Askarzai and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 848

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 848

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3668

GENERAL ADMINISTRATIVE DIVISION		)
Re		WALIED ASKARZAI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO

Date23 September 2008

PlaceSydney

Decision The decision under review is affirmed.

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

Rear Admiral A R Horton AO
  Member

CATCHWORDS

SOCIAL SECURITY – Austudy payment – eligibility – requirement that applicant is undertaking qualifying study – applicant withdrew from course – requirement to advise Centrelink of changes in circumstances – Centrelink not advised of withdrawal from study and payment of Austudy continued – debt raised – decision under review affirmed

Social Security Administration Act 1999 – s 68, 1223, 1236, 1237A, 1237AAD

Social Security Act 1991 – s 569

Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Beadle v Director-General of Social Security (1985) 7 ALD 670

Dranichnikov & Ors v Centrelink & Anor (2003) 75 ALD 134

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114

REASONS FOR DECISION

23 September 2008 Rear Admiral A R Horton AO, Member   

1.      Mr Walied Askarzai claimed Austudy on 28 July 2003 in order to undertake a one semester course in Certificate II Information Technology at Blacktown College of Technical and Further Education (“TAFE”).  Austudy was approved on the understanding that this course met the requirements for full time study.  Mr Askarzai withdrew from the course on day two (oral evidence); he claims that he so informed Centrelink, whereas Centrelink claims to have no record of such advice. 

2.      On 31 July 2004 a decision was made to raise a debt of $3,551.97 in respect of Austudy payments made to Mr Askarzai from 29 July 2003 to 21 December 2003.  On 5 March 2007, a Review Officer at Centrelink advised Mr Askarzai that he had reviewed his original decision and concluded that decision to be correct.  On 29 May 2007, that decision was upheld after review by an Authorised Review Officer.

3.      In turn, the Social Security Appeals Tribunal affirmed that decision on appeal on 3 July 2007.  Mr Askarzai has sought review by this Tribunal.  At a hearing before me on 12 August 2008, Mr Askarzai was self-represented.  Mr Mark Nicoletti appeared for the Secretary, Department of Education, Employment and Workplace Relations (“the Respondent”).  The section 37 documents (T documents) were taken into evidence, as were a number of other documents provided by the Respondent.

ISSUES

4.      The issues in this matter are:

·Was Mr Askarzai undertaking qualifying study so as to be eligible for Austudy payment – as prescribed in the Social Security Act 1991 (“the Act”) – from 29 July 2003 to 21 December 2003?

·If not, did he so advise Centrelink of his withdrawal or non attendance in order that Austudy payments could cease?

·Is Mr Askarzai in debt to the Commonwealth for Austudy payments?

·If so, can the debt be recovered vide the relevant sections in the Act?

EVIDENCE

5.      Mr Askarzai arrived in Australia from Afghanistan in 1992, aged 18.  He subsequently completed two and a half years secondary education for the Higher School Certificate, followed by one year of a Bachelor of Commerce course at the University of Southern Queensland, then a full three year Bachelor of Economics degree at the University of Western Sydney.  He stated he was generally in receipt of Austudy – or another social security payment – from 1992 until 2002, but he also variously worked part time.

6.      In 2002 he commenced a correspondence course at the Southern Cross University, completing his Masters in Business Studies in 2005.  Again, his evidence was that he was sometimes supporting himself and his family by working, sometimes by social security benefits, which he believed was Job Search allowance.  From 2005 he variously worked part time, tutoring in economics at Wollongong University and the Royal Melbourne Institute of Technology.  He is presently employed part time by the latter and Academies Australasia Pty Ltd.  He does not believe he has received any social security benefits (Austudy or New Start Allowance (“NSA”)) since 2006, because of his income from employment.

7.      Mr Askarzai has achieved much in gaining professional and academic qualifications.  He is clearly well versed in the avenues available for academic study; it follows from his various pursuits and his evidence that he is also versed in the procedures and requirements for claiming social security payments.  Mr Askarzai conceded that he had knowledge of the rules and procedures relating to the application for and payment of social security payments.

8.      As regards the matter before me, on 28 July 2003, Mr Askarzai sought approval for Austudy payment in respect of a Certificate course in IT at Blacktown TAFE.  Austudy payment was approved effective 28 July 2003 and confirmed vide Centrelink letter dated 8 August 2003 (T27 p88).  On 25 August 2003 (T27 p89) Centrelink wrote to Mr Askarzai, advising him that his Austudy was cancelled from 12 August 2003 because he had failed to provide tax file numbers for himself and his wife.  Mr Askarzai could not recall receiving this letter, but conceded it had been correctly addressed to his then residence at Glenwood, and that he had provided the necessary response.  He somewhat vociferously questioned the need, or I assume authority, for Centrelink to seek such private information.  Given that Mr Askarzai is well aware that household income may well be an essential aspect of establishing eligibility for certain social security payments, one might view his concerns with some suspicion.

9. By letter of 1 September 2003 (T27 p90), which incorporated the requirements of section 68 of the Social Security (Administration) Act 1999 (“the Admin Act”), Centrelink advised Mr Askarzai that Austudy payments had been restored. This document also referred to the eligibility of Mr Askarzai for a Financial Supplement loan, which would entail him “trad[ing] in (or giv[ing] up)” half the loan amount from his Austudy. Mr Askarzai stated that he understood that the letter only dealt with the matter of the loan, and hence references thereafter in the letter to “changes in circumstances affecting your payment” that must be advised to Centrelink such as “if you or your partner … stop being a full-time student” and “start paid work …” were only applicable to the circumstances of a loan.

10.     Mr Askarzai stated that he had withdrawn from the course on day two (29 July 2003) as he deemed the course content to be unsuitable to his needs.  He said he subsequently advised Blacktown Centrelink office accordingly, being accompanied by his wife when he did so.  The Respondent re-affirmed the position of Centrelink that there is no record of this visit, nor advice that Mr Askarzai had withdrawn from the course.

11.     On 22 December 2003, Mr Askarzai was advised by Centrelink letter of that date (T27 p94) that his Austudy was cancelled as he was not studying full time or had ceased studying.  This coincided with the end of the semester for the IT course.  In a statement made on 5 February 2004 (T12 p50) in respect of a claim for Newstart Allowance, Mr Askarzai stated “I wish to state that prior to claiming NSA, I was last on Austudy 22/12/03.  I was cancelled as I was no longer a full time student…”.  Mr Askarzai could not recall signing this statement, but he conceded it was his signature on the document.  The statement confirms that Mr Askarzai was acknowledging that he had been in receipt of Austudy payments until that date.  In evidence, Mr Askarzai stated that he had become confused as to whether he was in receipt of Austudy or Newstart Allowance payments at the time.

12.     Following the above, Centrelink conducted a data matching exercise with Blacktown TAFE which confirmed that Mr Askarzai had not been a full time student (T18 p68), and accordingly an Austudy payment debt of $3,551.97 was raised, Mr Askarzai being informed on 3 August 2004.  There is no dispute as to the accuracy of the debt calculation.  The position of Mr Askarzai is that Centrelink had an obligation to record his advice that he had withdrawn from the IT course, and to cease Austudy payment accordingly.

13.     From September 2004, Mr Askarzai commenced repaying this debt.  Recovery ceased in August 2006 the balance at that time being $2,759.68 (T29 pp118-119).  In May 2007, Mr Askarzai sought review of the decision to raise and recover the debt; the file note referring to his telephone call (T21 p73) indicates his position that he should not be responsible for the debt as he had informed Centrelink in July 2003 of his cessation of full time study, and because of his domestic financial circumstances.  Thereafter his appeal against the decision to raise and recover the debt has progressed to the present point.

14. The Respondent took garnishee action under section 1233 of the Act against payments being made to Mr Askarzai by Academies Australasia Pty Ltd (Exhibit R2). The outstanding debt is presently in the order of $1,989. Mr Askarzai stated his strong objection to the fact that the garnishee action had publicly and inappropriately damaged his business reputation, and that such garnishee action, were it deemed necessary, should have been taken against social security payments. It was unclear whether he had adequately addressed his objections to Centrelink.

15.     Mr Askarzai married in 2000.  He and his wife have three children, the eldest being five years of age.  Mrs Askarzai looks after the children, and is in receipt of Family Tax Benefit A.  They live with, and he “supports”, his parents.  They are in receipt of the age pension and a rental allowance; Mr Askarzai described his father, who is aged 81 years, as being in poor health, whilst his mother’s health is “fine”, but she has no English.  Mr Askarzai also provides support to his sister, who lives in the family home and is in receipt of the Disability Support Pension.  The family currently rent a home at Stanhope Gardens near Blacktown; the rent is $510 per week, and whilst the lease in is Mr Askarzai’s name, all family members contribute to the rent.

16.     Exhibit R4 comprises documents relating to charges raised by the Office of Fair Trading against Walied Askarzai in respect of carrying on a business of a motor dealer without being the holder of a motor dealer’s licence, and of altering the reading of motor vehicle odometers.  The date of birth and address in these documents match the details provided by Mr Askarzai in his application for Austudy.  The Benchsheet indicates the court heard the matter on 22 September 2006.  My interpretation of the Benchsheet – hand written – is that the defendant did not appear, and in his absence was fined in the order of $17,000 plus costs and ordered to forfeit the proceeds of the activities in the sum of $35,000 and pay compensation of $6,910.

17.     Mr Askarzai stated he had no knowledge of this matter; “it’s completely a surprise”.  He stated that whilst he had bought and sold vehicles, he knew nothing about this prosecution.  He stated he had not attended court and when asked by the Respondent whether he might have been convicted in his absence, he said “yes, maybe”.  Mr Askarzai then stated that he had attended court for the first time in 2008 in respect of a dispute with his landlord about the bond.  He stated “I was in court three times.  The court would have told me that the – it’s the same court, Parramatta Court – that you’ve been convicted.  My name is in the system …”.  Implied, but left unclear, is that the court did not inform him of the earlier matters in respect of motor vehicle trading and tampering.

CONSIDERATION AND CONCLUSIONS

Was Mr Askarzai undertaking qualifying study so as to be eligible for austudy payment between 29 July 2003 and 21 December 2003?

18.     The answer to this question is clearly “no”.  His evidence is that he withdrew from the course on the second day because it was too basic for his needs.  At the same time he was undertaking the Masters course at Southern Cross University.  There is no evidence before me that he was in receipt of a social security benefit for the latter course during this period.

Did Mr Askarzai advise Centrelink of his decision to withdraw from the course?

19.     The evidence of Mr Askarzai is that he verbally informed Centrelink Bankstown that he had withdrawn from the TAFE course.  The Respondent states there is no record to substantiate that claim.  Centrelink wrote to Mr Askarzai on 25 August 2003 to the effect that his Austudy payments had been cancelled pending receipt of tax file numbers.  Mr Askarzai gave evidence that whilst he could not recall receipt of that letter, he had complied with the requirement.  Nor could he recall receipt of the subsequent letter of 1 September 2003 advising restoration of Austudy payments.  There is no evidence before me that Mr Askarzai questioned these ongoing payments; notwithstanding his evidence that he was confused as to whether he was receiving Austudy or Newstart Allowance payments, he made no effort to clarify the situation.

20.     I take into account Mr Askarzai’s experience over a number of years – as he has acknowledged – of the procedures and eligibility criteria for social security benefits.  I also take into account that Mr Askarzai knowingly conceded in his claim in February 2004 for Newstart Allowance that he had been in receipt of Austudy payments until “22/12/03”.  In the circumstances, I conclude that Mr Askarzai did not advise Centrelink that he had withdrawn from the TAFE course.

Is Mr Askarzai in debt to the Commonwealth for these Austudy payments?

21. One of the requirements that must be satisfied to be eligible for Austudy payments is that the person must be undertaking “qualifying study” throughout the period: section 569. As Mr Askarzai withdrew from the course after two days, he was no longer eligible. Under section 68(2) of the Admin Act, a notice was issued to Mr Askarzai requiring him to advise Centrelink of changes in his circumstances. There is no evidence that he did so, and hence Austudy payments, for which he was no longer eligible, continued. Accordingly, under section 1223 of the Act the “amount of payment is a debt due to the Commonwealth”.

Can the debt be recovered?

22. Various sections of the Act refer to writing off (in effect delaying recovery) of the debt for a period or otherwise in certain circumstances vide section 1236, waiving the debt due to administrative error vide section 1237A, or waiving the debt on the grounds of special circumstances vide section 1237AAD.

23.     Subsection 1236(1A) identifies the circumstances in which a debt may be written off.  None of the identified circumstances apply in this matter.  In particular, I note that the debt is recoverable by law, and Mr Askarzai has the capacity to pay, as demonstrated by the current garnishee action.

24. Mr Askarzai submits that in failing to maintain proper records, in that his advice of withdrawal from the TAFE course was not recorded, Centrelink bears the responsibility for paying him Austudy when he was not eligible to receive it due to its administrative error. Notwithstanding, Mr Askarzai accepts that he bears some responsibility in that he did not properly monitor the circumstances of the payment he was receiving. Section 1237A(1) of the Act relevantly states “the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt”.

25.     The Respondent contends that “attributable solely to administrative error” has not been established, drawing on the Full Federal Court decision in Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126, wherein Selway J stated at 135:

… The words “a debt attributable solely to an administrative error” can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.

26.     In following Sekhon it is clear that sufficient information was conveyed by Centrelink to Mr Askarzai to alert him to the fact that Austudy payments were continuing to be made. Further, there is no record that he informed Centrelink of his withdrawal from the TAFE course, and hence Centrelink could not be “solely” responsible for the continuation of a payment to which he was not entitled. Given Mr Askarzai’s experience in the procedures for claiming and receiving social security payments, I am unable to accept his submission that he was confused as to whether he was receiving Austudy or Newstart Allowance. It follows that I find that Mr Askarzai did not accept such payments “in good faith” as required by section 1237A(1) of the Act.

27.     The term “special circumstances” is not defined in legislation, but has been considered in both the Administrative Appeals Tribunal and the Federal Court.  The interpretation adopted by the tribunal, with Toohey J presiding, in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, has been widely followed, and states at 3:

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.

28.     That tribunal went on to say 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 (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 is possible to lay down precise limits or precise rules.

Such a view has been subsequently endorsed by the Full Federal Court in Dranichnikov & Ors v Centrelink & Anor (2003) 75 ALD 134 at [66] – [67].

29. Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 observed at 545 that:

The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case [(1985) 60 ALR 225, 7 ALD 670] (at ALR 229; ALD 674), and for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

30.     The wider implications in considering whether special circumstances exist have more recently been encapsulated in Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693, Deputy President Forgie presiding, where she stated at 715-6:

The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances … that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.

31.     Financial hardship, were it to exist in this matter, would alone not be sufficient to meet the criteria of special circumstances.  Whilst Mr Askarzai’s parents and sister rely to varying degrees on his support, they are in receipt of the appropriate social security payments, as is Mrs Askarzai in respect of family benefits.  Mr Askarzai is earning an adequate income, such as to result in his family not being eligible for Family Tax Benefit B.  He has, in the past, shown that he can justify a claim for social security benefits to support his study or when looking for work – neither apply at this time.  He is able to pay off his outstanding debt, by means of garnishee of his wages; whilst he disagrees that this takes place through his employment with Academies Australasia Pty Ltd, he expressed his preference for that to occur through taxation.

32.     Mr Askarzai denies all knowledge of the motor vehicle charges heard at the Parramatta Local Court on 22 September 2006.  The evidence before me would seem to indicate that, despite his protestations, those charges relate to activities that he was engaged in at the time.  In denying the charges, Mr Askarzai was presumably not in a position to refer to any financial implications that might affect his ability to repay the Austudy debt, and accordingly I take no account of the situation in that regard.  Assuming that the charges, and the finding of the court, do indeed refer to Mr Askarzai, then it must raise the question of his honesty when claiming social security benefits, as well as his credibility.

DECISION

33.     The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R HORTON AO, Member

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  12 August 2008
Date of Decision  23 September 2008
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr M Nicoletti, Centrelink Legal Services and   Procurement Branch