DSP - Minimum Period of Return - Residency

[rowdy]

DSP - Minimum Period of Return - Residency

Since the forum started there have been quite a few posts where members have stated that you need to spend "X" amount of time in Australia to remain a resident - often figures like 50% and/or 6 month in the year are mentioned. Basically more time spent in Australia than spent overseas.

I have always disagreed with such statements as they may be more policy decisions of Centrelink and as such may not follow the law. A proper interpretation of the law will always win over policy that doesn't follow it.

Firstly, the SSAct does not provide for this. The KEY TEST is simply whether a DSP'er is a resident pursuant to section 7(3) of the SSAct (see below).

Nowhere is it mentioned in any legislation that a person must spend "X" amount of time in Australia. In fact in section 7(3)(e) it is provided that one factor that must be taken into consideration is "the frequency and duration of the person's travel outside Australia". It is my view that if the legislature had intended a minimum period in Australia that would have been provided for in the legislation - it hasn't been. Furthermore section 7(3) does NOT provide for an exhaustive and conclusive definition of what residency is by virtue of section 7(3)(f) which provides that "any other matter relevant to determining whether the person intends to remain permanently in Australia".

It is is extremely important that members comply with the portability requirements. Section 1217 SSAct provides for the 13 weeks portability period for DSP'er. Interestingly prior to the last amendment the table in Section 1217 provided that the absence from Australia could be for "any reason". This has now been replaced with any "temporary absence". Well, what is a temporary absence then You need to go no further than section 1212C of the SSAct (see below) that provides that "a person's absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of subsection 7(3))". Surprise Surprise an absence will be temporary is the person remains a resident pursuant to the Section 7(3) residency definition. Again, The KEY TEST to residency is knowing section 7(3) of the SSAct and decided cases in the AAT where residency was an issue.

Lastly, just on the issue of having to spend "X" amount of time in Australia. This is a very interesting statement on the Centrelink Website:

What does ‘Minimum Period of Return’ mean?

Parenting Payment customers generally have a minimum amount of time which must be spent in Australia after an absence before the payment can be paid again outside Australia. If you only have recently returned to Australia, how long you can be paid (if at all) for any later departures may depend on whether you have been back in Australia for at least 13 weeks.

I note that this only applies to parenting payment customers. This is further ammunition that there is no minimum period of return for DSP'ers


Section 7(3) SSAct:

Definition of Residency

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.

Section 1212C SSAct

Meaning of temporary absence

For the purposes of this Part, a person's absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of subsection 7(3)).

[zorro1]

"For the purposes of this Part, a person's absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia"

Im afraid that my dosage of pain killers muddles up my mind a tad

sounds like its very open to interpretation. I would have thought that returning to oz every 13 weeks would count and I cant see why someone doing that trip would do it for any other reason than to REMAIN a resident

[Banjo]

This excerpt from my SSAT ruling describes emails exchanged by Centrelink officers that I tendered as evidence.

19. The tribunal noted the email sent from the Centrelink International Help Desk Seniors and International Branch on 7 December 2010 at Folio 49 of the Tribunal papers which stated:


“… a DSP recipient does not have to remain an Australian resident to continue to qualify for the DSP from a residence perspective unless they rely on having a qualifying residence exemption from the residence requirement due to being a refugee.

This means that a DSP recipient can leave Australia permanently or be deemed to no longer be residing in Australia by Centrelink and still qualify for the DSP in their absence. Portability will cease after 13 weeks and therefore they need to return to Australia to maintain portability. There is no minimum time required for which they must remain in Australia to reset the 13 week portability clock and so technically they may land in Australia, go through customs and leave Australia the same or next day and be payable for a further 13 weeks.

Has this actually changed?
And if so how?

[zorro1]

If some of the reports by members here are correct it would kind of indicate some bullying by C/L staff but for what reason? Im curious as to what reward or incentive is provided to low level management and receptionists for providing false information contrary to what Banjo posted.

statements such as " You have been away long enough, blah blah" should IMO be responded to with a short sharp request for it to be put in writing and a receipt , and in no way indulge the C/L person with any further response and hang up, get on with your life

[latindancer]

Apr 18, 2012 13:38:09 GMT 7 zorro1 said:

statements such as " You have been away long enough, blah blah" should IMO be responded to with a short sharp request for it to be put in writing and a receipt , and in no way indulge the C/L person with any further response and hang up, get on with your life

Good thinking, Zorro. This is also the conclusion I came to after getting a call from someone whilst I was overseas, which was in effect bullying me into returning to Oz.

Regarding residency, the person I spoke to in Centrelink yesterday (a DSP "expert") said that a person needs to be "normally" residing in Oz. He also admitted that the word "normally" is open to interpretation.

[Banjo]

My advice to all our members being cross examined is to answer this type of attack with questions...
"then how long can I stay away for, how long is too long, how many times is too many times?"
You're my friend Mr........, you tell me.

[rowdy]

Apr 18, 2012 13:21:08 GMT 7 Banjo said:

This excerpt from my SSAT ruling describes emails exchanged by Centrelink officers that I tendered as evidence.

19. The tribunal noted the email sent from the Centrelink International Help Desk Seniors and International Branch on 7 December 2010 at Folio 49 of the Tribunal papers which stated:


“… a DSP recipient does not have to remain an Australian resident to continue to qualify for the DSP from a residence perspective unless they rely on having a qualifying residence exemption from the residence requirement due to being a refugee.

This means that a DSP recipient can leave Australia permanently or be deemed to no longer be residing in Australia by Centrelink and still qualify for the DSP in their absence. Portability will cease after 13 weeks and therefore they need to return to Australia to maintain portability. There is no minimum time required for which they must remain in Australia to reset the 13 week portability clock and so technically they may land in Australia, go through customs and leave Australia the same or next day and be payable for a further 13 weeks.

Has this actually changed?
And if so how?

Yes it has changed by the last amendment.

Previously a person only had to be a resident when they first qualified for the DSP (s.94(1)(e)(i)). This was the loophole where a recipient could come and go as many times as they wanted. The only way they would get cut off is if they stayed overseas beyond the portability period. This however had nothing to do with residency. Anyone cut off prior to the amendment because of residency would have been reinstated at the SSAT.

Section 94 now requires ongoing residency for continued qualification for the DSP (s.94(1)(ea)(i)). In short a person must be a resident not only when they are first granted the DSP but continue to be a resident.

Again everything leads back to Section 7(3).

[Banjo]

So what is their definition of ongoing residency under the Act?

[rowdy]

Apr 18, 2012 17:26:29 GMT 7 Banjo said:

So what is their definition of ongoing residency under the Act?

Section 94(1)(ei(i) the person is an Australian resident

Australian resident is defined in section 7(3) of the Social Security Act:

Section 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.

[Banker]

Apr 18, 2012 16:05:41 GMT 7 Banjo said:

My advice to all our members being cross examined is to answer this type of attack with questions...
"then how long can I stay away for, how long is too long, how many times is too many times?"
You're my friend Mr........, you tell me.

You're my friend Mr........, you tell me. and can you please put it in writing.

[Banjo]

Apr 18, 2012 17:33:41 GMT 7 rowdy said:

Apr 18, 2012 17:26:29 GMT 7 Banjo said:

So what is their definition of ongoing residency under the Act?

Section 94(1)(ei(i) the person is an Australian resident

Australian resident is defined in section 7(3) of the Social Security Act:

Section 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.

So 7 (3) (e) is considered to overrule all the others?

[zorro1]

Thats because all other things being equal, 7.3.e is the only variable.

(e) is the c/l wild card. If a recipient is borderline on a,b,c,d, then (e) will be used against them even though there is a clear 13 week rule.

[eight]

Apr 18, 2012 17:36:07 GMT 7 Banker said:

Apr 18, 2012 16:05:41 GMT 7 Banjo said:

My advice to all our members being cross examined is to answer this type of attack with questions...
"then how long can I stay away for, how long is too long, how many times is too many times?"
You're my friend Mr........, you tell me.

You're my friend Mr........, you tell me. and can you please put it in writing.

Yep, Your my friend, but I dont have, or use a phone, cause I have a hearing disabillity caused by people telling me lies. Please put it in writing

[rowdy]

Apr 19, 2012 6:32:25 GMT 7 zorro1 said:

Thats because all other things being equal, 7.3.e is the only variable.

(e) is the c/l wild card. If a recipient is borderline on a,b,c,d, then (e) will be used against them even though there is a clear 13 week rule.

In the case Re Clifopoulos and Secretary, Department of Social Security the Tribunal descirbed its task in applying Section 7(3) as follows:

The principles set out above (7(3)) codify the criteria that have traditionally been regarded by the courts as relevant in deciding whether or not a person is a resident.

The criteria should not, however, be applied in a mechanical way in order to reach a determination. The relevance and importance of the factors that constitute the criteria will vary in each case.

In the end, as is apparent from the wording in section 7(3 ),(f), the criteria are there to guide the decision-maker in determining the person’s intention as to the place of residence.

As was submitted by [the Department], when considering the criteria, the decision-maker is also entitled to consider the converse of each factor. For example, when section 7(3 ) of the Act refers to “the nature of accommodation in Australia”, the Tribunal would be entitled to consider the mature of the applicant’s accommodation outside Australia.

The considerations in s 7(3 ) are there to guide the decision-maker in assessing the totality of an applicant’s circumstances; the determination will depend on the facts as found in relation to each individual applicant. No one factor on its own is likely to be determinative.

For example, in Re Wybrow and Secretary, Department of Social Security an absence from Australia for eight years except for one brief period did not preclude a finding that the applicant remained resident in Australia; the Tribunal was satisfied that the applicant had retained his connections to Australia and had only ephemeral connections to Japan.

An applicant’s intention is an important consideration in determining his or her residence. The Tribunal has found that, where a person intends to be absent for a limited time and for a “singular passing purpose”, an absence of seven years is not necessarily incompatible with residence: Re Secretary, Department of Social Security and Mosca

However, a mere statement of intention is not sufficient. It needs to be assessed in light of all the evidence about the applicant’s circumstances in order to determine what weight it should be given.