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

[2017] AATA 84

Akcagoz; Secretary, Department of Social Services and (Social services second review) [2017] AATA 84 (18 January 2017)

Division:GENERAL DIVISION

File Numbers:2016/5122  

2016/5123

2016/5124

2016/5125

Re:Secretary, Department of Social Services  

APPLICANT

Nuray AkcagozAnd  

RESPONDENT 

DECISION

Tribunal:Dr L Bygrave, Member  

Date:18 January 2017

Date of written reasons:         30 January 2017

Place:Sydney

Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the operation of the Social Services and Child Support Division decision of 23 August 2016 is partially stayed to the effect that:

1.the debts under review stand until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal;

2.the withholding of fortnightly repayments from the Respondent’s family tax benefit is suspended until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal.

...................................[sgd].....................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for a partial stay of decision – departmental appeal – debt recovery – parenting payment, newstart allowance, family tax benefit and child care benefit – application has reasonable prospects of success – partial stay granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 41

CASES

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

REASONS FOR DECISION

Dr L Bygrave, Member

30 January 2017

INTERLOCUTORY APPLICATION

1. On 23 August 2016, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal set aside the decision of Centrelink dated 27 May 2016 in relation to debts owing by the respondent, Ms Nuray Akcagoz. In substitution, the SSCSD decided that all of Ms Akcagoz’s debts under review were to be recalculated on the basis that she was not a member of a couple during the period between 26 January 2007 and 20 March 2015 (the decision).

2. On 27 September 2016, the Secretary, Department of Social Services (Centrelink) applied for a review of the decision (substantive matter).

3. These interlocutory proceedings concern an application for an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for a partial stay of the operation of the decision until the final determination of the substantive matter before this Tribunal. The effect of a partial stay is that Centrelink:

   ·would suspend withholding fortnightly repayments from the respondent’s family tax benefit pending the Tribunal’s determination of the substantive matter;

   ·would not refund the amounts already recovered from the respondent pending the Tribunal’s determination of the substantive matter.

4. At the hearing of the application for a stay, I made an oral decision to grant the partial stay. These are my written reasons for doing so.

   POWER TO GRANT A STAY

5. Section 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. That is, the decision under review has full effect until and unless the Tribunal makes an order staying the operation or implementation of the decision.

6. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to section 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review.’

7. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles that may be considered when determining a stay application:

   [6] The decision whether to grant a Stay is entirely discretionary.  It follows that an applicant does not have an automatic right to a Stay.  Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise.  Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions.  In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. [emphasis added]

   [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications.  Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

   (a)The prospects of success or the merits of the applicant’s case on review.

   (b)Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

   (c)     Whether it is in the public interest to grant a Stay.

   (d)That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

   PROSPECTS OF SUCCESS

8. Although it is neither necessary nor appropriate for me to determine the substantive matter in these interlocutory proceedings, it is relevant for me to form a view as to the prospects of the Secretary’s application for review.

9. The substantive matter is concerned with whether Ms Akcagoz owes various recoverable debts to Centrelink for the period of 26 January 2007 to 20 March 2015 because she was a member of a couple during this period and the income of Mr Ozcan Akcagoz, her now ex-husband, was not taken into account.

10. Ms Akcagoz separated from Mr Akcagoz on a permanent basis on 1 February 2000 and subsequently received various payment types from Centrelink.

11. Ms Akcagoz’s relationship status was reviewed by Centrelink, which determined in 2016 that Ms Akcagoz was a member of a couple with Mr Akcagoz for the period of 26 January 2007 to 20 March 2015.

12. On the basis of this determination, Centrelink made several decisions to raise and recover from Ms Akcagoz debts that totalled $72,487.40; this included a parenting payment debt, a newstart allowance debt, family tax benefit debts and child care benefit debts. To date, Ms Akcagoz has repaid $2,830.96 of her family tax benefit debt for the 2012-13 financial year and $385.71 of her family tax benefit debt for the 2010-11 financial year.

13. The Secretary submits that there is documentary evidence for the period of 26 January 2007 to 20 March 2015 that shows Ms Akcagoz and Mr Akcagoz were joint tenants at two properties, travelled overseas together for six weeks in 2009 and divorced in November 2015. It is on the basis of this evidence that the Secretary contends Ms Akcagoz was a member of a couple between 26 January 2007 to 20 March 2015.

14. At the hearing of the application for a stay, Ms Akcagoz provided valid reasons in response to this material. This included stating that she asked Mr Akcagoz to co-sign rental leases as she had difficulties gaining a rental lease as a single mother on Centrelink payments; she travelled with Mr Akcagoz and their children overseas to ensure the children returned to her in Australia; and she was respecting the cultural sensitivities of her father by not divorcing Mr Akcagoz until 2015. Having read the decision under review and taken into account the submissions made by the parties, I accept that this may well be the case.

15. My preliminary view is that the substantive matter may have prospects of success depending on the Secretary’s evidence and submissions. This weighs in favour of the granting of a partial stay.

    PREJUDICE TO THE PARTIES AND THE PUBLIC INTEREST

16. The total amount of debts raised by Centrelink is substantial at $72,487.40. Ms Akcagoz has repaid amounts of $2,830.96 and $385.71. I note that, if a partial stay is not granted, the implementation of the decision would require the Secretary to refund these amounts to Ms Akcagoz.

17. I have considered the parties’ submissions and concur with the Secretary that the amount of Ms Akcagoz’s debt is substantial and it is in the public interest to avoid overpayment of public monies.

18. Consequently, the prejudice to the parties and public interest considerations support the grant of a partial stay in this case.

    FINANCIAL HARDSHIP

19. There is no evidence that Ms Akcagoz is currently in financial hardship. She told the Tribunal that she currently works full-time and receives family tax benefit payments.

    CONCLUSION

20. For the reasons given above, the application for a partial stay was granted at the hearing of the interlocutory application.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

....................................[sgd]....................................

Associate

Dated: 30 January 2017

Date of hearing:	18 January 2017
Applicant:	Self-represented
Solicitors for the Respondent:	Ms H Musgrove, Department of Human Services