21 March 2023 (66 days in Australia);
·   The Applicant returned to Australia on 11 May 2023 and left on 22 May 2023 (12 days);
·   The Applicant returned to Australia on 6 November 2023 and left on 24 December 2023 (49 days); and
·   The Applicant returned to Australia on 4 March 2024.
There was varying evidence as to whether the Applicant had departed Australia on 21 March 2023 on a one-way ticket or a return ticket. When asked at the hearing about his return to Sweden on a one-way ticket, the Applicant gave evidence of having received an inheritance of $816 and having found a bag of money in a gutter with $635 in cash in it, which had been enough to purchase a plane ticket. When asked to confirm he had purchased a one-way ticket, the Applicant stated yes, it was all he could afford. The Tribunal noted that two of the Applicant’s witnesses, EP and MB, confirmed the Applicant’s account of having found money prior to flying out of Australia. Based on this evidence, the Tribunal is prepared to accept the evidence given by the Applicant about how he funded his flight out of Australia in March 2023. The Tribunal had some difficulties, however, accepting the Applicant’s closing submissions that he had “realised his mistake from earlier” and his submissions that he had left on a return ticket to Australia, not a one-way ticket.
The Applicant gave evidence that he has spent 14 of the last 18 months in Australia and his intention remains to bring his wife and children to reside in Australia.
The Respondent noted that relevant commentary is contained in the Social Security Guide at Part 3.1.1.10 and provided part of the comments from the Guide relevant to this factor. The Tribunal has set out the full commentary below, as it is of relevance to the Tribunal’s considerations in this matter:
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.
Taken in isolation, a 3-year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable.
The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence. For example, a person working on an 18-month overseas contract posting would still be considered to reside in Australia as long as they have demonstrated ongoing physical ties to Australia and a commitment to return to Australia at the end of the posting.
It is not uncommon for a person to remain overseas for a lengthy period of time but state that they intend to return to Australia to live at some uncertain, future date. In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person’s ‘intent’ becomes less of a factor as the length of the absence increases. A person’s physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
A person who has spent the majority of their time overseas in the last few years and who returns to Australia to claim a benefit will not necessarily be eligible from the day they return to Australia. The person must demonstrate that their physical ties with Australia have been re-established, or are in the process of being established and that they intend to reside again in Australia.
In Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 831, the AAT addressed an applicant’s long periods of absence from Australia and commented (at [19]):[1]
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.
[1] Cited in Respondent’s written submissions at paragraph 29.
The Tribunal finds that, prior to the pandemic, the Applicant had spent both very short and longer periods of time in Australia, but had also spent significant time outside Australia. The Tribunal accepted that the Applicant’s travel to and from Australia was impacted by border closures during the pandemic and to experiencing health issues while outside of Australia, but did not accept that these factors accounted for the entirety of the period from 2019 to 2023. The Applicant had been in Australia for one day at the time he lodged the claim for disability support pension and remained in Australia for two months before returning to Sweden. He returned briefly in May 2023 and for a longer period in November 2023.
The Respondent observed at the hearing that the Applicant had spent only four months in Australia during 2023 and the Tribunal accepted this observation as correct. The Tribunal further accepted the submissions of the Respondent that the longest period the Applicant has stayed in Australia in the last five years has been approximately four months from March to July 2024, over twelve months after the disability support pension claim was submitted.
The Tribunal accepted the dates of travel as set out above and finds that the Applicant has spent significantly more time outside of Australia than within Australia over the past five years, that the pandemic does not fully account for the extended time spent outside of Australia and that the lengthy periods of time the Applicant has spent outside of Australia weigh against a finding that he was residing in Australia at the time of claim.

Other relevant matters to determining whether the Applicant intends to remain permanently in Australia

The Tribunal noted that the Social Security Guide at Part 3.1.1.10 provides the following commentary about this factor:
The term ‘any other matters’ includes a person’s stated intention and any other evidence that does not fit under the other criteria, for example, whether the person is prevented from returning to Australia because of custody laws in the country they are in.
Evidence to support the person’s intention would include the purpose of the travel – for example, overseas travel may be for the purpose of pursuing a contract of employment for a specified period of time, or receiving medical treatment, or caring for someone. This type of purpose would in isolation suggest the absence is temporary but the other criteria should also be evaluated before making a determination.
The only time a decision would be based solely on the person’s intention (and evidence of that intention) is where they have no ties under any of the other factors either in Australia or overseas – for example, newly arrived refugees. In these cases there are likely to be valid reasons why the period has not yet established new ties in Australia or fully broken their ties in their previous country.
In the case of former residents, all the factors under section 7(3) should be considered to determine both whether the person can be said to have been residing in Australia during their absence and whether they are now residing in Australia on their return.
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.
It is also worth noting that a person claiming Age [pension] may have plans to retire overseas. This does not automatically mean that they are not residing in Australia at the time of their claim. The issue is whether the person can, at the time of the decision, be said to be residing in any other country.
Contained in the papers was an “Incoming Passenger Card” for the Applicant’s travel to Australia on 15 January 2025, in which he had ticked “No” to the question of: “Do you intend to live in Australia for the next 12 months?”. When asked about the passenger card at the hearing, the Applicant told the Tribunal that he has “always signed legal documents” and that he had intended to return to Sweden and get his family to bring back to Australia. He gave evidence that he had ticked “yes” on every travel card he had completed since that time. While the Tribunal is prepared to accept this evidence as correct, the Tribunal finds that the passenger card is evidence that, at the time the Applicant arrived in Australia the day prior to lodging the claim for disability support pension, he was not intending to remain living in Australia for the following twelve months. The passenger card does not support the Applicant’s assertion that he was residing in Australia at the time of claim.
The Applicant gave evidence at the hearing that, at the time of his return in January 2023, his intention was to establish a home for his family from Sweden to come to. The Applicant gave evidence that his wife has been to Australia five times on visitor visas and they have investigated her visa options and she may be able to obtain a special visa because she works in aged care. The Applicant acknowledged that they have not applied for a permanent visa for his wife and stated this was because it requires fees. The Applicant’s evidence, while accepted by the Tribunal, also does not support his assertion that he was residing in Australia at the time of claim.
The Applicant also told the Tribunal that he was returning to Australia to confront his fears following an assault that had occurred previously. Victims of crime correspondence contained in the papers indicated the Applicant had been assisted in relation to a victims of crime claim since November 2018 and that the claim was refused in May 2023. The Applicant gave evidence that he had left Australia in March 2023 due to being triggered while in Australia, that he had a constant feeling of terror and panic while in Australia. The Applicant’s psychologist was asked about the “trigger events” claimed by the Applicant and appeared unaware of these. The psychologist stated he was aware that the Applicant had had symptoms of post-traumatic stress disorder that were very active and that the Applicant was under stress and was troubled at that time. The Tribunal is prepared to accept that the Applicant did not remain in Australia for the anticipated duration due to mental health concerns.
The Applicant’s treating psychologist told the Tribunal that at all times the Applicant was telling the psychologist his intention was to reside in Australia. In response to the observation that the Applicant had left Australia within two months of his stated intention to remain in Australia, the psychologist stated that the impression he had was the Applicant wanted to ultimately reside in Australia with his children and wife and that he had been consistent in this intention.
The Tribunal noted that, prior to the hearing, the Applicant’s treating psychologist had provided a written statement, dated 26 February 2025. The psychologist stated he had been the Applicant’s treating psychologist for six years, that he had provided tele-health services to the Applicant while the Applicant was overseas between 2019 and January 2023, that the Applicant had informed him he was intending to bring his wife and children to reside in Australia, and that he was aware these intentions had been delayed due to ongoing issues with the Applicant’s disability support pension claim and his residency status.
The Applicant has provided statements from a range of witnesses (29 in total) all headed “Affirmation/Testimonial”, all typed in identical terms and signed by the witnesses (some statements had additional comments or redactions, but most were signed without any alterations). The statements provide as follows:
Affirmation/Testimonial
I am providing this affirmation for [the Applicant], whom I have known for [….] years.
I understand it is for his use in an appeal process he has launched with the Administrative Appeals Tribunal (AAT) over a matter concerning himself and the Department of Human Services (Social Security Division).
Although [the Applicant] was born and raised in Australia, I understand the Department of Human Services (Social Security Division) believes that [the Applicant] is currently classed as a resident of Sweden.
I understand that [the Applicant] is opposing this and that this “Affirmation/testimonial” is for use in supporting his case to the contrary.
After COVID travel restrictions were lifted, [the Applicant] arrived in Australia in mid January of 2023 and that his stated intentions to me in doing so were to re-establish a base in Australia for bringing his wife and children (to Australia) to live once this was done.
I believe that [the Applicant] arrived on a one-way ticket to Australia, and to the best of my knowledge, his actions since have been towards furthering these stated, desired outcomes.
He has always stated to me that it is his intention to reside in Australia with his family, once they are here.
To help facilitate this, I am aware that [the Applicant] now has a suitable vehicle (and a trailer), furniture and other household and personal effects conducive with establishing and creating a home for his family. These items also include bicycles and toys for his young family to use once they are here.
He also has a 5 berth Caravan that he believes will be suitable to house his family in initially, at least until alternative, longer-term accommodation options can be explored/found.
Regarding alternative and future housing options for his family, he has told me that he had approached [state based housing organisation] when he arrived in Australia and that he is listed with [state based housing organisation] for suitable housing for his family when such may come available.
I make this statement to affirm that I believe [the Applicant’s] intentions in returning to Australia have been as he has stated them to be, namely that of establishing a base for his family to come to Australia and live. Hopefully this will be the outcome for them in the near future.
The Applicant provided five handwritten statements from the witnesses who gave evidence at the Tribunal hearing. All handwritten statements appeared to be in the same or similar handwriting and all referenced the Applicant’s intention to reside in Australia. The Applicant also provided a typed statement from a Pastor he had had contact with, also referencing his intentions regarding his residency. The Tribunal did not take evidence from the Pastor in question at the hearing.
In addition to the oral evidence outlined above, the Applicant also called a religious figure he had met through a church, who gave evidence that he had not been familiar with the Applicant’s circumstances as of January 2023 but subsequently became aware of the circumstances around his family in Sweden. The witness gave evidence that he had signed a typed statement that had been prepared and had signed a subsequent handwritten statement, but that he had prepared neither statement. While accepting that the witness was prepared to sign both statements, the Tribunal considered that neither statement added significant weight to the evidence before the Tribunal, on the basis they were not in the witness’s own words. The witness’s oral evidence at the hearing – while establishing the Applicant had had a relationship with the witness through a local church – did not otherwise provide any details of the Applicant’s intended residency as of January 2023.
The Tribunal has otherwise placed little weight on the typed and handwritten statements on the basis that they have been prepared by the Applicant rather than being in the words of the witnesses themselves, and on the basis that the beliefs of the witnesses have been unable to be tested in evidence at the hearing.
The Applicant had provided the Tribunal with numerous pages of handwritten notes which he asserted was his diary and was evidence of his intention to return to Australia. These appear to refer to appointments and tasks and do not, in the Tribunal’s view, go towards establishing the Applicant’s residency at the time of claim. The Tribunal has not placed weight on the handwritten notes provided by the Applicant in this matter.
The Applicant also provided the Tribunal other documents, including details of a family tree, employment history, work-related letters for periods other than January 2023 and ATO residency test. The Tribunal did not consider that any information provided in these documents provided evidence of the Applicant’s residency at the time of the disability support pension claim. The Tribunal has not placed weight on these documents in making a decision in this matter.
The Applicant referred in his evidence to two phone contacts with Centrelink in which Centrelink states he advised his intention was not to live permanently in Australia. The Applicant gave evidence at the hearing that what he had indicated was he was intending to establish a based and to reside in Australia, that he had felt badgered by the Centrelink employee and that his comment had been in relation to his wife and in response to why she couldn’t sell her house. The Tribunal accepted that any comments made by the Applicant occurred within a longer conversation with the Centrelink employees in question and placed little weight on the records of the conversations as evidence of the Applicant’s residency or his longer-term intentions about residency.

Conclusions

The Tribunal accepted that, at the time of the disability support pension claim, there were indicators of the Applicant being resident in Australia. These included the Applicant’s ties to family members and a treating psychologist that the Applicant had maintained over the previous several years during his absence from Australia. The evidence given by and on behalf of the Applicant also strongly indicates the Applicant’s genuine intention to bring his wife and children to reside in Australia and that he made attempts to purchase land from a friend to achieve this intention.
These matters must, however, be considered within the context of the Applicant having lodged a claim for disability support pension a day after arriving in Australia after a several-year absence. As noted above, the Tribunal has not accepted that this prolonged absence was solely due to the effects of the pandemic.
The Applicant arrived in Australia on 15 January 2023 with little to no money and no long-term stable accommodation arranged. The evidence before the Tribunal was that he lived primarily with a friend, but also spent time in unstable accommodation, couch surfing and staying in a car. His attempts to purchase land and to obtain housing through a local housing authority have, to date, been unsuccessful. The Applicant’s living arrangements in Australia are in contrast to his living arrangements in Sweden where he resides with his wife and children, in a property owned by his wife and where he appears to have resided on a long-term basis.
At the time of claim, the Applicant had no business or financial ties to Australia, no employment arrangements in Australia, and no notable assets. Again in contrast, the Applicant had been provided a stipend from the Swedish government at the time each of his children was born and he and his wife were supporting themselves from this and from his wife’s self-employment.
The Tribunal finds that the factors it has considered in this matter weigh in favour of a finding that, at the time of claim, the Applicant was not residing in Australia within the meaning of subsection 7(3) of the Social Security Act. The factors most heavily relied on by the Tribunal in making this finding are the prolonged period of time the Applicant had spent outside Australia prior to the claim being made, the presence of his wife and children in a third country, and the Applicant’s lack of accommodation and assets in Australia at the time of claim.
As the Applicant was not residing in Australia at the time of claim, section 29 of the Social Security Administration Act provides that the claim for disability support pension is taken to not have been made. The decision to reject the claim is legally correct and the Tribunal affirms the decision.

Decision

The Tribunal affirms the decision under review.

Date of hearing: 24 July 2025

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Mr C Visser

Date of hearing:	24 July 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Mr C Visser