Hamade and Secretary, Department of Family and Community Services
[2003] AATA 634
•4 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 634
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/434
GENERAL ADMINISTRATIVE DIVISION ) Re DAOUD HAMADE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr IR Way, Member Date4 July 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd).....................
IR Way
Member
CATCHWORDS
SOCIAL SECURITY – compensation charge – lump sum compensation payment – whether part or all of the compensation payment made to the applicant should be treated as having not been made – special circumstances
Social Security Act 1991 ss 1165, 1184K(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security [1995] FCA 541Re Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487
Beadle v Director-General of Social Security (1985) 7 ALD 670
REASONS FOR DECISION
4 July 2003 Mr IR Way, Member 1. This is an application by Daoud Hamade (“the applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 13 March 2003, which affirmed a decision by Centrelink to recover a compensation charge of $6,516.46 in respect of newstart allowance received by the applicant and parenting payment received by his partner, between 18 August 2000 and 26 February 2001.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T44). The applicant was self-represented and gave oral evidence. Ms H Wallis-Dunn appeared for the respondent.
Background Facts
3. There is no dispute between the parties about the background facts which give rise to the imposition of the compensation charge, nor is there any dispute about the charge being correctly calculated at $6,516.46. In view of this, and on the material before it, the Tribunal makes the following findings of fact:
(a)The applicant suffered a work-related injury on 16 August 2000 for which he claimed compensation.
(b)The applicant claimed and received newstart allowance after the date of his injury.
(c)At the time of his injury, and at all subsequent material times, the applicant was partnered and his wife received parenting payment.
(d)On 5 November 2002 the applicant’s compensation claim was settled and he was awarded a compensation payment of arrears of periodic payments of $600 per week for the period 16 August 2000 to 13 December 2000 and $100 per week for the period 14 December 2000 to 26 February 2001.
(e)Pursuant to the Social Security Act 1991 (“the Act”) the respondent correctly determined that two charge amounts were incurred, namely, $3,754.35 for the applicant and $2,762.11 for Mrs Hamade, totalling $6,516.46, and this amount was recovered by Centrelink from the insurers, CGU Workers’ Compensation (NSW) Ltd, before the balance of the periodic payments were released to the applicant.
Issues and Legislation
4. The sole issue in this matter is whether some or all of the compensation payments awarded to the applicant should be disregarded because of special circumstances.
5. The Act relevantly provides:
“Secretary may disregard some payments
1184K(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a) not having been made; or
(b) not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.”
Applicant’s Evidence and Submissions
6. The applicant contends that because of the special circumstances in respect of his case he should be refunded the compensation charge deducted from his compensation payment.
7. Initially, he requested that the full amount of $6,516.46 be refunded to him. However, in his final submission to the Tribunal, the applicant subsequently requested that the amount refunded should be at least one-half of the total of $6,516.46.
8. The applicant has put forward a number of grounds in respect of special circumstances. These can be conveniently grouped as follows:
§Allegations made against the applicant and arrests of the applicant which he says are false or were falsely made and which caused him financial, family and employment difficulties.
§Financial/employment concerns.
§Family concerns.
The applicant’s evidence and submissions in respect of each of the above matters is set out below.
Allegations and Arrests
9. The applicant told the Tribunal that, following a short period of training in a security training academy in New South Wales, he was employed in mid-2000 by TNT at Mascot, Sydney. He said his life “turned to misery” on 11 August 2000 when he reported the theft of police jackets and badges that were hidden under a private courier truck (and which he claimed were subsequently used in home invasion robberies). Furthermore, he said he had reported security breaches in respect of poorly secured Customs cages at Mascot and the theft of items from the Federal Parliament (T44/163). He also claimed to have uncovered $30m of stolen freight in New South Wales.
10. The applicant described himself as a great Arab Australian who had made a great contribution to Australia’s security. However, he said that as a result of these allegations he had become the target of “corrupt allegations”.. He described these allegations as, firstly, a false AVO issued about January 2001 in respect of his wife, and dismissed on 22 May 2001 at the Local Court, Fairfield, under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
11. The applicant said he had been arrested at his home in Lugarno in May 2001 “for breach AVO by phone 3 montha [sic] ago”.. The Tribunal notes that while the charge was dismissed under section 10, the offence was proved (T1/12). Within the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court that finds a person guilty of an offence, may, without proceeding to conviction, order that the charge be dismissed, if the court is satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) on the person.
12. Secondly, he alleges that a false interim AVO was issued for attempted murder (of a person he was not able to name), which he said expired as a result of his leaving New South Wales and, thirdly, that Police had put him in a psychiatric hospital overnight at Goulburn but the doctors said he was normal and could go.
13. It was the applicant’s evidence that what he described as “corrupt allegations” (that were either dismissed, expired or proved false) were raised against him to disrupt his security reports about thefts.
14. The applicant said that as a result of these allegations he decided he should get out of New South Wales quickly and he not only left his house and lost all his personal belongings, but his wife was shocked and frightened and went home to Lebanon with their two children. He said he initially went to Canberra and then to the Gold Coast in May 2003.
15. The Tribunal notes that the applicant has approached the Police Integrity Commission, the NSW Police Service, the Office of the NSW Ombudsman, the Federal Member of Fraser (Bob McMullen MP) and the Independent Commission Against Corruption in respect of the “security matters” set out above. The Tribunal notes the following responses received by the applicant.
§ Bob McMullen:
“I regret there is nothing I can do to assist you in these matters.”
§ ICAC:
“The ICAC has now fully assessed the matters and does not propose to take any action in relation to the matters.”
§ Police Integrity Commission:
“As the matters about which you have complained do not constitute serious Police misconduct, the Commission is unable to assist you.
As it is required to do so by section 131 of the Police Act 1950, the Commissioner has referred your complaint to NSW Police and the Office of the NSW Ombudsman to be dealt with under that legislation. NSW Police has a responsibility to investigate your complaint in a timely and effective manner and is required to contact you directly to advise you of the results of its inquiries. The Office of the NSW Ombudsman oversights NSW Police’s handling of complaints about police. If you become concerned that NSW Police is dealing with your complaint in an inappropriate manner, you may wish to contact the Office of the NSW Ombudsman, whose contact details are as follows: …”
16. It was the applicant’s evidence that he had had no response or contact from either the NSW Police or the Office of the NSW Ombudsman in respect of his allegations.
17. In effect, Mr Hamade is claiming that because of his responsible actions of reporting theft and security lapses he is being victimised by the Police to the point where it has affected his marriage, his employment, his state of mind and his quality of living. As such, Mr Hamade believes his circumstances are special within the meaning of section 1184K of the Act.
Financial/Employment Concerns
18. The applicant was born in Beirut on 9 September 1970 and came to Australia when he was two years old. He attended school in Bankstown until he was 16 years old. He described his childhood as very bad, having an aggressive father and a brother who committed suicide at 15 years of age. He said he left home at 16 and unsuccessfully attempted to complete various vocational courses. He said he had worked as a gardener (or labourer) for Rockdale Council for two years and had been self-employed, selling watches, for six or seven years.
19. The applicant told the Tribunal he successfully undertook a short security training course in May 2000 and subsequently was employed by TNT in security duties at Mascot. It was shortly after commencing work with TNT that he was hit by a forklift truck (on 16 August 2000) and suffered the injury to his left side (the subject of the compensation claim relevant to this matter). He said his job at TNT was a very good, respectable position (as head of security) and he earned about $700 per week.
20. It was the applicant’s evidence that his health is now good, he is not on any medication, that he thought his work prospects were very good and he currently is in discussion (and on trial) with a local security company on the Gold Coast (House of Security), in respect of a security job. He said he had undertaken a great deal of research on many suburbs and houses as part of his preparation for working with House of Security. However, the company expected him to provide his own car, but this was not possible because he had no money. He said that a refund of the charge payment would enable him to purchase a vehicle thereby giving him employment and the opportunity to get back on his feet. He said that he had obtained a Queensland security license and thought he could earn about $650 per week in a security job (compared with about $330 per fortnight in the hand from social security). The applicant said he could not purchase a vehicle on time payment as he had a bad credit rating.
21. In respect of other assets, the applicant said that when he worked for TNT life was good and he had a nice car and a nicely furnished home including lounges, dining tables and chairs and a $6,000 refrigerator. It was the applicant’s evidence that when he decided to get out of New South Wales he gave away all of his personal belongings (including furniture and living utensils) to the Salvation Army, the Smith Family and St Vincent de Paul. Furthermore, the applicant said that following the settlement of his compensation claim he only received about $1,800 (early in 2003) and that he had sent $1,500 of this to his family in Lebanon and spent the remaining $300 on clothing for himself.
22. He said that he had been told by his solicitors that he would receive approximately $5,000 and it was on this advice that he agreed to the final settlement figure. The Tribunal notes that the applicant says he has filed a complaint against his solicitors about this matter.
23. The applicant initially told the Tribunal he was living with friends (or on the street). In his later evidence the applicant said he was currently living at the Monte Carlo Resort, Surfers Paradise, paying rent of $260 per week. However, he would be out on the street without his job with House of Security. He said he owed a credit union about $2,000 and a friend $350.
24. In summary, Mr Hamade is contending that his financial position is so poor that he suffers from financial hardship and in order to break free from such a position, he urgently needs money to purchase a motor vehicle, thereby allowing him to gain employment in an area where he is qualified to successfully undertake employment. Mr Hamade has submitted that he does not want to rely on welfare for the rest of his life and wants to better himself.
Family Concerns
25. The applicant said he went home to Lebanon in 1995 and there met and married Amira, a Lebanese woman of 24 years of age. He said they returned to Australia and had two children, one born on 16 June 1996 and one on 5 November 1997. He said his wife could not speak English.
26. It was the applicant’s evidence that he is now separated from his wife who has returned to Lebanon with the two children where she is working and living in Beirut (with retired parents). The applicant said his wife paid for her own air fare back to Lebanon and the parents paid for his children.
27. He said he writes every three months or so to his wife and speaks to her by phone when he can afford it. He said he was hopeful of a reconciliation with his wife and was concerned the children should receive a good education in this country (this not being possible in Lebanon).
28. In his oral evidence the applicant initially said his wife had left him in 2001, subsequently changing this to 2002. The Tribunal notes that the SSAT recorded the applicant as saying that:
“He separated from his wife on 29 January 2001 and they are now divorced. However, he said that under Islamic law, he and his wife are still considered married.” (T2/25)
29. He said that his wife had to go into hospital for an appendectomy in August/September 2000, at which time he looked after the children, with his wife’s consent. In his written statement (T1/11) the applicant said:
“I DAOUD HAMADE happily married for five years experienced my wife amira hamade suffering from post natal depression unfortunately on the day the relationship had problems I was at work and had phone campsie police your nsw police uniforms are getting stolden my wife seeking counselling was referred to campsie police station as she was seeking housing accommodation MRS Amira hamade had being given accommodation at hospital as the relationship was still okay given the children to me to bath it was an unfortunatr tragedy that mrs amira hamade does not know how to speak English an avo was put on me by campsie police as to amira hamade understanding the meaning of that was unclear as she was sick in hospirtal undergoing surgery for personel operation whilst sending the children to me to look after not knowing that an avo means that im not to speak to her as I was bathing and looking after the children and returning the children at her request the police attended the premises of 8 ernest street luguarno and was arrested for breach avo for bathing the children and allegedly answering her request when to return the children your under arrest for breach of avo I daouyd hamade3 crss examined the command you attended my house of 8 ernest street luguarno nsw and said your undera areest for breach avo by phone 3 montha ago why did not you arrest me when allegation was made the officer at Fairfield local court said that the complaint file had come another police station and it took a long time…”
30. The Tribunal notes that it is the applicant’s evidence that the first AVO was issued early in 2001 and that the applicant’s wife was in hospital in August/September 2000. The Tribunal further notes that Mrs Hamade gave birth to her youngest child in November 1997, some three years prior to the applicant claiming his wife suffered from post-natal depression. In cross-examination, the applicant was asked if he had received any defacto divorce papers from the Family Court in respect of his wife. He initially said he had received no papers and had no idea what might be before the Family Court. When pressed he said he had received papers from the Family Court but still maintained he had no idea what the papers were about.
31. The Tribunal notes that there is no evidence before the Tribunal from Mrs Hamade in respect of her circumstances and wishes.
32. In summary, Mr Hamade is saying that the “false allegations” against him have played a part in the breakdown of his marriage, and he is hopeful of a reconciliation with his wife and children, and he is concerned and wants to see that his children are removed from poverty and given a good education in this country, and that he cannot achieve these objectives because of his current parlous financial situation. As such, Mr Hamade contends that these circumstances are special and that pursuant to section 1184K the compensation charge (or part of it) should be returned to him.
Respondent’s Submission
33. The respondent referred the Tribunal to Re Beadle and Director-General of Social Security (1984) 6 ALD 1, Groth v Secretary, Department of Social Security [1995] 541 FCA and Re Chamberlain and Secretary, Department of Family and Community Services [2002] AATA 487, in its consideration of whether there are special circumstances such that the Tribunal could treat the whole of part of the compensation charge to the applicant as not having been made.
34. It was the respondent’s submission that in this case the applicant’s financial circumstances, while straitened, were not unusual, uncommon or exceptional and that the applicant’s health, qualifications for work and prospects of work within the context of these qualifications were all good. Furthermore, it was submitted that the applicant, by his own choice, had divested himself of personal belongings and assets, that in the event of not being employed, the applicant was entitled to social security benefits and that the circumstances of the case did not require the applicant to make any further repayments to the respondent.
35. In respect of family matters, it was submitted that there was no evidence before the Tribunal to corroborate the applicant’s assertion that Mrs Hamade and the children wished to return to live with Mr Hamade and, on the applicant’s own evidence, it could be inferred that Mrs Hamade was in the process of taking action in the Family Court for a divorce.
36. In summary, it was submitted that there was nothing in this case to take it out of the ordinary or to make it unusual such that special circumstances could be found.
Consideration
37. With respect to special circumstances, the Tribunal notes that although special circumstances are not defined in the Act, the approach to be taken in interpretation and application of the discretionary provisions of the Act have been dealt with by the Tribunal and the Federal Court in numerous cases. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 it was said:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
38. This decision was generally affirmed on appeal by the Full Court of the Federal Court of Australia in Beadle v Director-General of Social Security (1985) 7 ALD 670, where it was said:
“the phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”
39. Furthermore, the Tribunal is mindful that all of the circumstances in a particular case must be considered and the Tribunal should adopt a flexible response to such circumstances bearing in mind the need to consider community interest in the recover of public monies.
40. In Groth v Secretary, Department of Social Security (supra) at 545, her Honour Justice Kiefel, in addressing the phrase “special circumstances”, referred to Beadle’s case and went on to relevantly observe:
“that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”
41. In Groth’s case the issue was whether compensation payments received by Mr Groth should be treated as direct deductions in calculating the amount of disability support pension payable to Mr Groth. The essential point in the appeal was whether there were special circumstances such that the whole or part of his compensation payment should be disregarded in assessing his pension entitlement. Clearly, the approach taken in Groth’s case is to be followed in this case.
42. In Re Chamberlain and Secretary, Department of Family and Community Services (supra) the Tribunal was referred to paragraph 27, where the Tribunal concluded:
“The fact that the applicant is in receipt of social security assistance and will not be required to make any further payments to the respondent is relevant to the decision before the Tribunal. If the preclusion period were still in effect and the applicant was not receiving any income, the situation might be different. But that is not the case. Instead, the applicant’s case has resolved into a claim for a refund of money that she says she was required to pay to the respondent as a result of an anomaly in the law. As I have already explained, the legislative framework prevents the Tribunal from inquiring into the anomaly. In those circumstances, the Tribunal affirms the decision under review.”
43. Chamberlain’s case centred on whether the applicant had received unfavourable treatment as a result of the application of the statutory 50% formula in section 1165 of the Act, in determining the proportion of a compensation settlement to be taken as compensation for economic loss. In Mr Hamade’s case there is no suggestion of his claiming a refund of money that he was required to pay to the respondent as a result of an anomaly in the law. Mr Hamade’s claim is based solely on their being special circumstances which would justify a finding that the whole or part of his compensation payment should be treated as not having been made such that he receives a refund of all or part of the compensation charge amount.
44. Having said that, there is a parallel between the present case and Chamberlain’s case in that it is a relevant factor in the Tribunal’s consideration of this matter that Mr Hamade, at the time of the hearing, was in paid employment (and if not subsequently employed would be in receipt of social security assistance) and is not required to make any further payments to the respondent.
45. The applicant claims to be suffering from financial hardship in that he has no assets, has debts of $2,350, has a bad credit rating and requires money to purchase a motor vehicle to ensure that he can maintain employment in the home security business.
46. These circumstances need to be considered in the context of the applicant’s employment prospects. On his own evidence he is in good health, has qualifications and work experience in the security business, he is 32 years of age and believes his work prospects are very good. Also relevant, as indicated above, is the fact that the applicant, if unemployed, would be in receipt of social security benefits and, furthermore, he is not required to make any further payments to the respondent.
47. Taking all of these matters into consideration, the Tribunal is satisfied that Mr Hamade’s financial circumstances, while straitened, are not so unusual, uncommon or exceptional as to distinguish his case from others.
48. The applicant has also submitted that his family circumstances are special, such that he needs money to re-unite his family. Mrs Hamade has separated from the applicant and has taken her two children with her to live with her parents in Beirut. The parents are retired and live on a pension and Mrs Hamade is in employment. The applicant claims that because of poverty the children now aged 5 and 7 are not at school in Beirut and he wants to give them a good education in Australia. In considering these circumstances, the Tribunal is mindful that Mrs Hamade has taken herself and her children to Lebanon without financial assistance from Mr Hamade and that Mrs Hamade and her children would seem to have secure living arrangements in Beirut.
49. The Tribunal is also mindful that there is no evidence before the Tribunal from Mrs Hamade that she wishes to rejoin her husband, rather it can be inferred from Mr Hamade’s less than frank answers about Family Court proceedings, that Mrs Hamade has made an application to the Family Court in respect of divorce proceedings. In any event, should Mr Hamade be successful in maintaining paid employment, there will be an opportunity for the family to re-unite in Australia should Mrs Hamade so wish.
50. Taking all of the family matters into consideration, the Tribunal is satisfied that they do not fall within the category of special circumstances.
51. Mr Hamade in his evidence to the Tribunal clearly laid the major cause of his current difficulties at the doorstep of the NSW Police who, he claims, have targeted him through three “corrupt allegations” in an attempt to delay or set aside his various reports of theft and security breaches.
52. The evidence before the Tribunal in respect of Mr Hamade’s “corrupt allegations” does not support his case. Firstly, with respect to the AVO concerning his wife, the applicant’s evidence is that this AVO was issued in early 2001 at which time he said his wife would not have understood (or known) what it meant as she had asked him to mind the children while she was in hospital. However, in other evidence given by the applicant, he said his wife was in hospital in August/ September 2000, well before any AVO was issued. Furthermore, despite Mr Hamade’s assertion that the AVO was a “corrupt allegation”, he was arrested for breaching the AVO and the offence was proved, but dismissed with no conviction being recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
53. In respect of the second AVO, Mr Hamade was not prepared to inform the Tribunal of the circumstances of the person involved in the attempted murder and there is no evidence before the Tribunal other than that of Mr Hamade about this AVO. Similarly, there is no evidence apart from that of Mr Hamade about his being a “spastic”.
54. The Tribunal makes the above comments in the understanding that the resolution of the “corrupt allegation” issues raised by Mr Hamade is not a matter for this Tribunal. Rather, the question before the Tribunal is whether his allegations have sufficient substance to form the basis of a finding of special circumstances.
55. It would seem that Mr Hamade is of the view that because of his reporting of security breaches he should be rewarded by a favourable consideration of his application to this Tribunal. Furthermore, Mr Hamade contends that it is because of his reporting of security breaches that he has been subjected to Police action which has caused his family, financial and employment difficulties. The Tribunal has already found that Mr Hamade’s family, financial and employment difficulties, whatever the cause, are not such that the Tribunal can find that there are special circumstances in this case.
56. The Tribunal is therefore satisfied that the “corrupt allegations” referred to by the applicant are not issues which the Tribunal can resolve and, in any event, are not matters which would lead to special circumstances such that the compensation charge, in whole or in part, should be refunded to Mr Hamade.
57. The Tribunal, for the reasons given above and in the absence of any other circumstances that might be considered to be special circumstances, affirms the decision under review.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 11 June 2003 (at Coolangatta)
Date of Decision 4 July 2003The Applicant appeared in person
For the Respondent Ms H Wallis-Dunn, Departmental Advocate
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