VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z298/2023	
CATCHWORDS	
Review and Regulation List – First Home Owner Grant Act 2000 (Vic), s 12 – Whether applicant has satisfied residence requirement for first home owner grant – Whether penalty should be remitted – Applicant has not discharged onus of proof – Reversal of first home owner grant and imposition of penalty at 10% confirmed.	

APPLICANT	Ms Minh Chau Thi Le	
RESPONDENT	Commissioner of State Revenue	
WHERE HELD	Melbourne	
BEFORE	R Tang AM, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	14 October 2024	
DATE OF ORDER and reasons	28 October 2024	
CITATION	Le v Commissioner of State Revenue (Review and Regulation) [2024] VCAT 1032	

Orders
1	The applicant is granted leave to challenge the decision to require the applicant to pay the penalty of $1,000 (‘Penalty’) imposed by the respondent under section 48 of the First Home Owner Grant Act and Home Buyer Schemes 2000 (Vic) (‘FHOG Act’).
2	Under section 33(1) of the FHOG Act, the decision made by the respondent on 5 March 2021 (notice no. 38384553) to reverse the first home owner grant paid to the applicant is confirmed.
3	Under section 33(1) of the FHOG Act, the decision made by the respondent on 5 March 2021 (notice no. 38384561) to require the applicant to pay the Penalty is confirmed.

R Tang, AM
Senior Member			

APPEARANCES:		
For Applicant	Ms M Le, in person	
For Respondent	Mr A Healer of Counsel	

Reasons
1	In November 2014, Ms Minh Chau Thi Le entered a contract to acquire a piece of land located in Dover Street, Truganina (‘Relevant Property’) and, in the following month, entered a contract for the construction of a house on that land.
2	On 30 June 2016, Ms Le submitted an application for a first home owner grant (‘Grant’) under the First Home Owner Grant Act and Home Buyer Schemes Act 2000 (Vic) (‘FHOG Act’) in advance of the grant of the certificate of occupancy on 10 August 2016.
3	A condition for the payment of the Grant is that Ms Le occupied the Relevant Property as her principal place of residence for a continuous period of 12 months commencing within 12 months of the acquisition (‘Residence Requirement’).
4	On 5 March 2021, the Commissioner of State Revenue (‘Commissioner’) decided to reverse the Grant, resulting in $10,000 becoming repayable by Ms Le, on the basis that she failed to satisfy the Residence Requirement.  The Commissioner also determined to require Ms Le to pay a penalty of $1,000 (at the rate of 10%) in relation to the reversal of the Grant (‘Penalty’).  Her objection to the reversal of the Grant was disallowed and the Commissioner determined that the Penalty was appropriate.
5	The main issue in dispute in the proceeding is whether Ms Le has satisfied the Residence Requirement having regard to all the facts and circumstances.  
6	For the reasons which I will explain, Ms Le has not discharged her onus of proving that she satisfied the Residence Requirement.  I have confirmed the decision to reverse the Grant.  I have also determined that it was appropriate to impose and require Ms Le to pay the Penalty.
Outline of relevant aspects of the FHOG Act
7	The purpose of the FHOG Act is to ‘encourage and assist home ownership … by establishing a scheme for the payment of grants to first home owners’.
8	A grant is payable to an applicant if the person complies with the eligibility criteria at the time that the transaction for which the grant is sought is completed.
9	There are five eligibility criteria which applicants must satisfy including, of relevance to the present case, a requirement to occupy the home to which the application relates as the applicant’s principal place of residence for a continuous period of at least 12 months, which must commence within 12 months of the acquisition.
10	As the purpose of the grant is to assist with home ownership, it is generally the case that the grant is applied for and paid in advance of satisfaction of the Residence Requirement.  The Commissioner has power to authorise this, provided he is satisfied that the person making the application intends to occupy the home as his or her principal place of residence for the requisite period.  However, if the grant is paid in such circumstances, and the Residence Requirement is not ultimately satisfied, the grant must be repaid within 14 days of the end of the period allowed for compliance.
11	The Commissioner may later decide to reverse the decision if it was incorrect and, if he does so: 
(a)	must give notice of that decision to the applicant; 
(b)	may (by written notice) require repayment of the grant; and
(c)	may (by written notice) impose a penalty where the applicant fails to make a repayment required by the conditions of the grant. 
12	Under the FHOG Act, a person may request the referral of the matter for review by the Tribunal if their objection to a reversal decision is not allowed.  
13	On review, the applicant bears the onus of proof.  The standard of proof is the balance of probabilities.
General principles 
Principal place of residence
14	At the heart of the Residence Requirement is the need to establish that a particular property has become – and is maintained as – the ‘principal place of residence’ of the person concerned for at least 12 months.
15	Despite its critical importance, the phrase ‘principal place of residence’ is not defined as such in the FHOG Act.  
16	In Chief Commissioner of State Revenue v Ferrington (‘Ferrington’), the Appeals Panel of the New South Wales Administrative Decisions Tribunal drew together a number of principles from the cases considering that phrase in the following passage (‘Ferrington Principles’):
First, the words “principal place of residence” should be given their ordinary meaning in the context in which they appear … 
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 the circumstances relating to the actual occupation of the dwelling …
Thirdly, the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue … 
Fourthly, 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 …
Fifthly, the short length of a person’s residence, while relevant, is not determinative of the issue … This is so since a recipient’s occupation of a home, while short, may have the requisite degree of permanence to it. But that will not happen if, when considered objectively, the occupation was transient, temporary, contingent or of a passing nature, or for some other purpose. One may occupy premises for a short time on a transient, temporary, or contingent basis, but one can also occupy for a short time as one’s principal place of residence. It is the nature of that occupation which provides the element of permanence. The fact that a period of actual occupation is short, as in the present case, will in practice make it harder for a recipient to show that the occupation was as his or her principal place of residence, but it will not make it impossible …. 
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 …  In Bates the tribunal said that “whether the reasons for not residing at the property were as a result of matters entirely out of the control of the applicant” was a factor to be considered. While that is undoubtedly correct, it should not be read as stipulating a requirement that the reasons for departure must be entirely out of that person’s control. The facts in Gaines illustrate that there are circumstances, peculiar to the individual concerned, which may, objectively viewed, adequately and reasonably explain a person’s decision to move out of a property, but which are not entirely out of the person’s control.
17	The Ferrington Principles are regularly applied in cases concerning the first home owner grant. 
Relevance of any leasing arrangement
18	In Khalil v The Chief Commissioner of State Revenue (‘Khalil’), the Administrative Decisions Tribunal of New South Wales considered an equivalent residence requirement, under the New South Wales first home owner grant scheme, in the context of an arrangement where the applicant landowner had leased the home to a third party but occupied one room of the home under an ‘informal arrangement’ with the tenant.  Judicial Member Verick considered that, as Mr Khalil ‘did not have exclusive possession of the property during the relevant period he did not satisfy the occupation requirement’ under the applicable legislation.
19	More recently, in Chen v Chief Commissioner of State Revenue, in a land tax context, the Civil and Administrative Tribunal – New South Wales (‘NCAT’):
•	observed that an executed lease agreement between the applicant and a third party established a tenancy ‘for the terms stated on each agreement’;
•	noted that, at common law, a lease ‘vests in the tenant the right to exclusive possession of the property’ (by contrast to a ‘transaction under which a person takes merely the right to use premises, without exclusive possession [which] is a licence) and that there was nothing in the lease that reserved a room, or any part of the leased premises to the applicant; and
•	although accepting that the applicant may have spent time at the property during some of the relevant years, found that – having regard to the lease agreement – the applicant ‘could not “use and occupy” the [relevant property] for a continuous period’ of 200 days (being the residence requirement under the applicable legislation). 
20	While those cases concerned situations where executed lease agreements were in place during the relevant statutory period of required residence, the absence of a lease agreement does not necessarily mean that there has been no conferral of exclusive possession on another person.  
21	The Supreme Court has held that AirBnB guests – who occupied an apartment under an arrangement entered into with the tenant of that apartment – were entitled to exclusive possession and, as such, the arrangement amount to a (sub)lease (even though the arrangement was described as ‘merely a licence’).  
22	As Croft J observed in that case, the question of whether an arrangement is a lease or licence ‘depends upon the proper construction of that agreement –looking to substance and not form – and having regard to relevant surrounding circumstances’.  It appears to have been critical to the Court’s decision that there was no evidence that the tenants were able to access the apartment during each AirBnB stay and, in any event, any access by the tenants ‘would be with [the AirBnB guest’s] permission … [which was] quite consistent with the characterisation of their occupation as a lease, rather than a licence’.  That the apartment was the tenant’s principal place of residence, before and after and  ‘even during an AirBnB stay’, was considered ‘neutral’ on the question.
23	It is relevant to observe that, where there is a lease (whether or not documented), the ‘residential rental provider’ has a statutory obligation ‘to ensure that the renter has quiet enjoyment of the rented premises’.
24	While the New South Wales decisions have not been expressly referred to or adopted in any Victorian state tax decision, the principle for which they stand – namely that the granting of exclusive possession of a property under a lease to another party is inconsistent with ‘occupation’ of that property by the landlord – is persuasive.
Evidence before the Tribunal
25	The Tribunal Book includes a considerable amount of documentary evidence gathered during the Commissioner’s investigation as well as additional documentary evidence filed by Ms Le for this review.  That material includes title searches, loan applications and statements, various utility bills and the driver’s licence records for Ms Le and her sister, Ms Dinh Le (whom I will refer to as Dinh in these reasons, without intending any disrespect).
26	As usual, the Commissioner has not called any witnesses.  However, Ms Le gave evidence and called three witnesses – her sister and two friends (Ms Jenny Vo and Mr Joseph Zammit) who attended and were subject to short cross-examination.
Evidence of Ms Vo and Mr Zammit
27	Ms Vo made a statutory declaration on 20 November 2023 (‘Vo SD’) in which she states:
I have picked Minh Le [up] from [the Relevant Property] a number of times in the years she lived there.  My first trip to her house was in 2016.  I have had dinner @ [the Relevant Property] 3-4 times during Minh’s time at the house.  Minh lived there for a couple of years.
28	In cross-examination, Ms Vo was unable to remember the dates on which she picked up Ms Le from, or had dinner with Ms Le at, the Relevant Property.  She conceded her impression that Ms Le lived at the property was based on those few occasions she visited and conversations to that effect with Ms Le and their mutual friends.
29	Mr Zammit made a statutory declaration on 28 November 2023 (‘Zammit SD’) in which he states:
1.	I am making this statutory declaration to confirm my friend, Minh Le, moved into here house in Truganina, Victoria, in August 2016.
2.	I had been a resident of Truganina [between] 2014 and 2022, and during this time, I had the opportunity to visit Minh Le at her residence and engage in various activities with her.
3.	Specifically, I confirm that I visited Minh Le at her house and participated in activities such as walks in the neighbourhood with her.  These interactions provided me with firsthand knowledge of her residence in Truganina.
4.	To the best of my knowledge, Minh Le moved out of Truganina in 2019.
30	Like Ms Vo, Mr Zammit was unable to recall the dates that he visited or went for walks with Ms Le.  He said that he remembered her moving into the Relevant Property, although he could not recall the specific day, did not assist her with the move and had only looked inside the property before she did so.
31	In closing, Mr Healer (counsel for the Commissioner) contended that the evidence of Ms Vo and Mr Zammit was not of great assistance given neither was able to recall specific dates of visiting Ms Le and that their impression that Ms Le lived at the property was not inconsistent with Dinh having exclusive possession of the property.  I agree that the evidence of Ms Vo and Mr Zammit is of limited assistance.
Evidence of Ms Le
32	Ms Le did not file a formal witness statement (or statutory declaration) as such.  However, she has provided some evidence in a document submitted under cover of an email dated 23 November 2020 (‘Applicant’s SRO Response’), in which she responded to certain questions posed by the State Revenue Office as follows:
1. 	Over the Residence Period [i.e. 10 August 2016 to 10 August 2017], did you cook or otherwise prepare meals at the Property? If so, in an average week during the Residence Period, how many such meals would you cook or otherwise prepare at home
- 	Yes, approx. three times a day.
2. 	Over the Residence Period, did you wash your clothes at the Property? If not, where did you wash or otherwise launder your clothes during the Residence Period?
- 	Yes, approx. three times a week.
3. 	Did you shower or otherwise bathe at the Property during the Residence Period? If not, where did you shower or otherwise bathe during the Residence Period?
- 	Yes.
…
8. 	Please specify where you were living immediately before the Residence Period and where you were living immediately after the Residence Period and provide documentary evidence to substantiate this. If the identified properties were not yours, please state the names of the persons who owned them and their relationship to you;
- 	I resided at 9 Dover St, Truganina, as soon as the the keys were handed over from the builder.
- 	Attached is the occupancy certificate.
9. 	Please describe in detail the circumstances that resulted in you moving out of the Property and provide documentary evidence to substantiate this.
- 	I moved out as I wanted to move in my parents to spend more time with them and also to save money.
10. 	Please advise if anybody resided at the Property with you during your period of occupation…
-	No.
11. 	Did you rent the Property out at any time during the Residence Period? …
-	My sister stayed with me on occasions and paid board to me (I don’t have specific dates as they were random stays).
- 	I moved out approx. early 2019 ...
33	Ms Le confirmed that, save for the matters below, these statements were true and correct:
•	Question 1: She ‘mostly had lunch at work on Monday to Friday’ and so she usually had two meals (breakfast and dinner), rather than three, at the Relevant Property.
•	Question 9: She clarified that she moved back to her parent’s property in 2019 (and queried whether that was relevant given it was outside the relevant period for the Grant).
•	Questions 10 and 11: She indicated that her sister, and her sister’s three children, lived at the Relevant Property and initially paid ‘board’ before ending up renting.  She maintained that, at all times, her sister (and children) were living with her.
34	Some further evidence is also contained in Ms Le’s (undated) statement of legal contentions (‘ASLC’) and reply submissions dated 26 February 2024 (‘AR’).  In the ASLC, Mr Le provided the following additional context regarding the residential address recorded on her driver’s licence:
•	She failed to update the address recorded on her driver’s licence to the Relevant Property between August and November 2016 because she ‘had many things to organise in respect of the Property in the first few months of living there’.  
•	She changed the address on her licence back to her parent’s address in October 2017 because she ‘intended on moving out, [but then] circumstances [changed] and [she] decided to stay’, but ‘did not update [her] records after the decision to stay’.
35	In her oral evidence, Ms Le stated that she changed the address on her driver’s licence back to her parent’s home because she had ‘plans to move back after 12 months’ before circumstances changed and she decided to stay.  In response to a question I raised, Ms Le explained the changed circumstances were that she had been involved with her sister’s family and she had found she enjoyed living with her sister’s children. 
36	In cross-examination, Ms Le: 
•	Maintained that, despite the residential tenancy agreement with her sister (from October 2017), she still lived there with her own bedroom, although she conceded that her sister could go into the room ‘as her sister’ (and sometimes some of her sister’s children slept with her in her bedroom).  In response to a question I raised, Ms Le suggested that the agreement was put in place at her sister’s suggestion to enable her sister to claim rental assistance from Centrelink.
•	Admitted that, in her income tax return for the year ended 30 June 2017, she had disclosed a rental loss in respect of the Relevant Property and that this had reduced the tax on her other income (i.e. wages).
37	I also asked Ms Le if she was able to explain a number of discrepancies between her tax return for the year ended 30 June 2017 and the evidence she had given, including that:
•	The tax return disclosed that the Relevant Property had been rented from 1 January 2017, when her evidence was that her sister was a boarder from August 2016, and the property was not formally rented to her sister until October 2017.
•	The rent disclosed for the six-month period from 1 January to 30 June 2017 was $9,000, being $1,500 per month and almost double the amount her sister was apparently paying towards the mortgage (and which had commenced from August 2016).
•	The most significant deduction claimed was for interest of $8,079, being the full amount of interest paid to Westpac on the loan during that 6-month period, despite her claim that she was also living in the property.  (In that regard, section 8-1(2)(b) of the Income Tax Assessment Act 1997 (Cth) provides that a deduction cannot be claimed for a loss or outgoing to the extent it is ‘of a private or domestic nature’, such that it would be expected only some of the interest would be deductible in that scenario.)
38	Apart from suggesting that she understood that she could ‘lease half [the Relevant Property] and still receive the Grant’, Ms Le was not able to provide any explanation regarding these matters.
39	Relevantly, Ms Le accepted that, apart from a small increase in the rent, nothing really changed in terms of the arrangements between herself and her sister from October 2017 when the residential tenancy agreement was executed (for a four year term).
40	In closing submissions, Mr Healer suggested that Ms Le’s evidence should be treated with ‘a degree of caution’ given: 
•	her acceptance that her responses to questions 10 and 11 (in the Applicant’s SRO Response) did not reflect the true position, namely that her sister had been living in the Relevant Property from August 2016; and
•	she could not offer any credible explanation for advising numerous third parties (including the ATO, RACV and VicRoads) that her residential or home address was at her parent’s home.
41	In light of the inconsistencies in the explanations as to the use of the Relevant Property given by Ms Le over time and for different purposes, I consider her evidence as to her use of the property is inherently self-serving and, as such, to be treated with caution except insofar as it is supported by contemporaneous documentation or is against her interests.
Dinh’s evidence
42	Dinh made a statutory declaration on 1 May 2018 confirming that she was a tenant at the Relevant Property, paying $900 rent each month (‘Dinh SD’).  That evidence is consistent with a residential tenancy agreement between her and Ms Le dated 12 October 2017. 
43	In cross-examination, Dinh confirmed that she lived at the Relevant Property with her three children from 2016 and paid rent to do so, eventually conceding that this was from 10 August 2016 when shown a statement evidencing that she began to pay a monthly sum of $800 into Ms Le’s loan account from that date.  Dinh indicated that she provided most of the furniture for the property, including tables, a lounge suite and television, although she says Ms Le ‘bought her own bedroom furniture’.
44	In response to a question I raised, Dinh initially claimed that the residential tenancy agreement was put in place to enable Ms Le to refinance the property and denied it had anything to do with Centrelink benefits.  However, when Ms Le asked her again in re-examination, Dinh suggested the agreement was put in place for ‘both’ purposes.
45	Dinh also confirmed that, apart from the rent increasing by $100, the arrangements by which she (and her children) used and occupied the Relevant Property did not change after the residential tenancy agreement commenced.
46	Dinh maintained that Ms Le was ‘always there’ (i.e. at the Relevant Property) and, although Ms Le would often have dinner with their mother (as Ms Le’s work was close to the family home’), ‘most of the time’ Ms Le ‘slept in the bedroom’.
47	Mr Healer contended that Dinh’s evidence should also be treated with some caution having regard to her:
•	initial denial that she had made payments to Ms Le from August 2016 until ‘confronted’ with the loan statements; and
•	her ‘casual attitude’ in terms of explaining the purpose of making her statutory declaration (i.e. initially suggesting it was because she was paying rent, and then suggesting it was for the purpose of the refinancing).
48	I agree that Dinh’s evidence should be treated with caution.  While Dinh cannot be heavily criticised for wanting to support her sister, it was evident that she would deny matters put to her in circumstances where they might be contrary to her sister’s interests, even if those matters were not disputed by Ms Le.
Residence Requirement
Commissioner’s submissions
49	The Commissioner contends that Ms Le ‘has not discharged her onus of proving that she [satisfied the Residence Requirement]’ in circumstances where:
(a) 	the Property was rented, for 26 weeks in the 2017 income tax year and for 52 weeks in each of the 2018 and 2019 income tax years (see the Property Rental Schedule at T73); and
(b) 	the Applicant repeatedly stated she was residing at the Parents’ Property: namely, to Vic Roads – effective 25 October 2017 (T65), the Commonwealth Bank – for the purpose of the August 2018 refinancing (T56), RACV – for the purpose of 2018-2019 buildings insurance (T71), and the ATO – in the Applicant’s 2017 tax return (T72).
50	The Commissioner says that Ms Le’s explanation that her sister stayed at the Relevant Property ‘on occasions’ and ‘paid board’ when doing so is ‘inconsistent with the objective evidence … and should be rejected’.  He suggests that ‘the evidence does not clearly establish (and is inconsistent with) there being any agreement or arrangement between the Applicant and Dinh Le for house sharing’.
51	The Commissioner contends Ms Le’s contention that she lived at the property from August 2016 to March 2019 is contradicted: 
•	By the provisions of the residential tenancy agreement between Ms Le and her sister conferring ‘quiet enjoyment of the premises’ on the latter, and the evidence that Dinh ‘commenced depositing $800 per month into the Applicant’s account on 10 August 2016 (T53)’, such that the Tribunal should infer that the tenancy commenced on or about that day’ and that the applicant ‘could never have occupied the Property as her principal place of residence’.
•	In circumstances where Ms Le ‘has represented one position to the ATO: namely, that the Property was rented and the Applicant was in receipt of rental income (T72 and T73)’, and ‘obtained a financial advantage, by way of the net rental loss’, while she ‘now seeks to rely on a different position before the Tribunal: namely, that the Applicant resided at the Property and was occasionally in receipt of board from her sister (T75)’.
52	In the latter regard, the Commissioner points to decisions of the Tribunal to the effect that it is not permissible to claim one position for income tax purposes and another (inconsistent) position for state tax purposes.
53	The Commissioner also contends that:
•	Ms Le’s acquisition of the Relevant Property as an investment property, as disclosed to Westpac, the RACV and the Commonwealth Bank, ‘is inconsistent with an intention to occupy that property as a principal place of residence’.
•	Ms Le’s admission that she was aware of the need to live at the Relevant Property for 12 months suggests that, ‘[a]t most, [she] intended to occupy the Property for the minimum required period of 12 months for the purpose of qualifying for the grant’ and, as such, her residence ‘lacked the degree of permanence in her intention that would be required to occupy the Property as her principal place of residence’.  Alternatively, any occupation should be characterised as the ‘completion of some ritual of occupancy … which [she] believed was necessary to qualify for the grant’, but is ‘not sufficient’.
•	Ms Le’s ‘continuing association’ with her parent’s property – in terms of it being the place she resided before and after the relevant period, and a place where on her own evidence she would often go during her lunch break – is also relevant in assessing the degree of permanence of any occupation.
54	Lastly, the Commissioner contends that Ms Le’s explanation of the circumstances leading to her departure from the Relevant Property and return to her parent’s home – ‘to spend more time with them and also to save money’, is not the kind of ‘unforeseen or intervening circumstances’ that ‘would reasonabl[y] and adequately explain her departure’ for the purposes of the sixth Ferrington Principle.
55	In closing, Mr Healer added that:
•	The evidence does not make good Ms Le’s contention that she occupied the Relevant Property as her principal place of residence between August 2016 and March 2019, noting that:
-	As the residential tenancy agreement between Ms Le and her sister conferred ‘quiet enjoyment’ on the latter, it follows that Ms Le could not have been occupying the property as her principal place of residence ‘in the relevant sense’ (i.e. as per Khalil) from October 2017.
-	It was open to the Tribunal to find that the lease between Ms Le and her sister started in August 2016 when Dinh and her children moved in and Dinh started making monthly payments to live in the property, given both Ms Le and her sister conceded that nothing had substantively changed at the time.
•	The Tribunal ‘can and should be satisfied’ that Ms Le never occupied the Relevant Property as her principal place of residence given the ‘overwhelming majority of objective evidence’ to the contrary, including:
-	the Westpac loan application in 2015, in which Ms Le suggested the property would be an investment property; 
-	other ‘closely contemporaneous documents’ with ‘legal significance’ (e.g. her driver’s licence) disclosing her residential or home address at her parent’s home; and
-	the 2017 income tax return in which she claimed interest deductions on the basis that the relevant property was rented and declared her home address as her parent’s home.
•	Based on the dicta of Dixon J in Richardson v Federal Commissioner of Taxation, and the VCAT decisions which have followed that decision, having obtained an advantage (in the form of a rental loss reducing the tax on her other income), Ms Le ‘ought not be allowed to set up an inconsistent position’ in this proceeding.  While Mr Healer conceded that this was not a rule, but more in the nature of a rebuttable presumption, he contended that there was no evidence suggesting a mistake had been made and, rather than being rebutted, the position adopted in the tax return was supported by the other evidence.
Ms Le’s submissions
56	Ms Le maintains that she met the Residence Requirement on the basis that she ‘resided at the property from August 2016 to March 2019’.
57	In her written submissions, Ms Le says she does not dispute her sister stayed at the Relevant Property with her but gives her ‘guarantee’ that they stayed in the property together.
58	Ms Le also seeks to explain why she continued to use her parent’s address for utility purposes.  In this regard, she says that she ‘still saw [her] parents on a regular basis, so … didn’t feel the need to change [her] billing addresses’ and because she is ‘not the very best with life admin[inistration]’ and was ‘quite busy at work’.
59	In her submissions in reply to the Commissioner’s contentions, Ms Le observes:
•	She used a mortgage broker who completed the Westpac loan application (presumably in explanation of why it referred to the property being used for investment).
•	The residential tenancy agreement with her sister was ‘made outside the relevant period’, with the boarding arrangement being in place prior to that agreement.  She says she ‘advised the ATO of the board received prior to the commencement of the Residential Tenancy Agreement as [she] thought that it was required to be declared’.
•	It is ‘common for [her] age, culture and marital status at the time’ to maintain a ‘continuing association’ with one’s parents and their property.
•	Noting that her relationship with her sister is ‘closer than that of a “family friend” as referenced in the example [from Khalil v Chief Commissioner of State Revenue], she ‘would assert that [she] did have exclusive possession of the [Relevant Property]’.
•	The Commonwealth Bank credit assessment took place outside the relevant period and she stated that she would not be living at the Relevant Property because ‘that was the original intention before [she] changed [her] mind and stayed at [the Relevant Property]’.
•	As her departure from the Relevant Property was ‘outside the relevant period’ she does not consider the reason for doing so ‘needs to be unforeseen or an intervening circumstance beyond [her] control’.
60	In her oral submissions before the Tribunal, Ms Le said she ‘never denied’ her sister lived at the Relevant Property but maintained that she was also living there (including eating meals and sleeping there) from August 2016 to 2019.  She also submitted that, while she failed to update some records, there were ‘lots of bills’ (for electricity, water, gas and internet services) that were addressed to her at the Relevant Property.  She ‘apologise[d]’ for not updating her driver’s licence but said she did not realise how crucial that was.  She added that her evidence that she only intended to stay at the property for 12 months was ‘poorly expressed’.
Analysis and conclusion
61	In my view, Ms Le has failed to discharge the onus of proof to show that, on the balance of probabilities, she resided at the Relevant Property as her principal place of residence between 10 August 2016 and 10 August 2017.
62	While the utility invoices in the Tribunal Book clearly establish that people were living at the Relevant Property, the totality of the evidence suggests that it was Ms Le’s sister rather than her.  While it is unnecessary for me to reach a final conclusion, it seems most likely that Ms Le continued to reside at her parent’s property during the relevant period, although I would accept that she had a room, and occasionally stayed, at the Relevant Property.
63	In coming to his conclusion, I have taken account of the following matters:
•	Ms Le’s sister recorded the Relevant Property as her residential address on her driver’s licence from early September 2016 through to March 2019, while Ms Le only recorded that address for the period from November 2016 to October 2017.
•	For income tax purposes, Ms Le disclosed that she received rent in respect of the Relevant Property from 1 January 2017 and claimed the entirety of the interest as a deduction, which she would only be entitled to do if she did not reside at the property.
•	The treatment of the property as an investment property for tax purposes is consistent with Ms Le’s disclosures to Westpac, the Commonwealth Bank and RACV.
•	While her friends gave evidence of meeting Ms Le at the Relevant Property, this was only on a small number of occasions and neither could give evidence that she had slept at the premises or, at least, regularly did so.  Moreover, Dinh’s evidence that: 
-	Ms Le often had dinner with her mother at the parental home is inconsistent with Ms Le’s evidence that she usually had dinner at the Relevant Property; and
-	Ms Le sometimes stayed over at the parental home is consistent with Ms Le continuing to have a room available to her at that home.
•	Ms Le’s evidence that she did live in the property throughout that period lacks credibility in circumstances where she originally told the Commissioner that her sister only stayed occasionally and did not even mention Dinh’s children until the hearing (see [33]).
64	As already noted, it is quite possible that Ms Le had a furnished bedroom at the Relevant Property and did stay there from time to time.  However, there is insufficient evidence as to when this was the case to discharge her burden of proof in terms of establishing that the Relevant Property was her principal place of residence.  Further, given her acknowledgement of an intention to return to the family home sometime prior to October 2017 (i.e. when she changed her driver’s licence) and after meeting the Residence Requirement, any such occupation would have lacked the necessary permanence to establish that the Relevant Property was her principal place of residence.  
65	Moreover, to the extent Ms Le did take steps to record the Relevant Property as her address for some bills and/or stay at the Relevant Property during the relevant period, I consider those matters are appropriately characterised as a ‘ritual of occupancy’ for the purposes of obtaining the Grant.  In this regard, Ms Le was clearly aware of the need to live there for 12-months and, having regard to the totality of evidence, I infer that she did the things she thought were necessary for that purpose.  That finding is consistent with the change of the residential address to her parent’s home in October 2017 (given her apparent belief that anything that happened after the 12-month period expired in August 2017 was irrelevant).  Her explanation about the circumstances leading to a change of heart (see [35]) does not ring true, given that – on her account of events – she would have already been living with her sister’s children for around 14 months by the time that she decided to update her driver’s licence (and so any attachment she felt to her sister’s children would already have been clear at that point).
66	My conclusion is buttressed by the decisions in Khalil and Chen, and the evidence which suggests that Dinh was paying rent and had rights (albeit undocumented) to exclusive possession of the Relevant Property from August 2016, inconsistent with any claim by Ms Le that she used the property as her own principal place of residence.  Further, given Ms Le’s evidence that her sister’s children sometimes slept in her room, and that her sister could enter whenever she wanted to, there is nothing to suggest that she maintained a right of exclusive possession over one bedroom (or otherwise sought to exclude that bedroom from the scope of the arrangement). 
Penalty
67	In the Commissioner’s submissions, he sets out eight relevant factors to be considered in relation to penalties under the FHOG Act, as follows:
(a) 	truthfulness of the original statements made by the applicant in his or her application for grant;
(b) 	the surrounding circumstances including the intention of the applicant in relation to the occupation and use of the property as his or her principal place of residence at the time when seeking the grant;
(c) 	the reasons for failure to comply with the conditions of the grant;
(d) 	whether the applicant has occupied the property as his or her principal place of residence;
(e) 	the candour of the applicant in his or her responses to inquiries;
(f) 	whether the grant has been refunded;
(g) 	the deterrent effect of the penalty; and
(h) 	penalty decisions in previous cases involving similar circumstances.
68	The Commissioner submits that the Tribunal’s consideration of most of the factors ‘will be informed by the Tribunal’s findings in relation to the [Residence Requirement]’ and, in relation to the last point, notes that a penalty of 10% of the grant amount has been affirmed in many decisions under the FHOG Act.
69	In closing submissions, Mr Healer added:
•	In relation to factors (a) and (b), it was ‘open’ to the Tribunal to find that Ms Le had an intention to use the Relevant Property as an investment property from ‘as early as 2015’ (i.e. when she completed the Westpac loan application) and, if so, then her Grant application in 2016 was ‘less than truthful’ (i.e. in suggesting she intended to reside in the property as her principal place of residence).
•	In relation to factor (e), her suggestion to the SRO in 2020 that her sister was only staying at the Relevant Property on random occasions (i.e. the response to Question 11 in the Applicant’s SRO Response) was ‘not a correct characterisation’ of the circumstances (as Ms Le now acknowledged).
•	In relation to factor (h), as the Tribunal recently indicated in Purdon v Commissioner of State Revenue, if the Residence Requirement is not satisfied, the Tribunal would ordinarily determine that ‘some penalty remains appropriate’ and that a penalty set at 10% of the grant amount is ‘reasonable’.
70	Ms Le’s written submissions did not address the Penalty issue and in her closing submissions she simply requested that the Penalty issue be considered but did not address the relevant factors to be considered.
71	I accept the Commissioner’s submissions as to the factors to be considered in respect of any penalty under the FHOG Act.  
72	Apart from the fact that Ms Le has now repaid the Grant, the factors all point to the appropriateness of a penalty being imposed.  In circumstances where section 48 permits a penalty ‘not exceeding the amount the applicant is required to repay [in respect of the reversal of the grant]’, a penalty of 10% of that amount is likely at the low end given the matters raised in the first and second dot points in [69].  For these reasons, the Penalty could not be said to be unreasonable.
Other matters
73	After the hearing, Ms Le submitted an application to have her name anonymised and/or for some or all of the Tribunal’s reasons to be suppressed on the basis that she is a private person and does not want people to be able to search for her private details.  I dismissed that application in circumstances where: 
•	she accepted that there was no threat to her health or safety (or for any of her family); and 
•	she had not established a basis on which such orders could be said to be in the interests of justice or otherwise of such a nature as to displace the principle of open justice.

R Tang, AM
Senior Member