The decision of the Respondent is confirmed save and except that the penalty imposed is reduced to $1,500.00.

Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1. This application was referred to the Tribunal by the Respondent at the request of the Applicant. It concerns the repayment of a First Home Owner Grant by the Respondent's determination of 7 April 2015. The Respondent determined to disallow the Applicant's objection in relation to the repayment of the First Home Owner Grant for a property at Apartment 810, 367-369 Burwood Road, Hawthorn ("the Property"). To make it clear, the Commissioner had previously paid the applicant a first home owner's grant and the determination was that that was repayable to the Commissioner.

1. The sum of that grant was a total of $26,000 consisting of the grant of $7,000, the bonus of $5,000 and the "boost" of $26,000. I also note that the property I have described is student accommodation consisting of 16 square metres which the applicant has correctly described as approximately half a garage in size. On the 22 March 2009, the Applicant purchased the property. The contract was later varied and the eventual purchase price was $249,500. On 25 February 2011, the Applicant became registered proprietor of the property and took possession of the same.
2. I note that the planning permit for the property requires that it only be used for student accommodation and not for any other purpose and this condition is, in fact, contained in the Contract of Sale which was notified (by delivering a copy of the contract of sale) to the Commissioner at the time that the grant was applied for.
3. The Applicant claims that he moved into the property on 25 February 2011. He said that he slept in his clothes in the property the first night, and he slept on some sheets or other bedding material that he purchased from Kmart, on the second night. On 27 February 2011, his double bed was delivered to the premises.
4. There is a dispute on the evidence as to when the Applicant moved into the premises. The Applicant, at this particular juncture, maintains that he moved into the premises on 25 February 2011. However, in the original declaration from the Applicant's mother, it is stated that the Applicant moved into the premises on 1 March 2011. This accords with the Applicant's residential form which he declared on 2 October 2014, where he states that he moved into the property on 1 March 2011. It is difficult to know when the Applicant actually moved into the premises but on the basis of his original statement which appears to be made closer to the time of the event and his mother's statement, I accept it was 1 March 2011. The Applicant said that he came to the date of 1 March without considering the matter properly and the Applicant's mother said, using the words: "we decided that it was 25 February going back from the time that the bed was delivered". This seems to me like a probably recent invention. In any event, I do not really believe that much turns on the date that the Applicant moved into the property.
5. It is noted that subsequent to 1 March, on 19 April 2011, the Applicant made enquiries about leasing the property and, on 1 August 2011, the Applicant signed an appointment for a College House Management Pty Ltd to lease the property and a lease was signed on 28 August 2011 for the property, such lease was to commence on 2 September 2011. The Applicant maintains that he moved out of the property on 1 September 2011.
6. When the Applicant moved into the property he clearly had part of his Mechanical Engineering Diploma to complete and he indeed did attend classes for the first semester of 2011. The Applicant states that he obtained a recognition of previous studies and as a result got exemptions whereby he had to do no further formal course classes after the first semester of 2011.
7. In the Applicant's material he stated in three witness statements that he moved out of the property on 1 September 2011. He also stated that he was granted exemption from study because of his previous study. However, it was only this morning, while giving oral evidence in this Tribunal, that the Applicant stated that after the first semester of 2011 he still needed to attend Swinburne University for the purpose of talking to his teachers, giving a presentation and studying in the library in order to obtain the exemption. This was not mentioned in three documents that the Applicant prepared for this Tribunal. Those documents are a declaration on 5 October 2014, the Applicant's witness statement of 10 March 2015 and the Applicant's further witness statement, which copy I have as undated but was filed this morning to which the Applicant stated was true and correct.
8. In any event, it seems quite incredible that, in a proceeding where the Applicant's occupation of the property is crucial, he did not state in the documents he filed with the Tribunal and served on the Respondent, that he needed to occupy the property after the first semester to do work at the University to obtain exemption from further study. This was first mentioned this morning in oral evidence.
9. I also note that during the whole period of his course, the Applicant was working for 40 hours per week at Croydon. He used to travel to Croydon by car. The Applicant stated that because of his work commitments and study commitments he would be away from the premises between 6:00 am and 9:30pm. He said he showered at the gym and he only had 3 - 4 meals at the property, which usually consisted of scrambled eggs. It is noted that the property does not have any laundry facilities apart from a communal laundry in the actual building and does not have an oven.
10. Ms Baker, who appears on behalf of the Respondent, submitted that I should infer that the Applicant left the premises and no longer slept there after July or August 2011. The Applicant's mother says that the Applicant slept at the property and that he did not sleep at home. The Applicant also states that.
11. However, there are matters that give me concern as to the truthfulness of that statement. The electricity bills for July and August 2011 show a sharp decline in use from what they showed in the previous month. They show in fact that for the period of September the Applicant used 1.98 kilowatt hours and each bill states that the account is based on an actual reading. The bills also show that in the month of August there was a usage of 5.97 kilowatt hours. There is also a peak amount of 3.9 kilowatt hours and of course there is the fixed charge. I return to the bill for September and the peak amount there was 1.9 kilowatt hours. It is interesting to compare that bill with the bill dated the 11 July where there is an off peak usage of 15.3 kilowatt hours and a peak usage of 20.39 kilo watt hours and again in June there is the usage of the off peak of 14.9 kilowatt hours and the peak usage of 20.71 kilowatt hours. In May there is the usage of the off peak of 7.93 kilowatt hours and the peak usage of 11.47 kilowatt hours so those bills indicate that there was certainly a large drop off in the usage of electricity in July or August 2011.
12. The Applicant's father who has expertise as an electrical engineer has suggested that there wasn't enough electricity to even run the fridge. However, the fact that the bills show a sharp decline after June in my view tends to indicate that the property was not occupied or at least had very little occupation from July onwards. While the Applicant's father has done considerable mathematics to analyse electricity usage, there are a number of factors which he did not consider. He did not take into account air conditioning use which was also for heating nor did he take into account a desk lamp, nor the charging of the mobile phone. I find it difficult to accept that the Applicant would not have charged his computer at the premises at all but that was his evidence. I find that very difficult to accept particularly in the line of work which he was in.
13. I also note that the water usage of the premises showed a drop off in the July and August period. That also indicates to me that the premises were not used very much in that period.
14. In addition to the above, the Respondent has done an analysis of the Applicant's use of his credit or debit card. Up to July 2011 it appears that that card was used frequently in the Hawthorn/Glenferrie Road area. However, after that period it was not used in that area at all. The Applicant said that he had more time on his hands and thus he went to other areas that were further away such as St Kilda, Templestowe and other areas which he mentioned. I do not accept the explanation that the Applicant has given.
15. In my view it seems clear from all objective evidence that at least in July and August the Applicant was not living in the premises as his principal place of resident. I also take into account that the Applicant when he purchased these premises, knew full well that he would be living in them for a finite time. That finite time was while he was a student. He was unable to live in these premises if he was not a student.
16. It is clear from the letter in April 2011 to which I have referred that he intended to lease the premises when he vacated. So even if he was to be a student until the middle of 2012 that is still a finite time. It is also clear that the Applicant did not do any laundry at the premises because he said he had no facilities and he dropped the laundry in to his mother and do it once a week. I accept that evidence.

1. Section 12 of the First Home Owner Grant Act 2000 ("the Act") is relevant to this proceeding. Sections 5-13 of the Act requires a number of criterion be fulfilled before a person is eligible for a grant. The criteria that is in dispute in this particular case is contained in section 12 of the Act. That criteria reads as follows in section 12(1).

12(1) An Applicant for a First Home Owner Grant must occupy the home to which the application relates as the Applicant's principal place of residence for a continuous period of at least 6 months or a lesser period approved by the Commissioner commencing within the 12 month period immediately after the completion of the eligible transaction or within a longer period approved by the Commissioner.

1. There is no doubt in this particular instance that the date of the eligible transaction was 25 February 2011which was the date that the Applicant took possession of the premises and the contract was complete. I also note that the pursuant to section 32 of the Act on the review, the objector which is the Applicant in this case, has the onus of proving this case.

1. I now come to deal with the, what has become known in the First Home Owner Grant cases as, the Ferrington Principles. There are six in number and they were decided by the New South Wales Administrative Decision Appeal Panel and the case is Chief Commissioner of State Revenue v Ferrington [2004] 57 ALR 170 at page 183 paragraph [42]. The principles are, and I will recite them:
   1. The words 'principal place of residence' should be given their ordinary meaning in a context in which they appear.
   2. Consideration of whether a person has been residing or occupying premises as a place of residence is to be assessed objectively in light of the circumstances relating to the actual occupation of the dwelling.
   3. Intentions of the person concerned gauged objectively is relevant but not determinative of the issue.
   4. To occupy a home as his or her principal place of residence, a person's occupation must have a degree of permanence to it. A connection to a place of residence of a transient or temporary contingent or passing nature is not sufficient nor is occupation for some other purpose.
   5. The short length of a person's residence is relevant in determining the issue.
   6. The reason for a person's departure from the house must be reasonable and adequately explained when considering objectively in the light of all these circumstances.
2. I will now consider the six Ferrington principles. The first principle is that the principal place of residence must have an ongoing occupancy and must be construed within the statutory context. Put differently there must be an element of permanency in the occupation.
3. The second principle is that "whether the place is the Applicant's permanent place of residence must be considered objectively in the light of the circumstances of the actual occupation". The Applicant submitted that not doing laundry at the property was not relevant, as there was in fact no laundry at the property. Further the Applicant in his evidence said that he had 3-4 meals a week at the property and that he otherwise ate out. He said that he was away from the property between 6.00 am and 9:30 pm on most days. He also said bearing in mind the nature of the property he could not stay there for any indefinite period. It had to only be a period to which he was a student and as I have made mention he thought that period was to continue up until mid-2012.
4. What I do note is that not only was the Applicant's laundry done at his parent's home, but there was a continuing association with his parent's home. The mail was delivered to his parent's home. Not only his normal mail but the mail from the body corporate regarding the apartment was delivered there. I find that quite extraordinary if the Applicant was intending to live in this apartment as his principal place of residence why he would have asked the body corporate to send the mail to his parent's home? Further he did not change his electoral roll address or his driver's licence details. While any one of these factors may not in itself be determinative put together they tend to show a pattern of events. There was nothing that happened to cause the Applicant to leave the premises that he did not expect. He said that he expected to stay there until the middle of 2012 when he completed his course. That is he intended to stay there until the course was completed. In this particular instance, the course was completed after the first semester and it was always the intention that the property would be vacated after the course was completed. He had to vacate pursuant to the conditions of the planning permit for the property.
5. Taking all these matters into account I have come to the conclusion that assessing the Applicant's occupancy of the property objectively, by an outsider looking in, that the outsider would not come to the conclusion that the property was the Applicant's principal place of residence.
6. This particular proceeding is slightly different to many of the other proceedings that have come before me because most of the other home properties provided for laundry and proper cooking facilities rather than just 16 square metres of space. However I have come to the conclusion that the fact that there was only 16 square metres of space should not alter my view that the normal principles in assessing occupation in an objective manner should not be taken into account. This is not of course, to say that all small premises fit into that category. It may well be that in some circumstances a person could go and do their laundry at a "Laundromat" or use a communal laundry. However, in this particular case, it is clear from the evidence to which I have referred that the Applicant had a particular attachment to his parent's house which he occupied before and after he left the property.
7. The third Ferrington principle relates to intention. As I have mentioned it is clear that the Applicant only intended to occupy the premises until the middle 2012. That is putting it at the highest. Or put a different way, he could only occupy the premises while he was a student. Therefore, it necessarily follows that there was lacking a degree of permanence in his intention. His intention was to occupy these premises for a short and finite period. Whether that period be for 6 or 12 or 18 months in my view it does not matter it was always his intention to leave these premises and as such that cannot be his principal place of residence.
8. To find the property was his principal place of residence in my view would be inconsistent with the Applicant's intention as I have mentioned. In any event, I find bearing in mind the letter the Applicant received from the body corporate after the enquiry he made in April 2011 that at that point he formed an intention to leave the premises. It was clear by April 2011 that the Applicant was intending to use these premises as an investment premises and certainly by 11 August he had appointed the agent to find a tenant. Therefore on any view of the fact the Applicant did not have the required intention of permanent residency for the period of six months.
9. The fourth Ferrington principle deals with the concept of transient temporary or contingent of a passing nature. I have largely dealt with this particular matter in the sense that the Applicant lived at his parent's home both immediately and before the stated period of occupation and he had not abandoned his parent's home in the intervening period. I again note that his laundry was done at his parent's home, his mail was delivered there as was his driver's licence and he was registered at the address of his parents on the electoral roll. I also note that the Applicant was working very close to his parent's premises in the same suburb which was a considerable distance away from the property in Hawthorn.
10. I have dealt with the utility usage and I say that even before July and August indicates a very low usage but certainly after that period it was extremely low. The Applicant basically only slept at the property apart from the 3 -4 meals per week he ate there. There was a statement from Mr Schultz (a friend of the Applicant) that said that on occasions they played the game Wii on the television and they hung out at the area. That may be correct but in my view that does not by itself alter the nature of the intention of the Applicant.
11. The fifth Ferrington principle relates to the short period of occupation. I have found that the Applicant ceased to occupy the premises probably around the end of June or at the time relating to the end of the first semester. That is clearly less than the six month requirement, but in any event the period even on the Applicant's best evidence is 6 months and 4 days that is from 25 February until 1 September 2011. That indicates that the Applicant intended that his occupation of the premises would be transitory contingent on a passing nature. I noted that while the Applicant may have at some point in time thought he would stay longer that seems to be not what had happened. In any event residence at the property was always to be for a finite time.
12. The sixth Ferrington principle is dealing with the reasons for the Applicant's departure. In this particular instance I take into account the fact that the Applicant departed because he had finished his semester and finished his course. I have found that that was inside the six month period. He had a real incentive to move back to his parents place because he was working at Croydon. I do not accept the Applicant's mother's evidence or the Applicant's evidence that he did not stay in his parents' house at all before 1 September 2011. Given the circumstances of where the Applicant was working, his difficulty of maintaining his university work with his working it is very unlikely that he would not have spent some time living in his parents' house between 25 February and 1 September 2011.
13. Taking all these matters into account I am satisfied that the Applicant has not complied with the requirements of section 12 of the Act in that he has not occupied the premises for a period of six months commencing within the first 12 months of occupancy. It does follow that in relation to the Respondent's decision to return the first Home Owner Grant the decision will be confirmed.

1. I now turn to the question of penalty. The Applicant has been charged a penalty of $2,600 which is 10% which I have found in many cases is reasonable having regard to the factors in these matters. A number of factors were referred to in the matter of purpose of penalty in Balkis v Commissioner of State Revenue [2012] VCAT 1980. I deal with those factors of the truthfulness of the Applicant in his original statement; which the Applicant seems to have crafted almost in order to obtain the grant.
2. Further I deal with the surrounding circumstances of this case. While I do not conclude that student accommodation can never be the subject of a First Home Owner Grant, in my view the fact that there is student accommodation should put the Commissioner on notice and ask some questions as to how long that person is going to stay in those premises. I have dealt with the intention of the Applicant but the Commissioner could well have made some enquiries knowing that there were student accommodation. He did not. The reasons that the Applicant failed to comply with condition of the grant: those reasons are that he largely wanted to lease the premises and have completed his course. It also follows that he was not permitted to stay in the premises because he was no longer a student.
3. The next matter which should be considered is whether the Applicant occupied the premises as his principal place of residence. In my view I have found the Applicant never occupied the place as his principal place of residence. Looking at the matter objectively, it was not a proper occupation, it was of a transient type.
4. The next matter is the candour of the Applicant and I found that the candour was less than truthful and I take that into account. I also found the grant should be refunded. I also take into account the deterrent effect of a penalty which is very important in these cases.
5. Having taken all these matters into account I believe that the penalty of $2,600 should be reduced and my reason for reduction that the Commissioner could well have made initial enquiries bearing in mind that he should have known that these premises were student accommodation. As a result I will reduce the penalty to $1,500.
6. The decision of the Respondent is confirmed except that the penalty imposed is reduced to $1,500.