BOZO CUBRILO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 424

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 424

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0530

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BOZO CUBRILO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date12 June 2009

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY - portability of disability support pension - applicant departed Australia on 8 May 2006 and did not return to Australia until 8 August 2008 - applicant did not notify Centrelink of his proposed departure or that he was absent from Australia - applicant continued to receive payments of disability support pension until 27 May 2008 - applicant not terminally ill - applicant's absence from Australia not intended to be permanent - applicant's portability period not an unlimited period - applicant not unable to return to Australia at any time because of serious illness of family member - no relevant ground for extending applicant's portability period - applicant's portability period is 13 weeks commencing on 8 May 2006 - applicant overpaid disability support pension in period from 7 August 2006 to 27 May 2008 - amount of overpayment is debt due by applicant to Commonwealth - recovery of debt - no administrative error - no special circumstances - debt cannot be waived - no ground for writing off debt - debt recoverable in full - decision under review affirmed

Social Security Act 1991 (Cth), s 1217, s 1218AA(1), s 1218C, s 1223, s 1236, s 1237A(1) and s1237AAD

Social Security (Administration) Act 1999 (Cth), s 68 and s 72

REASONS FOR DECISION

12 June 2009 Deputy President S D Hotop

Introduction

1.      Since 1982 Bozo Cubrilo (“the applicant”) has been in receipt of, initially, invalid pension under the Social Security Act 1947 (Cth) (“the 1947 Act”) and, subsequently, disability support pension under the Social Security Act 1991 (Cth) (“the Act”).

2.      The applicant departed Australia on 8 May 2006 and did not return to Australia until 8 August 2008.

3.      The applicant continued to receive payments of disability support pension during his absence from Australia until 27 May 2008.

4.      On 23 July 2008 a Centrelink officer decided that, because the applicant was entitled to receive disability support pension for a maximum of 13 weeks after he departed Australia, he had received an overpayment of disability support pension, for the period from 7 August 2006 to 27 May 2008, totalling $20,326.68 and that that amount was a debt due by him to the Commonwealth and should be recovered from him.

5.      That decision was affirmed by a Centrelink authorised review officer on 26 September 2008 and that officer’s decision was, in turn, affirmed by the Social Security Appeals Tribunal (“SSAT”) on 14 January 2009.

6.      On 6 February 2009 the applicant applied to this Tribunal for review of the decision of the SSAT.

The Issues and the Tribunal’s Determination

7.      The issues for the Tribunal’s determination are:

·whether the applicant was entitled under the Act to receive disability support pension in the period from 7 August 2006 to 27 May 2008;

·if he was not so entitled and was overpaid disability support pension in the abovementioned period, whether the resulting debt due by him to the Commonwealth should be recovered from him.

8.      For the reasons which follow, the Tribunal has determined that:

·the applicant was not entitled under the Act to receive disability support pension in the period from 7 August 2006 to 27 May 2008;

·the amount of disability support pension paid to the applicant in the period from 7 August 2006 to 27 May 2008 constitutes a debt due by him to the Commonwealth and that debt should be recovered in full from him.

The Evidence

9.      The evidence before the Tribunal comprised:

·the “T Documents” (T1-T15, pp 1-133) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·           Exhibits R1 and R2 tendered by the respondent;

·the oral evidence of the applicant (which was given through an interpreter in the Serbian language).

The Factual Background

10.     The following background factual information is contained in the T Documents and exhibits.

11.     The applicant, who had been in receipt of invalid pension under the 1947 Act from March 1982, departed Australia on 1 December 1985 and resided in Yugoslavia before returning to Australia on 2 January 1989.  Before departing Australia the applicant attended an office of the (former) Department of Social Security (“DSS”) for the purpose of applying for the payment of invalid pension to him during his absence from Australia.

12.     The applicant’s invalid pension was cancelled by the DSS on 12 December 1985 on the ground that he had failed to contact the London office of the DSS after his departure from Australia in order to arrange for payments of his invalid pension to be made to him at his overseas address, notwithstanding that he had been advised by the DSS, by a letter dated 19 November 1985, that he was required to do so.  The decision of the DSS to cancel the applicant’s invalid pension was, however, set aside by the SSAT on 8 May 1989 on the basis that the applicant, by reason of his “basic literacy skills” and the failure of the DSS to explain the relevant requirements to him through an interpreter, did not understand that he was required to make the abovementioned contact with the London office of the DSS. (T4)

13.     A DSS file note dated 29 May 1989 states as follows:

“A Social Worker rang about [the applicant] going overseas sometime in June.  She said there was a mix up last time he went and to be sure there is an interpreter present at the pre-departure I/V this time.” (T5)

14.     The applicant completed a DSS “Application for Payment of Pension Overseas” form on 1 June 1989 and lodged it with the DSS on 2 June 1989.  In that form the applicant advised that his departure date was “17/6/89”, that he would be absent from Australia for “3 to 4 months” and that his main reason for leaving Australia was “holiday”.  He also provided an overseas contact address in Yugoslavia. (T6)

15.     A DSS “Pre-Departure Interview Record” form, signed by the applicant and dated 7 June 1989, contains (inter alia) the following statements:

“I understand that I must notify the department within 14 days of any changes in my circumstances.  I will notify when I return to Australia.  The trip was financed from arrears money received from the Department of Social Security.”

“The information has been read by / to me and is true and correct. 

The information has been interpreted from the Croatian language to English by: [signature of interpreter].” (T7, p 32)

16.     The applicant departed Australia on 11 June 1989 and he returned to Australia on 4 March 1990 (T13, p 68).  Under the provisions of the 1947 Act, the applicant was entitled to receive invalid pension for a maximum period of 12 months while he was absent from Australia, and he continued to receive payments of invalid pension for the whole of the period from 11 June 1989 to 4 March 1990.

17.     The applicant departed Australia on 19 July 1995 and he returned to Australia on 21 September 1995 (T13, p 67).  The applicant did not notify the DSS about that departure from Australia, and he continued to receive payments of disability support pension during that period of absence from Australia.

18.     Centrelink sent an “information notice… under the social security law” dated 29 January 2003 to the applicant, concerning his disability support pension, notifying him of (inter alia) the following:

“ Going Outside Australia

If you plan to travel outside Australia, you must let us know within 14 days of making the decision to go.  Please check with us to make sure of your entitlements during your absence.  You may not be entitled to your pension or some of the additional payments for the period you are away. …” (Exhibit R1)

A notice in the same terms, dated 10 March 2003, was also sent to the applicant by Centrelink (Exhibit R2).

19. The applicant next departed Australia on 29 June 2004 and he returned to Australia on 4 November 2004 (T13, p 66). The applicant failed to notify Centrelink about that departure from Australia. Under the relevant provisions of the Act (as then in force), disability support pension was generally payable during a person’s absence from Australia for a maximum period of 26 weeks, and the applicant continued to receive payments of disability support pension for the duration of his absence from Australia from 29 June 2004 to 4 November 2004.

20.     The applicant again departed Australia on 8 May 2006 (T13, p 66).

21.     Centrelink sent an “information notice … under social security law” dated 11 July 2006 to the applicant at his address in Western Australia, concerning his disability support pension, notifying him of (inter alia) the following:

“ Going Outside Australia

If you or a dependent family member plans to travel outside Australia, you must let us know within 14 days of making the decision to go.  Please check with us to make sure of your entitlements during your absence.  You may not be entitled to some or all of your payments for the period you are away.  If you do not advise Centrelink of your departure, your payment may be stopped while you are overseas….” (T14, pp 82-85)

22.     Centrelink sent an “information notice … under social security law” dated 18 April 2007 to the applicant at his address in Western Australia, concerning his disability support pension, notifying him of (inter alia) the following:

“ Going Outside Australia

If you decide to leave Australia, even for a holiday or short visit, you must tell us within 14 days of making the decision so we can check to make sure you are eligible to receive your payment while you are away.  If you do not tell us, your payment may be stopped…” (T14, pp 86-89)

Similar notices dated 24 July 2007, 16 October 2007, 7 January 2008 and 31 March 2008 were also sent by Centrelink to the applicant at his address in Western Australia (T14, pp 90-93, 96-99, 105-108, 110-113).

23.     A Centrelink file document, dated 4 June 2008, records that on that date:

·a Centrelink officer called the applicant’s telephone number in Western Australia;

·the call was answered by a person who identified himself as the applicant’s son and informed the officer that the applicant and his wife were currently in Montenegro and gave the officer a contact telephone number in Montenegro;

·the officer called the Montenegro telephone number and the call was answered by Mrs Cubrilo (the applicant’s wife);

·the officer explained to Mrs Cubrilo that they were “required to tell Centrelink if they go overseas and neither did”, and that the applicant’s disability support pension was payable for only 13 weeks while he was outside Australia. (T9)

24.     The applicant returned to Australia on 8 August 2008 (T13, p 66).

The Applicant’s Evidence

25.     The applicant’s evidence-in-chief may be summarised as follows:

·he departed Australia on 8 May 2006 and went to Montenegro and did not return to Australia until 8 August 2008;

·he went to Montenegro not just for a holiday but because “special spa treatment” was available there for legs and feet;

·he suffered a break in the back of his foot about 3½ years ago and, after receiving hospital treatment in Perth for about 6 months, he decided to go to Montenegro for spa treatment for his foot because he had previously had such treatment there for his back in 1984/1985;

·after arriving in Montenegro he was “forced to extend” his stay because his mother-in-law became ill;

·his mother-in-law, who is 88-89 years old, had a problem with her legs and was unable to go out and do shopping and the like, and his wife looked after her;

·in August 2008 he noticed that his mother-in-law was “a bit better” and he decided to return to Australia because he has family here;

·his mother-in-law is now living on her own again;

·he was unaware that he had to tell Centrelink that he was going overseas and that he would continue to receive his disability support pension for only 13 weeks while he was overseas because “nobody told” him;

·if he had been “fully aware” that he had to notify Centrelink, he would have done so;

·even if he had been aware of the 13-week limit for payment of his pension he would probably still have stayed away for as long as he did because he was not satisfied with the medical treatment he had been receiving in Perth and the doctors in Montenegro had advised him to stay longer, and because his mother-in-law was very ill;

·he does not have any money;

·Centrelink is presently deducting $60 per fortnight from his pension payments and he is “feeling the pinch” but if he feels he cannot manage financially he can always go back to Centrelink and explain the situation to them.

26.     In cross-examination the applicant gave the following evidence:

·in 1985 he and his family left Australia and went to Yugoslavia together with the possibility that they would stay there and not return to Australia;

·he returned to Australia by himself in 1988 and in 1989 he went to Centrelink to tell them that he was going to bring his family back to Australia;

·he signed the “Application for Payment of Pension Overseas” form dated 1 June 1989 and the “Pre-Departure Interview Record” document dated 7 June 1989 but he cannot recall the contents of that document;

·he could not understand what was in the letters from Centrelink dated 29 January 2003 and 10 March 2003 (Exhibits R1 and R2) but he did not ask Centrelink to explain them to him because he “did not think it was of any importance” and he “did not take much notice”;

·it is “different” if he receives bills, letters from the local Council and the like, but these were “just Centrelink letters”;

·he filled in the application form for payment of his pension overseas in June 1989 because he was told to do so by his local Centrelink office;

·he did not make a similar application in 2006 because no-one told him to do so and because he did not think he was going to be away “for more than a couple of months”, and he did not know that he had to tell Centrelink;

·he can manage financially with Centrelink deducting $60 per fortnight from his pension payments, although it is “difficult when bills come in”;

·his wife does part-time cleaning work;

·he has no major health problems although some days he cannot manage because of his foot/leg and back problems and when the pain is so severe that he is crying he takes painkillers;

·his medication is available under the Pharmaceutical Benefits Scheme;

·he does not really have any other expenses as he does not “go out”.

The Relevant Legislation

27. Pursuant to s 1217 of the Act (as in force at all material times), a person’s “maximum portability period” for disability support pension – that is, the maximum period for which disability support pension is payable to a qualified person during their absence from Australia – is 13 weeks, beginning at the commencement of the period of absence.

28. Section 1218AA(1) of the Act, however, provides:

“ The Secretary may determine that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances… exist:

(a)the person is severely disabled (see subsection 23(4B)); and

(b)the person is receiving disability support pension; and

(c)the person is terminally ill; and

(d)the person’s absence from Australia is or will be permanent; and

(e)the purpose of the person’s absence is:

(i)to be with or near a family member of the person (see subsection 23(14)); or

(ii)   to return to the person’s country of origin.”

29. Section 1218C of the Act, furthermore, provides:

“ 1218C(1)      The Secretary may extend the person’s portability period for the payment if the Secretary is satisfied that the person is unable to return to Australia because of any of the following events:

(a)a serious accident involving the person or a family member of the person;

(b)       a serious illness of the person or a family member of the person;

(c)       the hospitalisation of the person or a family member of the person;

(d)       the death of a family member of the person;

(e)the person’s involvement in custody proceedings in the country in which the person is located;

(f)a legal requirement for the person to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person);

(g)robbery or serious crime committed against the person or a family member of the person;

(h)       a natural disaster in the country in which the person is located;

(i)        political or social unrest in the country in which the person is located;

(j)        industrial action in the country in which the person is located;

(k)       a war in the country in which the person is located.

1218C(2)      The Secretary must not extend the person’s portability period under subsection (1) unless:

(a)the event occurred or began during the period of absence; and

(b)if the event is political or social unrest, industrial action or war – the person is not willingly involved in, or willingly participating in the event.

…”

30.     The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) relevantly provides:

“ 68(1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or seniors concession allowance) is being paid.

68(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:

(a)       inform the Department if:

(i)    a specified event or change of circumstances occurs; or

(ii)the person becomes aware that a specified event or change of circumstances is likely to occur;

…”

“72(1) A notice under this Subdivision:

(a)must be given in writing; and

(b)may be given personally or by post or in any other manner approved by the Secretary; and

(c) must specify how the person is to give the information or statement to the Department; and

(d)must specify:

(i)in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period – the date by which the person is to give each statement to the Department; or

(ii)in any other case – the period within which the person is to give the information or statement to the Department; and

(e)must specify that the notice is an information notice given under the social security law.

72(2) A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).

…”

Analysis

Was the applicant entitled under the Act to receive disability support pension in the period from 7 August 2006 to 27 May 2008?

31.     It is common ground that the applicant:

·           did not notify Centrelink that he was going overseas in May 2006;

·           was absent from Australia from 8 May 2006 to 8 August 2008;

·received regular fortnightly payments of disability support pension from 8 May 2006 to 27 May 2008;

·did not notify Centrelink at any time in the period from 8 May 2006 to 27 May 2008 that he was then outside Australia.

32. There is, furthermore, no dispute that s 1218AA(1) of the Act is inapplicable in the applicant’s case because the circumstances specified in paras (c) and (d), at the very least, do not exist in his case because:

·he was not, at any material time, “terminally ill”, within the meaning of para (c); and

·his absence from Australia was not, and was not at any material time intended to be, “permanent”, for the purposes of para (d).

33. As regards the possible application of s 1218C of the Act in the applicant’s case, there is no evidence before the Tribunal – and no suggestion by the applicant – that any of the events referred to in paras (a) and (c)–(k) of s 1218C(1) occurred in his case. The question is, however, whether, having regard to the applicant’s evidence regarding the health of his mother-in-law during the period of his absence from Australia, the Tribunal is satisfied that he was “unable to return to Australia because of… a serious illness of… a family member…”, within the meaning of para (b) of s 1218C(1).

34. The Tribunal is not satisfied, on the basis of the evidence before it, that the applicant’s mother-in-law had a “serious illness”, within the meaning of s 1218C(1)(b) of the Act, during the period in which the applicant was in Montenegro after 8 May 2006. The applicant merely referred generally to his mother-in-law’s old age and her leg problems and asserted that he had been “forced to extend” his stay in Montenegro because of her illness, but he did not provide any medical evidence regarding the state of her health at that time, let alone any medical evidence confirming that she was suffering from an illness which was sufficiently serious that he was “unable to return to Australia” by reason thereof, within the meaning of s 1218C(1) of the Act. The Tribunal notes, furthermore, the SSAT’s reference to this matter in its Reasons for Decision, namely:

“ 22. The Tribunal asked Mr Cubrilo whether a family member had suffered a serious illness which had prevented him from returning to Australia.  He said there were no circumstances of this nature.” (T2, p7)

35. The Tribunal is not satisfied that the applicant was, for any period after 8 May 2006, “unable to return to Australia” because of any of the events referred to in paras (a)–(k) of s 1218C(1) of the Act. It follows that the portability period for payment of the applicant’s disability support pension cannot be extended pursuant to that subsection.

36. The Tribunal concludes, therefore, that, in accordance with s 1217 of the Act, the portability period for the payment of the applicant’s disability support pension is 13 weeks commencing on 8 May 2006 (when the applicant departed Australia) and ending on 6 August 2006 (when the applicant was still absent from Australia), and that the applicant was not entitled under the Act to receive disability support pension in the period from 7 August 2006 to 27 May 2008 (when the applicant continued to be absent from Australia).

The applicant owes a debt to the Commonwealth

37. If follows from the Tribunal’s conclusion in the preceding paragraph that the applicant was overpaid disability support pension in the period from 7 August 2006 to 27 May 2008, and that, pursuant to s 1223 of the Act, a debt, in the total amount of that overpayment, is due by the applicant to the Commonwealth. The Tribunal so finds.

Should the debt due by the applicant to the Commonwealth be recovered from him?

38. Part 5.4 of the Act contains provisions dealing with the non-recovery of debts which are recoverable by the Commonwealth under that Act. Part 5.4 of the Act contains the following relevant provisions:

“1236(1)     Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)the debt is irrecoverable at law; or

(b)the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

1236(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

(a)the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or

(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

1236(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

(a)     deductions from the debtor’s social security payment; or

(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

(c)setting off under section 84A of that Act;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

…”

“1237A(1)    Subject to subsection (1A), 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.

Note:     Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

…”

“1237AAD   The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)     making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.”

Waiver – administrative error

39. As regards waiver of the applicant’s debt pursuant to s 1237A(1) of the Act, the Tribunal is not satisfied that any part of that debt is attributable to an administrative error made by the Commonwealth. Rather, the Tribunal is satisfied that no relevant administrative error was made by the Commonwealth – in particular, Centrelink – and that the whole of the applicant’s debt is attributable to his failure to notify Centrelink that he was going overseas in May 2006 or, at any time in the period from 8 May 2006 to 27 May 2008, that he was then absent from Australia. Accordingly, the Commonwealth’s right to recover the debt due by the applicant to it cannot be waived pursuant to s 1237A(1) of the Act.

Waiver – special circumstances

40. As regards waiver of the applicant’s debt pursuant to s 1237AAD of the Act, the exercise of the discretionary power conferred by that section is conditional on the Tribunal’s being satisfied that paras (a), (b) and (c) of that section are fulfilled.

41. Although the respondent submitted that para (a) of s 1237AAD was not fulfilled in the applicant’s case in that, having had previous experience with the DSS in June 1989 regarding the requirement to provide information regarding overseas visits and having received notices from Centrelink in January and March 2003 notifying him of the requirement to advise regarding overseas visits, the applicant’s failure to notify Centrelink of his overseas visit commencing in May 2006 constituted a knowing failure or omission by him to comply with s 68 of the Administration Act from which the relevant debt resulted. Having regard to the whole of the evidence (including the applicant’s oral evidence), the Tribunal is satisfied that the applicant’s failure to notify Centrelink of his overseas visit commencing in May 2006 involved at least a negligent, and arguably a reckless, disregard by him of his obligation to keep Centrelink relevantly informed pursuant to s 68 of Administration Act, but the Tribunal is not satisfied that his failure so to inform Centrelink constituted a knowing failure or omission by him to comply with that provision. Accordingly, the Tribunal is not satisfied that para (a) of s 1237AAD of the Act is not fulfilled in the applicant’s case.

42. The Tribunal, on the other hand, is not satisfied that para (b) of s 1237AAD of the Act is fulfilled in the applicant’s case. Having regard to the whole of the evidence (including the applicant’s oral evidence) and to the Tribunal’s assessment of the applicant’s attitude towards his statutory obligation to keep Centrelink relevantly informed (as described in paragraph 41 above), the Tribunal is not satisfied that there are any special circumstances in the applicant’s case which would make it unjust, unreasonable or otherwise inappropriate for the Commonwealth to recover the full amount of the debt due by the applicant to it. Nor is the Tribunal satisfied that there are any special circumstances in the applicant’s case which would otherwise make it desirable to waive the Commonwealth’s right fully to recover that debt from him.

43. Accordingly, the Commonwealth’s right to recover the debt due by the applicant to it cannot be waived pursuant to s 1237AAD of the Act.

Write off

44. The discretionary power to write off a debt under s 1236(1) of the Act is expressly conditioned on the existence of any one of the alternative circumstances specified in paras (a) – (d) of s 1236(1A) of the Act. There is no suggestion that either the condition specified in para (c) or the condition specified in para (d) of s 1236(1A) of the Act is met in the applicant’s case. As regards the conditions specified in paras (a) and (b) of s 1236(1A), it is common ground that the applicant’s debt is presently being recovered by means of deductions, at the rate of $60 per fortnight, from his ongoing disability support pension payments, and, having regard to the applicant’s own evidence, the Tribunal is not satisfied that recovery of the debt by those means is resulting, or would result, in the applicant’s being “in severe financial hardship”, within the meaning of s 1236 (1C) of the Act. Accordingly, the Tribunal, having regard to subss (1B) and (1C) of s 1236, is not satisfied that either the condition specified in para (a), or the condition specified in para (b), of s 1236 (1A) is met in the applicant’s case. It follows that the debt due by the applicant to the Commonwealth cannot be written off pursuant to s 1236(1) of the Act.

Conclusion

45. It appears to the Tribunal that none of the other non-recovery provisions in Pt 5.4 of the Act is applicable in the applicant’s case. The Tribunal concludes, therefore, that the debt due by the applicant to the Commonwealth is recoverable in full from him by the Commonwealth in accordance with Pt 5.3 of the Act.

Decision

46.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  27 May 2009
Date of Decision  12 June 2009
Representative of the Applicant         Self-represented

Representative for the Respondent          Ms M Conlon
  Legal Services Branch, Centrelink