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

This matter concerned an appeal by Mr Aycha against a decision of the Secretary of the Department of Social Services affirming a determination that he had been overpaid Newstart Allowance and Disability Support Pension due to being a member of a couple during the relevant periods. The core of the dispute revolved around whether Mr Aycha was considered a member of a couple for social security purposes, which in turn impacted the calculation of alleged overpayments and the potential for waiver or write-off of the resulting debts. The Administrative Appeals Tribunal was tasked with reviewing the Secretary's decision.

The legal issues before the Tribunal were whether Mr Aycha was a member of a couple during the periods in question, and if so, whether there were special circumstances justifying the waiver or write-off of the debts arising from the overpayments. This required the Tribunal to consider the nature of Mr Aycha's relationships, including the validity and significance of an Islamic marriage and divorce, in light of the criteria for determining a couple for social security purposes. The Tribunal also had to assess the evidence presented regarding income, assets, and financial arrangements.

In its reasoning, the Tribunal applied the principles established in cases such as *Pelka*, emphasising the importance of considering the totality of the relationship and the factors identified in section 4(3) of the *Social Security Act 1991* (Cth) to determine if a marriage-like relationship existed. The Tribunal noted the lack of direct evidence from key individuals and the applicant's ambivalent approach to the significance of his religious divorce. Crucially, the Tribunal afforded minimal weight to the Islamic divorce documents due to a lack of explanation regarding their interpretation and the substantial delay in their production, finding that the circumstances did not support a finding that Mr Aycha was single.

Consequently, the Tribunal affirmed the decision under review. It found that Mr Aycha was a member of a couple during the debt periods, resulting in overpayments of Newstart Allowance and Disability Support Pension, and that there was no basis for the debts to be written off or waived.