7.2.4 The Tribunal's findings as to the applicant's financial links to Australia (Tribunal's reasons at [68]-[73])
60 Thirdly, the applicant relied upon the Tribunal's treatment of his evidence as to his financial links to Australia. In this regard, the Tribunal found that:
68. The strongest link the applicant has with Australia since leaving in January 2013 is his financial link - his superannuation and bank accounts. He said that he had not sort [sic] advice about its portability outside Australia, he did not know whether he would lose benefits if he moved it, or whether he could access the funds anywhere in the world after the account reaches pension phase, or the implications of accessing funds held overseas. The Tribunal did not find his claimed lack of knowledge about his superannuation fund, to be persuasive.
69. The applicant has significant wealth in the UK, France and Australia. The Tribunal does not accept that a person of his wealth, qualifications, and experience in finance would not have a detailed knowledge of what he could or could not do with his Australian superannuation funds. He has regular discussions with a financial planner. He has made decisions in the past to move his funds.
70. The Tribunal finds that the applicant was conscious that his case was stronger if his funds in Australia were not readily available to him outside Australia.
61 The Tribunal then further found that:
71. The applicant's legal representative said during submissions that the applicant could access his superannuation funds on reaching preservation age in November 2016. The legal representative submitted that the applicant will leave the money in Australia until he retires and returns to Australia.
72. The applicant did say that he knew that he could transfer money from bank accounts held in Australia to UK accounts without difficulty. That would apply to his Australian bank accounts, subject to the terms and conditions applying to those accounts.
73. The Tribunal accepts that the applicant has retained and added to his superannuation fund and bank accounts in Australia which is consistent with being able to access and use the funds when he is in Australia or making payments overseas in Australian dollars, subject to the funds being available at the time.
62 As the applicant submits, the finding by the Tribunal that it did not accept that a person in the applicant's position would not have "detailed knowledge of what he could or could not do with his Australian pension funds", while expressed in the negative, can be read only as a positive finding that he did have such detailed knowledge contrary to the applicant's evidence. That understanding of the Tribunal's reasons is confirmed by the fact that it is apparently that finding which forms the basis of the finding at [70] of the Tribunal's reasons. With respect to the finding at [70], the applicant submitted that:
There is no ambiguity in that finding. The Tribunal found that Mr Judd made a conscious decision to keep his superannuation funds in Australia for the purpose of strengthening his case: that is, he kept his funds in Australian accounts not because he genuinely intended to retire in Australia, but for the purpose of laying a trail that could be shown to the Minister as evidence of a close and continuing association with Australia in circumstances where he did not genuinely intend to reside or retire in Australia. That is the only basis upon which a finding made in those terms could have been material to the tribunal's decision.
63 I agree with that construction of the finding. It is true in this regard, that the applicant was cross-examined as to his knowledge about the portability of his superannuation fund and whether or not his Australian pension was portable once he was able to draw a pension, as earlier mentioned. Further, in a somewhat confused exchange before the Tribunal, the Senior Member suggested that there was a question about the applicant's knowledge of the portability of the applicant's pension, to which Mr Marcus for the Minister said that "I suggested the exact opposite. I suggested that one of the reasons why he may not have taken it with him is that it wasn't portable. He would have lost all the tax benefits", apparently referring to the fund itself. However there was no suggestion at the hearing in cross-examination or otherwise that the applicant in fact had a detailed knowledge of what he could do with his Australian pension fund or, more significantly, that suggested that he left the money in Australia in order to strengthen his case for citizenship as the Tribunal found at [70]. To the contrary, the bona fides of the applicant was not at any point put in issue. In those circumstances, the findings at [68] to [70] of the Tribunal's reasons cannot be said to have been obviously open such that it was unnecessary for the applicant to have been put on notice that his credibility on this matter was in issue. It follows that this was not a case answered by the proposition upon which the Minister relied, namely that "in assessing and reconciling material before it, [the Tribunal] is not bound to accept or reject any piece of evidence in whole, and it is often the case that a view of the facts is found which does not accord with the evidence or submissions by either side" (Lidono Pty Ltd v Commissioner of Taxation [2002] FCA 174; (2002) 67 ALD 656 at [20] (Gyles J)).
64 Nor do I accept the Minister's submission at the hearing that the finding at [70] "doesn't go anywhere at the end of the day" given the finding at [73] that the applicant has superannuation funds in Australia consistently with him being able to access and use them when he is in Australia. The submission with respect misses the point. As Mr Lloyd SC for the applicant submitted, at [73] the Tribunal simply accepts the undisputed facts, whereas the earlier finding at [70] diminished the weight apparently given to those facts as evidence of the applicant's continued and close relationship with Australia and his intention to reside here in the future.