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

[2019] AATA 8

Al Ghban; Secretary, Department of Social Services and (Social services second review) [2019] AATA 8 (8 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6175, 2018/6177 and 2018/6176

Re:Secretary, Department of Social Services

APPLICANT

AndNerjis Al Ghban

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:8 January 2019

Place:Sydney

The Tribunal refuses the Applicant’s request for a stay of the decision of the Social Services and Child Support Division of the Tribunal on 26 September 2018 to set aside the decision under review.

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

Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Social services second review  – decision to set aside the decision under review -  application for a stay of decision – stay refused

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

REASONS FOR DECISION

Chris Puplick AM, Senior Member

8 January 2019

1. The Secretary, Department of Social Services seeks a Stay of the determination by the Social Services and Child Support Division of this Tribunal (AAT1), made on 26 September 2018 to set aside a decision of the Secretary to the effect that Ms Al Ghban owed the Department a debt in relation to rental assistance payments which, the Secretary claimed, had been paid when it should not have been.

2. The AAT1 found that the payments had been properly made and that Ms Al Ghban owed no debt to the Commonwealth and that any monies previously recovered should be repaid to her.

3. The basis of the Secretary’s appeal for a stay was simply that Ms Al Ghban had provided no proof, to the satisfaction of the Secretary, that the rental payments in question had been made, as outlined under section 38C(1)(e) of A New Tax System (Family Assistance) Act 1999 (Cth). Furthermore the Secretary claimed that the AAT1 should have taken more proactive steps to assure itself as to the fact that the rental payments had been made.

4. The Tribunal took oral evidence from Ms Al Ghban (by telephone from Tehran, Islamic Republic of Iran) who stated, under affirmation, that she had made the relevant payments both to the landlord (being her sister-in-law), or to her landlord’s agent, either in cash or by way of bank transfer. There was no dispute between the parties that, at all relevant times, Ms Al Ghban had been resident at the address to which the rental payments related, nor that her sister-in-law was, at all relevant times, the owner of the property in question.

5. Ms Al Ghban stated, and the Tribunal has no reason to doubt, that she is able to provide documentary proof of some of the non-cash rental payments (by way of bank transfer) and the Tribunal accepts that it is a reasonable proposition that some payments may well have been paid in cash as transactions between family members. However such matters, if in dispute, are for resolution within the context of any full hearing on appeal by the Secretary against the substantive decision of AAT1.

6. There is no basis for this Tribunal finding that the AAT1 was in error in coming to the conclusions it did when no further relevant material was placed before this Tribunal for its consideration or that, as a result, its determination should be stayed.

7. The Tribunal refuses the Applicant’s request for a stay of the decision of the Social Services and Child Support Division of the Tribunal on 26 September 2018 to set aside the decision under review.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 8 January 2019

Date(s) of hearing:	8 January 2019
Solicitors for the Applicant:	Dr S Thompson, Department of Human Services (By Phone)
Respondent:	Ms N Al Ghban (By Phone )