Arzenani and Secretary, Department of Employment and Workplace Relations
[2005] AATA 500
•31 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1135
GENERAL ADMINISTRATIVE DIVISION ) Re AZAM ZAREI ARZENANI Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date31 May 2005
PlaceSydney
Decision The decision under review is set aside and the matter remitted to the Respondent for recalculation of the overpayment debt of parenting payment for the period 13 November 2001 to 21 January 2002. [SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – Applicant in receipt of Parenting Payment single – overseas absence in excess of portability period of 26 weeks – no advice to Centrelink – raising of debt – consideration of circumstances and evidence - financial circumstances – consideration of waiver in special circumstances – decision set aside – debt to be recalculated for the period 13 November 2001 to 21 January 2002
Social Security Act 1991 - ss 1215, 1217, 1218C, 1236, 1237A, 1237AAD
Beadle v Director-General of Social Security (1985) 7 ALD 670
Re Beadle v Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
31 May 2005 Rear Admiral A R Horton AO, Member 1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 11 March 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) on 15 January 2004 to raise and recover a Parenting Payment debt of $4800.97 from Mrs Azam Zarei Arzenani (“the Applicant”). The original decision in this matter was made by Centrelink on 22 February 2002.
2. Before the Tribunal, Mrs Arzenani was self represented. Ms Susan Mantaring, an advocate from Centrelink, represented the Secretary, Department of Employment and Workplace Relations (“the Respondent”). The hearing took place on 4 April 2005 with a resumed hearing on 14 April 2005. The Tribunal was assisted by Mr Mehrdad Khoshab, an interpreter fluent in the Farsi language.
3. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T-docs), a letter from Dr Hamid Khaledi dated 15 March 2005 (Exhibit A1), an Apprehended Violence Order dated 20 December 2004 (Exhibit A2), a Financial Information Statement dated 14 April 2005 (Exhibit A3) and the Statement of Facts and Contentions by the Respondent (Exhibit R1).
BACKGROUND
4. Mrs Arzenani travelled with her two dependent children from Australia to Iran, her place of birth, in 2001. At that time she was receiving parenting payment and other social security benefits. She departed on 11 February 2001, returning on 22 January 2002. She gave birth to a daughter, Sahar, on 2 May 2001 whilst in Iran. Mrs Arzenani continued to receive parenting payment throughout this overseas period, such payment in most circumstances being only payable to a person temporarily absent from Australia for a limited period. On 22 February 2002, Centrelink raised for recovery a debt of $4, 800.97 in respect of the overpayment of parenting payment for the period 14 August 2001 to 21 January 2002.
5. Whilst not directly relevant to the matter before this Tribunal, but for completeness, it is noted that on 20 August 2002, the SSAT upheld a decision by Centrelink that Mrs Arzenani was not eligible for maternity allowance (for Sahar) because the stipulated time for lodgement of a claim for that allowance (26 weeks) had not been met. On 24 March 2003, the SSAT set aside a debt relating to claimed overpayment of Family Benefits Tax for the period in Iran on the basis that special circumstances existed.
6. Following a request by Mrs Arzenani for review of the decision to raise and recover the overpayment debt in respect of parenting payment, an ARO affirmed the decision on 15 January 2004. The ARO found that whilst her absence from Australia was accepted as temporary, she had not notified Centrelink of her impending absence in accordance with the responsibilities for so doing as provided in various letters of advice, that the debt had not arisen by administrative error alone, that the debt could be repaid by withholdings of parenting payment, and that special circumstances (as provided for in section 1237AAD of the Social Security Act 1991 (“the Act”)), did not exist on the evidence, such that the debt could be waived. This decision was affirmed by the SSAT on 11 March 2004.
7. The position of the Respondent in this matter is that Mrs Arzenani was no longer eligible for parenting payment once she exceeded the period of 26 weeks out of Australia, and hence a subsequent overpayment occurred. The Respondent submitted that there were no special circumstances such that the debt could be reduced or waived.
EVIDENCE
8. Mrs Arzenani was married in 1992, her husband (Kazim Al-Ayashy) having been born in Iraq. They arrived in Australia from Iran in 1998, with one child (Wasan), a second child (Manar) being born in 1999. They lived variously in rental accommodation, the most recent being at Plumpton. In evidence it became clear that she was not keeping Centrelink informed as to her change of addresses. The Tribunal understands that neither she nor her husband worked in Australia, at least until about December 2004, when she moved out of the home at Plumpton into rental accommodation at Bidwill. In evidence before the SSAT, Mrs Arzenani referred to an assault on her by her husband in 2002 which apparently resulted in an Apprehended Violence Order (AVO), further stating that she and he had not lived together as husband and wife since her return from Iran in early 2002.
9. On 20 December 2004, an AVO was issued following further harassment by Mr Al-Ayashy (Exhibit A2). That document indicates that she was then living at Bidwill; her evidence was that whilst she had moved to Bidwill a few days prior to the AVO, she had not moved her effects nor commenced paying rent until about February 2005. She does not know the whereabouts of her husband, nor has she seen him since taking out the AVO. The situation at Bidwill is that the home is owned by a friend who is away at present. Mrs Arzenani pays $240 per week, but anticipates that she will have to move to alternate rental premises when her friend returns.
10. There is conflicting evidence before the Tribunal as to the circumstances relating to Mrs Arzenani’s visit to Iran in 2001/2002. In an interview with Nicola Faghih of the Department of Immigration and Multicultural Affairs (DIMA) in Tehran on 4 September 2001 (T34 p 95), the issue being “why did she return to Iran to have her child”, she is reported as stating that she returned to Iran to visit her parents, with the intention of staying for 2 months, returning to Australia 15 days before the expected birth of her baby. This did not occur because of the advice of her doctor, who she apparently saw for the first time in mid April 2001. The report by Ms Faghih refers to difficulties Mrs Arzenani was having with her husband. In a later undated letter to Centrelink (T41 p104), Mrs Arzenani stated “I left Australia for Iran on 20/4/01 to give birth to my child, (2/5/01) having my family over there to help with my other two young children as well as to get a way from difficulties my ex husband creating for me”. The Tribunal notes that the departure date given is some 9 weeks later than actually occurred. In her absence, a friend received and forwarded her parenting payment.
11. In evidence, Mrs Arzenani stated that she left for Iran with her two children to visit her mother who was not well. She herself was “not feeling well …and did not know she was pregnant at the time.” A later comment implied that whilst this may have been the situation when she first decided to undertake the visit, by the time she had arranged the necessary passport and visa documentation for the children, she was aware of her pregnancy. Her air ticket was issued on 2 February 2001 (T30 p86), 10 days before departure, with a return flight date of 9 August 2001. The return date falls just inside the 26 week period. Mrs Arzenani told the Tribunal that she wanted to give birth in Australia.
12. Mrs Arzenani informed the Tribunal that at that time she was unaware of the requirement to advise Centrelink of an intention by herself or her dependents to leave Australia. She did not recall receiving a letter to that effect in respect of parenting payment dated 16 March 2000 (T4 p35) and similar letters dated 14 April 2000 and 20 July 2000 are before the Tribunal (T5, T6). Mrs Arzenani reads only a “little English”, and whilst she made use of a Farsi interpreter when available, she stated that in the past she did not pay much regard to such letters.
13. Sahar was born on 2 May 2001 at Esfahan. On 6 June 2001, Mrs Arzenani applied for her registration of Australian citizenship by descent (T31 p87), such registration being provided on 1 October 2001. The evidence of Mrs Arzenani was to the effect that she travelled some 7 hours each fortnight to Tehran in respect of the application for registration of Australian citizenship, the implication in the DIMA report previously referred to, and in a later DIMA minute of 20 September 2001 (T35 p97), being that there were some concerns as to the authenticity of the birth and the child’s sex.
14. Mrs Arzenani attributed the delay in returning to Australia to the difficulty in registration of Sahar’s Australian citizenship, and financial problems that resulted from that delay. Her return tickets had expired, and hence she lost the value of the return portion of the tickets. Whilst the airline gave her a discount on the purchase of new tickets, she was still required to make up the difference. Further, an additional seat was now required for her other daughter Manar because of her age. She thought that the cost of the return airfares, as well as translation and other costs associated with the obtaining the necessary documentations in respect of Sahar had been in the order of $3000, and she had relied very much on assistance from her family, they themselves not being well off. She was also concerned at the delay in leaving Iran, given that her eldest daughter was unable to attend school in that country.
15. On return to Australia, where Mrs Arzenani relied on social security payments, having no other source of income, Sahar was found to have a condition of precocious puberty. She described Sahar’s present condition as good, being supported by medication. However her eldest daughter has a throat problem, requiring visits to the general practitioner (Dr Hamind) and with a probable requirement of surgery. Mrs Arzenani stated that such surgery would need to be performed at a private hospital at a cost of $1200. She sees this medical problem as significant, her daughter also suffering dizziness and on one occasion “being close to dying … a bit unconscious”. Mrs Arzenani also gave evidence that she herself has a depressive condition requiring medication as a result primarily of her financial difficulties, her domestic circumstances and the health of the children.
16. Mrs Arzenani described her financial condition as very difficult, given that her husband makes no contribution, her only income is from social security benefits, and that she has an outstanding debt in respect of the overpayment of parenting allowance, as well as a debt of $1400 on the rental property at Plumpton. The former is being repaid at $30 per fortnight, the residual debt at the time of the hearing being $1704.17. Until one year ago, the older children attended a private school relevant to their religion, but she has been obliged to transfer them into the public system, because she could not afford the school fees. She has no car and relies on public transport. She referred to unexpected medical expenses, and increasing expenses, including those associated with schooling, as the children get older.
17. The SSAT decision of 11 March 2004 shows an estimated expenditure, when annualised, of $28857, this being exclusive of then existing debts totalling $1584. A Financial Information statement prepared by Mrs Arzenani in February 2004 shows an annualised estimated expenditure of $27618. A Financial Information Statement (Exhibit A3) submitted at the request of the Respondent at the resumed hearing on 14 April 2005, indicates that Mrs Arzenani has no assets, and that her estimated annual expenditure – accepted by the Respondent - is in the order of $31,136. Her current annual income, as calculated by the Respondent, is $32,639, leaving a differential of $1503 or $57.80 per fortnight. Whilst Mrs Arzenani submitted that this left little flexibility for dealing with unexpected costs, the Respondent opined that the differential was adequate given proper management of financial resources. The Tribunal observes that this differential reduces to a nominal $27.80 per fortnight whilst Mrs Arzenani is making repayments of the overpayment of parenting payment.
18. In 2004, Mrs Arzenani and her three children left Australia on 27 April 2004, on this occasion remaining in Iran for 14 weeks. The purpose of the visit was to see her mother who was “quite ill”. The Respondent questioned the arrangements and cost details in respect of this visit at some length, clearly seeking to ascertain the means by which this visit had been undertaken given earlier evidence of Mrs Arzenani as to her poor financial position. Mrs Arzenani gave evidence that she had received some money (about $2500) through an exchange dealer from her family in Iran, and had made up the difference in the necessary costs of airfares by selling her car.
19. Again, there was conflicting evidence. She could not recall the make of car but thought it may have been a Toyota, but indicated it was old. She had no documentation as to its sale, but thought it had been sold for $2000. She conceded that she had not advised Centrelink that she had owned this asset, and did not believe there was such a requirement. She stated that she had bought the car for $2000 about a month before going overseas, that is in about March 2004, as at that time she was not contemplating the visit to Iran. She had saved the money to purchase the car during the preceding two years. In turn she sold the car back to the original owner, and may have lost $200 in the process. She considered the availability of private transport to be essential.
20. This evidence is inconsistent with that recorded by the SSAT on 11 March 2004. In the month when she stated to this Tribunal that she had bought a car, paragraph 15 of the SSAT decision states instead that “Friends have given her the use of their car for two months”.
CONSIDERATION AND DECISION
21. In concluding her evidence, Mrs Arzenani stated that had she been aware of the requirements of Centrelink as regards overseas travel, the difficulties that arose in 2001 would not have occurred. But the circumstances of her mother’s ill health dictated that she had to travel at that time, and in turn, Sahar had been born in Iran. The difficulties in then returning to Australia resulted from the requirements to obtain the necessary citizenship and visa documentation, and the financial implications of having to purchase new air tickets. Her subsequent trip to Iran in 2004 reflected her understanding of the rules and regulations for overseas travel.
22. Mrs Arzenani emphasised her strained financial situation, made more so by the health problems of her elder daughter and herself. Whilst she had been made aware that a waiver in whole or in part of the overpayment of parenting payment could only be considered if “special circumstances” were deemed to exist, she considered her situation was sufficiently different to others as to justify a decision in her favour.
23. For the Respondent, Ms Mantaring submitted that there was no dispute as to a debt of $4800.97 in respect of overpayment of parenting payment for the period 14 August 2001 to 21 January 2002, that is for the period after Mrs Arzenani had been out of Australia beyond 26 weeks. The evidence was quite clear that Mrs Arzenani had chosen to travel in the knowledge that she was pregnant, and in the view of the Respondent, she wished for the child to be born in Iran. From her evidence, there was no indication that she sought advice from her general practitioner in Australia as to the advisability of travel, nor had she made inquiries with the airline as to limitations on travel. She had made no inquiries at the outset as to whether she would be able to receive the necessary documentation in time to enable her to travel back to Australia with the baby in sufficient time to preserve her eligibility for parenting payment.
24. The Respondent submitted that Mrs Arzenani did not inform Centrelink of her intentions as parenting payment would have ceased after 26 weeks of absence. As to her finances, she had the resources to make a further visit to Iran with her children in 2004, and her social security payments are sufficient for her to cope providing she manages her resources. Whilst the SSAT had in another matter waived a Family Benefits Tax debt seemingly because Mrs Arzenani was faced with losing accommodation, those circumstances did not apply in this matter. The Respondent did not consider a waiver of the overpayment of parenting payment to be appropriate, as to do so would lead to Mrs Arzenani receiving special treatment and would be contrary to the legislative intent.
25. Sections 1215 and 1217 of the Act provide that a person in receipt of parenting payment who travels overseas may remain eligible for payment for temporary absences from Australia for up to 13 weeks but this may be extended pursuant to section 1218C of the Act in various circumstances. The Respondent accepts a portability period in this matter of 26 weeks and this Tribunal will proceed accordingly. There is no dispute that Mrs Arzenani exceeded this 26 week period. Whilst the undated letter to Centrelink (T41 p 104) suggests an alternate date of departure from Australia, the evidence from a DIMA report (T8 p45) is quite clear that she departed on 11 February 2001, returning on 22 January 2002, and hence an overpayment commenced at the end of the 26 week period. The calculated debt of $4,800.97 has not been challenged.
26. Section 1236(1A) of the Act provides a facility to write off a debt. The only part of that section that might be considered in this matter is whether Mrs Arzenani has the capacity to repay the debt. Notwithstanding her evidenced financial situation, she has demonstrated a capacity to repay the debt in instalments deducted from her current parenting payments, at a rate acceptable to the Respondent. In the view of the Tribunal, that arrangement could continue until the debt is expunged. Hence write off is not considered appropriate.
27. Section 1237A(1) of the Act provides provision for a waiver of a debt or part thereof, if that debt is solely attributable to an administrative error made by the Commonwealth, subject to the debtor receiving the payment in good faith. The circumstances in this matter do not meet that criteria; the evidence before the Tribunal is that Centrelink provided written advice on a number of occasions as to the requirements that must be met in order to retain eligibility for parenting payment. Notwithstanding Mrs Arzenani’s limited command of English, her evidence was that at times she used the availability of a Farsi interpreter, but in any event did not pay much regard to those letters.
28. Section 1237AAD of the Act provides the right to waive recovery of a debt or part thereof where there exists “special circumstances” and states relevantly:
“1237AAD. The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.”
29. The Tribunal accepts that Mrs Arzenani did not make a false representation or knowingly fail or omit to comply with the provisions of the Act. As indicated above it is not appropriate to write off the debt and hence the question is whether special circumstances (other than financial hardship alone) are in evidence.
30. The meaning of the term “special circumstances” is imprecise, but an authoritative and oft used definition is provided in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 where the tribunal, with Toohey J presiding, stated:
“An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
31. That tribunal went on to say (at 3) that “the existence of special circumstances is to be determined from all the circumstances …” which in the context of the matter before that tribunal related to an application for handicapped child’s allowance. That “all the circumstances” should be considered in this matter is supported by the words of the Full Federal Court in dismissing an appeal against the above decision (Beadle v Director-General of Social Security (and others)(1985) 7 ALD 670), wherein it was stated at 674 in respect of whether special circumstances were evident in the delay in making a claim “More difficult would be questions of ignorance, illiteracy, isolation, illness and the like. It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it possible to lay down precise limits or precise rules”.
32. The Tribunal is concerned that in this matter, there are numerous discrepancies in statements made by Mrs Arzenani as to the circumstances of her visit to Iran in 2001, and the subsequent financial arrangements that enabled her to make a further visit to Iran in 2004. She has emphasised her dire financial situation, but this does not sit lightly given the most recent visit with her three children. Financial hardship alone is not sufficient to meet the criteria for special circumstances, and requires that all the circumstances in 2001/2002 be considered.
33. The Respondent notes (in Exhibit R1) the need for Mrs Arzenani to “demonstrate global circumstances (other than financial hardship alone) of an unusual, uncommon or exceptional kind, or circumstances in which it would be unjust to enforce the liability for which the social security law normally provides”, a situation which it is submitted has not been met. In the same document, the Respondent also sums up the arguments put forward in support of her case by Mrs Arzenani, they being a low level of English, the time taken to obtain a passport for Sahar following her birth in Iran, the expiry of return tickets, no child support but violent treatment from her husband, the financial and other implications of education and medical problems, and her own health. The significant issues from the Respondent’s point of view are that in spite of letters of advice from Centrelink, Mrs Arzenani went overseas knowing that she was pregnant and without advising that authority of her intentions, the implication being that had she done so, her parenting payment would have ceased at a point in accordance with the provisions of the Act.
34. It was also submitted that in going overseas when she did, Mrs Arzenani wished to have the baby in Iran. Previous statements by Mrs Arzenani in that regard have been quite contradictory, but her evidence to the Tribunal was to the effect that she wished to have the baby in Australia. She further gave evidence that her mother at Esfahan was not well. In the estranged relationship with her husband, Mrs Arzenani had no option but to take both children to Iran, and the same situation applied, in the view of the Tribunal, in 2004. Evidence of the delays in resolving citizenship and passport matters after the birth of Sahar is quite clear from the evidence before the Tribunal; the child was born on 2 May 2001, application for registration of citizenship was received by DIMA on 6 June 2001, and it was not until 1 October 2001 that citizenship was registered.
35. In the event, the pre-booked return flights to Australia (9 August 2001) did not take place, and the tickets were not valid thereafter. The evidence of Mrs Arzenani is that following the registration of citizenship of Sahar, her problem in booking return flights became one of obtaining the necessary finances to purchase the tickets. It might be assumed that Mrs Arzenani was seeking to obtain the necessary finances whilst awaiting DIMA approval of registration, but how long one might expect that process to take thereafter is a matter of conjecture. Suffice that the Tribunal is of the opinion that on the evidence before it, a further delay of some 3 and a half months before a return flight could take place cannot be justified, was not relevant to the obtaining of necessary travel documentation for Sahar, and would not meet the criteria of special circumstances. The Tribunal also takes account of the fact that the medical condition of Sahar, as referred to earlier, did not arise until after the return to Australia.
36. Taking all matters into consideration, and in particular that Mrs Arzenani has a very limited understanding of English, that her evidence as to the illness of her mother at Esfahan has not been challenged, that she had been subject to violence from her husband, and the delays in obtaining relevant documentation to enable an early return to Australia, the Tribunal finds that the criteria of special circumstances pursuant to section 1237AAD of the Act has been met for part of the period she was out of Australia in excess of 26 weeks. That period is defined as from 14 August 2001 until 12 November 2001, this latter date being 6 weeks after the registration of Sahar as an Australian Citizen by descent, and being considered sufficient to effect the necessary return flights.
37. The decision under review is therefore set aside and remitted to the Respondent for recalculation of the overpayment debt of parenting payment for the period 13 November 2001 to 21 January 2002.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member.
Signed: A. Garcia
AssociateDates of Hearing 4 and 14 April 2005
Date of Decision 31 May 2005
Representative for the Applicant Applicant self-representedAdvocate for the Respondent Ms S Mantaring
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