Fokas and Anor; Secretary, Department of Education, Employment and Workplace Relations and Anor and
[2008] AATA 124
•15 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 124
ADMINISTRATIVE APPEALS TRIBUNAL )
) N 2006/1304 and N 2007/5150
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT
AND WORKPLACE RELATIONSApplicant
And MARIA FOKAS Respondent
Re MARIA FOKAS Applicant
And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT
AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal
Ms N Isenberg, Senior Member
Date15 February 2008
PlaceSydney
Decision The Administrative Appeals Tribunal decides that:
1. The decision of the Social Security Appeals Tribunal (‘SSAT’) is affirmed, insofar as Mrs Fokas was entitled to Newstart Allowance (‘NSA’) of $693.43 during her overseas absence from Australia for the period 1 February to 23 April 2006.
2. The decision of the SSAT is affirmed insofar as Mrs Fokas was not entitled to NSA for the period 31 January to 17 April 2007. Consequently a debt of $790.45 to the Commonwealth arises, which is recoverable.
3. The decision of the SSAT is varied in that the debt of $790.45 is written off until such time as Mrs Fokas receives regular social security payments. The matter is accordingly remitted to Centrelink.
……………[SGD]………………
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance payment – overseas portability – absence due to acute family crisis – debt due to the Commonwealth – special circumstances – decision under review is affirmed – further decision under review is affirmed
LEGISLATION
Social Security Act 1991 – ss 1215, 1217, 1217(A), 1236, 1237A, 1237AAD
Administrative Appeals Tribunal Act 1975 – ss 33, 39
Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005
CASELAW
Briginshaw v Briginshaw (1938) 60 CLR 336
Macdonald v Attorney-General (Cth) (1980) 42 FLR 133
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Saunders and Secretary, Department of Family and Community Services (1999) 57 ALD 495
Beadle v Director-General of Social Security (1985) 7 ALD 670
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
15 February 2008
Ms N Isenberg, Senior Member
DECISIONS UNDER REVIEW
1.Decision of the SSAT made on 31 August 2006 that Mrs Fokas remained entitled to NSA of $693.43 during an overseas absence from 1 February to 23 April 2006.
2.Decision made by SSAT on 15 October 2007 that Mrs Fokas was not entitled to NSA of $790.45 during the period of her overseas absence from 31 January to 17 April 2007.
3.Decision made by the SSAT on 15 October 2007 to affirm a NSA debt of $790.45 for the period from 31 January to 23 February 2007.
BACKGROUND
2006 overseas absence
4.Mrs Fokas has been receiving NSA since at least 1995.
5.On 1 February 2006 Mrs Fokas departed Australia. Centrelink became aware of this on or about 5 February 2006 as a result of data-matching with Department of Immigration and Multicultural Affairs. On 7 February 2006 Centrelink wrote to Mrs Fokas seeking further information.
6.On 3 March 2006, after no contact had been made by Mrs Fokas, her NSA was suspended and a debt of $693.43 was raised for the period from 1 to 24 February 2006. On 13 March 2006 Centrelink cancelled Mrs Fokas’ NSA with effect from 28 January 2006.
7.On 23 April 2006 Mrs Fokas returned from overseas and on 26 April 2006 she lodged an “Application for Payment Form” for the period 28 January to 21 April 2006. She noted on the form: “I was overseas for a short period. Reasons: To change the climet [sic] for my [arthritis]. To see a very ill relative. I was here on Sunday 23 April 2006.”
8.The decision to cancel NSA and raise a debt was affirmed on internal review but the SSAT set aside the decision on the basis that Mrs Fokas went overseas due to an acute family crisis.
9.The Secretary sought review of the SSAT’s decision.
2007 overseas absence
10.On 25 January 2007 Mrs Fokas was sent a form to complete in respect of her activities from 18 November to 1 December 2006. Amongst other things, the form asked her to advise Centrelink if she intended to leave Australia, even for a short period.
11.Mrs Fokas departed Australia on 31 January 2007. When Centrelink became aware of this, on 6 February 2007, she was sent a letter asking her to contact Centrelink to discuss the matter.
12.On 28 February 2007 Mrs Fokas’ NSA was stopped with effect from 31 January 2007 because she was not in Australia and a debt of $790.45 was raised in relation to the period from 31 January 2007 to 23 February 2007.
13.Mrs Fokas did not return to Australia until 17 April 2007.
14.The decision to cancel her pension was affirmed on internal review and by the SSAT. Mrs Fokas seeks review of that decision.
ISSUES BEFORE THE TRIBUNAL
15.The issues before the Tribunal were:
(a)Whether Mrs Fokas was entitled to NSA during overseas absences in respect of the periods 1 February to 23 April 2006 and 31 January to 17 April 2007.
(b)If not, was Mrs Fokas overpaid NSA by Centrelink, which gave rise to a debt owed to the Commonwealth; and
(c)If so, should all or part of the debt be recovered?
APPEARANCES
16.Mr Nicoletti appeared for the Respondent. Mrs Fokas attended the hearing only briefly, during which time I:
(a)assured her that I was properly constituted to hear the matters.
(b)confirmed that the documents she wished me to consider were her hand-written correspondence, lodged with the Tribunal between 3 and 17 January 2008.
(c)confirmed that she had the Secretary’s Statement of Facts and Contentions and T documents.
17.After taking an oath Mrs Fokas said she wished me to decide the matter by reference to the documents, and left the hearing. I was satisfied that a reasonable opportunity was provided to Mrs Fokas to inspect and make submissions in relation to the documents, which I took into consideration when reaching my decision, pursuant to section 39 of the Administrative Appeals Tribunal Act 1975.
RELEVANT LEGISLATION
18.The relevant legislation to be considered in this matter is contained in the Social Security Act 1991 (‘the Act’). In particular, Part 4.2 of the Act determines whether a payment is “portable”, that is, whether and for how long a person who is overseas remains entitled to a social security payment.
19.Section 1215 of the Act states that if a person is receiving a payment which is subject to a limited “maximum portability period”, and if the person is absent from Australia for longer than the maximum portability period, the payment is not payable after the end of the person’s portability period.
20.Section 1217(4) of the Act states that a person’s portability period commences at the beginning of their overseas absence and ends either when they return, or when their maximum portability period ends, whichever comes first.
21.A table in section 1217 of the Act, as in force in February 2006, sets out the maximum portability periods for all social security payments. Payments which do not fall under any of the items mentioned in the table are not portable. Only items 15 and 15A dealt specifically with NSA portability:
Portability of social security payments Column 1 Column 2 Column 3 Column 4 Column 5 Item Payment Person Absence Maximum portability period 15 Newstart allowance All persons A temporary absence for any of the following purposes:
(a) to seek eligible medical treatment;
(b) to attend to an acute family crisis;
(c) for a humanitarian purpose.
13 weeks
Portability of social security payments Column 1 Column 2 Column 3 Column 4 Column 5 Item Payment Person Absence Maximum portability period 15A Newstart allowance Persons of at least 50 years of age who are subject to a Newstart Activity Agreement other than an agreement requiring the person to undertake an activity referred to in paragraph 606(1)(a) Any temporary absence 13 weeks
22.It is relevant to note in respect of Ms Fokas’ overseas absence, from 31 January to 17 April 2007, that Item 15A was removed by amendments in Schedule 7, Part 4 of the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 which took effect on 1 July 2006.
23.The terms “acute family crisis” and “humanitarian purpose” are defined in sections 1212A and 1212B of the Act as follows:
1212AMeaning of acute family crisis
For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of visiting a family member who is critically ill; or
(b) for the purpose of visiting a family member who is hospitalised with a serious illness; or
(c) for a purpose relating to the death of a family member; or
(d) for a purpose relating to a life‑threatening situation (other than an illness referred to in paragraph (a) or (b)) that:
(i) is facing a family member; and
(ii) is beyond the control of the family member.
1212B Meaning of humanitarian purpose
For the purposes of this Part, a person’s absence is for a humanitarian purpose at a particular time if the Secretary is satisfied that the absence is, at that time:
(a) for the purpose of involvement in custody proceedings, criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the person) or other legal proceedings; or
(b) for purposes relating to the adoption of a child by the person; or
(c) for a purpose specified in the regulations for the purposes of this paragraph.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
24.In coming to the correct and preferable decision, I took into account all the evidence, written submissions, case law and relevant legislation.
(a)is nsa payable to mrs fokas whilst she was absent from australia
between 1 february to 23 april 2006?
25.Firstly, the Secretary pointed out that as Mrs Fokas was not subject to an activity agreement at the date of her departure, item 15A in section 1217 of the Act did not apply to her. I agree that whether Mrs Fokas’ NSA was portable is to be determined solely by considering whether Item 15 in section 1217 applied to her, namely whether Mrs Fokas’ absence was for the purpose of attending to an acute family crisis, as defined in section 1212A.
26.It was submitted on behalf of Centrelink that although Mrs Fokas’ credibility was not in issue, there was insufficient information for the Secretary to be ‘comfortably satisfied’ that Mrs Fokas had left Australia to visit her ill mother. The Secretary contended that in the absence of ‘some proof’, I should not accept that Mrs Fokas’ purpose for travelling overseas was to visit her ill mother.
27.Mrs Fokas first advised Centrelink of the reason for her absence on 26 April 2006 when she noted her reasons for going overseas were for a change in climate and “to see a very ill relative”. She reiterated those reasons in her letter to Centrelink on 1 May 2006 where she wrote “I was away to change climet [sic] for my atharitist [sic] + to see a very ill relative”.
28.On 16 June 2006 Mrs Fokas explained that she was informed about her mother’s imminent death in Greece and that she “felt obligated to go and see [her] mother” who was buried on 18 April 2006. She also said that her mother had lived with her sister in a remote area. She stated that she also thought the change of climate would assist her arthritis.
29.However, the Secretary contended that Mrs Fokas has not provided any ‘acceptable proof’ of her mother’s illness and/or death. Centrelink procedures require that “verification of the crisis must be provided to Centrelink”. Mrs Fokas was asked to provide ‘verification’ but had not done so. In particular, on 31 August 2007 Centrelink requested Mrs Fokas to provide a copy of her mother’s death certificate but none has been forthcoming.
30.Mrs Fokas provided an affidavit dated 10 July 2007 in which she wrote:
My mother died at Rethimno Crete Greece
My mother refused the Hospital
My mother was buried on the 18th of April, 2006
My mother was dead in her bed on the morning of the 17th of April
Her hands were in a cross possision [sic]
One of her leg was hanging out of the bed.
My mother’s name was Angeliko Arkuntaki.
31.Using this information, officers in Centrelink’s International Branch sought to verify those details through the Australian Embassy in Athens, but the Greek Registry office held no record of the death.
32.On 30 July 2007 the (previous) Centrelink advocate wrote to a staff member at the Australia embassy in Athens. After providing Mrs Fokas’ mother’s name, place of death and date of death and burial, it was confirmed that: “Mrs Angeliko Arkuntaki details were not found in the Greek register office, therefore her death has not been registered with them.” All other names were said to have been checked.
33.Mrs Fokas provided an extract from a letter written in Greek, apparently dated 31 May 2006, which she stated was addressed to her by an aunt. It referred to the ‘40 days memorial service for [her] mother’. The Secretary contended that this also, was not sufficient evidence of the death of Mrs Fokas’ mother.
34.The issue then was whether I, in the shoes of the decision-maker, am ‘satisfied’ that Mrs Fokas’ absence from Australia related to the death of her mother.
35.As to what ‘satisfied’ means, I was referred to Briginshaw v Briginshaw (1938) 60 CLR 336 at [13]:
In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue…
36.I was also referred to Macdonald v Attorney-General (Cth) (1980) 42 FLR 133:
With all respect to the special magistrate, it is my opinion that the degree of persuasion required to satisfy him of the matters falling for consideration under s. 15 does not demand any special standard of proof. To adapt the words of Latham C.J. in Briginshaw v Briginshaw (27): “So far from the legislature having used the phrase ‘satisfy [and ‘satisfied’] itself beyond reasonable doubt’, or any similar phrase, the legislature has simply used the words ‘satisfy’ [and ‘satisfied’]…the words “satisfy”, and “satisfied”, as used in s. 15 of the Act, relate not to a degree of proof, but to a state of mind of the special magistrate; that he must be “satisfied”, which in my opinion comes to the same thing as “convinced”.
37.I note however, that Macdonald was what might be described as a ‘quasi-criminal’ matter in that it related to extradition proceedings. Nonetheless I do think I need to be ‘convinced’ about Mrs Fokas’ reason for travel, only satisfied on the balance of probabilities, as Briginshaw would suggest.
38.I accept that Centrelink procedures require verification. Whilst I am not bound to apply departmental policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420), I may do so and, indeed, the Tribunal will usually apply departmental policy unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 at 416-417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
39.In this matter, the SSAT was prepared to proceed on the basis of Mrs Fokas’ information that she had gone to Greece to see her dying mother. There was no ‘verification’. Since that time Centrelink has sought to clarify the position by endeavouring to confirm Mrs Fokas’ mother’s death. I have referred above to the information provided as a result of Centrelink’s enquiries. The enquiries have proved fruitless. My view of the evidence is that the enquiries do not establish that Mrs Fokas’ mother did not die, only that a record of her death cannot be located. The evidence was provided in a piecemeal form, so that it was not altogether clear just what names, or combination of names had been searched, and whether all relevant avenues had been explored. While this Tribunal is not bound by the rules of evidence (see section 33 of the Administrative Appeals Tribunal Act 1975) it was open to the Respondent to present this evidence in a clearer, and hence, more helpful fashion. Further, I note that Mrs Fokas’ mother was said to have died in a remote area and it is unknown what, if any, record-keeping might be available there. The Respondent provided no evidence about this to persuade me to a view that there was a system of record-keeping which would lead to a legitimate expectation that some notation of the death would be available.
40.Opposing this was Mrs Fokas’ own, somewhat graphic, account of her mother’s death and, less relevantly, the letter by her aunt. It is important to note too, that Mrs Fokas has, since Centrelink began its enquiries, consistently reported that she left Australia because of her mother’s illness.
41.I therefore find on the balance of probabilities that Mrs Fokas’ mother died on or about 17 April 2006 and am satisfied at least one purpose for Mrs Fokas’ visit was to attend to that acute family crisis.
42.For that reason I find that she was properly entitled to have her NSA continued in accordance with section 1217 of the Act. This was the decision of the SSAT and I affirm that decision.
(b) Is nsa payable to mrs fokas whilst she was absent from Australia
between 31 January 2007 to 17 April 2007?
43.Mrs Fokas stated that her reasons for travelling overseas on 31 January 2007 was to attend the memorial day of her mother’s death on 17 April 2007. The Secretary contended, however, that as Mrs Fokas arrived back in Australia on that day, she did not in fact observe her mother’s memorial in Greece. Mrs Fokas made an affidavit dated 13 August 2007. There she referred to differences in time zones and wrote that when the memorial day falls on a weekday, as in this matter, it is celebrated on the previous Sunday. 17 April 2007 was a Tuesday.
44.Even if I accept that her absence was to attend the memorial day this does not, in my view, fall under either the definition of “acute family crisis” or the term “for a humanitarian purpose” in s 1217. Therefore her NSA does not attract portability. Furthermore NSA was not payable to her during the period from 31 January to 17 April 2007.
45.As NSA was paid to Mrs Fokas from 31 January to 23 February 2007, the amount of $790.45 is a debt pursuant to section 1223 of the Act.
(c) is there any reason the commonwealth should not write off the debt?
46.Section 1236 of the Act provides that a debt may be written off (for a stated period or otherwise) in circumstances where the debtor is not receiving a social security payment under the Act and it is not cost effective for the Commonwealth to take action to recover the debt.
47.I was informed that the debt has been ‘temporarily written off’ as Mrs Fokas is not in receipt of any social security benefit at this time, although apparently she is entitled to do so.
48.I agree that this is the appropriate course, noting that s 1236(3) specifically notes that action may be taken to subsequently recover the written off debt. The debt should be written off until such time as Mrs Fokas receives regular social security payments.
49.Notwithstanding this view, I must still consider if there are reasons the debt should be waived altogether.
waiver of the debt: administrative error
50.Section 1237A(1) of the Act provides that a debt must be waived if it is attributable solely to an administrative error made by the Commonwealth, which the debtor received in good faith. There was no contention, nor indeed any evidence that the overpayment was solely due to Centrelink’s error.
waiver of the debt in special circumstances
51.Before considering Mrs Fokas’ circumstances I must be satisfied that she is not precluded from consideration by 1237AAD(a). There was no evidence that she intentionally or deliberately failed to comply with her obligations: Inadvertent or unintentional failure does not constitute "knowingly", even when an applicant knows he or she needs to notify: Re Saunders and Secretary, Department of Family and Community Services (1999) 57 ALD 495.
52.It must be the case, amongst the other requirements of the provision, that there are special circumstances other than financial hardship alone that make it desirable to waive the debt. The Act provides no guidance as to the meaning of the term “special circumstances” in that provision. In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss" (at 674). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security (1984) 6 ALD 1) where (at 3) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances "must have a particular quality of unusualness that permits them to be described as special". See also Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 per Besanko J at [33].
53.In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court's decision in Beadle’s case, observed (at 545) that special circumstances:
would require something to distinguish... [the]… case from others, to take it out of the usual or ordinary case. …It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
54.Mrs Fokas is apparently in poor health, suffering severe arthritis, and has had periods when she was exempted from seeking work. However in a letter to Centrelink dated 9 August 2007 she wrote that she did not require any rehabilitation services. On 13 August 2007 in an affidavit she wrote that she did not need pharmaceutical allowance. Her finances are limited, but she was able to purchase return air tickets to Greece (although she said she obtained the fare cheaply). Her demeanour at the Tribunal and, apparently at conferences and in other attendances here suggests she may have some other psychological issues to deal with as well.
55.I have come to the conclusion that while Mrs Fokas’ circumstances, taken together, are unfortunate, there is nothing so unusual or unfair that would justify waiver of the debt under s 1237AAD of the Act.
DECISION
56.The decision of the SSAT is affirmed in that Mrs Fokas remained entitled to NSA of $693.43 during an overseas absence from 1 February to 23 April 2006.
57.The decision of the SSAT is affirmed insofar as the Tribunal decides that there was no entitlement to NSA for the period 31 January to 17 April 2007 and, as a result, there is a debt of $790.45 to the Commonwealth which is recoverable.
58.The decision of the SSAT is varied in that the Tribunal decides that the debt of $790.45 should be written off until such time as Mrs Fokas receives regular social security payments, and the matter is accordingly remitted to Centrelink.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ................[SGD].................................................
Ms G.A.Tena, Associate
Date of Hearing 17 January 2008
Date of Decision 15 February 2008
Appearance for the Applicant Self-RepresentedSolicitor for the Respondent Mr M Nicoletti, Centrelink Legal Services
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