Flaihan and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 928
•20 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 928
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6034
GENERAL ADMINISTRATIVE DIVISION ) Re HENRY FLAIHAN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen Date20 October 2008
PlaceSydney
Decision The decision under review is set aside and this matter remitted to the Respondent with the direction that in the period 19 October 2002 to 27 January 2004 the Applicant was a member of a couple. ..................[sgd]............................
M D Allen
Senior Member
CATCHWORDS
SOCIAL SECURITY – whether Applicant was a member of a couple – two periods – first period related to when the wife was in Australia and the Applicant remained in Lebanon – held consortium vitae not destroyed by distance – second period – held Applicant lived in same premises as wife and was a member of a couple – no grounds to waive or write off debt.
…
RELEVANT ACT/S:
Social Security Act 1991: Ss 4(2), (3). S 1236, S.1237A, S.1237AAD
…
CITATIONS
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92
Secretary, Department of Social Security v Ellis (1997) 46 ALD 1
Rex v Creamer [1919] 1KB 564
REASONS FOR DECISION
Senior Member M D Allen 1.
By Application made the 11th day of December 2007, the Applicant sought review of a decision by a Social Security Appeals Tribunal that he had been a member of a couple in the period 10 January 2003 to 27 January 2004 and had been overpaid Disability Support Pension in the sum of
$8496.87
2. During the period under review, the Applicant, although qualified for Disability Support Pension, was not entitled to any payment of that benefit because of his wife’s earnings. For his part, the Applicant maintained that at no time during the period in question was he residing with his wife but that he was living separately and apart.
3. There have been previous proceedings in relation to the Applicant and in a decision dated 6 October 2006 being Re Flaihan and Secretary, Department of Employment and Workplace Relations [2006] AATA 857 the AAT (Senior Member Ettinger) found as a fact that the Applicant was a member of a couple with his then wife in the period 31 January 2004 to 4 May 2004.
4. The issues for determination in this matter are substantially the same as those determined in the earlier proceedings.
5. A member of a couple is defined in subsection 4(2) of the Social Security Act 1991 as:
“Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b)…”
Subsection 4(3) of the SSA sets out various criteria to which the Respondent and hence this Tribunal must have regard in forming the opinion whether a person is a member of a couple for the purposes of the SSA.
6. In these proceedings, the provisions of Ss 4(3) of the SSA are of limited relevance in that the Applicants case was that at all relevant times he was living separately and apart from his wife. There was little other evidence adduced to show that the consortium vitae had been irreparably broken.
7. As pointed out by the Full Court of the Federal Court in Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 at paragraph 30 namely…
”The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person”
8. Although in these proceedings no witnesses were called by the Applicant, I admitted into evidence various statements that had been before the Social Security Appeals Tribunal. I have, however, had regard to the fact that the makers of the statements were not subject to cross examination.
9. The Applicants evidence was that he and his wife (from whom he is now divorced) went to Lebanon in 1990. In 1998 the wife returned to Australia. Whilst in Australia, she indicated to the Applicant that she wished to end their marriage.
10. Later, following an incident in which their daughter Grace received burns to her leg, the wife returned to Lebanon and although the parties continued to live under the same roof, both regarded the marriage as at an end.
11. In 2002 it was agreed that the family return to Australia. The original arrangement was that whereas Mrs Flaihan would go to Sydney, the Applicant and his son Mansour would go to Brisbane where Mansour was enrolled at university. It was intended that the Applicant would remain in Brisbane while Mansour attended university there. The Applicant was unable to say which university Mansour attended.
12. The Applicant’s wife proceeded to Australia and after a short period staying with mutual friends at Hornsby, NSW, obtained the lease of a flat at Regents Park, Sydney. When the Applicant came to Australia, he had to make arrangements for a shipping container holding the families goods and chattels, which had been sent from Lebanon, so he travelled from Beirut to Sydney with his daughter.
13. After arriving in Sydney, the Applicant was met by the same friends who had accommodated his wife and, according to him, he then occupied a garage at their premises.
14. The Applicant was adamant that when he arrived in Australia he telephoned the Overseas Section of Centrelink at Hobart and informed them of his return and that he had separated from his wife. It was the Hobart office that then made the appointment for him at Centrelink Hornsby which he attended.
15. When he arrived in Australia, the Applicant needed a permanent address. As he did not have a separate mailbox at the Hornsby property where he was staying, he nominated his wife’s address at 32/23–27 Amy St, Regents Park as his address.
16. Because the arrival of the shipping container from Beirut was delayed, the Applicant remained in Sydney. On 28 January 2003 he completed a Rent Certificate in respect of the premises at Amy St Regents Park and lodged that certificate with Centrelink at Auburn. That Rent Certificate (which enabled the payment of rental allowance) states that the Applicant was residing at the Regents Park property together with his wife and two children.
17. Document 19 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a copy of a rental agreement provided to Centrelink by the Applicant. The agreement is between the landlord and the Applicant and his wife and is dated 10 January 2003. I found the Applicant’s evidence as to how this document came to be signed to be totally unconvincing. According to the Applicant, his daughter brought the document to him and asked him to sign it which he did without understanding what it was. This does not explain how the Rent Certificate came to be lodged with Centrelink.
18. Document T18 is a receipt made out to H & J Flaihan for bond money for the Regent’s Park property and is dated 9 January 2003.
19. The unsigned and undated statement by Said Al Bassit in this matter does not take matters any further. That statement can also be contrasted to the evidence which Mr Al Bassit gave to the AAT in 2006 where he is alleged to have said that:
“He had heard through his children who were classmates of the Flaihan children (sic) that all was not well in their parents marriage but that Mr Flaihan had not informed him of any separation”
20. The statement by the Applicant’s former wife is undated and she did not give evidence in these proceedings. I do not put any weight on this document nor on the statement by Mansour Flaihan. In particular Mansour Flaihan states that although his father arrived in Australia in January 2003, it was about a month later the lease for the Regents Park property was changed, whereas the lease bears date 10 January 2003. A Customs and Immigration Entry Declaration signed by the Applicant is dated 9 January 2003.
21. Likewise, the statement by Yvonne Oderbolz does not prove that the Applicant was not residing at the Regents Park property with his wife. I am also puzzled by Ms Oderbolz’s statement:
“Additionally all of Henry’s postal mail was during this time addressed to our home address”.
If this were the case, it puts doubt on the Applicant’s explanation as to why he required the Regents Park property as an address for the receipt of mail and to evidence a permanent place of abode in Sydney.
22. I found the Applicant’s explanation for not calling witnesses unconvincing. He has appeared before the AAT previously when witnesses were called. In these proceedings he took the attitude that it was for the Respondent to tell him that he was required to produce witnesses. I also not that prior to the actual hearing of the matter, the Applicant did have a solicitor acting on his behalf.
23. In particular I find that contrary to the Applicant’s evidence, the lease of the Regents Park property was entered into almost immediately upon his entry into Australia. There is no record of his having informed Centrelink at Hobart of any separation. The Applicant then made an application to Centrelink Auburn regarding payment of rent and produced the rental agreement as evidence that he and his wife were the tenants and were paying rent.
24. The Applicant stated in his evidence that when his wife had returned to Lebanon after going to Australia in 1998, they had approached the church regarding a divorce. However their Bishop had told them ‘You can not get a divorce because it is against our religion’ and that they should stay together and look after the children. To my mind that is exactly what happened when the Applicant and his wife (returned to Australia) in 2002 and 2003. As Senior Member Ettinger pointed out in the previous proceedings (para 38) the marriage may not have been a happy one. This does not stop it however from being a marriage.
25. A dominant part of the Applicants case was his insistence that he had informed Centrelink at Hobart that he and his wife had separated. No record of any such notification was before the Tribunal and I note, this being an administrative procedure and not curial, that the Social Security Appeals Tribunal at paragraph 13 of their decision of 24 October 2007 said:
“There were a number of Centrelink file notes on the mainframe computer system that were not on the Centrelink file. These file notes contained information that the Tribunal considered crucial to this matter…”
There being no file record at the relevant time regarding separation I am satisfied that the strong inference is that the Applicant did not tell Centrelink that he was separated from his wife.
26. There is no doubt that the Applicant did inform Centrelink that he and his wife had separated. This however was on 7 May 2004 after a data matching exercise had revealed his wife’s earnings.
27. This matter is not entirely free from doubt, but an examination of contemporaneous documents coupled with the rejection of the Applicant’s evidence as to how the lease documents came to be signed convinces me beyond doubt that the Applicant resumed cohabitation with his then wife at the Regents Park property, upon his arrival in Australia on 9 January 2004.
28. Apart from the lease and request for rent assistance, the Applicant nominated the Regents Park address to Centrelink as his contact address, and opened an account at the Commonwealth Bank Regents Park into which his Disability Support Pension was paid. Apart from negating Ms. Oderbolz’s statement that all the Applicant’s postal mail was addressed to her home address, why would the Applicant open an account at Regents Park if he were living at Hornsby.
29. The Social Security Appeals Tribunal found that the Applicant and his wife were not a member of a couple in the period 19 October 2002 to 9 January 2003. I disagree with this finding. Although they may have been physically separated, mere physical separation does not destroy the consortium vitae cf: Rex v Creamer [1919] 1KB 564 at 569
30. That the wife should travel to Australia with the son leaving the Applicant and his daughter to complete school in Lebanon and arrange for the removal of the families goods to Australia is entirely understandable. They were living as a family under the same roof (albeit apparently unhappily) in Lebanon and as I have found they recommenced living together in Australia upon the Applicant’s arrival. I see no evidence that during the interegnum that Applicant and his wife were not a member of a couple.
31. If there were any doubt about the status of the Applicant and his wife it can be stated that although they may not have had a sexual relationship, they were still living together as a married couple. There is no evidence that they did not present themselves to the rest of the world as married but there is evidence they remained together for the sake of their children, as suggested by religious authorities in Lebanon. All of the above demonstrates a commitment the Applicant and his wife had to each other which was different to the commitment they had to any other person.
32. Consequent upon my finding that at all relevant times the Applicant was a member of a couple I must consider whether the Applicant can be relieved of all or any part of the debt owing to the Commonwealth resulting from the overpayment of Disability Support Pension.
33. No evidence was given in these proceedings before me as to the Applicant’s current circumstances but I have had regard to previous references to the Applicant’s ill health and the need to purchase medications. Currently he is entitled to the payment of Age Pension. The Social Security Appeals Tribunal dealt with the Applicants circumstances at paragraph 74 of its decision. I also note that the Applicant was well enough and had sufficient funds to travel to Lebanon in 2005.
34. Section 1236 SSA provides that in certain circumstances a debt owed to the Commonwealth may be written off. Section 1236(1C) provides that a debt is recoverable if it can be deducted from the debtor’s social security payments. As the Applicant is in receipt of a social security benefit, namely Age Pension, the debt can not be written off, unless the Applicant is in severe financial hardship. There is no evidence of the Applicant being in severe financial hardship.
35. Debts may be waived if attributable to administrative error alone (S.1237A SSA). This is not the case in this matter
36. Section 1237AAD SSA states inter alia that a debt may be waived if there are special circumstances (other than financial hardship alone). As to what constitutes special circumstances I refer to Secretary, Department of Social Security v Ellis (1997) 46 ALD 1 at 5 where Carr J pointed out that the phrase “special circumstances” required that there be some feature out of the ordinary, something unfair, unintended or unjust.
37. As stated above the Applicant is in receipt of an Age Pension and is unwell, as evidenced by his previous receipt of a Disability Support Pension. Nevertheless there is nothing before me which indicates that there would be some feature out of the ordinary, unfair, unintended or unjust in requiring the Applicant to refund to the Commonwealth the monies paid to him and to which he was not entitled.
38. The decision under review will be set aside and this matter remitted to the Respondent with the direction that in the period 19 October 2002 to 27 January 2004 the Applicant was a member of a couple.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: .............[sgd]..................................................................
AssociateDate/s of Hearing 29 September 2008
Date of Decision 20 October 2008
Solicitor for the Applicant Mr Ricky James Franks
Solicitor for the Respondent Mr George Lozynsky
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