Brkich and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 866
•29 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 866
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6114
GENERAL ADMINISTRATIVE DIVISION ) Re John Brkich Applicant
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Respondent
DECISION
Tribunal Deputy President G. L. McDonald Date29 September 2008
PlaceSydney
Decision The determination of the Tribunal is:
(i) the decision of the Social Security Appeals Tribunal not to exercise the discretion under s 24 of the Social Security Act 1991 be affirmed; and
(ii) the decision of the Social Security Appeals Tribunal that the debt raised against the applicant for overpayment in the overpayment period be set aside and in place thereof a decision that the debt be waived be substituted.
…(sgd. G L McDonald)...
Deputy President
CATCHWORDS – SOCIAL SECURITY – whether the applicant was a member of a couple – whether overpayment debt should be waived because of the existence of special circumstances – all circumstances must be considered when determining whether applicant member of a couple – decision under review not to exercise discretion affirmed – decision under review not to waive debt set aside.
Administrative Appeals Act 1975 s 37
Social Security Act 1991 ss 24, 1237AAD
Cocks v Centrelink [2000] FCA 1248
Re Hawkins and Secretary, Department of Social Security (1996) 44 ALD 651
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
REASONS FOR DECISION
29 September 2008 Mr. G. L. McDonald, Deputy President 1. The applicant is appealing against a decision of the Social Security Appeals Tribunal (SSAT) which affirmed a decision of a delegate of the respondent that he pay $5,697.14, being a claimed overpayment of his disability support pension for the period 6 November 2003 to 27 June 2006 (the overpayment period). The overpayment is claimed to have arisen as the result of the applicant being paid at the single rate rather than the married rate of the pension during the overpayment period.
2. The applicant and his wife, Ms Sunee Pimaikang, from whom he has been separated from since 12 January 2008, filed statements and gave oral evidence at the hearing, the latter with the help of an interpreter. The respondent called on evidence.
3. The documents prepared for purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1976 (the T documents) were before the Tribunal.
The Issues
4. There are two issues before the Tribunal:
(i)whether, although married, the Tribunal should be satisfied to treat the applicant, for a special reason in this case, not a member of a couple (s 24(2)(d) of the Social Security Act 1991 (the Act)); or
(ii)if not, whether the debt or part of the debt should be waived because of the existence of special circumstances (other than financial hardship alone) (s 1237AAD(b) of the Act).
The Legislation And Departmental Guidelines
5. Section 24 of the Act relevantly reads:
(1) Where:
(a) a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
(2) Where:
(a)a person has a relationship with a person of the opposite sex (the partner); and
(b) the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage‑like relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
6. Section 1237AAD is relevantly as follows:
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.
The Evidence
7. There is little dispute between the parties and the Tribunal is satisfied as to the following facts:
(i)The applicant came to Australia from Bosnia in 1968 aged 21 years. He was then married and has three children from that marriage. He and his first wife divorced in 1983.
(ii)Following a back injury he has been receiving a disability support pension since 13 December 1999.
(iii)The applicant met his second wife, Ms Sunee Pimaikang, who was born in Thailand but at the time lived in Hong Kong, when she visited Australia in 2002.
(iv)The applicant travelled to Hong Kong in late 2003. The applicant maintains that he did not anticipate being married during this visit, but that a wedding with Ms Pimaikang was arranged and occurred on 6 November 2003. Ms Pimaikang said that while she paid for the applicant’s airfare to Hong Kong her cousin made the wedding arrangements. The applicant returned to Australia immediately following the wedding without Ms Pimaikang.
(v)Shortly after obtaining a permanent spousal visa Ms Pimaikang applied to be paid payment of a Newstart Allowance on 11 December 2006.
(vi)The applicant and Ms Pimaikang separated on 12 January 2008.
8. The following evidence is less clear:
(i)Prior to departing Australia the applicant said he had contacted an office of the respondent asking what he should do if he married. He said that he was advised to bring his wife into a Centrelink office when she arrived in Australia. He took this to mean he did not have to notify the Department of his marriage. The Department have no record of that call despite calls being monitored.
(ii)The respondent‘s records show that the applicant was advised in writing in 2000 that he was obliged to notify Centrelink if he remarried.[1] The applicant maintained that he did not read Departmental correspondence.
(iii)Ms Pimaikang visited Australia on two occasions after her marriage to the applicant during the overpayment period, the first from 17 March to 6 May 2005 and the second from 20 August to 28 November 2005. On each occasion she entered Australia on a temporary spousal visa and stayed with the applicant at his residence.
(iv)Subsequent to her 2005 visits to Australia, Ms Pimaikang returned for a time to be with her son and mother in Thailand. She did not work in Thailand and stayed with her relatives. Ms Pimaikang said that she maintained a bank account in Thailand which had credit of approximately Aus $200. In July 2006 Ms Pimaikang returned to Australia.
(v)In July 2006 Ms Pimaikang was granted an Australian permanent spousal visa.
(vi)Prior to her marriage to the applicant Ms Pimaikang worked full-time as a housekeeper in Hong Kong, part of the arrangement being that the employer provided her with accommodation at the house she was responsible for keeping. After her marriage it was not, according to her evidence, possible for her to continue working and living at her employer’s residence. She moved to Hong Kong to live with a cousin. During the time Ms Pimaikang lived with her cousin she claimed to have sold telephone cards and occasionally undertaken house work. She said that she had hardly worked since she had become married to the applicant and had not worked while she was in Australia.
(vii)Ms Pimaikang’s evidence as to the financial arrangements between her and her husband while she was in Australia in 2005 was unclear. At one point she maintained that they did not pool their money and at another that they sometimes mixed their finances for special occasions. The applicant claimed that they maintained separate financial arrangements.
(viii)A statement, signed by Ms Pimaikang and addressed to the respondent, is dated 11 December 2006. In the statement, which was written for her by the applicant, mention is made that her husband supported her in the past but that his income alone was insufficient.[2]
(ix)The applicant maintained that until his wife was granted a permanent spousal visa it was his understanding that she had no right to claim Australian social security payments.
(x)In his application to have the overpayment decision reconsidered the applicant claimed that he did not knowingly benefit from marrying overseas. Had he realised that he was required to he would have declared his marriage to the respondent.[3]
[1] T documents, T4, page 19.
[2] T documents, T7.
[3] T documents, T18.
The Tribunal Determination
9. There was much in the evidence of the applicant and his wife which was difficult to reconcile. One area of difficulty was that the applicant maintained he was advised to bring his wife into a Centrelink office when she arrived in Australia but when she came on 17 March 2005 he did not do so. He explained his reason for not doing so by maintaining that he did not think he was required to notify the Department because his wife did not have a permanent spousal visa. As the result and since he thought she could not claim social security payments there was no point in him or her notifying the Department of her arrival at that time. The applicant’s wife, while she initially claimed not to have worked after her marriage to the applicant, later modified that evidence to say that she did some work in Hong Kong. Further, while she initially maintained that when living with the applicant in Australia in 2005 she and her husband maintained separate finances this was later modified by her saying that for special occasions they pooled their funds.
10. However, despite the difficulties associated with aspects of their evidence, the Tribunal is satisfied that after their marriage on 6 November 2003 until the applicant’s wife arrived in Australia on 17 March 2005 the applicant did not provide any financial support to his wife and she provided none to the applicant. During this period of time Ms Pimaikang did some work of a temporary and minor nature. During his wife’s two visits in 2005 the Tribunal is satisfied that it is more probable than not that the couple shared finances. Between his wife’s absence from Australia from November 2005 until her return in July 2006 the Tribunal is satisfied that it is more likely than not that the couple again did not provide financial support for each other and did not pool their resources. While Ms Pimaikang had a bank account in Thailand it had credit of a minimal amount.
11. The respondent argues that it is not the fact of or otherwise of the provision of financial support between a couple which is relevant, but, rather it is the opportunity to pool their financial resources which is or ought to be determinative in the exercise of the discretion contained in s 24 of the Act. In this case it is submitted the opportunity existed for them to pool their resources but they chose not to do so.
12. In Re Hawkins and Secretary, Department of Social Security[4] the Tribunal exercised the direction to reinstate payment of a disability support pension at the single rate to a married man, in circumstances where his wife, although living with him, was unable to work or claim social security benefits because of visa restrictions and because she was impecunious. The two factors which influenced the decision were the ‘extreme’ impecuniosity of the wife and her inability to engage in employment because she was visiting Australia on a tourist visa and was therefore unable to work.[5]
[4] (1996) 44 ALD 651.
[5] Per Deputy President Blow at 654.
13. In Cocks v Centrelink[6] the applicant was aged 70 years and in receipt of an age pension when he married a woman who lived in the Philippines. They had a child who lived with the mother. Upon learning of his marriage, the respondent reduced payment of his pension to the married rate. He was only able to afford to spend six months of the year with his wife in the Philippines. The applicant had sold assets and borrowed money to permit him to travel to be with his wife. He suffered from several medical conditions, including diabetes, and his dietary requirements made it more expensive for him to live in the Philippines. The applicant was unable to afford to bring his wife and child to live in Australia. The applicant’s wife did not work. The court found that the Administrative Appeals Tribunal had erred in law by not examining the applicant’s personal circumstances when he was living in the Philippines with an impecunious wife who had no access to Australian social security benefits.
[6] [2000] FCA 1248.
14. The Tribunal agrees with the respondent’s submission that the mere absence of pooling resources is insufficient by itself to constitute special circumstances.
15. The cases above make it plain that all of the circumstances of the couple must be considered when considering the exercise of the discretion. In this case the applicant’s wife did not work in a full-time capacity after her marriage to the applicant. She resided with relatives while in Hong Kong. Any work she undertook after marrying the applicant was low level and was unlikely to have been sufficient to maintain her without the assistance rendered by her relations. However, as appears from the next paragraph of these reasons, Ms Pimaikang had some savings so she could not be described as being impecunious. At the same time it is axiomatic that the applicant was still living alone in Australia and would have had insufficient resources to contribute to his wife’s maintenance.
16. It seems likely that while Ms Pimaikang was living with the applicant in Australia that, contrary to the applicant’s understanding, she may have been entitled to receive social security benefits. It seems that Ms Pimaikang must have had some savings at the time she came to Australia in 2005 or she would not have been able to claim that she and the applicant maintained separate finances pooling only for special occasions. Further in her statement Ms Pimaikang maintained that throughout the overpayment period that she not only supported herself, but also her son and daughter at university in Thailand and paid for home help for her elderly mother who also lived in Thailand.[7] The fact that Ms Pimaikang applied to receive Newstart Allowance on 11 December 2006 is at least indicative that she thought her finances were low or that they had, by then, been used. That, however, is not a relevant factor given by then the overpayment period had expired.
[7] Exhibit A2, paragraph 10.
17. The above evidence leaves the Tribunal satisfied that Ms Pimaikang had financial resources of her own and was not dependent on the applicant to assist with her support. There was therefore a capacity for the applicant and Ms Pimaikang to pool their finances. Ms Pimaikang could not be described as impecunious. The fact that the couple lived apart for most of the overpayment period is not itself a ‘special circumstance’. The reason they chose to do so is not apparent, other than it seems the reason is associated with the applicant’s apparently misguided notion that his wife could not remain with him in Australia or be entitled to social security support until she had been granted permanent residency. There is insufficient compelling evidence which would persuade the Tribunal that the discretion contained in s 24 of the Act should exercised to treat the applicant, although married, as a single person for any of the overpayment period. It follows that this part of the decision of the SSAT should be affirmed.
18. The consideration of the exercise of the discretion contained in s 1237AAD raises different considerations from those relating to the exercise of the discretion in s 24 of the Act. The discretion is exercisable only in the circumstances set out in s 1237AAD(a)-(c) and is not as is the case in s 24 exercisable at large. The Tribunal is satisfied on the evidence that, despite the Department having no record of him telephoning, that the applicant made a general enquiry, about the requirements relating to notification of marriage, to the Department prior to his departure for Hong Kong in 2003. It seems unlikely that the applicant would simply have been told that it was only necessary to bring his bride into a Departmental office, upon their return to Australia. There may have been discussion about bringing his bride into a Departmental office but the Tribunal doubts that that was the only advice given.
19. The Tribunal is satisfied that it is more likely that the applicant mistook, perhaps because of language difficulties, the requirements which were conveyed to him in the telephone discussion he had with the Department. It was demonstrated that the applicant did not have a sound understanding of either the immigration or social security requirements. That, however, is different from finding that he knowingly failed or omitted to comply with the requirements of the Act. That he did not read the information sent to him concerning the requirements is unfortunate but, because he did not, does not result in him being assumed to know of the requirements. The Tribunal is satisfied that the applicant (or Ms Pimaikang) did not knowingly fail or omit to comply with a provision of the Act.
20. The circumstances in which the applicant finds himself are not related solely to financial hardship. As stated above he misunderstood what was required of him and he misunderstood the immigration situation of his wife and wrongly thought that she could not have applied to be considered for the payment of social security benefits for the whole of the overpayment period. In Secretary, Department of Social Security v Hales French J observed:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special…
…
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words …[8]
[8] (1998) 82 FCR 154 at 162.
The Tribunal therefore determines the combination of the applicant’s misunderstandings are sufficient to constitute ‘special circumstances’. Given the nature of the benefit received by the applicant (disability support) and that he must make do alone it seems to the Tribunal that it is more appropriate that the debt be waived rather than written off.[9]
[9] s 1237AAD(c).
21. In the unlikely event that the applicant returns to work at some time in the future then consideration could be given to proceed with recovery. For those reasons this decision of the SSAT should be set aside and in lieu thereof a decision substituted that the debt raised against the applicant relating to the overpayment in the overpayment period be waived.
22. The determination of the Tribunal is:
(i)the decision of the SSAT not to exercise the discretion under s 24 of the Act be affirmed; and
(ii)the decision of the SSAT that the debt raised against the applicant for overpayment in the overpayment period be set aside and in place thereof a decision that the debt be waived be substituted.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President G L McDonald
Signed: .........(sgd G Horzitski).......................
Associate Grace HorzitskiDate of Hearing 11 September 2008
Date of Decision 29 September 2008Solicitor for the Applicant Mr S Cosgrove
Legal Aid Commission
Solicitor for the Respondent Ms H Schuster
Centrelink Legal Services
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