The decision of the respondent is affirmed save for the question of penalty which the parties agree should not be imposed.

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

1. This is an application to review a decision of the respondent made on 1 September 2011 to revoke the applicants' first home owner grant in respect of premises at 8 Cooktown Avenue, Point Cook (the premises).
2. The applicants became registered owners of the land on which the premises are situated on 10 November 2009 and I understand that they first agreed to enter into a contract to purchase that land on 28 April 2009 and settlement was in October 2009. Also, on 29 April 2009, they entered into a building contract to build a house in relation to that land. An Occupancy Permit was given for the property on 18 May 2010 and on 8 February 2010, the applicants applied for the First Home Owner's grant declaring that the premises was going to be their principal place of residence. It should be noted that, at all relevant times, the applicants were married to each other and had two children, one had completed school and was doing electrical engineering at RMIT and the other was completing VCE at Vermont Secondary College.
3. The applicants' First Home Owner's grant was approved on 10 February 2010. The way things were at that time meant that, as a result of the approval, the applicants were paid under the Fund the sum of $26,000. That sum was made up of $7000 for the grant, $5000 for a bonus and $14,000 which was known as a boost fund.
4. From November 2005 until January 2011, the applicants were renting a property in Vermont South and from 2011 to the present time, they were renting a property at Mount Waverley. It is common ground that at all times, the applicant Arti Patel and the two children were living either at the Vermont South property or the Mount Waverley property.
5. The applicant Manish Kumar Patel alleges that between July 2010 and 4 March 2011, he was residing at the premises at Point Cook and that was his principal place of residence. The respondent submits that this is not correct.
6. It is the respondent's submission that to be eligible for the home owner's grant, the occupation of the home has to be the principal place of residence for a period of six months. This is pursuant to s 12(1) of the First Home Owner Grant Act 2000. That section reads as follows :

(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 the lesser period approved by the Commissioner) commencing within the 12 month period immediately after completion of the eligible transaction or within a longer period approved by the Commissioner.

1. It is the respondent's contention that the applicant Mr Manish Kumar Patel was not living in these premises as his principal place of residence during the period from July 2010 to March 2011 or at all. I note that the premises were rented by the applicants to third parties from 4 March 2011 and it is still being rented and the applicants are receiving rent from those third parties.
2. It is the respondent's contention that there is no objective evidence of occupancy. In response to this, the applicants say that if they had intended to rent the premises they would have received 80% of the value of the premises rather than 60% on a low doc loan. They received the loan from the ANZ Bank. Exhibit 2 which was tendered into evidence by the respondent shows that on 3 November 2008, the ANZ stopped giving loans for 80% (ie low docs loans). The highest that was being given was 60%. Mr Patel said he could have gone somewhere else. I do not accept that evidence.
3. Mr Patel also states that their (himself and his wife) intention when they bought the property was to live in the property as a family. However, later after purchasing the property, they realised that the property had two fundamental problems from their point of view. One was that it was a very long way to travel to the second child's school in Vermont South, and, secondly, there was no public transport. As a result, Mr Patel contacted the respondent and he alleges the respondent told him it was alright if one party lived in the home. That is in fact correct, pursuant to s 12(3) of the Act. I make no finding as to whether there was contact or not.
4. In any event, Mr Patel's evidence is that he resided in the property on most nights during the period between 10 July 2010 and 1 March 2011. He showered there occasionally and he got take-away food from the Vermont South or Mount Waverley properties which he consumed at the Point Cook property. That was sometimes done. He also said that he purchased a bed and microwave only for that property, that is, those two items were the only furniture at the premises. However, it has been conceded by both Mr Patel, and certainly by his wife Arti, that all the main interests in Mr Patel's life were at Vermont South or Mount Waverley. That is, basically his family and his children.
5. It is also noted that Mr Patel was away on business for a considerable period of time during the relevant period between 10 July 2010 and 1 March 2011. He was in Fiji from 10 August 2010 to 14 September 2010 and then again from 16 November 2010 to 10 December 2010. Mr Patel informed me that he runs an import business in Fiji and he imports goods into Fiji from Australia. He does not work in Australia. His wife works in Australia as a sales assistant.
6. It is also noted that the house at Point Cook was built in such a way that it was not built for renting. For instance, the rooms were very large, bigger than normal, that included the living room, bedrooms and kitchen, there was high quality tiles rather than carpet, there were solar hot water systems and a number of other matters. The applicants said that taking into account all those matters, I should find that the premises were used as Mr Patel's principal place of residence during the relevant time.
7. However, the test is primarily objective and I agree with Mr Young's submissions in that regard. One has to consider whether the place was in fact used as the applicants' principal place of residence. When considering those matters, it is important to look at the use that was actually made of the premises and it is noted, in particular, that the water usage was particularly low. In fact, it is noted that the water usage billed to 6 May 2010 was 11 kL; on 19 July it was 19 kL; on 20 October 2010 (that is the first period after the applicant moved in) it dropped down to 3 kL; on 20 January 2011, it dropped down to 1 kL; and for the period to 4 March 2011 there was no usage at all. Given these circumstances, in my view, it is abundantly clear that such limited water usage would be highly unlikely if someone was living in the house in the way described by Mr Patel. It is almost inconceivable that for normal use of water for sanitary means ie toilet, showering etc, more water than that would not be used.
8. I accept what Mr Young said in cross-examining that the water that the applicant used is not much more than a 'leaking tap'. It does not, in my view, show from the amount of water used that someone was residing in the premises, even residing at a time when Mr Patel was away for the periods which I have described and even taking into account that most of his meals were cooked elsewhere.
9. Further, I note the limited amount of furniture that had been purchased, and in my view, is highly unlikely that any person residing in a principal place of residence would have such limited amount of furniture as a bed and a microwave only which is the furniture which Mr Patel had at the premises.
10. It is also said by Mr Young that the residence has to be for a continuous period. I have already referred to the fact that Mr Patel was away for two periods. Just being temporarily away may not be sufficient to break a continuous period. However, Fiji seemed to be the place where Mr Patel conducted most of his business and Mount Waverley and Vermont South was where he conducted most of his family affairs. Thus, it is difficult to see that there was any connection at all to the premises during this period. Therefore, in my view, it was never intended that it should be his permanent place of residence. Mr Patel is a family man, obviously happily married and it (the allegation of the first applicant living at the premises) was, in my view, a ruse in order to obtain the grant rather than a genuine attempt to live in the premises as a permanent place of residence.
11. Further, I note that in January 2011, when the applicant Mr Patel was allegedly using the premises as his principal place of residence, he transferred his driving licence from the Vermont South property. He did not transfer his driving licence to the Point Cook property which he alleges was his principal place of residence but he transferred it to the new rental property in Mount Waverley for which he and his wife had signed a lease.
12. The principles that must guide me in this matter are that referred to in Chief Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41; (2004) 57 ATR 170, and the propositions that emerge from that case are as follows -
    1. The phrase 'principal place of residence" should be given its ordinary meaning in the context in which it appears.
    2. Consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in light of the circumstances relating to the actual occupation of the premises.
    3. The intention of the person, 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, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
    5. The short length of a person's occupation, while relevant, is not determinative of the issue, as a short period of occupation may still have the requisite degree of permanence to it; although the fact that a period of actual occupation is short will make it harder to satisfy the requirement.
    6. The reason for a person's departure from the home must be both reasonably and adequately explained when considered objectively in the light of the person's personal circumstances.
13. I will consider these matters individually in light of the facts that I have found.
14. I have already referred to the fact that whether it is a principal place of residence or not should be considered objectively. Here, the objective facts are that the applicant's family was living in either Mount Waverley or Vermont South. Mr Patel's furniture, cooking utensils and chattels were all at Vermont South or Mount Waverley, save and except for one bed and a microwave. Also very little usage of water was made at the premises to which I have already referred. When Mr Patel had his driver's licence changed, he did not change it to the place which he said was his permanent place of residence.
15. Considering all those matters as objective factors, in my view, it is quite clear what was the applicant's permanent place of residence. It was not Point Cook.
16. In gauging the intention of the applicant, in my view, what the applicant was doing was intending to set up a ruse as to what his permanent place of residence was. From the objective facts to which I have referred, in my view, it was never the applicant's intention that he should reside at the Point Cook property or if it was his intention, that intention certainly disappeared before he took up residence there in July or before the grant was made. He certainly knew prior to the time of applying for the grant that there were problems with the Point Cook property that would make it quite impractical for he and his family to live there, viz, its distance from public transport and distance from his child's school.
17. I also must now look at the degree of permanence and the first applicant's connection to the place of residence, that is, whether it is "transient, temporary, contingent or passing nature is not sufficient". In this matter, if he lived there at all, it was clearly only intended to be quite transitory on odd nights and he never intended that he reside there. It was intended to be temporary and it was always intended that he would move back with his family, it was always intended that he would spend a considerable time in Fiji looking after his business interests and Mr Patel's living at the premises was always of a passing nature. Although there can be permanence in a short stay at a premises, in this case, there is nothing to suggest permanence. Permanence suggests the sort of things that one normally has in life and the normal creature comforts of home. In this particular instance, there were no creature comforts of home at all. There was only a bed and microwave and, indeed, the applicant says that he only showered there on occasions.
18. In relation to the applicant's reasons for departure, in my view, the reasons for departure were pure and simple - that he intended to continue residing with his family. Further, I note that his clothes were washed and ironed and meals prepared at the family home in either Vermont South or Mount Waverley. I also note that there was no contents insurance in respect of the premises which, in some way, does not surprise me because there was very little contents in the property.
19. I also refer to the case of D'Amelio v Commissioner of State Revenue [2012] VCAT 268 [16] -

It is one thing to intend to occupy a premises as one's principal place of residence for an extended or indefinite period and to change one's mind or to be forced to by changed circumstances. It is another thing altogether to have an intention to connect oneself to the premises in some way for a period of six months and then irrevocably part with possession of them by putting in a tenant.

That is exactly what has happened in this particular instance.

1. There has been no change of intention in the circumstances since Mr Patel took up occupancy. He put a tenant in the premises in March and that is what he always intended to do.
2. Given those circumstances I will affirm the decision of the respondent. However, I should mention one thing. A part of the decision of the respondent imposed on the applicants a penalty of $1000. That penalty has been waived and it is not an issue that was before me.