BADA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 671

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 671

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2568

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANNE BADA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 3 September 2010

Place Brisbane

Decision The Tribunal sets aside the decision under review and decides in substitution that the applicant was not a member of a couple during the relevant period and was therefore eligible to receive Widow Allowance.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – overpayments and debt recovery – widow allowance – whether applicant was member of a couple during relevant period – applicant travelled to Nigeria to marry husband – financial aspects of the relationship – nature of the household – social aspects – sexual relationship – commitment to each other – individuals were living separately and apart on an indefinite basis – decision set aside and remitted.

Social Security Act 1991 (Cth), ss 4, 24, 408BA, 1237A

REASONS FOR DECISION

3 September 2010  Senior Member Bernard J McCabe        

1.      Mrs Anne Bada, the applicant, commenced a relationship with a Nigerian man over the internet in late 2007. They met on a dating website. Their relationship was carried on by email and telephone. She travelled to Nigeria on 23 September 2009 to meet her correspondent in person. They married on 9 October 2009 in Nigeria. The applicant returned to Australia the day after her marriage while her husband, Mr Bada, applied for a visa so he could emigrate to this country. The applicant was in receipt of a Widow Allowance payment at the time she went to Nigeria. The Secretary of the Department of Education, Employment and Workplace Relations, the respondent, says the applicant became a member of a couple when she married her husband. She was therefore ineligible to receive Widow Allowance. The Secretary says Mrs Bada should refund the payments she received between 9 October 2009 and 28 December 2009.

2. This case requires that I characterise the relationship between the applicant and her husband during the relevant period. If I am satisfied the applicant and her husband were legally married and not living separate and apart from each other within the meaning of s 4 of the Social Security Act 1991 (“the Act”), the applicant is ineligible to receive the Widow Allowance because she is a member of a couple - unless I exercise the discretion in s 24 to treat her as if she were not a member of a couple. If she is unsuccessful on this point, she has asked that the debt be waived due to administrative error pursuant to s 1237A.

3.      I am satisfied the applicant and her husband were living separately and apart in the period under review. In those circumstances, I must set aside the decision under review and remit the matter to the respondent on the basis that the applicant was not a member of a couple.

The facts

4.      The applicant was a single woman in receipt of the Widow Allowance at the time she met her future husband online in late 2007. The applicant explained in her statement that she and her husband “provide[d] companionship and emotional support to each other via phone calls, text messages, emails and internet chat” in the months that followed. As their relationship progressed, they discussed the possibility of Mr Bada moving to Australia. He undertook a number of educational courses that might assist him in his application for a visa.

5.      Mrs Bada travelled to Nigeria on 23 September 2009. She met her future husband there for the first time. She told the hearing that she did not travel to Nigeria with the intention of marrying, although I am satisfied that she at least considered that was a possibility. She said she intentionally left her important documents behind in Australia so she would not make a hasty decision. She said in her evidence that she wanted to meet Mr Bada in person before making any decisions about the future.

6.      The meeting between the applicant and her husband was obviously a success. The applicant decided she wanted to marry and arranged for her documents to be collected from Australia. The couple contacted the local authorities in Nigeria and made the necessary arrangements. She extended her trip to Nigeria for two weeks so she could marry Mr Bada at a ceremony attended by his family and friends on 9 October 2009. She left the country alone the following day. She has not seen her husband in person since that date. They have been waiting for Mr Bada’s visa to be approved. That has now occurred and his arrival is imminent.

7.      Mrs Bada did not inform anyone from Centrelink of her travel plans in 2009 before she departed. She should have done so. She says she reported the fact of her marriage to a Centrelink officer in the course of a telephone call to the Centrelink call centre on 13 October 2009. But the officer who dealt with her on that occasion did not note anything about a change in her marital status. The respondent says that is surprising and doubts that the applicant disclosed what happened in Nigeria. The respondent says Mrs Bada did not disclose the fact of the marriage until 14 December 2009.

8.      The respondent says Mrs Bada was not entitled to receive Widow Allowance after she was married.  If that is right, the applicant was paid $2695.03 between 9 October 2009 and 23 December 2009 that she was not entitled to receive.   

The legislation

9. Section 408BA of the Act says a person is not eligible to be paid Widow Allowance if, amongst other things, she is a member of a couple. That expression is defined in s 4. Section 4(2) says relevantly:

“…a person is a member of a couple for the purposes of this Act if…(a)  the person is legally married to another person and is not, in the Secretary's opinion…living separately and apart from the other person on a permanent or indefinite basis…”

10.     There is no doubt the applicant and her husband are legally married to each other. The question is whether they could be said to be living separately and apart… on a permanent or indefinite basis during the period under review. That question is answered with reference to all of the circumstances of the relationship at the time however the decision-maker must have particular regard to the indicia of a relationship set out in s 4(3). I will deal with each of those indicia in turn.

the financial aspects of the relationship

11.     The applicant says there was no financial relationship between her and her new husband at the relevant time. They did not hold joint accounts or joint assets or share any liabilities. They did not pool their assets or income. There were no shared household expenses or any legal obligations owed to each other. Mrs Bada paid the cost of her husband’s visa application but did not otherwise give him any money or provide any form of financial assistance. While she has agreed to pay his cost of travelling to Australia when he comes here, Mrs Bada said in her evidence that she consciously decided not make any other money available to Mr Bada.

the nature of the household

12.     The applicant and her husband have never shared a home. There are no children of the relationship.

The social aspects of the relationship

13.     The applicant says she accompanied her new husband to a few social events while she was in Nigeria but they have had limited opportunities for interaction or to participate in joint social activities. She says in her statement that she and her husband presented as members of a couple. I also note she has taken Mr Bada’s name. She says her close friends and relatives would describe her as being married. In the course of her oral evidence, she conceded her daughter did not appear to accept the relationship, and she made comments about the attitudes of her father and brother which tended to suggest they had some difficulty with the authenticity of the relationship. She impressed me as a person who was keen to present the idea that the relationship was genuine, even though it did not necessarily serve her interests to communicate that view. Although I did not hear from any other witnesses, her evidence left me in some doubt that her view of the relationship is shared by all of her family and friends.

Any sexual relationship between the people

14.     Mrs Bada agreed she and her husband had commenced a sexual relationship when they met, although that relationship was interrupted when she left the country.

The nature of the people's commitment to each other

15.     Mrs Bada said in her statement that she saw that marriage as a genuine, long-term relationship. Correspondence from Mr Bada that was prepared in connection with his visa application also spoke about the commitment of the parties to each other and the genuineness of the relationship. I note the relationship has persisted for several years, albeit that most of the time the only contact occurred over the internet and telephone. Mrs Bada spoke of the companionship and support they provide to each other.

16.     I accept the parties’ commitment to each other has firmed in recent times now that Mr Bada’s visa has been approved. Before the visa was approved – and during the period under review - I think the commitment to each other was qualified. I asked Mrs Bada what she had planned to do if her husband’s visa had not been approved. She said she did not know, although she added she would not have agreed to live in Nigeria, the only practical alternative. She also mentioned her father, an immigration lawyer or agent, was “horrified” when he was told of the marriage. She spoke of her rule that she would not send her husband any money (other than what was required to bring him to Australia). Although she alluded to difficulties in establishing a bank account and the differences between the two economies, the reference to her father’s reaction suggests she was behaving prudently in case her husband was not all that he seemed. I note she accepted her father’s advice that she should enter into a financial agreement with her new husband that would protect her position in the event the marriage does not last. While entering into a financial agreement does not of itself suggest a want of commitment, the evidence suggests the applicant was hedging her bets in the period under review.

Conclusion: were these individuals living separately and apart on a permanent or indefinite basis?

17.     I do not think the applicant and her husband were members of a couple during the period under review. Although they intended Mr Bada would come to live with the applicant in Australia if his visa was approved, that prospect remained distant and uncertain when they married. While they took on some of the external appearance of being married, these two individuals had done nothing more than make a firm promise to commence a marriage-like relationship at some point in the future if everything turned out. In the circumstances, I am satisfied the applicant and her husband were living separately and apart on an indefinite basis at the relevant time.

Conclusion

18.     The decision under review is set aside. I decide in substitution that the applicant was not a member of a couple at the relevant time, and was therefore eligible to receive Widow Allowance.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ....................[Sgd].......................................................
  Patrick MacDonald

Date of Hearing  23 August 2010 
Date of Decision  3 September 2010

Counsel for the Applicant         Mr M Black
Solicitor for the Applicant          Mr P Flintoft, Think Legal

Advocate for the Respondent   Ms H Wallis-Dunn, Centrelink Advocacy Branch