Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 655

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 655

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1688

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHSEN ALIREZAI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr P Wulf, Member

Date24 June 2011  

PlaceBrisbane

Decision For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and substitutes the decision that the applicant was not a member of a couple since 25 October 2010.   

..............[Sgd]......................

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – Age pension – Applicant not in marriage-like relationship – Applicant not a member of a couple – Applicant entitled to be paid age pension at single rate – Decision under review set aside

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Social Security Act 1991 (Cth) ss 4, 24

Acts Interpretation Act 1954 (Qld) s 32DA

Property Law Act 1974 (Qld)

REASONS FOR DECISION

22 September 2011 Mr P Wulf, Member

1.      The applicant[1], Mr Mohsen Alirezai, seeks the review of a decision made by Centrelink decision dated 25 October 2010 that Mr Alirezai and Mrs P were member of a couple,[2] Centrelink’s rejection of age pension claim dated 17 November 2010 and the decision of the Social Security Appeals Tribunal (“SSAT”) of 31 March 2011 (despatched 12 April 2011)[3] affirming that he was a member of a couple and therefore not able to be paid a the age pension at the single rate.

[1] Exhibit A, T-Document 1/1 – 2.

[2] Exhibit A, T-Document 17/86 – 87.

[3] Exhibit A, T-Document 2/3 – 13.

2. This matter was brought before the Tribunal as an urgent appeal. The Tribunal notes the excellent assistance of both parties and the quick preparation of the material for the hearing, in particular from the respondent in the preparation of the s 37 Documents.

ISSUES

3.      The issues for the Tribunal to determine  are whether Mr Alirezai:

(a)Whether Mr Alirezai was a member of a couple with Mrs P;[4] and

(b)If so, whether Mr Alirezai should be treated as not being a member of a couple for the purposes of the Act.

[4] Shortened for anonymity.

LEGISLATIVE SCHEME

4. Section 4(2)(b) of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for determining when a person, who is not married, is a member of a couple for the receipt of Centrelink benefits. The section states:

2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

…

(b)       all of the following conditions are met:

(i)the person is living with a person of the opposite sex (in this paragraph called the "partner");

(ii)       the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsection (3)), a marriage-like relationship;

(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

5. Pursuant to s 4(2)(b)(iii) of the Act, when forming an opinion about whether a person is in a marriage-like relationship, the Secretary must have regard to all the circumstances of the relationship as defined in s 4(3). These include:

(a)       the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)      the basis of any sharing of day-to-day household expenses;

(b)       the nature of the household, including:

(i)        any joint responsibility for providing care or support of children; and

(ii)       the living arrangements of the people; and

(iii)      the basis on which responsibility for housework is distributed;

(c)       the social aspects of the relationship, including:

(i)        whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)       any sexual relationship between the people;

(e)       the nature of the people's commitment to each other, including:

(i)        the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship.

6. Section 24 of the Act allows the Secretary to determine that a person is not to be treated as a member of a couple if they are a member of a couple under s 4(2) of the Act. Subsection (2) states:

2)        Where:

(a)a person is living with another person as the spouse of that other person on a genuine domestic basis; and

(b)       the person is not legally married to the other person; and

(c)       the other person is of the opposite sex; and

(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

EVIDENCE

7.      The evidence before the Tribunal was comprised of:

(a)The “T-Documents” lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”);[5]

(b)A letter to Mr Alirezai from the Queensland Department of Health Darling Downs – West Moreton Health Service District dated 16 June 2011;[6] and

(c)A bundle of rental property listings from Mr Alirezai.[7]

[5] Exhibit 1, T-Document 1 – 118.

[6] Exhibit 2.

[7] Exhibit 3.

8.      The respondent did not provide a Statement of Facts and Contentions.

EVIDENCE AND ANALYSIS

9.      The background to this case was explained in the SSAT decision. Therefore, it is not necessary to restate the evidence here except for the critical points:

(a)Mr Alirezai was a financial guarantor in a business with an associate. The business failed and Mr Alirezai was forced to cover the debts of the business. This resulted in Mr Alirezai being declared bankrupt. As part of this process, court proceedings were commenced and unfortunately, Mr Alirezai lost his home in Toowoomba;

(b)From sometime in 2002, Mr Alirezai lived with Mrs H.[8] Mrs H allowed Mr Alirezai to live rent-free in return for undertaking house maintenance and other tasks for Mrs H. It appears that at no time was it considered by any person that Mr Alirezai and Mrs H were in a relationship

(c)In or about December 2006, Mr Alirezai needed a new place to stay as he was no longer able to stay with Mrs H. About this time, Mr Alirezai began living with Mrs P. Mr Alirezai had previously met Mrs P through friends. The lease was on the same terms as those agreed upon when Mr Alirezai resided with Mrs H.

(d)Mr Alirezai is financially independent of Mrs P. They have no joint assets and he does not pay rent, as he undertakes house maintenance etc for Mrs P;

(e)Mrs P’s evidence was that she was not in a relationship with Mr Alirezai. Like Mr Alirezai’s evidence, Mrs P also stated that she was financially independent of Mr Alirezai. This was reinforced in a letter to Centrelink[9] where she specifically requested that no information be released to him; and

(f)Some of their friends view them as being in a relationship, while others do not view them as being in a relationship.

[8] Shortened for anonymity.

[9] Exhibit 1, T-Document 22/96.

10. Under s 4(2)(b) of the Act, it is critical that all five criteria are met (emphasis added). An analysis of the evidence suggests that ss 4(2)(b)(i), (ii), (iv) and (v) are easily satisfied. However, the critical issue is whether Mr Alirezai is in a marriage-like relationship under s 4(2)(b)(iii) of the Act.

11. When making an assessment of the financial aspects of the relationship under s 4(3)(a), the Tribunal notes that Mr Alirezai and Mrs P are wholly financially independent of one another. This is clear from the evidence presented to the SSAT. Moreover, Mrs P reinforced this in her letter to Centrelink. The parties have no joint assets of any kind.[10] The evidence is that Mrs P pays all financial obligations for all aspects of for the house (eg rates, insurance etc). Mr Alirezai pays for his car, which appears to be his only asset, and a second phone line in the house. Importantly, it would appear from the material that Mr Alirezai has no knowledge of the financial matters related to the property[11] and he does not have access to Mrs P’s bank accounts.[12] In this regard, the evidence supports a finding that the parties are not members of a couple with respect to financial matters as they are totally separate.[13]

[10] Exhibit 1, T-Document 4/18.

[11] Exhibit 1, T-Document 7/28 – 39 at 30.

[12] Exhibit 1, T-Document 7/28 – 39 at 33.

[13] Exhibit 1, T-Document 7/28 – 39 at 38.

12. With respect to the nature of the household under s 4(3)(b), the evidence is that there is no joint care of Mrs P’s children. Mrs P undertakes all activities related to her three children and, moreover, at no time did Mr Alirezai enter the children’s rooms or bathrooms to undertake cleaning. It is noted that Mr Alirezai does sleep with Mrs P. This appears to be something that both Centrelink and the SSAT placed considerable weight upon in concluding that they were members of a couple.

13.     However, the situation appears somewhat complex in that Mr Alirezai and Mrs P were not in a relationship prior to Mr Alirezai beginning to live with Mrs P. Mr Alirezai only slept in Mrs P’s room as all other bedrooms were occupied. Further, it would appear that Mr Alirezai undertakes the bulk of the house maintenance in return for living rent-free in the home. However, importantly, this is the same arrangement that Mr Alirezai had with Mrs H when he resided with her for numerous years, although there is no evidence he slept with her. On these grounds, the Tribunal is of the view that this adds weight to the Applicant’s argument that the parties are not a couple.

14. With respect to s 4(3)(c), the section reflects on the social aspects of the relationship, including whether the parties hold themselves out as married to each other; the assessment of friends and regular associates of the people about the nature of their relationship; and the basis on which the people make plans for, or engage in, joint social activities.

15.     There appears to be conflicting evidence as to why Mrs P and Mr Alirezai could be considered as being a couple. It is noted that Mr Alirezai wrote on his Centrelink claim form for age pension that Mrs P and he were considered a couple, although they were sometimes also considered to engage in activities more like a father and daughter.[14] However, when assessing other details in that document, it is noted that Mr Alirezai also states that Mrs P is a friend and caretaker, suggesting that they are not a couple. Further, at Question 2 of the Centrelink relationship details form[15], Mr Alirezai clearly states that he and Mrs P are not in a de facto relationship. Importantly, at Question 16, Mr Alirezai also indicates that he is only intending to stay with Mrs P until he can find his own place to live. This, to the Tribunal, is consistent with other evidence and, by reasoning, suggests that Mrs P and Mr Alirezai are not a couple as he will move out of Mrs P’s property. This is particularly important as to s 4(3)(e).

[14] Exhibit 1, T-Document 4/16 – 22 at 18.

[15] Exhibit 1, T-Document 7/18 – 39 at 29.

16. Mr Alirezai provided evidence of the cost of finding alternative accommodation within the Toowoomba region. Rental prices ranged from $170 to above $300 per week for a small house. Based on Mr Alirezai’s current income, it would be a practical impossibility for him to be able to afford the rent for the vast majority of these properties, as it would leave him with minimal remaining income. It would appear that this has been an overriding consideration in choosing to remain living with Mrs P. This is again particularly important as to s 4(3)(e).

17. In relation to s 4(3)(d), it would appear that Mr Alirezai and Mrs P are involved in a form of sexual relationship. There was some discussion at the hearing as to whether the relationship was a genuine domestic relationship or otherwise given that it was described by Mr Hamilton as ‘friends with benefits’, meaning that the parties were friends but occasionally had a physical relationship.

18.     The evidence is clear that Mrs P and Mr Alirezai do at times have a physical relationship in that they are intimate. However, it would appear that this is, at most, about once a month. In the Tribunal’s view, this would not be considered a genuine domestic relationship.

19. Based on the above criteria, the Tribunal is of the opinion that Mr Alirezai and Mrs P were not in a marriage-like relationship under s 4(2)(c) of the Act. The weight of evidence suggests that no financial relationship existed, and that the aspects of the non-financial relationship were more akin to two people sharing a property: they were, as Mr Hamilton described, “friends with benefits”. Therefore, Mr Alirezai was not a member of a couple under s 4(2) of the Act.

20. Mr Hamilton submitted that as there was not a prescriptive definition contained within the Act as to a de facto relationship, the Tribunal should assess whether Mrs P and Mr Alirezai could be considered a couple consistent with the definitions provided for in the Property Law Act 1974 (Qld) and Acts Interpretation Act 1954 (Qld).

21. Section 32DA of the Acts Interpretation Act 1954 (Qld) defines a de facto partner as follows:

(1)In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2)In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances –

(a)       the nature and extent of their common residence;

(b)       the length of their relationship;

(c)       whether or not a sexual relationship exists or existed;

(d)the degree of financial dependence or interdependence, and any arrangement for financial support;

(e)       their ownership, use and acquisition of property;

(f)the degree of mutual commitment to a shared life, including the care and support of each other;

(g)       the care and support of children;

(h)       the performance of household tasks;

(i)        the reputation and public aspects of their relationship.

(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4)Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

(5)For subsection (1):

(a)       the gender of the persons is not relevant; and

(b)a person is related by family to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cwlth), section 23B, if they were parties to a marriage to which that section applies.

(6)In an Act enacted before the commencement of this section, a reference to a spouse includes a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary.

22. After reviewing this section, the Tribunal is of the same opinion, in that Mrs P and Mr Alirezai are not a couple as defined under s 4(2) of the Act.

23. As Mr Alirezai is not a member of a couple under s 4(2) of the Act, the Tribunal is not required to consider s 24 of the Act.

DETERMINATION

24.     The Tribunal sets aside the decision under review and substitutes the decision that the applicant was not a member of a couple since 25 October 2010.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Wulf, Member

Signed: ......................[Sgd]......................................
              Danielle Armstrong, Research Associate

Date/s of Hearing  24 June 2011
Date of Decision  24 June 2011
Date of Written Reasons          22 September 2011
Applicant was self-represented
Solicitor for the Respondent     Bob Hamilton, departmental advocate