Al Khatab and Secretary, Department of Family and Community Servi Ces

[2003] AATA 352

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 352

ADMINISTRATIVE APPEALS TRIBUNAL      )

)    Nos N2002/369

GENERAL ADMINISTRATIVE  DIVISION		)           N2002/371
Re		HASSAN AL KHATAB AND FADWA AL-SHAMAILEH

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member

Date17 April 2003

PlaceSydney

Decision The decision under review is affirmed.

...............................................

Ms S M Bullock   Senior Member

CATCHWORDS

SOCIAL SECURITY - Special Benefit - Newly Arrived Resident's Waiting Period - Substantial Change in Circumstances

LEGISLATION

Social Security Act 1991 (Cth) ss 729, 739A, 739B

AUTHORITIES

Secretary, Department of Social Security v Secara (1998) 89 FCR 151
Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 104 FCR 138
Re Zandieh-Nadem and Secretary, Department of Family and Community Services (2000) 59 ALD 557

Re Secretary, Department of Social Security and Fomin (AAT 12703, 12 March 1998)
Re Secretary, Department of Social Security and Tadros (AAT 12649, 26 February 1998)

REASONS FOR DECISION

17 April 2003   Ms S M Bullock, Senior Member                 

1.      This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicants, Fadwa Al-Shamaileh and Hassan Al Khatab of a decision made by the Social Security Appeals Tribunal ("the SSAT") on 26 February 2002 (T2) which decided that there had not been a substantial change in Mr Al Khatab's and Mrs Al-Shamaileh's circumstances and that, accordingly, the 104 week newly arrived resident's waiting period should remain, thus their claim for Special Benefit should be rejected. The SSAT's decision affirmed the decision made by an Authorised Review Officer ("ARO") on 13 December 2001 (T28, T29) which affirmed a decision of the primary decision-maker, a Delegate of the Secretary, Department of Family and Community Services on 29 October 2001 (T11, T12).

2. A hearing was held in Sydney on 5 August 2002 and resumed on 17 September 2002 and 24 October 2002. Mr Al Khatab and Mrs Al-Shamaileh provided evidence with the assistance of an interpreter in the Arabic language. The Applicants were self-represented, although were assisted by Mr Bill Gerogiannis, Solicitor, Legal Aid Commission of NSW who provided a Statement of Facts and Contentions for the Applicants. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Ms S Mantaring, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T30) and the following exhibits:

EXHIBIT	DESCRIPTION	DATE
A1	Applicant's Statement of Facts and Contentions and Attachment 1	8 July 2002
A2	Statement by Mr H Al Khatab and Attachments    "A -V"	15 July 2002
A3	Translation of statement by Samir Badie Abduldayem and original copy of envelope post stamped  19 May 2002
A4	Undated translation of statement by Abdullah Abdulqadir Awdah
A5	Photocopies of various licences of Mr H Al Khatab	Various
R1	Respondent's Statement of Facts and Contentions	25 July 2002
R2	Respondent's Supplementary Submissions and Attachment "A"	31 July 2002
R3	Letter to Mr Fernando Martines - Pat's Budget Plants and Garden Supplies and reply from Mr Martines	9 July 2002 and 18 July 2002
R4	Letter to Ms S Mantaring from Mr B Gerogiannis, Solicitor, Legal Aid Commission	16 July 2002
R5	Additional Information obtained by Ms S Mantaring from Ms D Haines	8 August 2002
R6	Record of conversation between Ms S Mantaring and Mr F Martines	8 August 2002
R7	Respondent's Additional Submissions	27 September 2002

ISSUES

3.      The issues in this matter are whether or not Mr Al Khatab and Mrs Al-Shamaileh have had a substantial change in their circumstances beyond their control to allow the discretion to be exercised not to apply the newly arrived resident's waiting period of 104 weeks in order that Special Benefit may be made payable to them. There is no dispute that apart from the newly arrived resident's waiting period, Special Benefit qualification is satisfied.

LEGISLATION

4.      A determination in this matter requires the application of the provisions of the Social Security Act 1991 ("the Act").

5. Specifically section 729 of the Act deals with qualification for Special Benefit.

6. Section 739A of the Act deals with the newly arrived resident's waiting period and states as relevant:

“739A Newly arrived resident's waiting period

739A(1)Subject to this section, a person who, on or after the commencement of this subsection:

(a)       enters Australia; or

(b)       becomes the holder of a permanent visa; or

(e)becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;

is subject to a newly arrived resident's waiting period.

…

739A(5)         If:

(a)a person is subject to a newly arrived resident's waiting period; and

(b)       neither subsection (3) nor (4) apply to the person;

the waiting period starts on the day on which the person:

(c)       first entered Australia; or

(d)       becomes the holder of a permanent visa;

whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.

…”

7.      Subsections 739A(3) and (4) do not apply in the Applicants' case.

8. Subsection 739A(7) refers to a discretion not to apply the newly arrived resident's waiting period and states:

“739A(7)Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control.

Note:    For permanent visa see subsection 7(1).

…”

9. There are no guidelines pursuant to section 739B of the Act in effect beyond 25 June 1997, as they were disallowed by the Senate on that day. As was noted by the SSAT, there are Policy Guidelines to the Act, which provide some guidance in relation to the newly arrived resident's waiting period. It is noted from those guidelines that:

"Before special benefit can be paid, the delegate should be satisfied that:

·     the change in circumstances is substantial and beyond the person's control; and

·     as a result the person is in financial hardship; and

·     the person has attempted to obtain a sufficient livelihood, eg attempted to obtain support from their sponsor; attempted to obtain employment; or, if sponsored by a business, attempted to work for their sponsor; and

·     their available funds were depleted because of the change in circumstances."

BACKGROUND

10.     The following information is provided by way of background and is not disputed:

·     Mr Al Khatab was born in Jordan on 11 June 1966 and Mrs Al-Shamaileh was born on 29 July 1970. Mr Al Khatab and Mrs Al-Shamaileh married before arriving in Australia and their first child was born on 28 September 2000.

·     In April 2001, Mr Al Khatab applied to migrate to Australia with his wife and child from Jordan. At the time, Mrs Al-Shamaileh was pregnant with their second child.

·     On 31 July 2001, Mr Al Khatab's “Sub Class 136” visa was granted to himself and his wife and child, Ahmed (T8, p74). They were issued with visas in late August 2001 (Exhibit A2, par 24). The Applicants wished to come to Australia as soon as possible because they were advised that if their baby was born in Jordan, they would have to obtain a visa for the newborn child which would then delay their migration to Australia.  Furthermore, medical advice to Mrs Al-Shamaileh was that if she did not fly to Australia before September 2001, then she would not be able to fly because of the advanced stage of her pregnancy.

·     Mr Al Khatab and Mrs Al-Shamaileh arrived in Australia with their son on 1 September 2001 (T8, p75).

·     On 7 September 2001, the Applicants made inquiries with Centrelink about claiming Special Benefit (T4, T5).

·     On 27 September 2001, the Applicant's second child, Abdullah was born.

·     On 29 October 2001, the Applicants were advised that their application for Special Benefit was unsuccessful (T11, T12). 

·     On 12 November 2001, the original decision of the Departmental Delegate was affirmed.

·     On 13 December 2001 an ARO affirmed the primary decision of the Departmental Delegate (T27, T28).

·     On 26 February 2002, the SSAT affirmed the ARO's decision (T2).

·     On 13 March 2002, the Applicants lodged an application for review to the Tribunal (T1).

EVIDENCE OF MR HASSAN AL KHATAB 

11.     Mr Al Khatab told the Tribunal that in Jordan he had been employed since 1997 in a Development and Employment Fund, similar to a bank, initially as an Accountant and then in the position of Chief Auditor. He supervised up to six people earning 600 Dinars or the equivalent of AUD $2,000 per month.

12.     Mr Al Khatab noted that there was very little time once the visas to Australia were approved to then organise to leave his and his wife's employment, sell their furniture and car and organise their funds to come to Australia.

13.     Mr Al Khatab explained that he had invested an amount of 12,000 Dinars or the equivalent of AUD $36,000 with a good friend of his, Mr Taysir Naim Al-Aqaylah, who was the manager of a business "Al Arabi Money Exchange Establishment"..  Mr Al-Aqaylah was a close friend of Mr Al Khatab and they had attended school together. Mr Al Khatab attended university in Amman and Mr Al-Aqaylah worked also in Amman so they kept in touch. In about 1996, Mr Al Khatab had initially invested approx 5,000 Dinars increasing this to the total investment of 12,000 Dinars. Many prominent people invested in the same company including Government Ministers such as the Minister for Police. Mr Al Khatab stated that Mr Al-Aqaylah provided him with six cheques which were proof that Mr Al Khatab was owed money. In Mr Al Khatab's statement (Exhibit A2), it is noted that in Jordan the law is that if a cheque is dishonoured, then one has three years to sue for the money (Exhibit A2, par 18). The cheques, for which there is a translation (Exhibit A2, Attachment B), indicate that they were for $2,000 each paid in between 30 June 1999 and 30 October 1999.

14.     Mr Al Khatab told the Tribunal that he informed his friend in about April 2001 that he may need his investment funds returned. This was at a time when Mr Al Khatab had passed his health test and thought that the visa application for Australia was close to being approved. Mr Al Khatab stated that he specifically asked for the return of his investment funds from Mr Al-Aqaylah in July 2001, but was told that he would need two or three months notice. When the visa was approved in late August 2001, Mr Al Khatab's friend told him that he would need time to realise the investment and provide the funds to Mr Al Khatab. In the end, Mr Al Khatab decided that he would have to leave for Australia, otherwise he would miss out. He relied on his friend's advice that the money would be obtained and provided to Mr Al Khatab. Mr Al Khatab asked his brother-in-law, Ibrahim, to follow up the investment in Jordan and to arrange for the money to be transferred to Mr Al Khatab.

15.     Just prior to coming to Australia, Mr Al Khatab arranged for the sale of furniture and of his car and the proceeds of these sales netted an amount of $10,000.00.  Mr Al Khatab stated that he was not at all worried about arriving in a new country with this small amount of money because he was relying on the return of the $36,000.00 from his investment with Mr Al-Aqaylah.

16.     Mr Al Khatab noted that he had seen a brochure prior to coming to Australia which indicated that he would need $700.00 per week to live in Australia. Mr Al Khatab had received advice from his brother-in-law in Australia, Sakher, that it was easy to obtain an Accountant's position within Australia.  Mr Al Khatab had not made any inquiries himself with any of the professional accounting bodies in Australia but assumed that because Accountants received high points scores in the immigration check list, that this was an indication that it would be relatively easy to obtain employment as an Accountant.

17.     Within one week of being in Australia, Mr Al Khatab received a telephone call from his brother-in-law in Jordan who advised him that Mr Al-Aqaylah’s company was bankrupt and that the manager had "run away".  Mr Al Khatab told the Tribunal that he was extremely shocked by this news, as he had not considered Mr Al-Aqaylah to be a cheat. He further stated that he could not arrange for anyone in Jordan to help out. In this regard, in relation to taking legal action against Mr Al-Aqaylah or the company, Mr Al Khatab noted that he would have to pay 20 per cent of the legal fees in advance and then would have to pay five per cent of the value of the investment to the Government and the Court. He simply did not have the money to pay such fees, nor was there any guarantee he would be successful, particularly as the advice to Mr Al Khatab was that Mr Al-Aqaylah was nowhere to be found. Further misfortune occurred because Mr Al Khatab's brother-in-law in Jordan had passed away and was therefore unable to pursue the matter for Mr Al Khatab.

18.     Mr Al Khatab was adamant that the documents translated from Arabic indicating the payment of six cheques was proof that he had an investment with Mr Al-Aqaylah.  Mr Al Khatab came to the realisation that his $36,000 was lost and he speculated that perhaps Mr Al-Aqaylah was using Mr Al Khatab's and other investors' money for "smuggling operations".

19.     In relation to employment within Australia as an Accountant, Mr Al Khatab noted that he must undertake two subjects to become accredited as an Accountant able to work within Australia. Mr Al Khatab knew that he would be unable to rely on government financial assistance for a period of two years and had known this before he left Jordan. It had not been his intention to rely on government financial assistance because he thought that he would have his investment of $36,000.00 and would have been easily able to obtain employment.

20.     When Mr Al Khatab and Mrs Al-Shamaileh first arrived in Australia, they stayed in a motel/apartment for one night and then went to live for some weeks with Mr Al Khatab's brother-in-law, his wife and four children at Punchbowl. Mr Al Khatab agreed that he and his wife had signed a statement (T6) in which it was recorded that he and his wife and child spent the first couple of weeks living in a rented furnished apartment at the cost of $100.00 per day. Mr Al Khatab stated that he had signed this statement but did not read it. His brother-in-law had written it on the Applicants' behalf. He subsequently told the SSAT and the Tribunal that this statement was not true.  The file note by a Centrelink Officer of a conversation with the Applicants at T7, which recorded that they stayed at the five star ANA Hotel for 12 days, was also not correct, Mr Al Khatab stated.  That note also indicated that Mr Al Khatab could not obtain his investment in Jordan because it had not reached the maturity date, which also was slightly different to the information provided to the Tribunal. Mr Al Khatab stated that he had advised Centrelink and later the SSAT that these statements were not true and had been the result of his brother-in-law assisting them at the time.  Mr Al Khatab acknowledged that while he had passed the English test to allow him to come to Australia, his written and oral English skills in September 2001 were not as good as they are currently, and in those first few weeks in Australia in September 2001, he was not fully able to appreciate written and oral English.  

21.     Mr Al Khatab told the Tribunal that while living in Punchbowl with his brother-in-law, Mr Al Khatab and his wife were assisted to look for accommodation by their brother-in-law. Many places were considered but they were unsuccessful in obtaining accommodation, Mr Al Khatab stated.  Finally, Mr Al Khatab’s brother-in-law made contact with an agent from Starr Real Estate.  Mr Al Khatab stated that he was told by this agent that in order to secure accommodation, he would be required to pay six months rent in advance, which would also enable the agent to represent to the landlord of the particular property in mind, that he knew Mr Al Khatab and could provide a good reference for him.  Mr Al Khatab told the Tribunal that he was aware that it was incorrect for the agent to represent to the landlord that the agent knew Mr Al Khatab, when this was in fact not true.

22.     Mr Al Khatab was referred to a file note by the ARO dated 26 November 2001 (T21), which detailed a conversation with the Property Manager of Starr Real Estate that Mr Al Khatab did not have to pay six months rent in advance and that he was only required to pay the bond. Mr Al Khatab replied that all he knew was that he was told that if he paid six months rent in advance, the agent would give him a good reference and secure the property for rental.  Thus, Mr Al Khatab paid an amount of $6,000.00 for rent leaving him $4,000.00 to live on for the next two years. Mr Al Khatab stated that he knew that he would have to pay this amount of money before he attended the Centrelink Office initially on 7 September 2001. Mr Al Khatab stated that he had explained to the Centrelink Officer during that initial interview that he had to pay $6,000.00 in advance rent for property which, when combined with the expenditure on furniture, refrigerator and other necessary household items, would leave him with approximately  $250.00 or less at that time.

23.     Mr Al Khatab told the Tribunal that he knew he had to wait for two years,  before being eligible for any government financial assistance but stated that he had no choice but to pay rent to secure a house for his pregnant wife and child. Mr Al Khatab's brother-in-law was fighting with his own wife and Mr Al Khatab's family was unable to continue living at Punchbowl..  Mr Al Khatab explained that his priority was his family's welfare. "What choice did I have?", he asked. If he did not take such action to secure the rental property, he and his family would have been on the street, Mr Al Khatab stated.  Mr Al Khatab stated that he did not care about the agent making a false statement that he knew Mr Al Khatab or providing a reference for him because he wanted the property to house his family.

24.     Mr Al Khatab stated that as at the time when they approached the Centrelink office on his brother-in-law’s advice in September 2001, to enquire about Special Benefit, they still had the $10,000.00, which they had brought from Jordan. It was explained to the Centrelink Officer, however, that they would be renting a property, having to pay six months’ rent in advance. As at 12 October 2001, when the Applicants lodged their claims for Special Benefit, they were in debt, Mr Al Khatab stated, as they had spent the money not only on the six months rent in advance but also on the purchase of necessary furniture and white goods items. By the time the application was formally lodged on 12 October 2001, Mr Al Khatab stated that he was relying on receiving Special Benefit as his sole source of income.  Mr Al Khatab denied having spent the $10,000..00 he had when he arrived in Australia in order to have proof that he had no finances.

25.     Mr Al Khatab told the Tribunal that he had received assistance from time to time since being in Australia from a variety of charitable organisations such as the Sydney City Mission who provided food vouchers. He also had sought and received assistance from Ms Dianne Haines of the Macarthur Migrant Resource Centre.  In this regard, Ms Haines organised payment of an electricity account and put the family in contact with other charitable organisations who provided food vouchers and assistance with other expenses.  Mr Al Khatab also received help from a Jordanian friend who helped pay for his fees for study at the University of Sydney. Mr Al Khatab stated that he owes approximately $3,000.00 to people who have helped him.  Mr Al Khatab noted that there was other financial assistance being provided in the amount of approximately $566.00 per fortnight for the children and when their second son Abdullah was born, the Government provided a one-off payment of approximately $800.00.

26.     Mr Al Khatab noted that Ms Haines assisted him in working out what study and courses he needed to undertake in order to become qualified to practice as an accountant in Australia. In this regard he undertook Information Technology courses, a course in Company Law at Sydney University, in addition to specific study of a Taxation Course with HR Block Taxation Agents.  He also undertook an “MYOB” Course at Campbelltown TAFE.  Mr Al Khatab stated that he has also studied Office Procedures and Company Accounts at TAFE, attending two nights per week.

27.     Currently, Mr Al Khatab works in an unskilled position at the Primo Smallgoods Factory, working five days per week full-time and earning $500.00 per week.  Mr Al Khatab stated that he works 12 hours per day and has to try to fit in study in addition to his work.  Mr Al Khatab has also obtained various licences, including a licence to operate as a Security Officer and to drive a fork lift truck.

28.     Mr Al Khatab told the Tribunal that when seeking employment, Mr Al Khatab had been referred by Ms Haines to a colleague of hers, Mr F Martines.  Mr Al Khatab stated that at the time he first met Mr Martines, he was the owner of Pat's Budget Plants and Garden Supplies at Catherine Fields.  Mr Al Khatab had developed two resumes, one to assist him in applications for unskilled work (Exhibit A2, Attachment L) and the other to assist him in applications to work in the professional field of accounting (Exhibit A2, Attachment H).  Mr Al Khatab was of the view that it would have not assisted him in applying for non-skilled positions to have a resume which indicated his entire professional accounting work and experience. In the resume used for unskilled positions, it is recorded that between October 2001 and February 2002 Mr Al Khatab had worked as a general hand and labourer at Pats Budget Plants and Garden Supplies, but that he left due to downsizing. 

29.     It was put to Mr Al Khatab by Ms Mantaring, that Mr Martines advised on 18 July 2002, that Mr Al Khatab did not work for his business but that he did a period of work experience in 2001 on weekends working eight hours per weekend for a period of four weeks.  He was not paid any money for this work and was found to be unsuitable (Exhibit R3).  Mr Al Khatab denied that he ever undertook any work be that paid work or work experience for Mr Martines at Pat's Budget Plants and Garden Supplies.  Mr Al Khatab furthermore stated that Ms Haines had referred him to Mr Martines because of his desperate situation in relation to obtaining employment, as he had no local experience and had applied unsuccessfully for many positions.  Mr Al Khatab stated that he needed to provide evidence of experience to prospective employers, hence the details in his resume for non-skilled work.  Mr Al Khatab stated that he did not like to lie but that he was “driven” to do the wrong thing because he had little choice (Transcript 17 September 2002, p43).  Mr Al Khatab stated that the resumes were sent to employment agencies including Work Solutions in Bankstown. 

30.     Mr Al Khatab referred the Tribunal to Ms Haines' statement to Ms Mantaring on 8 August 2002 (Exhibit R5), in which Ms Haines noted that she had helped Mr Al Khatab in a number of matters, including providing Mr Al Khatab with practical assistance, in addition to information about his accreditation as an accountant.  Ms Haines has confirmed that she had referred Mr Al Khatab to Mr Martines at Work Solutions and that Mr Martines had agreed to be Mr Al Khatab's referee as a favour to her. Ms Haines told Ms Mantaring that Mr Al Khatab would most probably not have undertaken work experience with Mr Martines in 2001 because she only referred Mr Al Khatab to Mr Martines in March 2002.  It was furthermore, highly likely, Ms Haines opined to Ms Mantaring, that Mr Martines would have assisted Mr Al Khatab in preparing his resume.  Ms Haines also opined that Mr Al Khatab tells the truth and has tried very hard to obtain employment.

31.     Mr Al Khatab told the Tribunal that he provided the resume for unskilled positions to various employment agencies such as “AMC”..  Mr Al Khatab used the other resume for applications for professional positions and referred to this as his "real resume".  Apart from the details in the resumes about Pat's Budget Plants and Garden Supplies work experience, Mr Al Khatab stated that all the other information is correct.

32.     Mr Al Khatab was referred to his contact with the Family Assistance Office on 23 November 2001, when he requested an income statement to provide to a community housing agency (T21).  At that time, Mr Al Khatab and his family were living at 17 Englorie Park Drive, Englorie Park at Campbelltown in NSW. Also at that time, Mr Al Khatab's brother-in-law was living with him because his wife had taken out an Apprehended Violence Order against him. Mr Al Khatab stated that his brother-in-law was providing the family with assistance from time to time by way of food or grocery supplies, but was not paying any rent.  Mr Al Khatab asked the Officer at the Family Assistance Office not to put his current address on the income statement he wished to obtain, asking that the address of his brother-in-law at Punchbowl be inserted.  It was the intention, Mr Al Khatab told the Tribunal, that his family and Mr Al Khatab's brother-in-law would swap accommodation so that Mr Al Khatab and his family would live in the Punchbowl home of his brother-in-law and in turn, the brother-in-law would live at the Englorie Park home. The reasons for this swap of accommodation are not entirely clear to the Tribunal despite numerous attempts to clarify the situation. It was the evidence that Mr Al Khatab would not have to pay any rent for the Punchbowl property. Mr Al Khatab's brother-in-law would live in the in Englorie Park accommodation rent free as the rent had been paid six months in advance but would pay the $75.00 per week for the Punchbowl rental.  When rent was then due on the Englorie Park home, Mr Al Khatab’s brother-in-law would meet these costs.  As it turned out, this arrangement did not eventuate, as there was violence occasioned by Mr Al Khatab's brother-in-law and Mr Al Khatab obtained an Apprehended Violence Order in relation to that gentleman (Exhibit A2, Attachment E). 

33.     Mr Al Khatab stated that the income statement being sought from the Family Assistance Office was for the purpose of him making an application for accommodation to the Housing Department through the St George Housing Office. Mr Al Khatab stated that as he is currently aware, the family's name is on a waiting list for such accommodation.  Mr Al Khatab was intending to provide the income statement to the St.George Housing Office with his brother-in-law's address as his own address, however.  The Family Assistance Officer refused to do this.  The Tribunal notes that the falling out between Mr Al Khatab and his brother-in-law occurred in December 2001.

34.     Ms Mantaring put to Mr Al Khatab that he was prepared to have himself misrepresented to a landlord and to future employers because he was desperate for accommodation and employment, a proposition with which Mr Al Khatab agreed.  Mr Al Khatab responded that he did what was advised to him by the real estate agent and by others in relation to employment issues because that is "what is the game of the official" (Transcript, 17 September 2002, p33).  Mr Al Khatab stated that he was in charge of the family and was forced by the circumstances to say things or go along with matters, which were not true.  Mr Al Khatab urged the Tribunal to consider Ms Haines' opinion of him that he tells the truth (Exhibit R5, para 4).

EVIDENCE OF MRS FADWA AL-SHAMAILEH

35.     Mrs Al-Shamaileh told the Tribunal that prior to arriving in Australia she was living in Amman, Jordan. She was employed in the Department of Antiquity and has a Masters Degree in Archaeology.  Mrs Al-Shamaileh earned approximately $600.00 per month.  Her husband worked in the Department of Employment and Development, which provides credit and money for people wishing to establish a business. Mr Al Khatab had a good salary in Jordan and their lifestyle was very comfortable. Their decision to move to Australia was related to their dream of having a better lifestyle and future for themselves and their children.

36.     Mrs Al-Shamaileh told the Tribunal that her husband had invested money with a good friend of hers Taysir Naim Al-Aqaylah, in the amount of $36,000.00.  When the family found out about their approval to migrate to Australia, Mr Al Khatab had attempted to have his money returned but was told that it would take a couple of months (Transcript, 17 September 2002, p62). When the money could not be obtained before travelling to Australia, Mr Al Khatab's brother-in-law agreed to follow this matter up for the Applicants and keep them informed in Australia.

37.     Mrs Al-Shamaileh stated that prior to leaving Jordan, the Applicants sold their furniture and car and came to Australia with approximately $10,000.00.  Mrs Al-Shamaileh's brother in Australia had told them that it was a very good life in this country and encouraged them to come to Australia. He also told Mr Al Khatab that accountants were in demand and employment opportunities were plentiful. Mrs Al-Shamaileh noted that she had read a brochure which indicated that the cost of living in Sydney was approximately $700.00 per week.  Mrs Al-Shamaileh knew that there was a two-year period during which no government financial assistance could be made available to newly arrived residents.

38.     Mrs Al-Shamaileh recalled being in Australia for less than one week when they were contacted from Jordan with information that Mr Al-Aqaylah and the company in which Mr Al Khatab's money had been invested, were insolvent. This was a great shock to the family, Mrs Al-Shamaileh stated.  Mr Al Khatab did not engage a lawyer to try and obtain his investment because he had lost all his money and to employ a lawyer would require him sending in advance of 20 per cent of the fees and also a five per cent court fee.  Mrs Al-Shamaileh stated that there was just no money to pursue any possible legal remedies.

39.     Mrs Al-Shamaileh told the Tribunal that once in Australia, the family stayed in a motel/apartment for one day in Bankstown and then moved to live temporarily with Mrs Al-Shamaileh's brother and his wife and four children.  Mrs Al-Shamaileh thought that her family would stay with her brother for approximately two weeks. Mrs Al-Shamaileh stated that her brother advised her and her husband that there was a possibility that given their unexpected financial circumstances, they may be able to obtain some government financial assistance through the Special Benefit payment. The family attended Centrelink early after arriving in Australia with Mrs Al-Shamaileh's brother and a statement was prepared.  Mrs Al-Shamaileh stated that while she had passed the English efficiency tests in order to come in Australia her written and spoken English skills were not as proficient then as they are now. Mrs Al-Shamaileh's brother made a statement about her and her husband's circumstances which she and her husband signed, she stated (T6, pp69-70). Mrs Al-Shamaileh stated that this statement was incorrect in recording that the family spent the first couple of weeks after arriving in Australia in a rented furnished apartment to the value of $100.00 per day (T6, p70).  Mrs Al-Shamaileh agreed that the statement (T6) had been signed by herself and her husband, but stated that what was reported was different to what her brother had told her and her husband was contained within the statement.  Mrs Al-Shamaileh also denied the file note of 14 September 2001 by a Centrelink Officer which indicated that they spent 12 days at the ANA Hotel in Sydney (T7).  Mrs Al-Shamaileh stated that she and her husband relied on her brother-in-law in those first few contacts with Centrelink. 

40.     Mrs Al-Shamaileh stated that she and her husband had gone with her brother to Centrelink initially to make some inquiries about Special Benefit and that they had explained to the Officer that they were going to have to spend $6,000.00, representing rent in advance for six months in order that they secure a property in which to live.  She also stated that the Centrelink Officer was advised that approximately $4,000.00 would be expended to purchase necessary household furniture and white goods. The “Claim for Special Benefit” form was taken away and following the birth of her second son on 27 September 2001, the form was taken back to Centrelink to lodge on 12 October 2001 (T4, T5).  By the date of lodgement in October 2001, the majority of the $10,000.00 she and her husband had brought to Australia had been expended either by way of advanced rent or in setting up their house, Mrs Al-Shamaileh explained.  

41.     In relation to obtaining their accommodation, Mrs Al-Shamaileh stated that her husband tried on many occasions to find rental accommodation with the help of her brother. Eventually they found a property in Englorie Park, Campbelltown, but were required to pay $6,000.00 that is rent of $200.00 per week for six months in advance. Mrs Al-Shamaileh acknowledged that this was a great deal of money but they relied on her brother's advice and the agent that they would need to pay this rent in advance in order to secure the accommodation. 

42.     Mrs Al-Shamaileh stated that the family also received $465.00 each for the children per fortnight and $800.00 as a one-off payment from the Government when Abdullah, her second son, was born.  Mr Al Khatab is currently working at Primo Smallgoods Factory earning approximately $500.00 per week.  Mrs Al-Shamaileh stated that charitable assistance was also provided to Mrs Al-Shamaileh and the family by way of food vouchers or vouchers to pay for utility fees such as electricity.  Mrs Al-Shamaileh has no other financial assistance and her brother, who was supposed to assist them financially, has not done so.  Mrs Al-Shamaileh stated that her brother came to live with her husband and their family between September and December 2001 because he had domestic problems between himself and his wife. Mrs Al-Shamaileh stated that her brother would help with food from time to time.  Later in December 2001, there was a problem between her brother and her own family and as a result they took out an Apprehended Violence Order restraining her brother from coming near them and he accordingly left their home.  

43.     Mrs Al-Shamaileh stated that her husband had not, to her knowledge, worked with a business, Pat's Budget Plants and Garden Supplies. 

44.     Currently Mrs Al-Shamaileh is enrolled and undertaking a PhD in Archaeology at the University of Sydney. This is a three to four year course, Mrs Al-Shamaileh stated.

45.     Mrs Al-Shamaileh was asked about the proposal that her family swap houses with her brother, that is, Mrs Al-Shamaileh and her family would live in Punchbowl in her brother's home and he in turn would live in at their Englorie Park accommodation.  Mrs Al-Shamaileh stated that the plan was that her brother would continue to pay the rent at Punchbowl while the Applicants lived there and that when the rent was due again on the Englorie Park property, her brother would pay that rent as well.  Mrs Al-Shamaileh stated that the reason for this was so that her brother could maintain his activities and property in the garage in the Punchbowl accommodation, though it was not clear to the Tribunal on the evidence provided, why he could not have continued to live in the Punchbowl property to access the garage there.  Thus, the need for a swap of accommodation was not apparent to the Tribunal despite its best efforts in trying to ascertain the reasoning behind this proposal.

46.     Mrs Al-Shamaileh told the Tribunal that she and her family are not depending on the Government to live.  All they wished for, Mrs Al-Shamaileh stated, was to better their qualifications in order to obtain better and more remunerative employment. Mrs Al-Shamaileh stated that her husband was studying at University, taking the requisite subjects in order to allow him to be accredited as a fully qualified accountant able to work in Australia.  Mrs Al-Shamaileh told the Tribunal that she loves Australia as this country has opened its doors to her family.

SUBMISSIONS OF MR AL KHATAB AND MRS AL-SHAMAILEH

47.     Mr Al Khatab submitted that the hardship he and his family were experiencing had occurred because of the loss of their investment in Jordan. This was beyond their control and if that had not occurred then they would have not been in hardship, Mr Al Khatab submitted.  The family had depended on the investment money to assist them in their cost of living in Australia and also to allow them to obtain better qualifications to improve their employment prospects. Mr Al Khatab stated that the situation now is that because there is no money, Mr Al Khatab must work as an unskilled worker in a factory.  Mr Al Khatab stated that he has no time for study because he has to feed his family.  Mr Al Khatab submitted that obtaining the Special Benefit would assist the family in its day to day living and allow Mr Al Khatab the opportunity of obtaining his qualifications, so that he can make his own way in Australia without Government assistance.

48.     Mr Al Khatab submitted that when he invested his money in the company in Jordan, it was a good company with a fine reputation, as attested to by the fact that Government Ministers and other prominent citizens also invested in that company.  Mr Al Khatab had been successful in his investment with this company previously, he stated.  Mr Al Khatab submitted that he had proof that the money was invested and referred the Tribunal to Exhibit A2, Attachment B, comprising documents that Mr Al Khatab stated were officially stamped and were official proof of this investment.  It may be, Mr Al Khatab submitted, that he had made a wrong choice in investing in this company, as history has shown.  That was his bad luck, Mr Al Khatab stated.  However, Mr Al Khatab noted that everyone in that company worked properly and that he along with others had made a profit, which suddenly disappeared.

49.     In relation to his resume, Mr Al Khatab submitted that it was not his initiative to record that he had worked for Pat's Budget Plants and Garden Supplies.  Mr Al Khatab submitted that it was Mr Martines' idea to place the work experience at Pat's Budget Plants and Garden Supplies on Mr Al Khatab's resume.  Mr Al Khatab stated that he acted on the advice of people who had knowledge in the employment field and he accepted their advice.  Mr Al Khatab stated that he had no choice but to follow the advice of others as he was experiencing hardship, not because he had to pay the rent in advance but because he had lost his investment money in Jordan. Things were out of his hands, Mr Al Khatab stated.  Mr Al Khatab further submitted that there was also pressure to come to Australia at the time they did, rather than waiting for the money to be found, as to delay coming to Australia any further would have meant that Mrs Al-Shamaileh would not have been able to travel because of the advanced state of her pregnancy.  Furthermore, there would be another delay occasioned by the birth of their second child requiring that a visa be obtained for him, Mr Al Khatab stated.

50.     Considering the issue of paying the rent in advance, again, Mr Al Khatab stated that he had no choice but to follow the advice provided to him about that. At least he was able to obtain a house to live in, Mr Al Khatab stated.  Mrs Al-Shamaileh submitted that her husband did not intend to lie but just followed the advice in relation to accommodation and his resume as provided by others who were more expert in such matters then they.

51.     Mr Al Khatab told the Tribunal that he never imagined when he came to Australia that he would have such problems.  Both Mr Al Khatab and Mrs Al-Shamaileh stated that they are telling the truth and merely took the advice that people had provided to them.  Mr Al Khatab noted that he is a very qualified accountant and he wants to contribute to Australia, as does his wife.  Mr Al Khatab stated that he is having nightmares and there has been a great effect on his children and upon his wife.  Mr Al Khatab asked the Tribunal to have an eye of sympathy and mercy in terms of what has occurred.

SUBMISSIONS OF MS S MANTARING, DEPARTMENTAL ADVOCATE

52. Ms Mantaring submitted that there is no dispute that the Applicants do not satisfy the residential qualifications for social security income support payments such as for New Start Allowance and Parenting Payment (Partnered). It is also not in dispute that having arrived in Australia after the commencement of section 739A of the Act, that is after 4 March 1997, that the newly arrived resident's waiting period applies to them. The payment being sought by the Applicants is Special Benefit, Ms Mantaring submitted, and that is only payable if Mr Al Khatab and Mrs Al-Shamaileh have shown that they suffered substantial change in their circumstances beyond their control, which would warrant the discretion conferred by subsection 739A(7) of the Act to waive the waiting period.

53.     Ms Mantaring contended that the Applicants are subject to a 104 week newly arrived resident's waiting period because they have not suffered a substantial change in circumstances beyond their control. This contention is based on Mr Al Khatab and Mrs Al-Shamaileh showing that they had to depend on the investment and they had not taken steps to secure their money.  Ms Mantaring submitted that Mr Al Khatab was aware that he had to give his friend Mr Al-Aqaylah two or three months notice before he was able to obtain his money but he did not undertake such action when he submitted his original application for migration to Australia in April 2000 and when he put in completed documentation in April 2001.  Ms Mantaring submitted that it was Mr Al Khatab's choice not to keep the money in a safer, more conventional financial institution.  Indeed, Mr Al Khatab provided evidence that the returns were much higher through Mr Al-Aqaylah’s financial institution and that he also had wished to maximise the period of time he kept the investment with Mr Al-Aqaylah in order to maximise his profit, Ms Mantaring submitted.

54.     Ms Mantaring submitted that Mr Al Khatab’s evidence shows that he did not have the investment documented in that there is an absence of independent collaborative documentation provided to substantiate that the investment even existed. In this regard, Ms Mantaring submitted that the only document provided was a document in Arabic, translated into English, which is a letter dated 23 May 1999 from Mr Al Khatab to the Cairo-Amman Bank informing that six cheques were enclosed, with a total value of 12,000 Jordanian Dinars, to be deposited into Mr Al Khatab's account.  The date of maturity or payability of the cheques was 30 June 1999 through to 30 November 1999, Ms Mantaring submitted.  Ms Mantaring further noted that the name of the drawer of the cheques was "Nasser Naeim"..  There was no mention of the company nor of Taysir Naim Al-Aqaylah on the documents (T25, pp111, 112).  Ms Mantaring further submitted that Mr Al Khatab’s evidence shows that he did not sue Mr Al-Aqaylah, despite his evidence that the sole purpose of the six post-dated cheques was to allow him to sue Mr Al-Aqaylah in the future, should there be an issue.

55.     It is difficult for the Respondent to verify that the company with which Mr Al Khatab invested his funds had been liquidated or that its Director had been declared bankrupt, Ms Mantaring contended.  Furthermore, the documents provided to substantiate the Applicant's case are statements by friends and a Statutory Declaration by Mr Al Khatab, which could not be independently verified.    

56.     Ms Mantaring submitted that the resulting loss of the investment funds could not strictly be said to have occurred beyond Mr Al Khatab's control.  Ms Mantaring contended that as a person experienced in the world of high finance, being an accountant and a senior auditor, it is reasonable to expect Mr Al Khatab to exercise more prudent measures in controlling his investments which he depended upon in order to live for the next two years in Australia.  

57.     Referring to Mr Al Khatab's credibility, Ms Mantaring submitted that Mr Al Khatab provided evidence which portrays Mr Al Khatab as a person who is prepared to make statements which would fit the occasion or that were self-serving statements. Ms Mantaring referred the Tribunal to the evidence from the hearing on 5 August 2002 and on 17 September 2002, when Mr Al Khatab told the Tribunal that he was prepared for a real estate agent to misrepresent himself to the landlord as being his good friend and being of good character when Mr Al Khatab knew that in fact he did not know this real estate agent at all. Ms Mantaring also referred the Tribunal to the evidence concerning Mr Al Khatab's two resumes, one which he agreed was untrue and was used for the unskilled jobs, and the "real resume” which was used for accounting positions. Mr Al Khatab knew that the resume for the unskilled positions was untrue yet he actually provided it to Job Network organisations. On another occasion, Ms Mantaring submitted, Mr Al Khatab was prepared to request that a Centrelink Officer prepare an income statement for a public housing authority with an address which Mr Al Khatab wished to have incorrectly recorded.  Ms Mantaring submitted that Mr Al Khatab provided evidence to the Tribunal that when he is desperate, he is driven to such things which he accepts are wrong, but claims that he has had no choice.  Ms Mantaring submitted that it was accepted that Mr Al Khatab puts the needs of his family as his top priority in terms of accommodation and finding employment, but this still pointed to his preparedness to make untruthful statements as a means to an end to gain an advantage. Furthermore, Ms Mantaring submitted that the Applicants' endeavours to obtain Special Benefit given the number of occasions when Mr Al Khatab was prepared to provide inaccurate information, pointed to any statement made by Mr Al Khatab to be self-serving.

58.     Ms Mantaring noted that she was unable to verify the statements provided by Mr Al Khatab reporting to be signed by the equivalent of a Jordanian Justice of the Peace.  Ms Mantaring submitted that these all depended on Mr Al Khatab's credibility, in the absence of independent collaborative evidence.  This makes it extremely difficult to make an assessment as to which statements are truthful and which are not, Ms Mantaring contended.

59.     The Respondent does not accept that the Applicants' financial hardship in relation to the depletion of the $10,000.00 they brought with them to Australia was beyond their control, Ms Mantaring submitted.  In this regard, Ms Mantaring noted inconsistent evidence in relation to the Applicants' accommodation from 1 September 2001 until 17 September 2001.  On 14 September 2001, Mr Al Khatab stated to a Centrelink Officer that his family had been staying for 12 days in the ANA Hotel in Sydney at $100.00 per night, Ms Mantaring submitted.  This was repeated in the written statement signed by the Applicants, received on 29 October 2001.  Ms Mantaring further submitted that in a Welfare Rights Centre Submission and at interview with the ARO, evidence was provided that the Applicants rented a furnished apartment for a couple of weeks at $100.00 per day.  At the SSAT hearing, the evidence had changed and was that the Applicants stayed one night at an apartment and stayed in Punchbowl for three weeks or until the end of September 2001, Ms Mantaring submitted.

60.     Referring to Mr Al Khatab's claims regarding the circumstances surrounding his having to pay six months rent in advance, Ms Mantaring submitted that this was not substantiated by the Starr Real Estate agent.  In combination with the manner in which Mr Al Khatab spent $100.00 per day in accommodation during their first two weeks in Australia, Ms Mantaring submitted that the Respondent is not persuaded by the Applicants' contention that they had suffered financial hardship beyond their control.

61.     It was furthermore noted by Ms Mantaring that Mr Al Khatab has been evasive regarding when he found out about the 104 week newly arrived resident's waiting period. After insisting to the ARO that he had not been advised of the waiting period by the Australian Embassy in Beirut, Mr Al Khatab gave evidence at the SSAT hearing that he did know about this 104 week waiting period from a brochure that he had read at the Australian Embassy.  Ms Mantaring submitted that, despite this knowledge, the Applicants still opted to pay six months rent in advance knowing that they had to live on whatever money they had for 104 weeks.

62. In the event that the Tribunal accepted that there had been a substantial change in the Applicants' circumstances beyond their control which would mean that they were entitled to Special Benefit if they qualified, then, Ms Mantaring contended, section 729 of the Act had to be considered. Given the evidence of Mrs Al-Shamaileh, that the Special Benefit application form was lodged on 12 October 2001, then if the Applicants qualified for Special Benefit, the date of commencement would be 12 October 2001. In this regard, Ms Mantaring in her written submission dated 27 September 2002 (Exhibit R7) accepted the Applicants' evidence that by 12 October 2001, they had spent all but $150.00 of $10,000.00 that they had initially brought with them to Australia. The Respondent contends however that not all of the remaining $9,850.00 expenditure should be allowed. Ms Mantaring submitted that the Respondent accepts that the $4,000.00 spent on furniture and other living expenses is reasonable. The Respondent does not accept, however, that the $6,000.00 spent on six months advanced rent can be accepted as reasonable. This is on the basis that the rent could not be characterised as an unforseen or exceptional expense in light of the fact that rent assistance is payable with the full rate of Special Benefit. Ms Mantaring submitted that the rent from 17 September 2001 until 12 October 2001, that is, 26 days, is allowed as a reasonable expense, but the rent for the period 13 October 2001 until 23 March 2002 should be deemed as still available to the Applicants, and that amounts to $5,257.20 (Exhibit R7).

63.     If the Tribunal were to make a finding that Special Benefit was payable to the Applicants, then Ms Mantaring submitted that they should be paid at a reduced rate that is calculated with reference to consideration that the Applicants' rate would have been nil had they not expended their money on advanced rent and would still have had $5,257.20 available to them.  Thus, Ms Mantaring contended, the amount of Special Benefit payable should be reduced to an amount, and for a period, that is calculated by reference to what is reasonable in the circumstances, taking into consideration the expenditure on rent.

64.     In conclusion, Ms Mantaring submitted that the decision under review should be affirmed but if the Tribunal did not accept this and considered that the newly arrived resident's waiting period should be waived, then any consideration as to the quantum of Special Benefit should be reduced given the Applicants' expenditure.

FINDINGS

65.     The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and the case law. 

66.     In deciding whether or not there is a change in the Applicants' circumstances beyond their control to warrant disregard of the newly arrived resident's waiting period, the Tribunal must take into account all of the evidence.

67.     The Applicants assert that their change of circumstances occurred because of the loss of an investment of $36,000.00 which they had expected to realise prior to migrating to Australia. The Applicants submitted that the proof of the investment lies in six cheques, which, on Mr Al Khatab's evidence, proved the existence of his investment and, in the Jordanian system, are for use if needed to sue for the return of the money (T25, p111-112; Exhibit A2, Attachment B).  The Tribunal notes the Respondent's submissions, which it accepts, that the document purported by Mr Al Khatab to support the existence of his investment, in fact does nothing more than indicate that there was a deposit in a bank account of $36,000.00.  There is no mention of the company referred to by Mr Al Khatab as the company in which he invested nor is there any record of Mr Al-Aqaylah's name on that document.  While the Tribunal understands Mr Al Khatab's assertions concerning the difference in the Jordanian system, the translation does nothing to promote or support his oral evidence that this $36,000.00 was invested in the company he claims.  Furthermore, the amounts in the document referred to deposits in 1999, and indicate no details concerning where the investment was made, or any other identifying material which supports Mr Al Khatab's assertions. The Tribunal also notes that there is no evidence, apart from Mr Al Khatab and Mrs Al-Shamaileh's evidence, that the investment soured or was lost.

68.     The Tribunal is also faced with clear evidence that Mr Al Khatab has been prepared to provide false information in terms of his work experience in one of his resumes and to have it made out that he was known to a real estate agent when in fact he was not, in order for him to be misrepresented as a person well known to a real estate agent for the purpose of convincing a landlord to rent him accommodation. There is also documentary evidence from Starr Real Estate Agency that there was no need for Mr Al Khatab to pay six months’ rent in advance to secure rental accommodation. This flies in the face of oral evidence to the Tribunal by Mr Al Khatab that he was in fact required to pay this rent in advance.

69.     Added to these misrepresentations is the fact that Mr Al Khatab asked a Centrelink Officer to record on an income statement an incorrect address. The arrangement proposed between Mr Al Khatab and his brother-in-law in terms of swapping their houses without the knowledge of the relevant St George housing authority, again demonstrates a willingness on Mr Al Khatab's part to represent situations falsely to obtain some advantage. The Tribunal can understand the difficulty any parent has in trying to be a good parent and being single-minded in advancing the needs of one’s family, however, singled-mindedness and determination should not involve misrepresentation of the truth or knowingly making false statements and misrepresenting oneself to obtain advantage. 

70.     Turning to the case law, the Tribunal notes the Full Federal Court decision in Secretary, Department of Social Security v Secara (1998) 89 FCR 151 in which Mansfield J, with whom von Doussa and O'Loughlin JJ agreed, stated:

"…For the reasons referred to above, I consider the circumstances to which s 739A(7) is directed are facts, matters and events going to an intending migrant's capacity to be self-sufficient, in the sense of not being entitled to receive certain benefits under the SS Act [the Social Security Act 1991], for a period of two years following arrival in Australia and to the reasons why that person no longer enjoys that capacity or should be relieved of the disentitling effect of those provisions. I do not think there is within s 739A(7) the seed of a power to relieve a newly arrived migrant from that disentitling effect because that person did not know of its terms…”

Essentially, the Full Federal Court accepted that a change in expectations could, in some cases, constitute a "change of circumstances" for the purposes of the legislation.

71.     In Zandieh-Nadem v Secretary, Department of Family and Community Services (2000) 104 FCR 138 the Federal Court, considering the Tribunal decision in Re Zandieh-Nadem and Secretary, Department of Family and Community Services (2000) 59 ALD 557, held that the Applicants had suffered a serious deterioration in health after arriving in Australia and that this must be considered under section 739A of the Act.

72.     The Tribunal notes Re Secretary, Department of Social Security and Fomin (AAT 12703, 12 March 1998) in which the then President, Matthews J, noted, when considering whether there had been a change in the Respondent's circumstances beyond their control, that the immediate cause of depletion of the Respondent's funds was the fact that they were inadequate in the first place.  In that case, the Respondents were aware or should have been aware that the funds they were bringing into Australia were inadequate to last them any substantial time given a cost of living.  The Respondents had conceded in that case that they were very committed, as were the Applicants in this case, to immigrating to Australia.  It was a risk that Mr and Mrs Fomin were prepared to take, as is the case with the Applicants in this case.  The Tribunal also notes Re Secretary, Department of Social Security and Tadros (AAT 12649, 12 February 1998) in which there were several substantial changes of circumstances which included the failure of the Australian Embassy to properly advise Mr and Mrs Tadros of impending changes in law, their poor prospects of employment and the difficulties that their English language skills raised and the inadequate amount of funds necessary to support them for any period living in Sydney. Those circumstances occurred after Mr and Mrs Tadros were irrevocably committed to migration.

73.     In Mr Al Khatab's and Mrs Al-Shamaileh's case, the great difficulty for the Applicants is that the Tribunal, when faced with the cumulative evidence of particularly Mr Al Khatab's willingness to misrepresent himself or his circumstances to various authorities in Australia, has insufficient confidence in the accuracy of any of the evidence provided by either himself or his wife to the Tribunal. This leaves the Tribunal to conclude that it cannot on all of the evidence be reasonably satisfied that what the Applicants have stated in relation to their circumstances changing beyond their control is correct.

74.     The Tribunal has, in reaching this conclusion, made allowances for the differences in the Jordanian system of investment as compared to that within Australia.  Cultural differences are, and must be, accepted, but cannot excuse what is clearly, on all of the evidence to the Tribunal in this individual case, admitted misrepresentations of circumstances and the Applicants' true position to various authorities within Australia. In this regard, the Tribunal noted that Mr Al Khatab’s evidence in terms of his resume, asking for the Centrelink Officer to put an incorrect address on an income statement and misrepresenting his familiarity with a real estate agent, were clearly admitted by Mr Al Khatab to be incorrect or untruthful.

75.     There have been submissions that Mr Al Khatab's and Mrs Al-Shamaileh's English, both written and oral, was not very proficient when they arrived in Australia and this could account for their misunderstanding of Mr Al Khatab’s brother-in-law’s representations on their behalf. Mr Al Khatab passed an English test in order to come to Australia and Mrs Al-Shamaileh was not required to have an English test. Both Applicants at the hearing, evidenced superior English language skills which the Tribunal, even allowing for some improvement since their living in Australia, considers to be well advanced.

76. There are serious credibility issues arising out of the Applicants’ evidence. Thus, the Tribunal cannot be reasonably satisfied, given their propensity on a number of occasions since arriving in Australia to misrepresent their true circumstances, that the evidence provided by Mr Al Khatab and Mrs Al-Shamaileh in relation to the investment in Jordan is accurate. Accordingly, in all of the circumstances, and taking all of the evidence available to the Tribunal into account, the Tribunal finds that there are not circumstances beyond the control of the Applicants which would allow the waiver of the 104 weeks newly arrived resident's waiting period. Thus, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member

Signed: .......................................................................................
  Associate

Dates of Hearing  5 August 2002, 17 September 2002, 24 October 2002

Date of Decision  17 April 2003
Representative for the Applicants             Self-represented

Representative for the Respondent        Ms S Mantaring, Departmental Advocate