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Post by immiadvice on Oct 29, 2011 18:22:46 GMT 7
The law is now different on this one. To be eligible for the DSP there is now a residence requirement. It is no play on words and don't think for a second that the appeal review was not read over by their legal team before you got your hands on it. Your (lack of) Australian residency was not what you had appealed. What you had appealed was whether they could cancel your DSP because you were no longer a resident. At the time they could not and you were entitled to continue to receive the DSP. Since July 1st however the law says you must remain an Australian resident. Centrelink, against usual practices, are delaying the onset of this by six months (to January 1st 2012) I guess to cushion the blow for some people.
If you closely read your appeal review you will understand what has happened.
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Post by Banjo on Oct 29, 2011 19:23:55 GMT 7
..oh well..wait and see..thanks for the encouragement..I'll survive..keep you informed. That's all we can do Rod, I'm due back about the time they bring in their changes, at least if they pull the plug on me again it won't be the middle of winter. I've given up worrying about it anyway, I have no ties or responsibilities in Asia. I've pissed off people, in and out of Centrelink, by getting the next plane out of Australia after reinstatement... popular opinion was that I should have stayed home like a good boy and been thankful that I got lucky. Well I wasn't lucky, I was right, and I'm still right.
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Post by rowdy on Oct 29, 2011 20:39:07 GMT 7
The law is now different on this one. To be eligible for the DSP there is now a residence requirement. It is no play on words and don't think for a second that the appeal review was not read over by their legal team before you got your hands on it. Your (lack of) Australian residency was not what you had appealed. What you had appealed was whether they could cancel your DSP because you were no longer a resident. At the time they could not and you were entitled to continue to receive the DSP. Since July 1st however the law says you must remain an Australian resident. Centrelink, against usual practices, are delaying the onset of this by six months (to January 1st 2012) I guess to cushion the blow for some people. If you closely read your appeal review you will understand what has happened. I have to agree with immiadvice on this one. When Banjo was cut off, he was cut off under the law as it stood before the amendments. It was in fact a loophole in the legislation that has not been plugged (somewhat). The legislation only required that a DSP'er needed to be a resident at time they applied. Yes, one could lose their DSP by failing to comply with the 13 week portability, but nonetheless it was only a requirement that the DSP'er be an resident at time of applying. The law has been changed. The rules and definitions of residency are still the same. The amendment is that of an ongoing requirement that one be a resident, not just at date of application but continuing. The SSAct defines what a resident is for the purposes of the Act. However it is not exhaustive. It is important to look at case law to see how the Act with regards to residency had been interpreted.
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Post by Banjo on Oct 29, 2011 22:20:41 GMT 7
Well there's not going to be any case law is there because there have been no cases under the new legislation. Up to us to make some I suppose.
I can't work them out, why go to this level when they know it's contestable when they could have had the law in black and white.
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Post by zorro1 on Oct 30, 2011 15:09:36 GMT 7
With the permanent portability rule coming into effect in JULY it may be a good time for those with serious disability 0-7 myself included to apply for it although I dont know how to apply for it or even if you can? I guess you just dont come home and they leave you alone if you qualify, any thoughts anyone?
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Post by Banjo on Oct 30, 2011 18:25:48 GMT 7
I've no idea Zorro, I imagine there will be some sort of press release the same as it was announced this year. I've given up trying to out guess them, we have two/three people on this topic think we'll all be back in Australia without pensions on Jan 1st so lets get ready for the bad stuff before we even think about looking at anything good that may come along.
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Post by zorro1 on Nov 2, 2011 11:02:41 GMT 7
With the permanent portability rule coming into effect in JULY it may be a good time for those with serious disability 0-7 myself included to apply for it although I dont know how to apply for it or even if you can? I guess you just dont come home and they leave you alone if you qualify, any thoughts anyone? Im giving serious thought to applying for permanent portability now before the effect date 7/2012 Im only recently approved in the serious disability category and there is no chance of ever joining the work force again. I already have some good advice from spacey but just want to run it past you guys. I would be calling them from Thailand as Im here until December. Anybody care to guess how c/link would react to my request?
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Post by Jesus on Nov 2, 2011 12:39:04 GMT 7
LISTEN TO WHAT IMMIADVICE IS SAYING!!!
Centrelink is planning a MASSACRE in January!!!
The ONE THOUSAND people who have been travelling overseas three or more times in a calendar year will be called into an interview, an interview in which they will tell each of the one thousand that THEY ARE NOW CONSIDERED TO BE NEWLY RETURNED RESIDENTS WHO MUST NOW WAIT TWO YEARS UNTIL THEY TRAVEL OVERSEAS AGAIN!!!!!!!!
This is a secret, or not so secret plan that they have, to MASSACRE the one thousand DSPers who are overseas too much.
Anyone who is clever, intelligent, or cunning, will have already seen that what Immiadvice has said is true, and they will have ALREADY RETURNED TO AUSTRALIA TO SECURE THEIR RESIDENT STATUS!
I warn you again, this is a secret MASSACRE that Centrelink is planning for January!
Zorro, your plans are a fantasy:
1) The permanent portability legislation has not even been introduced to the parliament yet, and the Gillard government could fall early in the new year, or at any time. Your plans are in fantasy-land.
2) Yes, you are severely disabled, but there is an ONGOING REQUIREMENT FOR RESIDENCE. Unless you have a strong reason that secures your residence status in Australia, such as owning a house in Australia, or strong family ties, you too, Zorro, will be required to prove your RESIDENCE on an ongoing basis, which may mean you will not be allowed to travel to Thailand for more than 6 months or 1 year at a time, depending on the strength of your RESIDENCE ties to Australia. The residency guidelines clearly state: 6 months in a calendar year for continuous holidays to Thailand, or up to 3 years at a time, only if you have VERY STRONG RESIDENCE TIES TO AUSTRALIA.
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Post by zorro1 on Nov 2, 2011 13:14:20 GMT 7
"The residency guidelines clearly state: 6 months in a calendar year for continuous holidays to Thailand, or up to 3 years at a time, only if you have VERY STRONG RESIDENCE TIES TO AUSTRALIA."
where does it say that?
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Post by Jesus on Nov 2, 2011 15:44:14 GMT 7
Determining whether a person is residing in Australia SSAct section 7(3) lists the factors to be taken into account when deciding whether a person is residing in Australia. These are: 1. The frequency and duration of the person's travel outside Australia. 2. The nature of the accommodation used by the person in Australia. 3. The nature and extent of the family relationships the person has in Australia. 4. The nature and extent of the person's employment, business or financial ties in Australia. 5. The nature and extent of the person's assets located in Australia. 6. Any other matter relevant to determining whether the person intends to remain permanently in Australia. 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 one 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 section 7(3). 1. Frequency & duration of the person's travel outside Australia 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.Read more: dspoverseas.proboards.com/index.cgi?board=experiences&action=display&thread=698&page=2#ixzz1cXVj9Lsc
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Post by Banjo on Nov 2, 2011 15:57:42 GMT 7
Good to see you using a reliable source to quote from JC.. Anyone who has been continuously out of the country for three years would have lost his payments after three months and been cut of the DSP after six so it hardly applies to anyone here. As good observers of the Social Security Act we return to Australia every thirteen weeks and so legally remain residents.
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Post by rowdy on Nov 2, 2011 16:13:46 GMT 7
LISTEN TO WHAT IMMIADVICE IS SAYING!!!Centrelink is planning a MASSACRE in January!!! The ONE THOUSAND people who have been travelling overseas three or more times in a calendar year will be called into an interview, an interview in which they will tell each of the one thousand that THEY ARE NOW CONSIDERED TO BE NEWLY RETURNED RESIDENTS WHO MUST NOW WAIT TWO YEARS UNTIL THEY TRAVEL OVERSEAS AGAIN!!!!!!!!This is a secret, or not so secret plan that they have, to MASSACRE the one thousand DSPers who are overseas too much. Anyone who is clever, intelligent, or cunning, will have already seen that what Immiadvice has said is true, and they will have ALREADY RETURNED TO AUSTRALIA TO SECURE THEIR RESIDENT STATUS!I warn you again, this is a secret MASSACRE that Centrelink is planning for January! Zorro, your plans are a fantasy: 1) The permanent portability legislation has not even been introduced to the parliament yet, and the Gillard government could fall early in the new year, or at any time. Your plans are in fantasy-land. 2) Yes, you are severely disabled, but there is an ONGOING REQUIREMENT FOR RESIDENCE. Unless you have a strong reason that secures your residence status in Australia, such as owning a house in Australia, or strong family ties, you too, Zorro, will be required to prove your RESIDENCE on an ongoing basis, which may mean you will not be allowed to travel to Thailand for more than 6 months or 1 year at a time, depending on the strength of your RESIDENCE ties to Australia. The residency guidelines clearly state: 6 months in a calendar year for continuous holidays to Thailand, or up to 3 years at a time, only if you have VERY STRONG RESIDENCE TIES TO AUSTRALIA. Jesus has raised some very good points here. There is now an ongoing/continuing requirement for residency. The test for residency is found in SSAct sec 7(3), but the Act is not conclusive of the residency definition. ALL factors are taken into consideration. 7(3)(f) any other matter relevant to determining whether the person intends to remain permanently in Australia. . Look at past decided cases where residency has been tested. With regards to:- "The residency guidelines clearly state: 6 months in a calendar year for continuous holidays to Thailand, or up to 3 years at a time, only if you have VERY STRONG RESIDENCE TIES TO AUSTRALIA". What guidelines?? Is this DIAC Policy?? Remember policy must follow the law and not be inconsistent with it. My strongest advice to anyone who thinks they may have residency issues is to familiarize themselves with section 7(3) of the SSAct: www.austlii.edu.au/au/legis/cth/consol_act/ssa1991186/s7.htmlLook at past cases where residency has been tested: Downey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 287 (10 April 2008) Rosehart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 699 (11 September 2009) Rahn and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 429 (7 June 2011) DONT WAIT UNTIL YOU ARE NOTIFIED BY CENTRELINK THAT THEY WANT TO EXAMINE YOUR RESIDENCY. START TRYING TO MAKE A CASE NOW. ARM YOURSELF WITH KNOWLEDGE.
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Post by rowdy on Nov 2, 2011 16:17:31 GMT 7
Good to see you using a reliable source to quote from JC.. Anyone who has been continuously out of the country for three years would have lost his payments after three months and been cut of the DSP after six so it hardly applies to anyone here. As good observers of the Social Security Act we return to Australia every thirteen weeks and so legally remain residents. Banjo, I cant speak for JC but I think (maybe he will correct me if I am wrong) he meant three years and complying with 13 week portability. You are right a DSP would have been cut off a long time ago if being outside Australia for 3 years continuously - 2 years and 39 weeks to be exact
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Post by Jesus on Nov 2, 2011 16:23:55 GMT 7
Banjo,
I was referring to the hypothetical situation where the unlimited portability legislation is passed early next year, coming into effect in July 2012.
In this case a severe, permanent DSPer like Zorro could go to Centrelink and ask for permission to go on HOLIDAY to Thailand for THREE YEARS, continuously. According to the Fahcsia guidelines, it appears that Centrelink may allow this if ALL of the other residency conditions are strongly met: Zorro would have to own a house in Australia, AND have strong family ties with parents, children, siblings and spouses in Australia, AND have Australian bank accounts, shares, assets etc AND have an intention to return to Australia in three years AND have only temporary hotel or guesthouse accomodation in Thailand AND no permanent relationships (only Thai girlfriends- me love you short time) AND no bank accounts or assets in Thailand.
I think in this case they will allow Zorro to stay in Thailand for three years continuously, without returning. BUT they will then expect Zorro to stay in Australia for probably a full TWO YEARS afterwards, otherwise he will then jeopardize his Australian residency if he goes overseas again.
Otherwise, on a continuous basis, with VERY STRONG RESIDENCE TIES, Zorro could push the boundaries and stay in Thailand for 8 or 9 months every year, for decades until he turns 65, and then he will have no ongoing residence requirement. OOPS! except for the 25 years rule OOPS! I dont know how that's going to work.
Note that with the unlimited portability, all of the extra payments such as Rent Assistance, Pension Supplement ($30 per week) ceases after 13 weeks.
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Post by zorro1 on Nov 2, 2011 16:44:10 GMT 7
"I think in this case they will allow Zorro to stay in Thailand for three years continuously, without returning. BUT they will then expect Zorro to stay in Australia for probably a full TWO YEARS afterwards, otherwise he will then jeopardize his Australian residency if he goes overseas again"
thanks for the reply, all very interesting especially the above
If you are correct then absolutely no one will be able to depart PERMANENTLY regardless of there disability unless it terminal
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