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

This matter concerned an appeal by the applicant, Mr. Eminoglu, against a decision by the Secretary of the Department of Social Services regarding an overpayment of Newstart Allowance (NSA). The core of the dispute revolved around whether certain unexplained bank deposits constituted "ordinary income" for the purposes of the NSA income test, and consequently, whether the resulting debt could be waived. The review was conducted by A. Poljak SM.

The legal issues before the Tribunal were twofold: firstly, whether the unexplained cash deposits into the applicant's bank accounts during the debt period qualified as "ordinary income" under the Social Security Act 1991 (Cth); and secondly, if a debt had indeed arisen, whether the applicant's circumstances were sufficiently special to warrant the exercise of the discretion to waive all or part of that debt under section 1237AAD of the Act.

The Tribunal considered the definition of "ordinary income" under the Act, which includes "income earned, derived or received" for a person's own use or benefit, and is defined as gross income. While certain deposits, such as those from the sale of a business and regular NSA payments, were correctly disregarded, a significant sum of cash deposits into the applicant's CBA and NAB accounts, totalling $163,282, along with $5,031.99 from Uber, were subject to scrutiny. The applicant claimed these cash deposits represented loans from friends and family to cover rent, food, and legal costs. However, the Tribunal found that the applicant had failed to provide any supporting evidence to substantiate these claims as loans, such as details of repayment plans or loan terms. Consequently, the Tribunal concluded that these unexplained deposits were to be treated as ordinary income.

Given this finding, the Tribunal then considered the waiver of the debt. It determined that the circumstances described by the applicant, namely borrowing money from friends and family for living expenses and legal costs, were not unusual or uncommon. Therefore, the Tribunal was not satisfied that the applicant's circumstances were sufficiently special to justify exercising the discretion to waive all or part of the debt. Accordingly, the decision under review was affirmed.