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

[2020] AATA 4974

Chamma; Secretary, Department of Social Services and (Social services second review) [2020] AATA 4974 (10 December 2020)

Division:GENERAL DIVISION

File Number(s):      2018/5672; 2018/5673; 2018/5674; 2018/5675; 2018/5676

Re:Secretary, Department of Social Services

APPLICANT

AndKhader Chamma

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:10 December 2020

Place:Sydney

The decision under review is affirmed.

................................[sgd]................................

Chris Puplick AM, Senior Member

CATCHWORDS

SOCIAL SECURITY ­– Carer Payment – Parenting Payment – Family Tax Benefit – Child Care Rebate – Child Care Benefit – rate of payment – whether applicant was a member of a couple – legally married – financial aspects of relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – whether living separately and apart on a permanent or indefinite basis – whether there is a debt – whether debt should be recovered – waiver of debt in special circumstances – waiver of debt arising from sole administrative error – writing off debt – reviewable decision is affirmed

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 71, 95, 97, 101

Criminal Code Act 1995 (Cth) s 136.1

Migration Act 1958 (Cth) s 234

Migration Regulations 1994 (Cth) sch 1

Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth)

Social Security Act 1991 (Cth) ss 4, 1223, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) ss 192, 196

Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (Cth)

CASES

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Beverley Sybil Anderson and Secretary, Department of Social Security [1993] AATA 172

Bozdag and Secretary, Department of Social Services (Social services second review) [2016] AATA 765

CWJT and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 910

Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114

Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415

Dimov and Secretary, Department of Family and Community Services [2005] AATA 912

Dranichnikov v Centrelink [2003] FCAFC 133

Fox v Percy [2003] HCA 22

Fredrick and Secretary, Department of Social Services (Social services second review) [2016] AATA 475

Gestmin SGPS S.A. and Credit Suisse (UK) Limited [2013] EWHC 3560

Hogan and Secretary, Department of Employment, Education and Workplace Relations [2011] AATA 162

Holmes and Secretary, Department of Social Services [1987] AATA 896

Jess v Scott (1986) 70 ALR 185, 193

Kodari Securities Pty Ltd v Tran [2020] FCAFC 164

Lynam v Director-General of Social Security (1983) 52 ALR 128

Melvin v Secretary, Department of Social Security [2016] FCA 375

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735

Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404

Regan v Walsh [2014] FCCA 2535

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331

Re Katherine Deirdre Peck (Napier) and Secretary, Department of Social Security [1992] AATA 336

Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050

Secretary, Department of Family and Community Services and 'VBH' and 'VBG' [2006] AATA 1

Secretary, Department of Social Security and SRJ [1996] AATA 188

Secretary, Department of Social Security v Hales (1998) 82 FCR 154        

Secretary, Department of Social Services and Lam (Social services second review) [2018] AATA 3031

Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

Utczas and Secretary, Department of Social Security [1989] AATA 756

Zablotsky and Secretary, Department of Social Services (Social services second review) [2020] AATA 374

SECONDARY MATERIALS

Explanatory Memorandum, Social Security (Non-Budget Measures) Legislation Amendment Bill 1995 (Cth)

REASONS FOR DECISION

Chris Puplick AM, Senior Member

10 December 2020

SUMMARY OF ISSUES

1. This matter can be encapsulated as follows: was Mr Khader Chamma (Respondent) a member of a couple (as defined in the Social Security Act 1991 (Cth) (Act)) for all or any of the period from 11 October 2011 to 27 September 2017 (relevant period)? If the answer is in the affirmative, the next considerations are whether he incurred a debt to the Commonwealth by way of overpayment of certain social security payments and whether any such debt should be recovered.

2. In making a prior decision on this matter, the Social Services and Child Support Division of the Tribunal (AAT1) found the Respondent was a member of a couple from 26 January 2014 to 27 September 2017 but was not a member of a couple from 11 October 2011 to 25 January 2014.[1]

   [1] Section 37 documents (T documents) at 4-17.

3. Both parties dispute this finding.

4. The Secretary of the Department of Social Services (Applicant) maintains that the Respondent was a member of a couple for the entire period from 11 October 2011 to 27 September 2017. The Applicant relies, in part, upon the fact that the Respondent and his wife were legally married throughout the entire relevant period and, indeed, remain so to this date.

5. The Respondent maintains that he was not a member of a couple at any time during the entire period from 11 October 2011 to 27 September 2017. The Respondent’s submission in reply, however, does state that he was not a member of a couple for the relevant period “save for a period of an attempted reconciliation holiday in Malaysia”.[2] He asserts that he separated from his wife on 11 October 2011 and, since that time, they have been “separated” although occasionally “living under one roof”. The Respondent’s position is that he has been living separately and apart from his wife on a permanent or indefinite basis.

   [2] Respondent’s submission in reply dated 28 September 2020 at [3].

6. It is the role of the Tribunal, standing in the shoes of the original decision-maker, to consider the evidence before it de novo and take into account the material presented in this matter, some of which may not have been available to either the original decision-maker, the Authorised Review Officer (ARO) or the AAT1.

   AGREED MATTERS

7. The following matters are not in dispute:

   (a)The Respondent and Ms Sara Al Hussein were married in Tripoli (Lebanon) in 2007. They remain married.

   (b)On 11 April 2008 the Respondent commenced receiving Carer Payment (CP) and Carer Allowance (CA) in respect of care for his mother.

   (c)On 13 February 2012 the Respondent commenced receiving Parenting Payment (PP) at the single rate of payment.

   (d)In addition to the above payments, the Respondent also received income support via the Family Tax Benefit (FTB), Child Care Rebate (CCR) and Child Care Benefit (CCB).

   (e)During the relevant period the Respondent and Ms Al Hussein were parents to a first son (born in 2008), a second son (born in 2010), a third son (born in 2014) and a fourth son (born in 2017). There is a subsequent child (a daughter) born to the couple outside the relevant period in 2018.

   (f)During the relevant period the Applicant was qualified and eligible for a variety of social security payments, the only issue being the rate (either single or partnered).[3]

   (g)On 31 October 2011 the Respondent notified the Department that he and Ms Al Hussein had separated.[4]

   [3] Transcript dated 14 October 2020 at 233 [30] – 234 [7] (14 October transcript).

   [4] T documents at 312.

   DEBT DETERMINATION AND NOTIFICATION

8. On 24 October 2017, as a result of an investigation carried out by the Applicant, a determination was made that the Respondent was a member of a couple and had been so since November 2008. In the intervening period the Respondent had been paid various social security payments at the single rather than the partnered rate, and hence the Department determined that he had been overpaid. This initial decision was affirmed by an ARO of the Department on 15 November 2017.

9. The total sum in question, alleged to have been overpaid, is $242,214.87.[5]

   [5] Ibid 6-7 and 299-300; Applicant’s statement of facts, issues and contentions dated 3 September 2020 (Applicant’s SFIC) at [28].

10. The alleged overpayment relates to payments of CP, PP, FTB, CCR and CCB for approved care.

11. There is no suggestion put before the Tribunal presently that the Respondent was not entitled to the various payments, simply it is contended that he was paid at the single rate when he should have been paid at the partnered rate.

12. The Respondent sought review of this determination by the AAT1 which set aside the decision of the ARO and determined that the Respondent was a member of a couple only from 26 January 2014 to 27 September 2017 but was not for the period prior to that dating back to 11 October 2011, as outlined above. No attempt was made to recalculate any specific debt quantum arising from that determination and the matter was remitted to the Applicant for such recalculation to be made.

13. The Applicant sought review of that AAT1 decision on 28 September 2018.

    CONDUCT OF THE HEARING

14. The application for review came before this Tribunal (AAT2) for hearing on 12 to 14 October 2020. Despite the exigencies of the COVID-19 pandemic, due to special circumstances, the hearing of evidence from the Respondent took place in person, while other witnesses appeared by telephone. Where necessary, the services of an Arabic language interpreter were provided. It was most unfortunate that Ms Sara Al Hussein, the Respondent’s wife, declined at the last minute to give oral evidence to the Tribunal. As a result, a statutory declaration dated 15 June 2020 which she had provided to the Tribunal in this matter was not accepted into evidence, nor were several others where, by agreement between the parties, the declarants were not called to give evidence. An earlier statutory declaration dated 21 January 2014 by Ms Al Hussein relating to an application for a permanent resident visa remains in evidence.

    THRESHOLD QUESTION – MEMBER OF A COUPLE

15. The threshold question which needs to be determined before consideration is given to any specific matters of payments, income or debt is simply whether the Respondent was a member of a couple for all or any part of the relevant period.

16. “Coupledom” for these purposes is defined in the Act. Section 4(2) sets out the definition of ‘member of a couple’ for the purposes of the income and assets tests in the Act. Section 4(2)(a) is relevant to the Respondent because he was, and still is, legally married to Ms Al Hussein during the relevant period.

17. The Act then goes on to state that the decision-maker is to have regard to all the circumstances of the relationship including, in particular, those factors specified in section 4(3). Section 4(3) provides as follows:

    Member of a couple – criteria for forming opinion about relationship

    (3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

    (a) the financial aspects of the relationship, including:

    (i) any joint ownership of real estate or other major assets and any joint liabilities; and

    (ii) any significant pooling of financial resources especially in relation to major financial commitments; and

    (iii) any legal obligations owed by one person in respect of the other person; and

    (iv) the basis of any sharing of day-to-day household expenses;

    (b) the nature of the household, including:

    (i) any joint responsibility for providing care or support of children; and

    (ii) the living arrangements of the people; and

    (iii) the basis on which responsibility for housework is distributed;

    (c) the social aspects of the relationship, including:

    (i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

    (ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

    (iii) the basis on which the people make plans for, or engage in, joint social activities;

    (d) any sexual relationship between the people;

    (e) the nature of the people’s commitment to each other, including:

    (i) the length of the relationship; and

    (ii) the nature of any companionship and emotional support that the people provide to each other; and

    (iii) whether the people consider that the relationship is likely to continue indefinitely; and

    (iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.

    (3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

    CERTAIN EVENTS BEYOND THE RELEVANT PERIOD

18. Although the Tribunal must confine its findings to matters taking place during the relevant period, it notes certain events which took place subsequently which have some bearing on its general findings.

19. In short, despite the separation which the Respondent states took place on 11 October 2011, he and members of his family (and his wife’s family) continued to seek a reconciliation between the couple. It appears that some sort of reconciliation took place in 2018.[6]

    [6] The AAT1 records the Respondent as saying “I swear to God that I would do anything to get back to Sara. Do anything – kiss her foot.”: T documents at 13.

20. The Respondent and his wife spent time overseas together on a number of occasions including taking a holiday in Malaysia (2016), visiting family in Lebanon (2011/ 2012) and travelling to Saudi Arabia (2020) both to visit family and to undertake the hajj. They also travelled overseas separately in several years.[7]

    [7] Ibid 454 (Mr Chamma) and 904 (Ms Al Hussein).

21. In at least 2014 and 2017, members of the family (the Respondent, his wife, their children and the Respondent’s sister) travelled at Christmas/ New Year to the Central Coast (NSW) where they stayed, separately but maintaining contact, in holiday accommodation.

22. The couple also maintained an occasional sexual relationship which resulted in the birth of a daughter in 2018.

23. On 22 January 2014 the Respondent provided a statutory declaration,[8] which he admitted was false,[9] in support of his wife’s application for a permanent resident visa with the Respondent as her sponsor. This visa was granted subsequently in June 2020.[10] Her previous Partner (Provisional) visa was granted in 2008 on the basis of her genuine relationship with the Respondent. The significance of this statutory declaration and one made in identical terms by Ms Al Hussein on 21 January 2014 will become apparent in the following deliberations.

    [8] Applicant’s material from the Department of Home Affairs obtained under Social Security (Administration) Act 1999 (Cth) s 192.

    [9] T documents at 14 [59]; Transcript dated 13 October 2020 (13 October transcript) at 136 [20] –138 [17].

    [10] Legal residence details in a Centrelink Customer Record for Sara Al Hussein filed by the Applicant at the hearing on 12 October 2020.

    ACCOMMODATION ARRANGEMENTS: EVIDENCE

24. A critical issue for the Tribunal’s consideration is the matter of where the Respondent was physically resident at various times, especially during the relevant period.

25. In his testimony, the Respondent stated that when his wife first arrived in Australia from Lebanon they resided with his parents in Liverpool.[11] They subsequently obtained their own accommodation.

    [11] Transcript dated 12 October 2020 (12 October transcript) at 15 [46] – 16 [6].

26. The Applicant filed with the Tribunal a statement on the Respondent’s address histories dated 12 October 2020 showing the purported accommodation arrangements for the Respondent and his wife for the period 13 August 2008 to 4 October 2018 drawn from information held in the files of Centrelink, statutory declarations, hospital admission forms, rent certificates, and tenant ledger/ bank statements. It is reproduced below – the Centrelink address histories table (personal information has been redacted):

Centrelink Address Histories [12] Date of the record. [13] Date of the record.
Mr Chamma	Dates	T doc ref	Ms Al Hussein	Dates	T doc ref
107 PUNCHBOWL	13 Aug 2008 to 12 Oct 2011	T46/450	107 PUNCHBOWL	20 Nov 2008 to 12 Oct 2011	T49/904
23 LAKEMBA	12 Oct 2011 to 21 Feb 2012	T46/450	23 LAKEMBA	12 Oct 2011 to 21 Feb 2012	T49/904
5 PUNCHBOWL	21 Feb 2012 to 19 Jul 2012	T46/450	5 PUNCHBOWL	21 Feb 2012 to 19 Jul 2012	T49/904
1 GREENACRE	19 Jul 2012 to 18 Oct 2013	T46/450	1 GREENACRE	19 Jul 2012 to 21 May 2014	T49/904
81-85 GREENACRE	18 Oct 2013 to 6 Dec 2015	T46/450
879 MARSDEN PARK	21 May 2014 to 4 Oct 2018[12]	T49/904
1 GREENACRE	6 Dec 2015 to 4 Oct 2018[13]	T46/450

1. The departmental records are often confused and unhelpful. For example, an examination of the detailed contemporary records maintained by Centrelink show that correspondence from the Department was addressed to the Respondent:

   ·(from at least) 21 April 2011[14] to 10 August 2011[15] at 107 Punchbowl

   ·from 31 October 2011[16] to 9 November 2011[17] at Windsor Street (being a typographical error of the relevant street at 23 Lakemba)

   ·from 2 December 2011[18] to 16 October 2013[19] at 23 Lakemba

   ·from 1 November 2013[20] to 2 December 2015[21] at 81-85 Greenacre

   ·from 8 December 2015[22] and thereafter at 1 Greenacre.

   [14] T documents at 905.

   [15] Ibid 920.

   [16] Ibid 927.

   [17] Ibid 938.

   [18] Ibid 939 and 962.

   [19] Ibid 1096 and 1101.

   [20] Ibid 1104.

   [21] Ibid 1252.

   [22] Ibid 1254.

2. In regard to the references in the departmental files to an address for the Respondent at Windsor Street, Lakemba,[23] at the hearing this was dismissed as merely a transcription error in the Department’s records[24] and corrected on the initiative of the Respondent.[25] Much of the Centrelink record is disputed by the Respondent. For example, the Respondent flatly denies that he ever resided at 5 Punchbowl,[26] although he admits that he might occasionally have slept there overnight and outside the property in his car.[27] The evidence of the Respondent that his children lived with him at 23 Lakemba is hard to reconcile with his statement that his reason for sleeping outside 5 Punchbowl arose from his concerns about the health and welfare of one of his children who might suddenly need his assistance to arrange hospitalisation. As with so much of the Respondent’s evidence it is difficult for the Tribunal to reconcile all versions of events proffered.

   [23] T documents at 317.

   [24] 12 October transcript at 49 [10]-[24].

   [25] Ibid 50 [6]-[12].

   [26] Ibid 58 [37]-[40], 65 [30]-[31], 67 [24]-[26] and 68 [12]-[20].

   [27] Ibid 68 [12]-[20] and 80 [25]-[33].

3. The evidence presented by the Applicant claiming that the Respondent lived at 5 Punchbowl consists of:

   (a)a single entry in Centrelink records showing residence there from 21 February 2012 to 19 July 2012;[28]

   (b)a similar entry in the Centrelink record of Sara Al Hussein;[29]

   (c)a tenant ledger for that address in the name of Sara Hussein;[30] and

   (d)bank records in the name of the Respondent which show withdrawals from his St. George bank account of sums of money which strongly correlate with the details of the rent payments shown in the tenant ledger in his wife’s name.[31]

   [28] T documents at 450.

   [29] Ibid 904.

   [30] Ibid 201.

   [31] Ibid 202-210.

1. On the other hand, as noted above, there are details in the same Centrelink records of correspondence between Centrelink and the Respondent dated from 21 February 2012 to 16 October 2013, all of which are addressed to him at 23 Lakemba.[32] Within the relevant period during which it is claimed the Respondent was resident at 5 Punchbowl (21 February 2012 to 19 July 2012), those letters are dated 21 February 2012; 6 and 8 March 2012; 10, 16, 18 and 30 April 2012; 16 May 2012; 28 June 2012; and 10 July 2012.[33] There is no correspondence that the Tribunal can find in the material before it, which is addressed to the Respondent at 5 Punchbowl, nor any indication of when such a change of address might have been made in the Centrelink files.

   [32] T documents at 1009-1096.

   [33] Ibid 1009, 1012, 1018, 1021, 1027, 1030, 1031, 1034, 1039 and 1045, respectively.

2. The Respondent made the following concession:

   SENIOR MEMBER: Dr Thompson, can I just put to you the logic of what you have said to me? That the only way in which the evidence about [5 Punchbowl] and then the move to [1 Greenacre] would have been Mr Chamma advising Centrelink of a move of address?

   DR THOMPSON:[34] Yes.[35]

   …

   SENIOR MEMBER: There are 12 letters on file addressed to Mr Chamma by Centrelink at [23 Lakemba] at the time that you say he was living either at [5 Punchbowl] or at [1 Greenacre], and you say those addresses could only have occurred if in fact he had given them those addresses. And if he had given them those addresses, why was Centrelink still writing to him at [23 Lakemba]?

   DR THOMPSON: It’s a mystery.[36]

   [34] Dr Thompson is the Applicant’s legal representative.

   [35] 14 October transcript at 224 [15]-[20].

   [36] Ibid [26]-[33].

3. However, the evidence of the Respondent’s bank records correlates so strongly with the making of rent payments on 5 Punchbowl that the Tribunal concludes that even if the Respondent was not physically resident at that address, and even if Ms Al Hussein was residing there alone, he was nevertheless making the required rent payments. He admitted as much after an initial denial,[37] although the Respondent said that he gave money to his sister who then gave it to his wife.[38]

   [37] 12 October transcript at 71 [47].

   [38] Ibid 72 [18]-[27].

4. There is also confusion about the Respondent’s possible residence at 1 Greenacre between 19 July 2012 and 18 October 2013. During this period, as noted above, Centrelink was sending its correspondence for the Respondent to 23 Lakemba. The AAT1 found that the Respondent lived separately from Ms Al Hussein from October 2011 where “[h]e moved in with a friend and remained sharing accommodation with him for two years, in two different addresses in Lakemba”.[39]

   [39] T documents at 9 [16].

5. The evidence about the Respondent’s living arrangements in this period is confusing and disputed. The AAT1 described it as “inconsistent and unreliable”.[40]

   [40] Ibid 10 [27].

6. In effect the Respondent claims that upon separation from his wife in October 2011 he moved into accommodation at 23 Lakemba which he shared with a friend of his, Mr Mohamad Elzahab, and another man Mr Mohamad Elhosary. The Respondent claimed that he also had his two elder sons with him at the time. It is his evidence that he and his sons (one aged just under three years and the other aged just over one year old) shared one bedroom, Mr Elhosary had the other room and Mr Elzahab slept on the couch in the lounge room.[41] This version of events is supported by a statutory declaration made by Mr Elzahab[42] and was repeated in that gentleman’s oral testimony to the Tribunal.[43]

   [41] 12 October transcript at 52-53.

   [42] Statutory declaration of Mohamad Elzahab dated 6 August 2020 (Elzahab declaration).

   [43] 13 October transcript at 208-216 - “Sleep outside on the couch”: 13 October transcript at 209 [41]-[45].

7. It is the further evidence of both the Respondent and Mr Elzahab that at some later stage they moved from 23 Lakemba to 81-85 Greenacre and continued to share accommodation.[44] Mr Elzahab confirmed that there was “never a time that he [the Respondent] was somewhere else [in] between”. It is, however, unclear as to how long the Respondent may have actually resided at 81-85 Greenacre, although the statutory declaration of Mr Elzahab indicates that it was until “some time early in 2014”.[45]

   [44] Ibid 213 [4]-[11].

   [45] Elzahab declaration at [12].

8. There is clear evidence of the Respondent’s move from 23 Lakemba to 81-85 Greenacre which took place around mid-October 2013. A file note of 16 October 2013 indicates that the Respondent was in touch with Centrelink and that, following his advice, a change of address was registered.[46] There is similar evidence of the Respondent being in touch with Centrelink on 8 December 2015 leading to adjustment of contact details to 1 Greenacre.[47]

   [46] T documents at 348.

   [47] Ibid 366 and 368.

9. It is also noteworthy that the AAT1 stated that:

   The tribunal preferred Mr Chamma’s evidence about his accommodation after separation to the Centrelink address history and in particular, the timing of the move to [1 Greenacre] because that move was consistent with Mr Chamma’s evidence that he wanted to reconcile with Ms Al Hussein and wanted his children to grow up around both parents.[48]

   [48] Ibid 10 [28].

10. The Respondent gave evidence, which was supported by other testimony, to the effect that at various times he also resided (for brief periods) with his parents, his sister and with friends.[49] There is no way of ascertaining the precise dates within the relevant period nor the length of time of any of these stays, although the Tribunal has no reason to doubt that these irregular arrangements were both made and made frequently.

    [49] 12 October transcript at 38 [21]-[25] (Respondent); 13 October transcript at 211 [18]-[30] (Mr Elzahab).

11. The Tribunal accepts that it is exceptionally difficult to construct an unambiguous record of the Respondent’s accommodation arrangements. This results from his own narrative being confused and infected with memory loss. It also results because the Centrelink records include addresses without any related correspondence recorded, and clear details of correspondence being sent (consistently from at least 21 February 2012 to 16 October 2013) to one address at 23 Lakemba while claiming that the Respondent lived elsewhere (from 21 February 2012 to 18 October 2013) at 5 Punchbowl and 1 Greenacre. None of the correspondence sent to 23 Lakemba is recorded as having been returned and the only records available to the Tribunal relating to changes of address by Centrelink are those noted above in relation to the move to 81-85 Greenacre and then to 1 Greenacre.

12. It is evident that the Respondent maintained frequent communication with Centrelink and that he informed them of his change of address on at least two occasions.[50] It appears that when he so advised Centrelink there took place some discussion about his wife’s address. In this respect the Tribunal also takes note of the following exchange during the Tribunal’s hearing on 12 October 2020:

    [50] T documents at 348, 366 and 368.

    SENIOR MEMBER: And when you were talking to Centrelink about those changes of address, did you ever say to Centrelink - apart from [5 Punchbowl], did you ever say to Centrelink Ms Al-Hussein is also living there, or also moving there?

    [MR CHAMMA]: Yes, I possibly told them. [5 Punchbowl], I don’t know what was the address I got it from. But [81-85 Greenacre], [1 Greenacre], [107 Punchbowl], yes, I confirmed Centrelink.

    [SENIOR MEMBER]: Yes, no, you have confirmed Centrelink for yourself?

    [MR CHAMMA]: Yes.

    [SENIOR MEMBER]: Did you ever say to Centrelink that Ms Al-Hussein was also living at those - - -?

    [MR CHAMMA]: They used to ask me, what does she - where does your wife live?

    [SENIOR MEMBER]: And you - - -?

    [MR CHAMMA]: And I used to tell them, yes.

    [SENIOR MEMBER]: Right?

    [MR CHAMMA]: Yes.

    [SENIOR MEMBER]: So we have sorted, in some sense, that there has been communication between Mr Chamma and Centrelink in which he has advised them of change of address, although there is some uncertainty about the [5 Punchbowl] address.

    MR KASSEM:[51] That’s probably why the same dates correspond.

    SENIOR MEMBER: Yes. And that at the same time, the Centrelink people have said to him something to the effect, where is your wife living? And he has said something to the effect, the same place. And Centrelink has recorded both parties on the same day on the basis of probably one conversation.

    DR THOMPSON: Thank you, Senior Member.

    MR KASSEM: Thank you, Senior Member. That explains it, because I was finding it hard to reconcile how both - - -

    MR CHAMMA: So you know, 2012, [1 Greenacre], I wasn’t living - - -

    MR KASSEM: One second, one second. I was finding it hard to reconcile as to how both changed on the same day, but thank you for that. That may explain why.[52]

    [51] Mr Kassem was the Respondent’s legal representative.

    [52] 12 October transcript at 84 [35] – 85 [26].

13. There is also the submission of the Applicant’s representative that, “someone, possibly Mrs Al-Hussein, informed Centrelink of her history”.[53]

    [53] Ibid 82 [14]-[15].

    Accommodation arrangements: discussion and conclusions

14. There are a limited number of things which can be said with any degree of confidence in respect to the accommodation arrangements of the Respondent and his wife. They are as follows:

    (a)When Ms Al Hussein arrived in Australia she and the Respondent lived initially at Liverpool with the Respondent’s parents;

    (b)The couple subsequently lived at 107 Punchbowl;

    (c)The Respondent notified Centrelink that he had separated from his wife on or about 11 October 2011;

    (d)Both parties lived at the same address (1 Greenacre) as from around January 2014.

15. The questions arising are:

    (a)Where was the Respondent living from October 2011 to January 2014 (and was he at any time living in the same accommodation as Ms Al Hussein), and

    (b)What was the nature of their cohabitation arrangements at 1 Greenacre around January 2014?

    October 2011 to January 2014

16. The Tribunal has indicated that it (as did the AAT1) finds the Respondent lived, after his separation in October 2011 and until his return to Ms Al Hussein’s home at 1 Greenacre in January 2014, either at 23 Lakemba or 81-85 Greenacre and that he lived there with flatmates but not with his wife.

17. The Applicant contests this on two grounds. The first is that its records show Ms Al Hussein as living at 23 Lakemba from October 2011 to February 2012. The Tribunal does not accept this is correct. It accepts that when the Respondent and his wife separated in October 2011, he moved out of the 107 Punchbowl address.

18. Secondly, the Tribunal accepts the Applicant’s contention that the Rent Certificates submitted in relation to 81-85 Greenacre are entirely unreliable and should be discounted.[54] Nevertheless, the evidence of Mr Elzahab and Ms Fida Chamma (below) are not to be discounted and it is accepted that during this period the Respondent and Ms Al Hussein lived apart.

    [54] Applicant’s SFIC at [73]-[75].

19. The Tribunal accepts that Ms Al Hussein resided at 5 Punchbowl from February to July 2012.[55] The Tribunal accepts that the Respondent paid the rent on this property but it finds no probative evidence to the effect that he ever lived there.

    [55] T documents at 196.

20. The Tribunal is unable to make any finding about what happened between 21 May 2014 and 4 October 2018 when the Departmental records indicate that Ms Al Hussein was living at 879 Marsden Park.[56] There is no corroborative evidence on this point, it was not referred to in any submissions by the Applicant, it was never mentioned in relation to the Respondent and it appears to be contradicted by all the other evidence related to her residence during that time at 1 Greenacre. It is indicative to the Tribunal of some serious confusion and lack of reliability in the Centrelink records.

    [56] Ibid 904.

21. The question of cohabitation arrangements at 1 Greenacre around January 2014 is discussed subsequently.

    RESPONDENT’S OTHER EVIDENCE

22. The Respondent appeared before the Tribunal in person and was subject to examination-in-chief and re-examination by his legal representative and cross-examination by the Applicant’s solicitor. His testimony took place over a period of one-and-a-half days. The Tribunal also accorded the Respondent a brief period to address it directly after the closing submissions had been made by both parties.

23. As with so much else about this case, it is even unclear as to the exact identity of the Respondent. An Australian birth certificate shows his name as Rami Rafoul and that he was born in 1979. That certificate was issued in 2011. It also states that the Respondent had changed his name from Khader Chamma in 2006.[57]

    [57] T documents at 117; 12 October transcript at 25 [41]-[45].

24. There is also a copy of an Australian passport issued in 2003 in the name of Khader Chamma.[58] It is the details of this passport which appear on his marriage certificate dated 2007,[59] that is, after the name change from Chamma to Rafoul.

    [58] Documents filed by the Applicant on 11 April 2019 and produced from Department of Home Affairs.

    [59] Ibid.

25. In his statutory declaration of 22 January 2014 the Respondent uses the name Rami Rafoul while Ms Al Hussein’s visa applications show his name as Khader Chamma otherwise/ previously known as Rami Rafoul.[60] Medical reports from 2014 to 2019 refer to the patient as Rami Rafoul.[61] All the departmental records and bank accounts refer to Khader Chamma.

    [60] Ibid.

    [61] Supplementary section 37 documents (supplementary T documents) at 3235-3239.

26. For these purposes, nothing turns upon this and the Tribunal accepts that it is dealing with Khader Chamma.

27. Whatever else may be taken from the Respondent’s testimony, there is no doubt as to his absolute love and commitment to his children. Although his wife has principal responsibility for the care of their daughter and appears to exclude him from contact, the Respondent has acted as the principal carer for his sons according to his own evidence, especially the two older boys. He has, at all times, been responsible for their physical care and nurturing. He takes them to childcare, to medical appointments and on holidays. In his words to the Tribunal, “I’ve nappied four boys”.[62] In the times when they are with his wife (especially in the Christmas/ New Year holiday period), he maintained daily contact and paid for various expenses related to them. It appears that, apart from causal employment (for example selling mangoes at the roadside) he has not held a full-time job, but rather has been a full-time carer of his children and may have also looked after his mother before his sister assumed that role.[63] The Tribunal cannot do other but commend him for his commitment to his boys.

    [62] 14 October transcript at 242 [5].

    [63] 13 October transcript at 194 [15]-[30]; 14 October transcript at 237 [3]-[4].

28. Leaving aside accommodation arrangements discussed above, the Respondent’s testimony was to the effect that:

    ·He met his current wife on a visit to Lebanon in 2007 where they became engaged. She is a member of a “powerful” family in Lebanon.[64] They were married in Lebanon in 2007.

    ·The Respondent was born in Australia and had family here, so he sponsored his wife’s arrival to Australia, which took place some months later.

    ·Two sons were born to the couple in 2008 and 2010.

    ·He was unfaithful to his wife and this, combined with her own sense of personal independence, resulted in her telling him to leave their shared home (107 Punchbowl) and to take his (then) two children with him, which he did. He moved to accommodation which he shared with a friend of his (and another tenant) at 23 Lakemba. This took place on 11 October 2011 and he notified the Department accordingly.[65] He was sent and completed a Separated Under One Roof form dated 15 August 2018. which is of course outside the relevant time period.[66]

    ·He was, at all times, (and remains) anxious to effect a reconciliation with this wife. In 2013 there was a brief reconciliation, and although the parties did not resume living together, nevertheless during this brief period Ms Al Hussein fell pregnant and a third son was born in early 2014.

    ·After the Respondent resumed residing at the same address as his wife at 1 Greenacre, two further children were born – a son in early 2017 and a daughter in 2018.

    ·The Respondent and his wife have travelled overseas together on a number of occasions. These have included a trip to Malaysia for the purpose of reconciling their relationship but during which, apparently, they quarrelled and returned to Australia earlier than anticipated as a result,[67] and a trip to Lebanon where the Respondent and Ms Al Hussein departed and returned on separate days and the stated purpose of Mr Chamma’s trip was to keep an eye on his children in case Ms Al Hussein were to keep them in Lebanon.[68] They also made a recent trip to Saudi Arabia, outside the relevant period in 2020, the purpose of which was for the Respondent to see relatives of his in Jeddah and to perform the hajj. On this latter trip the parties travelled there together but remained largely separate whilst in Saudi Arabia.[69]

    [64] 12 October transcript at 14 [42] – 15 [2].

    [65] T documents at 312.

    [66] Supplementary T documents at 3159-3169.

    [67] 12 October transcript at 20 [21]-[33].

    [68] 12 October transcript at 76 [37] – 78 [15].

    [69] Ibid 43 [29] – 44 [45].

29. Given the nature of the testimony it would have been almost impossible for this hearing to have taken place other than in person and the Tribunal is conscious of the conclusions of the courts as to both the advantages[70] and disadvantages of seeing witnesses in person, and then drawing any conclusions based upon their demeanour and weighing those against the documentary evidence.[71] Hearings of the Tribunal under COVID-19 restrictions have highlighted these dilemmas.

    [70] Re Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331. 334; Kodari Securities Pty Ltd v Tran [2020] FCAFC 164, [65].

    [71] Kodari Securities Pty Ltd v Tran [2020] FCAFC 164, [45]; Fox v Percy [2003] HCA 22, [30]-[31]; Gestmin SGPS S.A. and Credit Suisse (UK) Limited [2013] EWHC 3560, [15] and [17] per Leggatt J.

30. That said, the Tribunal found a great deal of the Respondent’s evidence to be confused, rambling, off-point and incoherent. Even allowing for legitimate failures of memory related to details of events which occurred some 9 years ago it was often hard to distinguish what the Respondent genuinely remembered and what he was putting forward to justify various actions that he had taken.

31. Confused and rambling testimony does not necessarily imply false testimony and the Tribunal does not accept that issues of credibility necessarily imply deliberate lying under oath.[72]

    [72] 13 October transcript at 142 [1]-[8].

    EVIDENCE FROM WITNESSES

32. It is deeply regrettable that Ms Al Hussein declined to give evidence to the Tribunal, especially as she had provided a statutory declaration dated 15 June 2020 which was subsequently withdrawn from consideration due to her failure to appear. She would, no doubt, have been able to give testimony on a number of relevant matters. Her position was made clear by the Respondent’s representative:

    SENIOR MEMBER: Now, Mr Chamma, you are still under oath for this morning and Dr Thompson has some continuing questions. Before we do, Mr Kassem, any advice for me in relation to Ms Al-Hussein?

    MR KASSEM: Well, Ms Al Hussein, I sent her a text message and I received a message back saying that she won’t be attending. She said to me, “Sorry, I can’t go tomorrow. Let him deal with his problem”. That’s basically all I’ve got - a text message. So she won’t be giving any evidence.

    DR THOMPSON: Succinct and easily understood.

    SENIOR MEMBER: So the message was that she just - -

    MR KASSEM: She doesn’t want to deal with this and let him deal with his own problem.

    SENIOR MEMBER: All right.[73]

    [73] 13 October transcript at 120 [9]-[25].

1. The Respondent expressed no surprise at the failure of his wife to attend.

   [MR CHAMMA]: Like she’s supposed to come today, she didn’t come. Today, she supposed to come or not.

   [SENIOR MEMBER]: She’s supposed to come later today?

   [MR CHAMMA]: Yes, she didn’t come.

   [SENIOR MEMBER]: Well we don’t know that yet?

   [MR CHAMMA]: Yes, but I’m telling you, she won’t come.[74]

   [74] 12 October transcript at 19 [29]-[34].

   Ms Fida Chamma

2. Ms Fida Chamma (the Respondent’s sister) gave evidence to the effect that she was aware of her brother’s separation from his wife in late 2011 and that as a result he moved to live at 23 Lakemba.[75] She confirmed what her brother had told the Tribunal about the nature of the family holidays on the Central Coast – namely that he had driven the children (his and hers) up the Coast and then remained largely apart “because they were all girls, he just stayed there for a little bit then he came back”,[76] and that he gave her his “key card” so that the expenses could be paid.[77] He went fishing with a friend and stayed on the friend’s boat.[78]

   [75] 13 October transcript at 191 [36] – 192 [5].

   [76] Ibid 192 [41]-[42]. See also 13 October transcript at 151 [33]-[36].

   [77] Ibid 193 [5]-[13] (Ms Chamma) and 154 [11]-[26] (Respondent).

   [78] Ibid 193 [10]-[11].

3. Her recollection of the living arrangements at 1 Greenacre was to the effect that her brother stayed in a granny flat at the back of the property and she had no recollection of his moving into the main house.[79]

   [79] 13 October transcript at 193 [35]-[44].

4. In her statutory declaration she confirmed details of the Respondent’s attempts to effect a reconciliation with Ms Al Hussein, the truncated trip to Malaysia and her brother’s absolute commitment to his children.[80]

   [80] Statutory declaration of Fida Chamma dated 16 June 2020.

   Ms Fatma Al Hussein

5. Ms Fatma Al Hussein (Ms Sara Al Hussein’s sister) gave evidence at the hearing and stated in a statutory declaration that she first came to Australia in March 2014,[81] a time coinciding with the birth of her sister’s (and the Respondent’s) third son. She states that upon arrival she lived with the couple at 1 Greenacre and remained there until she was married in July 2014.[82] It was her evidence that when she arrived the Respondent was living in the granny flat at 1 Greenacre while she and her sister resided in the main house until, some months later, the parties reversed this position and the Respondent moved into the main house while Ms Fatma Al Hussein and Sara Al Hussein moved into the granny flat.[83]

   [81] There is a stamped passport entry which confirms this date which was attached to the statutory declaration of Fatma Al Hussein dated 15 June 2020 (Fatma’s declaration).

   [82] Fatma’s declaration.

   [83] Ibid [11]-[13]; 13 October transcript at 198 [24]-[42].

   Ms Miriam Miriam

6. Ms Miriam merely confirmed that the couple had frequent arguments and that she was aware of the Respondent living in the granny flat at 1 Greenacre. It was her evidence to the effect that the couple had reconciled and sorted out their problems in 2018.[84]

   [84] 13 October transcript at 202 [33] – 203 [29].

   Mr Mohamad Elzahab

7. Mr Elzahab’s testimony has been discussed above. However, he also made the point that at no stage had Ms Al Hussein ever been present at 23 Lakemba,[85] that the couple were often trying to reconcile, that the Respondent did not want a divorce because of his concern for his children,[86] and that a reconciliation had taken place in 2018.

   [85] Ibid 212 [1]-[2].

   [86] 13 October transcript at 215 [8]-[11].

   VISA-RELATED STATUTORY DECLARATIONS

8. The Applicant placed before the Tribunal two statutory declarations, one from Ms Sara Al Hussein dated 21 January 2014 and one from the Respondent dated 22 January 2014. In that instance the Respondent signed his statutory declaration in the name of Rami Rafoul.

9. Ms Al Hussein’s is a statutory declaration “Partner visa (Applicant)” and the Respondent’s is a statutory declaration “Partner visa (Sponsor)”.

10. Otherwise, they are in identical terms, apart from the date, their listed occupations[87] and the designation of the name of the declarant’s partner. They are in identical handwriting. They were both signed before Dr Ashraf Selim, a general practitioner based in Punchbowl.

    [87] Ms Sara Al Hussein lists this as “small business owner” and the Respondent as “carer”.

11. It was agreed that the handwriting on both statutory declarations were identical and it was the Respondent’s evidence that Ms Al Hussein had provided a completed statutory declaration form for him to sign (having done so through his sister), and he complied by signing and by visiting Dr Selim’s practice to have him witness the document the day after she had.[88]

    [88] 13 October transcript at 128 [19]-[39].

12. In both documents there is a declaration that the parties commenced their relationship in 2007 and that they had “lived together for six years”. Both gave their address as 1 Greenacre.

13. In each, the following appears:

    (a)In answer to the question “Describe financial commitments you and your partner share…” they state “Shopping. Childrens (sic) expenses. Bills and utilities”.

    (b)In answer to the question “Describe the nature of your household…” they state “care and support of our children. House work”.

    (c)In answer to the question “Describe the social aspects of your relationship…” they state that “we do everything together”.

    (d)In answer to the question “Describe the nature of your commitment to each other…” they state that “We are in a loving and caring relation ship (sic) and we plan on being together forever. We are committed until the end”.

14. Despite being told, forcefully, by the Applicant’s solicitor that making a false statutory declaration was a breach of section 234 of the Migration Act 1958 (Cth) and section 136.1 of the Criminal Code Act 1995 (Cth) – and after the Applicant’s representative had tendered copies of relevant extracts of legislation and emphasised that breaches could attract a penalty of ten years imprisonment, and after the Respondent was given an opportunity to obtain legal advice from his representative – the Respondent, nevertheless, agreed that some of the material in his statutory declaration was false.[89]

    [89] 13 October 2020 transcript at 136 [20] – 138 [17].

15. The AAT1 had given consideration to these documents and had concluded:

    The tribunal noted that the forms had clearly had (sic) been completed by Ms Al Hussein because the writing on the Statutory Declarations was identical. The tribunal places very little weight on the Statutory Declarations given the context in which they were completed.[90]

    [90] T documents at 12 [44].

16. The Applicant urges this Tribunal in the strongest terms to find that the AAT1 was in error in reaching this conclusion. Rather, it urges that this Tribunal find that these documents demonstrate that the Respondent is a “liar” and a person of no credibility,[91] whilst nevertheless giving full credibility to the assertions of Ms Al Hussein about the nature of their relationship and commitment.[92]

    [91] 13 October transcript at 142 [1]-[14].

    [92] 14 October transcript at 221 [24]-[28].

17. In fact, the statutory declaration of the Respondent is partially true. He does help with some of the shopping and children’s expenses, he does provide support and care for the children, and does his share of the housework.

18. There is no evidence that the couple “do everything together” – indeed the evidence shows that they often take separate holidays/ trips overseas and even remained separate during the 2014 and 2017 Christmas/ New Year Central Coast holidays. The question of “commitment” is addressed elsewhere.

19. This Tribunal regards both statutory declarations as manifestly false. It accepts that the Respondent signed force majeure in fear of being asked to leave the house owned by his wife and risking loss of access to his children while Ms Al Hussein concocted the documents to advance her visa claims.[93] If, as the Applicant contends, the statutory declaration of the Respondent is false, then the most common sense explanation is that the statutory declaration of Ms Al Hussein is equally false and she acted to induce her husband to sign a declaration which she had prepared knowing it to be so, at least from his point of view. The Tribunal rejects the Applicant’s assertion (above) that Ms Al Hussein is a person whose credibility is not in question. It is.

    [93] 13 October transcript at 137 [13]-[45].

20. This Tribunal accepts that the AAT1 was correct in its evaluation of this material. Not only is it of little weight, it is worthless for present purposes.

    ABSENCE OF DIVORCE PROCEEDINGS

21. In support of its proposition that the Respondent was a member of a couple and to refute his claims that he was separated and living apart, although under the one roof, the Applicant questioned why, if the couple were separated, neither had sought a divorce.

22. In answer the Respondent stated that he was afraid that if the couple divorced his wife would secure custody of the children and would prevent his access to them. He was afraid she might take them back to Lebanon.[94] In his final remarks to the Tribunal he outlined how he believed that judicial and child-welfare/ custody systems were irredeemably prejudiced against men and that given the far stronger financial position of his wife he would lose custody of, or access to, his children. He also repeated his hopes for an eventual reconciliation with his wife, that in this respect he had never given up hope,[95] and there was evidence from Ms Miriam Miriam to the effect that they had “sorted out” some of their problems in 2018.[96]

    [94] 12 October transcript at 23 [35]-[43] and 77 [3]-[8].

    [95] 12 October transcript at 63 [36].

    [96] 13 October transcript at 203 [21]-[29].

23. It was perfectly logical for the Respondent not to seek a divorce given his stated position.[97]

    [97] 14 October transcript at 242 [27]-[39].

24. It was the Respondent’s testimony that his wife initially wanted a divorce when she found out that he was being unfaithful to her:

    [Dr Thompson]: Has your wife ever suggested she wanted a divorce from you?

    [Mr Chamma]: Yes[98]

    [Mr Chamma]: ... It’s all talk.[99]

    [98] 12 October transcript at 62 [9].

    [99] Ibid [18].

25. In the Applicant’s statement of facts, issues and contentions dated 3 September 2020 (Applicant’s SFIC) it is stated that she applied for a visa on 5 November 2007 and that she was granted a subclass 309 visa which is a Partner (Provisional) visa, based upon sponsorship by her husband. That visa was granted in May 2008 and she arrived in Australia in June 2008.[100]

    [100] Applicant’s SFIC at [8]; T documents at 904.

26. The Centrelink Customer Record submitted by the Applicant shows that there was some sort of visa application lodged in November 2007 which resulted in the grant of a subclass 100 visa in March 2015. A visa subclass 100 is a Partner (Migrant) visa, which requires evidence that the applicant has an Australian sponsor.[101] That evidence appears to have been based, in part, upon a statutory declaration lodged by Ms Al Hussein and signed by the Respondent on 22 January 2014 (in the name of Rami Rafoul).[102]

    [101] Migration Regulations 1994 (Cth) sch 1 s 1129.

    [102] Supplementary T documents at 3083-3086.

27. Then, in January 2020, she applied for a subclass 155 visa which was granted in June 2020. Subclass 155 visas are five-year Return Resident visas.

28. It may well have been that Ms Al Hussein did not think that it would assist her initial visa application(s) were she to divorce and thus lose the support of her husband who had been her initial visa sponsor. The Tribunal recognises that this is purely speculative but, if true, would have constituted an additional logical reason for not seeking a divorce.

29. Equally speculative is any consideration of what Ms Al Hussein might have thought about the loss of financial support via any Family Tax Benefits she was receiving if custody of four of her five children were awarded to her ex-husband.

30. In any event, the Tribunal does not accord any weight to any alleged failure of either of the parties to seek a divorce in its overall determination of their status.

    COHABITATION AT 1 GREENACRE

31. The property at 1 Greenacre appears to be a large property with a residence showing, on a floor plan, 3 bedrooms, a lounge room, kitchen, bathroom, storage area and laundry. There is attached to the residence an undercover patio. The floor plan of the site also shows an area marked as “concrete slab” connected to the residence by a pathway.

32. Somehow it appears that a “granny flat” consisting of a bedroom, sitting area, bathroom and small kitchen has been attached to the property[103] – presumably on the “concrete slab”. There is no evidence that it is an authorised building or construction.

    [103] 12 October transcript at 88 [10]-[27].

33. The Applicant’s SFIC states (at [69]) that Ms Al Hussein purchased the 1 Greenacre property in July 2012, which was a date after the couple had separated.

34. When the Respondent moved into 1 Greenacre, the evidence suggests that he and the children lived in the granny flat while Ms Al Hussein occupied the main house and that her sister also resided there with her between March and July 2014. At some stage during this period the Respondent and Ms Al Hussein swapped accommodation and the Respondent moved into the main house, making use of two of the three bedrooms.[104]

    [104] 12 October transcript at 93 [14]-[35].

35. There was evidence given by both Ms Fida Chamma and Ms Fatma Al Hussein which confirms these living arrangements.

36. The Tribunal accepts that, at least since January 2014, both the Respondent and Ms Al Hussein have lived at 1 Greenacre and that their arrangements have involved some form of separate living between the granny flat and the main house.

37. This is an arrangement which the Respondent states as amounting to “I live under her roof, not my roof”.[105] He sees this as an enforced arrangement due to his lack of resources and responsibility for his children.

    [105] Ibid 41 [42].

    THE RESPONDENT’S VIEW OF “SEPARATION”

38. Throughout the hearings the Respondent insisted that his position be seen through the prism of what he described as his “culture”. In this regard, he outlined what he understood to constitute separation:

    [DR THOMPSON]: My question is, do you consider yourself separated now?

    [MR CHAMMA]: At the moment?

    [DR THOMPSON]: Yes, in the same sense that you argue in your case today?

    [MR CHAMMA]: My friend, you know where I live? I live under her roof, not my roof.

    [DR THOMPSON]: Is your answer yes or no?

    [MR CHAMMA]: I tell you, I’ve got to answer you yes or no, you got to understand and you’ll know straight away what’s the answer. If she tells me now it wasn’t - today is not like yesterday. It wasn’t - today is not like - 2014, before - before 2014, I (indistinct), but when I’m living under roof, and if I do a mistake she (indistinct) told me, ‘get out.’ I’ve got to bend my neck more and shut up, all right, (indistinct), sitting down at home, because I’m - I’ve got nowhere to go.

    [DR THOMPSON]: All right, I’ll just ask once more - - -?

    [MR CHAMMA]: I’m living under her roof. So if she tells me today, ‘Come home now, the kids’ alone and I got to go,’ I’ll go. (Indistinct) - because I don’t have power and I don’t have access and I don’t have money to support myself. I don’t.[106]

    [MR CHAMMA]: Don’t need to ask anyone why – me and her are separated, we’re not living – I’m living for the kids. As soon as they get old, I’m out. As soon as each one of them 18 years old, I’m out of the life, I’m out, I’ve had enough, because the father is supposed to be outside working, not looking after kids. God brang (sic) hearts to the woman, different hearts to the men. I’m not patient with kids, but I’ve learnt to be patient. I’ve learnt to be patient. I’m like a woman. I talk to kids, I feed kids, I feed them, I do nappies. Like – and the kids, they love me because I look after them a lot. I’m the one look after them. The mother walks out, drives out, and she goes to her sisters, to her friends, she never says, “I’m going out, I’m doing this, I’m doing that.” She knows someone out there looking after the kids, and that’s – that’s my weakness.[107]

    [MR CHAMMA]: The situation I took this, all right, as a culture. As my culture, how to be living from - from a man to a wife, marriage. If my wife - if my wife go out at night and then she doesn’t call, and she doesn’t call her husband, and she doesn’t say a word, and she rocks up in the morning the next day, no one accept - no man accept it. But I got to accept it. Why? Why? Because I’m living under her roof.[108]

    [106] Ibid 41 [39] – 42 [8].

    [107] 12 October 2020 transcript at 22 [28]-[39].

    [108] Ibid 43 [1]-[6].

    DETERMINING COUPLEDOM

39. As I set out in Zablotsky,[109] there is considerable authority providing guidance on what elements or factors are to be taken into account when determining whether or not individuals are members of a couple for the purposes of the Act.

    [109] Zablotsky and Secretary, Department of Social Services (Social services second review) [2020] AATA 374.

40. Above all, it is stressed that the decision-maker must have regard to both the totality of the circumstances and the potentially unique character of each, if any, relationship.

41. In VBH, the Tribunal stated:

    The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.[110]

    [110] Secretary, Department of Family and Community Services and 'VBH' and 'VBG' [2006] AATA 1, [94].

42. In Sperring, it stated:

    … being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.[111]

    [111] Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050, [70].

43. In Staunton-Smith, the Federal Court explained that:

    It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.[112]

    … it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.[113]

    [112] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 170.

    [113] Ibid 173.

44. In Lynam, Fitzgerald J drew attention to the variety of situations which may be faced by decision-makers in determining membership of a couple, the inter-relationship of factors and the multiplicity of such factors.

    Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.[114]

    [114] Lynam v Director-General of Social Security (1983) 52 ALR 128, 131.

1. This Tribunal has recognised the difficulties inherent in attempting to make subjective assessments about the nature of relationships. In Peck, it stated:

   The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a "marriage-like relationship" exists and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. Much will depend, in forming the requisite opinion in any instance, on matters of degree and impression.[115]

   [115] Re Katherine Deirdre Peck (Napier) and Secretary, Department of Social Security [1992] AATA 336, [13]. Citations omitted. The term “marriage-like relationship” was introduced in the 1991 Act but deleted by enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth).

2. Questions of whether or not individuals regard themselves as members of a couple are always going to be highly subjective, each person will have their own definition of “coupledom” as it relates to their own lives. The Tribunal has recognised this subjectivity and takes it into account. However, it must primarily be concerned with what the objective facts establish and how those are to be interpreted.

3. Where objective evidence and subjective interpretation are not ad idem, the Tribunal has stated that:

   In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming an opinion about the nature and character of the relationship between the applicant and Mr B – in particular, whether or not they had a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) of the Act – in the relevant period, generally to place greater reliance on the relevant objective or independent evidence when the applicant’s evidence is inconsistent with that evidence, and to accept the applicant’s evidence regarding material matters only where it is corroborated or supported by objective or independent evidence.[116]

   [116] Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415, [43].

4. Of course, mere establishment of some sort of couple status is not in itself sufficient. There must be some evidence of what may be described as “couple behaviour”. The Act (at section 4(3)) identifies a series of behaviours – financial, emotional, social and sexual – which go to establishing coupledom.

5. Where two people are legally married, as is the case in this instance, regard must be had to the specific wording of section 4(2)(a) of the Act which establishes coupledom where:

   the person is legally married to another person and is not, in the Secretary’s opinion … living separately and apart from the other person on a permanent or indefinite basis …

6. It is in forming this opinion that the criteria of section 4(3) are to be considered.

7. The Applicant was critical of what it perceived as the failure of the AAT1 to recognise the difference between the married test and the de facto test in the Act, stating:

   DR THOMPSON: The relevant period, as you said Senior Member, is from 11 October 2011 to 27 September 2017, the sole issue before you today is whether Mr Chamma and Mrs Al-Hussein were a member of a couple for that period. On that question in terms in terms of the debt, the total debt claimed is $242,214.87 for that whole period. The test for you today, and this is possibly the most significant submission I could make during the whole period, is the marriage test, it’s not the de facto test.

   Now I have the benefit of Mr Kassem’s statement of facts, issues and contentions dated 28 September 2020 but they’re fundamentally flawed because he relies on the de facto test, he doesn’t mention the marriage test. And that’s understandable because the AAT1, made the same mistake, with all due respect.

   If you were to read the AAT1 decision, all they do is go through the factors for – in subsection 4(3) of the Social Security Act. The marriage test is a much more difficult test to satisfy, compared with the de facto test and the evidence in this case would be that the parties were legally married, that is married, according to Australian Law, even though they got married in Lebanon, for the whole of the debt period.

   Therefore, the singular issue for you, Senior Member, as stated in the secretary’s submissions, is whether they were living permanently and apart, in a moment, I won’t guess it – the test – I’ll go to the actual test. Is whether they were living at separately and apart from each other on a permanent or indefinite basis.

   …

   DR THOMPSON: So you are to decide, by the end of this hearing, whether they were living separately and apart from the other person on a permanent or indefinite basis, that’s the primary question. You are to determine that according to the factors in section – subsection 4(3) of the Act.[117]

   [117] 12 October transcript at 8 [24] – 9 [15].

   THE CURIOUS ISSUE OF A CHILD CARE BUSINESS

8. The Applicant attacked the Respondent’s credibility over the issue of his receipt of CCB and CCR.

   DR THOMPSON: I press the question because a large part of this debt is for childcare benefit and childcare rebate services for Mr Chamma’s own children.[118]

   [118] 13 October transcript at 160 [6]-[8].

9. The Applicant did not go so far as to assert but hinted that this arrangement may be some sort of sham because, it claims, Ms Al Hussein was operating a child care service from their shared premises at 1 Greenacre. This assertion is based upon an individual tax return for the financial year 2014/ 2015 submitted in the name of Ms Al Hussein in which she lists her “main business or professional activity” as “child care services”.[119] The tax return shows an income value and where details are required of a “business name of main business and Australian business number (ABN)” all that is shown is “Sara Al Hussein”, and the business address is given as 1 Greenacre.

   [119] Supplementary T documents at 3072.

10. The Applicant further asserts, in response to comments by the Tribunal:

    SENIOR MEMBER: Look, this goes frankly to the integrity of that tax statement, because clearly the granny flat which has been described as being a bedroom, room, a kitchen and a bathroom, and which is described in some detail in one of the conversations with the department, there’s no way in the world that it would be a licenced or authorised childcare service in a premises like that.

    WITNESS: No way. That’s why I’m freaking out.

    DR THOMPSON: I’m not suggesting he did.

    SENIOR MEMBER: Now, whether in fact there is a claim that she was minding other people’s children would be an entirely different business. But frankly, I’m not prepared to accept that there’s any validity in question that his wife was providing childcare services in the sense that they’re properly and legally understood.

    DR THOMPSON: I didn’t say that; I don’t suggest that. I’ve got no idea whether they were a licenced or certified childcare business. And there’s no doubt about the integrity of this tax return, it simply says there was a childcare business – a childcare service, that’s the business being carried on at [1 Greenacre]. The evidence is that it was carried on at the back of the house. But no comment whatsoever. There’s no evidence as to whether it was legal or illegal. It was a business, not just simply minding children for a friend or for other people. And Mr Chamma says he was asked to move to the front of the house, that’s what he said yesterday, now we know why. Because there was this childcare services business being carried on at the back of the house. That’s all true, isn’t it?[120]

    [120] 13 October transcript at 159 [1]-[28].

11. The Tribunal is not prepared to accept the assertions of the Applicant in this regard for the following reasons:

    (a)There is not a skerrick of evidence before the Tribunal that a legal child care business was conducted at 1 Greenacre and, given the details of the premises and the personal qualifications of Ms Al Hussein, there is no reason to believe that any license would or could have been issued for such a business to operate;

    (b)The Respondent denies that such a service ever took place in the premises, although acknowledges that some sort of “day care” might have been occurring,[121] Ms Miriam when asked was unsure whether such activity was taking place,[122] and so was Ms Fida Chamma,[123] and Ms Fatma Al Hussein was not asked about the matter.

    (c)The Respondent stated that his children were cared for at Mickey’s World Childcare Centre, and both documentary and oral evidence is available to substantiate that claim.[124] Contrary to the Applicant’s contention that the Respondent’s assertions about his children having attended childcare are fictitious,[125] the Applicant has provided some evidence, obtained through a section 196 notice to Mickey’s World Childcare Centre, showing that the Respondent’s third son was enrolled there in 2015.[126]

    [121] 13 October transcript at 158 [20]-[46].

    [122] Ibid 203 [36]-[42].

    [123] Ibid 194 [5]-[13].

    [124] Letter from Heba El Saadi dated February 2020; 12 October transcript at 54 [47]; 13 October transcript at 161 [11].

    [125] 13 October transcript at 161 [44]-[46].

    [126] Supplementary T documents at 3242-3253.

12. What is, however, of interest in relation to the individual tax returns which were obtained under a section 196 notice by the Applicant is that the tax agent, in responding to that notice and in answer to specific questions posed by the Applicant, wrote (inter alia):

    Mrs Al Hussein became our client on 6^th July 2015. Mr Chamma only recently became our client on 3^rd January 2019 as prior to this we dealt only with Mrs Al Hussein’s taxes as they were separated.

    Sara advised that she was separated from her spouse from the first date of engagement in our services in July 2015 thus why a partner is not mentioned in her tax return. Mrs Al Hussein and Mr Chamma in January 2019 since advised that they are back together and have been during the 2018 financial year and ongoing an exact date was not advised.

    Please be advised that we are unaware and have never heard of Mr Chamma’s name being anything but Khader Chamma and certainly have never heard the name Rami Rafoul.[127]

    [127] Ibid 3060.

13. In Ms Al Hussein’s tax return for 2010/ 2011 and 2011/ 2012 she states her business to be that of “courier pick-up and delivery services”.[128]

    [128] Supplementary T documents at 3145 and 3154.

14. The Tribunal specifically rejects any suggestion of improper conduct on the part of Mr Chamma in terms of claims for CCB or CCR. There is absolutely no evidence to substantiate such a claim. Furthermore, as discussed above, the specific matter for the Tribunal’s consideration at present is the Respondent’s rate of entitlement (single or partnered) to the social security payments and not his qualification for these payments, which are not contested in the present application for review.

    SECTION 4(3) CRITERIA

15. The Tribunal turns to consideration of the various criteria set out in section 4(3) of the Act.

    Financial aspects

16. Section 4(3)(a) indicates that in determining the nature of the financial aspects of a relationship, matters to be considered include any joint ownership of property, assets or liabilities, any significant “pooling” of financial resources, legal obligations between the parties, and any sharing of day-to-day household expenses.

17. There is no evidence of the joint ownership of any assets, nor of there being any legal obligations owed between the parties.

18. The term “pooling” has been defined by the courts as implying a degree of sharing or inter-mingling of resources[129] so as to create one shared source of financial asset from which expenditure is drawn. Typically, this involves such examples as having a joint bank account or a shared-access credit card. There is no evidence before the Tribunal of any arrangements between the Respondent and Ms Al Hussein which satisfies this consideration.

    [129] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, [52].

19. There is, however, evidence of the sharing of certain household-type expenses. The Applicant relies, in part, on the statement by the Respondent and Ms Al Hussein in their statutory declarations of January 2014 that they shared expenses such as “shopping, children’s expenses, bills and utilities”. The Tribunal gives these documents no weight and places no reliance upon them.

20. However, the Tribunal has found that while the Respondent was not resident at 5 Punchbowl, he nevertheless (via his sister) paid Ms Al Hussein’s rent on the property for the entire duration of her residence at that property from February to July 2012, as he himself admits.[130] He also contributed to the cost of family holidays, again via his sister, who was given access to his key card to pay for expenses including accommodation costs and incidental expenses in support of the children. There is evidence from the Respondent that he spends money on his children and does what he can to support them financially.

    [130] 12 October 2020 transcript at 72 [14]-[20].

21. The Tribunal accepts the contention of the Applicant that claims of financial hardship on the part of Ms Al Hussein, with the implication that she receives no financial support from the Respondent, appear to only post-date the investigations initiated by Centrelink into their relationship in 2018.[131] Claims of financial hardship by Ms Al Hussein do not sit well with the details of her extensive and extended overseas travel, most of which were undertaken without her husband.[132]

    [131] Applicant’s SFIC at [59]; Supplementary T documents at 3193.

    [132] T documents at 904.

22. The Tribunal is satisfied that the financial aspects of the Respondent and Ms Al Hussein’s relationship meets the criteria set out in section 4(3)(a) of the Act and indicates the Respondent’s membership to their coupledom, throughout all relevant periods. Although the Respondent’s contribution focused primarily on support for the children, some payments (such as rental payments) were of direct benefit to Ms Al Hussein.

    Nature of the household

23. Section 4(3)(b) of the Act directs the attention of the decision-maker to issues of the joint responsibility for the provision of care or support to children, the living arrangements of the parties, and the distribution of housework.

24. There is no suggestion that care for the five children is not a shared responsibility, albeit that the Respondent has clearly been the principal carer for the four boys.[133] He cooks and does nappies, he takes the boys to sport and puts them at the centre of his attention. On the other hand, it appears that Ms Al Hussein has been almost exclusively the carer for the couple’s daughter and also the children when they travel either within Australia or overseas. While the Tribunal appreciates that this arrangement reflects some aspects of the couple’s cultural mores, it is clear that responsibility for the care of the children has always been a shared responsibility. Although the Respondent’s testimony tends to suggest that Ms Al Hussein is not a particularly enthusiastic mother in relation to their sons,[134] it was the testimony of Ms Fida Chamma that she was a “very good mother”.[135]

    [133] 12 October 2020 transcript at 18 [34]-[44].

    [134] Ibid [34]-[45]; 13 October 2020 transcript at 145 [39]-[43].

    [135] 13 October 2020 transcript at 193 [25]-[29].

25. The living arrangements of the couple have been discussed above and need no further elucidation.

26. The Tribunal is satisfied that throughout the relevant period, even when the parties were living physically apart they, nevertheless, fulfilled the criteria established in section 4(3)(b) so as to be defined as a couple.

    Social aspects

27. Section 4(3)(c) directs attention to the whether the parties hold themselves out to be in a relationship, either married or de facto, how others perceive or are led to perceive their relationship, and how they plan for or engage in joint social activities.

28. The starting point must be to recognise that the couple have at all times remained married and neither has taken any steps to formally sever this marital relationship. It is also clear that the Respondent, throughout the relevant period (and up to the present), held out hope of reconciliation, even if it was reconciliation for the sake of the growth and development of the children. The evidence of Ms Fida Chamma and Ms Fatma Al Hussein was more to the effect that Ms Sara Al Hussein was far less keen on the idea of reconciliation and had rebuffed their efforts to bring this about, as she had with the efforts of Ms Mariam.

29. Nevertheless, it appears that at least in the Respondent’s mind, their separation was not of a permanent nature. There is some suggestion that a reconciliation of sorts had already occurred in 2018, after the relevant period.

30. The friends and family of the Respondent and Ms Al Hussein also recognise that they had physically lived apart for some period of time and that their relationship has not been perceived as them being members of a couple at all times. The evidence from Ms Fida Chamma, Ms Fatma Al Hussein, Ms Miriam and Mr Elzahab were all to this effect; although each of them considered the possibility of a reconciliation or actively sought to encourage it.

31. The Applicant drew attention to the time that the parties were in Saudi Arabia, both to visit family members and to perform the hajj. Whilst this was in 2020 and beyond the relevant period, the Tribunal considers it relevant to the extent that it demonstrates the continuing impressions that family or friends may have had of the relationship between the Respondent and Ms Al Hussein. The Tribunal accepts the Respondent’s explanation that while the closest members of his family there were aware of the difficulties between himself and Ms Al Hussein and that they had separated, there was no need for this information to be relayed to more distant members of the family who may have been left with the impression that the parties were a couple.[136]

    [136] 12 October transcript 47 [7]-[31].

32. There is evidence that the parties planned certain activities together, such as the trip to Malaysia and the family holidays on the Central Coast. However, only one of these, the Malaysia trip, can be taken as the parties actually undertaking the activity in a genuinely joint sense.

33. The Tribunal does not believe that the criterion in section 4(3)(c) is satisfied in terms of establishing the existence of the Respondent as a member of couple. The couple in effect presented themselves (and were seen by others) as being separate although each, in Ms Al Hussein’s case during the second period in question when she was willing to at least entertain the idea of reconciliation by undertaking the trip to Malaysia, and Mr Chamma on an ongoing basis, held out hopes of a reconciliation.

    Sexual relationship

34. Section 4(3)(d) directs a decision-maker to consider if a sexual relationship exists between the parties but provides neither a definition nor qualification of that consideration.

35. The Applicant relies upon the fact that after the date of their separation the parties nevertheless had three children together, all conceived within the relevant period. There was evidence to the Tribunal that the children conceived after the separation were not “planned” and indeed there was some suggestion that Ms Al Hussein and also the Respondent did not want the subsequent two sons.[137] The Respondent agrees that one child was conceived while the parties were attempting to reconcile during a visit to Malaysia and that on one of the occasions the parties had sex in the Respondent’s car.[138] The Respondent himself took no responsibility for the conception of any of these subsequent children, casting total responsibility on his wife.[139]

    [137] 13 October transcripts at 144 [6] – 146 [15].

    [138] Ibid 144 [44] –145 [11].

    [139] Ibid 175 [23]-[35].

1. The AAT1 came to the conclusion that the parties had an ongoing sexual relationship “both immediately before and since they have lived together at [1 Greenacre]”.[140]

   [140] T documents at 12 [49].

2. An Early Intervention Placement Prevention Officer at the Arab Council Australia, in a letter dated 16 November 2018 and addressed to the Centrelink Office in Bankstown, records that Ms Al Hussein told them that she is “not in an intimate relationship” with the Respondent as at 2018.[141]

   [141] Supplementary T documents at 3136.

3. While it might appear, prima facie, that the mutual conception of three children following the alleged separation between the Respondent and Ms Al Hussein establishes the existence of an ongoing sexual relationship, this is not necessarily the case. A directly analogous case was decided in the Tribunal in the matter of Lam where it was held that:

   I am unable to find that a sexual relationship between Ms Wang and Mr Lam has continued between them as members of a couple from separation. The Secretary notes that since separation Ms Wang and Mr Lam have had three children together. The Secretary says this is clear evidence of an ongoing relationship between Ms Wang and Mr Lam; particularly since on the available evidence neither has had a relationship (sexual or otherwise) with any other person. It is hard to accept, I would agree, that a married couple who have yet more children together are not members of a couple. But it is a different point, in my view, whether it can be said that the couple therefore have an ongoing sexual relationship, particularly if they are separated and living apart.

   …

   However, it is plainly possible for two persons to conceive children, even on three occasions, without necessarily being members of a couple.

   I consider it is possible for married persons to conceive children and not have an ongoing sexual relationship. I accept Ms Wang’s evidence that she had sex with Mr Lam after separation for the sole purpose of conceiving children. Mr Lam, as I recall, indicated that sexual relations were initiated by Ms Wang on each occasion.

   Therefore, I am unable to make a finding on the basis of the evidence that Ms Wang and Mr Lam have had an ongoing sexual relationship. I note it is pointed out that on the available evidence neither Mr Lam nor Ms Wang have had a relationship (sexual or otherwise) with any other person since separation. I do not consider that not having a sexual relationship with another person is enough to find that Ms Wang and Mr Lam therefore have had an ongoing sexual relationship.

   If Ms Wang and Mr Lam were members of a couple at the times when they conceived the youngest three children, I cannot make a finding - for lack of evidence - that they were members of a couple in an ongoing sexual relationship in the times in between each conception and after the last child was conceived. There is also the fact that since April 2017 Mr Lam has lived in the Northern Territory.[142]

   [142] Secretary, Department of Social Services and Lam (Social services second review) [2018] AATA 3031, [87] and [89]-[92].

4. In this matter, apart from the determinations made by the Tribunal about the parties living apart at various times, there is also the admission of the Respondent that his wife “busted me cheating on her a couple of times”[143] to take into account, together with the fact that the acts of sexual intercourse were in no way directed to wanting to conceive further children.

   [143] 12 October transcript 19 [47] – 20 [1].

5. The Respondent was disarmingly frank when speaking to the ARO about his sexual activities as recorded in the ARO notes of 6 November 2017:

   Customer advised he and Sara do occasionally still have a sexual relationship but not as it was before. Customer described the relationship as follows: ‘it used to be 100% now it is 2%’. When asked to explain what this statement meant, customer advised he and Sara still have a sexual relationship however, it is not as often as it was before and it depends on the mood she is in and how nice he is to her.[144]

   [144] T documents at 295.

6. It is not clear whether or not “2%” constitutes a sexual relationship, although it is apparently sufficient to produce three children.

7. In all the circumstances of this matter and given the nature of the evidence before the Tribunal, it prefers to take the position expressed in Lam rather than that of the AAT1. Although it accepts that the sexual encounters were consensual, the Tribunal finds the criteria for membership of a couple, based on a sexual relationship, has not been satisfied.

   Nature of commitment to each other

8. Section 4(3)(e) enjoins consideration of the length of the relationship, the mutuality of emotional support and companionship, the desire of the parties for the relationship to be ongoing, and the perception which each has of the nature of the relationship.

9. The length of the relationship is a matter of fact in some respects. The couple were married in 2007 and remained legally married throughout the relevant period, that is for a period of some ten years. However, there was a separation in 2011, just four years into the relationship. There have been intermittent periods of reconciliation but, during the relevant period, this appears to have been only a matter of a few weeks in 2016. Taken at its best this is not a long-term established relationship which has broken down, but rather one which did not stand the test of time and started to fracture relatively quickly.

10. Assessment of this criteria is made almost impossible by the absence of any testimony from Ms Al Hussein. What evidence there is before the Tribunal indicates that the Respondent has always wanted, and still wishes, the relationship to be reconciled and continuous. There is evidence from both Ms Fida Chamma and Ms Fatma Al Hussein that Ms Sara Al Hussein appears less keen on this and has resisted attempts by them at reconciliation. The evidence about a reconciliation in 2018, beyond the relevant period, is sparse and was not referenced by the Respondent in his testimony.

11. If anything, the failure of Ms Al Hussein to appear and her reported comment to the effect that the Respondent should just “deal with his problem” without her help, is anything but suggestive of a relationship that has been mutually supportive.

12. Evidence was to the effect that the Respondent would, in effect, put up with anything in order to remain in the home owned by Ms Al Hussein so that he could keep in touch with his children. Whereas, her preparedness to make him sign a statutory declaration which appears to be false, presumably knowing it to be so, does not speak of a relationship of mutuality.

13. It is true that the establishment of a couple-like relationship does not require the parties be happy in a marriage and could involve the parties staying together for the sake of the children.[145] The Tribunal does not, however, accept that commitment to the welfare of children is necessarily “indicia of a marriage”[146] or that it goes to establishing the parties are a couple. As the Tribunal said in CWJT, “[c]ommitment to children held in common does not amount to commitment to each other”[147] and that is the relevant test referenced in the legislation.

    [145] Bozdag and Secretary, Department of Social Services (Social services second review) [2016] AATA 765, [47]. See also the series of similar Tribunal cases cited by the Applicant in her SFIC at [119].

    [146] Bozdag and Secretary, Department of Social Services (Social services second review) [2016] AATA 765, [47].

    [147] CWJT and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 910, [88].

14. Mutuality must also be present in the relationship.[148]

    [148] Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404, [61]; Regan v Walsh [2014] FCCA 2535, [76].

15. The Tribunal detects no mutuality in terms of “companionship and emotional support” as stated in the legislation. The fact the Respondent being “allowed” to move into her property at 1 Greenacre was dependent upon him not questioning her as to where she was going or what she was doing, and that when he moved into the main house he was not allowed access to her bedroom, indicates a very one-sided relationship. Indeed, the sense of emasculation expressed by the Respondent in his description of his living arrangements is palpable.[149]

    [149] 12 October transcript at 22 [22]-[34] (“I’m like a woman”) and 42 [1]-[2] (“I’ve got to bend my neck more and shut up”).

16. There are records of each of the parties, at various times, being in hospital. However, there is no particular evidence of one being present with the other during those times. On some occasions, the hospital forms show third parties listed as the emergency contact person[150] while continuing to designate each other as next-of-kin.[151] The Respondent was, however, present at the birth of his daughter in April 2018.[152]

    [150] 13 October transcript at 167 [13]-[26]; Supplementary T documents at 3042-3045 and 3049-3051.

    [151] 12 October transcript at 97 [36]-[41] and 101 [4]-[45]; Supplementary T documents at 3044.

    [152] Supplementary T documents at 3039; 13 October transcript at 179 [20]-[27].

17. In the Tribunal documents there is a letter from ear, nose and throat surgeon Dr Yeung to the effect that the Respondent’s wife accompanied him to an appointment in May 2014 where she spoke to the physician about her husband’s problems with sleep apnoea and his snoring.[153] The Applicant put it to the Respondent that this was indicative of the fact that Ms Al Hussein “was sleeping with you at night at that stage”.[154] However, the Tribunal makes two observations, the first being that the date of this record is 2 May 2014 (after the Respondent had returned to 1 Greenacre in January 2014) and secondly that there is no evidence that Ms Al Hussein’s comments were meant to be contemporary or that they did not reflect her knowledge and experience of past events and living circumstances.

    [153] Supplementary T documents at 3235.

    [154] 13 October transcript at 148 [10]-[11].

18. The AAT1 found it impossible to come to a conclusion on this criterion.[155] However, this Tribunal finds that the nature of the parties’ commitment to each other does not establish that they were members of a couple.

    [155] T documents at 11 [38].

    MEMBER OF A COUPLE: DISCUSSION AND CONCLUSIONS

19. As outlined above, the authorities make it clear that a decision-maker should have regard to the “totality” of the situation or the “whole of the circumstances”, that “not all” the legislated criteria need to be satisfied, and that judgement is a matter of “fact and degree” and “degree and impression”.

20. Again, this is a matter of considering the totality of the situation, including the care for the children.[156] It involves the physical and mental elements existing between the parties,[157] even where there is some degree of separation of actual living arrangements.[158] Section 4(2)(a) and 4(3) of the Act are to be read together within the framework of a couple who are still legally married[159] and, moreover, accept themselves as such.

    [156] Beverley Sybil Anderson and Secretary, Department of Social Security [1993] AATA 172, [54]-[55].

    [157] Melvin v Secretary, Department of Social Security [2016] FCA 375, [83]-[84].

    [158] Utczas and Secretary, Department of Social Security [1989] AATA 756, [11]; Dimov and Secretary, Department of Family and Community Services [2005] AATA 912, [31].

    [159] Hogan and Secretary, Department of Employment, Education and Workplace Relations [2011] AATA 162, [59]-[60].

21. A consideration of all the criteria laid down in section 4(3) of the Act indicates that clearly some of them are present so as to establish the existence of a couple-like relationship and some of them are absent.

22. The section 4(3) test, as the Tribunal has stated repeatedly, is one which has to be met (or not) by taking into account all the elements which it outlines. It is possible for some of those elements to remain in place through a given period and others to vary. To the extent that such variations affect the outcome of a determination as to whether parties are members of a couple will depend on the weight assigned to each in relation to the individual set of circumstances. In some instances, matters of finance and accommodation may be utterly predominant, in others they may carry less weight because issues of the sexual, social or mutual commitment aspects of the relationship are more determinative of the genuine nature of the relationship.

23. In this instance the Tribunal has found a degree of constancy in the financial relationship and the existence of some sort of “household” built around mutual commitment to the welfare of the children. Equally, it has found that the accommodation and other section 4(3) elements vary markedly over time, particularly before and after the parties’ separation in October 2011. The Tribunal’s findings on this matter reflect that assessment.

24. The Tribunal’s finding is not to suggest that this was, or indeed is, a happy relationship, as the Applicant concedes.[160] From time to time the parties were together, at times they were apart. There were casual social and sexual encounters. There was a high degree of mutual commitment to their children and limited commitment to each other. It was messy – but that is often what happens in life.

    [160] 14 October transcript at 228 [31]-[32].

    Living separately and apart … on a permanent or indefinite basis

25. There is no dispute that prior to 11 October 2011 the Respondent was a member of a couple, fully cohabiting with Ms Al Hussein in either his parent’s home or their shared home in 107 Punchbowl.

26. The question then becomes one of the living arrangements during the relevant period, which is in reality two separate periods:

    ·11 October 2011 to 25 January 2014: from the Respondent’s departure from 107 Punchbowl until his move into 1 Greenacre, and

    ·26 January 2014 to 27 September 2017: from the move into 1 Greenacre to the date of the Department’s assessment.

27. The Tribunal has already explained above that it finds (as did the AAT1) that for the period 11 October 2011 to 25 January 2014 the Respondent lived separately and apart from Ms Al Hussein. It finds that the Respondent lived at 23 Lakemba and 81-85 Greenacre with his male friends while Ms Al Hussein lived at 5 Punchbowl and at 1 Greenacre.

28. Although confusing and in part obscure in their details, the Separated Under One Roof forms lodged by both the Respondent and by Ms Al Hussein were completed as a result of the notification which the Respondent made to the Department about their separation and the Department’s despatch of the forms thereafter.[161]

    [161] Supplementary T documents at 3159-3169 (Respondent) and 3170-3179 (Ms Al Hussein).

29. The statutory definition of a member of a couple given by section 4(2)(a) of the Act is:

    Member of a couple – general

    (2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

    (a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis

30. The definition in section 4(2) encompasses a number of distinct elements. In the first instance “separately and apart” does not necessarily mean physical separation. A couple may live under the same roof and yet live separately and apart for the purposes of the Act.[162]

    [162] Holmes and Secretary, Department of Social Services [1987] AATA 896.

31. Those separated living arrangements, however, have to be on a “permanent” or “indefinite” basis. The Macquarie Dictionary defines “indefinite” as meaning “not definite”, “without fixed or specified limit”, “unlimited”, and “not clearly defined”.

32. The disjunctive in the legislation here is important. The evidence shows that the Respondent and Ms Al Hussein travelled together and, at least during their reconciliation period in Malaysia, they cohabited. That may be indicative of the fact that the separated living arrangement was not “permanent”. However, in the opinion of the Tribunal the separate living arrangement was, from the time of the 2011 separation until the re-establishment of cohabitation in the same premises, indefinite.

    “Indefinite”

33. The term “indefinite” was inserted in the Act by passage of the Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (Cth) with the specific aim of ensuring that “temporary” separations did not give rise to entitlements.[163] Hence, it was possible for the Tribunal to find, as it did in SRJ, that taking into account “the overall context of the circumstances of the particular couple”:[164]

    On the basis of these findings which go to the various indicia contained in subsection 4(3) of the Act, and having regard to all the circumstances of the relationship, we find that throughout the period under review Mr and Mrs J were living separately and apart on an indefinite basis but not on a permanent basis. To say, as did the Respondent, that she "wanted some space" and that reconciliation was possible, is not consistent with the concept of their living separate and apart on a permanent basis. In retrospect we know that even though the period of separation was indefinite it clearly was not permanent, nor was there much evidence to support the likelihood of it being permanent.[165]

    [163] Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (Cth); Explanatory Memorandum, Social Security (Non-Budget Measures) Legislation Amendment Bill 1995 (Cth). “Temporary” including periods of separate holidays or separated working arrangements or periods of hospitalisation.

    [164] Secretary, Department of Social Security and SRJ [1996] AATA 188, [78].

    [165] Ibid [76].

34. There was, in this case, no fixed time contemplated whereupon the separated living arrangements between 11 October 2011 to 25 January 2014 would terminate, nothing “precise and fixed”,[166] and as such, the living arrangements were of an indefinite character for this period. They also did not comport with the characteristics of a couple during this period.

    [166] Fredrick and Secretary, Department of Social Services (Social services second review) [2016] AATA 475, [59].

35. However, from 26 January 2014, the Tribunal is satisfied that the Respondent and Ms Al Hussein were not living separately and apart on a permanent or indefinite basis. The evidence is that of sharing of the 1 Greenacre premises, with exchanges between living in the granny flat and living in the main house, and with mutual activities involving the children. It appears that the constancy of the financial arrangements has been maintained, the aspect of there being a “household” has been strengthened, and there has been a restoration (albeit partial) of elements of a social relationship and an enhanced element of mutuality. There is no evidence before the Tribunal which goes to any matters of a resumed sexual relationship.

    IS THERE A DEBT ARISING?

36. As a matter of fact, if the Respondent was a member of a couple and not living separately and apart from his partner on a permanent or indefinite basis, and if he was being paid social security payments at the single rate when he should have been paid at the partnered rate, then it follows that he has been overpaid and a debt arises.[167]

    [167] Social Security Act 1991 (Cth) (Act) s 1223(1); A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Family Assistance (Administration) Act) s 71(2).

    SHOULD THE DEBT BE WRITTEN OFF OR WAIVED?

37. Sections 1236 and 1237AAD of the Act and sections 95 and 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Family Assistance (Administration) Act) provide a variety of mechanisms whereby social security debts and family assistance debts to the Commonwealth may be waived or written off.

38. Section 1237AAD of the Act and section 101 of the Family Assistance (Administration) Act require the existence of “special circumstances” other than financial hardship alone in order for a debt to be waived. They also require the Secretary be satisfied that the debt did not result wholly or partly from the debtor, Mr Chamma, knowingly making false statements or representations, or failing or omitting to comply with legislated requirements for receipt of his social security and family assistance payments.[168]

    [168] Act s 1237AAD(a) and (b) and Family Assistance (Administration) Act s 101(a) and (b).

1. The Tribunal does not find that the Respondent made false claims in support of his applications, nor that he failed or omitted to comply with the relevant legislative requirements regarding notification of the Department of changed circumstances. There is considerable evidence which establishes that the Respondent was in regular touch with the Department and kept them informed of matters such as his changes of address.

2. The Respondent must then establish that there are “special circumstances” arising such that his debt should be waived. Section 1237AAD specifically excludes, as a special circumstance, financial hardship alone:

   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.

3. This is likewise reflected in section 101 of the Family Assistance (Administration) Act.

4. As with so many key concepts in the Act and the Family Assistance (Administration) Act, the phrase “special circumstances” is not given any precise definition. Without going into extensive detail, it can be said that the courts have identified a number of factors which go to establishing whether or not “special circumstance” exist. They must be:

   (a)something more than ordinary or usual[169]

   (b)markedly different from the usual run of cases – not necessarily unique but having a particular quality of unusualness[170]

   (c)attuned to the individual circumstances of each case[171]

   (d)not so rigidly applied as to risk harsh or unreasonable outcomes[172]

   (e)supportive of the overall integrity of the social security system and recognising the public interest in ensuring that public moneys are recovered where they can and should be.[173]

   [169] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; Jess v Scott (1986) 70 ALR 185, 193; Dranichnikov v Centrelink [2003] FCAFC 133, [66].

   [170] Re Beadle and Director-General of Social Security (1984) 6 ALD 1, 3.

   [171] Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, [80].

   [172] Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 162.

   [173] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569, [48]; Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, [80].

5. After a consideration of all the Respondent’s evidence the Tribunal finds that none of them give rise to a finding that there are special circumstances making it appropriate to waive the Respondent’s debt.

6. Debts may also be waived under section 1237A of the Act and section 97 of the Family Assistance (Administration) Act) if they have originated as a result of “sole” administrative error on the part of the Department. There is no such evidence that this is the case.

7. Section 1236(1A) of the Act (and also reflected in section 95 (2) of the Family Assistance (Administration) Act) contemplates that a debt may be written off if it is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown, or it is not cost effective for the Commonwealth to recover the debt. The Act at section 1236(1C) and the Family Assistance (Administration) Act at section 95(4) provide that, if a debt is recoverable by means of deductions or off sets against social security or family assistance payments, then:

   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.

8. Yet again, in the legislation, there is no definition of “severe financial hardship”.[174] There is no evidence before the Tribunal to the effect that the Respondent will suffer severe financial hardship. The obvious general observation is that repayment of a debt while maintaining responsibility for the care and upbringing of four children (or possibly five) with no other source of income may have a financial implications but the impacts will be a matter to which the Secretary will undoubtedly have to give consideration at some future date should it arise. The Tribunal cannot, on the evidence before it, find that Mr Chamma has no capacity to repay the debt.

   [174] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569, [29]-[34].

9. The Respondent’s case fits into none of these categories, rather, and sadly, it is by no means unusual or out of the ordinary. Consonant with the findings in relation to any writing off of the debt, there is no persuasive evidence before the Tribunal to suggest that the debts should be waived either.

   CONCLUSION

10. After three days of oral testimony, the examination of four witnesses as well as the Respondent, consideration of various statements and statutory declarations and over 1400 pages of documents plus the citation of numerous authorities, this Tribunal finds itself ad idem with the conclusions of the AAT1:

    ·the Tribunal is of the opinion that the Respondent was not living separately and apart from Ms Al Hussein from 26 January 2014 to 27 September 2017 and therefore he was a member of a couple for this period, but he was living separately and apart from Ms Al Hussein on an indefinite basis from 11 October 2011 to 25 January 2014 and was not a member of a couple for such period.

    ·the Respondent owes a debt to the Commonwealth resulting from the overpayment of CP, PP, FTB, CCR and CCB at the single rather than the partnered rate for the period 26 January 2014 to 27 September 2017.

    ·the recalculation of the debt arising must take into account the taxable income of both Mr Chamma and Ms Al Hussein from 26 January 2014.

    ·the balance of the debts as recalculated are to be recovered from the Respondent.

11. The application for review by the Applicant and the cross-appeal by the Respondent are rejected.

    DECISION

12. The decision under review is affirmed.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd]...............................

Associate

Dated: 10 December 2020

Date(s) of hearing:	12, 13 & 14 October 2020
Solicitors for the Applicant:	Dr S Thompson and Ms G Heggen, Services Australia
Solicitors for the Respondent:	Mr S Kassem, FutureLegal