Editors --- "Age pension: residency" [2012] SocSecRpr 26; (2012) 14(3) Social Security Reporter, Article 7

• SECRETARY TO THE DFHCSIA and KOLOMINSKAS
• Legislation
• Submissions
• Consideration of the Tribunal
• Formal decision

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Age pension: residency

SECRETARY TO THE DFHCSIA and KOLOMINSKAS

(2012/513)

Decided: 6th August 2012 by P.E. Hack

Kolominskas was born in Germany but he had been an Australian citizen for many years. He was a teacher by profession and between September 1999 and April 2011 (when Kolominskas turned 65) he pursued that profession in China. Shortly after his 65th birthday, and having returned to Australia, Kolominskas applied for age pension and his claim was granted.

On 1 December 2011 Kolominskas travelled to China. He returned to Australia on 17 December 2011. On 2 December 2011 Centrelink decided that Kolominskas was not qualified to be paid age pension during the period of this absence. On 14 May 2012 the SSAT set aside the decision and substituted the decision that Kolominskas was entitled to be paid age pension from 1 December 2011 to 16 December 2011.

The Secretary sought a review of the decision of the SSAT.

Legislation

The relevant legislation was s.1220 of the Social Security Act 1991 (the Act):

1220(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) a disability support pension; or

(iii)a bereavement allowance; and

(e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; ...

(f) ...;

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

In the case of an Australian citizen the expression ‘Australian resident’ is defined in s 7(2) of the Act as a person ‘who resides in Australia’. Section 7(3) of the Act provides,

7(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.

Submissions

The case for the Secretary was that before September 1999 Kolominskas was an Australian resident, that he ceased to be an Australian resident in the period of his teaching in China between 1999 and 2011, that he again became an Australian resident in April 2011 and that, because he was absent from Australia between 1 December 2011 and 16 December 2011 i.e. within the period of two years after he again became an Australian resident, age pension was not payable to him during the period of that absence.

Kolominskas contended that he remained an Australian resident throughout the period notwithstanding his absences in China between 1999 and 2011.

Consideration of the Tribunal

The AAT noted the following factors in determining whether Kolominskas resided in Australia between September 1999 and April 2011.

The Secretary had undertaken an analysis of Kolominskas’ departures and arrivals which demonstrated that during the period of about 11 1/2 years Kolominskas was present in Australia for just over 66 weeks. The AAT noted that the pattern that emerged from the departures and arrivals, was driven by Kolominskas' work pattern in China. He taught two semesters each of about five months, the first commencing in September, the second commencing in February. He had breaks in January/ February and July/August each year.

Kolominskas did not have a right to reside full-time in China. His Visa permitted him to reside there only during the currency of his employment. Thus, at the end of each semester, he had to leave China and could return only prior to the start of the new semester. Generally he returned to Australia during these breaks although on some occasions he travelled elsewhere internationally.

Kolominskas’ employment, initially, was on the basis of 12 month contracts. Between 2002 and 2007 he was employed under a contract with a term of five years (but was still required to leave China between semesters). He reverted to single year contracts thereafter.

The college where he taught in China provided accommodation for him. The accommodation was basic and prior to 2003 he had no access in it to a telephone, television or the Internet. He described it as a furnished unit; the description suggested that it was in the nature of a boarding house.

Kolominskas did not own, nor rent,separate real property in Australia. Initially on his return to Australia he resided with his mother. After she passed away in 2003 he rented a room in his sister's house. His living conditions there were, he said, much more comfortable and convenient than those that he experienced in China.

Kolominskas was not in any domestic relationship during the relevant period of time and his children were grown up and self-supporting. Thus the family ties that he had with Australia were somewhat less than might normally be found. Nonetheless he maintained contact with them and visited them in parts of Australia on his trips back to Australia from China. Additionally his immediate family lived in Australia. Kolominskas had no family relationships in China.

Kolominskas’ nominal employer was an Australian company with a head office in Perth. It was responsible for the payment of his salary, accommodation and medical insurance. Kolominskas received superannuation payments (and paid income tax thereon) into a bank account in Australia and undertook normal banking transactions through Australian bank accounts. His personal possessions, clothing, books, papers and suchlike were kept in his room at his sister's house. That room was available to his children when visiting the family. He maintained some clothing and books but had little by way of personal possessions in China apart from a bicycle, the only means of travel for him in China.

The AAT concluded that during his absences in China Kolominskas continued to reside in Australia and travelled to China, generally twice per year, to engage in employment in that country for a period of up to five months. He maintained a household in Australia, albeit not a particularly substantial household, to which he returned between periods of employment. Although during that period Kolominskas was employed pursuant to a contract with a five-year term, the contract did not give him the right to remain in China between semesters; he was still required to leave that country even when he was contracted to return.

Formal decision

The AAT affirmed the decision of the SSAT. [A.T.]