1. At the end of January 2006, the applicant said that he gave up looking for employment in Horsham and resumed his employment with Corporate Locksmiths. The applicant said that between the end of January 2006 and mid-November 2006 he travelled each week from Horsham to Melbourne for work on Monday mornings and returned to the property in Horsham on Friday evenings. Whilst in Melbourne during the week, the applicant said that he resided overnight in the homes of various friends and relatives and did not establish a fixed abode.

1. In mid-November 2006 the applicant said that he moved back to the Mater Street premises. The Horsham property was tenanted on 17 November 2006 and has been tenanted at all times since.

7. Section 7 of the FHOGA states that a first home owner grant is payable to an applicant if the applicant complies with certain "eligibility criteria" at the time that the transaction for which the grant is sought is completed and the transaction is an "eligible transaction".

8. There has been no suggestion in this appeal that the applicant has not completed an eligible transaction or failed to satisfy any eligibility criterion other than the residence requirement. Length and quality of the applicant's residence at the property are the things which the Tribunal must consider.

(1) An applicant for a first home owner's 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 lesser period approved by the Commissioner) commencing within the 12 month period immediately after completion of the eligible transaction or a longer period approved by the Commissioner.

1. Section 12 of the FHOGA co-ordinates with the purpose expressed in s1 of the Act "to encourage and assist home ownership, and to offset the effects of the GST on home ownership" through a scheme of grants made to first home buyers. All first home buyers are not eligible for grants. The "Residence requirement" in FHOGA s12 limits the scheme to persons intending to occupy their first homes as their principal place of residence ("PPR") within certain temporal minima. Persons purchasing first homes who do not occupy those homes as their principal place of residence for a continuous period of 6 months commencing within the 12 month period after completion of the eligible transaction are excluded from the class of persons who are eligible to receive grants.

1. It is common ground in this application that "completion of the eligible transaction" is the date of settlement on 22 December 2005 and that the last day when the applicant could have resided at the property was 16 November 2006, which was the day before commencement of the tenancy. The period between these dates will be referred to as "the relevant period".

1. Much of the applicant's evidence was directed to establishing the proposition that he did not occupy any PPR in Melbourne during the relevant period which is inconsistent with the respondent's assertion that the applicant never lost his PPR at Mater Street. See the analysis in Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 198 at [36].

1. Evidence denying a Melbourne PPR, however, did not establish that the applicant's PPR was the property in Horsham during the relevant period. Proof of a person's PPR requires positive evidence. It cannot proceed by elimination. The proposition implied by the applicant's proof that every person must have a PPR somewhere. No authority for this was shown.

1. The applicant relied on testamentary evidence in 7 witness statements and the oral evidence of 4 people. The respondent accepted the truth of testimony given by each witness and the truth of each witness statement except for the statement of Chris Keogh dated 8 August 2012. Chris Keogh was the applicant's co-tenant at Mater Street. He did not give oral evidence. Chris Keogh's evidence is weighed by me in light of the fact that Chris Keogh was well-placed to give evidence of relevant facts and his failure to give oral evidence, I find, was inadequately explained. See Jones v Dunkel [1959] 101 CLR 298.

1. Scott Leonard gave evidence that he was the applicant's superior at Corporate Locksmiths. Scott corroborated the applicant's account that he terminated his employment in December 2005 and went to live in Horsham where he sought other employment. Scott described an "ultimatum" which Corporate Locksmiths gave the applicant in November 2006, which was said to motivate the applicant's return to residence in Melbourne. However, in answer to a question from the Tribunal, Scott admitted that Corporate Locksmiths did not process the termination of the applicant's employment in 2005 and the period of the applicant's absence in December 2005 and January 2006 was treated by the company as annual leave.

1. Loretta Sheehy, Megan Taylor and Kevin O'Neil each gave oral evidence that the applicant had occasionally stayed with them in their Melbourne residences during the January-November 2006 period. The frequency of these stays was variously alleged, but averaged, in each case, about once a week. Certainly this evidence counted against, although was not directly inconsistent with, the applicant maintaining a principal place of residence at Mater Street. I will now consider evidence directly bearing on whether the property in Horsham was the applicant's PPR during the relevant period.

1. Headings provided by the six principles referred to in paragraph [42] of the decision in Re Chief Commissioner of State Revenue and Ferrington [2004] NSWADTAP 41; 57 ATR 170 are a useful way to marshall legal and factual issues which arise in this case. The New South Wales Administrative Decisions Tribunal Appeal Panel in Ferrington's case set out certain principles as applicable for the determination of "a principal place of residence" under NSW legislation corresponding to the FHOGA (the "Ferrington principles"). Excluding principle 5, which is inconsistent with 2004 amendments to the Act, the Ferrington principles have been accepted as relevant to construing the FHOG Act in several VCAT decisions, including Boots v CSR [2004] VCAT 2549 and Mauro v CSR [2010] VCAT 1207.

"First, the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear."

1. No technical sense of the term "principal place of residence" is relevant when construing the FHOGA. Reasoning from other statutory contexts where the same words appear is not permitted. This was not an issue in the present case.

"Secondly, consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively in the light of circumstances relating to the actual occupation of the dwelling."

1. "[A]ssessed objectively" is equivalent to applying a "reasonable man" standard to the weighting of occupation indicia which the parties advance. See Ziino v Commissioner of State Revenue [2004] VCAT 1707 at [11] referring to Stoke-on-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706, per Ridley J.

1. At paragraph [29] of the respondent's Outline of Submissions dated 12 July 2012 the respondent tabulated 16 payments made by the applicant at monthly intervals. Most are of $260. Nine payments, including 4 made after the commencement of the relevant period, were made to GA Thomson & Co, the letting agent responsible for the Mater Street property. Larger and smaller monthly payments were also made. The respondent says that this demonstrates that the applicant was paying rent on the Mater Street property throughout the period in which he claimed to occupy the property as his PPR and reside casually with friends and relatives in Melbourne. As a consequence, the respondent says that the applicant did not relinquish his Mater Street PPR and establish a PPR at the property during the relevant period.

1. The applicant's reply to the respondent assertions about the rent payments was unpersuasive. The January 2006 payment he said was made by him because of the co-tenants' practice of paying a month in advance. However, this could not explain the January rent liability which accrued entirely after the tenancy had terminated. February and March amounts paid to the agent and an April amount paid to Chris Keogh were said to be for "back rent and bills owed'. The Tribunal notes that each of these payments was for the exact rent proportion which would be owing if the applicant were in occupation that month. Subsequent payments to Chris Keogh and "Run Properties" were not adequately explained by the applicant. I accept that all the payments were rental payments made for the applicant's occupation of Mater Street during the relevant period.

1. Records of utility usage at the property, according to the respondent, were inconsistent with the applicant's occupation of the property as his PPR. TRU Energy accounts for the premises were supplied by the applicant. The applicant stated that the property at the time of his occupation contained several items which used electricity. The January account indicates that the property was connected to electricity on 4 January 2006. No account was supplied for the period 26 January 2006 to 27 April 2006 which coincides with resumption of the applicant's employment in Melbourne. Taken together, electricity accounts demonstrate a very low level of usage when compared with subsequent usage by the applicant's tenant.

1. In response to electricity account assertions the applicant alleged a number of unpersuasive things, including his not needing electricity to perform daily offices, not being able to afford electricity use.

1. Credit card usage by the applicant in the Horsham area was very small, compared to credit card use in the Collingwood and Richmond areas adjacent to his employment and the Mater Street house. Altogether, the objective or reasonable man analysis of residency data relating to the property and the Mater Street property suggests that a PPR standard of residency in relation to the property has not been met. Comparable inferences were drawn from the objective data in Sobhani v Chief Commissioner of State Revenue [2009] NSWADT 198 at [36] and Nakoul v Chief Commissioner of State Revenue [2009] NSWADT 103 at [32].

Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue."

1. The applicant placed emphasis on his intention to live in rural Victoria and in close proximity to his parents and wider family. His efforts to realize this intention began, the applicant said, as early as October-November 2005 with his employment negotiations with the Horsham locksmith "Batchcorp". It was said that the apprenticeship could be assigned to a rural locksmith on the basis common to country apprentices, which involves extensive periods of time-release to achieve TAFE certification in Melbourne. Strangely, as counsel for the respondent pointed out, there was no paper record of the extensive negotiations that the applicant undertook.

1. Apparently the applicant and his spouse planned a wedding in Italy to take place in November of 2006. This was not accomplished and the parties married in the following year. At all times material the applicant's fiancé worked full-time as a primary school teacher in Melbourne.

1. Counsel for the respondent put to the applicant that his intention was not to live in but to renovate the property in Horsham to a tenantable standard and provide himself with an investment income. This was consistent with the fact that the applicant lived full-time in the property only during his 2005-2006 vacation.

1. In Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 at [41] the NSW Administrative Appeals Tribunal, construing a comparable residency criterion, thought it appropriate to weigh the fact that the applicant had the same admitted PPR immediately before and immediately after the period he claimed to reside in the property. The Tribunal confirmed that the criterion was not met.

1. "Fifthly, the short length of a person's residence while relevant, is not determinative of the issue."

After amendment to s-s12(1) the FHOGA effective on 1 January 2004, the length of the applicant's residence in the property must be for a minimum of 6 months. The fifth of the Ferrington principles is accordingly inappropriate. In this case it might be noted that the applicant's claimed PPR residence in the property was approximately 4 months in excess of the statutory 6-month minimum.

1. "Sixthly, the reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances."

1. The applicant departed from the property permanently at some time in November 2006. He gave evidence that Corporate Locksmiths, his employer, was displeased with his late arrivals on Monday morning and early departure on Friday afternoons and gave him an "ultimatum" to the effect that his Horsham residence must cease. Scott Leonard from Corporate Locksmiths confirmed this in his oral evidence. I am not persuaded by this well-intended evidence. The is transaction is undocumented. The alleged demand, made at the time it was, is altogether too convenient.

1. The applicant's departure from the property, I find, was not the result of supervening circumstances beyond his control. Nor was it the result of a bona fide change of mind on the applicant's part. Bates v Chief Commissioner of State Revenue [2004] NSWADT 13 and Re Chief Commissioner of State Revenue and Ferrington [2004] NSWADTAP 41; 57 ATR 170 at [43] - [44].

1. For the above reasons, I conclude that the applicant does not fulfill the criteria in s 12(1) of the FHOG Act for occupying the property as his principal place of residence. The decision of the respondent is confirmed.

1. First, the respondent's delay in making a referral. At the outset of the hearing a ground of objection was pressed against the respondent's decision which did not appear in the applicant's grounds for objection. Subsection 29(3) of the FHOGA requires the Commissioner to refer a taxpayer's request to treat an objection as an appeal to the Tribunal within 60 days. The Tribunal was taken to documents which showed that on 19 August 2010 the applicant had requested the respondent to refer its decision to the Tribunal. Not until 31 January 2012 did the respondent advise the applicant on that the objection had that day been referred to the Tribunal. Some 16 months elapsed between the date of the applicant's request for a referral and when the referral occurred. I declined to treat this as a valid ground of objection or basis for a compensation award for the following reasons.

(a) The Tribunal's jurisdiction is limited to consideration of matters raised in an applicant's grounds for objection under s31 of the FHOGA_._

(b) Under Division 6 of Part 2 of the FHOGA, which empowers the Tribunal to review the respondent's decisions, the Tribunal's jurisdiction is limited to affirming or overturning the respondent's decisions.

1. Secondly, penalty. Although the respondent's decision of 21 August 2009 imposed a $1,000 penalty on the applicant, counsel for the applicant made no oral submission concerning penalty and the matter was not referred to in the respondent's outline of submissions dated 12 July 2012. I have assumed that the claim has been abandoned.