Hanza; Secretary, Department of Employment and Workplace Relations

[2006] AATA 461

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 461

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/252

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And CAMELIA HANZA

Respondent

DECISION

Tribunal Senior Member M D Allen

Date26 May 2006

PlaceSydney

Decision The decision under review is set aside and this matter remitted to the Applicant with the direction that the Respondent has been overpaid Parenting Payment Single in the sum of $22,241.71.

(Sgd) M.D. ALLEN

..................................................
  Senior Member

CATCHWORDS

SOCIAL SECURITY – overpayment of parenting payment single – SSAT found the Respondent and her husband should not be regarded as a couple – Respondent conceded during the hearing that she was a member of a couple during the relevant period – whether there is a “special reason” for the Respondent not to be treated as a member of a couple – decision under review affirmed.

Social Security Act 1991 s 24, 1237AAD

Secretary Department of Social Security v Ellis (1997) 43 ALD 1

Groth v Secretary Department of Social Security (1995) 40 ALD 541

REASONS FOR DECISION

26 May 2006

Senior Member M D Allen

1.       By application lodged the 25^th day of February 2005, the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”) that on 19 January 2005 set aside a decision that the Respondent had been overpaid the sum of $22.241.71, being the payment of Parenting Payment Single during the period 14 September 2002 to 27 July 2004.

2.      At the outset of these proceedings, the Respondent conceded that she and Robert Daniel Cioara were members of a couple for the whole of the period 14 September 2002 to 27 July 2004. Indeed the evidence before me is that they are still members of a couple, albeit that the Respondent is currently in the remand division of Mulawa Women’s Prison awaiting trial on charges of supplying prohibited drugs.

3. In its decision, the SSAT determined that the Respondent and her husband should not be regarded as a couple for social security purposes as the husband was prevented from working by the terms of his visa until 22 May 2003. The Tribunal purported to apply subsection 24(1) of the Social Security Act 1991  (“the Act”) which reads inter alia:

“Where:

(a)a person is legally married to another person; and

(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”

4.      Paragraph 24(1)(c) requires that a “special reason” should exist before a social security recipient who is a member of a couple not be treated as such for social security purposes. The term “special reason” is analagous to the term “special circumstances”, which term has been the subject of commentary in several Federal Court judgments and numerous decisions of this Tribunal. 

5.      In Secretary Department of Social Security v Ellis (1997) 46 ALD 1 at 5, Carr J adopted with approval the statement by Kiefel J in Groth v Secretary Department of Social Security (1995) 40 ALD 541 at 545 namely, that although the appellant’s circumstances were difficult, they were no different from other pension recipients and thus did not constitute hardship. Her Honour had previously stated that to be “special”, the appellant’s circumstances must be outside the usual or ordinary case.

6.      A close reading of Ellis (supra) and Groth (supra) clearly reveals that penury by itself is not a special circumstance in the case of a social security recipient and that to consider the fact that the other member of the couple was not in receipt of income as a “special reason” for the purposes of subsection 24(1) Social Security Act is misconceived.

7.      In this matter it is clear that the Respondent and her husband had other resources available to them in addition to the Respondent’s parenting payment. The full extent of these resources is unknown and although both the Respondent and her husband gave evidence, they did not impress me as witnesses of the truth.

8.      The Respondent originally applied for Sole Parent Pension on 23 July 1996.  On 24 July 1996 she signed a statement that included the words “I will advise the Department within 14 days of any change in my circumstances”. On 25 July 1996 when she was advised of the grant of Sole Parent Pension, the letter notifying her pointed out that she had to notify Centrelink of any change in her circumstances including if she married or started living with someone of the opposite sex, within 14 days.

9.      On 25 July 2002 and 9 September 2002 letters from Centrelink again required the Respondent to notify Centrelink of any change in her circumstances within 14 days of the change.

10.     On 10 January 2003 the Respondent claimed a family tax benefit subsequent upon the birth of a child, Daniel Cioara on 26 December 2002. The copy of the birth certificate gives the name of the child’s father as Robert Daniel Cioara.

11.     In her application for family tax benefit lodged 10 January 2003, the Applicant stated that her current marital status was “divorced”.

12.     The birth certificate for Daniel Cioara states that the Respondent was married to Robert Daniel Cioara on 14 September 2002 at Rooty Hill in New South Wales. The address of both parents is given as 65 Willis Street, Rooty Hill.

13.     A file note at Centrelink dated 13 February 2003 states that the Respondent said that the father of the child had been deported due to not being a resident of Australia.

14.     In fact, the father had never been deported and was legally in Australia pursuant to a bridging visa. On 22 May 2003 Robert Daniel Cioara was granted a temporary spouse visa.

15.     On 30 June 2004 the Respondent attended an interview with a Centrelink officer after information had been received regarding her marital status. She stated at that interview that the marriage only lasted five weeks and that she did not know where Robert Daniel Cioara lived or worked.

16. As the Respondent has conceded that at all times she has been a member of a couple with Robert Daniel Cioara, there is no need to canvass the evidence on this aspect further, except to say that there is clear evidence from the various documents referred to above and from other file notes of Centrelink as contained in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, that both the Applicant and her husband had set out to deliberately misrepresent to Centrelink the fact they were married and living together.

17.     Mr Cioara was originally granted a subclass 456 (Business Short Stay) visa on 27 March 2002. Immigration records show that he arrived in Australia on 1 April 2002 and has not departed since. In an application for an extension of that visa the Respondent provided to the Department of Immigration on 25 June 2002 a copy of her bank passbook with the Commonwealth Bank of Australia which showed a balance of $35,606.05 in her account.

18.     During the course of these proceedings, questions were asked regarding the disposal of this amount. The Respondent’s evidence was that she had withdrawn the balance of that account namely $30,000.00, and had kept the money at her home. Indeed the question was put to her “you pulled $30,000.00 out of the bank and kept it under your pillow at home? Answer: Yes”. She was then asked about various deposits to an account with the National Australia Bank in the joint names of Camelia Laura Cioara and Robert Daniel Cioara.

19.     I found the evidence regarding this account contradictory. The Respondent stated that various deposits, including up to three deposits on the one day, e.g. on 13 August 2003 and 6 October 2003, were from the $30,000.00 taken from her Commonwealth Bank of Australia account and kept at her home. It was of course, unclear why she needed to make deposits of different amounts on the same day into that account. Mr Ciaora in his evidence stated that the money came from cash given as presents to him and the children by his relatives and friends.

20.     The husband also stated that some money represented goods sold from stores he owned overseas. If friends of his were going overseas he offered to them the opportunity to choose goods from retail outlets owned by him and then to pay him when they returned to Australia. No detailed accounts were presented regarding these activities.

21.     Also of interest is a bank account in the joint names of the Respondent and her husband with the Washington Mutual Bank in the United States of America. To date the Respondent has not signed an authority forwarded to her on 17 November 2005 to enable account details to be made available to the Applicant. In evidence both the Respondent and her husband stated that there were no funds in that account but I would not accept that evidence without corroboration.

22.     Other bank accounts held by the Respondent are with the St George Bank and the Commonwealth Bank. The source of funds in these accounts is uncertain, although the Respondent stated that some monies were provided by the father of her other children.

23. All in all, I am not satisfied that the Respondent is in such circumstances as to in any way justify the application of s 24 Social Security Act to her. Similarly, as to whether during the period in question she was entitled to any other social security payment is impossible to gauge in that the full extent of her assets and income and sources of that income during the period in question are unclear.

24. Section 1237AAD Social Security Act, which permits waiver of a debt, can have no application in this matter as I am satisfied that the debt arose due to wilfully false statements made by the Respondent. 

25.     The decision under review is therefore set aside and this matter remitted to the Applicant with the direction that the Respondent has been overpaid Parenting Payment Single in the sum of $22,241.71. Any decision regarding a set off as regards an entitlement to any other social security benefit is a matter for the Applicant, having regard to such financial disclosure as the Respondent and her husband give to him.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         (E.Pope)           .....................................................................................
  Associate

Dates of Hearing  15 May 2006
Date of Decision  26 May 2006

Advocate for the Applicant  Ms H Schuster, Centrelink Legal Services
  Branch

Representative for the Respondent          Self Represented