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

[2019] AATA 4257

Antoniadis and Secretary, Department of Social Services (Social services second review) [2019] AATA 4257 (22 October 2019)

Division:GENERAL DIVISION 

File Number:2019/2059           

Re:Peter Antoniadis  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R. West  

Date:22 October 2019  

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member R. West

Catchwords

SOCIAL SECURITY – Age Pension – deprived assets – characterisation of bank deposits – issue estoppel – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Cases

Antoniadis and Secretary, Department of Social Services, Re [2013] AATA 842
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
Matusko and Australian Postal Corporation, Re [1995] AATA 14

REASONS FOR DECISION

Member R. West

22 October 2019

1. This matter concerns a review under s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) of the decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) of 2 April 2019 affirming the decision of an authorised review officer (ARO) of the Department of Human Services of 28 November 2018 to assess the withdrawal of $177,249.77 from the Applicant’s bank account in the period 23‑24 April 2012 as a deprived asset for the purpose of calculating the Applicant’s rate of age pension for the period 24 April 2012 to 23 April 2017.

   BACKGROUND

2. The application for review arises in the context of an ongoing dispute between the Applicant and the Respondent regarding the proper method of calculating the Applicant’s age pension over the period 24 April 2012 to 23 April 2017.  The principle point of contention has been the treatment of an amount of $177,249.77 (Disputed Amount) which was withdrawn from the Applicant’s bank account progressively over the period 23 to 24 April 2012.  The Respondent has determined that this amount is an asset of the Applicant to be taken into account in assessing his age pension.  The Applicant has asserted that the sum is the property of another person and is not his asset and should not be taken into account in assessing his age pension.

3. The dispute over the proper treatment of the Disputed Amount has been the subject of various determinations.  The Applicant has been in receipt of the age pension since 26 March 2010.  Upon becoming aware that the Applicant had various amounts deposited in accounts with the ANZ and NAB banks, an officer of Centrelink determined on 7 February 2013 that the Applicant had been overpaid the age pension in the sum of $31,789.36 for the period 17 March 2010 to 11 May 2012.[1]  The Applicant sought a review of this decision and on 6 June 2013 an ARO affirmed the initial determination.  The Applicant then sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT).  On 25 July 2013, the SSAT affirmed the decision of the ARO.  The Applicant then sought a review of the SSAT’s decision by this Tribunal.

   [1] The Respondent also sought recovery of an overpayment of the disability support pension in the sum of $32,168.85 between 10 August 2005 and 16 March 2010.

4. On 27 November 2013 the Tribunal handed down its decision affirming the decision of the SSAT.[2]  The background to the matter is set out in detail in the Tribunal’s reasons for decision.  In short, the Applicant claimed that $160,000 of the monies he had on deposit with the ANZ and NAB banks was not his, but belonged to a friend in Greece.  He would not disclose the identity of this friend to the Tribunal, and he did not provide any evidence to corroborate his assertion that the money belonged to this person. The Tribunal concluded:

   The accounts in the ANZ bank and NAB are in the name of Mr Antoniadis. He stated that not all the money belongs to him or is for his own use or benefit. However, he has produced no evidence which could corroborate his statements and indeed he refused to do so. In the absence of any corroboration, I am satisfied that the amounts of money in those accounts did in fact belong to MrAntoniadisand were for his use. I find accordingly.[3]

   [2] Re Antoniadis and Secretary, Department of Social Services [2013] AATA 842.

   [3] Supra at [29].

5. Following the Tribunal’s decision of 27 November 2013, notices were issued by the Respondent each recording the rate of pension paid to the Applicant and the basis upon which his entitlement was calculated.[4]  The Respondent sent the Applicant Income and Assets Statements on 6 February 2014 and 18 February 2014 each listing, among other things, a cash gift of $177,249 given by the Applicant on 24 April 2012.[5]  A further Income and Assets Statement was sent to the Applicant on 9 September 2014, listing a cash gift of $177,249 resulting in an assessed amount of $167,249.[6]  The Applicant sought a review of the assessment by letter to the Respondent dated 18 September 2014[7] on the basis that he disputed the gift and contended that the money was on loan to him from his ex-fiancée and that he had returned the money to her when she returned to Greece.

   [4] T6 and T52.

   [5] T17 and T21.

   [6] T29. Sub-section 1126AA(2) of the Social Security Act 1991 effectively provides that gifts are to be included in a person’s assets for the purpose of calculating the age pension in the amount to which the gift exceeds $10,000.

   [7] T31.

6. An ARO affirmed the original decision on 28 November 2018.[8]  The Applicant sought a review of this decision by the AAT1.  On 2 April 2019 the AAT1 handed down its decision affirming the ARO’s decision.[9]  The Applicant seeks a review of the AAT1’s decision in these proceedings (Reviewable Decision).

   [8] T57.

   [9] T2.

   CONSIDERATION

7. It was contended by the Respondent in these proceedings that the Tribunal:

   …should not traverse the AAT’s previous factual finding [in Antoniadis and Secretary, Department of Social Services [2013] AATA 842] that the funds in the ANZ account belonged to the Applicant in circumstances where he has filed no compelling evidence to support an alternative finding and has rested on his rights of appeal.[10]

   [10] Respondent’s Statement of Issues, Facts and Contentions at paragraph 33.

8. The Respondent relied on the Federal Court of Australia’s decision in Cheung v Administrative Appeals Tribunal[11]  in which it was said that:

   Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened.

   [11] (2009) 176 FCR 20, 29 at [49].

9. However, there is no formal issue estoppel in Tribunal proceedings and, while the Tribunal ought not allow matters already decided to be re-litigated, it is open to the Tribunal to reconsider its factual findings where there is good reason to do so.[12]

   [12] Re Matusko and Australian Postal Corporation [1995] AATA 14.

10. In this case the Tribunal notes that there is some inconsistency in the findings of the AAT1 in the Reviewable Decision and in the earlier decision of the Tribunal in Re Antoniadis and Secretary, Department of Social Services[13] as to the amount of the alleged gift. In the Reviewable Decision the AAT1 found that the amount of the gift was $172,000, and in the earlier Tribunal case the amount was found to be $160,000.  In these circumstances the Tribunal is satisfied that the prudent course is to consider the factual issues afresh based on the evidence presented in the review proceedings.

    [13] [2013] AATA 842.

11. The earlier decisions set out in some detail the relevant legislative provisions and the basis of the calculation of the Applicant’s pension.  The Tribunal does not repeat those matters here.  The basis of the application for review in this proceeding is a narrow point regarding the characterisation of the funds in the Applicant’s bank account.

12. This was raised with the parties at the outset of the proceedings.  Both parties confirmed that the substance of the review was limited to the characterisation of the funds held in the Applicant’s ANZ bank account and withdrawn on 23 and 24 April 2012.  It was agreed that the amount in dispute was $177,249.77, being the balance of the Applicant’s ANZ bank account as at 20 April 2012.[14]  The parties confirmed that the statement included in the T‑Documents[15] recorded the transactions in the relevant bank account for the purpose of the issues under review.  That statement is in the name of the Applicant and records that the balance in his ANZ account as at 22 July 2011 was $920.95.  It further records that the balance in the account progressively increased to $177,249.61 over the period to 20 April 2012.  On 23 April 2012 seven withdrawals totalling $120,000 were made from various branches of the ANZ Bank.  On 24 April 2012 a further four withdrawals totalling $52,000 were made before the account was closed with a closing balance of $5,234.77.

    [14] as adjusted for interest on 24 April 2012.

    [15] T60.

13. In accordance with the Tribunal’s discretion under s 25(4A) of the AAT Act the scope of the review is limited to the proper characterisation of the bank deposits in question.

14. The Applicant gave evidence that:

    (a)he permitted his ex-fiancée[16] to deposit her money in his account over the seven years he had known her and that he held the money for her;

    (b)the increase in the balance in the account over the period from 22 July 2011 to 20 April 2012 resulted from cash deposits made by him on behalf of his ex-fiancée; and

    (c)he withdrew the $177,249 in the account on 23 and 24 April 2012 by making cash withdrawals from various ANZ branches and paid all of the money to his ex-fiancée in cash before she returned to Greece.

    [16] The AAT1 in the Reviewable Decision referred to the person in question as the Applicant’s ex-fiancée, and although the Applicant did not elaborate on the nature of his relationship with that person, the Tribunal has elected to retain the AAT1’s terminology for consistency.

15. The Applicant was questioned about these arrangements. 

16. He was unable to offer an explanation as to why his ex-fiancée chose to have the money put in his account or why she could not open an account of her own.  He insisted that it is common practice in Greece for people to make deposits to other people’s accounts.  He suggested that his ex-fiancée may have been motivated to use his account in order to hide money from her husband.

17. He was unable to explain where his ex-fiancée obtained such a large amount of cash from, and he said that he did not keep a record of the amounts she deposited.  He said he could not remember how often she provided cash to him or the amounts involved. 

18. He was taken to the bank statement in the T-Documents and asked to explain three specific deposits to his account by way of bank transfer from three different accounts on 24 October 2011 ($12,139.98), 28 October 2011 ($43,675.40) and 2 November 2011 ($24,659.08).[17]  His evidence was that he could not recall the deposits and did not know why the money was deposited in his account.  He gave a similar response when asked to explain the transfer of $69,462.02 from yet another account to his account on 16 March 2012.[18] 

    [17] See T60 at page 184.

    [18] See T60 at page 183.

19. He was asked to identify from the bank account statement the cash deposits he said were made by him on behalf of his ex-fiancée.  He could not do so.

20. The Tribunal finds the Applicant’s explanation to be implausible.  There was no credible reason advanced as to why his ex-fiancée would elect to deposit such a large sum of money in his account when she could easily have opened an account of her own.  It is unlikely that a person about to travel overseas would accept payment of such a large amount in cash or see an advantage in doing so.

21. The Applicant’s evidence overall was confused and he lacked candour.  His explanation for the increases in the balance of his account over the period 22 July 2011 to 24 April 2012, being progressive cash payment from his ex-fiancée, was completely at odds with the bank statement.  That he professed ignorance of the transfer of around $150,000 into his account in the four transfers drawn to his attention, raises serious questions regarding the credibility of this evidence.

22. The Applicant produced no corroborating evidence for his assertion that the $177,249 he withdrew from his account belonged to and was returned to his ex-fiancée.

    DECISION

23. The Tribunal does not accept the Applicant’s assertion that the money in question belonged to his ex-fiancée.  On the basis that the money was held in a bank account in the Applicant’s name, which on his own admission was an account that he was authorised to manage, the Tribunal is satisfied that the entire amount was an asset of the Applicant. 

24. Accordingly, the Tribunal affirms the decision under review.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for the decision herein of Member R. West

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

Associate  

Dated:            22 October 2019

Date of hearing:	2 October 2019
Date of final submissions:	7 October 2019
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Sophie Roberts Department of Human Services