Boyle and Secretary, Department of Social Services (Social services second review)
[2019] AATA 604
•29 March 2019
Boyle and Secretary, Department of Social Services (Social services second review) [2019] AATA 604 (29 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4952
Re:Sharon Boyle
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:29 March 2019
Place:Sydney
The decision under review is affirmed.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
Catchwords
SOCIAL SECURITY - preclusion period - compensation payment - application of statutory formula - compensation payment for personal injury received - whether special circumstances exist - financial hardship – decision affirmed
Legislation
Migration Act 1958 (Cth)
Motor Accidents Compensation Act 1999 (NSW)
Security Act 1991 (Cth)
Cases
Alver v Secretary, Department of Social Services [1992] AATA 333
Australian Tertiary Academy Pty Ltd v Australian Skills Quality Authority [2018] AATA 4875
Beadle and Director-General of Social Security [1984] AATA 176
Black v Secretary, Department of Social Security [1994] AATA 291
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 441
Re Griffiths and Secretary, Department of Social Security [1992] AATA 123
Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 339
Groth v Secretary, Department of Social Security [1995] AATA 62
Groth v Secretary, Department of Social Security [1995] 40 ALD 541
Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 856
Minda and Secretary, Department of Social Services [1989] AATA 53
Re Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487
Re Beadle and Director-General of Social Security [1984] AATA 176
Re Costello and Secretary, Department of Transport [1979] 2 ALD 934
Re Perkich and Secretary, Department of Social Security [1997] 49 ALD 137
Re Secretary, Department of Family and Community Servicesand Szoke [2001] AATA 353
Re Thomas and Secretary, Department of Family and Community Services [2003] AATA 842
Riddell v Secretary, Department of Social Security (1993) 114 ALR 340
Sams v Secretary, Department of Social Services [2016] AATA 654
Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67
Secretary, Department of Social Security v Hulls and Others (1991) 22 ALD 570
Secretary, Department of Social Services and Krebs [2015] AATA 963
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
29 March 2019
Issues
This application raises two relatively straightforward issues for determination:
1.Is Ms Sharon Boyle (the Applicant) precluded from 28 August 2010 to 17 October 2031 from receiving parenting payments under the provisions of the Social Security Act 1991 (the Act) because she received a lump sum compensation payment; and
2.If so, are there any “special circumstances” which would warrant the express provisions of the Act being disregarded in whole or in part?
The Facts
The facts relevant to this particular application are as follows:
·On 15 May 2006 the Applicant was involved in a motor vehicle accident in respect of which she was entitled to make and receive compensation for personal injuries;
·From 16 June 2006 to 27 August 2010 the Applicant received weekly payments prior to the settlement of the whole amount;
·On 13 August 2010, the Motor Accident Authority found that the Applicant was entitled to compensation payments in the sum of $1,348,426.97 plus costs of $82,749.40;
·On 27 August 2010 the Department informed the Applicant that as a result of her receiving this compensation payment she was barred, by the Act, from receiving income support payments from the Department during what is called the “preclusion period”;
·In that correspondence she was advised that the period of “preclusion” would run from 28 August 2010 to 17 October 2031;
·On 5 May 2017 the Applicant lodged a claim for parenting payment (single);
·On 8 May 2017 the Department rejected the claim for parenting payment on the basis that the Applicant was precluded from receipt of income support payments due to her compensation payment and because the claim was made while the preclusion period was still in force;
·This decision was reviewed and affirmed by an Authorised Review Officer (ARO) of the Department on 31 July 2017;
·The Applicant appealed that decision to the Social Services and Child Support Division of this Tribunal (AAT1) which, on 19 July 2018 upheld the ARO’s decision;
·The Applicant appealed for second review of that decision to this Tribunal on 28 August 2018. The matter was listed for hearing on 21 January 2019, but at that time the Applicant sought an adjournment in order to seek advice from Legal Aid or some other form of legal representation. The Tribunal granted this request and the rescheduled hearing took place on 14 March 2019. Unfortunately the Applicant remained unrepresented at that hearing having been denied Legal Aid for what she described as “security clearance” issues.[1]
[1] Applicant’s Further Submission (dated 13 March 2019) at paragraph 14, Tribunal Exhibit [A1].
The legislative framework
Part 3.14 of the Act headed “Compensation Recovery” outlines a scheme whereby under s 1160 if a person is in receipt of certain compensation payments they are precluded from receiving “affected payments” for a specified period of time (the “preclusion period”).
Section 17(1)(b) provides that parenting payments are “compensation affected payments” and thus brought within the operations of the exclusions related to compensation payments.
Section 1169 sets out the general rules applying to the preclusion period and s 1170 defines (and gives the formula for calculating) the preclusion period.
1160 General effect of Part
(1) This Part operates in certain specified circumstances to do one or more of the following:
(a) reduce a person’s compensation affected payment;
(b) render a person’s compensation affected payment not payable;
(c) require the repayment of some or all of a person’s compensation affected payment;
because of the receipt of compensation by the person or the person’s partner.
(2) This Part applies whether or not there is any connection between the circumstances that give rise to the person’s qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person’s partner.
1169 Compensation affected payment not payable during lump sum preclusion period
(1) If:
(a) a person receives or claims a compensation affected payment; and
(b) the person receives a lump sum compensation payment;
the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.
(2) In this section:
“lump sum compensation payment” does not include a lump sum payment:
(a) to which section 1164 applies; or
(b) that relates only to arrears of periodic compensation payments.
1170 Lump sum preclusion period
(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:
(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:
(a) begins on the first day on which the person’s periodic compensation payment is a reduced payment because of that choice; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(3) If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:
(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and
(b) ends at the end of the number of weeks worked out under subsections (4) and (5).
(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula
Compensation part of a lump sum
Income cut-out amount
(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.
There is a dispute between the parties as to the quantum of the total compensation payment which must be taken into account when determining the preclusion period. The definitions and formula used to calculate the “compensation part of a lump-sum compensation payment” (the relevant amount) is set out in s 17(3) of the Act.
(3) Subject to subsection (4), for the purposes of this Act, the compensation part of a lump sum compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and
(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(ab) 50% of the payment if the following circumstances apply:
(i) the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and
(iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or
(b) if those circumstances do not apply—so much of the payment as is, in the Secretary’s opinion, in respect of lost earnings or lost capacity to earn, or both.
The Applicant contends that she should have the benefit of the 50% rule[2] in this section (discussed below) which is denied by the Secretary.[3]
[2] Section 37 Tribunal documents at [114] and [448].
[3] Respondent Statement of Facts, Issues and Contentions at [22]-[24].
The Secretary has calculated that the compensation part of the lump sum is taken to be $854,315.58. This is made up of findings in relation to the past loss of earnings (included losses in superannuation contributions) amounting to $178,476.90 and future losses of earnings and superannuation amounting to $786,690.30, less the repayment of past periodic payments which totalled $110,851.62. These figures are based on a detailed assessment made by the CARS Assessor of the NSW Motor Accidents Authority.[4]
[4] Section 37 Tribunal documents at [41]-[73], especially at [67].
The Applicant herself claims that this figure should be lower (in the order of $743,000) but provides no detailed basis for such an assessment.
The Tribunal believes that the Secretary’s calculation of the compensation part of the lump sum is correct.
That having been established, it is then necessary to work out the income cut-out amount.
This calculation was made in August 2010 and the formula for so doing, as set out in s 17(8) of the Act, was in different terms to what it is now. The 2010 legislation provided:
At the request of the Applicant the Tribunal obtained from the Respondent a detailed set of workings used to calculate the income cut-out amount using the formula above.
From information provided by the Department,[5] the Tribunal accepts that, at the relevant time, the maximum basic rate was $16,749.20; the Point 1063-BA3 amount was $1,479.40 and the ordinary free area limit was $3,796.
[5] Respondent’s Submission on calculation of income cut-out method.
Applying these figures to the formula in section 17(8) of the Act which is set out above yields the following calculation:
(2 x ($16,749.20 + $1,479.40) + $3,796) ÷ 52
= (2 x $18,228.60 + $ 3,796) ÷ 52
= ($36,457.20 + $3,796) ÷ 52
= $40,253.29 ÷ 52
= $ 774.10
The Tribunal has checked these calculations and is satisfied that the figure of $774.10 is correct.
The question of whether the 50% rule (s 17(3)(a)) applies in the calculations turns on a further issue, namely whether or not the compensation quantum itself was the result of either an agreement between the parties or a “judgement” made in a contested hearing.
A formal set of Instructions have been promulgated and published as part of the Social Security Guide. Although such Instructions do not have the same force of law as legislation, it is nevertheless settled law that Tribunals such as this should apply their provisions in the absence of any compelling reason not to do so.[6]
[6] Drake and Minister for Immigration and Ethnic Affairs (no 2) [1979] 2 ALD 634 at [645].
Instruction 4.13.2.10 deals with the treatment of lump sum payments in cases such as this. The Applicant’s compensation payments were determined by the Claims Assessment and resolution Service (CARS) of the Motor Accident Authority of NSW under the terms of s. 94 of the Motor Accidents Compensation Act 1999 (NSW). The Instruction draws a distinction between claims determined as a judgement and those resulting from a settlement.
If…
Then…
the assessor has to make an independent assessment because one or both of the parties have contested the proceedings,
the determination is treated as a judgement rather than a settlement. This is because the CARS assessor must make an independent judgement about the heads of damage. The compensation part of the lump sum is then based on the specific amounts awarded for economic loss (see above).
the parties have negotiated and presented an agreement to the CARS assessor for ratification,
the determination is treated as a settlement and the 50% rule applies. This is because, unlike the situation above where the CARS assessor makes an independent judgement, the CARS assessor is only ratifying the agreement already struck between the parties. Although heads of damage may be specified in the agreement, the 50% rule applies because there has NOT been an independent judgement made as to the basis of the agreement.
The important issue here is that the determination by settlement attracts the operation of the 50% rule whereas a determination by judgement does not. This proposition was approved by the Federal Court in Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[7]
[7] Kezchek v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 856.
The Applicant does not dispute that the payment was by way of a judgement.
In applying all these various stages, the process of calculation is as follows:
1.Determine the amount of damages on the basis that the determination was by way of judgement (Social Security Guide at 4.13.2.10).
2.Determine the compensation part of the lump sum payment (s 17(3)(b) of the Act).
3.Determine the income cut-out amount which is the divisor of the compensation part of the lump sum (s 17(1) of the Act).
4.Apply the formula set out in s 1170(4) (rounded in accordance with s 1170(5)) to establish the preclusion period.
5.Determine the date at which the preclusion period starts and finishes (s 1170(1) of the Act).
In the Applicant’s case, this calculation is as follows:
1.Damages = $1,348, 426.97 plus costs $82,749.40
2.Compensation part = $854,315.58
3.Income cut-out amount = $774.10
4.Preclusion period = 1,103.65 weeks, rounded to 1,103 weeks
5.Preclusion dates = commence 28 August 2010 and ends 17 October 2031.
It is important to record that there is clear evidence that the Applicant was informed on 27 August 2010 of the operations of the preclusion period and that she would not be eligible to receive income support payments from that date until 17 October 2031.[8] In oral evidence to the Tribunal the Applicant agreed that she had been informed and was aware of the date of the preclusion period.
[8] Section 37 Tribunal documents at [75]-[76].
It is thus the case that the Applicant was aware that from that date it was her responsibility to manage her affairs so that she would not be reliant upon income support payments during that period however else her financial arrangements were constructed.
The answer to the first question posed above: “Is Ms Sharon Boyle (the Applicant) precluded from 28 August 2010 to 17 October 2031 from receiving parenting payments under the provisions of the Social Security Act 1991 (the Act) because she received a lump sum compensation payment?” must be answered in the affirmative.
The Applicant’s current financial position
The Applicant attests that as of the date of hearing she was, in effect, financially destitute. She had no money left from her compensation payment. The key elements are these:[9]
1.The Applicant received approximately $990,000 as final payment out of an initial compensation award of some $1.34 million;
2.After deductions for matters such as legal fees and payments to the Workers’ Compensation authorities the Applicant was left in possession of a sum of approximately $854,000 in August 2010;
3.In November 2011 a sum of $750,000 was transferred by the Applicant into a 120 day term deposit;
4.By the end of 2013 the Applicant’s accounts held approximately $450,000;
5.In May 2017 the Applicant lodged a claim for parenting allowance on the basis that she no longer had any funds left and was in need of income support.
[9] Figures rounded.
Where did the money go?
The Applicant informed the Tribunal that upon receipt of the original monies she made a number of financial commitments.[10]
[10] These are detailed in Section 37 Tribunal Documents at [116]-[117] and in oral evidence.
In the first instance she repaid in full a HECS debt of $30,000. She purchased a second-hand car for $40,000. She gave $15,000 to her brother in order to support his recovery from a situation of homelessness and mental illness and to support him in a rehabilitation and recovery programme.
The Applicant states that she suffered from a variety of physical ailments which led her to travel to Singapore and the United States to seek medical treatment which she says was not available in Australia and travelled to Thailand to participate in various forms of alternative therapy. As a further part of addressing her health issues she had surgery at private hospitals in Australia due to the fact that waiting lists in public hospitals prevented her immediate access to this necessary treatment.
Prior to the accident the Applicant held a number of tertiary qualifications in areas such as communications, law and criminology. After the accident she felt it necessary to undertake further courses of education to prepare for a possible future return to the workforce. She says that as an “injured worker” she found her way barred in terms of entry into Australian academic institutions so she decided to apply overseas. Among several applications she was accepted into a course in political science and national security matters at a University in Canada. She travelled there and enrolled, paying up-front fees as required of foreign students. However she became ill, and without access to the Canadian health system she had to return to Australia. At the same time her mother fell ill and she returned to support her.[11] As a result she never finished the course.
[11] It appears that the Applicant no longer has contact with her family.
The Applicant also made a further trip to Thailand where she met and became involved with Mr Noothong. Through him she became a financial supporter of the boxing club/academy where he worked. Her involvement led to marriage, the expenses for which she bore while, at the same time, providing extensive financial support for Mr Noothong himself. The culmination of all this was that, after the marriage she was involved in the expenditure of some $20,000-$30,000 to pay for his visa application and costs associated with his travel to Australia.
There were, of course, other incidental expenses such as those involved with buying clothes which she herself described as: “Wasted money in clothes due to depression and boredom, with no purpose or direction.”[12]
[12] Ibid at [116].
The Applicant claimed that Mr Noothong’s fraudulent activities had cost her the better part of $60,000 directly and that his actions (together with others) had caused losses through various forms of credit card fraud of a large part of the remaining $450,000. There is simply no way for the Tribunal to know how realistic any of these claims might be.
In terms of precise expenditure, the only clearly stated costs (HECS repayment, car purchase, loan to brother) amount to about $85,000. To this may be added $20-30,000 on the visa process (a figure the Tribunal finds surprisingly large). When asked by the Respondent at the hearing if she could particularise expenditure on any of the other areas of expenditure the Applicant stated that she was not unable to do so, nor could she give a precise figure for her daughter’s (out of pocket) medical costs to date.
It is the Secretary’s contention that this pattern of expenditure reveals a degree of imprudence on the part of the Applicant and that these were primarily unnecessary expenses which should not have been undertaken by a person who knew that they had a limited amount of money, in an era of falling interest rates on investments and with little or no prospect of returning to the workforce and thus earning any significant level of income.
In reply the Applicant says that the paying off the HECS debt discharged a debt to the Commonwealth which she wanted to do before embarking on further studies; that it was necessary for her to have a car after the accident; that gifts to family members should not be regarded as extravagances and that money spent on seeking to improve her health or educational status (and hence employability) are at all times justified; and that, although her relationship with Mr Noothong turned out to be a disaster no-one should be penalised by the government for having been misled by their hearts.
Special circumstances: Principles
The Applicant’s own evidence was to the effect that her total compensation award was “approximately 1.4 million but after workers compensation and solicitors and barristers fees, I received approximately $990,000.”[13] In the same Statutory Declaration the Applicant also stated that upon receipt of the payment she took professional financial advice about its management and investment.[14]
[13] Applicant Statutory Declaration (dated 21 July 2017) Section 37 Tribunal documents at [91].
[14] Idem.
A bank statement before the Tribunal covering the period 01/07/2011 to 13/12/2011 shows “total money in” as $871,054.20 and “total money out” as $812,200.00, leaving a balance of $73,348.28.[15] The principal transaction was on 30/11/2011 when $750,000.00 was transferred to a 120 day term deposit.[16]
[15] Section 37 Tribunal documents at [143].
[16] Ibid at [144].
The Applicant has however, put to the Tribunal that the Secretary should exercise the discretion invested in her to disregard the whole, or part of her compensation payments for the purpose of calculating her future entitlements.
The Secretary’s discretion is provide for in s 1184K(1) of the Act:
1184K Secretary may disregard some payments
(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
The key phrase here is “special circumstances”. It is up to any Applicant to establish exactly what these might be.
Much Tribunal and judicial ink has been spent to try and settle a clear definition of “special circumstances”, not to very much avail.
As with other terms such as “public interest”, “good character”, “fit and proper person”, it is unfortunate that there is no definition in the relevant legislation of the precise meaning of “special circumstances”. Once again the Tribunal must rely upon judicial guidance in the matter and once again there is ample authority.
In Beadle[17] the Tribunal stated:
[12] 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.”
[17] Re Beadle and Director-General of Social Security [1984] AATA 176.
Beadle was referred to by Kiefel J (as her Honour then was) in the following terms:
“The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss …. 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.”[18]
[18] Groth v Secretary, Department of Social Security [1995] 40 ALD 541 at [545].
Thus, judicial authority recognises that the term is “by its very nature incapable of precise or exhaustive definition”[19] but that it requires something to distinguish it from other cases in a way “to take it out of the usual or ordinary case”.[20]
[19] Beadle and Director-General of Social Security [1984] AATA 176 at [12].
[20] Groth v Secretary, Department of Social Security [1995] 40 ALD 541 at [545].
Furthermore, when decisions are made they must evidence “a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.”[21]
[21] Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 at [80].
That having been said, each case is different, and “each particular case must be considered in its merits.”[22] This may be to such an extent that “the particular facts of a case might make them – or the amount of them – a special circumstance.”[23]
[22] Riddell v Secretary, Department of Social Security [1993] 114 ALR 340 at [347].
[23] Secretary, Department of Social Security v Hulls and Others (1991} 22 ALD 570 at [580].
Special CIRCUMSTANCES: The Applicant
What the Applicant puts forward as being the “special circumstances”, indeed she describes them as “exceptional and unprecedented in Australia”[24] in her case are:
(a)She has been the victim of fraud (as well as physical abuse) by her partner who, together with others, has conspired to rob her of a significant amount of her compensation payment;
(b)Her daughter (born in 2015) suffers from a rare medical condition, severe chronic neutropenia, which entails significant medical costs, full time care on her part with a reduced capacity for her to find any meaningful employment; and
(c)She is suffering severe financial hardship as a result of having spent all her compensation payment and has been unable to source any other form of income support.[25]
[24] Section 37 Tribunal Documents at [449].
[25] Ibid at [114]-[118].
The Tribunal considers it necessary to examine each of these claims[26] before assessing the more general question of the nature of the Applicant’s financial management.
[26] Ibid at [114]-[126].
Victim of fraud
It appears that in 2013/2014 the Applicant made several trips to Thailand, initially to seek alternative medical treatment for a variety of ailments. At some stage she met Mr Sarawut Noothong who trained in boxing.[27] They married in December 2014 with the Applicant paying all the related costs.[28] She became pregnant to Mr Noothong in March 2015 and as she was resident in Thailand but not entitled to medical support in that country she incurred significant expenses related to the pregnancy. In April 2015 she sponsored Mr Noothong to come to Australia and in August 2015 they arrived here prior to the birth of their daughter in November 2015. Again, the Applicant bore all the costs associated.
[27] Ibid at [242]-[243].
[28] The marriage was according to Thai law and Buddhist ceremony and not registered with any Australian authority so that when Mr Noothong was sponsored to come to Australia it was on the basis of his application (with the Applicant’s sponsorship) for a Prospective Marriage (Temporary) (class TO)(subclass 300) visa. Ibid at [199].In July 2015 Mr Noothong had been granted a Visitor (Class FA)(subclass 600) visa. Ibid at [198]. According to the Applicant Mr Noothong’s visa was cancelled on 18 September 2016 after leaving Australia on 19 July 2016. Ibid at [122].
Mr Noothong was apparently unable or unwilling to find work and in July 2016 he returned to Thailand. Once again, the Applicant paid all his expenses, some of which were substantial.[29] The Applicant states that, unbeknown to her, during this period Mr Noothong was stealing from her and diverting money from her various accounts. She further states that, through (anonymous) social media posts she became aware that Mr Noothong was already married (in Thailand) and was both conducting affairs and engaging in a variety of criminal activities. In total, the Applicant claims that “through pretences and theft” by Mr Noothong she was robbed of something in the order of $450,000.[30]
[29] Ibid at [92], for example $5000 for hearing aids allegedly required to meet the “health/medical requirements of his migration.”
[30] Ibid at [122].
Details of Mr Noothong’s alleged criminal activities vis-à-vis the Applicant are presented in the submissions in a away which is essentially incoherent in terms of organisation or presentation of evidence. There are numerous emails and screenshots which are without details of provenance or relevance and much of the material is in the Thai language and without translation. It is clear from responses to correspondence[31] that the Applicant wrote to the Immigration authorities to make allegations against Mr Noothong after his departure from Australia although the precise details of her submissions are not before the Tribunal.
[31] Ibid at [200]-[201].
In regards to this relationship, the Applicant makes a number of assertions that Mr Noothong should never have been allowed to come to Australia and that, somehow the Australian government has been negligent in issuing him visas. Had the government not done so, the Applicant asserts, then the fraud, of which she was a victim would never have been perpetrated against her and she would not be in her current position of financial hardship.[32]
[32] Ibid at [115] para 4(e); [118] para 28; [123] para 32.
However it is clear that Mr Noothong was only granted his visa (Prospective Marriage (Temporary) Class TO, subclass 300, granted 4 February 2016)[33] on the basis of sponsorship by the Applicant and she was advised by the Department that were she to withdraw that sponsorship he would be expected to return to Thailand.[34] Subsequent correspondence from the Department notes that the Applicant has made various allegations against Mr Noothong and advises that these would be taken into account should he make any further visa application.
[33] Ibid at [201]. Mr Noothong had previously held a Visitor Visa (Class FA subclass 600) granted on 7 July 2015, Ibid at [198].
[34] Ibid at [200].
Put simply, there is no substantive evidence before the Tribunal to verify the claims made by the Applicant in relation to the alleged thefts by Mr Noothong, nor is there any evidence that she has taken any steps to recover the alleged stolen money through the instigation of legal proceedings in either Australia or Thailand. There is no evidence of the Applicant’s approach to any bank or financial institution in Australia to seek their aid in recovery of money illegally removed from any of her accounts.
Among the attached papers, including material in Thai, together with translations, the Applicant has hand-written on one of those documents, “Admission with respect to fraud, theft and misappropriation of money + unlawful recording + dissemination.”[35]
[35] Ibid at [205].
It is not clear to the Tribunal that there are any such direct or meaningful “admissions” related to fraud or theft, although there appear to be admissions as to “cheating” which may well refer to the fact that Mr Noothong was apparently already married in Thailand when he married the Applicant, and hence their marriage was “not real”.[36]
[36] Ibid at [209], [212], [228], [404].
The documents contain reference to use of false identities and possibly related credit card fraud[37] but such references are unclear, and this lack of clarity is added to by the fact that many words in the Thai language have multiple possible meanings[38] and so translation is particularly fraught.
[37] Ibid at [252], [253], [276], [353].
[38] Ibid at [276] – warning by translation services.
The Applicant however asserts that: “The lack of criminal convictions regarding alleged wrongdoing by Mr Noothong in company is also not indicative that it did not occur.”[39] She goes on to assert that the mere fact that she raised matters with the Department of Immigration and Border Protection led to Mr Noothong’s visa being cancelled. There is no evidence that this visa was cancelled before Mr Noothong left Australia and the advice from that Department is to the effect that should the Applicant withdraw her sponsorship (as spouse) Mr Noothong would be required to leave Australia. In this respect allegations of criminal behaviour are not relevant, they would only come into play in the event of Mr Noothong making a future visa application.
[39] Applicant’s Affidavit, undated but received by the Tribunal on 21 January 2019 at paragraph [41].
What appears to be the position is that Mr Noothong left Australia sometime in June 2016 but then returned. In July he left again, voluntarily. The Applicant said in evidence that she was advised by the Immigration Department that his visa had been cancelled in September 2016, although whether this was as a result of any investigation by the Department into allegations of criminality; any advice received from the Thai police authorities or as a result of the Applicant withdrawing her sponsorship, cannot be determined.
Finally, the Applicant expresses concern that “The Department has not submitted any evidence to rebut or dispute claims of the applicant which is supported by direct and circumstantial evidence.”[40]
[40] Applicant’s Further Submission (dated 13 March 2019) at paragraph 9, Tribunal Exhibit [A1].
With respect to the Applicant, this entirely misconceives the role of the Department (either Immigration and Border Protection, or in this case Social Security). They have no responsibility whatsoever to “rebut or dispute” claims such as these made by an applicant. It is entirely up to the applicant to provide proof, beyond mere assertion, that certain matters have occurred and establish their relevance in proceedings such as this.
The Applicant has, by any reasonable standard, failed to do so.
Daughter’s illness
In relation to her daughter’s neutropenia, the Applicant has submitted details of her diagnosis from a paediatric haematologist which indicates that the child will require “multiple hospitalisations over the coming years”.[41] There is no doubt that the condition is a serious and significant one requiring ongoing and intense treatment.[42] A more recent report from a paediatric oncologist a Children’s’ Hospital[43] confirms that the daughter’s condition is a serious one exposing her to significant risk of serious infection and likely to require a bone marrow transplant. Her further treatment may involve regular injections of GCSF which, the Tribunal understands is an expensive treatment, not currently subsidised under the Pharmaceutical Benefits Scheme.
[41] Section 37 Tribunal Documents at [161].
[42] Ibid at [161]-[173].
[43] Applicant’s Affidavit, undated but received by the Tribunal on 21 January 2019 Annexure 4.
The Tribunal accepts that providing support for her daughter requires the Applicant to have access to a motor vehicle and that transportation by public transport is not a viable alternative.
Given this, the question which must be addressed is the extent to which her daughter’s condition will entail significant costs outside those reimbursed by the public health system and Medicare. There is no evidence upon which the Tribunal can make such a determination.
The Applicant is in receipt of carer allowance in relation to her daughter but does not appear to have sought assistance under the National Disability Insurance Scheme (NDIS). Although this point is made by the Respondent,[44] nothing should be taken from this as the NDIS is not an income-support scheme and until there has been a full assessment of the child’s physical support requirements, an NDIS application may not be appropriate.
[44] Respondent Statement of Facts, Issues and Contentions at [55].
Equally the issue of her carer’s responsibility impacting upon the Applicant’s ability to secure paid employment must be assessed against the fact that in the period from 2010 until the child’s birth in November 2015 it does not appear that the Applicant engaged in any paid employment during that time, although it is unclear if in fact, she was fit for work, other than on a limited basis, following her accident.
Regardless of some of the specific considerations there is no doubt that the Applicant’s daughter suffers from a particularly rare ailment, that she faces a long period of potentially high medical costs and that her welfare is potentially compromised by the current situation of her sole parent.
Financial hardship
The Applicant’s current position and the way in which she has expended the original compensation payment has been dealt with above. However the Tribunal records that the Applicant, in evidence stated that she was now living in a hand-to-mouth existence; that she was often forced to go without food in order to make sure her daughter was fed and that she currently lives rent-free with a friend but this is only pending the outcome of this appeal. If unsuccessful in having the decision under review set aside she says that she would be faced with having to find money to afford rent or that she and her daughter would, in effect, become homeless.
Threats against the Applicant
It is a disturbing aspect of this case that the Applicant is convinced that she is the target of what she describes (in her own words) as “government targeted persecution.” She claims that this is done under a “special protocol” which involves the police and members of the Australian Defence Force. She writes that “…. defence choppers have been circling my house..[45]
[45] Applicant’s Further Submission (dated 13 March 2019) at paragraphs 15 and 14, Tribunal Exhibit [A1].
She claims that her computer(s), bank accounts, and phone have been “hacked” by sources based in Australia and the United States and that at regular intervals her mail is intercepted or stolen by unknown forces who have engendered threats and intimidation against her daughter and herself. She states that the reason for this derives from her role as a whistle-blower regarding various criminal activities and events and that “It has nothing to do with what I have done or alleged to have done but what I know and can expose.”[46]
[46] Ibid at paragraph 15.
She asserts that photographs have been taken of her and her daughter and then uploaded, without consent onto social media with commentary such that, (again in her own words to the Tribunal) “People stop me on the street and say you’ve got to stop reporting this, you’re affecting the stock market.” She has apparently taken action with the child protection authorities in South Australia to prevent the dissemination of photographs and social media posts.
More recently she told the Tribunal that FACS had arranged for various household possessions of hers to be moved from her current (temporary) place of residence and transferred to a storage facility – all arrangements and costs being borne by FACS. However in the process a considerable amount of material was lost/stolen en route and that neither the Police nor FACS were in any way supportive in terms of securing it’s recovery.
The Tribunal has no doubt that the Applicant is sincere in her belief that all these events are occurring and that she is the subject/target of significant harassment and malevolent behaviour which extends to these same sources actively intervening to prevent her employment when she was in a position to apply for a job in recent years.
There is no reason to doubt the Applicant’s statement that she suffers from Post-Traumatic Stress Disorder (PTSD) and high levels of both depression and anxiety. She attributes these directly to the original accident and the traumatic way in which it has impacted upon and compromised her subsequent life.
Other Income Support
Not all social security payments are excluded under the preclusionary regime. The Applicant is in receipt of Family Tax Benefit and Carer Allowance which yield her an income of $634.08 per fortnight.[47] Her attempts to get child support have been unsuccessful as Thailand is not a reciprocal country under any support scheme.[48]
[47] Respondent Statement of Facts, Issues and Contentions at [58].
[48] Section 37 Tribunal documents at [156]
[48] Ibid at [114]-[118].
It is an unfortunate cascade of circumstances that, because the Applicant is unable to access any forms of social security benefits due to the operation of the preclusion period, she is rendered ineligible for housing or accommodation or rent assistance through the New South Wales state welfare agencies such as the Department of Family and Community Services (FACS) or any of their supported community welfare agencies. This has led to the Applicant and her daughter being cast into a precarious position in terms of the threat of homelessness and to both of them having to seek the support of friends for the provision of accommodation with frequent (and undesirable) moves as they “couch-surf”.
The Applicant has some funds (unspecified) in her superannuation account but reports that several attempts to access this, prior to the normal access date of 60 years have been unsuccessful.
Principles applied by the Tribunal – Imprudent expenditure
The Tribunal has been generally unsympathetic to Applicants in relation to issues of excessive or extravagant expenditure of compensation payments and claims touching on preclusionary arrangements.
The Secretary’s representative at the hearing made cogent point that were recipients of compensation payments generally permitted to squander their payments and then revert to the public purse, there would be no disincentive for them, or others, not to do so. The point is well made.
A clear purpose of the legislation is to prevent “double dipping” and the payment of benefits from two different sources in relation to the same time period.[49] Failure to enforce this principle has the potential to undermine the regulatory system and encourage non-compliance.[50]
[49] Groth v Secretary, Department of Social Security [1995] AATA 62 at [41].
[50] Australian Tertiary Academy Pty Ltd v Australian Skills Quality Authority [2018] AATA 4875 at [39].
In Black[51] the Tribunal noted that:
“[49] The Tribunal has consistently considered the reasonableness of the person’s expenditure of compensation payments in determining special circumstances. In particular substantial loans to family members, monies spent on travel and cars, general extravagance have been considered to mitigate against special circumstances.
[50] The Tribunal acknowledges that the applicants are in a difficult financial situation. However, the circumstances leading to such hardship ae not irrelevant. In considering the entirety of the applicant’s circumstances, the tribunal is mindful of the nature of the expenditure, and the context in which that expenditure occurred.”
[51] Black v Secretary, Department of Social Security [1994] AATA 291.
In Alver[52] the Tribunal said:
“49. It is also relevant that I should look at the cause behind the applicant's financial difficulties. Previous decisions of the Tribunal (see Re Ivovic and Director-General of Social Services (above), Re Latour and Secretary, Department of Social Security (1988) 16 ALD 279; Re Secretary, Department of Social Security and Rodgers (Decision No. 7911; 23 April 1992) have tended to take a hard line where someone has, through extravagance or thoughtlessness, brought about their own dilemma.
50. I do consider, however, that some of the payments made by the applicant in December 1990 were unnecessary and perhaps extravagant. As such they could well have been saved and devoted to maintaining his family during the ensuing preclusion period. I include in this group three items. The first is the purchase of a motor car for $8,500.”
[52] Alver v Secretary, Department of Social Services [1992] AATA 333.
Alver was cited by Deputy President Constance in his determination in Sams[53] where he went on to say
“[40] Although I do not suggest that Mrs Sams dwindled the money on extravagant purchases, I am satisfied that had she been more careful in managing her finances then Mrs Sam’s present financial hardship could have been prevented.”
[53] Sams v Secretary, Department of Social Services [2016] AATA 654.
In Groom the Tribunal examined a catalogue of large-scale discretionary expenditure by the Applicant which, the Tribunal found, had led to his being in financial hardship through “circumstances (which) are entirely of his own making and occurred despite him having received legal advice of the preclusion period and its consequences.”[54]
[54] Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 339.
Significant discretionary expenditure on items such as overseas travel have been highlighted in Tribunal decisions such as that in Griffiths.[55]
[55] Re Griffiths and Secretary, Department of Social Security [1992] AATA 123.
Similarly, in Szoke[56] the Tribunal was particularly forthright:
“28. In the ultimate the Respondent's case is that she is now impoverished by her failure to make financial provision for the lump sum preclusion period. That was, on her own case, clearly the result of voluntary actions by the Respondent to dissipate the money received by her in settlement of her compensation claim. She did not experience misfortune, nor did she experience circumstances not envisaged by the legislation.
29. We are satisfied that the Respondent deliberately spent the money without regard to the consequences of her action. Her behaviour in relation to the money was reckless with no regard to the consequences.”
[56] Re Secretary, Department of Family and Community Servicesand Szoke [2001] AATA 353.
The Tribunal accepts, that in this instance, the Applicant may have experienced misfortune and been faced with circumstances not envisaged by the legislation, nevertheless her response to those challenges was within her competence to manage.
In the case of Minda, the Tribunal considered the nature of payments made to the children of the Applicant which had diminished the total sum of the compensation payment still available to the Applicant. It was argued that: “That obligation should be regarded as financial hardship to the applicant otherwise family members may be discouraged to assist in necessitous circumstances.” This argument was specifically rejected by the Tribunal which said: “I do not see it being a function of the public purse in the form of social security payments to in effect reimburse family members contributions made in the fulfilment of family allegiance.”[57]
[57] Minda and Secretary, Department of Social Services [1989] AATA 53 at [25] and [26].
The Tribunal however, has not always been unsympathetic to applicant’s who may have said to have got themselves into financial trouble. In Thomas[58] the Tribunal said:
“[6] The applicant frankly admitted he did not spend his settlement monies wisely.
[15] Mr Thomas has also been reckless, and he has not had regard to the consequences - even after those consequences were made clear to him at the SSAT. He is in a mess of his own making.
[16] That is not the end of the matter, however. Even the foolish and the profligate must be protected in appropriate circumstances through the exercise of the discretion embodied in s 1184. ….. He may be the author of his own misfortune, but I am satisfied the circumstances of that misfortune set him apart from the usual run of cases, and certainly allow his case to be distinguished from cases like Szoke…”
[58] Re Thomas and Secretary, Department of Family and Community Services [2003] AATA 842.
The Tribunal has also considered circumstances in which it was clearly proved that money paid to the applicant by way of DSP had been fraudulently removed from their account by another, unauthorised person, and they had been unable to recover that money, leaving them in considerable financial hardship. In that instance the Tribunal made orders waiving the debt that had accrued to the Commonwealth.[59]
[59] Re Perkich and Secretary, Department of Social Security [1997] 49 ALD 137.
The Applicant also asserts that the Department’s decision demonstrates “no consideration at law as to the fairness to other recipients who are alleged to have managed their finances more prudently and there is overwhelming evidence submitted by the Applicant regarding the advice received by Financial Advisers, the effects of the global financial crisis on the Applicants’ interest earnings”[60] together with the impact of medical costs and the consequences of alleged fraud.
[60] Applicant’s Further Submission (dated 13 March 2019) at paragraph 6, Tribunal Exhibit [A1].
This is not entirely the case, and the impact of the global financial crisis in particular was addressed in the context of determining whether or not “special circumstances” existed in Fischer by Katzmann J:
But it is the circumstances that must be special, not the individual’s experience of them. Circumstances might be special though they apply to more than one person or to a class of persons, provided they are not of universal application. The section does not require the circumstances to be unique to the individual. What if the pensioner failed to declare the value of her investments because the necessary paperwork was destroyed and she was dispossessed of her home as a result of the Victorian bushfires. Thousands of people suffered similar fates. Her situation would not be unique, but it could be “special”. Although all shareholders suffered in the global financial crisis, some suffered more than others. Not all who suffered were pensioners and fewer still were in receipt of a disability support pension. If, as a result of the collapse of global markets, a pensioner’s shares were so reduced in value that once the margin loan was brought into account they were worthless to her, surely that circumstance could be considered “special” within the meaning of the section.[61]
[61] Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 441 at [80].
Principles applied by the Tribunal – Fairness and the Formula
The Applicant herself, in oral submission to the Tribunal raised the question of whether the decision in question was “fair” given that, she alleged, the intention of the Parliament was not to impose unfair burdens on citizens. This issue was considered by the Tribunal in Krebs where it said,
“I find that accordingly, notwithstanding there might be unfairness in the imposition of a compensation preclusion period for Mrs Krebs, the correct and preferable decision is to set aside the decision under review of the former SSAT, and in substitution decide that the charge of $16,711.77 arising as a result of the compensation preclusion period applied to Mrs Krebs by Centrelink was correctly imposed.” [62]
[62] Secretary, Department of Social Services and Krebs [2015] AATA 963 at [40].
The issue of the formula used in making calculations has also been the subject of judicial exposition in terms of deciding if special circumstances exist. In Chamberlain, Keifel J (as she then was) said:
The statutory objectives in utilising the formulae, referred to above, must also be borne in mind. It is not intended that a decision-maker be required to consider contentions about what part of the compensation reflected the economic loss component. That is so whether one has regard to the application of the formulae or the discretion under s 1184. The latter does not alter the objective and must be read in light of it.[63]
[63] Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 at [35]
As a result of Keifel J’s remittal of the case to the tribunal, Senior Member McCabe made it clear that:
The real lesson from Chamberlain and the other authorities seems to be this: once the Tribunal has satisfied itself the statutory formula was correctly applied, the tribunal is not otherwise interested in the formula and whether or not it reflects the “true“ position.[64]
[64] Re Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487 at [25].
Considerations
At the outset the Tribunal identified two questions for resolution – was the Applicant precluded from making an application for parenting payment at the time that she did; and, in the event that she was so precluded, are there any special circumstances which would justify the Tribunal exercising its powers to find that special circumstances exist, to the extent that the original refusal decision should be set aside.
The Tribunal has already found that the decision of the Respondent to establish a preclusion period which lasts until October 2031 was both justified and properly made in accordance with the legislative provisions. It has verified, independently, the calculations made to establish that outcome.
There thus remains the question of whether “special circumstances” have been established such as to enliven the Secretary’s (and hence the Tribunal’s powers as the decision-maker in the shoes of the original decision-maker[65]) powers under s 1184K of the Act to disregard certain compensation payments for the purposes of making a determination as to the preclusion period and hence as to the Applicant’s eligibility for the parenting payment.
[65] Re Costello and Secretary, Department of Transport [1979] 2 ALD 934 at [943].
This in turn, resolves itself into question which is simple to pose, but fraught with difficulties in answering: are the Applicant’s circumstances so distinguishable from people in like circumstances as to make them “special”?
What are those circumstances? It appears to the Tribunal that they are:
1.The Applicant has exhausted her financial reserves of compensation payments in a relatively short period of time;
2.She claims that part of that process of exhaustion was the activity of third parties acting in an illegal and unauthorised fashion;
3.She has a child who is totally dependent upon her who has serious medical conditions and needs care and treatment which is likely to engender substantial cost to her; and
4.She suffers significant financial hardship as a result of the above.
After due consideration, the Tribunal cannot find that any of these circumstances, either individually or in combination meet the threshold of being “special circumstances” for the purposes of the Act. They are certainly not “exceptional and unprecedented in Australia.”
There is no doubt that the Applicant has expended a significant sum of money in a short period of time. She knew that that money was designed to last her for a long time (the preclusion period) and she had an obligation to be a careful shepherd of that resource.
The repayment of the HECS debt and the purchase of a second-hand car (at a price well above what might be paid for even a new small vehicle) were unjustified and imprudent expenses. This car purchase preceded the development of a situation where a car is necessary in order to provide adequate support for her child’s medical requirements. The former need not have been made and the latter presented alternatives.
Trips to Singapore, the United States and Thailand in search of “alternatives” to treatment in Australia’s world-equivalent medical facilities (especially when nothing came of these excursions) were imprudent. So was enrolment in an overseas university (again with nothing coming of it).
It is hard to assess the imprudence or otherwise of gifts made to family members, although once again there is no evidence before the Tribunal that anything came of this intervention as the family members in question appear to be no longer in communication. However, in this instance, the Applicant should be given the benefit of the doubt and the expenditure accepted as genuine and valid.
The costs associated with the relationship between the Applicant and Mr Noothong are hard to assess in dollar terms although there is no doubting their emotional and psychological impact. The Applicant’s failure to pursue remedies available has to be taken into account. It may not be possible to pursue malefactors overseas, but there exist within Australia remedies for recovery of monies where credit cards have been the subject of fraudulent activity. There is no evidence suggesting that the Applicant has availed herself of any of these.
People do make poor personal choices. However, they cannot offload the cost of those choices onto the public purse. They are personally made and have to be personally borne. It is not up to a government agency to determine whether a marriage partner is suitable, caveat emptor.
In relation to each of the Applicant’s items identified by her as special circumstances, it has to be concluded that none of them, on their own, amount to such.
In several respects her expenditure was imprudent and she is not alone in facing the consequences of this. Many people in her situation are also faced with responsibilities for the care of an unwell child, or indeed more than one child. Many people find themselves in financial straits as a result of unwise personal relationship decisions. None of these matters make this Applicant’s case unique.
It may well be that taken together they constitute a perfect storm of difficulties and it is this combination which gives them a unique quality. Again, the Tribunal is not persuaded of that proposition. Such combination of circumstances – poor judgment and parental responsibilities – are not unfamiliar in the social welfare environment.
Obvious difficulties arise considering that the Secretary advises that the Applicant seek support from “alternative avenues of support, including family and friends, until her compensation period expires.”[66] That is another 12 years on the distant horizon.
[66] Respondent Statement of Facts, Issues and Contentions at [60].
The Applicant has made it clear that alternative avenues of support such as housing assistance in NSW are denied to her because of the (indirect) effect of the preclusion period denying her access to qualifying social security benefits. She has given evidence that there are no available avenues of family support and that her friends have been as supportive as possible, but even for them, there are limits.
Above all in this, there is the position of a vulnerable and sick child. She stands to be the victim of the Applicant’s poor decision-making. No child deserves such a sentence.
Were this to be a decision under ss 501 or 501CA of the Migration Act 1958 and the accompanying Ministerial Direction 79 then it would be possible for the Tribunal to prioritise the “best interests of the child” and find in a way which recognised those. However, this is not such a case. It requires deliberation and decision under the provisions of s. 1184K of the Social Security Act.
Under those provisions it is not possible for the Tribunal to find that the current circumstances of the Applicant are such as to define them as “special circumstances.”
Given that the Tribunal has no reason to disagree with the formal calculations made by the Respondent in terms of the length of the preclusion period, despite the contrary argument of the Applicant for lower figures to be used as the calculation of the compensation part, no variation to the resultant date can be justified.
Thus, in relation to the second question posed at the outset by the Tribunal: are there any “special circumstances” which would warrant the express provisions of the Act being disregarded in whole or in part, the answer must be in the negative.
DECISION
The decision under review is affirmed.
I certify that the preceding 122 (one hundred and twenty - two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 29 March 2019
Date(s) of hearing: 14 March 2019 Date final submissions received: 14 March 2019 Applicant: By Phone Solicitors for the Respondent: Ms E Ulrick, Department of Human Services
0
11
0