Chan and Secretary, Department of Family and Community Services and Anor

[2004] AATA 443

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 443

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2002/1355   

GENERAL ADMINISTRATIVE DIVISION		)
Re		Stanford CHAN

Applicant

And Secretary, Department of Family and Community Services

First Respondent

Hieu Quan Chan/Hieu Quan Tan Vu

Second Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date30 April 2004

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg, Member

DIRECTION [2004] AATA 443

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No N2002/1355

GENERAL ADMINISTRATIVE DIVISION		)
Re		STANFORD CHAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

First Respondent

HIEU QUAN CHAN / HEIU QUAN TAN VU

Second Respondent

DIRECTION

Tribunal  Ms N Isenberg, Member

Date 4 May 2004

Place Sydney

WHEREAS:

1.    The Tribunal released a written decision in this matter, which was dated 30 April 2004.

2.    It has come to the Tribunal’s attention that there was an error in the decision.

3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that:

1.The words “Representative for the Applicant” be replaced with the words “Solicitor for the Second Respondent” in the decision of the Tribunal as recorded.

………………………
  Ms N Isenberg

Member

CATCHWORDS

SOCIAL SECURITY – whether to recover debts of Parenting Payment Single, Pensioner Education Supplement and Family Tax Benefit paid to Applicant – whether child in Applicant’s sole care – change in caring circumstances – credibility of Applicant – whether debt can be waived to due special circumstances – decision affirmed

LEGISLATION

Social Security Act 1991, sections 1223, 1224(1) (repealed), 1236, 1237AAD

A New Tax System (Family Assistance) (Administration) Act 1999, section 71(1), 97

REASONS FOR DECISION

30 April 2004 Ms N Isenberg, Member

DECISION UNDER REVIEW

1.      The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Social Security Appeals Tribunal (“SSAT”) dated 22 August 2002 (T2), which affirmed the decisions of an Authorised Review Officer on 2 January 2002 (T37) and the Respondent, the Secretary, Department of Family and Community Services (“Centrelink”) dated 3 September 2001 (T30, T31) that debts of Parenting Payment Single (“PPS”) and Pensioner Education Supplement (“PES”) paid in the period 18 June 2001 to 15 August 2001 and Family Tax Benefit (“FTB”) paid in the period 1 July 2001 to 15 August 2001 are to be recovered from the Applicant, Mr Stanford Chan.

BACKGROUND

2.      On 14 December 2000, the Family Court issued orders in relation to Mr Chan and Ms Hanh Minh Vu’s son, Hieu, born 25 July 2000, whereby he was to reside with his mother and have little contact with his father. (T7)  On 2 February 2001, the Family Court issued further orders that Hieu reside with his mother and have six hours per week contact with his father. (T3)

3.      On 7 May 2001, Mr Chan contacted Centrelink to claim payment, advising that Hieu’s mother, Ms Vu had returned to Vietnam.  On 22 May 2001 Mr Chan claimed FTB in respect of Hieu and advised a change of carer from Ms Vu.  Mr Chan was subsequently paid FTB.   

4.      On 18 June 2001 Mr Chan claimed PES and PPS also on the basis that his son was in his care.

5.      Mr Chan asserts that he qualified for payments of PPS, PES and FTB as he lived with and cared for Hieu, between 26 April 2001 and 20 July 2001.  Centrelink contends that Hieu was not in his care to the extent of being a qualifying child for payments of PPS and PES, and little, if at all, in his care for the purposes of FTB.

6.      Centrelink understands Hieu to have been in the care of Ms Vu during the relevant period.  Hieu was paid Special Benefit, as he did not have a sufficient livelihood in his mother’s care.  At that time Ms Vu was not a permanent resident and she was therefore not authorised to work in Australia.

7.      On 22 June 2001 Mr Chan was advised by letter (T12) that he must notify Centrelink within 14 days of a change in circumstances, specifically, if Hieu stopped living with him, was no longer in his care, was no longer dependant on him, or if he shared Hieu’s care with anyone.

8.      On 3 July 2001, the conditions surrounding the care of Hieu changed as Mr Chan began sharing care of Hieu with Ms Vu. Mr Chan did not advise Centrelink of this change.

9.      On 9 August 2001, Mr Chan returned to Australia, having been overseas for some weeks.

10.     On 16 August 2001, a hearing was held at the Family Court and a decision was handed down which held that Hieu was to reside primarily with his mother.

11.     On 20 August 2001, Mr Chan phoned Centrelink regarding the cancellation of his payments and told a Centrelink Officer that “child with him” (R2, attachment 5).  On 30 August 2001, Mr Chan attended an interview at Centrelink, at which the cancellation of his payments for Hieu was finalised. (R2, attachment 5)

12.     On 3 September 2001, Centrelink sent Mr Chan three account payable notices for recoverable debts.  It is relevant to note that a debt has also been determined regarding FTB paid to Mr Chan during the year 2000/01; Mr Chan has not appealed the decision to recover this debt.

13. On 2 January 2002, an ARO affirmed the decision to raise & recover the debts based on the fact that Mr Chan was not qualified for the payments; he did not have care of Hieu. Parts of the PPS and PES debts raised prior to 1 July 2001 are raised per section 1224(1), as it then was, of the Social Security Act 1991 (“the Act”) and parts of the debts after 1 July 2001 are raised per section 1223(1) of the Act. The FTB debt was raised under section 71(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (“FAA Act”). Recovery could not be waived under section 1237AAD of the Act, as Mr Chan did not notify Centrelink of the circumstances as to Hieu’s care.

ISSUE BEFORE THE TRIBUNAL

14.     The initial issue is whether Mr Chan was entitled to PPS, PES and FTB.  There was no dispute that this turned, in respect of each type of benefit, on whether Hieu was in Mr Chan’s care, and if so to what extent, and during what period.

15.     If Mr Chan was not entitled to those benefits, were there recoverable debts as alleged:

·$1730.58 due to overpayment of PPS, during the period: 18/6/01- 15/8/01

·$262.97 due to overpayment of PES, during the period: 18/6/01- 15/8/01

·$966.00 due to overpayment of FTB, during the period: 1/7/01- 15/8/01

APPEARANCES

16.     A hearing was held before the Tribunal on 16 January 2004 and 25 February 2004 at which Mr Chan was self represented, but assisted by Ms Fu, an accredited interpreter in the Cantonese language.  Centrelink was represented by Ms Marian Buckley, an advocate from Centrelink Service Recovery Team.  Hieu was represented by Ms. Jackie Finlay of the Welfare Rights Centre.

17.     Ms Vu gave evidence, assisted by Ms Nguyen, an accredited interpreter in the Vietnamese language.  At the resumed hearing Ms Vu was assisted by Mr Duong Dinh.

DOCUMENTARY EVIDENCE

18. I took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T-documents").  Other documents were tendered and these have been attached to the Tribunal’s file. In particular, each party provided a number of extracts from Mr Chan and Ms Vu’s Family Court proceedings.

ORAL EVIDENCE

19.     Mr Chan and Ms Vu gave evidence and were cross-examined.  I also asked them questions.  Their evidence, to the extent relevant, is referred to below.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

20.     In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

Was Hieu in Mr Chan’s care?

21.     Mr Chan and Ms Vu gave very different accounts of Hieu’s care during the relevant periods.

22.     Mr Chan told me that on 26 April 2001 Ms Vu telephoned him and told him that her application to the Refugee Review Tribunal (“RRT”) had been refused and that she had to return to Vietnam.  She told him that she was going to place their son in his care.  Because this was contrary to the Family Court’s order he asked her to write a declaration that she consented to their son living with him.  She prepared the declaration and dated it the same day (T32/84).

23.     Later that day Mr Chan collected Hieu, together with his stroller and a big bag of clothes.

24.     He said at the time he understood Ms Vu to be returning to Vietnam very soon because he knew that the RRT decision was made on 15 March 2001 and that the time for appeal had already passed.

25.     Mr Chan thought he might have problems getting Hieu into day care but as he was a student at Ultimo TAFE, he was able, within few days, to get him into the TAFE Child Care Centre (“the Centre”) for about four hours per day, four to five days per week, depending on his own lecture and study commitments.  He agreed that both he and Ms Vu had inspected the Centre together.  He paid the initial fee and after that Centrelink paid the fees directly.  Hieu attended the Centre from the beginning of May until mid July.

26.     Mr Chan said that about a week after he first spoke with Ms Vu she telephoned him and said she wanted to see Hieu.  She collected Hieu in the evening and placed him back in Mr Chan’s care before TAFE the following day.  There was no ongoing arrangement; about once a week Ms Vu would just phone up and ask to see Hieu.  The exchange would sometimes take place near Chinatown. 

27.     There was no further discussion about Ms Vu’s return to Vietnam, but Mr Chan said he realised, after about the first week, that she had not gone. 

28.     Mr Chan said that on Friday, 20 July 2001 at 7 pm he ceased fulltime care of Hieu.  He knew that on the following Monday the Family Court was to do a report in relation to the care arrangements for Hieu.  He knew it would be ‘very unfavourable to her [Ms Vu]’ if she did not have care of Hieu at that time.  Ms Vu had phoned that day and said that she wanted to see Hieu but did not say that she wanted him to stay with her permanently.  Mr Chan returned Hieu with his stroller and sufficient clothes for an overnight stay. On the evening following the Family Court appearance she said she was not returning Hieu.

29.     He said he did not see Hieu again for about another two weeks.  A few months later he returned the balance of Hieu’s clothes.

30.     Ms Vu told me that the RRT had refused her application on 15 March 2001.  In order to appeal she had to pay $1000 within seven days.  She did this and produced a receipt dated 22 March 2001.  To raise the $1000 she had borrowed money from a friend.  Ms Vu said that although she may have been able to use the Special Benefit funds she would not do that as that money was ‘for my son’ and from which she would buy food, nappies and clothes.  In order to repay the loan she did not ask Mr Chan to lend her money but asked him to return to her some of the money he had taken from her when they were together, and which, she said, he had spent at the casino.  She said she did not tell Mr Chan why she needed the money.  She could not recall exactly when this conversation took place, but it was shortly after the RRT decision and on an occasion when Hieu was going to be with Mr Chan.  He told her he would not give her any money but he would look after Hieu while she went to work.  She agreed to this arrangement.

31.     She denied telling Mr Chan that she did not intend to appeal against the RRT decision.

32.     She agreed that she signed the declaration one afternoon while exchanging Hieu at Central station.  She said that Mr Chan gave it to her to sign and told her it was required for the Centre.  She signed it standing up so her signature was ’not neat’.

33.     She said they had visited the Centre together and the Centre told them when there were vacancies.  Mr Chan asked her to pay the initial $50 application fee. 

34.     She worked during that time in a laundry for a few hours per day in a very flexible working arrangement.  She and Mr Chan would arrange, from day to day, the timing of the exchange of Hieu, depending on the Centre timetable.  She would drop Hieu off, usually at Central station, and Mr Chan would take Hieu to the Centre, collect him, and return him to Ms Vu at the station.  Whilst Hieu was in care, she would work at the laundry. 

35.     This arrangement continued for about six weeks until she earned sufficient money to repay the loan.

36.     She was adamant that Hieu never stayed with Mr Chan overnight.  It was not until after the Family Court final orders in November/December 2001 that Hieu ever stayed with Mr Chan overnight.

37.     Other evidence which is relevant to determination of what occurred includes information from the Centre, dated 13 July 2001 which confirms that Hieu attended from Friday 4 May 2001 to Tuesday 3 July 2001.

38.     Mr Chan tendered an extract from the Family Court proceedings, including evidence from Ms Pahor, the Centre director who said that it was Mr Chan who regularly dropped off Hieu at the Centre, during a period of two and a half months.

39.     The transcript included an affidavit by Ms Vu dated 16 July 2001 which included the following evidence:

“MR LADINS:  Did you notify to the government department where you received the financial support – parenting support that you no longer take care of the child?

THE INTERPRETER: Not yet, because I was overseas and I returned only on the 9^th.

MR LADINS:   Did you notify the government at the time you leaving the country, so that the government stop payment for you to your account?

…

MR LADINS:   On returning to Australia did you notify to the government department then you are not entitled to receive the parenting benefit.

…

THE INTERPRETER:   Because between 9 and 16 August is only one week, so I’d rather wait for the court’s decision first.

…

THE INTERPRETER:  No, because as far as I know, if there’s any change I can inform the Centrelink within two weeks/

…

THE INTERPRETER:  When I applied I was entitled because thes on was under my total care.”

40.     Mr Chan also provided a transcript of a conversation with Tu Binh Tran and Thi Xuan Bui dated 21 November 2001 where it was recorded that they cared for Hieu (from some unspecified date prior to 21 October 2001) for two months, 12 hours per day, five days per week, from 8 am to 8 pm, for which they were paid $100 per week.

41.     Other material from the Family Court proceedings included a statement by Mr Chan dated 12 July 2001 that he had looked after Hieu from 26 April 2001 to 25 June 2001 (recorded in error as 25 April 2001), and that Hieu went to the Centre from 4 May 2001 to 25 June 2001.

42.     Copies of two birth certificates for Hieu were tendered.  The first was issued in the name of Hieu Quan Tran Vu.  The second was issued at the request of Mr Chan, in the name Hieu Quan Chan.  In relation to the birth certificates Ms Vu was adamant that she never referred to Hieu by the surname Chan.  It was therefore submitted that it would be highly unlikely that she had prepared the declaration in relation to Hieu in that name.

43.     There were a number of problems in attempting to reconcile the evidence of Mr Chan and Ms Vu.  Essentially, their evidence was in direct conflict.  Mr Chan’s position was that he had care of Hieu from 26 April 2001 until 20 July 2001 whereas Ms Vu’s evidence is that he did not. 

44.     I sought assistance in coming to my decision from such contemporaneous material as was available, in particular the extracts from the Family Court proceedings which were tendered.  However, far from assisting, this material confirmed that the parties have been in dispute in relation to this very issue for quite some time.  It is not just in the context of the entitlement to the various benefits at issue in this matter, but in relation to the respective claims for custody of Hieu.  There is also some suggestion, so far as I can fathom, that because Hieu is an Australia citizen, to have custody of him appears to have been of relevance to Ms Vu’s claim for permanent residence.

45.     I had some difficulties with some aspects of Mr Chan’s evidence.  I find it unlikely that on 26 April 2001 Ms Vu would have asked him to take Hieu on the basis that she was about to return to Vietnam.  To put this discussion into context, I consider it unlikely that Ms Vu would have so willingly handed over the child when she had, only in February 2001, obtained orders from the Family Court granting her custody.  Further, I consider it unlikely that on the very day of her unexpected telephone request to Mr Chan, she would not only have drafted, typed and signed the declaration in which she referred to Hieu (as Hieu Quan Chan the name not commonly used by her) but have actually delivered him, together with his stroller and all his clothes.  I also had difficulty accepting that if Hieu, at age one, was returned to Ms Vu on 20 July 2001 any purpose would have been served in returning his clothes ‘a few months later’, as Mr Chan had said. 

46.     In addition it would have been doubtful that Ms Vu would have told Mr Chan that she was returning to Vietnam and was taking immediate steps for the long term care of Hieu, at a time when she had already lodged her RRT appeal.  Mr Chan told the SSAT that he did not know when Ms Vu intended to return to Vietnam and that Ms Vu had said that she needed the money to send overseas to her ill mother.  Mr Chan told the SSAT in respect of a related matter (T11/30) that ‘[Ms Vu] has to go back to Vietnam’.  By the time of that hearing, namely 21 June 2001, Mr Chan was well aware that Ms Vu was not in fact returning to Vietnam.

47.     Mr Chan told me about ad hoc arrangements he had with Ms Vu relating to Hieu staying with her overnight and that these occurred about weekly.  However, he told the SSAT that Ms Vu did not necessarily phone him every week.

48.     He told the SSAT that Ms Vu had rung him on 20 July 2001 and told him she would be resuming custody of their child later that evening, whereas in his statement to the SSAT, dated 14 January 2002, he wrote that Ms Vu had taken the child ‘without my consent on Friday 20 July 2001’, but had said she would return him on 22 July 2001.

49.     There are some further matters which lead me to have reservations about his evidence.  On 7 May 2001, he is recorded as having told a Centrelink officer that Hieu’s mother ‘is back in Vietnam’ and that she was ‘not allowed to return’ to Australia (T9/27).  On his own evidence to this Tribunal, Mr Chan said that after Hieu had been in his care for about a week, that is by the beginning of May, Ms Vu had contacted him and they came to arrangements about Hieu.  It would appear that by the date of the conversation with the Centrelink officer on 7 May 2001 he was at least aware that Ms Vu was not in Vietnam.

50.     In a further Centrelink record dated 22 May 2001 (Exhibit 1R2) it was recorded that [Ms Vu] ‘has gone back to Vietnam’.  Mr Chan says this is an error.  In June 2001 he is recorded as having said the child’s mother ‘left his son to him’ and that he ‘doesn’t know where she is’ (T10/28).  At an interview dated 30 August 2001, over a month later, on his own evidence, after Hieu had returned to Ms Vu, Mr Chan is recorded as telling a Centrelink officer that the child was ‘with him’.  I do not accept that all these entries are errors.

51.     On 18 June 2001 Mr Chan completed a claim for PPS in which he answered ‘No’ to the question:

“Do you (or your partner) share the care of the child with another person? Eg the child stays overnight with the other parent for periods of time?”

Even on Mr Chan’s own evidence, at that time, Hieu occasionally stayed overnight with Ms Vu.

52.     In an affidavit dated 12 July 2001 Mr Chan wrote that he had been looking after Hieu between 26 April 2001 and 25 April (sic) 2001.  In the next paragraph he wrote that the child had been in childcare between 4 May 2001 and 25 June 2001.  This would tend to suggest that the earlier entry of 25 April 2001 was a typographical error and may have misrecorded 25 June as the date Hieu left his care.

53.     The evidence from the Centre supports this contention, in that Hieu attended from Friday 4 May 2001.  It does however suggest that Hieu continued to attend up until Tuesday 3 July 2001.

54.     I did however find some thread of consistency in Ms Vu’s evidence.  In her affidavit to the Family Court (Exhibit A3), Ms Vu provided an account which was broadly consistent with her evidence before me.  I note that that affidavit was dated 16 July 2001, that is somewhat contemporaneous with the matters under consideration. 

55.     Although it is far from clear, I prefer, on the balance of probabilities, Ms Vu’s account and find that Hieu was not in Mr Chan’s care during the period for which he was paid PPS, PES and FTB, the benefits the subject of this application for review.

Is Centrelink entitled to recover the amounts paid to Mr Chan?

56.     Having come to the above view it remained to determine if Centrelink was entitled to recover the amounts paid to Mr Chan, totalling some  $2959.55.

57. The overpaid amounts are debts as defined in section 1223(1) of the Act. The waiver provisions of the Act are very limited and the only provision at all likely to have any application to Mr Chan is that of section 1237AAD as follows:

“1237AADWaiver in special circumstances

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 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.

Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.”

58.     Mr Chan’s evidence was that he contacted Centrelink at Brookvale. He said he did not know when that was, but it was suggested that it was 23 July 2001.  The SSAT had before it Centrelink computer records which indicated that Mr Chan had contacted Centrelink on 23 July 2001 and that his post grant appointment scheduled for that day was rebooked to 20 August 2001, but was later cancelled.  The SSAT found that it was ‘unclear’ whether Mr Chan had told Centrelink that day that he no longer had the care of Hieu, or whether he was waiting for the interview.  The material available to me suggested that on 12 July 2001, Mr Chan was invited to submit his income estimate for the purposes of FTB, and that on 24 July 2001 it was decided that his FTB would remain unaltered. 

59.     I also had available to me of a portion of the Family Court transcript dated 17 August 2001(Exhibit 2R4).  There Mr Chan was specifically asked if on his return to Australia on 9 August 2001 whether he had notified [Centrelink] that he was not entitled to ‘parenting benefit’ because Hieu was no longer in his care.  Despite being cautioned by the judge, he said that he had not, as he would rather wait for the court’s decision, which was to be delivered in only one week.  Mr Chan suggested to me that there had been an error in translation.

60.     On the same day as the Family Court proceedings Centrelink was contacted by a social worker who said that Hieu had not been in Mr Chan’s care.  Action for cancellation of PPS followed this information.

61.     Mr Chan also told me that he did not know the Centrelink procedures, although he acknowledged that in the letter dated 22 June 2001 he had been informed that he was to notify Centrelink if there was a change in care arrangements.  He said he did not think the arrangement he had with Ms Vu amounted to ‘sharing’.

62.     Although Mr Chan said that he probably told Centrelink he was going overseas for a week or 10 days on the day he left, Centrelink has no record of this contact.  He said the SSAT had misrecorded his evidence that he ‘went to’ Centrelink in the week after 20 July 2001.

63. On balance, I find that Mr Chan did not contact Centrelink. I therefore must come to the view that the payments to Mr Chan were based on false representations. Even it this was not the case, I am not satisfied that there are special circumstances that make it desirable to waive the debt. Although he gave evidence of being of fairly limited financial means, there was no evidence of other circumstances which are ‘special’. In any event, I note that Mr Chan has apparently been able to finance an overseas trip only recently. For this reason I also find that Mr Chan’s circumstances do not attract the benefits of section 97 of the FAA Act in relation to his FTB.

64. For the same reason I do not consider the debts should be written off under any provision of section 1236 of the Act.

DECISION

65.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER

Signed: A. Krilis
  Associate

Date/s of Hearing  16 January 2004, 25 February 2004
Date of Decision  30 April 2004
Representative for the Applicant               Self
Representative for the First Respondent  Ms Marian Buckley
Solicitor for the Second Respondent        Ms Jackie Finlay