El Sulaiman and Secretary, Department of Social Services (Social services second review)

El Sulaiman and Secretary, Department of Social Services (Social services second review) [2022] AATA 1533 (6 June 2022)
Division:GENERAL DIVISION
File Number(s): 2020/7951; 2020/7952; 2020/7953; 2020/7954; 2020/7955; 2020/7956; 2020/7957
2020/7958

Re:Yasmin El Sulaiman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:6 June 2022
Place:Sydney

The reviewable decision is affirmed.
.................[sgd].......................................................
Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY LAW – Family Tax Benefit – Child Care Subsidy – Parenting Payment (single) – debt raised of $107,173.03 – whether the Applicant was a ‘member of a couple’ within section 4(2) of the Act – whether the Applicant was living separately and apart on permanent or indefinite basis – whether there is a debt due and payable – whether part or all of the debt can be waived or written off – where the Applicant was a member of couple – debts due and payable – nothing to indicate that all or any of the debt can be waived or written off – decision under review affirmed.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Beadle and the Director-General of Social Security (1984) 6 ALD 1
Lambe v Director-General of Social Services (1981) 4 ALD 362 at [369]
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Waterford and Director-General of Social Services (1980) 3 ALD 63
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR
Skinner and Secretary, Department of Social Services [2015] AATA 569
REASONS FOR DECISION
Senior Member A Poljak
6 June 2022

Ms El Sulaiman, the applicant, married Mr Bilal Baytie in Lebanon on 5 October 2007. They have two children together: “M1” born on 29 January 2014 and “M2” born on 13 April 2017.
On 22 August 2009, Ms El Sulaiman first arrived in Australia.
Until 7 January 2015, Ms El Sulaiman was receiving Family Tax Benefit (FTB) and Child Care Subsidy (CCS) in relation to “M1”, at the partnered rate.
4. On 7 January 2015, Ms El Sulaiman applied for Parenting Payment (single) (PPS) on the ground that she had separated from Mr Baytie on 16 December 2014. Ms El Sulaiman was granted PPS in relation to “M1” from 7 January 2015 and began receiving FTB and CCS at the single rate.
On 29 May 2019, Mr Baytie and Ms El Sulaiman signed a PPS claim form for Ms El Sulaiman in relation to “M1” and “M2”. On 18 September 2019, the Department refused to grant PPS to Ms El Sulaiman because she was a member of a couple with Mr Baytie.
On various dates between 21 November 2019 and 26 March 2020, the Department made the following original decisions:
(a)that Ms El Sulaiman and Mr Baytie were a member of a couple with each other during the period 7 January 2015 to 19 November 2019;
(b)to cancel Ms El Sulaiman’s PPS with effect from 7 January 2015;
(c)that she is liable for a PPS debt of $81,975.28 for the period 7 January 2015 to 19 November 2019 and an interest charge of $747.40 for this debt, which are due and payable;
(d)that she is liable for an FTB debt of $1,996.25 for the period 1 July 2014 to June 2015, which is due and payable;
(e)that she is liable for an FTB debt of $5,153.28 for the period 1 July 2015 to 30 June 2016 and an interest charge of $46.98 for this debt, which are due and payable;
(f)that she is liable for an FTB debt of $3,541.21 for the period 1 July 2016 to 30 June 2017 and an interest charge of $32.29 for this debt, which are due and payable;
(g)that she is liable for an FTB debt of $188.65 for the period 1 July 2017 to 30 June 2018, which is due and payable;
(h)that she is liable for an FTB debt of $1,402.89 for the period 1 July 2018 to 30 June 2019 and an interest charge of $9.54 for this debt, which are due and payable; and
(i)that she is liable for a CCS debt of $16,608.64 for the period 14 April 2019 to 30 June 2019, and an interest charge of $128.58 for the CCS debt, which are due and payable.
On 22 April 2020, an Authorised Review officer (ARO) upon review, varied some of the original decision, but in substance, affirmed the decision.
On 8 November 2020, the Administrative Appeals Tribunal (Social Security & Child Support Division) (SSCSD) set aside the decision made by the ARO and in substitution decided that Ms El Sulaiman was a member of a couple with Mr Baytie from 7 January 2015 to 19 November 2019 (debt period). Accordingly, the SSCSD decided:
The decisions under review to raise and recover debts of family tax benefit of $12,282.28 for the period 1 July 2014 to 30 June 2019, child care subsidy of $16,608.64 for the period 14 April 2019 to 30 June 2019 and interest charges of $158.08 applied to the debts of family tax benefit and child care subsidy are affirmed.
The tribunal sets aside the decision under review in relation to the debt of parenting payment, and, in substitution, decides that the debt is to be recalculated to determine the amount of parenting payment paid to Ms El Sulaiman for the period 3 September 2018 to 22 February 2019. Recovery of the debt of parenting payment paid to her for that period is to be waived under section 1237A of the Social Security Act 1991.
Interest charges relating to the waived parenting payment debt for the period 3 September 2018 to 22 February 2019 should not be applied.
This is the decision under review in these proceedings.
On 9 December 2020, Services Australia (Agency), recalculated Ms El Sulaiman’s debts in accordance with the SSCSD’s decision. The PPS debt of $81,975.28 was reduced to $78,282.13 (a reduction of $3,693.15). Ms El Sulaiman’s indebtedness is therefore $78,282.13 + $12,282.28 + $16,608.64 = $107,173.03 plus interest.
Ms El Sulaiman is currently receiving fortnightly Carers Allowance (CA), Carer payment (CP) and FTB. The Agency is withholding $40 per fortnight from Ms El Sulaiman’s CP for the liabilities. Ms El Sulaiman’s current indebtedness to the Commonwealth for the liabilities being considered by the Tribunal, is $101,191.75.
ISSUES
The issues for determination in these proceedings are whether:
(a)Ms El Sulaiman and Mr Baytie had been a “member of a couple” with each other within the meaning of section 4(2)(a) of the Social Security Act 1991 (Cth) (the Act) during the debt period.
(b)Ms El Sulaiman has a PPS, FTB and/or CCS debt due and payable; and
(c)the PPS, FTB and/or CCS debts should be written off or waived in whole or part.
Was Ms El Sulaiman a Member of a Couple During the Debt Period?
Section 4(2) of the Act sets out the definition of ‘member of a couple’ for the purposes of calculating the rate of parenting payment in accordance with sections 1068A or 1068B; the income and assets tests in section 1064(1)(d) of the Act; and calculating the rate of annual FTB under A New Tax System (Family Assistance) Act 1999 (Cth) (FA Act).
Section 4(2)(a) is relevant to Mr Baytie and Ms El Sulaiman because they were married at all material times. The defining issue of Ms El Sulaiman’s case is that she must have been living separately and apart from Mr Baytie on a permanent or indefinite basis if the Tribunal is to find that she was not a member of a couple. This is a significantly higher test compared to the de facto test in section 4(2)(b) of the Act.
Section 4(2)(a) requires the decision-maker to have regard to section 4(3) of the Act. At all material times, section 4(3) relevantly provided:
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) …, 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.
When deciding whether a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3). The decision-maker must specifically consider the “total picture of the relationship created by all of those factors”: Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Financial Aspects and Nature of Household
On 26 February 2010, Mr Baytie purchased a property in Fairfield NSW 2165 (Fairfield property) as the sole proprietor.
Ms El Sulaiman opened CBA account number ending 9410 on 29 October 2012 in her
own name. No other person has authority to operate the account. The CBA sent statements of account for that account to Ms El Sulaiman at the Fairfield property until at
least 31 October 2017. Ms El Sulaiman used CBA account number ending 9410 to receive her income support and family assistance payments.
Between 17 March 2014 and 11 December 2017, Ms El Sulaiman banked with the ANZ Bank for account ending 7032. The ANZ Bank recorded the Fairfield property as her postal and residential address for that period.
On 7 January 2015, when Ms El Sulaiman applied for PPS, she advised that she had separated from Mr Baytie on 16 December 2014 and had left the Fairfield property to live with a friend in Greenacre NSW 2190 (Greenacre property). On 10 February 2015, Ms El Sulaiman lodged with the Department a Rent Certificate dated 9 February 2015, for the Greenacre property which declared that Ms El Sulaiman had been living at the Greenacre property since 16 December 2014.
On 10 February 2015, Mr Baytie paid $4,153.00 to a third party for damage caused by Ms El Sulaiman to the third party’s Toyota Camry motor vehicle.
On 23 March 2015, Ms El Sulaiman opened a savings account with the Commonwealth Bank of Australia (CBA), account number ending 6650. The CBA recorded her postal and residential addresses as the Fairfield property. The CBA sent statements of account to Ms El Sulaiman at the Fairfield property until 31 October 2017.
Ms El Sulaiman’s income tax return (ITR) for the year ending 30 June 2015 shows her address as the Fairfield property. Mr Baytie’s ITR for the year ending 30 June 2015 shows his address as the Fairfield property.
On 26 August 2015, Ms El Sulaiman acquired a Kia motor vehicle. She registered the vehicle as being kept at the Fairfield property.
On 9 October 2015, Mr Baytie opened an account with Westpac, account number ending 4532, for which Ms El Sulaiman was a signatory. Mr Baytie’s postal and residential addresses were recorded with Westpac as the Fairfield property. He declared his relationship status as married. The account was still active on 16 January 2017.
On 16 May 2016, Ms El Sulaiman was issued with a replacement NSW driver’s licence on which the Fairfield property was recorded as her residential address.
Ms El Sulaiman’s income tax return for the year ending 30 June 2016 shows her address as the Fairfield property Mr Baytie’s ITR for the year ending 30 June 2016 shows his address as the Fairfield property.
On 12 July 2016, Mr Baytie opened an account with St George Bank, account number ending 2214. On 18 July 2016, Ms El Sulaiman was given written authority by Mr Baytie to operate the account ending 2214. Ms El Sulaiman signed the authority form and gave the Fairfield property as her home address. Mr Baytie’s address was also recorded with St George Bank as the Fairfield property. He declared his relationship status as married.
The Birth Certificate for “M2” shows Ms El Sulaiman’s and Mr Baytie’s respective addresses as the Fairfield property. On or about 13 April 2017, Ms El Sulaiman and Mr Baytie signed the Newborn Child Declaration at T12/1153 which shows her postal address as the Fairfield property.
Ms El Sulaiman’s income tax return for the year ending 30 June 2017 shows her address as the Fairfield property.
On 17 August 2017, the Fairfield property was recorded with Bankwest as Mr Baytie’s residential and postal addresses.
On 21 November 2017, Ms El Sulaiman acquired a Suzuki motor vehicle. She registered with RMS NSW as being garaged at the Fairfield property. Ms El Sulaiman insured the Suzuki motor vehicle with NRMA Insurance, who recorded her residential and postal addresses as the Fairfield property.
On 29 December 2017, Ms El Sulaiman left Australia for Lebanon. Mr Baytie’s banking transactions suggest he was in Lebanon at the time. She returned to Australia on 6 March 2018.
On 10 May 2018, Ms El Sulaiman lodged a caveat on the Fairfield property claiming an equitable interest because of her marriage to Mr Baytie.
On 10 September 2018, the Fairfield property was destroyed by fire.
On 14 February 2019, Mr Baytie and Ms El Sulaiman signed a residential lease for a property in Bass Hill NSW (Bass Hill), to commence on 18 February 2019. On 14 August 2019, Mr Baytie’s and Ms El Sulaiman’s residential lease at this address ended.
On 19 June 2019, Mr Baytie and Ms El Sulaiman signed a residential lease for a property on C Street, Bass Hill NSW (C Street), to commence on 22 June 2019.
The available evidence, summarised below, demonstrates that there was an ongoing financial relationship between Ms El Sulaiman and Mr Baytie during the debt period.
The parties were married on 5 October 2007. The Fairfield property was purchased on 26 February 2010. The evidence suggests that the parties have made equal contributions to the household and the raising of their children. Ms El Sulaiman’s equitable interest in the Fairfield property is evidenced by the caveat she lodged on the title on 10 May 2018.
Ms El Sulaiman is a signatory to a St George and Bankwest bank account of Mr Baytie. Despite receiving her income support and family assistance payments into her CBA account, it appears that very limited expenditure on household and personal items were made from this account. Instead, the benefits accumulated, and Ms El Sulaiman withdrew large sums of cash with occasional transfers of $1,000 to another CBA account held by Ms El Sulaiman. From June 2015 transfers commenced to be made to CBA A/c CommBank app Home, some of these payments appear as credits in Mr Baytie’s CBA account.
Transfers are also made to CommBank app Bill from September 2016 to October 2018 totalling $ $70,870. In the hearing on 3 November 2020 before the SSCSD, Ms El Sulaiman acknowledged that payments to “Bill” represented payments to Mr Baytie. In addition, an amount of $23,100 was paid for “home loan, rent and car” between 1 June 2015 and 2 September 2017, during which time Ms El Sulaiman stated that she was living with friends except for a brief time in mid-2016 when she moved back to the Fairfield property for one week.
Mr Baytie also made transfers from his account to Ms El Sulaiman’s account; for example, on 16 April 2018 he transferred an amount of $10,000.
Ms El Sulaiman contends that she was repaying loans to Mr Baytie. Namely, $13,697.73 which was transferred to Lebanon for her mother’s medical costs and $4,153 for damage sustained to his car while Ms El Sulaiman was driving it; $10,000 she borrowed to purchase motor vehicles and between $9,000 and $10,000 for her business. She claims Mr Baytie also paid for the return trips to Lebanon on two occasions and expensive car hire, which she subsequently repaid.
At hearing, Ms Sulaiman said she also withdrew money from her account to pay debt. She said she couldn’t recall the details but had borrowed money from quite a few people. Regarding numerous large withdrawals, she advised that she bought a car from Mr Baytie which she was paying for in instalments. She stated that the car cost between $5,000 - $6,000, however the withdrawals appear to amount to far more.
Ms El Sulaiman has not satisfactorily explained the transfers for “home loan, rent and car”. The documentary evidence to support Ms El Sulaiman’s claims is very limited. There is a marked lack of documentary evidence that the transfers to Mr Baytie were made to repay loans and there was no documentary evidence provided to explain the $23,100 transfers for “home loan, rent and car” to Mr Baytie.
It is plain on the available evidence that Ms El Sulaiman and Mr Baytie were pooling their financial resources to look after each other’s welfare, and their children’s welfare. They shared liabilities and financial benefits. This is an important factor in can be assigned significant weight; see Lambe v Director-General of Social Services (1981) 4 ALD 362 at [369] and Re Waterford and Director-General of Social Services (1980) 3 ALD 63.
As to the nature of the household, Ms El Sulaiman was responsible for the care of the children. Ms El Sulaiman says that from 2015 to 2016, she moved around frequently between the houses of her friends Fatima, Sara and Nina, and relatives, sometimes spending days or weeks with them until around July 2017 when she moved back into the Fairfield property with the children. At hearing, Ms El Sulaiman was not clear on her living arrangements during the debt period. She said she could not recall all the details. Ms El Sulaiman said that she kept her address as the Fairlight property on her driver’s license, car registration and with the ATO because “none asked if I had a new address”. She also stated that she had not settled on an address so preferred to keep it as the Fairlight property. She said she still received her mail at that address. Ms El Sulaiman said she changed her address with Centrelink because “they asked”.
In a statutory declaration signed on 26 May 2020, Ms Nina Jafra stated that Ms El Sulaiman stayed with her around for around three weeks. In a statement dated 1 November 2020, Ms Jafra stated that she stayed with her for three weeks. She said despite Ms El Sulaiman separating with Mr Baytie in 2014, she tried to get back together with him many times, but it did not last for very long. Ms Jafra said Ms El Sulaiman was forced to live with Mr Baytie in 2019 after the Fairfield property burned down, but they were not together.
In a statutory declaration dated 16 May 2020 Ms Sara Al Hussain stated that Ms El Sulaiman stayed at her house for around one year between 2015 and 2016, which she confirmed in a statement dated 28 October 2020, also stating that she spent some time at Nina’s house. She said she helped Ms El Sulaiman with food and Ms El Sulaiman had agreed to pay her some rent. Ms Al Hussain said she only moved back to the Fairfield property because she had nowhere else to go and didn’t know anyone else. She said everyone in the Lebanese community knew Ms El Suliman and Mr Baytie were separated and that he had relationships with other women.

In a statement dated 15 May 2021, Mr Baytie said that Ms El Sulaiman moved out of the Fairfield property and lived at a friend’s house after their separation in 2014. He said they attempted a brief reconciliation in 2016, which resulted in the birth of their second daughter, but it did not work out. Mr Baytie said in 2017, Ms El Sulaiman moved back into the Fairfield property and he moved out with his partner, who he claims he is still in an on and off again relationship. When he is not staying at his partner’s house, he “would sometimes go to a hotel, sometimes to a friend's place and sometimes to the Fairfield house to spend time with my children”. Mr Baytie claims that he did not share a room with Ms El Sulaiman when he slept at the Fairfield property. He said he never moved all his clothes and belongings out of the Fairfield property because he never had long term accommodation. For the same reason, he said he kept the Fairfield property as his mailing address. Mr Baytie confirmed that he never visited the Fairfield property during the few months that he was subject to a provisional Apprehended Violence Order (AVO).
As to finances, Mr Baytie stated that he has continued to pay the mortgage on the Fairfield property “because he had to look after his children” and would give Ms El Sulaiman money to help her out. He said sometimes she would borrow money from him but would pay it back, such as when her mother was sick, when she damaged a car and expenses for a trip to Lebanon. He said he also gave Ms El Sulaiman permission to use his bank accounts if she ever needed money for the children. After the fire at the Fairfield property, Mr Baytie said he moved to Bass Hill with Ms El Sulaiman as they “did not have a choice and had to provide a roof over our heads for the sake of the children.” He said they got back together for two months. After renting C Street, he said they tried to get back together, but it was over quickly, so Ms El Sulaiman moved to a friend’s house. However, she moved back to C Street as she had nowhere else to go. Mr Baytie said he bought a boarding house in Leumeah in 2018 and he resides between the boarding house and his girlfriend’s place. Ms El Sulaiman lives at C Street.
In a Statutory Declaration of Guilda Tabar, director/owner of Legal Edge Australia, sworn 14 April 2021, advised that Ms El Sulaiman attended the law firm as a client in February 2015 seeking advice on her separation from Mr Baytie. It is noted that Ms El Sulaiman reconciled with Mr Baytie in 2016, later separating. Guilda Tabar stated that Ms El Sulaiman was on her own until 2019, when she again reconciled with Mr Baytie for a few weeks. Ms El Sulaiman then sought a divorce and “now she is officially divorced”.
The evidence of Ms El Sulaiman, Mr Baytie, Ms Jafra and Ms Al Hussain as to Ms El Sulaiman’s living arrangement during the debt period is inconsistent with key pieces of the available evidence and unsupported by objective evidence.
On 16 April 2018, a AVO was made against Mr Baytie with respect to Ms El Sulaiman, “M1” and “M2”. In the record of police interview on 20 April 2018 concerning an application for a provisional AVO, the attending officer records that they separated about a year ago (April 2017) and still lived together with their children under the one roof.
On 13 September 2018, Mr Baytie participated in an interview with NSW Police in relation to the fire at the Fairfield property on 10 September 2018. Mr Baytie gave details of his living arrangements with Ms El Sulaiman during the interview. He stated that he lived in the Fairfield property with his wife and two children, and during the course of the interview he frequently referred to Ms El Sulaiman as his wife and indicated that they lived in the house as a family. Mr Baytie stated that his wife was the only person with the key to the house and that on the day of the fire he was driving his wife’s car to look at boats because he wanted to buy the family a boat. He provided details of conversations with his wife on the eve of the fire and her movements on the day of the fire.
Ms El Sulaiman and Mr Baytie retained the Fairfield address as their home address with the ATO, Services NSW (car registration and licence), an insurance company and on numerous bank accounts.
There is no available evidence to substantiate Mr Baytie’s alleged living arrangements during the debt period.
Overall, the financial aspects and nature of the household favours findings that Ms El Sulaiman and Mr Baytie were not living separately and apart from each other on a permanent or indefinite basis during the debt period; and were members of a couple with each other during the debt period.
Social Aspects
During the debt period, El Sulaiman and Mr Baytie generally held themselves out as a married couple. Despite the evidence of Ms Al Hussain and Ms Jafra, they made the following significant disclosures as to the status of their relationship.
In a finance application dated 31 January 2017, Mr Baytie stated that he was married with one dependent and living at the Fairfield address. He provided Ms El Sulaiman’s email address. Both Mr Baytie and Ms El Sulaiman used the same email address.
On 13 April 2017, “M2” was born at Fairfield Hospital. Ms El Sulaiman nominated Mr Baytie as her next of kin on the admission form, and that she wanted to wait “for her husband” to assist with showering. This demonstrates a level of intimacy between Ms El Sulaiman and Mr Baytie.
In a Newborn Child Declaration to Centrelink signed 13 April 2017, Ms El Sulaiman named Mr Baytie as her partner and biological father of M2. Both parents signed the form.
On 3 October 2017, Ms El Sulaiman had a medical procedure at Fairfield Hospital. She advised that she was married and nominated Mr Baytie as her next of kin on the admission form.
As already detailed above, on 13 September 2018, Mr Baytie participated in an interview with NSW Police in relation to the fire at the Fairfield property on 10 September 2018. In the interview, Mr Baytie referred to Ms El Sulaiman as his wife.
This factor favours findings that Ms El Sulaiman and Mr Baytie were not living separately and apart from each other on a permanent or indefinite basis during the debt period; and were members of a couple with each other during the debt period.
Sexual Relationship
Ms El Sulaiman and Mr Baytie had a second child together, M2, which was born on 13 April 2017. Plainly they had a sexual relationship in 2016. There is no evidence to suggest that the sexual relationship was limited to July 2016.
Nature of Commitment
There is little evidence to support a finding that Ms El Sulaiman and Mr Baytie took steps to separate from each other permanently, or to change their current living arrangements, or that the alleged break down in their relationship was permanent or indefinite. Instead, the evidence demonstrates an ongoing mutual commitment to each other and to their children. They were pooling their resources and responsibilities despite the difficulties encountered in their married relationship. The evidence demonstrates that they have only recently divorced, after the debt period.
The nature of their commitment to each other is also evidence by travel to Lebanon to see their respective families with their children.
On 19 October 2016, Mr Baytie and Ms El Sulaiman left Australia for Lebanon, on the
same flight. On 5 December 2016, Mr Baytie and Ms El Sulaiman returned to Australia, on the same flight. On 29 December 2017, Ms El Sulaiman left Australia for Lebanon. Mr Baytie’s banking transactions suggest he was in Lebanon at the time. She returned to Australia on 6 March 2018.
Ms El Sulaiman said at hearing that Mr Baytie insisted that he travelled with her and the kids to Lebanon as he did not want her travelling alone. She said Mr Baytie paid for the children’s airfares and she paid for her airfares and expenses. This evidence is inconsistent with her statement dated 2 November 2020, in which she stated she travelled to Lebanon with Mr Baytie and the children because she didn’t trust him to bring the children back.
In his statement dated 15 May 2021, Mr Baytie stated that after M1 was born he wanted to take him to Lebanon to meet his family, “but [Ms El Sulaiman] did not trust me to do that and said she had to come too”. While in Lebanon, he said he stayed with his family and she stayed with her family. Mr Baytie said they did the same thing on the second trip to Lebanon after M2 was born.
The evidence of Ms El Sulaiman is inconsistent. In any event, the trips to Lebanon demonstrate the nature of commitment they had to each other and their children.
This factor favours findings that Ms El Sulaiman and Mr Baytie were not living separately and apart from each other on a permanent or indefinite basis during the debt period; and were members of a couple with each other during the debt period.
Overview
Having regard to all of the relevant factors as discussed above, I am satisfied that Ms El Sulaiman and Mr Baytie were a member of a couple with each other within the meaning of section 4(2)(a) of the Act, during the debt period.
There is no evidence to establish special reasons why Ms El Sulaiman should not be treated as a member of a couple in her circumstances. Ms El Sulaiman and Mr Baytie chose to pool their resources for their own mutual benefit and accordingly, the discretion under section 24(2) of the Act not to treat Ms El Sulaiman as a member of a couple during the debt period should not be exercised.
Debts
I am satisfied that the applicant’s rate of PPS, FTB and CCS was not accurately calculated on the basis that she was a member of a couple with Mr Baytie during the relevant period. Accordingly, this overpayment constitutes a legally recoverable debt. The debts raised against Ms El Sulaiman were properly raised in accordance with section 1223 of the Act, and section 71 of the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (FA Administration Act).
Ms El Sulaiman does not appear to cavil with the quantum of the PPS, FTB and CCS debts.
Based on the calculations provided by the respondent I am satisfied that the amount of the overpayment received by Ms El Sulaiman in respect of the relevant period was $107,173.03 plus interest. I note that Ms El Sulaiman has been making payments towards this debt at the rate of $40 per fortnight from her CP.
Can the Debt Be Waived or Written Off?
Section 1236 of the Act set out circumstances in which a debt may be written off. There is no evidence that Ms El Sulaiman’s PPS debt is irrecoverable at law or that she has no capacity to repay the debt given that her whereabouts are known, and she has assets.
As for the FTB and CCS debts, section 95 of the FA Administration Act provides that
debts may be written off in similar circumstances to section 1236 of the Act. There is no evidence that section 95 of the FA Administration Act is satisfied.
Subsection 1237A(1) of the Act provides:
Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
For the debt to be waived under section 1237A of the Act, it must be found that the debt was caused solely by administrative error; see Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35]. There is no evidence of administrative error leading to the existence of the debt in this case.
On 12 March 2015, Ms El Sulaiman was issued with a notification letter under section 68 of the Social Security (Administration) Act 1999 (Cth) (SS Administration Act) with respect to her reporting obligations for PPS. On 12 March 2015, Ms El Sulaiman was issued with a notification letter about her FTB. Section 25 of the FA Administration Act requires a person to notify the Department about matters that might affect their entitlement to FTB. The respondent acted upon the information given to it by Ms El Sulaiman. It was only when the respondent-initiated enquiries discovered the relevant facts about the changes in the relationship and Ms El Sulaiman’s circumstances. Accordingly, the debt should not be waived pursuant to section 1237A of the Act.
Section 1237AAD of the Act provides:
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.
Each of the three limbs of the section must be satisfied before the debt may be waived.
As for the FTB and CCS debts, section 101 of the FA Administration Act provides that debts may be waived in the same circumstances to section 1237AAD of the Act.
In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, Deputy President Forgie said at [48]:
There is nothing in s 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
Despite the Department sending the applicant numerous letters about her reporting obligations, Ms El Sulaiman failed to disclose that she was a member of a couple with Mr Baytie during the debt period as required by subsection 68(2) of the SS Administration Act. However, the respondent accepts that Ms El Sulaiman did not knowingly made a false representation by her failure to disclose.
That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Special circumstances are not defined in the Act however the Tribunal is provided some guidance by several Federal Court and Administrative Appeals Tribunal cases. In the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
(emphasis added)
In Ms El Sulaiman’s case, there is little medical evidence of M1’s state of health sufficient to justify special circumstances. While the evidence demonstrates that M1 has speech difficulties, there is no evidence as to treatment plans or any ongoing assistance or costs required. Additionally, Ms El Sulaiman’s personal and family circumstances are not enough to constitute special circumstances. There is nothing in Ms El Sulaiman’s circumstances, which are unusual or uncommon and would warrant the exercise of the discretion to waive all or part of the debt. Accordingly, I am not satisfied that the circumstances are sufficiently special to warrant exercising the discretion to waive all part of the debt under section 1237AAD of the Act.
Ms El Sulaiman has advanced no sound reason for why her debt should not be repaid, especially on the ground of financial hardship.
It is in the public interest that Ms El Sulaiman’s debt is repaid. In Skinner and Secretary, Department of Social Services [2015] AATA 569 the Tribunal said at [48]:
It is important to recognise the need to ensure the integrity of the social security system and the public interest. This means that those recipients who have received monies to which they are not entitled, are generally expected to repay those monies unless the repayment is in the specific circumstances unjust, unreasonable or inappropriate.
Ms El Sulaiman has not advanced a sound reason as to why the debt should not be repaid. Neither part nor all of the debt should be written off or waived.
DECISION
The reviewable decision is affirmed.

I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[sgd]...........................................
Associate
Dated: 6 June 2022

Date(s) of hearing: 17 September 2021

Applicant: Self represented

Solicitors for the Respondent: Ms C. Hammerton, Services Australia

[2022] AATA 1533

6 June 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Natural Justice

Date(s) of hearing:	17 September 2021
Applicant:	Self represented
Solicitors for the Respondent:	Ms C. Hammerton, Services Australia