Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2010] AATA 26

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 26
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0369

GENERAL ADMINISTRATIVE DIVISION )

Re Confidential

Applicant

And

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

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member
Date15 January 2010
PlacePerth

Decision The Tribunal affirms the decisions of the Social Security Appeals Tribunal made on 7 January 2009, save and except that the amount of the applicant’s rent assistance debt is varied to $2,321.29
.........(sgd) Mr A Sweidan............
Senior Member

CATCHWORDS
- Social Security – whether Family Tax Benefit payable to applicant for a child – applicant married to child’s mother – Mother and child both resident in Indonesia and child has never been in Australia – whether special circumstances exist that warrant waiver of rent assistance debt - decisions under review affirmed and amount of debt varied
legislation
A New Tax System (Family Assistance) Act 1999, s21, s22, s27
Social Security Act 1991, s7
Social Security (Administration) Act 1999

Cases

Angelakos v Secretary, Dept of Employment and Workplace Relations (2007) 100 ALD 9

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

Dranichnikov v Centrelink [2003] FCAFC 133

Groth v Department of Social Security (1995) 40 ALD 541

Riddell v Department of Social Security (1993) 42 FCR 443

Secretary, Department of Family and Community Services and Barrett, Re [1999] AATA 196

REASONS FOR DECISION

18 January 2010 Mr A Sweidan

background

1.      Applicant seeks review of decisions of the Social Security Appeals Tribunal (“SSAT”) made on 7 January 2009 which relevantly (a) affirmed an earlier decision by a Centrelink Authorised Review Officer that Family Tax Benefit (“FTB”) is not payable to applicant for the child (“the Child”); and (b) affirmed a Centrelink Authorised Review Officer’s decision to raise and recover a rent assistance debt of $3,986.34 from applicant.
2.      The amount in relation to the rent assistance debt has been amended by the respondent since the SSAT decision to $2,321.29
facts
The following facts are not in dispute
3. The applicant is an Australian resident for the purposes of the Social Security and Family Assistance Laws in that the respondent accepts that he meets the requirements of s. 7 of the Social Security Act 1991.
4.      The applicant suffers from a chronic mental illness and receives a disability support pension.
5.      The applicant departed Australia on 11 March 2006 for Bali, Indonesia and since then he has lived there apart from periods spent in Australia totalling 516 days in all between 9 June 2006 and 24 August 2009.
6.      Subsequent to 11 March 2006 applicant became partnered with an Indonesian woman (“the Mother”) who has a daughter (“the Child”). Neither the Mother nor the Child are permanent Australian Residents and applicant is not the birth father of the Child.
7.      The Child has never been to or lived in Australia
8.      Applicant commenced to provide for the financial support of the Child on or about 6 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Confidential and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 26
Case: [2010] AATA 26
Decision Date: 15 January 2010

CaseChat Overview and Summary

Confidential, the applicant, sought a review of decisions made by the Social Security Appeals Tribunal (SSAT) which determined that Family Tax Benefit was not payable to the applicant for his child. The child, who was born in Indonesia and had never been in Australia, lived with the child’s mother, who was also in Indonesia. The applicant was married to the child’s mother and had applied for Family Tax Benefit. The Administrative Appeals Tribunal (AAT) was required to decide whether Family Tax Benefit was payable in the circumstances and whether there were special circumstances warranting a waiver of the applicant’s rent assistance debt.

The AAT considered whether the applicant was an eligible person for the purposes of the Family Tax Benefit Act 1988. It found that, given the child had never been in Australia and was not ordinarily resident in Australia, the applicant did not meet the eligibility criteria for Family Tax Benefit. The AAT also examined whether there were special circumstances warranting a waiver of the applicant’s rent assistance debt. The Tribunal concluded that, although the applicant was unable to repay the debt, there were no special circumstances to warrant a waiver of the debt. The Tribunal noted that the applicant’s financial situation did not amount to special circumstances warranting a waiver of the debt, as the applicant had chosen to marry a person with a child from another country and had not considered the implications of that decision.

The Tribunal affirmed the decisions of the SSAT, save and except that the amount of the applicant’s rent assistance debt was varied to $2,321.29. The Tribunal found that the applicant was not eligible for Family Tax Benefit, and there were no special circumstances to warrant a waiver of the rent assistance debt. The Tribunal concluded that the decisions of the SSAT were correct and varied the amount of the debt to accurately reflect the amount owed by the applicant.

Orders

Orders of the court

The Tribunal affirms the decisions of the Social Security Appeals Tribunal made on 7 January 2009, save and except that the amount of the applicant’s rent assistance debt is varied to $2,321.29

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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