Gowinda Goonewaradana and Secretary, Department of Social Services
[2013] AATA 795
[2013] AATA 795
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4560
Re
Gowinda Goonewaradana
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 11 November 2013 Place Adelaide The decision under review is affirmed.
................ [Sgd] …...................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY – Debt - Overpayment - Whether applicant was entitled to obtain social security payments at the relevant time - Debts correctly raised - Effect of reparation order on discretion to waive - Whether provision for waiver in special circumstances applicable in circumstances where applicant had been convicted of making a false statement in connection with the payments - Convictions relevant to issue of 'knowingly making a false statement' but not necessarily conclusive - No special circumstances - Whether debts arose solely from administrative error - Decision under review affirmed.
LEGISLATION
Social Security Act 1991 (as in force 1991 – 1994), ss 7(2), 554 and 638
Social Security Act 1991, ss 1236, 1237A and 1237AAD
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Ridley v Secretary, Department of Social Security (1993) 42 FCR 276
Re Secretary, Department of Social Security and Pomersbach (1991) 25 ALD 73
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
REASONS FOR DECISION
Deputy President K Bean
11 November 2013
INTRODUCTION
The applicant, Mr Goonewaradana, arrived in Australia from Sri Lanka on 9 June 1990, travelling on a visa which was subsequently shown to have been fraudulently obtained. He then ‘overstayed’ that visa, and was subsequently located by immigration officials on 17 April 1991 and placed in immigration detention.
In March 1991, prior to having been placed in immigration detention, Mr Goonewaradana also committed an assault in connection with which he was subsequently held in custody. A hearing relating to that matter took place on 21 July 1992 and he was released from prison on 22 July 1992.
Following his release on 22 July 1992, Mr Goonewaradana applied for Job Search Allowance (JSA) and he subsequently also made claims for Newstart Allowance (NSA). Those claims resulted in the payment to him of a total of $11,815.37 by way of NSA and JSA payments for the period between 24 July 1992 and 20 October 1994.
However on 5 December 1995, Mr Goonewaradana pleaded guilty to 48 offences concerning making false statements in connection with his receipt of those payments. In the context of the relevant criminal proceedings, he admitted that he was not entitled to the JSA and NSA payments he had received as, contrary to statements made on the relevant claim forms, he did not at the relevant time have permission to remain permanently in Australia. Convictions were accordingly entered for these offences, and a reparation order was also made in the sum of $11,492.07.
Mr Goonewaradana subsequently remained in Australia and was ultimately granted permanent residence on 17 December 2007.[1]
[1] Exhibit 1, T2/4 and T4/22.
A number of years later, in 2011, he sought review of decisions made by Centrelink[2] to raise and recover debts in respect of the above overpayments. However on 23 March 2012, an Authorised Review Officer decided to affirm decisions made on 18 August 1994 and 9 January 1995, to raise and recover debts of $11,492.07 and $323.30 respectively.[3]
[2] Exhibit 1, T6/41-42 and T4/21.
[3] Exhibit 1, T4.
That decision was also affirmed by the Social Security Appeals Tribunal (SSAT) on 28 August 2012,[4] and on 10 October 2012 Mr Goonewaradana applied to this Tribunal for review of that decision, giving rise to these proceedings.[5]
[4] Exhibit 1, T2.
[5] Exhibit 1, T1.
THE ISSUES
It follows that the issues before me are:
(a)whether Mr Goonewaradana was overpaid JSA and/or NSA for the periods 24 July 1992 to 20 October 1994 and 1 February 1994 to 11 February 1994, resulting in debts of $11,492.07 and $323.30 respectively; and
(b)if so, whether there are any grounds upon which the relevant debts should be waived or written off?
I propose to address each of these issues in turn.
WERE THE DEBTS CORRECTLY RAISED?
As I have alluded to above, it is clear from the material before me that during the relevant periods, between 1992 and 1994, Mr Goonewaradana did not have a visa or permit allowing him to remain permanently in Australia, and that was one of the bases for his 1995 convictions. Accordingly, I am satisfied that he was not an “Australian resident” within the meaning of the Social Security Act 1991 (the Act) at the relevant time.
I am therefore also satisfied that neither NSA or JSA were payable to Mr Goonewaradana during those periods as he was not residentially qualified for those payments. [6] I am further satisfied that debts in the relevant amounts have been correctly raised against him having regard to the applicable provisions in force at the relevant time,[7] and have been correctly calculated.
[6] Social Security Act 1991 (as in force 1991-1994), ss 7(2), 554 and 638.
[7] Social Security Act 1991 (as at 29 September 1994), ss 1223 and 1224.
The remaining issue therefore is whether there are any grounds upon which either of the relevant debts should be waived or written off, in whole or in part.
ARE THERE GROUNDS UPON WHICH ANY PART OF THE DEBTS SHOULD BE WAIVED OR WRITTEN OFF?
There are two provisions of the Act which are potentially applicable in these circumstances: s 1237A relating to a debt arising from an administrative error, and s 1237AAD allowing for waiver of a debt in “special circumstances”. I propose to address the potential application of s 1237AAD first, before turning to s 1237A.
Should any part of the debts be waived due to “special circumstances”?
Section 1237AAD 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, 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.
It is clear from the terms of this provision that the existence of “special circumstances” is only relevant in circumstances where a decision-maker is satisfied that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or misrepresentation, or failing or omitting to comply with a provision of the relevant Act.
The relevance of Mr Goonewaradana’s convictions and the reparation order
As I have alluded to above, on 5 December 1995, Mr Goonewaradana was convicted in the Adelaide Magistrates’ Court of five counts of making a false statement contrary to s 1344(1)(a) of the Act, and 43 counts of obtaining a benefit not payable pursuant to s 1347(b) of the Act. These offences occurred between 26 July 1992 and 22 February 1995 and related to him falsely stating that he had permission to remain permanently in Australia, and obtaining both JSA and NSA to which he was not entitled. As a result of the offences, he was incorrectly paid JSA and NSA for the period from 24 July 1992 until 20 October 1994 and the total overpayment amount was $11,492.07, in respect of which a reparation order was made by the Court.[8]
[8] T7/43-57. It appears that the debt with respect to the period 1 February to 11 February 1994 was not the subject of a prosecution referral – see T13/109 and 114.
Accordingly an issue arises as to whether it follows from these convictions that Mr Goonewaradana was paid the relevant entitlements on the basis of having made a false statement, namely that he had permission to remain permanently in Australia.[9]
[9] T7/59.
Mr Visser, who appeared as advocate for the respondent, submitted that, in these circumstances, it was not properly open to the Tribunal to conclude, inconsistently with Mr Goonewaradana’s convictions, that he had not knowingly made false statements in connection with his receipt of the relevant entitlements, relying in part on the views expressed by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT.[10] However, the relevant observations of the Full Court in that matter concerned a situation in which the fact of a conviction was a precondition to the exercise of the relevant statutory power, in that case under s 200 of the Migration Act 1958. Other authorities make clear that that situation must be distinguished from one in which the fact of a conviction is not the basis for the exercise of the relevant statutory power or discretion.[11]
[10] (1999) 91 FCR 234.
[11] See Minister for Immigration and Multicultural Affairs v Ali (2000) FCR 106 at 313.
In circumstances where the relevant conviction and sentence do not provide the basis for the exercise of a statutory power, the authorities are to the effect that it is open to the Tribunal to receive and consider evidence which challenges the facts which were essential for the conviction and on which the conviction was based.[12] Nevertheless, where the issue in the criminal proceedings was the same as the issue before an administrative decision-maker, due weight must be given to the conviction.[13]
[12] See Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 at 282.
[13] See Ridley, at 282 and 285.
In Minister for Immigration and Multicultural Affairs v Ali[14], her Honour Justice Branson described the relevant policy considerations as follows:
38. The policy considerations which make it undesirable for administrative decisions to be based on factual findings inconsistent with criminal convictions and sentences include, but extend beyond, the desirability of maintaining public respect and confidence in the administration of criminal justice. Other relevant matters include the following. A criminal conviction is the result of a complex and expensive judicial procedure calculated to ensure the conviction only of persons whose guilt of the crime with which they have been charged has been demonstrated beyond reasonable doubt. For this reason, proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision-maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence.
[14] See footnote 11 above.
However, she also acknowledged:
39. Nonetheless, it is known that there are circumstances in which an individual, for various reasons, may opt to be convicted on his or her plea of guilty although a defence to the charge might be available. On rare occasions, evidence is found, long after a conviction, that shows that the conviction or sentence involved a miscarriage of justice.
She also reiterated later in her judgment that it may be appropriate in some circumstances to give less weight to a conviction following a guilty plea than to one following a contested hearing.[15]
[15] See Ali, at [48].
Accordingly, I do not regard Mr Goonewaradana’s 1995 convictions as being necessarily conclusive of the issue of whether he knowingly made false statements in connection with his receipt of the relevant benefits, although they are clearly highly relevant and I must accord them due weight, bearing in mind that they did not result from a contested hearing.
As to the significance of the reparation order, it is my understanding that this does not prevent or curtail the exercise of the power conferred by s 1237AAD, although any decision to waive all or part of the debts would not affect the reparation order which, having been made by a court, stands with “full force”.[16]
[16] See Re Secretary, Department of Social Security and Pomersbach (1991) 25 ALD 73 at 86.
In his evidence before me, Mr Goonewaradana maintained that he had not understood that he was not entitled to the relevant payments. He stated that upon his release from prison on 22 July 1992, he was given documents to take with him to the Department of Social Security, which he duly did, believing that he was entitled to seek financial assistance from that source. He also said that, as he could only read and write English to a very limited extent, others assisted him in completing the relevant claim forms. Mr Goonewaradana further stated in the course of his evidence that at the time he completed the relevant claim forms, he believed that he was entitled to remain permanently in Australia as a consequence of his dealings with the Department of Immigration.
Mr Goonewaradana acknowledged pleading guilty to the relevant charges. He also acknowledged having signed a document dated 4 December 1995, which stated amongst other things that he had been advised he had no defence to any of the charges, and that he understood he would be required to repay the total amount of the benefits he had received, namely $11,492.07, and was prepared to do so. However, Mr Goonewaradana also said that the only reason he had accepted the advice he was given and agreed to plead guilty was that he believed that if he did not, he would be deported.
Given the complexities which therefore surround determination of whether Mr Goonewaradana knowingly made false statements with the meaning of s 1237AAD, I have decided to first consider whether there are “special circumstances”, before returning to these issues if necessary.
Are there “special circumstances” within the meaning of s 1237AAD?
Mr Goonewaradana said in his evidence that he had married in 1996 and unfortunately his wife has a mental illness, although her health has been better since they married. He said his wife was in receipt of disability support pension and he received carer allowance. They live close to one another, although not together. He said his wife has Housing Trust accommodation and he rents a room close by. He said they were able to pay their bills, although they could not afford to go out to eat.
Although the respondent advised that Mr Goonewaradana’s combined debt was currently being paid at $30.00 per fortnight, Mr Goonewaradana said that sometimes he was required to pay more than this. The respondent also advised that there was $7,897.00 still owed by Mr Goonewaradana as at the time of the hearing.
Aside from the matters I have referred to, and the circumstances surrounding his claims for and receipt of the relevant payments as outlined above, Mr Goonewaradana did not refer to any other circumstances, either in his oral evidence or in the documentary material he provided, which could potentially be regarded as “special circumstances” within the meaning of s 1237AAD.
Whilst I acknowledge that Mr Goonewaradana’s circumstances are difficult, the term “special circumstances” as understood by reference to the applicable case law, has a relatively narrow meaning.[17] Having regard to the proper interpretation of that phrase, I am not satisfied that Mr Goonewaradana’s circumstances are sufficiently unusual, uncommon or involve sufficient hardship or unfairness such that they amount to “special circumstances” within the meaning of s 1237AAD.
[17] See Re Beadle and Director-General of Social Security (1984) 6 ALD 1; Groth v Secretary, Department of Social Security (1995) 40 ALD 541; Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9; Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693.
In reaching that conclusion, in addition to considering his current circumstances, I have had regard to the circumstances in which Mr Goonewaradana claimed and received the relevant payments, including his very poor literacy skills. However, I do not regard any aspect of those circumstances as being “special” in the relevant sense. Even if Mr Goonewaradana genuinely believed he was entitled to receive the relevant payments, in my view that does not render his circumstances “special” such that it would be appropriate to waive any part of his debts.
I have accordingly concluded that, even if the discretion conferred by s 1237AAD is properly available in Mr Goonewaradana’s case, I would not be satisfied that there were “special circumstances” such that any part of his debts should be waived pursuant to that provision.
In the event, it is therefore unnecessary for me to resolve the issues alluded to above, including whether Mr Goonewaradana’s previous convictions have the result that the discretion in s 1237AAD is not available to be exercised in his case.
Should Mr Goonewaradana’s debts be waived due to administrative error?
Section 1237A of the Act relevantly provides as follows:
1237A Waiver of debt arising from error
Administrative error
(1) 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.
Note:Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
…
As this provision requires that the person seeking waiver received the relevant payment in good faith, it raises similar issues to those discussed above with respect to the potential relevance of Mr Goonewaradana’s previous convictions. However, the provision also requires that the debt must be attributable “solely” to an administrative error made by the Commonwealth.
With respect to that issue, Mr Visser for the respondent submitted that, regardless of the Tribunal’s conclusion as to whether Mr Goonewaradana received the relevant payments in good faith, it is clear that his debts did not result “solely” from any administrative error made by the Commonwealth, as there is no doubt that Mr Goonewaradana provided incorrect information on his claim forms and this contributed to his debts arising. In particular, Mr Goonewaradana advised on each of his relevant claim forms that he had a right to permanently reside in Australia, when in fact that was not the case at the relevant time.
I have decided to accept that submission, as it is clear in my view that Mr Goonewaradana contributed to the debts arising through the statements he made on the relevant claim forms that he had a right to remain permanently in Australia, which statements led to his convictions in 1995. Even if Mr Goonewaradana believed at the time he completed the forms that he was entitled to remain permanently in Australia, it remains the case that that was not in fact the true position, and his erroneous statements to that effect contributed to his debts arising.
As I am accordingly satisfied that the debts did not arise “solely” as a result of any administrative error by the Commonwealth, I am also satisfied that it is not open to me to waive any part of Mr Goonewaradana’s debts pursuant to s 1237A of the Act, regardless of whether or not Mr Goonewaradana received the relevant payments in good faith.
For completeness, as Mr Goonewaradana is currently managing to pay his debts from his social security entitlements, I am also satisfied that his debts should not be written off pursuant to s 1236 of the Act.[18]
[18] This provision allows for a debt to be written off in particular circumstances, including where recovery of a debt by way of deductions from a person’s social security payments would result in the person being in severe financial hardship.
CONCLUSION
As I have concluded that Mr Goonewaradana’s debts have been correctly raised and should not be written off pursuant to s 1236 of the Act, or waived under ss 1237AAD or 1237A of the Act, I have also concluded that I should affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ..................... [Sgd] ...........................
Associate
Dated 11 November 2013
Date of hearing 29 August 2013 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Program Litigation & Review Branch, Department of Human Services
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