Haddara and Secretary, Department of Employment and Workplace Relations (Social services second review)
[2023] AATA 2314
•2 August 2023
Haddara and Secretary, Department of Employment and Workplace Relations (Social services second review) [2023] AATA 2314 (2 August 2023)
Division:GENERAL DIVISION
File Number:2020/4523
Re:Ghazi Haddara
APPLICANT
Secretary, Department of Employment and Workplace RelationsAnd
RESPONDENT
DECISION
Tribunal:Member R West
Date:2 August 2023
Place:Melbourne
The decision under review is varied such that:
a.the Applicant was a member of a couple as defined in s 4(2) of the Social Security Act 1991 (Cth) during the period 21 February 2011 to 22 August 2019;
b.the Applicant was overpaid the Newstart Allowance in the amount of $9,777.35 in the period 21 February 2011 to 2 September 2015 (Overpayment);
c.the Overpayment is a debt owed to the Commonwealth pursuant to s 1223(1) of the Social Security Act 1991 (Cth) (Debt); and
d.the Debt is to be recovered in full.
.....................[sgd]...................................................
Member R WestCatchwords
SOCIAL SECURITY – overpayment of social security benefits – Newstart Allowance – associated application – joint hearing – common issue whether member of a couple – re-calculation of amount of overpayment – debt owed to the Commonwealth – no waiver or write off – decision varied
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)Cases
Barnes and Secretary, Department of Social Services [2014] AATA 786
Beadle and Director-General of Social Security (1984) 6 ALD 1
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Bozdag and Secretary, Department of Social Services [2016] AATA 76
Crabtree v Crabtree (1963) 5 FLR 307
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Douglas and Secretary, Department of Families, Community Services and Indigenous Affairs & Anor [2007] AATA 1072
Fairbairn v Radecki [2022] HCA 18
Gilson and Secretary, Department of Employment and Workplace Relations [2007] AATA 1361
Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162
Jones and Secretary, Department of Family and Community Services [2003] AATA 62
Judd and Secretary, Department of Social Services [2022] AATA 727
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Kothe and Secretary, Department of Social Services [2020] AATA 3195
L and Department of Social Security [1995] AATA 159
Lambe v Director-General of Social Services (1981) 4 ALD 362
Melvin v Secretary, Department of Social Security [2016] FCA 375
Micallef and Secretary, Department of Family and Community Services [2004] AATA 485
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
Re Lumsden and Secretary Department of Social Security [1986] AATA 228
Secretary, Department of Family and Community Services and Birgden [2003] AATA 67
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Stubbs and Secretary Department of Families and Community Services [2003] AATA 729
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 284
VBH and Anor and Secretary, Department of Family and Community Services [2006] AATA 1
VBH and Secretary, Department of Family and Community Services (2006) 89 ALD 293Wilson and Secretary, Department of Social Services [2022] AATA 4067
Secondary Materials
Department of Social Services, Social Security Guide (version 1.295, released 1 July 2022)
REASONS FOR DECISION
Member R West
2 August 2023
BACKGROUND
This matter concerns an appeal by the Applicant of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 8 July 2020, affirming the decision of an authorised review officer (ARO) of Services Australia that the Applicant had been overpaid social security benefits at the single rate when he was a member of a couple at the relevant times.
Relevant History – Matter 2020/4532
From 24 April 2010 to 2 September 2015 the Applicant received payment of the Newstart Allowance calculated at the single rate.[1]
[1] GHT58 at p.205.
On 6 September 2019 Centrelink determined, on the basis of the evidence then available, that the Applicant and Ms Hanan Haddara (Ms Haddara) were to be treated as a couple for the period since 21 February 2011 and raised a Debt against the Applicant in relation to the overpayment of the Newstart Allowance at the single rate for the period 21 February 2011 to 2 September 2015 totalling $20,149.71 (Original Decision).[2]
[2] GHT57 at p.200.
On 18 September 2019, an authorised review officer (ARO) affirmed the Original Decision (ARO Decision).[3]
[3] GHT58 at pp.202-210.
On 8 July 2020, the Administrative Appeals Tribunal (Social Services and Child Support Division) affirmed the ARO Decision (AAT1 Decision).[4]
[4] GHT3 at pp.8-16.
On 27 July 2020, the Applicant applied to the Administrative Appeals Tribunal (General Division) seeking review of the AAT1 Decision (Applicant’s Second Tier Review).[5]
[5] GHT2 at pp.4-7.
Related Proceeding – Matters 2020/4367-4380, 2020/4412-4414
On 6 September 2019 Centrelink determined, on the basis of the evidence then available, that the Applicant and Ms Hanan Haddara were to be treated as a couple from 21 February 2011 and as a consequence it determined to cancel Ms Haddara’s Parenting Payment (single) from 6 September 2019 and to raise and recover various debts in relation to the overpayment of the Parenting Payment, Family Tax Benefit, Child Care Benefit and Child Care Subsidy at the single rate. These decisions were affirmed by separate authorised review officers on 18 September 2019 and 27 March 2020 and by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 8 July 2020.
On 19 July 2020, Ms Haddara applied to the Administrative Appeals Tribunal (General Division) seeking review of the AAT1 decision (Related Application)
Joint Hearing
Prior to the hearing of this matter, the Tribunal accepted that the Applicant’s Second Tier Review and the Related Application involved the common issue of whether the Applicant and Ms Haddara were in a couple relationship at the relevant times. The Tribunal determined that it would facilitate the efficient determination of both matters for a joint hearing to be conducted. Accordingly, the Tribunal directed, pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act), that the matters be heard jointly, with each application to be determined on the basis of common evidence.
HEARING
A hearing in relation to the Applicant’s Second Tier Review and the Related Application was held on 22 and 23 May 2023. The Applicant and Ms Haddara were self-represented and the Respondents were represented by Mr Pietro Nacion, a solicitor with Sparke Helmore.
In conducting the review in both matters, the Tribunal has had regard to:
a. the documents produced by the Respondent pursuant to ss 37 and 38AA of the AAT Act (T Documents);
b. the consolidated documents included in the Tribunal Book lodged by the Respondents as an agreed collection of relevant documents from the T Documents and those tendered by the Applicant and Ms Haddara, in relation to the Applicant’s Second Tier Review and the Related Application;[6]
[6] In referring to these documents in this decision the Tribunal has applied the letters TB and the page number in the paginated Tribunal Book or used the letters GHT or HHT to denote T documents related to either the Applicant’s matter (GHT) or Ms Haddara’s matters (HHT).
c. the Secretary’s Statement Regarding Debt Amount – Exhibit R1; and
d. the oral evidence[7] of:
i.the Applicant;
ii.Ms Haddara;
iii.Abass Rahmatulah; and
iv.Haitham ‘Sam’ Elbelli
[7] The Applicant appeared in person, Ms Haddara appeared by videoconference and the other witnesses by telephone.
LEGISLATION
The Tribunal has had regard to the following relevant legislation in making its decision:
·Social Security Act 1991 (Act);
·Social Security (Administration) Act 1999 (Administration Act);
·A New Tax System (Family Assistance) (Administration) Act 1999 (FA Administration Act); and
·Administrative Appeals Tribunal Act 1975 (AAT Act).
EVIDENCE
The Applicant
The Applicant gave evidence and made oral submissions at the hearing. He stated:
a.He and Ms Haddara were cousins and met through their family. They began dating in 2011 as boyfriend/girlfriend and commenced living together in that year. He denied they had ever married.
b.He said that Ms Haddara did not tolerate alcohol because of her religion and that she equated any consumption of alcohol to alcoholism. He said that he consumed alcohol at the pub after work and socially. He said that Ms Haddara first realised he drank alcohol when they travelled together to Thailand in 2011 and he promised her to cease using alcohol when they returned but was unable to do so. He gave evidence that when Ms Haddara smelled alcohol on his breath, she told him to ‘get out’. He said he then slept in his car outside his place of employment for three or four weeks and after undertaking not to drink alcohol he was able to sleep in the car in the driveway of Ms Haddara’s house and to use the shower. He said that after a few weeks he moved back into the house, but this did not last and he was kicked out due to his drinking.
c.He said that when excluded from Ms Haddara’s house he slept in his car or his truck and took showers and ate meals at a local service station. He said that at one stage he purchased a swag and slept in a park near Ms Haddara’s house.
d.He said he had a good relationship with his four children and had continuing contact with them, but the children were never told that he and Ms Haddara were separated at any stage. He said that he was present at the birth of his first child and took an active role in supporting Ms Haddara for the first six months after the birth even though he and Ms Haddara were separated.
e.The Applicant identified a period in 2017 when he returned to live at Ms Haddara’s house because he said Ms Haddara was afraid of the Apex gang which was active in the area at the time. He said that he lived in a separate room in the house during this time, although if he smelt of alcohol Ms Haddara would make him sleep in the car outside.
f.He confirmed Ms Haddara’s evidence regarding their overseas travel in 2014, 2016 and 2017. He also confirmed that he and Ms Haddara presented to their family and friends as a couple and noted that Ms Haddara’s father was unaware that they had any issues in their relationship.
g.The Applicant confirmed that he did not establish any serious relationship with anyone else during the period from 2011 to 2020.
Ms Hannan Haddara
Ms Haddara gave evidence and made oral submissions at the hearing. Ms Haddara stated:
a. She and the Applicant were cousins. They knew each other through their families and were encouraged to establish a relationship by their families. They became boyfriend and girlfriend in March/April 2011 when on a holiday in Thailand. She denied that she and the Applicant had ever married.
b. Shortly after getting together with the Applicant in 2011 she became pregnant and now has four children with the Applicant, aged 11, 8, 7 and 2. She said her first child was born while she and the Applicant were separated but the Applicant attended the birth at the hospital and was involved in the care of the baby whenever she needed help.
c. She described their relationship as chaotic. She said that the Applicant was a bad alcoholic and they broke up frequently because of his drinking. She said that she would exclude him from her home when he started drinking for extended periods but she would allow him to return occasionally when he promised to be good but this would only last for two or three weeks before he began drinking again and she would ask him to leave her home.
d. In her written statement of 15 November 2022[8] she gave the following history of this on-again-off-again relationship.
[8] Exhibit A4 at TB1139-1140.
After 24 November 2011 [the Applicant] and I ceased our relationship. On 9 December 2013 [the Applicant] and I had rejoined and he was my boyfriend once again. However, on 7 April 2014 [the Applicant] and I separated. On 16 January 2015, myself and [the Applicant] were once again together. On 24 April 2015, I and [the Applicant] decided to take a break from our relationship. Since 15 August 2020 [the Applicant] and I have rejoined as boyfriend and girlfriend.
She confirmed in her oral evidence that she and the Applicant had re-established a couple relationship on 15 August 2020 and it had continued up to the time of the hearing.
e. She said that she hid the nature of her relationship with the Applicant from her family and they thought everything was okay. She said she didn’t want her family to know about the problems in their relationship and she hid things from them. She said that socially she kept up the pretence that she and the Applicant were a couple, although her sister knew bits and pieces and some friends suspected that she was maintaining a pretence.
f. She said that when the Applicant was excluded from her home she did not know where he lived, but he continued to have contact with her in order to see their children and to demonstrate to others that they were still together. She said that the Applicant sometimes stayed at her home.
g. She said that her children were not aware that she and the Applicant were not together. She said that the Applicant attended the children’s sport but was not involved in their schooling.
h. She said that she owned the house in which she lived and that the Applicant had contributed to mortgage repayments throughout the period since 2011 as an informal form of child support. She confirmed that when she renegotiated her mortgage in 2017 the Applicant insisted on being a co-mortgagee so that he could prove he was contributing to the mortgage in case he was queried in relation to child support.
i. She said that the Applicant had purchased a Range Rover vehicle which was kept at her house and was available for her use.
j. She said that she had not worked since 2011 and relied on social security payments for her financial support.
k. She acknowledged that in June 2013 she attended hospital for treatment of a medical condition associated with a failed pregnancy and confirmed that she was with the Applicant in March/April 2013 when she fell pregnant. She confirmed that she and the Applicant were together between 9 December 2013 and 6 April 2014.
l. In June 2014 she went overseas to Thailand with the Applicant for a holiday with their son and they stayed together in the same hotel room. In August 2016 she again went overseas to Bali with the Applicant and two of their children for a holiday and they stayed together in the same accommodation. The youngest third child stayed with her mother in Australia. She again travelled overseas in September 2017 for a six-week holiday to Lebanon with the Applicant and their three children and they lived together with the Applicant’s sister. She acknowledged that she and the Applicant did their best to give the impression to the sister and her family that they were in a stable relationship.
m. She confirmed that from 2011 she did not have any relationship with anyone other than the Applicant and she was not aware of the Applicant having any other relationships.
Abass Rahmatulah
Mr Rahmatulah provided a brief statement in the form of a letter dated 12 November 2022[9] and was called by both the Applicant and Ms Haddara and gave evidence by video link. He gave oral evidence as follows:
a.He had known the Applicant since about 2011 through the Yarraville Soccer Club.
b.He confirmed that the Applicant had problems with alcohol and that there were issues in his relationship with Ms Haddara.
c.He said that the Applicant would often stay with him when he was excluded from Ms Haddara’s house.
d.In cross examination Mr Rahmatulah described the relationship between Ms Haddara and the Applicant as beginning as an arranged marriage, although he was not sure if they were in fact legally married. He said he thought them to be married because they had lived together and raised four children, although he had never actually been to Ms Haddara’s house. He agreed that their relationship could be described as an on and off relationship and that people in their circle tried to get them back together when they had separated.
[9] TB1137.
Haitham ‘Sam’ Elbelli
Mr Elbelli provided a brief statement in the form of a letter dated 14 November 2022[10] and was called by both the Applicant and Ms Haddara and gave evidence. He affirmed his statement and gave oral evidence as follows:
a.He runs a car dealership and has known the Applicant through family friends since 2011.
b.He confirmed that the Applicant was a heavy drinker and he often found him sleeping in his car. He said he was aware this affected his relationship with Ms Haddara, who was a practising Muslim.
c.He said he helped the Applicant find employment in 2013-14.
d.He said that he had only visited Ms Haddara’s house ‘rarely’ and mainly saw the Applicant at ‘mate’s places’.
e.He said that since 2020 the Applicant had changed ‘180 degrees’ and that since then he was responsible and had given up alcohol. He said that the Applicant had always been good with his four children.
[10] TB1138.
The Respondents relied on extensive documentation obtained in the course of its initial investigations and obtained under summons in the Tribunal’s proceedings.
ISSUES
The primary issues for consideration in the Second Tier Review are whether the Applicant was a member of a couple with Ms Haddara in the period 21 February 2011 to 22 August 2019, and if so:
a.whether and in what amount the Applicant is indebted to the Commonwealth as a result of benefits having been paid to him at the single rate; and
b.whether any resultant debts should be written off or waived pursuant to ss 1236, 1237A or 1237AAD of the Act.
Issue 1 – Was the Applicant a member of a couple with Ms Haddara in the period 21 February 2011 to 22 August 2019?
The definition of a ‘member of a couple’ for the purposes of the Act is set out in s 4 of the Act. There are separate definitions for persons who are not married[11] and for those in a ‘registered relationship’ prescribed for the purposes of s 2E of the Acts Interpretation Act 1901.[12]
[11] s 4(2)(b)
[12] s 4(2)(aa).
There is no evidence that Ms Haddara and the Applicant have ever been legally married. Accordingly, the relevant provision to determine whether the Respondent is considered a member of a couple is section s 4(2)(b) of the Act.
Section 4(2)(b) provides that a person is a member of a couple if 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.
The Tribunal is satisfied that Ms Haddara and the Applicant have had a relationship since March 2011, they are not, and have never been legally married[13] and each was over the age of consent in Victoria at all relevant times.[14] Their relationship is not a prohibited relationship as defined in ss 4(12)–(13) of the Act. Accordingly, the issue for the Tribunal to determine is whether the relationship between Ms Haddara and the Applicant was a de facto relationship for the purpose of s 4(2)(b)(iii).
[13] GHT62 at p.226.
[14] The age of consent in Victoria is 16.
Subsection 4(3A) provides that the Tribunal 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 concept of living separately and apart requires the Tribunal to consider both physical and mental elements, where the mental element is independent of whether the parties live in the same house. The fact that the parties may have physically lived together or apart from time to time is not of itself determinative.[15]
[15] Melvin v Secretary, Department of Social Security [2016] FCA 375, [83]-[84] citing the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1, [43]-[58].
The Social Security Guide at Instruction 2.2.5.30 also provides that, if a couple claim to be separated, they must establish that they are living apart either permanently or indefinitely, and there has been an estrangement or breakdown in their relationship. The Guide notes that generally a physical separation as well as an emotional separation between the couple is required.
In forming an opinion about the relationship between two people under s 4(2)(b)(iii) of the Act, the Secretary, and in these proceedings the Tribunal, is required by s 4(3) to have regard to all the circumstances of the relationship including 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.
As the Federal Court made clear in Staunton-Smith v Secretary, Department of Social Security,[16] the matters included in this list are merely indicators and not exhaustive. The Tribunal must make its assessment having regard to the totality of the evidence and material before it.
[16] (1991) 32 FCR 164; See also Pelka v Secretary, Department of Social Security (2006) 151 FCR 546.
In considering all the circumstances of the relationship, the Tribunal is required to make an objective assessment based on the evidence. The opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances.[17] However, the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.[18]
[17] VBH and Anor and Secretary, Department of Family and Community Services [2006] AATA 1, [94].
[18] Boskoski and Secretary, Department of Social Services [2014] AATA 915, [63].
A consideration of these factors follows.
Financial Aspects
Ms Haddara and the Applicant maintained separate bank savings accounts throughout the relevant period.
There is no evidence of any joint ownership of real estate or other major assets. Ms Haddara’s house was at all times owned solely by Ms Haddara and until 2017 she was the sole mortgagee. In 2017 when Ms Haddara’s loan was renegotiated, the Applicant insisted on being included as a co-mortgagee because he wanted proof that he had made contributions if he were to be pressed for child support. Ms Haddara and the Applicant were clear in their evidence that the Applicant made regular contributions to meet the mortgage repayments on Ms Haddara’s house prior to 2017 and had even borrowed money at times to be able to do so. Ms Haddara’s bank records confirm this arrangement. Ms Haddara maintained a Credit Union Australia (CUA) savings account in her own name from which she made regular mortgage repayments to the National Australia Bank (NAB). The CUA statements confirm regular deposits from March 2013 to July 2017 by the Applicant of amounts equivalent to the mortgage repayments.[19] After the loan was renegotiated in 2017[20] a joint bank account was opened in the names of Ms Haddara and the Applicant for the purpose of repayments[21].
[19] TB689-713.
[20] TB214.
[21] TB261.
The Applicant also purchased a Range Rover vehicle in 2013[22] which he made available to Ms Haddara for her exclusive use. The Applicant also maintained insurance for the vehicle throughout the period from 5 November 2015 to the present.[23]
[22] TB312.
[23] TB305.
For her part Ms Haddara took primary responsibility for the household expenses. However, bank statements of the Applicant and Ms Haddara indicate payments were made for gas and electricity by both of them from their individual bank accounts.[24] The evidence also confirms that the Applicant made ad hoc contributions for the children and he paid for the airfares[25] and accommodation for their three overseas trips.
[24] HHT158 at pp. 577-872; GHT63 at p. 279 and GHT74 at p. 480.
[25] TB196.
These financial arrangements continued throughout the relevant period.
On the basis of this evidence the Tribunal finds that there was a degree of financial interdependence maintained by Ms Haddara and the Applicant over the relevant period. The Applicant expressed a sense of obligation that he had to maintain his contribution to the mortgage and Ms Haddara expressed an expectation that he would do so. Both parties shared the expectation that Ms Haddara would meet the household expenses, but in the context that Ms Haddara could have the benefit of the vehicle provided by the Applicant.
The Courts and the Tribunal have recognised, in the context of the exercise of the special reasons exclusion in s 24 of the Act, that the ability of a couple to pool their financial resources is at the heart of the reason why a higher rate of benefit is paid to single recipients than to those in a couple.[26] The Full Court of the Federal Court recognised in Lambe v Director-General of Social Services[27] that mutual financial support is an important factor in determining whether a person is in a couple relationship.
[26] See for example Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084, [37]-[42] and the cases there cited.
[27] (1981) 4 ALD 362, 369
Nature of the Household
The Tribunal generally accepts the description given by Ms Haddara and the Applicant of the nature of their living arrangements over the relevant period. In giving their evidence they were broadly consistent and in the main answered questions candidly. The broad picture they each painted was one in which they were encouraged to get together by their family. In 2011 they established a home in the house owned by Ms Haddara and began to start a family but very early on the Applicant’s drinking proved to be a problem between them and it led to periods of separation where the Applicant was compelled to leave the house and live in temporary accommodation, mainly in his car, often for extended periods. Ms Haddara and the Applicant described these periods of separation as having broken up or ceasing to be boyfriend and girlfriend. The Tribunal is satisfied that they genuinely perceived themselves not to be in a couple relationship during these periods.
However, it is clear that throughout the relevant period from 2011 to 2019 they continued to have an ongoing relationship. This is evident from their continuing financial arrangements, from their several periods of reconciliation, from their shared involvement in the lives of their children, from the fact that the Applicant was asked to return to the house to protect Ms Haddara and the children amidst growing concern about the Apex gang and from their three family holidays overseas.
While the Tribunal accepts that during the relevant period there were extended periods of physical separation where Ms Haddara and the Applicant lived apart in circumstances of some animus, it does not accept that this separation necessarily compels a conclusion that Ms Haddara and the Applicant had ceased to be in a de facto relationship during those times.
In this regard it is significant that Ms Haddara and the Applicant acknowledged that throughout this period their children were not aware that they had broken up and they had not wanted to make them aware. It is also significant that the Applicant did not seek to establish himself in any permanent accommodation when excluded from Ms Haddara’s house, but chose to sleep rough living predominantly in his car, often outside Ms Haddara’s house or in the general area. Neither Ms Haddara not the Applicant established any other relationship and by 2019, when the Applicant addressed his drinking issues, they reconciled and have lived together as a couple since.
The Court recognised in Melvin v Secretary, Department of Social Security[28] that where a couple live together from time to time, it is not determinative of the question whether they are living separately or apart. The Court noted that:
There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house.
[28] [2016] FCA 375, [83]-[84].
The Tribunal in Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor[29] expressed the relevance of this issue to the question at hand as follows:
What must be considered is not only whether the parties live separately, in physical terms, but also whether the marital relationship (the consortium vitae) has not been forged or has broken down. The two limbs of the test are conjunctive.
[29] [2011] AATA 162, [60].
The High Court in Fairbairn v Radecki[30] considered the question of whether a de facto relationship had broken down in the context of s 90SM of the Family Law Act 1975 (Cth). The Court recognised that the question of whether a de facto or married relationship had broken down is not simply a matter of whether the parties had ceased to live at the same property. The Court recognised that a couple may live under the same roof and yet be separated[31] or may be in a couple relationship even where they live at different locations.[32]
[30] [2022] HCA 18.
[31] Ibid [36] citing Crabtree v Crabtree (1963) 5 FLR 307.
[32] Ibid [42].
It is also significant that Ms Haddara kept their relationship difficulties from their family, and this was supported by the Applicant who acknowledged that they presented as a married couple while staying with his sister in Lebanon. Both Ms Haddara and the Applicant acknowledged that they made efforts to present socially as a couple, including on social media.[33] People including Mr Rahmatulah regarded them as a married couple.
[33] TB138, TB148 and TB164.
There is much objective evidence that Ms Haddara and the Applicant routinely presented themselves as a married couple in a social context irrespective of whether they were living together or living separately. This included:
a.The Applicant advising his doctor in April 2011 that he had just got married;[34]
b.Ms Haddara listing the Applicant as her husband on a hospital admission record in June 2013;[35]
c.Ms Haddara referring to the Applicant as her partner and to her title as Mrs and status as Married on a Patient Information form dated March 2013[36] and in a claim for paid parental leave dated September 2014;[37]
d.The Applicant referred to Ms Haddara as his spouse and claimed to be Married in a finance application form in November 2016;[38]
e.Ms Haddara and the Applicant claimed to be married in a joint application for a loan with NAB in May 2017;[39]
f.An RACV account insuring the shared Range Rover issued in November 2017 referred to Mrs H Haddara and Mr G Haddara;[40]
g.A hospital emergency department patient form for Ms Haddara dated February 2018 referred to her as Married;[41]
h.Ms Haddara advising NAB in June 2018 that her marital status was de facto;[42]
i.The Applicant referred to Ms Haddara as his next of kin and giving his status as Married in employment forms in August 2018;[43]
j.A patient history taken by the Applicant’s doctor in March 2020 states that the Applicant got married 9 years ago and things have gone down hill since then, got forced to get married, only 20, married first cousin, they were scared to say anything … sleeps at home with 3 kids … he feels sorry for her because it was not her fault, they are doing thing normal because of their kids, no sexual relations between them any more.[44]
[34] TB18.
[35] TB88.
[36] TB100.
[37] TB122.
[38] TB171.
[39] TB214.
[40] TB247.
[41] TB254.
[42] TB63.
[43] TB298.
[44] TB358.
Ms Haddara and the Applicant were each questioned about these documents. Their responses were evasive and unconvincing. Other than denying the correctness of the statements referred to they made no genuine effort to recall information and gave no cogent explanation for how that information came to be recorded.
By way of contrast the Respondents were able to identify numerous instances where Ms Haddara had claimed to be single in communications with Centrelink during the relevant periods.
The Applicant regularly gave Ms Haddara’s house as his place of residence throughout the relevant period in immigration forms,[45] his children’s’ birth certificates,[46] employment records,[47] insurance records,[48] VicRoads documents[49] and in loan applications and other bank documents.[50] His explanation for these references was that he had no alternative address because he was living in his car or his truck. The Tribunal accepts that this explanation is plausible given the Applicant’s lack of alternate accommodation. However, the mere absence of any alternative address suggests that the Applicant oriented his affairs around Ms Haddara’s house even when not living there. It was the home of his children and Ms Haddara and it appears that it was central in his life. In this regard the Tribunal notes that the Applicant was also served with warning notices by the Wyndham Council at Ms Haddara’s address regarding his dog[51] in December 2014 and March 2016 and he reported the non-collection of bins at the address in January 2019.[52]
[45] TB111-113, TB115-118 and TB 235-237.
[46] TB137, TB175.
[47] TB166.
[48] TB305.
[49] TB302-304.
[50] TB214 see also TB261.
[51] TB373.
[52] TB376.
Sexual Relationship
Ms Haddara and the Applicant gave generally consistent but imprecise evidence regarding their sexual relationship. In general terms they acknowledged that there were periods where they engaged in sexual relations and there were periods where they did not.
Ms Haddara confirmed that they were boyfriend/girlfriend in the period March to November 2011 and this period is associated with the birth of their first child in December 2011. Similarly, Ms Haddara identified the period from December 2013 to April 2014 as a period when they were boyfriend/girlfriend and Ms Haddara attended hospital for an unsuccessful pregnancy in June 2013 and their second child was born in September 2014. Ms Haddara also identified the period between January 2015 and April 2015 as a time when they were boyfriend/girlfriend and their third child was born in October 2015. Both parties acknowledged that they resumed a boyfriend/girlfriend relationship in August 2020 which resulted in the birth of their fourth child in 2021. The Tribunal concludes from these facts that Ms Haddara and the Applicant had a sexual relationship at least during these periods.
In addition, Ms Haddara gave evidence that they travelled overseas as a couple and stayed together as a couple on three occasions in 2014, 2016 and 2017. On the last occasion they lived together for six weeks and presented to their family in Lebanon that they were a married couple. Ms Haddara and the Applicant acknowledged that there were other occasions that the Applicant stayed at Ms Haddara’s house overnight, although they each claimed that they slept in separate rooms.
On the basis of the evidence as a whole the Tribunal is satisfied that Ms Haddara and the Applicant had an ongoing sexual relationship throughout the relevant period which was interrupted by frequent and sometimes long periods where they did not engage in sexual activity.
While the existence of a sexual relationship is not determinative, the fact that a couple have an ongoing sexual relationship, albeit punctuated by periods of abstinence, is a factor which weighs in favour of a de facto relationship.
Commitment to Each Other
The existence of mutuality in the commitment of people to a marriage-like relationship is a critical factor. The essence of marriage is commitment by both parties to a life together. While the nature of the commitment may vary from one couple to another it is the fact that the commitment is shared that is the hallmark of marriage and a marriage-like relationship.
The relationship between Ms Haddara and the Applicant has not been without significant discord. There have been many periods where the Applicant has not lived in the family home which they have each described as periods of separation. However, viewed objectively it is difficult to see even those periods as times of complete physical and emotional separation.
Both Ms Haddara and the Applicant acknowledged that the principal cause of animosity between them was the Applicant’s drinking rather than any general incompatibility. Ms Haddara was intolerant of alcohol because of her religious beliefs. The Applicant, who lacked such piety, was more accepting of it. Their evidence was that they got back together when the Applicant committed to not continue consuming alcohol and separated again when he failed to live up to that commitment. They each readily conceded that since August 2020 they have lived happily together because the Applicant had finally given up alcohol. The Tribunal assesses this evidence as indicating that there was an underlying affection or affinity between Ms Haddara and the Applicant which was disrupted by their opposing attitudes to alcohol. The underlying affinity gave rise to a level of mutual commitment which saw them repeatedly try to overcome the principal issue which had separated them in order to resume living under the one roof.
Children also played a central role in their relationship. The Tribunal accepts that the commitment of parents to their children does not necessarily show that they have a mutual commitment to each other,[53] but the fact that parents stay together for the benefit of their children can be a factor indicative of a de facto relationship.[54] In this case, while Ms Haddara had the primary role in caring for the children, the Applicant maintained a commitment to the children and Ms Haddara acknowledged his commitment even during periods that he was not living at the house. The Tribunal is satisfied that Ms Haddara and the Applicant had a shared commitment to care for their children and it was consistent throughout the relevant period and was a core component of their relationship.
[53] Gilson and Secretary, Department of Employment and Workplace Relations [2007] AATA 1361, [55]; Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 284, [41].
[54] Micallef and Secretary, Department of Family and Community Services [2004] AATA 485, [27]; Bozdag and Secretary, Department of Social Services [2016] AATA 765, [46]-[47] ; Kothe and Secretary, Department of Social Services [2020] AATA 3195, [67].
Conclusion
The fact that the parties experienced difficulties in their relationship at times does not preclude a finding that a couple relationship existed. The Tribunal is not required to be satisfied that the relationship was happy or socially conventional. It does not require that there was a total commitment to a couple relationship by both parties at all times. It does not require a finding that there was a romantic relationship. The task for the Tribunal is to assess the true nature and character of the relationship between the parties having regard to the matters and factors specified in s 4(3) of the Act by weighing up the factors which point in favour of a de facto relationship and those that point against it.[55]
[55] See Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92.
In this case the evidence demonstrates that throughout the relevant period, notwithstanding periods where the Applicant did not live in Ms Haddara’s house, the parties had a continuing financial arrangement in which each contributed to the maintenance of the household, each shared a commitment to the care of their children, each represented themselves to their family, their children and in a variety of social settings as being married or in a de facto relationship and they had an ongoing if not continuous sexual relationship.
Having regard to the totality of the evidence and considering the ‘total picture of the relationship’[56] the Tribunal is satisfied that the Applicant was not living separately and apart from Ms Haddara on a permanent or indefinite basis during any of the relevant period and that Ms Haddara and the Applicant were at all times in a de facto relationship. The Tribunal therefore finds that the Applicant was a member of a couple with Ms Haddara in the period 21 February 2011 to 22 August 2019 and specifically during the period from 21 February 2011 to 2 September 2015 when he was in receipt of the Newstart Allowance calculated on the basis of the single rate.
[56] Pelka v Secretary, Department of Social Security (2006) 151 FCR 546, [46].
Issue 2 – Is the Applicant indebted to the Commonwealth?
The Respondent has set out in considerable detail in its Statement of Facts, Issues and Contentions the methodology for the re-assessment conducted by the Agency on 16 and 24 January 2023 of the amount of the overpayment of the Newstart Allowance to the Applicant for the period from 21 February 2011 to 2 September 2015. The revised amount is $9,777.35, a reduction from the initial assessment accepted in the AAT1 Decision of $20,149.71. The reassessment was undertaken having regard to the Applicant’s submissions lodged in November 2022. The Applicant did not dispute the calculation of the revised amount.
The Applicant actually received a total of $40,023.99 for the Newstart Allowance in the period 21 February 2011 to 2 September 2015. The calculation of his reduced entitlement had regard to the Applicant’s:
a.entitlement to the lower partner rate during the relevant period, consistent with the Tribunal’s findings;
b.non-entitlement to rental assistance as there was no evidence that at any time during the relevant period the Applicant paid or was liable to pay rent either to Ms Haddara or anyone else as required by s 1070C(c) of the Act;
c.unreported employment income received from Roberts Transport and Westgate Motors; and
d.entitlement to a lower rate of income support bonus paid to him on 20 March 2013 (ie: $87.50 not $105).
The Applicant’s undeclared earnings comprised wages received from:
a.Roberts Transport in the period from 5 August 2015 to 2 September 2015, as stated in payslips[57] and the Applicant’s letter of appointment as a driver for Roberts Transport dated 29 July 2015;[58] and
b.Westgate Motors from 24 April 2013 to 19 February 2014, as disclosed by deposits to his Commonwealth Bank account.[59]
[57] GHT80 at pp.613-14.
[58] GHT66 at pp.408-409.
[59] GHT66 at p.410.
Neither records identified each day upon which the income was derived or earned and the Respondent assessed the income at the date it was received by the Applicant under s 1073B of the Act consistent with the approach accepted by the Tribunal in Wilson and Secretary, Department of Social Services[60] and Judd and Secretary, Department of Social Services.[61]
[60] [2022] AATA 4067, [27]–[28] and [42].
[61] [2022] AATA 727.
Having reviewed the basis of the re-calculation of the overpayment, the Tribunal is satisfied that the recalculated amount of $9,777.35 is an accurate assessment of the amount of the overpayment to the Applicant for the Newstart Allowance in the period 21 February 2011 to 2 September 2015 and the Tribunal finds accordingly.
A debt in relation to a social security payment arises by operation of s 1223(1) of the Act, which relevantly provides that if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Subsection 1223(1AB) sets out a non-exhaustive list of circumstances in which a person is taken not to have been entitled to obtain the benefit of a payment, including where the person for whose benefit the payment was intended to be made was not qualified to receive the payment – s.1223(1AB)(b).
On the basis of these provisions the Tribunal finds that the Applicant is indebted to the Commonwealth in the sum of $9,777.35.
Issue 3 - Should the debt be recovered from the Applicant?
In the ordinary course, a person who has received public monies to which they were not entitled should be required to repay those monies to the Commonwealth, but this general position is subject to the limited exceptions offered by the provisions of the Act which allow for write off or waiver. As French J noted in Secretary, Department of Social Security v Hales:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.[62]
[62] Secretary, Department of Social Security v Hales (1998) 82 FCR 154.
Part 5.4 of Chapter 5 of the Administration Act sets out the relevant provisions relating to the writing off or waiver of debts in respect of, relevantly, overpayment of the Newstart Allowance. The relevant provisions are:
(a)Section 1236 – which allows for a debt to be written off if irrecoverable at law or where the debtor has no capacity to repay the debt;
(b)Section 1237A – which requires recovery of any part of the debt to be waived if it was solely due to administrative error; and
(c)Section 1237AAD – which allows recovery of any part of the debt to be waived on the basis of special circumstances.
At the commencement of proceedings and prior to final submissions the Tribunal explained to the Applicant the relevance of these provisions in the event that the Tribunal determined that the Applicant was a member of a couple during the relevant period. The Tribunal specifically invited the Applicant and Ms Haddara to provide evidence and make submissions in relation to these matters. Neither the Applicant nor Ms Haddara elected to do so.
Section 1236
Section 1236 relevantly provides:
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or …Pursuant to s 1236(1B), and relevantly in this application, for the purpose of s 1236(1A)(a), a debt is taken to be irrecoverable at law if, and only if, there is no proof of the debt capable of sustaining legal proceedings for its recovery. That is not the case here and the Applicant did not dispute that the Debt was recoverable at law.
For the purpose of s 1236(1A)(b), a debtor is taken to have capacity to repay a debt unless recovery by those means would result in the debtor being in severe financial hardship.
The term "severe financial hardship" is not defined in the Act, but the Tribunal[63] has previously considered the following issues relevant in assessing the term:
(a)the term must be seen in the context of the legislation and whether recovery would cause such personal hardship to the debtor as to run contrary to the beneficial nature of the legislation;
(b)recovery that causes some financial hardship, stress and inconvenience does not constitute severe financial hardship; and
(c)hardship must be financial suffering of a severe or extreme nature.
[63] Re Lumsden and Secretary Department of Social Security [1986] AATA 228; L and Department of Social Security [1995] AATA 159; Jones and Secretary, Department of Family and Community Services [2003] AATA 62; Secretary, Department of Family and Community Services and Birgden [2003] AATA 67; Stubbs and Secretary Department of Families and Community Services [2003] AATA 729; Douglas and Secretary, Department of Families, Community Services and Indigenous Affairs & Anor [2007] AATA 1072.
The Applicant did not give evidence regarding his financial circumstances at the time of the hearing but the Respondent relies on the Applicant’s evidence at the AAT1 hearing that, while he had a Youth Allowance debt of around $2,000, he was then earning around $4,000 per fortnight and owned two motor vehicles valued at $70,000 and $30,000 respectively.
Having regard to this earlier evidence and the absence of any current evidence to the contrary the Tribunal is not satisfied that recovery of the Debt would cause the Applicant severe financial hardship and accordingly, there is no proper basis to write off the Debt under s 1236 of the Act.
Section 1237A
Section 1237A(1) relevantly provides:
Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt[64] that is attributable solely[65] 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.
[64] For the purposes of this section, a proportion of a debt may be 100% of the debt – s 1237A(3).
[65] 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).
Whether or not a debt is attributable solely to a particular administrative error requires an objective assessment of causation to determine whether the only cause that objectively can be ascribed to the relevant debt is an administrative error.[66]The concept of sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error.[67]
[66] Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, [35].
[67] Barnes and Secretary, Department of Social Services [2014] AATA 786, [47].
Having examined the extensive documentation provided by the Respondent the Tribunal is satisfied that the Applicant received appropriate notice of his obligations to provide correct information to Centrelink and that the overpayments resulted from the Applicant and Ms Haddara incorrectly informing Centrelink that they were each living separately and not as a couple during the relevant periods. The debts were not attributable solely to an administrative error.
Waiver in Special Circumstances – s 1237AAD
The final consideration is s 1237AAD of the Act, which provides:
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.
The Respondent submitted that it is open to the Tribunal to find that the Applicant’s debts resulted wholly or partly from the Applicant knowingly making false statements and/or failing to comply with a provision of the Act.
The Tribunal is conscious that its finding that the Applicant and Ms Haddara were a couple at relevant times is based on an objective assessment of the total evidence having regard to the relevant legislation. It is not a finding that necessitates a conclusion that the Applicant knowingly mis-stated his status in claiming benefits. The Tribunal observes that the Applicant seemed genuine in expressing the view that he regarded himself as no longer in a boyfriend/girlfriend relationship at times when Ms Haddara excluded him from her home and that this meant he was single.
In any event it is unnecessary to make any findings regarding s 1237AAD(a) of the Act. The Tribunal is satisfied that the exception in s 1237AAD is not applicable because there is no evidence that the Applicant’s circumstances as a whole are sufficiently unusual, uncommon or exceptional[68] when considered in the context of other social security recipients[69] as would constitute special circumstances for the purpose of s 1237AAD(b) of the Act.
[68] Beadle and Director-General of Social Security (1984) 6 ALD 1, [12].
[69] Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114, [80].
For these reasons the Tribunal is satisfied that the Applicant’s debts should be recovered.
DECISION
The decision under review is varied such that:
a.the Applicant was a member of a couple as defined in s 4(2) of the Social Security Act 1991 (Cth) during the period 21 February 2011 to 22 August 2019;
b.the Applicant was overpaid the Newstart Allowance in the amount of $9,777.35 in the period 21 February 2011 to 2 September 2015 (Overpayment);
c.the Overpayment is a debt owed to the Commonwealth pursuant to s 1223(1) of the Social Security Act 1991 (Cth) (Debt); and
d.the Debt is to be recovered in full.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R West.
.............................[sgd]...........................................
Associate
Dated: 2 August 2023
Dates of hearing: 22 & 23 May 2023 Applicant: Self-represented Advocate for the Respondent: Pietro Nacion Solicitors for the Respondent: Sparke Helmore APPENDIX A
Exhibit Description of evidence A1 Ghazi Haddara's bundle of evidence paged 1-42 lodged 16 Nov 2022 A2 Hanan Haddara's bundle of evidence paged 1-32 lodged 24 Nov 2022 R1 Secretary's statement regarding debt amount - Hanan Haddara - 8 May 2023 R2 Respondent's amended SFIC for Hanan Haddara's matters- 27 Feb 2023 R3 Respondent's SFIC for Ghazi Haddara's matter - 17 Feb 2023 R4 New Tribunal Book (Tender Bundle) Paged 1-1188 lodged 16 May 2023 R5 Ghazi Haddara - T-documents lodged 25 August 2020 R6 Ghazi Haddara - Supplementary T-documents lodged 2 November 2020 R7 Hanan Haddara - T Docs paged 1-5024 lodged 21 August 2020 R8 Hanan Haddara - Supplementary T-documents paged 1- 130 Lodged 2 November 2020 R9 Letter regarding re-assessment of family assistance debts - Hanan Haddara - 7 March 2023
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