Flaihan and Secretary, Department of Employment and Workplace Relations

[2006] AATA 857

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 857

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/191

GENERAL ADMINISTRATIVE DIVISION		)
Re		HENRY FLAIHAN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date6 October 2006

PlaceSydney

Decision The decision under review is affirmed.

…………………………………

Ms G Ettinger
  Senior Member 

CATCHWORDS

Overpayment – Applicant claims to be separated – Decision regarding whether he was a member of a couple at the relevant time in 2004 -  Respondent has raised a debt based on wife’s income not disclosed to Centrelink – Is there a debt – Are there special circumstances -  decision affirmed.

Social Security Act 1991 ss 1223, 1237A , 1237AAD

Beadle v Director-General of Social Security (1985) 60 ALR 225

Secretary, Department of Social Security v Hulls (1991) 22 ALD 570

Secretary, Department of Social Security v Banks (1990) 20 ALD 19

Secretary, Department of Social Security v Ellis (1997) 24 AAR 535

Re Beadle and Director General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Ms G Ettinger - Senior Member    

BACKGROUND

1.      Mr Flaihan is a 70 year old man of Lebanese origin man who lived in Australia from 1974 to approximately 1990 or 1991. He married Joanne, now, 45, who was originally from the Philippines, in 1980 or 1981. Their children are Mansour who was born in 1982, and Grace who was born in 1984.  Mr Flaihan told me that they moved to Lebanon in 1991 in order to further their children’s education. Mrs Flaihan on the other hand, said that they moved to Lebanon because the marriage was on shaky ground, and “he said if we go to Lebanon, things will be - things might get better” (Transcript 7.8.06, page 90). Mr Flaihan had been receiving invalid (then disability support) pension from 1988, followed by age pension.

2.      In 1998 Joanne returned to Australia (on her own), for a reunion with family members, including her brother from the Philippines, and her sister from the USA. Mr Flaihan said that at the time, he did not know how long she would stay in Australia, but estimated it could be one to six months. He produced a faxed copy of a letter from Joanne to him, and one to the children dated February 1998, faxed from Sydney to Lebanon in which Joanne advised that their marriage was over.

3.      Mrs Flaihan said that she returned to Lebanon in February or March 1998, because their daughter had suffered burns to her feet, and because Mr Flaihan would not return to Australia. Both Mr and Mrs Flaihan told me they then lived in Lebanon in separate bedrooms, separated under one roof. The family eventually returned to Sydney in 2002, (Mr and Mrs Flaihan travelling separately), in connection with the children’s tertiary education, they said.

4.      Mr Flaihan has incurred a debt of $2,082.88 for the period 31 January 2004 to 4 May 2004 because the Respondent has found that he did not inform Centrelink of his wife’s earnings for that period, during which he had been receiving a pension. The Social Security Appeals Tribunal upheld the decision of the Secretary, and it was for that reason Mr Flaihan has appealed to this Tribunal.

5.      Mr Flaihan claims that he informed Centrelink that he was separated, and that his wife’s income should therefore not be taken into account. There was considerable conflict between the oral and written evidence regarding this before the Tribunal, and I found Mr Flaihan’s evidence problematic. He tended to wander around the issues, and became agitated when his version of events was challenged.

6.      The Applicant was represented by Mr C Colborne of counsel, instructed by Mr J Dagnell of the Legal Aid Commission of NSW, and the Respondent Secretary, Department of Employment and Workplace Relations was represented by its advocate, Mr A Duri.  The Tribunal was assisted by an interpreter in the Lebanese language, Mr Obaida. Mr Duri informed me that Mr Flaihan has incurred a debt for another period as well, but that does not concern me here.

7.      I had before me documents lodged pursuant to the Administrative Appeals Tribunal Act 1975, the T-Documents as Exhibit R1, and the supplementary T-Documents as Exhibit R2. The Applicant also tendered several documents which are referred to as appropriate in these Reasons for Decision.

8.      At the conclusion of the hearing, Mrs Joanne Flaihan was given seven days to  lodge with the Tribunal, the initial lease document for the property at Regents Park to which she had referred in her evidence, and which she said would demonstrate that she alone had leased the property in early 2003.  At the end of the seven day period, no such lease was lodged. However the Applicant lodged an electricity invoice addressed to Mrs Flaihan alone, (that is not including Mr Flaihan), at Regents Park for a quarterly account due 21 June 2004.  There was also an Optus account for the telephone in her name alone, addressed to the Regents Park address, for the period 22 October 2003 to 21 November 2003.

ISSUE BEFORE THE TRIBUNAL

9.      The issue before me was whether to affirm, set aside or vary the decision of the Department and the SSAT, to raise and recover a debt totalling $2,082.88 for the period 31 January  2004 to 4 May 2004. The issues fall to be determined in the context of the Social Security Act 1991 (“the Act”).

10.In coming to a decision, I was required to consider:

·     Whether Mr Flaihan was a member of a couple at the relevant time, 31 January to May 2004 for which the debt was raised;

· If there is a debt pursuant to section 1223(1) of the Act, then

· Whether section 1236 of the Act applies to write off the debt; or

· Whether there is sole administrative error as envisaged in section 1237A(1) of the Act so that the debt can be waived; or

· Whether there were special circumstances pursuant to section 1237AAD of the Act in order that the debt might be waived in whole or in part.

WHETHER MR FLAIHAN WAS A MEMBER OF A COUPLE AT THE RELEVANT PERIOD 31 JANUARY TO 4 MAY 2004 FOR WHICH THE DEBT WAS RAISED

11.     Mr Flaihan gave oral evidence, and I also had before me his statutory declaration dated 18 January 2006 (Exhibit A8). Mr Flaihan told me his marriage had broken down in 1998 with the receipt of a fax from his wife Joanne (Exhibit A9). She had returned to Australia at that time to meet with her family members, and had written both to Mr Flaihan and to the children (Exhibit A10) praising him as a father, and expressing respect for him, but indicating that the time had come to end their unhappy marriage. Mr Flaihan said that when he received the fax: “When Joanne she sent that message, we don’t know what going on … I was thinking, why is this happening, something happening like this.”

12.     Mrs Joanne Flaihan’s statements were the 1998 faxes referred to above, Exhibits A9 and A10, attachments A, B and D (Exhibit A12), and a statement of 23 May 2006 (Exhibit A13). She said in her oral evidence that she and her husband had been occupying separate bedrooms from approximately 1994/5. Following her visit to Australia, Mrs Flaihan returned to Lebanon in approximately March 1998 after her daughter had had an accident in which her feet were burnt. She told me that she returned to Lebanon after her 1998 visit to Australia because Mr Flaihan did not want to move back to Australia, but that she wanted to bring the children back. She said that at that time, there was no relationship, and no communication between the couple except to maintain a public image.

13.     Mrs Flaihan said that she stayed with their friends Mr and Mrs Oderbolz for approximately two months after her return to Australia in September 2002. I noted that when Mrs Flaihan made an application for Newstart Allowance on 27 September 2002, she gave Hornsby Heights as her address, and indicated that her marital status was that she was separated.

14.     She said that later in 2002 she stayed with other friends at Holsworthy until she rented the flat at Regents Park into which she moved on 2 or 3 January 2003. She said that the first lease was in her name alone, and that she stayed at Regents Park until she moved out to stay with friends in February 2005. Mrs Flaihan said she left Regents Park because Mr Flaihan had moved in to recuperate after an operation, and she felt that he should not live at the Oderbolz’s because it was damp there.

15.     Mr Flaihan claimed they lived in Lebanon in separate bedrooms, separated under one roof. When asked how the relationship had changed on Mrs Flaihan’s return to Lebanon in 1998, Mr Flaihan told me that they went to church and told the Bishop they were divorced. He said that the Bishop had urged them to look after the children well.

16.     Mr Flaihan told me that Mrs Flaihan and their son returned to Sydney (separately), in 2002, followed by Mr Flaihan and their daughter, who arrived together in Sydney on 9 January 2003. Mr Flaihan said that the family returned so that the children could undertake their tertiary studies in Australia. Mr Flaihan said that the decision to divorce had already been made in Lebanon, so that when they arrived in Australia, Joanne was free to do as she wished, and whilst he lived at Hornsby with Mr and Mrs Oderbolz, she lived in a rented flat at Regents Park. Mr Flaihan said that he had know the Oderbolz’s since either 1982, 1983 or 1984, and he stayed rent free in a little room under their house, next to the garage, in exchange for minor duties. He maintained that initially he did not know where Mrs Flaihan was living.

17.     Mr Flaihan indicated that he had commenced divorce proceedings some months ago, but not proceeded with the action because he did not want to do so until after Grace’s engagement.

18.     One of the points of contention in these proceedings was a lease for the flat at Regents Park which Mrs Flaihan said she leased in on either 3 or 4 January 2003. Mr Flaihan maintained that in order for a shipping container of goods which he had sent from Lebanon to be delivered, he required an address and hence, notwithstanding he was not living at Regents Park, he had his name added to the lease documents. The evidence was that the lease had been rewritten to include Mr Flaihan’s name on it. He said that his wife had paid all the rent on the flat, but he needed “100 points” for Medicare, for Centrelink, for the RTA, and to open a bank account, and hence a lease was necessary. I did not accept the evidence regarding the necessity to supply a lease document for Medicare and the other authorities, (particularly, if it did not indicate the true situation), and there was no supporting evidence to convince me to the requisite standard that a lease was required for those authorities.

19.     Mrs Flaihan told me that she alone paid the bond of $1,575 and deposit on 3 January 2003 in connection with the first lease for the flat at Regents Park which was solely in her name. Mrs Flaihan was given the opportunity of producing the original lease which she said she might have at home, but in the week after the hearing, I was informed that she and the agent she had consulted, had been unable to locate it.  She said that she agreed to have the lease changed to incorporate Mr Flaihan’s name because he required an address to which the shipping container of goods from Lebanon could be delivered, and for other reasons which she did not specify. The only lease which I had before me was T11 (Exhibit R1), the Residential Tenancy Agreement for the flat at Regents Park dated 9 January 2003 in both Henry and Joanna’s names, although Mr Flaihan said that it was signed on approximately 21 January 2003. I noted also that the receipt for the bond was made out to H and T Flaihan, and dated 9 January 2003.

20.     I was unable to accept either Mr or Mrs Flaihan’s evidence with regard to the lease as there was conflict in the oral evidence, and the contemporaneous documentary evidence was a lease dated 10 January 2003, and a receipt dated 9 January 2003 in both Mr and Mrs Flaihan’s names. It is more likely than not that the family resided at Regents Park as indicated on the lease. However, Mrs Flaihan’s evidence regarding Mr Flaihan residing at Regents Park was that he only stayed there on several occasions to recuperate after surgery.

21.     Mrs Flaihan said that she picked up Mr Flaihan and their daughter from the airport when they arrived back in Australia in early January 2003, and took them straight to Hornsby. I noted that there was conflict of evidence about who went to the airport to collect whom, but I have not recited it all here.

22.     Mr Flaihan was also referred to the Centrelink Rent Certificate date stamped 28 January 2003 at the counter of the Auburn office (T9, Exhibit R1), which had a cash receipt date stamped 28 January 2003 made out to H & T Flaihan attached (T10, Exhibit R1). Mr Flaihan initially denied having attached the receipt to the Rent Certificate which he lodged, but then said that: “If it is attached actually, if it’s attached to the form, to this form actually I must be the one who attached it.” (Transcript 6.6.06, page 53). I noted that the Rent Certificate indicated that in addition to Mr Flaihan, the people shown residing at the flat at Regents Park were Joanna, Grace and Mansour Flaihan. I noted further that Mr Flaihan had indicated that his share of the rent was equal to that of his wife, that is $260 per week.  When asked how he came to lodge the Certificate with that information, Mr Flaihan became very agitated. His reply was:

“Yes, because is now reason when I been with my kids and I live with my family and I came to be join that flat for – your company or for your office to tell me about the 100 point and I know and you know and your company, your office know I have now bring before this one. Everytime I ask you and I get here, you tell me like this. I have in my bag about 26, 27 and 28 note from you. What I did wrong? What I did wrong?”  (,Transcript 6.6.06, page 56)

23.     Mr Flaihan said that the first time he told Centrelink he was separated from Mrs Flaihan was on 17 January 2003 when he rang the international office of Centrelink in Hobart and was referred to the Hornsby office which he attended on 21 January 2003. He said that on that day, and at that appointment, he told the Hornsby office that he was living at Regents Park. His excuse for that was he was a  guest at Hornsby and was not intending to stay in Sydney permanently. I noted that Centrelink records indicated Mr Flaihan first informed Centrelink that he was separated and living at Hornsby in April 2004, and that he did so after Centrelink commenced an investigation regarding Mrs Flaihan’s earnings after a data match with the ATO.

24.     I was also mindful from the evidence that Mr Flaihan received his mail at Regents Park although he maintained that he lived at the Oderbolz’s in Hornsby from the time of his return to Sydney in February 2002, as well as with a woman friend in the Liverpool area where he would stay for periods of three to four days, and where he went to wash his clothes between 2003 and 2005. Mr Flaihan said that the only time he lived at Regents Park was for periods of 15 to 20 days after he had had surgery, and when Joanne visited her family in the Philippines. Mr Flaihan said that he moved to the Regents Park flat on 11 February 2005 as his wife had moved out and was living with friends. Mr Flaihan gave various reasons for not redirecting his mail to Hornsby, including that fact that the Oderbolz’s had a steep driveway, he did not want to bother them with mail. He also said that some mail was directed there. In Mrs Oderbolz’s statement at Exhibit A1, she said that for the period 2003 – 2005, “You could say he [Mr Flaihan], used our house as his home base … Additionally all of Henry’s postal mail was during this time addressed to our home address.”  I did not give much weight to the statement of Mrs Oderbolz which was not a sworn statement. In addition she did not give evidence at the hearing, and I was satisfied from the evidence before me that she could not have known how much mail, if any, Mr Flaihan received. Indeed his evidence was that he collected his mail from Regents Park.

25.     Mr Flaihan also said that he had travelled overseas to Beirut in 2004 and 2005 with his daughter, but without his wife. He told me he also travelled to Brisbane and Canberra to see his son (without his wife) during that time. Mr Flaihan said that since returning to Australia (in 2002), he had not socialised or gone out with his wife, and that in Lebanon they only went to public functions such as funerals together.

26.     Ms Grace Flaihan who is a student, also gave oral evidence. Her statement dated 17 May 2006 was Exhibit A14.  She contradicted her mother’s statement that her mother picked her and Mr Flaihan up from the airport when they arrived from Lebanon on 9 January 2003, telling me instead that a friend, Mohammed, met them. She said that she went with her father to the Oderbolz residence at Hornsby, stayed there a few days, and then moved to Regents Park. She told me her parents had had problems since she was approximately ten years old (she is now 20), so dating back to approximately 1996.  Ms Flaihan described a period in Lebanon when her parents did not share a bedroom, but it was not clear from her evidence which period that was.

27.     Ms Flaihan told us she had been living at Regents Park since 2003, adding that her father had moved in, and her mother out, in February 2005.  She said that between 2003 and 2005 Mr Flaihan had stayed at Regents Park for short periods for recuperation after undergoing surgery. She said that since February 2005, her mother had been living with friends; she said that she sees her approximately once a week, but does not know where she lives.

28.     There was also an undated unsworn statement from Mr and Mrs Flaihan’s son Mansour, (Exhibit A2), who indicated in relation to the lease that:

“My mother and I moved from …. Voyager Point … to Regents Park. At the arrival of my father and sister in January 2003, my father decided to live alone and my mother moved to Regents Park two [sic?] before my father’s arrival.      

After about a month approximately due to issues with the delivery of a container from Beirut, Medicare, and a driver’s licence; the tenancy lease was changed where my father’s name was put down on the contract as well as mine….”

29.     Mr Mansour Flaihan did not give oral evidence, and no submissions were made about the statement. However I was able to conclude from the documentary evidence before me that it contained inaccuracies inclduing time frames regarding the signing of the lease, and I did not give his statement much weight.

30.     Mr Saaid Al Bassit, a travel consultant and friend of Mr Flaihan who said that he has known the Applicant for approximately 30 years, gave oral evidence. His statement dated 4 August 2006 which was written after the first day of hearing, and after Mr Flaihan had given his evidence, is Exhibit A15.  He said that he heard through his children who were classmates of the Flaihan children that all was not well in their parents’ marriage, but that Mr Flaihan had not informed him of any separation. I understand that Mr Al Bassit is an old friend of Mr Flaihan’s and wanted to assist him. However, his evidence is of little value because it was prepared after Mr Flaihan had given his evidence. Further, he appeared to have no direct knowledge of the situation between Mr and Mrs Flaihan, and was relying on what the Flaihan children had told his children at school. That was of no assistance to my decision making, and I have not taken it into account in coming to a decision.

SUMMARY OF APPLICANT’S SUBMISSIONS

31.     Mr Colborne submitted that notwithstanding the documentary evidence regarding the lease, the receipts being in both names, certain inconsistencies in the evidence, and the difficulties with Mr Flaihan’s evidence, I should prefer the evidence of all the members of the Flaihan family and Mrs Oderbolz that Mr and Mrs Flaihan have been separated since Mrs Flaihan returned to Australia in 2002, and that the couple has not resumed cohabitation since then. He submitted that Mr Flaihan did not tell Mr Al Bassit of his situation because of embarrassment about it, and that Mr Al Bassit’s evidence should be accepted.

SUMMARY OF RESPONDENT’S SUBMISSIONS

32.     Mr Duri, however, submitted that notwithstanding Mrs Flaihan’s declaration to Centrelink in late 2002 that she was separated, by January 2003, there appears to have been a “some sort of reconciliation if there ever was a  separation …”.  Mr Duri also said that the Respondent accepted that by the time of the hearing the couple had separated. However as to the debt period, January to May 2004, he submitted there were numerous inconsistencies in the evidence given by the various members of the family about the relationship, and the lease, and that Mr Flaihan’s explanations were too far fetched to be credible, and were not supported by any contemporaneous evidence.  He submitted I should rely on the contemporaneous written documentation, that is the receipts for payment of bond and rent, and the Rent Certificate submitted by Mr Flaihan on 28 January 2003. Mr Duri also submitted that the evidence of Mr Al Bassit not be given weight in that Mr Flaihan had never told him he was separated, and that he had heard it via the two sets of children.

33.     Mr Duri submitted that there was a debt as raised, because either the documentation submitted by Mr Flaihan was a true indication of the state of his affairs at the time, or in the alternative, if he had knowingly provided false information, then special circumstances did not apply to either waive the debt in whole or in part.  

MY CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

34.     I have considered the evidence before me with regard to whether Mr Flaihan was a member of a couple at the relevant time in 2004. I found Mr Flaihan’s evidence unsatisfactory, and indicated that more than once to the parties at the hearing.  Mr Colborne replied to my “not very satisfactory evidence .. very difficult”, at the end of Mr Flaihan’s oral evidence, with: “I agree, I agree, I mean that is linguistically cultural”.  I replied: “It (sic) can hide behind a lot of things. We have a very good interpreter, and his English is quite fluent. …”  (Transcript 6.6.06, page 68).

35.     I accepted that Mr and Mrs Flaihan have an unhappy marriage, and that Mrs Flaihan signalled that to her husband in the facsimile she sent to him in Lebanon, and to the children when she visited Australia in 1998. I  am also mindful that she returned to the family in Lebanon, and that the whole family then returned to Australia in early 2003. I am mindful that Mrs Flaihan informed Centrelink that she was separated in a document she lodged in 2002. However this was followed by the signing of the joint lease in early 2003, and I was satisfied that Mr Flaihan did not inform Centrelink of any separation until April 2004 when investigations regarding Mrs Flaihan’s income had been commenced due to a data match with the ATO.

36.     I was mindful of the documents Mrs Flaihan lodged after the conclusion of evidence, being an electricity invoice addressed to Mrs Flaihan alone, (that is not including Mr Flaihan), at Regents Park for a quarterly account due 21 June 2004,  and an Optus account for the telephone in her name alone, addressed to the Regents Park address, for the period 22 October 2003 to 21 November 2003.  I was not able to draw any particular conclusions from these documents.

37.     However, the contemporaneous documentary evidence regarding the flat at Regents Park and its occupants was compelling. There were the following documents:

·     Residential Tenancy Agreement in the names of Mr and Mrs Flaihan dated 10 January 2003;

·     Receipt made out to both Mr and Mrs Flaihan for the payment of rent and the bond;

·     Mr Flaihan’s Centrelink Rent Certificate date stamped 28 January 2003 (T9, Exhibit R1) with the names of all the family members listed as residents at the flat at Regents Park, and with a cash receipt made out to H & T Flaihan attached (T10, Exhibit R1).

38.     There was also the issue of Mr Flaihan’s mail addressed to Regents Park. I did not accept Mrs Oderbolz had the knowledge to comment on Mr Flaihan’s mail, and I did not have the opportunity of hearing her in oral evidence. Accordingly the letter she submitted which is Exhibit A1 was of little assistance to me in my decision making.

39.     I was satisfied from the evidence before me that Mr Flaihan was a member of a couple at the relevant time of 31 January to 4 May 2004 as alleged by the Respondent, and that he did not disclose that situation to Centrelink. I accepted that the marriage may not have been a happy one, and noted that notwithstanding Mrs Flaihan’s fax to Mr Flaihan in 1998 telling him it was all over, she returned to Lebanon and continued to live there until the family returned in 2002/2003. I accepted Mr Duri’s submission, and was satisfied to conclude from the documentary evidence that on the family’s return to Australia in early 2003, they resided at Regents Park. I noted also the Respondent’s acknowledgment that the couple have since separated.

A DEBT PURSUANT TO SECTION 1223(1) OF THE ACT HAS BEEN RAISED

40. Accordingly I accept that there is a debt pursuant to section 1223(1) of the Act as raised by the Respondent for the period 31 January to 4 May 2004.

41. Section 1223(1) of the Act follows as relevant.

“1223(1)         Subject to this section, if:

(a)       a social security payment is made; and

(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”

42. Therefore, because Mr Flaihan was paid $2,082.88 payment in excess of his entitlement, that amount must be recovered unless there is a reason to waive some or all of it. Accordingly, I moved to consider waiver pursuant to section 1237AAD of the Act.

SPECIAL CIRCUMSTANCES

43.     If “special circumstances” pursuant to section 1237AAD of the Act can be found, then all or part of the debt can be waived.

44. Section 1237AAD of the Act provides as follows:

“1237AAD      Waiver in Special Circumstances     

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 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.”

45.     There are well known leading cases such as Beadle v Director-General of Social Security (1985) 60 ALR 225. I noted that in Beadle v Director-General of Social Security the Federal Court defined “special circumstances” as being those which are “unusual, uncommon or exceptional”, and that this has been reinforced in many following cases that have been decided since, including Secretary, Department of Social Security v Hulls (1991) 22 ALD 570, Secretary, Department of Social Security v Banks (1990) 20 ALD 19 and Secretary, Department of Social Security v Ellis (1997) 24 AAR 535.

46.     In Beadle v Director-General of Social Security (supra), the Federal Court, in examining “special circumstances”  within the terms of section 102(1) of the 1947 Act said:

“It would depend upon the circumstances of the particular case whether these constituted special circumstances.  We do not think it is possible to lay down precise limits or precise rules.  The matter is one for the Director-General bearing in mind the purpose for which the power is given.”

47.     Mr Flaihan cited health issues as a special circumstance. Health issues can certainly form part of the consideration of whether special circumstances can be found in a particular case. In that regard I noted that Mr Flaihan has been able to travel to Lebanon with his daughter on at least two occasions in recent times, and that there are no other circumstances which I felt make his case special in the sense that not to find special circumstances would be unjust or unreasonable.

48.     However I am mindful that the Secretary, and this Tribunal standing in his shoes, may waive the right to recover all or part of a debt if satisfied that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation, and that special circumstances make it desirable to waive the debt. In this case, I am satisfied that Mr Flaihan knowingly made a false statement to Centrelink in that he did not disclose Mrs Flaihan’s income for the relevant period in 2004. If indeed he was not living at Regents Park in 2003, then the Rent Certificate contained false statements. Therefore special circumstances cannot be applied in this case regardless.

49. I have also considered whether section 1237A of the Act applies in this case. That section provides for waiver of a debt arising from sole administrative error. As there was no question that Mr Flaihan’s debt did not arise due to any error of the Commonwealth, rather because he failed to inform Centrelink of his wife’s earnings, there is no opportunity of applying section 1237A of the Act.

50. I have also considered the application of section 1236 of the Act, and considered whether it was appropriate to exercise the discretion to write off the debt. I was satisfied that this did not apply in Mr Flaihan’s case as he misled the Respondent in not declaring his wife’s income when he was a member of a couple in 2004. Further he is in receipt of a benefit so that he has some capacity to repay the debt.

51.Therefore the debt of $2,082.88 must be recovered in full.

DECISION

52.     The decision under review is affirmed.

I certify that 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member

Signed:         Associate

Dates of Hearing  6 June & 7 August 2006; further documents 17 & 24 August 2006     

Date of Decision  6 October 2006
Applicant’s Counsel                  Mr C Colborne 
Applicant’s Solicitor                   Mr J Dagnall, Legal Aid Commission of NSW
Respondent’s Advocate           Mr A Duri