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Bartlett and Secretary, Department of Social Services (Social services second review) [2024] AATA 1897 (21 June 2024)

Last Updated: 21 June 2024

Bartlett and Secretary, Department of Social Services (Social services second review) [2024] AATA 1897 (21 June 2024)

Division: GENERAL DIVISION

File Number(s): 2022/10116

Re: Andrew Bartlett

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member L M Gallagher

Date: 21 June 2024

Place: Perth

The Reviewable Decision, being the decision of the AAT1 dated 2 December 2022, to suspend the Applicant’s entitlement to Age Pension from 18 November 2019 and raise an Age Pension Debt of $47,481.71 for the period 18 November 2019 to 1 July 2022, is set aside and substituted with a decision that:

1. The Applicant’s Age Pension is cancelled from 1 October 2019;

  1. The Applicant was overpaid Age Pension in the amount of $52,163.48 which constitutes a debt payable to the Commonwealth; and
  2. The debt should be recovered in full and not waived or written off in whole or in part under Part 5.4 of the Social Security Act 1991 (Cth).

.....................[Sgd]...................................................

Member L M Gallagher

CATCHWORDS

SOCIAL SECURITY – age pension – where Applicant was in receipt of age pension – where age pension entitlements suspended and debt raised against Applicant – whether for the purpose of subsection 29(1) of the Social Security (Administration) Act 1999 (Cth) the Applicant was an Australian resident at the time of his claim – alternatively whether the Applicant had ceased to be an Australian resident prior to arriving back in Australia or left Australia within two years of being granted age pension – Whether the Applicant has incurred a debt to the Commonwealth – whether debt can be written off or waived – decision under review set aside and substituted.

LEGISLATION

Social Security Act 1991 (Cth) ss 7, 7(3), 7(3)(a), 7(3)(b), 7(3)(c), 7(3)(d), 7(3)(e), 7(3)(f), 1220, 1223, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) ss 11, 11(1), 29(1), 29(2), 66A, 66A(2), 68(2), 80

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Goodfellow and Secretary, Department of Social Security [1992] AATA 301

Hafza v Director-General of Social Security [1985] FCA 164

Kocaburak and Secretary, Department of Social Services [2018] AATA 942

Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059

Mentink v Secretary, Department of Social Services [2016] FCAFC 39

Minister for Home Affairs v G and Another [2019] FCAFC 79

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) FCR 70

SECONDARY MATERIALS

Australian Government Guides to Social Policy Law: Social Security Guide’ (version 1.314, 5 February 2024) ss 3.1.1.10, 6.7.3.10

REASONS FOR DECISION


Member L M Gallagher


21 June 2024

THE APPLICATION

  1. The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 2 December 2022 that affirmed the decision of an Authorised Review Officer (ARO) of Services Australia dated 18 August 2022,[1] to suspend the Applicant’s entitlement to Age Pension (AP) from 18 November 2019, and raise an AP debt of $47,481.71 for the period of 18 November 2019 to 1 July 2022 (the Reviewable Decision).[2]

ISSUE

  1. The issue for determination is whether the decision to suspend the Applicant’s AP from 18 November 2019 and raise and recover a debt against the Applicant was the correct and preferable decision.[3] This, in turn, requires consideration of:
    (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 of his claim on 1 October 2019?[4]
If the Applicant was not an Australian resident at the time of his claim for AP, then he was not entitled to have been paid any AP from that date and his AP should be cancelled.
(b) If the Tribunal finds that the Applicant was an Australian resident on the date he applied for AP:[5]
(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 prior to arriving back in Australia on 26 September 2019; and

(ii) Whether, after being granted AP as an Australian resident on 1 October 2019, the Applicant left Australia within two years.

(c) Whether the Applicant has incurred a debt to the Commonwealth because he was paid AP in excess of his entitlements by virtue of the fact:

(i) He was not qualified for AP from 1 October 2019;[6] or

(ii) AP was not payable during the period 18 November 2019 to 1 July 2022.

(d) If the Applicant has incurred a debt to the Commonwealth, whether that debt should be repaid in whole or part. In particular:

(i) Whether the debt should be written off pursuant to section 1236 of the SS Act;

(ii) Whether the debt should be waived pursuant to section 1237A of the SS Act because it was solely attributable to an administrative error made by the Commonwealth;

(iii) Whether the debt should be waived pursuant to section 1237AAD because:

(iii) 1. the debt did not result wholly or partly from the Applicant making a false statement or false representation or failing to comply with the SS Act or SS Administration Act; and

(iii) 2. there are special circumstances (other than financial hardship alone) that make it desirable to waive.

BACKGROUND

  1. The Applicant is a citizen of the United Kingdom.[7]
  2. The Applicant first arrived in Australia on 20 November 1995[8] on a Class AT Subclass 126 Independent (Migrant) (permanent) visa.[9]
  3. Between 1995 and 2015, the Applicant was a resident of Australia, travelling outside of Australia for short periods (other than a short period of residence in New Zealand[10] between 1996 and 1997).[11]
  4. On 11 October 2015, the Applicant moved to Thailand[12] and resided there,[13] visiting Australia for three short periods in 2016.[14]
  5. On 26 April 2018, the Applicant reached age pension age.
  6. On 28 October 2018, the Applicant arrived in Australia.[15]
  7. On 30 October 2018, the Applicant lodged his first claim for AP.[16] In his claim form the Applicant stated:
    (a) He was currently living in Australia.[17]

    (b) His permanent address was a property in a suburb in Western Australia.[18]

    (c) His residential status was “stay colleague’s house as my permanent address.”[19]

    (d) In response to a question as to whether he had “...EVER lived outside Australia, for any period?” the Applicant listed “New Zealand from 1996 – 1998”.[20]

  8. On 10 November 2018, the Applicant departed Australia.[21]
  9. On 28 March 2019, the Applicant’s claim for AP was rejected because he had failed to reply to requests to provide documents to verify his identity.[22] The Applicant did not seek review of this decision to reject his application for AP.
  10. On 26 September 2019, the Applicant arrived in Australia.[23]
  11. On 1 October 2019, the Applicant lodged his second claim for AP.[24] In that claim form he stated:
    (a) He was currently living in Australia;[25]

    (b) His permanent address was a property in a suburb in Western Australia;[26]

    (c) His residential status was “in accommodation where [he paid] no rent”;[27]

    (d) He last entered Australia in 2018;[28] and

    (e) In response to a question as to whether he had “EVER lived outside Australia for any period?” the Applicant relevantly listed “Australia from 05/01/1997 to 26/09/2019” and “Thailand from ‘various periods’ to 2015-2019.”[29]

  12. On 17 October 2019, in response to a request from Centrelink, the Applicant provided further details of his living arrangements, in particular why he was able to live alone and pay no rent. The Applicant responded:
    I live with a mate/friend when I reside in Australia. He is my nominee Mr Richard Owen Harben.[30]
  13. On 21 October 2019, the Applicant’s claim for AP was granted with effect from 1 October 2019.[31] The letter granting the Applicant’s AP advised the Applicant that he was required to tell Centrelink if any of the changes below happened or were likely to happen, within 14 days:[32]
    ...your Australian residence status changes;

    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 humanservices.gov.au/paymentsoverseas

  14. On 18 November 2019 the Applicant departed for Thailand and has not since returned.[33]
  15. On 6 July 2022, the Applicant’s AP was suspended from 18 November 2019 on the basis that he was not entitled to be paid AP after he left Australia.[34] An overpayment of $47,481.71 was also raised as a debt the Applicant owed to the Commonwealth. The Applicant was notified of the debt on 5 August 2022.[35] The Applicant sought review of the decision.
  16. On 18 August 2022, an ARO affirmed the decision dated 6 July 2022, finding that the Applicant’s entitlement to AP was correctly suspended and that the Applicant’s AP debt should not be written off or waived.[36]
  17. On 1 September 2022, the Applicant applied to the AAT1 for review of the ARO decision dated 6 July 2022.[37]
  18. On 2 December 2022, the AAT1 made the Reviewable Decision.[38]
  19. On 11 December 2022, the Applicant applied to the Tribunal’s General Division (the Tribunal) for review of the Reviewable Decision.
  20. As at 5 May 2023, the Applicant’s debt (accrued from 18 November 2019 to 6 July) was $47,481.71, with additional interest charges of $1,527.58. The Applicant has not made any arrangements to repay the debt since it was raised[39] and no arrangements were made to recover it.
  21. On 30 October 2023, the Applicant requested a stay order of possible accruing interest on this debt, until such time as the Tribunal reached a decision in relation to the present application.
  22. On 21 November 2023, the Applicant’s interlocutory application was further discussed by the parties at a telephone directions hearing.
  23. On 22 November 2023, the Respondent advised that Services Australia had arranged for the Applicant’s debt of $47,481.71, with additional interest charges of $1,527.58 as at 5 May 2023 be written-off for a period of three months commencing from 7 November 2023.
  24. On 6 December 2023, the Applicant withdrew his application for a stay order.

RELEVANT LEGISLATION AND PRINCIPLES

  1. The legislation applicable to this matter is contained in the:
    (a) SS Act; and

    (b) SS Administration Act.

  2. The Social Security Guide[40] (the Guide) assists those who administer the Act. As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[41]
Qualification for age pension
  1. Subsection 29(1) of the SS Administration Act relevantly provides:
    29 General rule

    (1) ... a claim for a social security payment ... may only be made by a person who:

    (a) is an Australian resident; and

    (b) is in Australia.

    (2) ... 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.

    (Emphasis added.)

  2. Section 29(2) is a deeming provision, with the effect that if an applicant was not an “Australian resident” when they made their claim, they are deemed not to have made their claim.
  3. Section 11(1) of the SS Administration Act provides that a person who wants to be granted a social security payment must make a claim in accordance with Part 3, Division 1 of the SS Administration Act.
  4. In determining whether the Applicant was an Australian resident on 1 October 2019, the following definitions found in section 7 of the SS Act are relevant:
    7 Australian residence definitions

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

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

    ...

    permanent visa, special category visa and visa have 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:

    (i) an Australian citizen;

    (ii) the holder of a permanent visa;

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

    ...

    (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.

  5. Section 1220 of the SS Act further provides:
    1220 No portability where claim based on short residence

    (1) If:

    (a) a person is an Australian resident; and

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

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

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

    (i) an age pension; or

    (ii) ...and

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

    ...

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

Change in Circumstances

  1. Pursuant to s 66A of the SS Administration Act, a person who has claimed or is in receipt of a social security payment has an obligation to inform the Department if there has been a change of circumstances which may affect their payment.
    66A General requirement to inform of a change of circumstances etc.

    Person who has made a claim

    (1) If:

    (a) a person has made a claim for:

    (i) a social security payment; or

    (ii) a concession card; and

    (b) the claim has been granted or has not been determined; and

    (c) an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card

    the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.

    Person receiving a social security payment or holding a concession card

    (2) If:

    (a) either:

    (i) a social security payment (other than utilities allowance or seniors supplement) is being paid to a person; or

    (ii) a person holds a concession card; and

    (b) an event or change of circumstances occurs that might affect the payment of that social security payment or the person’s qualification for the concession card;

    the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change

  2. Further s 68(2) of SS Administration Act provides:
    (2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

    (a) inform the Department if:

    (i) a specified event or change of circumstances occurs; or

    (ii) the person becomes aware that a specified event or change of circumstances is likely to occur;

    (b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;

    (c) give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.

Overpayment

  1. Where an applicant is paid aged pension in circumstances in which they were not entitled to receive such payment or have been paid in excess, s 1223 of the SS Act applies:
    1223 Debts arising from lack of qualification, overpayment etc.

    (1) Subject to this section, if:

    (a) a social security payment is made; and

    (b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

    the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

    ...

    (1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:

    (a) the payment was made to the person by mistake as a result of a computer error or an administrative error;

    (b) the person for whose benefit the payment was intended to be made was not qualified to receive the payment;

    (c) the payment was not payable;

    (d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;

    (e) the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;

    (f) the payment was intended to be made for the benefit of someone else who died before the payment was made.

    ...

Write off or waiving of a debt

  1. Section 1236 of the SS Act sets out circumstances in which a deb may be written off:
    1236 Secretary may write off debt

    (1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

    (1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

    (a) the debt is irrecoverable at law; or

    (b) the debtor has no capacity to repay the debt; or

    (c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

    (d) it is not cost effective for the Commonwealth to take action to recover the debt.

  2. Section 1237A of the SS Act allows for all or part of a debt to be waived if the debt is attributable solely to an administrative error and states in part as follows:
    (1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
  3. Section 1237AAD of the SS Act confers a discretion on the Secretary to write off a debt for a period and states, in part, as follows:
    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

    (a) the debt did not result wholly or partly from the debtor or another person knowingly:

    (i) making a false statement or a false representation; or

    (ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

    (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

    (c) it is more appropriate to waive than to write off the debt or part of the debt.

PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL

  1. The matter was heard in Perth on 18 January 2024. The Applicant appeared via telephone and was self-represented. The Applicant appeared with the support of Mr Paul Hogan. The Respondent appeared in person and was represented by Mr Ben Dube of Sparke Helmore.
  2. At hearing, the Tribunal admitted the following documents into evidence:
    (a) Applicant’s response to Respondent’s Statements of Facts, Issues and Contentions (SFIC) filed 25 May 2023 with attachments:
    (i) Attachment 1 – Medical assessment of Dr Michael Beinart (General Practitioner), dated 27 October 2016 comprising seven pages;

    (ii) Attachment 2 – Medical certificate of Dr Beinart dated 27 October 2016 comprising two pages; and

    (iii) Attachment 3 – Photos of Thai funeral comprising five images,

    together, (A1);

    (b) Applicant’s submission, undated, comprising 3 pages, filed 22 March 2023 (A2);

    (c) Table of Applicant’s monthly expenses, filed 22 March 2023 (A3);

    (d) Screenshots of receipts in relation to Applicant’s expenses, comprising 17 images, filed 22 March 2023 (A4);

    (e) Respondent’s Section 37 T-Documents, labelled T1 to T14, comprising pages 1 to 225, filed 9 January 2023 (R1);

    (f) Respondent’s SFIC with Annexures A-J, dated 5 May 2023 (R2).

    1. Following the hearing, the Applicant provided a number of further submissions by email dated 19 January 2024.
    2. Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.

Applicant’s Evidence

  1. When the Applicant was asked to confirm that he had first travelled to Thailand for an extended period of time on 20 September 2013 and did not return until 28 June 2015, he stated that he vaguely remembered being outside Australia for this period:[42]
    ...it was the finalisation of the breakdown of the marriage... Yes. That was – that was the situation. I believe it – for that period of time. The end of my marriage, end of my 35-year marriage... It was a period of time, like I said it’s – it was for a very good reason, I believe..”
  2. The Applicant confirmed that one of the reasons for his return to Australia in 2018 was to apply for AP.[43] The Applicant accepted that during this visit, he was in Australia for 13 days and made his first application for AP a couple of days in.[44] The Applicant agreed that he then departed Australia once more and returned to Thailand, not returning to Australia again until 26 September 2019, where, within a couple of days of his arrival, he applied for AP for a second time.[45] The Applicant also agreed that less than two months later, he left Australia and returned to Thailand.[46]
  3. The Applicant was also asked whether he understood at the time of his application for AP that to be entitled to AP he needed to be in Australia to make the application:[47]
    MR DUBE: And would you agree with me that you knew once you turned 66 and a half, that to be entitled to the aged pension, you needed to be in Australia when you made that application?

    APPLICANT: No, I wouldn’t agree with that, no.

    MR DUBE: Okay?

    APPLICANT: I didn’t know about it. I had no idea. No one ever told me, not even at the first interview at the Centrelink office. No one ever said anything. I had no idea – – -

    MR DUBE: Okay, so you didn’t – – -?

    APPLICANT: It was never on any paperwork of mine, either.

    MR DUBE: All right. So you did – you weren’t aware that you needed to be physically in Australia to make a claim for aged pension?

    APPLICANT: Physically?

    MR DUBE: Yes?

    APPLICANT: Well, I was physically there, wasn’t it? In order to make a claim.

    MR DUBE: I’m not trying to confuse you, [Applicant], but my question was: when you became – so when you got – became old enough, and apologies for the way I expressed that – but when you turned 66 and a half, and you became old enough for the aged pension, my question to you was, you knew that then – so you knew then that to make a claim for aged pension, you needed to be physically in Australia. Did you know that then?

    APPLICANT: Apparently it was on some paperwork I previously looked at, yes. That particular sentence, yes.

    MR DUBE: Yes, okay?

    APPLICANT: I had to be in Australia. That is correct.

    MR DUBE: Okay. And that’s why – – -?

    APPLICANT: But not – but not to do this.

    MR DUBE: And that’s why having not got the aged pension in 2018, you knew you had to become back again to put in an application for aged pension in 2019. So you knew that then, didn’t you?

    APPLICANT: Well, I had to return.

    MR DUBE: Yes?

    APPLICANT: But that was not the full intention of my return.

    MR DUBE: I appreciate you came back for other reasons, but one of the reasons you came back was you wanted the aged pension, and you knew you needed to be in Australia physically to make the claim?

    APPLICANT: That – well, yes, that’s correct.

  4. When taken to a letter from Centrelink advising him that his AP had been granted, the Applicant agreed the letter made it clear he needed to advise Centrelink if he was travelling outside of Australia or if his Australian residence status had changed and stated he was aware of this.[48]
  5. When asked if when he applied for AP in October 2019, it was his intention to return to Thailand to live, the Applicant said that this was not the case.[49]
  6. The Applicant confirmed that he told Centrelink in mid-2019 that he would be leaving Australia in the near future but that this wasn’t at the time of the application but rather ‘two or three weeks after that’ and that ‘things had happened later in the month.’[50] The Applicant further explained it was not his intention to leave permanently and that ‘it was for a reason’ of which he did not elaborate on in the AAT1 proceedings because he was not asked to.[51]
  7. When asked, the Applicant recalled having told the AAT1 that he could not give Centrelink a definite departure date at that time because he was yet to buy his plane ticket to Thailand.[52] When it was put to him he did not dispute that to the contrary, his written submission stated that he had told the Centrelink officer that he would be leaving Australia shortly and he had already purchased his ticket.[53]
  8. The Applicant stated that on his last return to Australia in 2019 he contemplated making the adjustment to ‘settle down’ in Australia:[54]
    I fully intended to come back to settle down, because – look, my health was deteriorating fast, and I possibly, you know, might have to use the health system there, which I was entitled to, I believe. And I, mean, I’ve been there nearly 25 years, so there must be some – something there which I was entitled to. But there you go. I made that decision, and I sat down with this lady [Centrelink staff], went through all the paperwork and the application, as was noted here. And she asked a few questions, and I answered them, and I left.
  9. He further explained that Centrelink had not made him aware he had to stay for two years:
    ...what I’m trying to say is – at that time, if my details were entered into the system correct with the right coding, I wouldn’t be in the situation I’m now facing. I was told that the process of security – I asked him, required me to stay for two years. Well, I wasn’t aware of that. No one had actually given me any indication, so I didn’t actually make any false statement on the form, as I’m – as I wasn’t aware. Not to my knowledge. But I spoke to a lot of Centrelink staff and on many occasions, and no one mentioned this. So how could I be aware of it? I don’t know. I’ve got no idea.
  10. The Applicant explained that he then returned to Thailand in November because, N, his partner at the time, informed him that her father was close to passing away and he wanted to support her. He described her ‘plead[ing]’ him to return ‘to help her through the situation.’[55] He stated:
    ...it was just to help her in this situation because she helped me in the two years-odd that she put me through rehab following my workplace accident I had in Perth.
  11. Further, he explained he advised Centrelink of his intention to depart Australia to visit his partner:[56]
    Obviously, you know about that by the Beirnart [sic] report. So I made the decision to fly back and then, in that time, timeframe – well, before that. Before I flew out, I saw at least two members in the Centrelink in Warwick and they – they said, ‘Don’t worry. Do what you have to do, return.’ And then I will – she said, ‘If they contact me – when you get back.’ So – but unfortunately, no record has been found. And it wasn’t entered into my account that ultimately – the actual situation, which went through the conversation. So I did – like I say, I did return to Thailand and [N] was the Thai lady whose grandfather passed away on 7 December 2019.
  12. The Applicant’s evidence was that whilst in Thailand he contracted bronchopneumonia, which lasted into the new year and was later diagnosed by doctors in Thailand with a pulmonary disease.[57]
  13. He stated that it was impossible for him to return because Australia had closed its borders due to the COVID-19 pandemic but that even if he wanted to return to Australia, he could not:[58]
    In no way, even if I wanted to return to Australia, I could have sort it. I couldn’t afford to anyway, under the circumstances, even in – even in that period of 2020. When the – you know, when the – when the gates are open again from – to be allowed back into the country. But, you know, my payments, my fortnightly payments from Centrelink, went obviously through the COVID-19 period. And I don’t know why they paid me, but they paid me, but it was only in January 2022 when they reduced it by nearly 50 per cent, thus leaving with me a few problems, this end.
  14. He explained that after July 2022 when his AP payments stopped, his was still receiving UK pension payments, but that they weren’t enough:[59]
    I mean, a thousand – a thousand dollars US, per month. That’s what I had to live off. Now, Thailand is not cheap like people think. And you certainly – you spend that in two weeks in Australia. And you’d be running out of money, and it’s the same with me here. I run out of money after two weeks, and I have to then beg, borrow and steal, to make ends meet until the payment comes through from the UK. And it's, you know, I’m in a position now...

CONSIDERATION

  1. As noted above, the issue before the Tribunal is whether the decision to suspend the Applicant’s AP from 18 November 2019 and raise and recover a debt against the Applicant was the correct and preferable decision.[60]
  2. Critical to this issue is the question of whether the Applicant’s was an Australian resident when he applied for AP. If he was not, pursuant to s 29(1) of the SS Administration Act, the claim for AP is taken to have not been made. If the Tribunal finds no valid claim for AP was made in accordance with s 11 of the AA Administration Act, then in turn the Tribunal must find that the Applicant was not qualified for AP from 1 October 2019, being the date of claim. If it is the case that the Applicant was not qualified for AP, then it would follow that the Applicant’s entitlement to AP should be cancelled from that date.[61]
  3. The Tribunal has considered the available evidence regarding the Applicant’s residency in Australia at the relevant time. Section 7(3) of the SS Act sets out the six factors that have (and must) been considered for this purpose, with no single factor being conclusive and each factor weighing in favour of a finding that the Applicant was not an Australian resident when he lodged his claim for AP on 1 October 2019, for the following reasons:
    (a) When the Applicant lodged his claim for AP on 1 October 2019, he had been in Australia for 5 days, having returned after an absence of 320 days.

    (b) From 5 November 2016 to 1 October 2019, the Applicant had spent 18 days in Australia and 1044 days in Thailand. The Tribunal is satisfied that the Applicant’s dominant reason for being in Australia for those 18 days was to attend to lodging his claims for AP because:

    (i) The Applicant returned to Australia on 28 October 2018, signed his first claim for AP the next day and lodged it the day after. The Applicant then left Australia on 10 November 2018. The claim was rejected as the Applicant had left Australia before the claim was finalised and hence was unable to confirm his identity in person.[62]

    (ii) On 26 September 2019, the Applicant returned to Australia. The Applicant signed his second AP claim for 29 September 2019 and lodged it on 1 October 2019. The Applicant then departed Australia on 18 November 2019, within four weeks of being notified of his AP being granted.

    (c) The Applicant’s departure and arrival records demonstrate that the Applicant has been largely absent from Australia since September 2013 and has resided almost exclusively outside Australia, in Thailand, since 2015 (and particularly, since 2016), visiting Australia only for brief periods and for the purpose of making claims for AP.[63]

    (d) There is no evidence to suggest to the contrary that the Applicant’s absences from Australia were for any other purpose than to set up his home [64] in Thailand with the intention to live there indefinitely.

    (e) There is also no evidence to support that the Applicant maintained any continued association with Australia while physically absent from there.[65]

    (f) The frequency and duration of a person’s travel outside Australia is one of the six factors relevant to determining whether a person is residing in Australia[66] and the factor which generally holds the most weight.[67] The fact that the Applicant subjectively regards himself as an Australian resident is insufficient.[68]

    (g) The Tribunal cannot be satisfied that the nature of the Applicant’s accommodation in Australia is a settled home with a degree of permanence.[69] On his claim form, the Applicant indicated his permanent address in a suburb in Western Australia, being the address of a friend to whom he paid no rent.[70]

    (h) Compared to his living arrangements in Thailand, being either rental accommodation, or with a partner during periods he has been in a relationship,[71] paying rent, taxes, utilities and the like[72] and hence more permanent in nature, the Tribunal cannot be satisfied that the Applicant’s accommodation at the date of claim supports a finding that he resided in Australia at this time.

    (i) As to the nature and extent of the family relationship the Applicant has in Australia,[73] the Tribunal accepts that the Applicant has a partner in Thailand with whom he lived for extensive periods, and a son and a daughter in Australia.[74] There is little evidence before the Tribunal regarding the Applicant’s relationship with his children[75] or his partner in Thailand. Therefore, the Tribunal gives more weight to the Applicant’s relationship with his partner in Thailand on the basis of the fact he has spent significantly more time in Thailand during relevant times, which weighs against a finding that the Applicant resided in Australia at the date of claim.

    (j) Similarly, there is no evidence before the Tribunal of any employment or business ties in Australia.[76] The Applicant maintains an Australian bank account into which his AP was paid and also maintains a Thai debit account used frequently for expenses in Thailand and into which his UK pension is paid.[77] Therefore, matters of the Applicant’s employment, business or financial ties do not favour a finding that the Applicant resided in Australia at the date of claim.

    (k) The Tribunal makes the same interim finding in relation to the Applicant’s assets.[78] The Applicant indicated that Australian shares held by him have been frozen pending a marital dispute and he has tools stored in a friend’s shed in Australia.[79] The Tribunal gives little weight to these assets in circumstances where proceeds of sale could be accessed from outside Australia and therefore finds that this weighs in favour that the Applicant did not reside in Australia on 1 October 2019.

    (l) The Applicant gave evidence that he lives in Thailand because it is more economical and better for his health. The Tribunal is of the view that the Applicant intended to remain living in Thailand at the time he lodged his claim, returning only to deal with matters relating to it. These considerations also weigh in favour of a finding that the Applicant did not reside in Australia on 1 October 2019.[80]

CONCLUSION

  1. The Tribunal has found that the Applicant did not reside in Australia on 1 October 2019, the date he applied for AP (or for several years prior to lodging his claim). Therefore:
    (a) The Applicant’s claim for AP, having been made at a time when he was not an Australian resident, is taken not to have been made;[81]

    (b) The AP should never have been granted and paid to the Applicant from 1 October 2019 to 1 July 2022;[82]

    (c) The Applicant’s AP should be cancelled with effect from 1 October 2019;[83]

    (d) The overpayment of $52,163.48[84] constitutes a debt payable to the Commonwealth; and

    (e) There is nothing before the Tribunal to indicate that the debt, or any part of it, must or should be written off or waived[85] and hence the debt should be recovered in full.

DECISION

  1. The Reviewable Decision, being the decision of the AAT1 dated 2 December 2022, to suspend the Applicant’s entitlement to Age Pension from 18 November 2019 and raise an Age Pension Debt of $47,481.71 for the period 18 November 2019 to 1 July 2022, is set aside and substituted with a decision that:
    (a) The Applicant’s Age Pension is cancelled from 1 October 2019;

    (b) The Applicant was overpaid Age Pension in the amount of $52,163.48 which constitutes a debt payable to the Commonwealth; and

    (c) The debt should be recovered in full and not waived or written off in whole or in part under Part 5.4 of the Social Security Act 1991 (Cth).

I certify that the preceding 62 (sixty two) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

................[Sgd]......................................................

Associate

Dated: 21 June 2024

Date of hearing:
18 January 2024
Applicant’s Representative:
Self-represented
Respondent’s Representative:
Ben Dube of Sparke Helmore Lawyers

[1] R1, T9.

[2] R1, T2.

[3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[4] See Mentink v Secretary, Department of Social Services [2016] FCAFC 39 (Mentink).

[5] As the Tribunal has found that the Applicant was not an Australian resident at the time of his claim for AP [see [60] below], it has not gone on to consider the issues set out at [2(b)(i)] and [2(b)(ii)] below as it is not required to so.

[6] Subsection 29(1) of the SS Administration Act has the effect that unless the Applicant was an Australian resident at the time he lodged the claim, the claim is deemed to have not been made.

Further, section 11 of the SS Administration Act provides that a person who wants to be granted a social security payment “must make a claim” in accordance with Division 1 of Part 3 in which s 29 appears (emphasis added). Therefore, unless the Applicant was an Australian resident at the time of the claim, he could not have qualified for AP. See Mentink at [41].

[7] R1, T6, p 116.

[8] R1, T12, p 98.

[9] R1, T6, p 117.

[10] R1, T6, p 118.

[11] R1, T12, p 181-182.

[12] R1, T12, p 181.

[13] R1, T6, p 118.

[14] T1, T12, p 183.

[15] R1, T12, p 181.

[16] R1, T5, p 93.
[17] R1, T5, p 97 – Question 18 asked: What country are you currently living in? The country of residence is where you normally live on a long term basis.

[18] R1, T5 p 95.

[19] R1, T5, p 105.

[20] R1, T5, p 99.

[21] R1, T12, p 181.

[22] R1, T12, p 175 and T13, pages 225-226.

[23] R1, T12, p 181.

[24] R1, T6, p 112.
[25] R1, T6, p 116 – Question 18 asked: What country are you currently living in? The country of residence is where you normally live on a long term basis.

[26] R1, T6, p 114.

[27] R1, T6, p 124.

[28] R1, T6, p 116.

[29] R1, T7, p 118.

[30] R1, T7, p 132.

[31] R1, T14, p 234.

[32] R1, pursuant to ss 66A(2) and 68(2) of the SS Administration Act.

[33] R1, T12, p 181. There is no record available to the Tribunal of the Applicant advising Centrelink that he was travelling outside Australia on 18 November 2019, nor that his residence status had changed, or was likely to change. See also transcript, p 21.

[34] R2, Annexure A.

[35] R1, T14, p 250.

[36] R1, T9, p 136. See [1] above.

[37] R1, T10, p 145.

[38] R1, T2. See [1] above. At the AAT1 hearing, the Applicant advised that he recalled telling Centrelink staff that he would be departing Australia “shortly”, but confirmed that he did not notify Centrelink of his intended date of departure at any time (R1, T2, p 12).

[39] R2, Annexure B.

[40] Australian Government ‘Guides to Social Policy Law: Social Security Guide’ (version 1.314, 5 February 2024).

[41] G at [57]-[62].

[42] Transcript, p 13.

[43] Transcript, p 11.

[44] Transcript, p 12.

[45] Transcript, p 12.

[46] Transcript, p 12.

[47] Transcript, p 14.

[48] Transcript, p 17.

[49] Transcript, p 18.

[50] Transcript, p 19.

[51] Transcript, p 19.

[52] Transcript, p 19.

[53] Transcript, p 19; R1, T2, p 21.

[54] Transcript, pp 22 to 23.

[55] Transcript, p 23.

[56] Transcript, pp 23 to 24.

[57] Transcript, p 24.

[58] Transcript, p 26.

[59] Transcript, p 26.

[60] See [2] above.

[61] See Mentink at [48] to [50], in particular the discussion of the full Federal Court of the distinction between cancellation of an AP payment (where the person was not qualified for the payment) and suspension of an AP payment (where the person was qualified by the payment was nonetheless not payable in the circumstances). The Tribunal finds no reason not to follow this authority.

See also the potential alternative finding open to the Tribunal (set out in R2 at [27]) that the Applicant was an Australian resident until 2015 (s1220(1)(a) of the SS Act), ceased to be an Australian resident by 26 September 2019 (s1220(1)(b) of the SS Act) and then again became an Australian resident by 1 October 2019 (s 1220(1)(c) of the SS Act), was granted AP on 1 October 2019 and left Australia within 2 years of being granted AP (on 18 November 2019) (s1220(1)(d) and (1)(e)) and therefore 1) AP was not payable to the Applicant during the time he was outside Australia from 18 November 2019 and 2) that being the case, the Applicant’s entitlement to AP should be suspended from that date. As the Tribunal has ultimately found that the Applicant was not an Australian resident when he applied for AP, it is not required to address this alternative (and related alternative debt recovery matters that follow regarding AP received by the Applicant in excess of his entitlements) any further.

[62] R1, T13, p 224.

[63] See R1, T12, pages 181-182.

[64] See Goodfellow and Secretary, Department of Social Security [1992] AATA 301 [22]-[25].

[65] See Hafza v Director-General of Social Security [1985] FCA 164; [1985] 60 ALR 674 [680]-[682].

[66] See s 7(3)(e) of the SS Act, set out at [32].

[67] Instruction 3.1.1.10 of the Guide; Kocaburak and Secretary, Department of Social Services [2018] AATA 942 at [40] and Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 (Taylor) at [17].

[68] See A1 at [60]; Taylor at [19] and Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 at [20] to [21] and [66].

[69] See s 7(3)(a) of the SS Act, set out at [32], Taslim v Secretary, Department of Family and Community Services [2004] FCA 789; (2004) 138 FCR 70 and Instruction 3.1.1.10 of the Guide.

[70] R1, T6, p 124 and R1, T2, p 9 at [17].

[71] R1, T2, p 9 at [17].

[72] See A3.

[73] See s 7(3)(b) of the SS Act, set out at [32] and Instruction 3.1.1.10 of the Guide.

[74] R1, T2, p 9.

[75] See A1 at [30] and [31].

[76] See s 7(3)(c) of the SS Act, set out at [32] and Instruction 3.1.1.10 of the Guide.

[77] See s 7(3)(c) of the SS Act, set out at [32], Instruction 3.1.1.10 of the Guide, A4 and R1, T2, page 9 at [18].

[78] See s 7(3)(d) of the SS Act, set out at [32] and Instruction 3.1.1.10 of the Guide.

[79] R1, T6 and R1 T2, p 9, [18]. To compare, the Applicant has given evidence that he owns tools, a motorbike and a car in Thailand.

[80] See s 7(3)(f) of the SS Act set out at [32] and Instruction 3.1.1.10 of the Guide.

[81] Section 29(1) SS Administration Act.

[82] Section 11(1) of the SS Administration Act.

[83] Section 80 SS Administration Act and Mentink.

[84] Being all AP paid to the Applicant from 1 October 2019 to 1 July 2022: see R2, Annexure C.

[85] Write off and waiver being the only two mechanisms available allowing for a debt not to be recovered. See [2(d)], and [37] to [39] above and Instruction 6.7.3.10 of the Guide. There is no evidence that any of these considerations apply to him (for e.g. incapacity to repay the debt (other than the Applicant’s claim to be of limited financial means [A1 at “Summary” and A2], sole administrative error or any special circumstances), or that there is any legal reason why debt recovery could not be commenced.

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