HEWAWASAM REVULGE and SECRETARY, DEPARTMENT OF SOCIAL SERVICES (Social services second review)
[2019] AATA 2943
•23 August 2019
HEWAWASAM REVULGE and SECRETARY, DEPARTMENT OF SOCIAL SERVICES (Social services second review) [2019] AATA 2943 (23 August 2019)
Division:GENERAL DIVISION
File Numbers: 2018/7018 and 2018/7025
Re: KAMAL HEWAWASAM REVULGE
APPLICANT
AndSECRETARY, DEPARTMENT OF SOCIAL SERVICES
RESPONDENT
DECISION
Tribunal:Amy Wood, Member
Date:23 August 2019
Place:Melbourne
The Tribunal affirms the decision under review.
................[sgd]........................................................
Amy Wood, Member
Catchwords
SOCIAL SECURITY – newstart allowance – special benefit – self-employment in owner operated business – actual or deemed unemployment during the qualification period – decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
REASONS FOR DECISION
Amy Wood, Member
23 August 2019
Background:
On 8 September 2015, Centrelink made a decision to reject Dr Revulge’s (herein referred to as “the applicant”) claim made on 4 September 2015 for Newstart Allowance. On 22 September 2015, Centrelink also rejected the applicant’s claim made on 15 September 2015 for a Special Benefit (herein referred to as “the decisions”).
The applicant requested an internal review of the decisions and on 1 October 2015, the review was undertaken by an Authorised Review Officer (ARO) of Centrelink. The ARO affirmed the decisions on 21 October 2019.
The applicant lodged an Application for Review of the decisions made by the ARO on 17 May 2018 with the Administrative Appeals Tribunal (Social Services and Child Support Division) (herein referred to as “AAT1”). On 30 October 2018, the AAT1 also affirmed the decisions made by Centrelink.
On 29 November 2018, the applicant lodged an Application seeking a review of the decisions made by the AAT1 in relation to his claim for Newstart Allowance and Special Benefit payment. It is noted that the applicant sought a review of a decision made by Centrelink to reject his claim for Austudy, however, this decision (which was affirmed by AAT1 on 30 October 2018), does not form part of this proceeding.
The Application for Review was listed for hearing by telephone before the Tribunal on 20 May 2019. Unfortunately, both telephone connections were entirely unacceptable because neither the Tribunal, nor the lawyer representing the respondent, could hear the applicant. There was also a significant delay in the transmission. Additionally, the applicant informed the Tribunal that he had not received the respondent’s very detailed Statement of Issues, Facts and Contentions. In these circumstances, as a matter of fairness to the applicant, the Tribunal was not prepared to proceed with the hearing. The matter was adjourned and refixed for hearing in Melbourne on 14 June 2019.
Hearing:
On 14 June 2019, the applicant appeared in person and informed the Tribunal that he had received the respondent’s Statement of Issues, Facts and Contentions pursuant to a direction made on 20 May 2019. He indicated that he was ready to proceed with the hearing. The respondent was represented by a Senior Government Lawyer from the Department of Human Services.
The applicant gave sworn evidence and was cross-examined. The Section 37 documents numbered T1-T44 (“T-documents”) were tendered and marked Exhibit (A).
At the conclusion of evidence, the Tribunal invited the applicant to make submissions. The applicant requested the opportunity to prepare written submissions because he did not have a copy of the legislation with him and wanted to refer to case law. He submitted that the “respondent’s submissions are false and misleading” and that the discretion exercised by Centrelink was “unfair and irregular” because they “wrongly applied s 593”. The respondent did not consent nor oppose the indulgence sought. The Tribunal allowed the request.
On 4 July 2019, the applicant filed a 12-page document headed “Applicant’s written legal submissions.” The respondent was afforded an optional right to reply to these submissions.[1] No reply submission was received by the Tribunal.
[1] By 19 July 2019.
Issues in dispute:
The applicant and respondent both agreed that the matters for determination by this Tribunal are whether the applicant qualified for:
a.the Newstart Allowance on 4 September 2015; and
b.the Special Benefit on 15 September 2015.
The applicant submits that there is a further issue arising out of this matter, namely “whether Jason Dowling of Centrelink can unilaterally insert a letter into the Centrelink system without informing the Applicant.”[2]
[2] See page 2 of the Applicant’s written legal submissions dated 4 July 2019.
Did the applicant qualify for Newstart within the qualification period:
The respondent submitted that the qualification period is calculated pursuant to Schedule 2, Clause 4 of the Social Security (Administration) Act 1999 (the Administration Act), namely the period of 13 weeks after the day on which a claim is made. The respondent asserted that the relevant period for consideration of the application’s qualification for Newstart is from 4 September 2015 to 04 December 2015. The applicant did not challenge this.
Section 593 of the Social Security Act 1991 (the Act), sets out the criteria that must be satisfied before an applicant is said to qualify for a Newstart Allowance.
The respondent submits that—at the relevant time—the applicant was self-employed and that the Tribunal should not be satisfied that he was unemployed throughout the qualification period (s 593 (1)(a)(i) of the Act). The term “unemployed” is not defined by the Act. The question whether a person is unemployed is a question of fact and degree.[3]
[3] See Elbehidi v Secretary, Department of Employment [2015] FCA 1229 accepting the statement made in McAuliffe v Secretary, Department of Social Security [1991] FCA 268; (1991) 23 ALD 284. See also the Applicant’s written legal submission at page 5, paragraph 3.3 (c).
Was the applicant “unemployed” for the purpose of the section and the Act:
At the 14 June 2019 hearing, the applicant gave the following evidence that:
a.at the time he submitted his claim for Newstart, he was no longer involved in a business;
b.he ceased being a director of the company prior to commencing his research study (in January 2015); and
c.he ceased being a partner in the firm prior to lodging his claim for Newstart.
In his written submissions of 4 July 2019, the applicant also expressly stated that he was not involved in any form of business at the time of lodging his claim for Newstart or Special Benefit.[4]
[4] See “Conclusion” on page 11 of the Applicant’s Written Legal Submissions dated 04 July 2019.
The Tribunal notes that the applicant’s recent evidence is contradicted by the following contemporaneous evidence:
a.Newstart Online Application form completed 4 September 2015 (T3):
i.Circumstances prior to claim: Other – I was studying full-time. Last year I tried to start a business, however, it is running under a heavy loss. In the meantime Child Support Agency (CSA) wrongly assessed my income and they took out all money belong to the business...
ii.Compensation, property, business and trusts: My partner and I are involved in 1 business inside Australia.
b.Mod F form completed and signed on 08 September 2015 (T6):
i.Question 9 – Do you have an interest in any business run through a private company? Yes.
ii.Question 43 – Is your business still operating? Yes.
iii.Question 50 – Do you intend to resume work in the business? Yes.
iv.Question 51 – Is anyone else helping you with running the business? Yes – Other Director – 40 hours per week.
v.Question 53 – Are you looking for full-time work? [No] Explain why you are not looking for full-time work? I am expecting to bring existing business to a profitable business. Therefore, I need to spend some time for the development of the business.
His evidence is also contradicted by the nature of the following documents:
a.Lodgement of Business Activities Statements for TAI Lawyers (T17, page 125).
b.Numerous banking deposits labelled as “TAI Lawyers Salary” from about July 2014 to May 2015 (T17, pages 127-128).
c.Repeat registration with the Australian Government Office of the Migration Agents Registration Authority dated 16 June 2015 (T17, page 119)
d.Renewal of LexisNexis contract for 12 months signed 26 May 2015 (Exhibit A – T17, page 117)
e.Renewal of Practicing Certificate for 2015-2016 (T17, page 118)
f.the use of the expression “the business is running at a severe loss” (emphasis added) together with the admission that he is involved in a business and is self-employed as at 15 September 2015 (T9 and reproduced above)
g.The applicant only attended one appointment with the job seeking agency, MatchWorks on 08 September 2015 (four days after he lodged his application for Newstart) and according to the job seeking agency, he exited on the same day.[5]
[5] T32, page 207.
Following further cross-examination, the applicant ultimately stated: “I may have been working as an agent and as a lawyer in September 2015” and explained to the Tribunal that the businesses are “not separate” and that they are “all linked”.
The Tribunal found the applicant’s evidence deliberately vague, boldly self-serving and frankly unreliable.
In all the circumstances, the Tribunal does not accept the evidence of the applicant in relation to his employment status during the qualification period. Whilst the applicant submits that he attended MatchWorks on three occasions,[6] there is no evidence which suggests he was job seeking due to being unemployed.
[6] T32, page 203 – on 02 September 2015 to obtain details, 04 September 2015 to make an appointment and on 08 September 2015 to be interviewed.
The Tribunal accepts the respondent’s assertion that the applicant was engaged in self-employment activities at this time. This submission is supported by the contemporaneous evidence outlined above and the admissions made by the applicant in various documents and whilst under cross-examination.
However, this is not the end of the inquiry. Both parties submitted that being self-employed does not prevent the determination that an applicant is “unemployed” for the purpose of s 593 of the Act.
Should the applicant be classified as unemployed despite being self-employed under s 595(1) of the Act?
Whether a person should be classified as unemployed is a question of fact which requires as assessment of the level of intensity with which an applicant is involved in a business or enterprise. The Tribunal has reviewed all of the evidence and considered all of the submissions as per the requirements of s 595(1)(b) of the Act.
The Tribunal reiterates its observations in relation to the reliability of the evidence given by the Applicant before it. The Tribunal confirms that it found the applicant’s evidence wholly unconvincing. His evidence was contradicted by the contemporaneous evidence given by him (back in 2015) which indicated that at the relevant time he was committed to his business and bringing it to profitability. On this evidence, the applicant was undertaking a substantial amount of work that was not transitory, or done with a view to assist in finding other permanent work.
The Tribunal concurs with the submission made by the respondent, in summary, that the discretion within s 595 of the Act to treat an employed person as “unemployed” should not be exercised in this case.
In all the circumstances, the Tribunal is not satisfied that the applicant’s self-employment should be disregarded. The Tribunal is not satisfied that the applicant was “unemployed” as at 4 September 2015, and 13 weeks thereafter, and does not accept the applicant’s claim that he qualified for the Newstart Allowance at this time.
Having made the findings outlined above, the Tribunal has not undertaken the task of considering whether the Newstart Allowance was payable or whether the applicant satisfied the activity test or was required to do so.
Did the applicant qualify for Special Benefit as at 15 September 2015.
Section 729 of the Act governs the payment of a Special Benefit. The payment is a discretionary benefit and is only available to a person who is not able to get any other income support payment.[7]
[7] See s 729 of the Act.
In relation to the applicant’s claim, the respondent submitted that the applicant does not satisfy the criteria set out in s 729 (2) therefore, the discretion pursuant to sub-section (1) should not be exercised. The respondent specifically asserted that the applicant does not satisfy sub-section (2)(e).[8] The respondent submitted that at the relevant time, the applicant was engaged in self-employment and reinvesting any profit back into his business.
[8] (e) the Secretary is satisfied that a the person is unable to earn a sufficient livelihood for the person and the person’s dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason...
Despite being afforded the opportunity to file written submissions, the applicant did not proffer any argument to the Tribunal outlining how he says his personal circumstances—as at 15 September 2015—satisfied s 729 of the Act, and why the discretion of the Tribunal should be exercised in his favour.
In these circumstances, the Tribunal has referred to and relied on the matters outlined by the applicant in his original application to Centrelink (T9). In this form he stated that his reasons for claiming the Special Benefit were:
a.I finished my studies at RMIT on 14/8/2015.
b.While studying I tried to establish a business and the business is running at a severe loss.
c.In the meantime CSA [Child Support Agency] deducted a considerable amount of money from our business account.
d.Lindsey Wotton of CSA in collaboration of my ex-wife manipulated the system and created an artificial situation which was beyond my control.
e.Unless special benefit is not granted for a short period there will be irreconcilable damage to my business as well as to my family.
f.Immediate Centrelink intervention is needed.
The applicant stated further:
a.I was on Austudy until last month.
b.2 lady officers deliberately stopped it before I finished studying.
c.I applied for Newstart it was rejected.
d.I have no other way to live. So no other option other than apply for special benefit.
In this document, the applicant also confirmed that—as at 15 September 2015—he was self-employed (or a sub-contractor),[9] and that he was involved in a business.[10]
[9] See T9, page 62.
[10] See T9, page 64.
The Tribunal has considered all of the evidence and submissions made in relation to the applicant’s claim for Special Benefit. The Tribunal is satisfied that the evidence establishes that—as at 15 September 2015—the applicant was preparing for study by commencing research (Doctor of Philosophy) and/or performing self-employed work in his business. Furthermore, the evidence demonstrates that the applicant was voluntarily engaged in these activities. Any alleged financial hardship experienced by the applicant at the relevant time, occurred as a result of his informed choice to undertake further study and/or remain committed to building his legal practice/migration agent business. The Tribunal is of the opinion that but for these choices, the applicant would have been in a position to earn a sufficient livelihood because his capacity to work was not restricted or limited in any way due to his age, physical condition, mental state, or for any other reason as contemplated in s 729(2)(e) of the Act.
The Tribunal notes that the Special Benefit payment does not exist to provide a financial means to people while they pursue a business. In this case, the applicant failed to exercise his capacity to earn an income and instead chose to continue to build on his business and/or education.
The Tribunal is not satisfied that the applicant’s personal circumstances as at 15 September 2015 qualified him for the Special Benefit payment pursuant to s 729 of the Act.
Decision:
Taking into account all of the evidence, the relevant legal principles and all the submissions put by both parties, the Tribunal is not satisfied that the applicant qualified for either the Newstart Allowance or Special Benefit payment.
The decisions made by the AAT1 dated 30 October 2018 are affirmed.
Further matters:
The applicant made a number of submissions in relation to the conduct of Centrelink and its representatives. In summary, he alleges that the Centrelink officer(s) breached their duty and the Australian Public Service code, in short, by failing to behave with honesty and integrity. He alleges that there was an unacceptable delay, insufficient communication and a violation of the principles of procedural fairness and natural justice. He further alleges that Centrelink officers made decisions with “hidden agendas” and “used their discretion wrongly to victimize” him. He requested that action be taken against the Centrelink officer Jason Dowling for breach of his duty.
These allegations made by the applicant are not matters that the Tribunal has jurisdiction to consider in this proceeding. The Tribunal was required to conduct a fresh hearing in relation to the applicant’s eligibility for a Newstart Allowance between September 2015 and December 2015 and his eligibility for a Special Benefit payment in September 2015. The Tribunal has reviewed all of the evidence in relation to each claim and has heard and read detailed submissions from both parties. Ultimately the Tribunal is not persuaded that the applicant’s circumstances entitled him to either benefit.
The Tribunal notes that it is unclear why the decisions made by Centrelink on:
a.8 September 2015 in relation to the applicant’s claim for Newstart (T14, page 82); and
b.22 September 2015 in relation to his claim for Special Benefit (T11, page 72); and
c.21 October 2015 in relation to the decision of the ARO (T16, pages 86-90)
did not come to the attention of the applicant given that they were all addressed to the address he provided in his online claim for Newstart Allowance (T3). Understandably, the applicant did not submit that this unexplained anomaly impacted on the correctness or otherwise of the decisions made.
The Tribunal notes that the applicant claims that Jason Dowling unilaterally inserted a letter into the Centrelink system without informing him.[11] The applicant did not identify which letter Mr Dowling allegedly inserted into the Centrelink system. Likewise, if this did happen, the applicant did not make any submission as to how this has adversely impacted on the decisions made by Centrelink in relation to his claims in 2015.
[11] See page two of the applicant’s Statement of Facts, Issues and Contentions dated 31 March 2019 and page two of the Applicant’s written legal submissions dated 04 July 2019.
It appears that the applicant is unhappy with the treatment he has received by persons representing Centrelink and the conduct of certain people within the government organisation. Unfortunately, these complaints are not matters into which the Tribunal can inquire in this proceeding or impose any disciplinary action or directions.
The Tribunal confirms that it is not satisfied that the applicant qualified for either the Newstart Allowance or Special Benefit payment.
| 1. I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Miss Amy Wood, Member |
.......................[sgd]................................................
Associate
Dated: 23 August 2019
| Dates of hearing: | 20 May 2019 & 14 June 2019 |
| Written submissions filed: | 04 July 2019 by the applicant |
| Applicant: | In person |
| Advocate for the Respondent: | Ms Ailsa Bramley, Department of Human Services |
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