Chendeb and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 566

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 566

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1362

GENERAL ADMINISTRATIVE  DIVISION		)
Re		AHMAD CHENDEB

Applicant

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

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date  14 June 2006

Date of Written Reasons            28 June 2006

Place  Sydney

Decision The reviewable decision of the SSAT made on 21 September 2005 is set aside and in substitution I decide to raise and recover an assurance of support debt in the amount of $2,325.90 for the period 4 July – 23 October 1998.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – debt – assurance of support – special circumstances and knowingly making a false statement or representation – special circumstances argued were Applicant’s poor health, financial hardship, delay in advising of the debt, Centrelink should have provided an interpreter and the debt should be raised against the assuree – no special circumstances found – issue of knowingly making a false statement or representation not examined as no special circumstances – decision set aside.

LEGISATION
Social Security Act 1991 section 1237AAD

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly

1.      This is my decision in the matter of Ahmad Chendeb and the Secretary, Department of Families, Community Services and Indigenous Affairs.

Introduction

2.      Mr Ahmad Chendeb provided an assurance of support for Mr Ahmad Skaf (“Mr Skaf”) to migrate to Australia. One consequence of that assurance was that Mr Skaf was not entitled to receive Centrelink benefits for two years, and the second was that if Mr Skaf did receive such benefits Mr Chendeb may be liable to repay them.

3.      About a month after his arrival in Australia Mr Skaf filled out a form claiming Newstart allowance in which he ticked a box "no" in response to the question:

Did someone provide you with assurance of support for your first two years in Australia? (T19)

4.      Mr Skaf received Newstart allowance for about three months until he advised Centrelink that someone had actually provided an assurance of support for him. The payment of the benefit was stopped.

5.      Mr Chendeb wishes to be relieved of the payment of the debt that he has incurred as a consequence of Mr Skaf's receipt of the Newstart allowance.

The Issues 

6.      There are two issues in this case:

(1)      Did Mr Skaf knowingly make a false statement or false representation when he filled out the form stating that no one had provided an assurance of support.

(2)      If the answer to that question is no, has Mr Chendeb satisfied me that the waiver provisions should be exercised in this case.

7.      The first issue arises because the legislation provides that I have to be satisfied that the debt did not result in whole or part from Mr Skaf or any other person making a false statement or false representation before I can consider whether I will waive the debt (s 1237AAD of the Social Security Act 1991 (“the Act”)).

8.      I found that it is unnecessary to determine the first issue because I have found that I am not satisfied that Mr Chendeb's circumstances other than financial hardship alone are special so as to make it desirable to waive the debt if that course were available to me. My reasons for this conclusion will follow.

Has Mr Chendeb satisfied me that the waiver provisions should be exercised in this case?

9.      Mr Chendeb was not represented at the hearing although he had an Arabic interpreter. Mr Chendeb had been given some legal advice and assistance including the preparation of the statutory declaration and a document entitled Applicant's Statement of Facts and Contentions was prepared by a Legal Aid lawyer. The special circumstances relied upon in the statement were as follows:

·     Mr Chendeb's poor health,

·     Mr Chendeb’s poor financial circumstances,

·     The long delay of almost two years in advising Mr Chendeb about the debt,

·     Centrelink's failure to arrange for a proper interpreter for Mr Skaf

·     The debt should have been recovered from Mr Skaf. 

10.     I address each matter in turn.

Mr Chendeb's Health 

11.     Following is a summary of the evidence before me. Mr Chendeb was injured at work in 2002 as I understand his declaration. He was lifting heavy tubs of meat, about 100 kilograms in weight he says, and over a day moved between 7 and 10 tons. Consequently he had a ganglion on his right hand. During his oral evidence he said that he needs an operation but because of the risk involved he has not had it.  Some time later he was involved in a car accident. He has pain in his hand, back, and neck. He sees Dr Maniam, orthopaedic specialist, for his bones and nerves. He understands that he needs an operation but not now because "his nerve is not good". 

12.     He also says that he sees Dr Mahmoud Mustafa "a psychology doctor" because he has been depressed for three or four years. That doctor does not give him medication but he put Mr Chendeb in hospital two months ago when he could not breathe and had a bad headache. He was advised to see another specialist about his head. He said he is looking for a doctor who speaks his language "so it will be easier to see him all the time".

13.     He said that he has had to go to Blacktown Hospital a few times because of his heart and head. Sometimes when he breathes he feels like he has a needle in his heart. Sometimes he has a big headache. He has been taken to hospital by ambulance and was told he had an infection in the "purse" that surrounds the heart.  He has difficulty sleeping. He feels pain in his neck and back when he sleeps. He has a certificate from his doctor, Dr Mahmoud Abdalla, that states that he can only do light work for 8 or 9 hours per week. The doctor refers to symptoms in the right hand, neck, back, and left knee. That doctor makes no mention of headaches or heart problems. Mr Chendeb says he takes various medications and on the day of the hearing he had taken Endone and Panadeine Forte to enable him to sit because of his back pain. He uses a Ventolin puffer if his breathing is bad. 

Mr Chendeb's Financial Circumstances 

14.     The evidence about Mr Chendeb's financial circumstances has led me to conclude that his evidence is unreliable. For example in his statutory declaration dated 13 March 2006 he stated that he did not know when his worker's compensation matter would be finalised. Correspondence from the worker's compensation insurer to Centrelink stated that the matter had been settled on 9 January 2006. In his statutory declaration in March he also referred to debts to family members in the amount of about $15,000.

15.     At the hearing Mr Chendeb relied upon Commonwealth Bank records for an account in his former wife's name showing a deposit of $31,500 on 31 March, 2006 which Mr Chendeb explained was his receipt of the payment from the insurer. There were withdrawals of $32,000 on the same day. Mr Chendeb said that he had the money put into his former wife's account because she worked at the Commonwealth Bank and she could access the funds on the day of deposit, whereas if he had deposited the funds in his own ANZ account he would have had to wait for three days before accessing any of his funds.

16.     He also relied upon a number of receipts from various family members all dated 8, 9, and 10 June, 2006 which he stated reflected his repayment of debts to them on 31 March 2006, 1 April 2006 and 9 June 2006. They totalled approximately $32,000. Mr Chendeb said he would repay those debts before his debts to creditors arising from debts to financial institutions including AMEX, St George Bank, and also the Child Support Agency, because his family members were upset with him because he kept making promises to paying in a few months and then did not pay because settlement was delayed. The debts to the financial institutions, which total $36,000, remain unpaid. 

17.     I find that Mr Chendeb's statement in his statutory declaration that he did not know when his worker's compensation case would be finalised was disingenuous although he might not have known when he would receive payment. I find that he knew that the matter had settled and was awaiting payment and knew the amount he would be paid. It may even be that he had already received the funds, I just do not know.

18.     I note also that his alleged repayments to his relatives was more than the amount received into the Commonwealth Bank of $31,500 by a sum of $400. In his March statement he said he owed approximately $15,000 to his relatives but the receipts relied on are more than twice that amount. He sought to explain that inconsistency by saying that his solicitor just told him to put in what he thought the amount was and at the time he did not have the details of all the debts. I do not accept that the receipts reflect actual debts and payments.

19.     It is relevant that he saw his solicitor on 7 June 2006. I infer at that time he would have been made aware of the documents attached to the statement of facts and contentions prepared on behalf of the Secretary dated 19 January 2006 to which the insurance documents stating the settlement date of 1 January 2006 was attached. The documents also set out the total amount of settlement in the order of $32,000. As stated above all the receipts Mr Chendeb relied on at the hearing were dated after 7 June, 2006.

20.     I am not satisfied that Mr Chendeb's financial circumstances are as he has described them. In particular I do not know if he has any funds left from his worker's compensation settlement. I also do not know whether the debts he claims he has to financial institutions are still being pursued by those institutions. For example, one of the documents is dated January 2004.

Delay in Advising of Debt

21.     Another special circumstance relied on was the long delay, almost two years in advising Mr Chendeb about the debt. I accept that there was an unsatisfactory delay in advising Mr Chendeb of the debt he has incurred as a result of Mr Skaf's receiving Newstart allowance, however that delay has been submerged in further delays of nearly six years. In the overall picture, the earlier delay is not significant.

Interpreter for Mr Skaf

22.     Centrelink's failure to arrange for a proper interpreter for Mr Skaf when he filled out the form and answered "no" to the question of assurance of support was another matter which was relied on in the statement of facts and contentions filed on Mr Chendeb's behalf. In relation to the first issue it's not necessary for me to make a finding, however as those statement of facts and contentions included this issue in relation to special circumstances issue, I briefly comment upon it.

23.     The event involved occurred nearly eight years ago. I have conflicting statements from Mr Skaf and the Centrelink officer. Neither was available to give evidence. Given the other evidence, this aspect of the case is of little weight in my decision.

Debt to be Recovered from Mr Skaf

24.     Another issue relied upon in the statement of facts and contentions for Mr Chendeb was an argument that the debt should have been recovered from Mr Skaf.  I do not consider this matter persuasive. The scheme of the legislation is that a person who provides an assurance of support should bear the responsibility for any debt to the Commonwealth incurred by the assuree. The circumstances of this case do not persuade me that that policy and legislative purpose should not be implemented.

25.     Taking into account all the evidence and in particular the unreliability of the evidence presented by and on behalf of Mr Chendeb I am not satisfied that I should waive the debt he has incurred.

Decision

26.     I set aside the reviewable decision of the Social Security Appeals Tribunal and in substitution decide to raise and recover an assurance of support debt in the amount of $2,325.90 for the period 4 July to 23 October 1998.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  13 June 2006
Date of Decision  14 June 2006
Date of Written Reasons          28 June 2006
Solicitor for the Applicant          Applicant Self Represented at Hearing with             
  Legal Aid Commission preparing written     
  documentation.
Advocate for the Respondent   Centrelink Legal Services