Do and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1175

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 1175

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2004

GENERAL ADMINISTRATIVE DIVISION		)
Re		THAO THI DO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date of oral decision        5 December 2008

Date of written reasons   23 January 2009

Place  Sydney

Decision The reviewable decision is affirmed.  

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

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Parenting payment (single) – Debt raised and recovered – Money received by Applicant from mother and relative in Vietnam – Whether money held on trust or for benefit of mother – Whether income – Held money was income – Debt and entitlement to payment be reassessed - Decision affirmed

Administrative Appeals Tribunal Act 1975, ss 37, 43(2A)

Social Security Act 1991, ss 8, 500Q, 1073, 1223

Social Security (Administration) Act 1999, s 80

WRITTEN REASONS FOR ORAL DECISION

23 January 2009 Mrs Josephine Kelly, Senior Member      

1. At the conclusion of the hearing of this matter in Sydney the terms of the decision and a summary of the reasons for decision were stated orally. Pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) the Respondent requested written reasons for my decision, and these are furnished below.

2.      Ms Thao Thi Do received parenting payment (single) (PPS) from October 1998 until it was suspended by Centrelink on 18 May 2007, and then cancelled on 21 June 2007.  On 13 June 2007 Centrelink decided to raise and recover a debt of $24,328.61 from Ms Do, for the period 29 June 2005 to 15 May 2007 because her assets and income exceeded the allowable limit.

3.      Ms Do seeks the review of the decision of the Social Security Appeals Tribunal (SSAT) made on 18 April 2008 to affirm the decisions of the Authorised Review Officer (ARO) made on 28 September 2007.  The ARO decided in Ms Do's favour that payment of $100,000 made to her by her mother, Xu Thi Nguyen, should not be assessed as income, but decided that payments made to her by Cuong Hung Nguyen and the ongoing payments of $2,578 per month into her mortgage account should be assessed as income.  The consequence was that Ms Do's entitlement to PPS and the amount of the debt was to be reassessed.  The ARO found that Ms Do purchased a property at 585 Forest Road Bexley in her name on 23 September 2005.

ISSUES

4.      The issues which arose from the material before me were:

(a)  Whether the payments from Mr Cuong were Ms Do’s income under the Social Security Act 1991 (the Act);

(b)  Whether Mrs Do's mother was the beneficial owner of the Bexley home; and

(c)   Whether the monthly mortgage payments were income under the Act.

THE CASE FOR MS DO

5.      Mr Raine, counsel who appeared for Ms Do, argued two propositions, which he referred to as threshold issues.  If I found against Ms Do on these questions her case must fail. He contended that I should accept Ms Do's evidence that the ultimate source of the $200,000 that she had received from Mr Cuong was Ms Do's mother. Next, he argued that that money was for the purpose of investment on behalf of Ms Do's mother in the Bexley property for her contemplated move to Australia. The money was for the benefit of Ms Do's mother, not for the benefit of Ms Do.  If follows that Ms Do holds that property on trust for her mother.  Therefore, those funds and the Bexley property should not be taken into account for the purpose of assessing Ms Do's eligibility for PPS.  Mr Raine did not pursue an argument that had been foreshadowed, that the debt should be waived or written off.

CONSIDERATION

6.      The definition of "income" is set out in section 8(1) of the Act:

income, in relation to a person, means:

(a)  an income amount earned, derived or received by the person for the person’s own use or benefit; or

(b)  a periodical payment by way of gift or allowance; or

(c)  a periodical benefit by way of gift or allowance;

but does not include an amount that is excluded under subsection (4), (5) or (8).

income amount means:

(a)  valuable consideration; or

(b)  personal earnings; or

(c)  moneys; or

(d)  profits;

(whether of a capital nature or not).

7.      Relevantly, a periodical payment by way of gift or allowance or a periodical benefit by way of gift or allowance, from the person’s mother, is excluded from the definition of “income” for the purposes of the the Act (s 8(8)(z)).

8.      Section 1073(1) of the Act requires that income received is taken to be applied against the person’s payment for a period of 12 months after receipt. The effect of that provision is that income is taken to have been received equally over the weekly periods in the 12 month period.

9.      Section 500Q(2) of the Act provides an assets value limit and section 80 of the Social Security (Administration) Act 1999 provides that a person’s PPS may be cancelled if the payment is not payable.

10.     Section 1223(1) of the Act provides that a debt is due to the Commonwealth if a payment is made and a person was not entitled to obtain the benefit of the payment.

11. In addition to the documents filed under s 37 of the AAT Act, there were several bank statements for accounts held by Ms Do – two accounts with Westpac, one with the Commonwealth Bank and one with St George. Ms Do gave oral evidence with the assistance of a Vietnamese interpreter. I also had the benefit of statements of facts and contentions prepared on behalf of Ms Do and the Secretary, and oral submissions by Mr Raine on behalf of Ms Do, and by Ms Schuster for the Secretary.

12.     The outcome of these proceedings depends on whether I accept Ms Do as a credible witness.  I did not.  I found the material that she had provided unconvincing, including deposit certificates, contracts for loans and transfers.  Centrelink accepted transfer documents indicating that the source of $100,000 of funds was Ms Do's mother. I will not disturb that finding which Centrelink has not disputed before me, however, I would have found differently.  

13.     I am very concerned about the material which Ms Do has provided to support her case, for example the contract for a loan between her mother and Mr Cuong. On 15 November 2007 Ms Do supplied Centrelink with documents written in Vietnamese with accompanying English translations by an unaccredited translation service. The ‘Contract for Loan’ was dated 25 June 2005 stated that Mr Cuong had agreed to lend Ms Do’s mother $205,000 to help take care of her children in Australia.

14.      There were also three ‘Deposit Certificates’ dated 5 July 2005, 10 December 2005 and 15 October 2006 which state that Ms Do’s mother could not send the money herself and therefore Mr Cuong was sending it.     

15.     In September 2007, a number of tax invoices reflecting transfers of funds from Mr Cuong to Ms Do in Australia were provided to Centrelink.  They were dated 12 July 2005, 15 August 2005, 16 December 2005, 19 February 2006 and 26 March 2006.

16.     The purported dates of deposits and contracts do not coincide with the transfers of funds.  The evidence is unconvincing.  False documents were provided for Ms Do to obtain a bank loan, including false information about employment, including an Australian Taxation Office document indicating she had a taxable income of $89,118.00 for the year ending 30 June 2004.  She blamed a mortgage broker and her poor understanding of English for the false documents being provided, however I do not accept that explanation.

17.     I do not accept Ms Do’s evidence that her mother intended to move to Australia, or that she considered the money sent to her from Mr Cuong to be her mother’s and, if her mother ever relocated to Australia, she would feel an obligation to return such money. No reliable contemporaneous material was before me to support this evidence.

18.     Ms Do was not responsive to the questions asked during proceedings.  For example, she feigned ignorance about how bank accounts operate when she plainly operates several such accounts.  She said that when she received the $100,000 in July and August 2005 she had kept it as cash at home and took it with her when she went out.  She could not recall times or dates, or important transactions. I afford very little weight to her oral evidence.

19.     I agree with the SSAT that much of the documentary material appears to have been specifically constructed after the event to support Ms Do's case.  The language in the contract is couched in the past tense; the deposit documents needlessly explain their  purpose, and they were provided to Centrelink at a very late stage.

20.      Clearly, the funds were transferred to Australia from Vietnam to assist Ms Do with the purchase of the Bexley property and perhaps for other expenditure as well.  Given the bank statements in evidence for 2008, funds apparently continue to be provided to cover the mortgage.  At the hearing, Ms Do said that she had recently been to Vietnam and borrowed $100,000.  She could not explain how she would repay such a loan.

21.     On 19 April 2007, Ms Do gave Centrelink a statement indicating she lived at Shenstone Road, Riverwood, and the Bexley property was unoccupied.  I find that she did not move into the Bexley property until May 2007.

22.     Ms Do did not declare the funds she received from Vietnam to Centrelink, nor did she advise Centrelink of the purchase of the Bexley property.  She was in breach of her obligations to advise Centrelink of changes in her financial circumstances.

CONCLUSION

23.     Having considered all the material before me, I find that:

(a)   the funds received from Mr Cuong is income for the purposes of the Act;

(b)  that money was received for the benefit of Ms Do, not for the benefit of her mother; and

(c)  the amounts of $2578 per month being deposited into Ms Do's Westpac account and credited against the mortgage repayments on the Bexley property are income

23.      The consequence is that Ms Do's entitlement to PPS and the debt has to be reassessed.

DECISION

24.     For the foregoing reasons, the reviewable decision is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the written reasons for the oral decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……[sgd]…..…….

Steven Mulipola, Associate

Date of hearing:  5 December 2008

Date of oral decision:  5 December 2008

Date of written reasons:  23 January 2009

Counsel for the Applicant:  Mr J Raine

Representative for the Respondent:       Centrelink Legal Services and Procurement