An interesting argument .....

[rowdy]

I wonder if this would be a interesting argument to put forward at the SSAT for those cut off and who have complied with portability. That is, solely cut of on residency grounds alone.

As we know from section 7(3) of the SSAct there are several factors to be taken into consideration when determining if one is a resident for social security purposes. The Act does not provide for an exhaustive definition of residency by virtue of section 7(3)(f) which provides "any other matter relevant to determining whether the person intends to remain permanently in Australia".

Many are cut off however due to frequent overseas travel but by still complying with portability (13 weeks). One of the factors in section 7(3) in determining residency is section 7(3)(e) "the frequency and duration of the person's travel outside Australia". Could it not be argued that the portability provisions need to be read in conjunction with section 7(3)(e). Furthermore if the legislature had intended to put a an amount of time one needs to spend in Australia to remain a resident, that would have been legislated for.

[Banjo]

A good point.
An issue I consider to be equally relevant is the government's inability to say exactly what a breach of the section 7(3)(e) "the frequency and duration of the person's travel outside Australia" consists of.
They can quantify anything else they like... why not this?

Imagine a police officer trying to enforce the speed limit if the law said... "any speed considered to be excessive".

[rowdy]

May 21, 2012 14:01:59 GMT 7 Banjo said:

A good point.
An issue I consider to be equally relevant is the government's inability to say exactly what a breach of the section 7(3)(e) "the frequency and duration of the person's travel outside Australia" consists of.
They can quantify anything else they like... why not this?

Imagine a police officer trying to enforce the speed limit if the law said... "any speed considered to be excessive".

They do already Banjo, drive in a manner speed dangerous to the public. You can infact even be charged with this offence if driving under the posted limit.

[latindancer]

May 21, 2012 12:58:17 GMT 7 rowdy said:

Could it not be argued that the portability provisions need to be read in conjunction with section 7(3)(e). Furthermore if the legislature had intended to put a an amount of time one needs to spend in Australia to remain a resident, that would have been legislated for.

You have a sharp mind, Rowdy.

May 21, 2012 14:01:59 GMT 7 Banjo said:

An issue I consider to be equally relevant is the government's inability to say exactly what a breach of the section 7(3)(e) "the frequency and duration of the person's travel outside Australia" consists of.

Whatever they say, goes. It's the Law Of The Jungle. No matter what we say, they will try to twist it to suit their own purposes.


"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."

[rowdy]

I just think it is a sound argument.

If the frequency and duration of travel is at issue, why couldn't one raise another part of the same act where they are in fact complying with the portability provisions.

The 13 week portability came into effect well prior to the advent of cheap overseas air travel. It was probably never envisaged that even people on welfare could maintain a sustainable lifestyle overseas even after paying for their airfares. Statutory intention is an important thing. If it was ever intended that residency could be determined by a % of time spent in Australia to that spent out, it would have been legislated for - it hasn't been.

I have do doubt that is why they are reducing portability to 6 weeks, to further tighten the vice and make economically hard for people to travel frequently overseas.

[anotherdsp]

to rowdy,

yep i reckon it what you say is a good point,

as in my case the only ammo i think they have on me is my travel and that is all,so i consider iam well within the law with my travel so whats their problem or is it their DICRECTIONARY decision.

look if i owned a house there is noway i rthink they could do this bullshit to me or anyone else with a similar position as me??

so it is descrimination of people who dont own a property ect in aust we are the easy targets??

[anotherdsp]

AN SO IT gets back to where a person can have resince in one place but not neccesary live there whilst they travel to temporary place to stay for a while??

for a person to be residing in a country ,he must have a settled home in that country! it need not be there only home but it must have some degree of permanance?? so then intention comes into this

your intention to come home to aust to do what we do when at home??

so if you dont own a house and are just a lodger with the intention to lodge at that place what is there problem(c/link). IT doesnt matter that we come home an do our stuff and at the same time our 13 weeks is reinstated now does it??lol

[rowdy]

May 21, 2012 20:05:42 GMT 7 anotherdsp said:

AN SO IT gets back to where a person can have resince in one place but not neccesary live there whilst they travel to temporary place to stay for a while??

for a person to be residing in a country ,he must have a settled home in that country! it need not be there only home but it must have some degree of permanance?? so then intention comes into this

your intention to come home to aust to do what we do when at home??

so if you dont own a house and are just a lodger with the intention to lodge at that place what is there problem(c/link). IT doesnt matter that we come home an do our stuff and at the same time our 13 weeks is reinstated now does it??lol

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

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.

[anotherdsp]

to rowdy, yep i think we are on the same page with this??