Afghani and Secretary, Department of Social Services (Social services second review)

[2017] AATA 410

Afghani and Secretary, Department of Social Services (Social services second review) [2017] AATA 410 (4 April 2017)

Division:GENERAL DIVISION

File Number:           2016/2888

Re:Keiko Afghani

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D. J. Morris, Member

Date:4 April 2017

Place:Perth

The Tribunal affirms the decision under review.

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D. J. Morris, Member

CATCHWORDS

SOCIAL SERVICES – Family Tax Benefit (FTB) – whether respondent entitled to FTB top ups and supplementary amounts – late lodgement of tax return – whether applicant’s husband prevented by special circumstances from lodging tax return in relevant income year – the test of ‘special circumstances’ – meaning of ‘prevent’ – original decision affirmed.

LEGISLATION

Acts Interpretation Act 1901 – s 29

A New Tax System (Family Assistance) Act 1999 – Schedule 1 – Clause 3, 25 and 29

A New Tax System (Family Assistance)(Administration) Act 1999 – s 32A – s 32C –

s 32C(3)(a)

CASES

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; (2007) 44 AAR 436; 110 ALD 9

Secretary, Department of Social Services and Cannon [2015] AATA 1028

Groth and Secretary, Department of Social Security (1995) 40 ALD 541; [1995] FCA 1708

Papageorgiou and Secretary, Department of Family and Community Services [2015] AATA 465

Ward v Commissioner of Taxation [2016] FCAFC 132

SECONDARY MATERIALS

The Concise Oxford Dictionary of Current English, 5^th Edition, Clarendon Press, 1972

REASONS FOR DECISION

Mr D. J. Morris, Member

4 April 2017

BACKGROUND

1. In the 2013/2014 financial year, the Applicant, Mrs Keiko Afghani, received fortnightly Family Tax Benefit (FTB) payments from the Department of Human Services (the Department) based on estimated income provided for the period (T6 p 26).

2. On 12 August 2014, the Department was notified that the Applicant was granted an exemption by the Australian Taxation Office from having to lodge her income tax return for the 2013/2014 financial year (T8 p 41). On 23 March 2015, the Department sent Mrs Afghani a letter informing her of the need for her and her husband to lodge tax returns for the 2013/2014 financial year prior to 30 June 2015 (T4 p 20). The letter also stated that if no action was taken by Mrs and Mr Afghani by 30 June 2015, she would no longer be eligible for any further FTB, including the FTB supplements, for the 2013/2014 financial year, and, in addition, she would have to repay all of the FTB received for the 2013/2014 financial year (T4 p 20).

3. On 25 September 2015, Mr Afghani lodged his tax return for the 2013/2014 financial year (T6 p 26). On 28 September 2015, the Department undertook a reconciliation of Mrs Afghani’s entitlement to FTB payments and then informed her that she was not entitled to her full FTB entitlement, including the FTB supplement, because her husband did not confirm his income for the 2013/2014 financial year by 30 June 2015 (T5 p 23).  This was the ‘original decision’.

4. Mrs Afghani requested a review by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision. On 17 December 2015 the ARO affirmed the original decision because Mr Afghani had not lodged his tax return until 25 September 2015, which was after 30 June 2015, and the Applicant had not demonstrated that this late lodgement was caused by special circumstances (T6 p 27).

5. Mrs Afghani sought a review by the Social Services and Child Support Division of the Tribunal (AAT1). That hearing occurred on 6 May 2016 and, having heard evidence from the Applicant, affirmed the original decision (T2 p 4).

6. Mrs Afghani then sought a review by the General Division of the Tribunal. That is this hearing. The hearing took place on 17 February 2017. The Applicant was represented by an advocate, Ms Chris Belcher. The Respondent was represented by Mr Maurice Lynch.  Mr Afghani gave evidence in support of the Applicant.  An interpreter in the Farsi language assisted the Tribunal at the hearing.

7. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence.

8. The Respondent tendered the Secretary’s Statement of Facts, Issues and Contentions dated 18 October 2016 (Exhibit R1).

9. The Applicant tendered the following documents:

   ·Applicant’s Statement of Issues and attachments, dated 27 July 2016 (Exhibit A1);

   ·Statement of Facts, Issues and Contentions of the Applicant, dated 28 September 2016 (Exhibit A2);

   ·Witness Statement of Afshin Afghani, dated 23 September 2016 (Exhibit A3);

   ·Witness Statement of Keiko Afghani, dated 28 September 2016 (Exhibit A4);

   ·Index of Applicant’s Supplementary Documents, received on 18 January 2017 (Exhibit A5);

   ·Letter dated 3 November 2016 from Mr David Femia, accountant (Exhibit A6); and

   ·Undated letter of Dr K. Gohari Moghadam, of Tehran (Exhibit A7)  

10. After the hearing, the Tribunal directed that the Respondent provide further information and the Applicant was given leave to reply. The Respondent provided Supplementary Submissions on 3 March 2017 and the Applicant provided a response thereto on 9 March 2017.  All of this material was taken into account by the Tribunal.

    FACTS

11. A person’s eligibility for FTB payments is determined pursuant to Part 3 of A New Tax System (Family Assistance) Act 1999 (the Act) and by the application of Schedule 1 of the Act.

12. Clauses 3 and 25 of Schedule 1 of the Act provide for the inclusion of a Part A supplement in how the rate of FTB Part A is calculated and clause 29 provides for the inclusion of a Part B supplement in the calculation of FTB Part B.

13. Section 32A of A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act) requires that the Secretary of the Department of Social Services (the Secretary) disregard the amounts of the FTB supplements when making or varying a determination until the claimant has, in the words of the statute “satisfied the FTB reconciliation conditions” which apply in the relevant period.

14. Section 32C of the Administration Act provides that an individual must lodge his or her tax returns within the first income year after the relevant income year unless the Secretary is satisfied that there are “special circumstances” that prevented the individual from lodging the return before the end of that first income year.

15. In this case, although the Applicant was exempt from lodging a tax return for the 2013/2014 financial year, her husband was not. Section 32D of the Administration Act sets out the relevant reconciliation time where an individual (in this case the Applicant) was a member of a couple throughout the relevant period, and the other member of the couple (in this case Mr Afghani) was required to lodge an income tax return for the relevant income year. The relevant reconciliation time applies. 

16. So the question before the Tribunal, essentially, is whether there were special circumstances which prevented Mr Afghani from lodging his 2013/2014 tax return before 30 June 2015, the end of the first income year following the income year in question and which should have led to the Secretary of the Department allowing an extension of time.

17. The point at issue in this case is whether the provisions in s 32C of the Administration Act are applicable to the Applicant.  In other words, can she avail herself of the provisions set out in that section to receive the FTB supplements and top-ups for the 2013/2014 income year because special circumstances are demonstrated?

    THE APPLICABLE LAW

18. Section 32C of the Administration Act states:

    Relevant reconciliation time – first individual must lodge tax return

    (1)       This section applies to the first individual for a same-rate benefit period if:

    (a)the first individual is or was required to lodge an income tax return for the relevant income year; and

    (b)clause 38L of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.

    (2)Disregard paragraph (1)(b) if the first individual was a member of a couple at any time during the same-rate benefit period.

    (3)The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of:

    (a)         the first income year after the relevant income year; or

    (b)         such further period (if any) that the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.

    (4)The further period under paragraph (3)(b) must end no later than the end of the second income year after the relevant income year.

    What happened?

19. Mrs Afghani was born in Japan in 1968 (Exhibit A4 para 1).  Her husband was born in Iran in 1967 (Exhibit A3 para 1).  In 1991 he went to Japan.  They met and in 1994 married

    
    

    (Exhibit A3 para 20).  They have two sons.  In 2005 Mr and Mrs Afghani and their children came to Australia to live (Exhibit A3 para 25).

20. In 2007 Mr Afghani established a souvenir shop in the centre of Perth, WA (Exhibit A3 para 28). They were helped in establishing their shop by Mr David Femia, an accountant (Exhibit A3 para 29).They bought a residence in a block of units in the suburb of Rivervale (Exhibit A3 para 31).

21. In 2012 the City of Perth started major renovations near where their souvenir shop was located. The footpaths were disrupted and pedestrian traffic significantly declined while new construction took place (Exhibit A3 para 34).This had a significant effect on the financial viability of the souvenir shop (Exhibit A3 para 35).  Mr Afghani provided evidence that in 2012/13 it made a profit of some $43,000 but in 2013/14 the profit had fallen to $8,500 (Exhibit A3 para 40).

22. The Tribunal had before it a letter dated 3 November 2016 from Mr David Femia, Mr and Mrs Afghani’s accountant (Exhibit A6).  He stated:

    There is an approximate 30% drop in income generated in the 2014 tax year compared to the 2013 tax year and it is our opinion that the ongoing construction and road closures in the Barack [sic] Street area was a large contributor to this fall.

23. Soon after these business challenges arose, Mr Afghani’s health began to suffer (Exhibit A3 para 41). He then received news from Iran that his mother was ailing and in March 2014 he travelled to Tehran to see her (Exhibit A3 para 43). He returned to Australia in April 2014 but again went to visit his mother in Iran, departing late in May 2014 (Exhibit A3 para 49). 

24. In May 2014, the Applicant visited the Victoria Park office of Centrelink to inquire about what assistance there might be to help with the cost of raising her two children, as the family business was not prospering. She said that an officer of Centrelink helped her lodge a claim for FTB online. There was no interpreter there at the time (Exhibit A2 para 29).

25. In January 2015, Mr Afghani’s father unexpectedly passed away (Exhibit A3 para 51).  He travelled to Iran to attend to funeral arrangements and, while there, his grandmother also passed away (Exhibit A3 para 53).

26. Mr Afghani’s health continued to trouble him and evidence was advanced that on 23 June 2015 he was diagnosed by his doctor with major depression and a Mental Health Treatment Plan was completed. He was also referred to a psychologist (Exhibit A3 para 60).

27. In Exhibit A2, the Applicant stated that, around 27 June 2015, Mr Afghani’s family contacted him and advised that he needed to come to Iran to sort out family affairs and organise care for his mother (para 42). On 30 June 2015 Mr Afghani left for Iran.  He returned to Australia on 8 August 2015 (Exhibit A2 para 43).

28. Mrs Afghani’s witness statement (Exhibit A4) states at paragraph 55:

    Afshin was meant to go and see Mr David Femia, our accountant, on 30 June 2015 to sign some documents for the Tax Office.  He forgot about this as he was so busy organising to go to Iran to see his mother who was very ill.

29. The Applicant said that Mr Afghani’s 2013/14 tax return was lodged on 24 September 2015 (Exhibit A4 para 59).

    The Applicant’s contentions regarding special circumstances

30. The Applicant contended that, when taken in their entirety, her family circumstances are special and, as such, the timeframe for her husband to lodge his 2013/14 tax return should be extended from 30 June 2015 to 24 September 2015 (Exhibit A2 para 56).

31. In terms of making out her case that special circumstances are demonstrated, the Applicant said that Centrelink had failed to consider the “Applicant’s cultural and linguistic background, language difficulties and to provide him with relevant information.” (Exhibit A2 para 56.1.1)

32. The Applicant said “it should have been evident that an interpreter should have been used” and pointed to the Department’s policy on this matter.

33. Mrs Afghani also contended that the mail box at her Rivervale home had been vandalised and they frequently do not receive mail (Exhibit A2 para 56.3). The Applicant provided photographs showing mail strewn around outside a bank of letterboxes, which she said were the letterboxes at the block of units where she resides.

34. The Applicant also contended that the failure of the souvenir shop business was owing to circumstances outside of their control because of the actions of the City of Perth, and this eventually led to her husband closing down the shop on 1 January 2016 (Exhibit A2 para 56.4).

35. The Applicant also contended that the family traumas Mr Afghani had had to deal with, the critical illness of his mother and his father’s sudden death, were additional special circumstances which should have been taken into account, as were the health issues Mr Afghani himself faced (Exhibit A2 para 56.5).

    Were there special circumstances that prevented lodgement?

36. In order to decide whether the original decision was correct, therefore, the Tribunal must look at the words of s 32C of the Administration Act and in particular whether special circumstances prevented the Applicant’s husband from lodging his tax return.

37. The term “special circumstances” is not defined in the Act or the Administration Act.

38. In Groth and Secretary, Department of Social Security (1995) 40 ALD 541 at [545] Kiefel J considered the meaning of the expression special circumstances. Her Honour said:

    The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case [Beadle v Director-General of Social Security] at ALR 229 ALD 674, and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

39. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33], Besanko J warned against requiring there to be exceptional circumstances before there may be said to be special circumstances:

    ... I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

40. The Full Court of the Federal Court has recently cautioned against a decision-maker taking too narrow a view of what may constitute special circumstances within the meaning of an Act of Parliament.  In Ward v Commissioner of Taxation [2016] FCAFC 132 at [43], Their Honours stated, in that context:

    In our opinion, the Tribunal erred in law by taking too narrow a view of what may constitute “special circumstances” within the meaning of the statute.  This may have been caused by unnecessarily considering factors in isolation before focusing on the entirety of the circumstances said by the applicant to be special.

41. Ms Belcher, in her submissions, said that the Department should have provided an interpreter, consistent with policy, if a customer indicates they need one (Exhibit A2 para 56).  Mrs Afghani, in her evidence, said that when she attended the Victoria Park office of Centrelink to complete the forms to apply for FTB she was helped to apply online (Exhibit A4 para 37).  When asked specifically at the hearing whether she asked for an interpreter, Mrs Afghani said “No, it didn’t come to my mind.”  When asked whether the officer could understand her, Mrs Afghani said that they knew why she visited and “did it for me”. 

42. In the Applicant’s Response to the Secretary’s Supplementary Submission, Ms Belcher reiterated Mrs Afghani’s evidence at the hearing that she is unfamiliar with computers and gets her eldest son to assist her when she sends emails (para 4). With respect, this point is immaterial, because her FTB claim was lodged successfully by the Applicant, with the assistance of Centrelink officers. Mrs Afghani’s familiarity with computers is not a relevant factor in whether her husband’s tax return was lodged before the relevant date.

43. The Tribunal accepts the evidence that the Applicant was born in Japan and her evidence that at home she speaks Farsi to her husband. Mrs Afghani said that her sons speak in Farsi and in English. She said that when she first came to Australia she did an English language course at Welshpool. She stated in Exhibit A4 that she went to Centrelink because “I spoke the best English and Afshin [the Applicant’s husband] had to work in the shop” (para 36).  The Tribunal heard evidence about her husband’s frequent travel to Iran to deal with urgent family business and Mrs Afghani said she ran the souvenir shop in his absence, including ordering stock and dealing with customers.

44. While the Tribunal accepts that Mrs Afghani may encounter some language challenges in her daily activities, the weight of evidence is that she was competent to operate a shop – including ordering stock by fax and from visiting sales representatives – when her husband was absent for extended periods on family duties abroad. On her own evidence she competently explained to Centrelink officers what she wanted when she visited the Victoria Park office, and the officers assisted her to make her FTB claim. Mrs Afghani said in her witness statement (Exhibit A4  para 37):

    I saw a lady at Centrelink who was very helpful.  She advised me that I could be paid Family Tax Benefit for my sons.  There was no interpreter available and she said the quickest way for me to get the money was for me to fill out a form on the computer. She helped me to fill out the form on the computer even though she was very busy.

45. In evidence, Mrs Afghani said she did not ask for an interpreter, and I believe it is unreasonable for her representative to contend, in this circumstance, that Centrelink should have decided, of their own volition, that she required one.  She was clearly able to make herself understood.

46. The Applicant’s advocate made submissions that Mrs Afghani was unfamiliar with the FTB regime, and this should be taken into account by the Tribunal.  In Secretary, Department of Social Services and Cannon [2015] AATA 1028, Deputy President Constance rejected the submission that a person’s ignorance of lodgement timeframes could amount to special circumstances. He said, at [17]:

    As a matter of general principle, ignorance of the law is no excuse for a person’s failure to comply with it.  In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.

1. With respect, I agree with Deputy President Constance. The Tribunal notes that Centrelink makes information on social security benefits available in several languages, including both Persian (Farsi) and Japanese.

2. In terms of the Applicant’s contentions about her problems with mail, there is a legal presumption of service by post that may be rebuttable on the facts. Section 29(1) of the Acts Interpretation Act 1901 states:

   Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

3. Photographs of some items of mail and advertising catalogues lying on the ground near a bank of letterboxes outside a block of flats were tendered by the Applicant. Mrs Afghani could not say when the photographs were taken and said she had not reported the damage to the post-boxes to the body corporate of her block of units for repair. The Respondent submitted copies of other correspondence from the Department to the Applicant at her Rivervale address relating to various aspects of FTB dated 28 May 2014, 2 June 2014, 13 June 2014, 4 July 2014, 21 August 2014, 23 March 2015, 11 May 2015 (in Farsi), 28 June 2015 and 30 June 2015 (T4 pp 20-2). The Applicant in written submissions after the hearing said she had not received the letter dated 23 March 2015 (para 8). 

4. Even if I were to accept that some mail to people living in that particular block of flats may have gone astray, the Tribunal cannot be conclusively satisfied on this evidence that the particular letter of 23 March 2015 reminding the Applicant of her lodgement obligations in regard to FTB is in that category. On balance, I find the Applicant’s submissions on this matter are insufficient to rebut the legal presumption in section 29(1) of the Acts Interpretation Act1901.

5. Extensive documents were lodged, and evidence given, about Mr Afghani’s health situation, including his mental health.  In Papageorgiou and Secretary, Department of Family and Community Services [2015] AATA 465, Member Perton considered a person affected by depressive illness and she concluded that, in that case, his circumstances were not unusual, uncommon or exceptional because he still had the capacity to carry on certain other usual activities.

6. There was evidence before the Tribunal from Mr Afghani’s general practitioner, Dr Arumugam Natchimuthoo, that Mr Afghani suffered from psychological stress which the doctor felt stemmed from childhood trauma experiences in Iran (Exhibit A5 p A9).  However, there was little evidence before the Tribunal that Mr Afghani’s illnesses had such a debilitating effect on his daily life that might amount to an uncommon or exceptional situation.  On the contrary, he still operated the souvenir shop business with his wife, and was able to arrange and travel to Iran several times to assist other family members at the time.

7. The Applicant submitted a letter dated 22 June 2016 from Mr David Salgado, clinical psychologist (Exhibit A5 p A11). This letter discusses Mr Afghani’s mental state and concludes that, in Mr Salgado’s opinion, Mr Afghani is “currently severely psychologically disabled” (Exhibit A5 p A11).  However, Mr Salgado says his first meeting with the Applicant’s husband was on 18 May 2016 and states (Exhibit A5 p A9):

   I cannot provide an authoritative clinical opinion which extends beyond this time period. Only an appropriately trained care professional like a Medical Practitioner or Psychologist who directly observed and monitored his past functioning at that time, prior to this initial attendance with me, and during the period in question, around and prior to 30 June 2015, when he missed the payments to which he was entitled, can provide an contemporary and authoritative clinical opinion regarding Afshin’s observed functioning during that time-period.

   If the concerns which he is presently experiencing were current during the time period in question when he failed to claim payments for which he is eligible, then I believe he has a legitimate cause to claim for special consideration regarding back-payment of funds, due to the presence of a disabling psychological symptoms and dysfunction that prevented him from enacting the necessary steps to claim the money.

8. The Tribunal is not medically qualified and does not dispute this professional opinion, but it is an opinion given almost two years after the beginning of the 2013/14 financial year.   Dr Natchimuthoo stated in document A9 of Exhibit A5 that he did refer Mr Afghani to a clinical psychologist in June 2015 but it was not until May 2016 that “Afshin eventually went to see the Psychologist”.  Mr Salgado’s speculation about Mr Afghani’s mental health in 2014 and 2015 is informed speculation, but it is speculation only, because he had not seen him at that time.

9. The Tribunal accepts the evidence from Mrs Afghani and her husband about the significant family issues he had to confront owing to family illness and bereavement, and the requirement for him to travel to Iran on several occasions.  However, Exhibit A2 states, at paragraph 43, that Mr Afghani booked his ticket on 28 June 2015 and left for Iran on 30 June 2015 and, at paragraph 45, that Mr and Mrs Afghani’s accountant had prepared the 2013/2014 tax returns for Mr Afghani “to sign on 30 June 2015”.

10. In Exhibit A3, Mr Afghani said, at paragraphs 62 and 63:

    The earliest ticket I could obtain to Iran was for 30 June 2015.  I stayed until 8 August 2015.

    After I came back David Femia contacted me and said I needed to come in to sign the tax forms so he could send them to the Taxation Office.  I was suppose [sic] to sign them before I left for Iran but had completely forgotten about doing this.

    (Emphasis added)

11. In his letter (Exhibit A6), Mr Femia states:

    It is our understanding that there were a number of personal extenuating circumstances that meant we did not get signed documents returned to lodge the 2013/14 tax return by the 30 June 2015…

    (Emphasis added)

12. It is not clear to the Tribunal whether the documents had been sent or given to Mr Afghani earlier than 30 June 2015, the very last day of the financial year.  One inference from the way Mr Femia couches his letter of 3 November 2016 is that they were.  This is different from what Mr Afghani states in his witness statement, that he was told he needed to “come in” to sign the forms at Mr Femia’s office (Exhibit A3 para 63).  However, it is not necessary for the Tribunal to dwell too long on this discrepancy.  Presumably Mr Femia’s accounting firm would have the capacity to lodge the tax return electronically by the end of the business day on 30 June.  The pertinent point, on both Mr Afghani’s and Mr Femia’s evidence, is that Mr Afghani knew there were forms he had to sign by 30 June 2015.

13. The fact is Mr Afghani had waited until the twelfth month of the year in which he needed to lodge his tax return in order to receive the FTB supplements. The Applicant had received a letter from the Department reminding her of the requirement to lodge the return and the consequences in regard to FTB supplements if a tax return is not lodged.  Mr Afghani’s evidence was that he “completely forgot”. 

14. While the Tribunal is not unsympathetic to the particular broad circumstances applying to the business and his own and his parents’ health, this state of affairs was no doubt preoccupying, but it was not overwhelming.  These other factors did not prevent Mr Afghani from carrying on his normal daily life at the time, including continuing to run his business and arranging and undertaking his travel. 

15. In considering this application for review, I must look at the whole of this particular limb of section 32C(3)(a) of the Administration Act together in its statutory context. The Parliament has enacted this section to allow discretion in a limited field with the phrase that there “…are special circumstances that prevented…” the taxpayer from lodging his or her return before the end of the relevant financial year.  There is no definition of the word ‘prevented’ in the Administration Act, so the Tribunal must look at the ordinary dictionary meaning. 

16. The Concise Oxford Dictionary of Current English (5^th Edition, 1972 print) defines ‘prevent’ as to “hinder, or stop”.  I find that Mr Afghani was not hindered or stopped from lodging his tax return before 30 June 2015 by some special circumstance.  He forgot.   Forgetfulness is not uncommon, nor out of the ordinary: it is a common human frailty.  But it did not amount to special circumstances ‘preventing’ the lodgement of the tax return.

17. Adopting the approach taken in Ward v Commissioner of Taxation [2016] FCAFC 132, the Tribunal has considered the entirety of the circumstances said by the Applicant to be ‘special’. There may be circumstances where the sum of events would lead, on balance, to the conclusion that a special circumstance might exist, or a number of special circumstances might together combine, to prevent a person from lodging a tax return, and therefore the discretion should justly be exercised in his or her favour. But on Mr and Mrs Afghani’s own evidence about why the return was not signed for lodgement, those ingredients are not present in this instance. Mr Afghani was busy, and had a lot on his mind, including understandingly important family matters which are the unfortunate vicissitudes of daily life, but he simply forgot.

18. The Tribunal found the Applicant and Mr Afghani truthful witnesses.  They have clearly had a number of significant challenges in relation to their business and, in Mr Afghani’s personal case, in dealing with family events in his country of birth overseas.  But the Tribunal does not find that special circumstances exist in this case so as to enliven the Secretary’s discretion in section 32C(3)(a) of the Administration Act.

    CONCLUSION

19. The Tribunal finds, factually, that the Applicant’s husband was not stopped or hindered from lodging his tax return by 30 June 2015. He had the preceding 12 month period to do so.  Unfamiliarity with the Family Tax Benefit system is not sufficient grounds for special circumstances that are unusual or uncommon, and which apply personally to her to be satisfied. Nor for the reasons set out above, are the other factors advanced in contentions by the Applicant. The outcome will no doubt be disappointing for Mrs Afghani but the original decision was therefore the correct decision.

    DECISION

20. The Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty –six) paragraphs are a true copy of the reasons for the decision herein of Mr D. J. Morris, Member

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Administrative Assistant

Dated: 4 April 2017

Date of hearing:	17 February 2017
Date final submissions received:	9 March 2017
Advocate for the Applicant:	Ms C Belcher Welfare Rights & Advocacy Service
Representative for the Respondent:	Mr M Lynch

Solicitors for the Respondent:          Mills Oakley Lawyers