Ha Savage and and Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 142
[2013] AATA 142
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2009/1085
Re
Ha Savage
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
and
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENTS
DECISION
Tribunal Mr John Handley, Senior Member
Date 15 March 2013 Place Melbourne The decision of the Social Security Appeals Tribunal dated 2 February 2009 is affirmed insofar as it found that the applicant was a member of a couple throughout the period 6 October 1997 and 30 June 2007 and she was paid benefits to which she was not entitled and which constitute a debt that the respondents are entitled to recover.
The application is otherwise remitted to the respondents for quantification of the amount overpaid.
(sgd) John Handley
Senior Member
SOCIAL SECURITY – the applicant paid benefits between 1997 and 2007 – investigations pointed to the applicant not having any entitlement – whether she was a member of a couple that she failed to declare – applicant prosecuted, pleaded guilty and sentenced in the County Court of Victoria – applicant challenged decision to recover an overpayment of $158,401.37 – decision under review affirmed.
LEGISLATION
Social Security Act 1991 ss 4(2) and (3), 1237A and 1237AAD
Bankruptcy Act 1996 s 153(2)
CASES
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Ridley v Secretary, Department of Social Security (1993) 42 FCR 276
REASONS FOR DECISION
Senior Member John Handley, Senior Member
Ms Savage is the applicant in this review. The respondents allege that she was paid benefits, allowances and payments to which she was not entitled between 6 October 1997 and 30 June 2007 (the payment period). An overpayment has been raised in the sum of $158,401.37.
The respondents allege that during the payment period:
a) the applicant was paid benefits at the single rate;
b) she was a member of a couple which she failed to declare;
c) her partner was in full-time salaried employment; and
d) his income precluded her from any entitlement to payments from Centrelink.
The applicant contests the allegations, initially made by an authorised review officer (ARO) (T52, p.429-435). On 2 February 2009, the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision (T2, p.3-30). On 13 March 2009, the applicant applied to this Tribunal for review of that decision.
PROSECUTION OF THE APPLICANT
The Commonwealth Director of Public Prosecutions (CDPP) also had an interest in the overpayment of benefits to the applicant, I assume on referral to it by either or both of the respondents. The applicant was charged with defrauding the Commonwealth between 16 March 1998 and 23 May 2001 and dishonestly causing a loss to the Commonwealth between 24 May 2001 and 17 May 2007.
The applicant appeared before the County Court of Victoria in Melbourne on 1 March 2012 for a contested plea. She was represented by counsel and a solicitor. An interpreter was present and assisted the applicant. At the commencement of the hearing, the Prosecutor notified His Honour Judge Gullaci (Exhibit R1, p.2):
…There is no contest about the facts. The facts in the opening are agreed. There is a finding that Your Honour needs to make beyond reasonable doubt as to whether, on the evidence, the court is satisfied that the accused was in a marriage like relationship…
The following discussion took place between the applicant’s representative and Judge Gullaci (Exhibit R1, p.5):
[Counsel]:I am going to concede that, on the material, I could never satisfy Your Honour on the balance of probabilities that she was not in a relationship, but it's not an element of the offence. My learned friend wants to say, “Your Honour should make that finding,” and I suppose it's in aggravating circumstances.
His Honour: It clearly is in aggravating circumstances.
[Counsel]: I don't take issue with that.
His Honour: And if you can't persuade me on the balance of probabilities that it doesn't exist, the Crown would need to persuade me beyond reasonable doubt that that was the case.
[Counsel]: Yes.
The applicant pleaded guilty to both charges. She did not give evidence. No other persons were called by her representatives to give evidence. The absence of evidence – to support any of the assertions put by Counsel on her instructions – was noted by Judge Gullaci (Exhibit R1, p.76).
On 1 March 2012 Judge Gullaci concluded that (Exhibit R1, p.74-75):
… the accused was in a marriage-like or de facto relationship over the charge period. I am satisfied beyond reasonable doubt that that is the case. I have come to that conclusion taking into account the matters relied upon by the Crown and listed above and in particular the following…
His Honour then recorded 9 findings of fact in support of his conclusions.
CONVICTION
The applicant was convicted of both charges and sentenced to a total effective sentence of 18 months on 7 March 2012. Judge Gullaci ordered that she be released after serving 9 months imprisonment upon her entering into a reconnaissance period of 2 years. The applicant was also ordered to make reparation to the Commonwealth in the sum of $104,627.26.
In contentions lodged prior to the commencement of the hearing in this application, the respondents submitted that despite the convictions of the applicant, the Tribunal was not precluded from hearing evidence concerning her circumstances throughout the whole of the payment period.
I agree with those contentions, save that the authorities relied upon involved appeals against decisions of the Minister for Immigration and Citizenship to cancel a person's visa. Those decisions were made on the basis that the visa holder had been convicted of an offence, a necessary precursor to visa cancellation under s 200 of the Migration Act 1958. In Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 Branson J stated at [42] that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 … the Tribunal, on review, could not impugn or go behind either the conviction or the sentence.
In the present application, the conviction and sentence of the applicant will not be ignored but it does not prohibit her, in this administrative forum, from having her circumstances examined and considered throughout the payment period. Put another way, the fact of her conviction and sentence does not amount to conclusive proof of the essential facts upon which those convictions were based (Ridley v Secretary, Department of Social Security (1993) 42 FCR 276 at 281).
In Ridley, the Full Court of the Federal Court while allowing an appeal, agreed with the conclusion of the primary Judge insofar as the role of the Tribunal when faced with a finding of guilt by a criminal court. The Full Court said at 281 that whether the beneficiary had an entitlement to a benefit:
…was not dependent upon the conviction…. and it was open to Mrs Ridley to challenge the essential facts upon which the convictions were based notwithstanding that the convictions may have been relevant to the exercise of the power under challenge.
In this application, the respondents assert that the applicant did not have an entitlement to benefits because she was, throughout the payment period, a member of a couple, which she did not declare and the earnings of her partner precluded any entitlement to payments. The expression member of a couple is found at s 4(2) and (3) of the Social Security Act 1991 (the Act).
Section 4(3) sets out criteria which must be considered in order to assess whether persons are in a de-facto relationship (s 4(2)(b)(iii)). Section 4(3)(e)(iv) specifically directs that an element of whether persons are a member of a couple is whether other persons see a relationship, if any, as being a marriage-like or a de facto relationship.
Whilst Judge Gullaci made a finding that the applicant was in a marriage-like or de facto relationship, the period in issue in the proceedings before him was of a duration less than the payment period in this review. Additionally, Judge Gullaci did not make any finding of the income of the applicant’s partner which is relevant to this review because the income of a partner will determine whether the applicant was below or above income thresholds or cut‑off limits for the benefits that she did receive from time to time. That is, even if I were to find that the applicant was a member of a couple throughout the entirety of the payment period, it is conceivable that the income of her partner –and indeed any income of her own – either solely or combined, may have been below the threshold limits, thereby giving her some entitlement. It therefore follows that if I were to make any finding concerning quantum of overpayment it may be of an amount less than the amount demanded by the respondents.
THE LEGISLATION
Section 4(1) of the Act provides that a member of a couple is defined at subsection (2) and (3). The relevant provision provide as follows:
Member of a couple—general
(2)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
(aa) both of the following conditions are met:
(i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii)the person 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) all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship.
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
The definition of prohibited relationship, found at subsections (12) and (13) is not relevant to the circumstances of this review.
THE HEARING
The applicant was not represented during the hearing of this review which occupied 2 ½ days. She gave evidence and was assisted throughout the hearing by an interpreter. Neither party called any witnesses. The applicant lodged statements completed by her and dated 24 September 2012 and 2 October 2012, together with a bundle of photographs. The respondent relied on T-documents comprising 1328 pages and transcripts from the prosecution in the County Court.
At the conclusion of the hearing, I directed that the applicant and Mr Noonan who appeared on behalf of the respondents, be given access to the transcript of the evidence, at the Tribunal’s Melbourne Registry, in order to complete written submissions. The respondents were directed to lodge submissions on or before 30 November 2012 and did so. A copy of their submissions was forwarded to the applicant. The applicant was serving her term of imprisonment during the hearing of this review. She was due for release in early December and I directed that her submissions be lodged on or before 18 January 2013. The applicant was asked to contact the Tribunal upon her release to arrange a time to attend the registry to read the transcript with the assistance of a Vietnamese interpreter.
The applicant attended the Tribunal on 11 December 2012 and a Vietnamese interpreter organised by the Tribunal also attended. The transcript was translated to her. She advised an officer of the Tribunal that she did not intend to lodge any submissions. She was reminded that she could lodge submissions on or before 18 January 2013 (should she decide to change her mind). Submissions have not been lodged.
I propose to follow the criteria within s 4(3) in summarising the evidence and making findings. However, there were a number of factual issues which emerged from the evidence, that are not specifically found within the criteria and which will be addressed at the outset.
THE APPLICANT
The SSAT recorded that the applicant gave evidence that her maiden name was Ha Le (T2, p.7). (In a pension claim lodged on 16 March 1998, the applicant recorded that her birth name was Ha Ngoc Le (T11, p.67)). She told the SSAT that she married Lawrence Savage in 1975 and thereafter became known as Ha Savage. She also said that she divorced about 15 years ago (approximately 1984). She said she changed her name to Nhu Huynh in about 2004/5 and in about 2006 she resumed the name of Ha Savage.
In her claim for Special Benefit made on 9 January 1998, the applicant recorded that the date of last arrival in Australia was on 15 May 1981 and she was then known as Le Ngoc Ha (T6, p.41). In a claim for Family Payment lodged on 3 March 1998, the applicant recorded that she arrived in Australia in May 1979 (T8, p.49). In both applications her name is recorded as Ha Ngoc Savage. That name is recorded on the birth certificate of her daughter (who was born on 2 March 1998 (T6, p.65)) and was also used by the applicant in an application she made for finance from the Adelaide Bank in September 2001 (T67, p.759, 761, 762 and 763).
On 1 September 2003 the applicant changed her name from Ha Ngoc Savage to Nhu Huynh (T21, p.113). The applicant was recorded in an Income and Assets Statement lodged with Centrelink on 17 June 2007 and in an Assessment of Living Arrangements form also lodged with Centrelink on 13 December 2007, as Nhu Huynh (T27, p.132 and T29 p.160). She was also identified by that name in a letter from her solicitors to Centrelink on 28 August 2007 (T 28, p.158).
The applicant in this review is now known as Ha Savage. A photograph of the applicant is found in an Information Request form in which she is identified as Ha Savage (T25, p.122). A copy of a Victorian driver's licence contains a photograph of the applicant against the name Nhu Huynh (T36, p.246). Another copy of a Victorian driver's licence contains a photograph of applicant against the name Ha Ngoc Savage (T53, p.506). The person depicted in each of the 3 photographs is the same person who gave evidence as the applicant in this review.
Throughout the T-documents there are many forms where the applicant is variously described as either Nhu Huyen or Ha Ngoc Savage. Each form contains a signature which appears to be the same. Almost all the forms record the applicant as residing at the same address in Footscray (the Footscray address). Both driver licences also record the Footscray address.
I am satisfied that the applicant is the same person who has from time to time used one or more of the above names. I am also satisfied that she is the person who seeks to review the decisions made by the respondents and is the same person who was the defendant in the County Court proceedings.
CHILDREN
The applicant had two male children, T and M, during her marriage to Lawrence Savage. Mr Savage is also the father. Both children are now adults. In evidence the applicant said she did not intend, nor did she call them to give evidence to assist her in this review. She said it is my practice that I don't rely on my children for assistance. I don't want to bother them. Don't want them to think about my difficulties (Transcript Day 1, p.15). The applicant said that one of her sons lives in Melbourne and the other son lives a short distance outside Melbourne.
The applicant also has a daughter, K, born on 2 March 1998. The birth certificate records the father of K as Minh Hoang Dao (T6, p.65). Both he and the applicant are recorded as residing at the Footscray address. For reasons which will emerge, that person was known in these proceedings as Henry. The applicant asserted that he was not the father of K. Henry did not give evidence in this review. The applicant said that Henry is in Australia but she did not know where he was living. She said she last had contact with him Four or five years ago. Because he told me that he couldn't help me any longer and, in fact, I had caused him some trouble, so he ceased contact with me (Transcript Day 1, p.15).
Minh Hoang Dao (also known as Hoang Minh Dao) – Henry – and the applicant were directors of the corporation H & H Garment Construction Pty Ltd between June 1995 and September 1998 (T40, p.258). The applicant admitted that a corporate relationship existed and described Henry as her business partner (Transcript Day 1, p.11 and 13). She and Henry frequently travelled overseas to Hong Kong, Thailand and Vietnam for business purposes. The business became unprofitable and eventually ceased to trade.
In 1997 the applicant said she met a man who she knew as Hoang who had travelled to Australia on a tourist visa and was present here for about 2 months. She said she had a brief relationship with him and became pregnant to him. She said she feared that Hoang would take K from her if he learnt that she was pregnant and gave birth to his child (Transcript Day 1, p.11-12).
The applicant said Henry comforted her because she was feeling down, depressed, stressed, and (she) had thoughts of killing (her)self. She said Henry agreed to assist her by allowing her to use his surname as the father of K and which would also be recorded on the birth certificate (Transcript Day 1, p.11-12). In return for his favour, the applicant said she decided to help him out by allowing him to use my name for loan applications, because at the time my name was still good to the bank (Transcript Day 1, p.12).
Minh Hoang Dao, the former business partner, decided to change his name on 13 April 2000 and thereafter, became known as Henry Savage (ST11, p.1056). An application for an Australian passport was made by Henry Savage on 26 April 2000 (ST12, p.1057-1059). In both that document and the Change of Name Certificate, the person Henry Savage is recorded as previously being known as Minh Hoang Dao. The same person is recorded as having been employed between 1 July 1997 and 10 January 2008, initially by the Vietnamese name and eventually by the name of Henry Savage (ST31, p.1172-1173). Group certificates were issued in the former name for the income years ending 1997, 1998 and 1999 and thereafter, were issued in the name of Henry Savage (ST31, p.1177-1186). Advice from a superannuation fund identifies the person initially by the Vietnamese name and subsequently by the name of Henry Savage (ST33, p.1207-1209). All of the above documents record that person as residing at the Footscray address.
In a child-support application lodged on 16 March 1998, the applicant recorded the child's natural or adoptive father as Hoang M. Dao and advised that the child’s parents have never lived together (T12, p.75). In a statement to Centrelink on the same date, the applicant recorded that the father of K is Hoang Dao who she met in June 1997 after he arrived in Australia on a visitor's visa; they had lived together for 2 months but subsequently separated and he returned to Vietnam (T13, p.82). A legal representative of the applicant wrote to Centrelink on 16 May 2002 and advised that she was instructed by the applicant that the father of K was Hoang Dao (T20, p.112).
In statement to Centrelink on 25 January 2002, the applicant recorded that the father of Kimberley was a person she only knew… as Minh (T16, p.93). In another statement to Centrelink on 27 February 2002, she again identified the father of K as Minh (T18, p.108).
In a memorandum prepared on 27 February 2002 following another interview with the applicant, a Centrelink officer recorded (T19, p110):
…Cust (customer) made statement on [25 January 2002], stating only knows father's first name, however birth certificate gives full details of father. Cust now claims she invented full name of father and signed as him as believed this to be necessary at time.
The reason given by the applicant for Minh Dao Hoang changing his name to Henry Savage will be discussed later in this decision. The reasons for the applicant consenting to him becoming known by the surname Savage will also be discussed later. I am satisfied and find as a fact that he is the father of K and is the same person known as Hoang Dao, Hoang Dao Minh, Dao Minh Hoang and Minh Dao Hoang. I am not satisfied that the person described by the applicant as arriving here in 1997 on a tourist visa and with whom she had a relationship for 2 months is the father. Indeed, I am not satisfied that such a person exists.
In a statement to Centrelink on 25 January 2002, she recorded that she only knew the tourist as Minh (T16, p.93). In evidence in this review she identified that person as Hoang. In other documents he is referred to as Hoang Dao. A combination of all those names constitutes the name Minh Dao Hoang, being the person now known as Henry Savage.
I am also satisfied and find as a fact that the applicant made false representations to Centrelink concerning the father of K in order to portray herself as being a separated person and as a sole parent in order to qualify for a pension or a benefit.
SECTION 4(3) CRITERIA
There was no evidence in this review of any joint ownership of real estate between the applicant and Henry. The applicant alone (and later her son, T) was the registered proprietor of the real estate at the Footscray address.
The T-documents lodged by the respondent indicate that the applicant purchased the property at the Footscray address and became the registered proprietor of it in September 1992 (T38, p.252). The applicant was a bankrupt between 23 July 2002 and 24 July 2005 (T22, p.115). The real estate was transferred to the applicant’s oldest son, T in May 2003 (T38 p.248, 250-51). In a Statement of Affairs prepared prior to her lodging the debtor's petition, the applicant disclosed the property and declared that she was the sole owner (T17 p.94-107, 115). It was not explained nor was there any evidence in this review of how the applicant was able to dispose of a major asset – the real estate at the Footscray address – during her period of bankruptcy. The transferor of the property is recorded as the applicant but it is noted that 3 months later, during the period of bankruptcy, the applicant also changed her name (refer paragraph 25).
In her Statement of Affairs, the applicant recorded that the value of the property at the Footscray address was $200,000 and $195,000 was owing to creditors who held a security over it. The transfer of the property from the applicant to her son, in May 2003 records consideration in the sum of $315,000. A mortgage in favour of the Adelaide Bank, which was registered against the title in October 2001, was discharged at settlement. On the same day, a mortgage was registered against the title, in favour of Perpetual Trustee Company Ltd, from whom I assume that the applicant’s son, as the purchaser, borrowed money to fund the purchase price. That mortgage was discharged 5 January 2004 and another mortgage registered in the name of Permanent Custodians Ltd was registered on the same day (T38, p.248, 250-51).
The applicant and Henry previously had a corporate relationship as directors of H & H Garment Construction Pty Ltd between June 1995 and September 1998. I doubt that they both worked together with that company, throughout its period of registration because as referred to earlier, and will be discussed in some detail later, Henry was a salaried employee of another company from 1997. I assume that prior to 1995, they had other business interests because in evidence the applicant said that in 1993 we make the business very successful and I bought one house and Henry bought one house (Transcript Day 1, p.23).
The applicant said that the house that she bought was at the Footscray address. When questioned about the location of the house purchased by Henry, the applicant said she could not remember the address but said, we used the profits made from the business and we use Henry's house as a warehouse (Transcript Day1, p.23-24). This evidence suggests to me that 2 homes were purchased by the applicant and Henry, from a profitable enterprise between them before 1995. Nothing else is known about the business or the financial arrangement between them.
The decision of the SSAT records that the applicant acknowledged that she lived at the Footscray address continuously from 1992 (T2, p.9). When asked during these proceedings where she lived before 1997, the applicant said I think [the Footscray address] (Transcript Day 1, p.25). In a claim for Special Benefit made on 9 January 1998 the applicant recorded that she had lived at the Footscray address for the preceding 3 years (T6, p.40).
The applicant said that in 1997 the business failed, she lost everything and she had to temporarily rent Henry's warehouse as a residence for a while. And at that time, I applied for Centrelink money. I remember that, yes. And I pay rent to Henry as well (Transcript Day 1, p 24).
The evidence in relation to the applicant’s and Henry’s living arrangements and rental obligations is very unclear. On the one hand the evidence from the applicant indicates that Henry was living at the Footscray address from 1997 and paying rent to the applicant but he was using the address only and he could live elsewhere. I had no idea (Transcript Day 1, p.22). But that is inconsistent with the applicant’s evidence that from 1997 she was living at Henry's warehouse and paying rent to him.
There are copies of what purports to be receipts for rent paid over other premises at another Footscray address (the other Footscray address) in March 1998 (T15, p.92). The applicant is recorded as the person who paid the rent monies. The original receipts were sighted by a Centrelink officer on 26 March 1998 which is the same date that the applicant lodged an Application for an Assessment of Child Support where she recorded that her home address is the other Footscray address (T14, p.85). Similar entries are made in her Claim for Family Payment made on 3 March 1998 (T8, p.48). I am unable to say whether the house purchased by Henry and used as a warehouse was the same property located at the other Footscray address. However, in her notification to Centrelink of separation, made on 13 October 1997, the applicant recorded that Henry was then living at the other Footscray address (T4, p.38).
The receipts for rent record the name M. Hoang as the recipient. The application for child support assessment records that the person from whom child support payments are being claimed is Hoang Dao (T15, p. 92). I am satisfied that they are both the same person and that person is Henry. I am not satisfied the applicant lived at any location other than at the Footscray address from the date she purchased it in 1992. I am satisfied that the recording of the other Footscray address and the receipt for rent payment were contrived to demonstrate separation.
Later, when she was asked whether Henry lived at the Footscray address between 1992 and 1997, the applicant said Henry had also purchased a house in Springvale in 1992, where he lived, but she did not know the address of it (Transcript Day 1, p.25-26).
The paragraphs immediately above refer to the real estate owned by the applicant and Henry individually. There is no evidence of jointly owned real estate. There is some evidence, mostly documented, which suggests the applicant and Henry resided in one or more properties separately. However, more often than not, they lived together, at the Footscray address and I make that finding because they variously recorded it as their place of residence. For reasons which will emerge immediately below, I have considerable doubt that the applicant and Henry ever did separate during the payment period. I also doubt that the representations made by the applicant to Centrelink alleging separation, in her claims for benefits, were truthful.
I have previously found that Henry is the father of K. She was born on 2 March 1998 and her birth certificate records Henry and the applicant both having the same address. (The applicant said it was correct that at 2 March 1998 she and Henry were living at the Footscray address – Transcript Day 1, p.30). On the following day, 3 March 1998, the applicant claimed Family Payment and represented to Centrelink that she had separated from Henry in July 1997 (T8, p.48). The two inconsistent representations made one day apart suggest that the information the applicant provided to Centrelink was false. It also points to further evidence of Henry residing at the Footscray address, within the payment period, with the applicant.
At this stage it is worth noting that the ASIC documents which record that the applicant and Henry were directors of H & H Garment Construction Pty Ltd between 29 June 1995 and 11 September 1998, also record that Henry was living at the Footscray address (T40, p.258). That is, before the payment period commenced, he was residing at that address being residential premises owned by the applicant. Curiously, the applicant is recorded as living at an address in Reservoir. In evidence, the applicant said that the residential premises in Reservoir were owned by her former husband, Lawrence Savage (Transcript Day 1, p.28‑29). It is not known why she recorded that address in the ASIC records. If it was intended to indicate a place of residence – as opposed to an address for receipt of notices – it is inconsistent with representations she has made elsewhere of residing at the Footscray address, being premises that she owned, from 1992.
One of the outstanding features of this review is the multitude of applications made by the applicant and Henry, jointly and individually for finance and their representations of the nature of their relationship. The sums of money sought were considerable. The following is a summary of those applications.
a.Joint application to Monet Finance Corporation on 28 September 2000 for a loan of $200,000. Both recorded as married to each other, with 2 dependent children and for the preceding 3 ½ years, they had been residing at the Footscray address, with a declared value of $300,000 (T44, p.282-285).
b.Joint application on 8 December 2000 to the Poinciana Cooperative Housing Society Ltd for a housing loan of $140,000. Both recorded as residing at the Footscray address and having been married to each other on 28 September 2000. Loan repaid in full on 27 September 2001 (T44, p.279-280).
c.Application by the applicant alone to the Adelaide Bank/Better Choice Home Loans Pty Ltd for a $200,000 home loan on 3 August 2001. Applicant recorded as residing at an address in New South Wales for 1 month and residing previously for 5 years at the Footscray address. She recorded that she was single and self-employed for 4 years in ladies and children fashion. Her nearest relative is recorded as Henry who resides at the Footscray address and is described as a friend. The loan was repaid in full on 30 April 2003 (T67-68, p.759-777). (In her evidence, the applicant said she could not remember that loan; she agreed that the application form recorded her as residing at the Footscray address for the preceding 5 years and lived at the Footscray address from mid- 2001 to June 2007 during which time Henry used the address and he came and went as he wished (Transcript Day 1, p.32-35)).
d.On 21 September 2001 the applicant, alone applied to GMAC Finance for a loan of $16,300 for the purchase of a second-hand Toyota motor car. The application form completed by the motor car dealer records the applicant residing at the Footscray address in the preceding 5 years and had been employed for 3 years in quality control by YTV Fashion P/L earning $2817 per month. GMAC has a record of the applicant being married (T42, p.262-274). When challenged about the representation about her marital status, the applicant said in evidence:
I wasn’t married. However, to make the loan application stronger – to put more weight to the loan application I wrote down “married.” If I said “single” as my marital status they would refuse my loan application.
The applicant denied that she had made a false statement because that was the law of the loan application (Transcript Day 2, p.61).
e.In March 2004 Henry Savage alone applied to GE Money for a loan of $15,360 to purchase a second-hand Hyundai motor car. The application records him as being married and boarding at the Footscray address for the previous 7 years. It also records him as being employed. His application was rejected (ST49, p.1302-1310).
f.On 4 December 2006 the applicant alone obtained finance from Capital Finance in the sum of $36,352 to purchase a new Honda motor vehicle. The applicant is recorded as having resided at the Footscray address during the previous 5 years; being a single person and residing with her parents; currently employed as a sales assistant with the Dahn Dong Mikebar earning $4333 per month and having previously been self‑employed as a clothing importer (T36, p.240-246). In her evidence, the applicant agreed that the declaration that she was employed was false. She said the car was purchased for use by Henry who had asked her to make the loan application. She said that an agreement was reached with him that he would use the car for a period of 5 years and at the expiration of that period, the car would be transferred to her. It was also agreed that he would make all repayments over the car which were structured by the loan agreement to be $800 per month. She said the finance application was made by her because Henry had a bad credit rating. She said, she agreed to make the loan application because ultimately it would be to her benefit to have a motor car over which he would have made all of the repayments (Transcript Day 2, p.17-18).
The applications above point very strongly to the applicant and Henry being members of a couple. There were representations by them in both their joint and individual applications of residing at the Footscray address. Those contemporaneous documents are consistent with the evidence the applicant gave in this review that she did live at the Footscray address throughout the payment period. The representations variously made by Henry also point to him residing at the same address.
Most of the loan applications, both joint and individual, contain representations of the applicant and Henry being married (although I note the application to Capital Finance was made by the applicant in the name of Nhu Huynh and she is recorded as being single. With the exception of the representations to Centrelink, this is the only reference I can find in any of the documents lodged describing her as a single person). The loans they obtained together would have consequently caused them to have joint liabilities. Although the actual terms of some of the above loans are not within the T-documents, I am satisfied that it can be confidently assumed that the applicant and Henry would have had a joint and several liability for repayment. Whilst there is no evidence that the applicant did work within the payment period (and therefore, did not earn an income) the financial responsibility to repay the loans would have fallen to Henry because he did earn an income as a salaried employee throughout the payment period. His repayments were for his and the applicant’s benefit.
I am satisfied that a combination of the representations made by the applicant and Henry of them being married, whilst both living at the same Footscray address and having joint and several liabilities with respect to loan repayments (and Henry alone making repayments of the Capital Finance loan which was obtained to finance the purchase of a motor car that Henry would use and the applicant would ultimately own – if her evidence is to be believed), all point to and weigh very heavily in favour of a finding of the applicant and Henry being members of a couple.
There are a number of other documents, which are summarised below, which point to a relationship existing from at least 1991 between the applicant and Henry:
a.Henry’s employer notified Centrelink that at the commencement of his employment on 18 November 1996, he resided at the Footscray address, he was single, and his next of kin and/or emergency contact was the applicant (ST31, p.1172-1173).
b.Henry was required to notify his superannuation fund of his dependants and persons who should be regarded as beneficiaries of any entitlements to benefits in the event of his death. On 26 April 1996 he nominated the applicant who he described as his friend. On 28 November 1996 and 3 July 2006, he nominated the applicant who he described as his defactor (sic). Between 1996 and 2006 he and the applicant are recorded as having the same residential address (the Footscray address) (ST33, p.1209, 1212 and 1214).
c.In his application for an Australian passport made on 26 April 2000, Henry recorded the applicant as his friend and as his emergency contact. Both he and the applicant are recorded as having the Footscray address (ST12, p.1059).
d.Records from the ANZ bank concerning an account held by Henry from 19 July 2002 record him residing at the Footscray address and being a single person (ST50, p. 1313-1314). An account held by the applicant with the ANZ bank from 9 July 2002 records the applicant as residing at the Footscray address and being a married person. The name of her spouse is not recorded (T71, p. 862-863).
e.Henry qualified for a loan from the ANZ bank on 22 July 2002 to purchase a BMW motor car. The residential address recorded by the bank is the Footscray address (ST18, p. 1100, 1102). On 20 November 2002 Henry qualified for a home loan from the ANZ bank in the sum of $160,000. The stated loan purpose was refinance mortgage/travel. The bank recorded him residing at the Footscray address. (I note with interest that Henry offered security for that loan a property in Noble Park. Springvale, being a suburb where the applicant asserted that Henry owned another house, is adjacent to Noble Park) (ST19, p. 1105, 1107, 1109 and 1112).
f.For each of the income years between 1997 and 2007, Henry’s employer issued group certificates or payment summaries. Each document recorded him as residing at the Footscray address (ST31, p. 1176-1186).
g.Movement records supplied by the Department of Immigration summarise the movement of the applicant and Henry from Australia to unidentified destinations overseas and return. Those records show the applicant and Henry departing Australia and returning on the same dates in July/August 1991 (T51, p. 1317 and T52, p. 1323); in August 1993 (T51, p. 1319 and T52, p. 1324); in August/September 1994 (T51, p. 1319 and T52. p.1324) and in July 2005 (T51, p. 1321 and T52, p. 1327). The same records also show the applicant and Henry departing Australia and returning within one or two days of each other in 1997, 1999, 2000 and 2008 (T51-52).
h.The applicant and Henry held 2 accounts, jointly, with the Commonwealth Bank between 18 September 2000 and 30 October 2001 and between 28 August 1989 and 30 March 2005 (T59, p.690-691).
Over a ten-year period, the applicant made representations to Centrelink that she was a single mother and a person dependent upon and entitled to receive welfare payments. Her circumstances eventually aroused a degree of curiosity that an investigation into her personal, domestic and financial arrangements satisfied Centrelink that she had received payments to which she was not entitled.
Most of the attention to this point in these reasons has been directed towards the relationship between the applicant and Henry by regard especially to them holding themselves out as either married or in a de facto relationship and residing at the Footscray address throughout the payment period. Attention has also been directed towards financial issues being their liabilities and assets, major financial commitments and their legal obligations to each other (s 4(3)(a)) which assists in defining the relationship between them.
Immediately following in these reasons is a summary of financial transactions, within the payment period, involving bank accounts in the name of the applicant and an examination of various transaction reports which were produced by Crown Casino and Star City Casino.
The data below concerns six bank accounts held by the applicant. Four of the accounts are in the name of Ha Savage. One of those accounts is held jointly between her and K. Another account is in the name of Nhu Huynh. Details of the deposits into those accounts are found at T48, pages 346-351 and summarised below:
a.Westpac bank between 27 January 2000 and 22 June 2006 (T60, p.692-715). This is the account held in the name of Nhu Huynh. The bank statements indicate that pension and benefit payments from Centrelink were paid into this account. The total amount deposited into this account, excluding pension and benefit payments, was $145,416.14.
b.Commonwealth Bank visa account between 8 January 2001 and 9 July 2002 (T54, p.549-657). The total amount of payments into this account was $41,075.82.
c.Bank of Melbourne/Westpac between 19 October 2001 and 21 March 2003 (T65 p.739-755). The total amount deposited into this account was $12,473.15.
d.ANZ bank between 9 July 2002 and 18 January 2008 (T69, p.778-843). The total amount deposited into this account was $88,340.38.
e.Westpac bank between 4 and 31 August 2005 (T63 p.733-734). The bank documents with respect to this account do not identify the name of the account holder. However, another document prepared by the Westpac bank found that T63, page 732 refers to that account, amongst others held by the applicant and in the name of Nhu Huynh. The total amount deposited into this account was $4,120.00.
f.Westpac bank between 1 December 2005 and 8 March 2006 (T64, p. 736-737). This account was held jointly between the applicant and K. The total amount deposited into this account was $660.59.
Between 4 January 2000 and 18 January 2008, the aggregate of the amounts deposited into the above accounts (excluding the joint account between the applicant and K) is $291,425.49. That is an extraordinary sum especially when for 3 of those 8 years (23 July 2002 – 24 July 2005), the applicant was a bankrupt and none of the deposits include the amounts that she received from Centrelink (which is understood to be her only source of income).
The applicant said she had no memory of who made the deposits (Transcript Day 2, p. 25 ‑34). During the third day of evidence the applicant was again cross-examined about the sources of money deposited into her bank accounts. With respect especially to the ANZ account, which was current between July 2002 and January 2008, she speculated that the deposits may have been made by her, from rental income received from persons who resided at the Footscray address and from her Centrelink payments. Those monies, she suggested, may have been used to meet mortgage payments and/or everyday expenses (Transcript Day 3, p.6).
The data taken from the bank and casino records are very relevant to this review because apart from a reference in the reasons of the SSAT to the applicant only working (and therefore earning income) for 3 weeks in the 12 year period preceding its decision in February 2009 (T2, p.10), enormous amounts of money passed through the applicant's bank accounts and the casinos. The inference from these transactions is that Henry made the repayments to individual and joint loans from his salary which fortifies the decision made by the ARO (and subsequently affirmed by the SSAT) that the applicant and Henry were in a marriage-like relationship. If I find that the applicant was a member of a couple, a further issue to be addressed is whether Henry’s income has been of an amount to disentitle the applicant to pension payments throughout the payment period.
Unfortunately, Henry did not give evidence in this review. The applicant's barrister made submissions in the County Court that the loans were paid back and serviced by Henry. When Counsel was informed by Judge Gullaci that there’s no evidence to support that either, is there ? That is what she tells you, Counsel replied, yes (Exhibit R1, p.55-56).
If Henry was called and gave evidence in this review he may have been able to confirm or deny the submissions made by the applicant's barrister before Judge Gullaci. Additionally, and despite persisting cross-examination, the applicant was unable to explain how the loans were repaid. She did inform the SSAT that when her pension payments stopped in 2007 she was servicing a mortgage of over $2000 per month and a car loan of $800 per month. The SSAT recorded that she was borrowing money from friends and one of her sons to make those payments (T2, p.10). Unfortunately, those persons were not called to corroborate that explanation. Those borrowings, if true, do not explain the frequency of the transactions evident from the bank account statements.
An examination of the reports from the casinos indicates that the applicant either possessed money or had access to money which she did not declare to Centrelink. If that money and the source of it had been declared, irrespective of whether she was in a marriage-like relationship, she may not have had an entitlement to pension payments.
The applicant has been a member of the Crown Casino since 13 June 1994. She has had VIP and cashless status (T53, p.506) and has been entitled to gamble in the Mahogany room. The SSAT found that access to the Mahogany room is restricted to high stakes gambling (T2, p.19). The applicant agreed with those findings but said in evidence in this review that she didn't have to constantly bet. I could sit and enjoy myself. (Transcript Day 2, p. 36 and T53 p. 506).
I think it is fair to conclude that the applicant did more than sit and enjoy herself during her visits to the Mahogany room, which I am satisfied occurred very frequently, having regard to transaction reports prepared by Crown Casino recording the dates of her attendance and the amounts gambled (T53).
The applicant came to the attention of Centrelink through Operation Generation which targeted Centrelink customers with gambling losses exceeding $100,000 per annum (T32, p.177 and T51, p.422). Centrelink subsequently conducted an examination of a number of records provided to it by Crown Casino and became satisfied that the applicant had been gambling significant amounts of money. The investigations and subsequent conclusions it reached (the investigation report) were based not only on the reports provided by Crown Casino (the Casino reports) but also by intelligence that it received from the Australian Crime Commission and data from AUSTRAC (T32, p.176-230). (AUSTRAC is the Australian Transaction Reports and Analysis Centre. It is a Federal Government agency. Its website – – describes it as the anti-money laundering and counter terrorism financing regulator).
The applicant was cross-examined about her membership with Crown Casino, the frequency of her attending and the amounts that she gambled. She was also asked to comment on certain entries in the Casino reports found within the T-documents.
The applicant was taken to T32, page 197 which contains a summary of transactions prepared by Crown Casino against her membership card. It records that in the period 2000 to 2007 the applicant had a total buy in of $1,919,645. In the same period she had losses of $722,981 and winnings of $698,045. The applicant said that buy in means changing money for chips (Transcript Day 2, p.37).
The applicant disputed these figures and said that there were occasions when friends would ask her to buy in for them because she was acting like a housekeeper and an assistant hand to the high flier players (Transcript Day 2, p.38). In return, she accrued points which entitled her to small benefits like free cigarettes, free snacks, small things like that to take home for my children (Transcript, p.38). She said one person especially who used her card was C J Le who was a high roller, who on one occasion won $200,000 in baccarat and who entered a tournament which he eventually won and received $600,000. She said the casino knew her as his girlfriend, she exchanged his chips which would have been registered against her account card and the casino probably wouldn’t know what we did between us (Transcript, p.39). Later she said the casino allowed my card to be used. (Transcript, p.41). In a statement to Centrelink dated 17 June 2006, the applicant recorded that she frequently attended Casinos with my friend Mr Le and when sitting with him she would give the dealer her Casino card which then entitled her to accumulate points. She concluded the statement by recording her belief that Mr Le is now in prison (T27, p.129).
The applicant said that one of the motivations for her attending the casinos was to qualify for free gifts by accumulating points against her card but also because she could not get work, she was depressed and lonely at home and wanted to be occupied. She agreed that she did place bets of her own from monies received from Centrelink and took the risk to gamble with the hope to earn extra money for the family or the expenses (Transcript Day 2, p.40).
Unfortunately the respondent did not call any persons from Crown Casino to interpret its records or any persons from Centrelink who were responsible for compiling the investigation report found at T32. A number of issues emerge from the records and the report which are noted below. Where applicable, comment will be made:
a.The investigation report contains a schedule of the applicant’s winnings and losses based on the data compiled in patron reports supplied by Crown Casino between 2000 and 2007. The winnings aggregate $205,647 and the losses aggregate $35,480 (T32, p.179). This results in winnings net of losses at $170,167. Those figures are inconsistent with the report provided by Crown Casino at page 197. I am, in the absence of witnesses, unable to reconcile the two reports.
b.The investigation report records advice from AUSTRAC that the applicant deposited $90,000 into her Casino account on 1 December 2004 made up of $40,000 in $50 notes and $50,000 in $20 notes. Later that day, the applicant withdrew that sum from her account (T32, p.179). That information is consistent with a report found at T32, page 223 which summarises deposits and withdrawals from the applicant's account between 8 March 2000 and November 2005. The $90,000 deposit and withdrawal on 1 December 2004 is recorded on page 223. The report shows that very large amounts of money were paid in or withdrawn during the currency of it. Deposits and withdrawals were frequently made on the same day. The applicant was a bankrupt between July 2002 and July 2005, which is within the period of this report. (T32, page 223 incorporates all of the dates and transactions of another report, of shorter duration, found on page 221).
c.The report at page 223 predominantly records that the person making the transactions was the applicant. However, it also records that on 7 occasions between 30 December 2002 and 1 October 2005, the person undertaking the transaction is Henry Savage. Both he and the applicant are recorded in the report as having the same Footscray address. The applicant said in evidence that she did not ever attend the casino with Henry (Transcript Day 2, p.39). That he is recorded as having used her patron card does not necessarily point to him being at the casino with her. However, it does point to him having access to her card which suggests to me that he was in a relationship with the applicant, no less also because he is recorded as having the same residential address as the applicant.
d.A Patron Comments Report produced by Crown Casino records observations of and other communications with the applicant between 15 April 1997 and 21 December 2007 (T53, p.471-473). Some of the recordings I think are relevant to the evidence of the applicant, namely:
i.on 19 November 1997, Casino staff were instructed that if wife comes in asking to be rated under another patron number, the request should be refused;
ii.on 14 August 1998 there is an entry to staff to ensure it is actually Mrs Savage playing and not Mr Cheul Jae Lee … If it is the latter please inform the Mahogany room. I query whether this is the same person CJ Lee referred to in evidence by the applicant. If it is that person, he is not recorded elsewhere in the report;
iii.on 19 May 2000 Casino staff observed that the applicant’s patron card was passed onto a friend, it was retrieved and retained. Staff were asked to remind Mrs Savage of the rules and regulations;
iv.on 30 April 2003 the applicant presented a receipt for a deposit of $40,000 into her ANZ account;
v.on 5 July 2006 the applicant's patron card was retrieved from (name witheld) who tried to pass himself off as the spouse, but changed story when pressed. Please remind patron that M/R cards are not transferable; and
vi.on 21 December 2007 the report records that the patron (the applicant) requested approval for another patron to deposit funds into this account. Request denied by (name witheld) room manager.
e.The applicant frequently transacted with the casino. A daily record of attending which also incorporates a record of her daily winnings and losses is found at T32, pages 201-218. Another report found at T32, pages 198-200 also purports to summarise daily winnings and losses. I cannot reconcile that report with pages 201 ‑218 nor am I able to determine the author of each report. However, I note that each is entitled with the applicant's name and her Centrelink pension number. Yet another report found at T32, pages 219-220, again with the applicant's name and Centrelink number and which appears to be a summary of transactions recording each monthly buy in, with the corresponding amount won or lost, between May 2000 and April 2007. The net result of these reports points to the applicant very frequently attending the Casino, often on a consecutive daily basis, where very large amounts of money were transacted.
An officer of the Victoria Legal Aid office wrote to Centrelink on 28 August 2007 (T28, p.158-159). I am satisfied that the contents of the letter reflected the instructions of the applicant. The letter records that the applicant is a social gambler, that she does not gamble high sums of money, that the only money she uses for gambling is her pension or borrowed from family.
Having regard to the evidence of the applicant and the contents of the documents referred to above, I cannot be satisfied that the applicant is a social gambler only. I also dismiss the assertion that she does not gamble high sums of money. The contrary is obviously true. If the money used for gambling was borrowed from her family, it would have been incumbent on her to call those family members to corroborate that evidence. The monthly bank statements over the ANZ account between July 2002 and January 2008 show very frequent withdrawals of large sums of money from an ATM machine at Crown Casino from an account held by the applicant. I am satisfied those sums withdrawn were used for gambling
In the statement to Centrelink of 17 June 2006 (T27, p.129), the applicant recorded that she borrowed money from her son in order to place small bets, no more than $200 at a time so she could go out and have a good night. She also recorded that she had not been to the Crown Casino for 2 months. The 3 reports found at T32 concerning the applicant's transactions with Crown Casino demonstrate that she had been at Crown Casino very frequently during the period of 2 months immediately preceding 17 June 2006.
The applicant was not examined about her gambling at Star City Casino in Sydney. At T25, pages 123-128 there are summaries of betting transactions between December 2002 and January 2004 with a buy in for each of those two months respectively of $37,000 and $34,000 (T25, p. 126-127).
In concluding this part about the financial aspects of the relationship there was no evidence, significant or otherwise, of the applicant and Henry pooling their financial resources in relation to major financial commitments (s 4(3)(a)(ii) of the Act). There was no evidence that they owed each other any legal obligation and there was no evidence of them sharing any day-to-day household expenses. The applicant said that she was not aware that Henry had nominated her as the beneficiary of his superannuation fund, that he had identified her as his dependant spouse in his income tax returns or that he had notified his employer that she was to be contacted in case of emergency.
As found earlier, I am satisfied that Henry is the father of K. There was no evidence of him providing care or support for her. The applicant said that he has had no involvement with K but has allowed use of his name on her birth certificate. The applicant said K refers to Henry has her godfather or her adoptive father. She denied that Henry had made any payments with respect to K and all costs associated with her schooling, health and clothing have been met from Centrelink payments. K is enrolled in a private Catholic school and the fees are paid by the applicant's son M.
The applicant said that Henry did not undertake or assume any responsibility for house work or household maintenance. She said he had never undertaken any cleaning, cooking gardening or washing. She said he paid rent for a room only that he used at the Footscray address. She said he cleaned that room and did his own washing. She said that they did not share meals or eat elsewhere together. A component of the cost of rent for his room incorporated electricity and gas charges.
There was no evidence of the applicant and Henry undertaking any social type activities as a component of their relationship. The applicant said that she and Henry would not care for each other, although she does regard him as a friend. She said she would not care for him if he was ill and if he was, he would have to look after himself (Transcript Day 3, p. 27-28).
If that sentiment was truthful, it would appear that the applicant and Henry did not share or provide any companionship or emotional support. There was no evidence of the applicant and Henry having a sexual relationship save that I repeat the earlier finding that I am satisfied that Henry is the father of K. Nonetheless, they have had a relationship since the early 1990s, they have held themselves out as married or married like persons to financial institutions in order to obtain large sums of money, they were in business together and they did travel overseas together on a number of occasions. Henry changed his name and took the name of the applicant's former husband which she also used. That clearly was to their benefit in making loan applications which she said was the reason why Henry decided to take the name Savage. She said that name was more appealing than his own name (Transcript Day 1, p.12). When she was questioned about Henry's change of name, she said that he did so in response to a bet with some friends to determine whether people could readily change their names in Australia. She said he changed his name on the following day and we didn't think about the consequences of that action (Transcript Day 1, p.20).
The applicant agreed that she never notified Centrelink nor did she respond to any recipient enquiry concerning a change of circumstances. She said that she and Henry were sharing accommodation only, they were not in a marriage-like relationship nor were they partners. She therefore, had nothing to declare to Centrelink (Transcript Day 3, p.30-31).
CONCLUSION AND REASONS
The respondents allege that throughout the payment period the applicant was a member of a couple. Within that period the applicant held herself out as a single person and received benefits to which she was not entitled. The quantum of benefits paid to the applicant during the payment period and/or the persistence of her alleged deception apparently motivated the respondents to instruct the CDPP to prosecute the applicant which it did. The applicant pleaded guilty to charges laid against her, she was convicted and sentenced and was ordered to repay benefits to the Commonwealth in the sum of $104,627.26.
In this review, I had the opportunity to observe and listen to the applicant for 2 ½ days whilst she gave her evidence. I also had the opportunity to examine over 1300 pages of documents supplied by the respondents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
I regret that the applicant chose not to call any other persons, especially Henry or her adult children. They may have been able to explain or corroborate some issues which emerged during the hearing. The applicant said she has not had any contact with Henry for many years and does not know where he is. There is no evidence to the contrary and no attempt was made by the respondents locate or to call him.
For the reasons which will follow, I am satisfied that the applicant was a member of a couple. I make that finding having regard to the criteria found at s 4(2)(b) of the Act because:
a.the applicant was throughout the payment period in a relationship with another person being Henry (the partner);
b.she was not legally married to him;
c.the relationship between the applicant and Henry was, in my opinion, (having been formed on the basis mainly, but not exclusively, of the criteria found in subsection (3) and (3A) of the Act), a de facto relationship;
d.both the applicant and Henry were throughout the payment period over the age of consent applicable in Victoria where they both lived; and
e.they were not within a prohibited relationship.
The applicant was the registered proprietor of residential premises located at the Footscray address from 1992 until the property was transferred to her eldest son in 2003. The documents lodged by the respondent in this review point to Henry recording those premises as his residential address prior to the commencement of the payment period (refer to employment and ASIC records). Henry recorded those premises as his residential address in other employment, taxation and superannuation records; in his change of name certificate; his passport application; in an application by him to GE Money and records of the ANZ bank and Crown Casino.
There are many documents also pointing to the applicant residing at the Footscray address throughout the payment period being her driver licenses; the birth certificate of K; a letter from her solicitor dated 28 August 1997; the records of Crown Casino and many documents lodged by her with Centrelink. Many other documents referring to both the applicant and Henry throughout the payment period, all record the Footscray address as their residential address. This very strongly points to both of them residing at those premises. It adds considerable weight to the finding which I will make that they both resided at those premises because they were members of a couple, in a de facto relationship.
I reject the evidence of the applicant that there was a period of time when she lived at Henry's warehouse and paid rent to him. I am satisfied and find as a fact that that representation to Centrelink was contrived and false and was intended to deceive Centrelink that she was separated from the father of K.
I am also satisfied that the applicant falsely represented to Centrelink that the father of K was a person with whom she had a brief relationship in 1997. I am satisfied that Henry is the father of K. It was he with whom the applicant was having a relationship in 1997 when she became pregnant to him. That the applicant and Henry are parents of a child also adds weight to a finding that they were members of a couple.
There are many other features of the conduct of the applicant and Henry jointly which point to them being members of a couple, namely the frequency of their overseas travel together; their numerous loan applications where they represented themselves as either being married or in a de facto relationship; joint bank accounts held between them with the Commonwealth Bank; loan monies obtained by the applicant to purchase a motor car for use by Henry with the intention that the applicant would ultimately acquire it and the use by Henry of the applicant's patron card at the Crown Casino.
Some other documents completed by Henry alone also point to a relationship between him and the applicant, namely recording her as his emergency contact on records held by his employer and in his application for a passport. He also recorded the applicant as the preferred beneficiary of monies payable by his superannuation fund.
I am loathe to make findings against Henry in the absence of him giving evidence in this review. However, it is noteworthy that he did change his name, lawfully, and thereafter, held the same surname as the applicant, being the surname that she chose to acquire following her marriage to Lawrence Savage. I am satisfied that the applicant was truthful in her explanation in evidence that they were more likely to succeed in an application for loan monies by having the same surname. That they also represented themselves as either being married or in a de facto relationship and residing at the same Footscray address surely would have been reassuring to lending institutions.
There were many issues that emerged from the evidence which do not satisfy me that the applicant is a person of truth.
The applicant persistently represented to Centrelink that she was single and separated; contrary to K’s birth certificate, she denied that Henry is the father of K (and attempts to locate K’s father were unsuccessful) and on occasions she gave Centrelink a residential address which she did not occupy. Yet to financial institutions, she consistently represented herself, but for one application, as a married person because such a representation, she believed would allow her to obtain a loan. These representations point to the applicant having engaged in dishonest conduct.
That conduct can further be observed with the representations variously made to lending institutions, especially her admitted dishonesty representing herself as either being employed for wages or in self-employment.
Throughout the payment period the applicant received many notices from Centrelink which directed her to notify it of specific changes in her circumstances.
One of those circumstances was membership of a relationship which was particularly important because the applicant was being paid as if she was a single person. Had she disclosed her relationship with Henry, it is likely that his income would have been taken into account, she would not have been paid as a single person and the Commonwealth would not have been deprived of monies that she in fact was paid and for which she did not have an entitlement.
Another specified change in circumstance which the applicant would have been compelled to disclose was her receipt or possession of monies. This is particularly important in this review having regard to the enormous amounts of money to which the applicant did have access and which she used, often very successfully, when gambling.
I have recorded earlier that the absence of persons from Crown Casino to explain some of the transaction records has prohibited me reconciling some of the documents, however the bank records alone – pointing to substantial withdrawals and deposits – satisfies me that the applicant was not a person who was a social gambler, of modest amounts of money, who frequented the casino in search of companionship or relief from boredom at home. The applicant did attend the Crown Casino very frequently throughout the payment period (including a three-year period during which she was a bankrupt) and at the same time was drawing money on the public purse, being the payments to her of pension and benefits from Centrelink.
That the applicant was unable to identify the person who paid monies into her bank accounts, in the total sum of $291,145, defies belief and reinforces the conclusions I reached earlier that the applicant is not a truthful witness.
For all of the above reasons, I am satisfied that throughout the payment period the applicant was a member of a couple. The person with whom she was having a de facto relationship was Henry. He was throughout that period employed and earning a salary. The amounts earned by him are found within the group certificates within the T-documents. The respondents are entitled to have regard to his income when assessing the rate of entitlement, if any, payable to the applicant.
The amount alleged to be overpaid to the applicant was calculated on the basis that she was paid as a single person without income when she should have been paid as a member of a couple where income was being received by one or more members of that couple.
I am satisfied that the applicant was a member of a couple during the payment period. Therefore, the decision under review in this respect should be affirmed.
Whilst I am satisfied that the T-documents contain a schedule recording the calculations of the monies overpaid to the applicant (T49, p. 353-418), I will remit the remaining part of the decision, namely – quantification of overpayment – to the respondents for calculation for the following reasons:
a.without any disrespect to the Centrelink officers who prepared the schedule of calculations at T49, I think the applicant is entitled to an explanation of the relevant thresholds and cut off limits of each benefit throughout the payment period;
b.the schedule should have regard also to the income of Henry throughout the payment period; and
c.there was no evidence during the hearing about the applicable pension and benefit rates paid and income thresholds nor the methodology for calculating the amount overpaid.
A statement should also be prepared, for the benefit of the applicant, referring to the amount ultimately calculated as overpaid for the purposes of this review and the amount ordered to be repaid pursuant to the reparation order in the County Court. That sum was $104,627.26. Nothing consequent upon this decision will affect the liability of the applicant to repay that sum. However, the amount previously calculated as overpaid during the payment period was $158,401.37. The payment period operated between 6 October 1997 and 30 June 2007. The period of payments which were the subject of the County Court proceedings operated between 6 March 1998 and 17 May 2007. The difference between both quantified amounts is $53,774.11. However, the difference between the duration of both periods is 194 days or 27.5 weeks. This is the equivalent of approximately 14 fortnightly payments which would be very unlikely to approach $53,774.11. I am sure there is a very simple explanation which the applicant is entitled to have reconciling these amounts.
During the payment period the applicant was a bankrupt for 3 years. She was convicted in the County Court of defrauding a public authority and dishonestly causing loss to the Commonwealth. I am satisfied that s 153(2) of the Bankruptcy Act 1966 operates to prohibit the applicant being released from the debt which was incurred during the period of bankruptcy, being equivalent of the amount she was paid from Centrelink to which she was not entitled. That is, I am not satisfied that being released from bankruptcy in 2005 will relieve the applicant from repaying monies fraudulently received during the period of bankruptcy.
Liability for repayment
When the overpayment has been calculated by Centrelink following the remittal (assuming that amount exceeds the amount ordered to be repaid by the County Court), it will be a debt which the respondents are entitled to recover.
The applicant would be entitled to argue that the debt be either written off or waived, either by reason of administrative error by the Commonwealth or by reason of special circumstances.
I understand that the respondents had previously decided to write off the debt as presently calculated pending the applicant's release from jail and an up-to-date statement of financial circumstances. It was the intention of the respondents to then calculate whether the applicant had any capacity to make repayments and if she did, they would then expect her to commence repaying the debt.
Section 1237A of the Act permits waiver of a proportion of the debt attributable solely to administrative error made by the Commonwealth, if the debtor received the payments in good faith. For all of the reasons expressed earlier, I am not satisfied that any part of the debt was attributable solely to administrative error made by the Commonwealth. Centrelink officers acted on the representations made to them by the applicant. I am also satisfied, although it unnecessary to make this finding, that the applicant did not receive payments in good faith. Accordingly, the opportunity to argue that a proportion of the debt be waived under this provision is not available to the applicant.
Section 1237AAD of the Act permits waiving all or part of a debt on the grounds of special circumstances only if the debt did not result wholly or partly from the debtor knowingly making a false statement or false representation or failing or omitting to comply with a provision of the Act. Only if the applicant could pass beyond this threshold would her circumstances be examined to determine whether they were special. If they were, and only for reasons other than financial hardship alone, it may be that she could argue that the debt be waived.
The applicant cannot obtain relief under this provision. Again for reasons expressed earlier, I am satisfied that the applicant did consistently and knowingly make false statements and false representations throughout the payment period. She also omitted or failed to comply with the Act by failing to respond to recipient questionnaires where she was put on notice of a requirement to give information concerning specific matters that would have affected her entitlement and/or the rate of her entitlement to a benefit.
DECISION
I am satisfied that the decision under review, in so far as it found that the applicant was a member of a couple throughout the payment period, should be affirmed.
The remainder of the decision, namely quantification of an amount overpaid is remitted to the respondents for calculation in accordance with the reasons and directions found above.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member..............................[sgd]..........................................
Associate
Dated 15 March 2013
Date(s) of hearing 24-25 September and 1 November 2012 Date final submissions received 23 November 2012 Applicant In person Advocate for the Respondent Mr T. Noonan Solicitors for the Respondent Centrelink Program Litigation and Review Branch
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