Hewawasam Revulge and Secretary, Department of Social Services (Social services second review)

Hewawasam Revulge and Secretary, Department of Social Services (Social services second review) [2018] AATA 303 (9 February 2018)
Division:GENERAL DIVISION
File Number(s): 2016/6168
Re:Kamal Kithsiri Karunadasa Hewawasam Revulge
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Date:9 February 2018
Place:Melbourne

The Tribunal affirms the decision under review.
......[sgd]..................................................................
Egon Fice, Senior Member
SOCIAL SECURITY – qualification and payability of social security benefit – entitlement to Special Benefit, Austudy, and Student Start-up Scholarship payments – failure to disclose income – debts due to the Commonwealth – no grounds for waiver of debt – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security Act 1947
Social Security Act (Administration) 1999
Cases
Read v Commonwealth of Australia (1988) 78 ALR 655
McDonald v Director-General of Social Security (1984) 1 FCR 354
Secondary Materials
Australian Social Security Guide
REASONS FOR DECISION
Egon Fice, Senior Member
9 February 2018

In June 2015 Mr Hewawasam Revulge received a letter from the Department of Human Services (Centrelink) requiring him to provide certain information and/or documents. Centrelink was concerned that Mr Revulge had failed to disclose income received when in receipt of social security benefits.
Following an investigation of Mr Revulge’s financial affairs, Centrelink determined that he had failed to notify Centrelink of income when in receipt of social security benefits. In particular, in decisions made on 4 March 2016 and 7 March 2016, Centrelink found Mr Revulge was liable to repay the following debts arising out of receipt of the Special Benefit:
(a)$659.17 for the period 2 February 2009 to 24 February 2009; and
(b)$2332.63 for the period 8 March 2009 to 2 September 2009.
Centrelink also made the following debt repayment determinations on 7 March 2016:
(a)Austudy debt of $21,513.97 for the period 17 March 2011 to 1 September 2014;
(b)Student Start-up Scholarship debt of $1025 for 12 March 2014; and
(c)Student Start-up Scholarship debt of $1025 for 30 July 2014.
Dissatisfied with Centrelink’s decision, Mr Revulge sought an independent review by an Authorised Review Officer (ARO). On 20 June 2016 the ARO affirmed the decision made by Centrelink and set out, in some detail, the reasons for coming to that conclusion.
Mr Revulge did not accept the ARO decision and sought a review of the decision by the Administrative Appeals Tribunal – Social Services & Child Support Division (AAT 1).

AAT 1 handed down its decision on 14 October 2016 affirming all of the debt repayment decisions under review. Dissatisfied with that decision, Mr Revulge lodged an application with this Tribunal (AAT 2) on 15 November 2016.
The issues I am required to determine in this case are:
(a)whether Mr Revulge was paid the Special Benefit, Austudy and Student Start-up Scholarship in excess of his entitlement due to his failure to disclose derived income to Centrelink;
(b)if the answer to (a) is in the affirmative, whether the excess payments made to Mr Revulge are debts due to the Commonwealth; and
(c)if the answer to (b) is in the affirmative, whether the debts or part of the debts should be recovered.
QUALIFICATION FOR SOCIAL SECURITY PAYMENT AND ENTITLEMENT TO RECEIVE PAYMENT
Qualification for a social security payment does not, by itself, result in that benefit being payable to a claimant. The Social Security Act 1991 (the Social Security Act) makes provision for taking into account the payability of a social security payment. This is ordinarily done by the inclusion of Rate Calculators which are divided into Modules (see
s. 39 of the Social Security Act). There may also be other restrictions on the payability of a social security benefit and, generally, a de-escalating rate of payment dependent upon the applicant’s financial circumstances.
General provisions relating to payability and rates of payment of social security are set out in Chapter 3 of the Social Security Act. Part 3.1 deals with rate calculators. Section 1062 sets out the steps in rate calculation. It provides:
(1) The following are the usual steps in the rate calculation process:
(a)start with a maximum basic rate;
(b)add any additional amounts that are subject to income or assets testing;
(c)apply the income and assets tests;
(d)add any additional amounts that are not subject to income or assets testing.
(2) The overall rate calculation process is usually described in an early Module of the relevant Rate Calculator.
Special Benefit
As is explained in the Australian Social Security Guide, the Special Benefit is described as a payment of last resort. It is a discretionary benefit that may be paid to a person who is in financial hardship; is unable to earn a sufficient livelihood; and is not eligible for any other income support payment. Part 2.15 of the Social Security Act deals with the Special Benefit. Section 729 relevantly provides:
(1)A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
Note: Special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).
(2)The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a)no social security pension is payable to the person during the period; and
(b)no other social security benefit is payable to the person for the period; and
…
(e)The Secretary is satisfied that 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; and
…
Even if an applicant is qualified to receive the Special Benefit, it may not be payable if the benefit rate is nil. Section 732 (1) provides:
(1)Subject to subsection (2), special benefit is not payable to a person if the person’s special benefit rate would be nil.
Section 733 establishes an assets test. Relevantly, it provides:
(1) A special benefit is not payable to a person if:
(a)the person is not excluded from the special benefit assets test; and
(b)the value of the person’s assets exceeds the person’s assets value limit.
A person’s assets value limit is worked out using the table set out under subsection (3). It should be immediately apparent that an applicant, even if qualified to receive the Special Benefit, may nevertheless find themselves in a position where they are not entitled to receive any payment because the benefit rate payable is nil.
Austudy
A person is qualified for Austudy payment if, throughout a particular period, they satisfy the qualification requirements set out in Division 1 of Part 2.11A of the Social Security Act. Division 2 sets out the situations in which an Austudy payment is not payable and, like all social security payments, if it is not payable to a person, the person’s Austudy payment rate would be nil (s. 572 (1)). Subdivision B deals with the assets test and provides that an Austudy payment is not payable to a person if the value of the person’s assets is more than the person’s assets value limit. Section 573B sets out a table describing the assets value limit for particular applicants.
The rate of a person’s Austudy payment is worked out in accordance with the Austudy Payment Rate Calculator which is located at s. 1067L of the Social Security Act.
Module A, which sets out the method statement for working out the rate of payment of Austudy, provides for a reduction from the maximum payment rate due to a person’s income. In addition, Module D establishes an income test which works out the effect of a person’s ordinary income and the ordinary income of a partner of the person on the person’s maximum payment rate. The assets and income of both the applicant and his or her partner are taken into account in determining the correct rate of Austudy payment to a person who qualifies for that social security payment.
Student Start-up Scholarship payment
Part 2.11 B of Chapter 2 of the Social Security Act deals with scholarship payments for students. Division 1 deals specifically with Student Start-up Scholarship payments. A person is qualified for a Student Start-up Scholarship payment if, for a continuous period since the time in respect of which the person received the scholarship, the person had been receiving Austudy payments (s. 592F(2)(a) and (b) of the Social Security Act).
It is clear from the legislative provisions to which I have referred above that the income of a social security payment recipient is always taken into account when determining the rate of payment to a person qualified for any particular social security benefit. The expression income is broadly defined in s. 8(1) of the Social Security Act as follows:
income, in relation to a person, means:
(a)an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b)a periodical payment by way of gift or allowance; or
(c)a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
The exclusions referred to in the definition are not relevant for these purposes. However, a note under that definition makes it clear that income is equivalent to ordinary income plus maintenance income. Furthermore, the expression earned, derived or received is also explained in the following way:
(2) A reference in this Act to an income amount earned, derived or received is a reference to:
(a)an income amount earned, derived or received by any means; and
(b)an income amount earned, derived or received from any source (whether within or outside Australia).
The High Court of Australia (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) in Read v Commonwealth of Australia (1988) 78 ALR 655 dealt with the concept of income in the context of the Social Security Act 1947. The definition in that statute is not significantly different to that in the current statute. Brennan J recorded the definition in the following way, at 662:
“…’income’, in relation to a person, means any personal earnings, moneys, valuable consideration or profits earned, derived or received by that person for his own use or benefit by any means from any source whatsoever, within or outside Australia, and includes any periodical payment or benefit by way of gift or allowance from a person other than the father, mother, son, daughter, brother or sister of the first-mention person, but does not include…”
His Honour then went on to explain:
The definition is exhaustive: the term “income” means what it is defined to mean; it does not mean what “income” would be understood to mean if the definition were not in the Act. The definition is couched in the widest terms, presumably to ensure that public expenditure is directed to those who stand in actual need of the periodic support which income-related pensions provide. The definition is wide enough to embrace receipts of a capital nature as well as receipts of income, for “income” is defined to mean, inter-alia, any moneys, valuable consideration or profits irrespective of the means by which or the source from which those moneys, etc are received.
NOTIFICATION OF INCOME
Given the significance that income plays in the calculation of the rate of payment to which a recipient of social security may be entitled, and that the rate of payment is ordinarily calculated in fortnightly instalments (commonly referred to as rests), it is not unreasonable that the legislation requires the recipient to notify Centrelink of any changes in their financial circumstances within 14 days.
Section 68 of the Social Security Act (Administration) 1999 (the Administration Act) deals with this issue. Relevantly, it provides:
(1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or energy supplement under Part 2.25B of the 1991 Act) is being paid.
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.
(c)give the Department one or more statements about a matter that might affect the operation, or prospective operation, of Part 3B in relation to the person.
…
I had in evidence numerous notices issued by Centrelink under s. 68 of the Administration Act between February 2009 and July 2014. Each of those letters sets out the payment amount for a fortnightly period. It sets out the amount of declared fortnightly income provided by Mr Revulge. It also raises questions about whether Mr Revulge did any work in the period in question or whether he started work, or his hours increased. The letters require details of income to be provided. The notices also refer to Mr Revulge’s partner and the work his partner did in the relevant period including their earnings before tax and other deductions (gross earnings).
Centrelink sent to Mr Revulge regular letters setting out the payments he received for the various social security benefits to which he claimed he was entitled. For example, in addition to receiving Austudy payments, Mr Revulge received the energy supplement and rent assistance. Some of those letters also set out the income and assets Mr Revulge disclosed to Centrelink at the given times. At the conclusion of those letters, Centrelink stated:
If you believe any of these details are incorrect, please contact us.
UNDISCLOSED INCOME
The Secretary determined that Mr Revulge received income from a number of sources between 2 February 2009 and 1 September 2014 which had not been disclosed to Centrelink. They were:
(a)payment for letterbox distributions;
(b)wages from Eriko Pty Ltd;
(c)wages from Northwest Investments;
(d)wages from Memphis Corporation;
(e)wages from Tai Lawyers;
(f)wages from Bardo Lawyers;
(g)wages from BELawyers; and
(h)a number of other unexplained deposits in his bank accounts.
I should point out at the outset that it appears Mr Revulge did not report income on a number of occasions because he said he was not over the limit which was allowed in any eight week period. In support of that claim, Mr Revulge referred to a Centrelink letter he received which is dated 22 February 2016. However, that letter informed Mr Revulge that his claim for a Low Income Health Care Card had been rejected. The letter stated that because his and his partner’s combined income was above the allowable limit to qualify for a card, his claim had been rejected. The letter then stated:
To qualify for a Low Income Health Care Card, your and your partner’s combined income must be below $7,352.00 over an eight week period.
Clearly, that letter was about qualification for the particular Health Care Card he sought. It was not about a social security payment. It had nothing to do with payability. Nor did it have anything to do with the income or assets test applied to the payment of a social security benefit. The legislation to which I have referred above makes it clear that payability of a social security benefit will be affected by whatever income the claimant has derived over a two week period. It will also be affected by declared assets.
Mr Revulge also claimed that he was only required to notify Centrelink of an increase in income if he believed it was necessary. With respect, a plain reading of the s. 68 letters sent out by Centrelink exposes the fallacy of that belief. Not only must Centrelink be informed of actual changes to income within 14 days, they must also be notified where a claimant has become aware that his income will change in the near future. That is, a prospective change. There is nothing in any of those letters suggesting that notification is required only on the subjective assessment of a claimant. If that were the case, the social security system could not function.
The letterbox distributions work
Regarding the payment from letterbox distributions, Mr Revulge said that any payments received were received by his partner who had a contract under which the letterbox distributions took place. Therefore, according to Mr Revulge, no disclosure was required. With respect to Mr Revulge, that is incorrect. Income of the claimant and his or her partner are relevant in determining the rate of payment of a social security benefit. In any event, Mr Revulge agreed that it went into a bank account in his name. They were deposited in a Westpac Banking Corporation (Westpac) account which is in Mr Revulge’s name only. Regardless, Mr Revulge said that the monies received for that work were below what he described as the legal amount, which I understood to be the amount referred to by Centrelink in respect of his Health Care Card application. As I have already explained, that limitation applies only to qualification for the Health Care Card.
Work for Eriko Pty Ltd
In his oral evidence, Mr Revulge conceded that he may have done casual work for this entity. However, he said it did not exceed $990 in total. I had in evidence a National Australia Bank (NAB) statement for a NAB Classic Banking account in Mr Revulge’s name. There are two credit entries from Eriko Pty Ltd made into that account; $840 on 20 July 2011 and $180 4 August 2011. That is a total of $1020.
Mr Revulge said that the documents produced by legal representatives of the Secretary and in particular bank statements and the like were all fake or fraudulent. That was because those copy documents had not been certified as true and correct copies of the original documents. Mr Revulge was highly critical of my decision to take those documents into evidence. While there are both common law and statutory rules regarding the admission of certain documents into evidence, it seems Mr Revulge is not familiar with the statutory provisions dealing with procedures of this Tribunal. Section 33 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) relevantly provides:
(1) In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Given that the Tribunal is not bound by the rules of evidence, it may admit those documents Mr Revulge claims are fraudulent or fake. It is inadequate for Mr Revulge to simply make such bare claims without evidence supporting them. Bare assertions of that nature cannot carry any weight without some supporting evidentiary material. In this case, there was no such material. There being no such evidence, I accepted those documents into evidence. On their face, there wasnothing to suggest that the documents are not true and correct copies of what they purport to be. Furthermore, they are relevant to the matters in this proceeding.

Therefore, I find that Mr Revulge failed to disclose income derived by him from Eriko Pty Ltd in July and August 2011.
Employment by Northwest Investments
The NAB account to which I have referred above contains credit entries described as Payroll Northwest Invest in the amount of $213.43 on 25 October 2011; $199.94 on
1 November 2011; $217.03 on 8 November 2011; $230.87 on 15 November 2011; $229.83 on 22 November 2011 and $228.47 on 29 November 2011.
Mr Revulge’s only response to these payments was that they did not exceed the limitations in an eight week period. As I have already explained, that is not a valid basis for not disclosing income from North-West Investments. I find that Mr Revulge failed to disclose that income to Centrelink as required.
Employment by Memphis Corporation
Mr Revulge’s NAB account discloses deposit entries from Memphis Corporation in the amount of $222.94 on 6 December 2011 and $262.11 on 13 December 2011. These amounts were not disclosed to Centrelink. In his oral evidence, Mr Revulge said he did not know the name of this enterprise. In any event, he said that the income earned for the eight week period was less than the statutory amount for disclosure. There is no basis for that submission. I find that the amounts should have been declared to Centrelink and that Mr Revulge failed to do so.
Trans Advisory International Lawyers (TAI)
TAI is a business name registered to Mr Revulge. It also trades under the registered business names Trans Advisory International (TAI) Lawyers-Brisbane; Trans-Advisory International (TAI) Lawyers Melbourne; Trans Advisory International (TAI) Brisbane; and TAI Migration Lawyers. The entity type recorded on the Australian Business Register is Individual/Sole Trader. TAI Lawyers and TAI Migration Lawyers were registered on 7 February 2014 and 28 June 2014 respectively, while the other entities were registered in June and July 2016. Trans Advisory International Pty Ltd is a corporate entity registered with the Australian Securities Investment Commission (ASIC) on 27 February 2014. As at 31 July 2014 there were two directors, Mr Revulge and Mr Roger De Zylva. Further directors were appointed on 29 October 2014 and 1 November 2014. One of those directors was resident in Sri Lanka. It lodged an Income Tax Return for the 2014 income year indicating that Mr Revulge was its Public Officer. Its main business activity was described as: SOLICITOR. Its gross income for that financial year was $25,695.
On its website, TAI Lawyers describes the practice as: Immigration, Family, Criminal and General Law. Mr Revulge is described as its Principal Lawyer. Mr Revulge was first registered as a Migration Agent by the Office of the Migration Agents Registration Authority (MARA) on 14 August 2013. He has renewed his registration annually, the last occasion being in August 2015.
Mr Revulge, trading as TAI Lawyers, had three ANZ Bank accounts. They were all opened in early 2014. The only person with access to those accounts was Mr Revulge. Regular deposits were made into one of those accounts which was described as an Office Account. There were regular deposits into the Office Account where the description regarding those deposits was Legal Fees or Law Fees. They commenced in April 2014. There are numerous entries for what appear to be legal services provided by Mr Revulge, those entries ranging from $500-$3,500. Furthermore, there are numerous significant transfers into that account, some of which can be identified as fees from clients regarding migration matters (before the then Refugee Review Tribunal).
A second account described as Mr Revulge’s account trading as TAI Lawyers, also contains a deposit entry which relates to migration work. That occurred in March 2014.
The third account which is in the name of Mr Revulge trading as TAI Lawyers was opened on 30 April 2014. This account has very few transactions.
In addition to the above, there are two further ANZ Bank accounts which appear to be Mr Revulge’s personal accounts. The first, described as an Access Advantage Cheque account, appears to have commenced in March 2014. The second personal account, described as a Progress Saver account, appears to have been opened in March 2014 and contains numerous transfers from the Office Account as well as his other personal account.
Mr Revulge, trading as TAI Lawyers, opened a Commonwealth Bank (CBA) account (Business Transaction Account) on 9 July 2014. He also lodged with the CBA a Personal Loan Application in which he recorded his income is being $5,434 per month. On that application form, Mr Revulge also disclosed he was not receiving any social security benefits.
Numerous cash deposits are recorded in the Business Transaction account including a $20,000 direct transfer described as a part payment on 27 October 2014. The second part of that direct transfer paid on the following day was for $4,250. Some deposits are identified as Lawyer fees, legal fees, and Federal court fees as well as Immigration Fee. Some transfers out of that account are identified as wages, indicating staff were employed. I also had in evidence copies of two CBA cheques payable to the Magistrates’ Court.
When cross-examined about these accounts, Mr Revulge first stated that the bank account statements were not authentic documents. I have already dealt with that issue above. He agreed that he was receiving money on behalf of clients. When it was put to him that he had control of the company’s bank account, he denied that to be the case and said the company had control of it, not him individually. However, when it was pointed out to him that the company needed to act through a real person and that the only person authorised to do so was him, he accepted that he had full control of that account. When asked whether payments were received for legal work, his first response was no but then he altered that to maybe.
Mr Revulge also held numerous Westpac Banking Corporation (Westpac) accounts, four of which were still active. When he was taken to one of those accounts, described as Westpac Choice Student (number 5838), and to an entry described as law fee which was a deposit for $500 made on 12 November 2012, he agreed that was a payment for legal services. Mr Revulge was then taken to another entry made on
5 September 2013 which was a deposit for $1000 and the service provided appears to have been in relation to a protection visa. Mr Revulge agreed that the payment was a fee for acting as a migration agent.
In cross-examination Mr Revulge was taken to another deposit entry in his Westpac account on 6 February 2012 which indicates a rent payment in the amount of $500. When asked if it was rental which he had received, Mr Revulge first said no and then said he could not recall. It appears Mr Revulge may have been receiving rental payments from a property which he has not disclosed. Such receipts are plainly income.
Mr J Lessing, a solicitor who appeared on behalf of the Secretary, put to Mr Revulge that an amount of $2,500 deposited in his Westpac account on 18 December 2009 which came from Victoria University, was income. Mr Revulge said these monies were placed into his account to enable him to study abroad. He said it was for travelling and other related expenses in respect of a study program. However Mr Revulge produced no objective evidence to support that statement.
As for the deposit of $500 on 6 February 2012 said to be a rent payment and the $500 deposit on 12 November 2012 said to be a law fee, Mr Revulge said those deposits were made by two persons who he referred to as clients. He named them Thilan and Dammika respectively. He said that while he was receiving training (the nature of which was not explained) under Bardo and Erci Lawyers, those amounts were deposited by the clients to be given to the principals of that legal practice. The payment was made to him because he was the person who introduced the clients to the firm. The problem with that statement is that the first deposit was made by a person described as Sameera and the payment was stated to be a rent payment. The second deposit was said to have come from Tilan Wickrama. Mr Revulge referred to an email sent from Dammika and a receipt from a direct electronic transfer in the amount of $1000. The problem is that both the email and the receipt refer to a transaction made on 5 September 2013. The bank entry precedes that date by some 10 months. It cannot be the same entry. There was a deposit on
5 September 2013 into the Westpac account in the amount of $1000. That deposit was said to relate to a protection visa. It is, with respect to Mr Revulge, a peculiar method of paying one’s account. That is particularly so when the email states that Dammika had an agreement with the law firm to pay on a monthly basis. Presumably monthly payments had been made and there is no reason to suppose those payments were not by electronic transfer rather than physical attendance at the office to make the payment. In any event, neither Dammika nor either of the partners was called to give evidence.
On 30 June 2014 there were two deposits into the Westpac account, each for $1000. They were said to be payments from Sachini and Sujini Hew. According to Mr Revulge, those persons are his children. He attached to his Further Written Submissions letters purported to be signed by his children stating that:
I confirm that I gave my Father a sum of $1000 in June/July 2014 as he was unable to pay his rent and other expenses.
Both letters are in identical terms.
The problem is that in his written statement Mr Revulge described those deposits as loans to him. The expression used in the letter I have quoted above does not indicate that those monies were loans or required to be repaid. Both of those persons deposited further $1000 amounts on 17 July 2014 and 22 July 2014 respectively. Mr Revulge referred to the two lots of payments by each child. Neither of those persons was called give evidence in support of Mr Revulge’s claim. Mr Revulge also said that a further deposit of $500 into his Westpac account, which is recorded as a rent payment, was also a loan given by an unnamed friend. With respect to Mr Revulge, without the so-called friend attending for cross-examination, I cannot give that evidence any weight. That is because it is against the objective documentary evidence.
Mr Revulge also held a number of National Australia Bank (NAB) accounts. Some of those accounts had Mr Revulge as the sole signatory while others had a signatory in addition to Mr Revulge. Other than one account, a NAB Classic Banking account which was in Mr Revulge’s name solely, the remainder appeared to have Trans Advisory International Pty Ltd as the account holder trading as TAI Lawyers or simply in the corporate name. One account was in the name of Trans Trade International.
The account described as the NAB Classic Account has numerous cash deposit entries which indicate payments from clients in relation to migration or visa matters. There are also significant deposits described as Salary Tai Lawyers. Those deposits were frequently in $1000 lots.
Bardo Lawyers
In a letter dated 6 August 2015 Centrelink requested that the law firm provide information regarding the employment of Mr Revulge between 29 January 2009 and 6 August 2015. Attached to that letter was an employment declaration form which was completed by Bardo Lawyers. The responses to that declaration indicated that Mr Revulge was employed full-time by Bardo lawyers, commencing employment on 16 November 2013. His employment ceased on 14 February 2014. Bardo Lawyers indicated that salary or wages paid to Mr Revulge were deposited in a NAB account, the final four digits being 0522. The declaration form indicates Mr Revulge was paid $836.20 per week commencing on 16 November 2013, the first payment date being 22 November 2013. The final payment occurred on 14 February 2014.
An examination of the 0522 NAB statements produced by the bank on request from Centrelink discloses payments of $715.20 to Mr Revulge commencing on
22 November 2013 with regular weekly payments concluding with the payment of $466.72 on 14 February 2014. In addition to those payments, there is also recorded in that NAB account a credit of $715.25 on 13 January 2014 said to be wages from BE lawyers. The Australian Business Register records that Bardo & Erci Lawyers is the business name of the trustee for the B & E Lawyers Trust.
I had in evidence Bendigo Bank accounts in the name of Mr Revulge jointly with
Mr El-Bardouh, Mr De Zylva and Mr Suriyarachchige. There is a small number of deposit entries in those accounts which are unidentified. When asked in cross-examination whether any of those payments were for legal work, Mr Revulge said he could not elaborate.
Alexander & Co International Pty Ltd
The name of this corporate entity arose because in his Personal Loan Application with the CBA, Mr Revulge said he was employed by Alexander & Co on a full-time basis and recorded Mr Alex Cooray as the nearest relative or friend living in Australia who could be contacted to vouch for him. In cross-examination, when asked about his employment with Alexander & Co, Mr Revulge denied ever having worked for that entity. On that application form Mr Revulge claimed that he had a monthly income of $5,434. Mr Revulge said that the information was false. It is not possible, without further evidence, to come to any conclusion about whether Mr Revulge in fact derived income from this source.
FINDINGS REGARDING CLAIMED FAILURE TO DISCLOSE INCOME
As I have indicated above, the evidence discloses there are a number of sources from which Mr Revulge appears to have derived or received payments which could reasonably be regarded as income for the purposes of the Social Security Act. In many cases, the source of deposits in the numerous bank accounts which were opened by Mr Revulge, either under business names registered to him personally; to the corporate entity Trans Advisory International Pty Ltd; or under his own name, were not identified. He also appears to have received income by way of wages or salary from a number of entities. I did not have evidence of any of those amounts, which were deposited in the accounts, being declared as income for social security purposes.
As I have also stated above, Mr Revulge’s primary response to the Secretary’s claim that those monies should have been declared as income was that they did not reach what he described as a statutory allowed limitations before a declaration was required. A claimant for a social security payment may be qualified to receive the payment but nevertheless not receive any payment due to exceeding income and/or asset limits. Furthermore, s. 68 of the Administration Act makes it very clear that notices may be sent by Centrelink to a recipient of a social security payment, requiring them, within 14 days, to notify Centrelink of the receipt of funds which properly fall within the definition of income or that they will, at some point in the near future, receive such funds. Mr Revulge failed to do so. Therefore, I have found that the receipts which Centrelink has taken into account as income are, for the purposes of the Social Security Act, the income of Mr Revulge.
Mr Revulge has gone to some lengths in his written submissions to criticise the Centrelink officer responsible for informing him that he had failed to disclose income. The Tribunal’s task is to review the merits of the decision based on the evidence produced to it on the hearing of the matter. It is a hearing de novo. Its purpose is to establish either the correct or preferable decision where that decision is discretionary, based on the material before the Tribunal. It is not limited to the material which was before the primary decision maker; the ARO; or AAT 1 on first review. It is not concerned with the reasons given by any of those decision-makers in arriving at their decision.
Additionally, there is no onus of proof on either party in social security matters. This was explained by the Full Court of the Federal Court of Australia (Woodward, Northrop and Jenkinson JJ) in McDonald v Director-General of Social Security (1984) 1 FCR 354. Woodward J dealt expressly with the concept of onus of proof as applied to tribunals in the context of an application for an invalid pension. His Honour said, at 356 – 357:
The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called “legal” and “evidential” aspects.
…The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute “is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate” (AAT Act s 33(1)(c)).
Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answers to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.
Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading “onus of proof”, becomes a matter of choosing labels. It would probably be more convenient to avoid that expression in cases such as the present.
There is certainly no legal onus of proof arising from the fact that this is an “appeals” tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419) make its own decision in place of the administrator’s. The AAT itself, in a series of cases beginning with re Ladybird Children’s Wear Pty Ltd (1976) 1 ALD 1, has taken the view that there is no presumption that the administrator’s decision is correct. This is clearly the right approach to the matter.
…Obviously someone must set in motion the process which establishes the entitlement, and that will normally be done by or on behalf the person concerned, but the Act does not create a legal onus to prove all relevant aspects of a claim of permanent incapacity such, for example, as the state of the labour market for disabled persons. Certainly if no material is available to the decision-maker, or if available material leaves the decision-maker quite uncertain whether the person is permanently incapacitated, the claim must fail. But I think it would be artificial to describe the situation in terms of the legal onus of proof.
Although Mr Revulge submitted that he had never received wages from Bardo Lawyers or from TAI Lawyers, there are numerous bank statements with precisely those entries beside the deposits. Mr Revulge claimed that Bardo Lawyers was registered under his name. If what Mr Revulge meant to say was that this was a registered business name and that business name was registered to him, the documents from the Australian Business Register do not support that claim. As for TAI Lawyers, Mr Revulge said… I again reiterate the fact that no wages given to me as wages, however, it was an initial mistake that some refund money was transferred to NAB which was later corrected on the instruction of the accountant. To begin with, I have difficulty in understanding what Mr Revulge means by that statement. In any event, I had no evidence before me other than Mr Revulge’s bare claim that those entries in the bank accounts could not be treated as wages, despite the numerous deposits into his account being labelled as such. Therefore, I have found that they should be treated as his income.

Mr Revulge also submitted that deposits into the NAB accounts from the business of, I assume, TAI Lawyers, could not be treated as income because the business ran at a loss. The general meaning of ordinary income, which is used for the purpose of calculating the rate of a social security payment, is set out in s. 1072 of the Social Security Act. It provides:
A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
Division 1A deals with business income. Section 1075 explains that there are permissible reductions of business income. Relevantly, it provides:
(1) Subject to subsection (2), if a person carries on business, the person’s ordinary income from the business is to be reduced by:
(a)losses and outgoings that relate to the business and are allowable deductions for the purposes of section 8-1 of the Income Tax Assessment Act 1997; and
b) amounts that relate to the business and can be deducted in respect of plant (within the meaning of the Income Tax Assessment Act 1997 ) under Division 40 of that Act; and
c) amounts that relate to the business and are allowable deductions under section 290-60 of the Income Tax Assessment Act 1997 .
I had in evidence an income tax return for Trans Advisory International Pty Ltd for the 2014 income year. That company disclosed total income of $25,695 for that year, but after deducting expenses, made a loss of $5849. However the majority of the deductions claimed ($21,530) were made under the label: All other expenses. I had no evidence before me regarding whether those deductions were allowed. I am aware of substantiation rules that apply in taxation cases particularly where deductions are claimed. Mr Revulge made no attempt to substantiate those deductions on the hearing of this matter.
I also had in evidence Mr Revulge’s income tax return for the 2015 income year. The only income disclosed by Mr Revulge was $4,867 obtained from Australian Government Allowances, which includes Newstart, Youth Allowance and Austudy payments. That income was not subject to tax.
Accordingly, even if Trans Advisory International Pty Ltd were able to substantiate the claimed deductions, that would not alter Mr Revulge’s overall position regarding payability of social security benefits. It does not assist his case.
I have already dealt with Mr Revulge’s claim regarding the authenticity of documents produced by Centrelink for the purposes of this hearing. The Tribunal is not bound by the rules of evidence and, those documents being plainly relevant in this case, without evidence of lack of authenticity, were admitted in evidence.
Mr Revulge also complained about statements made by the Secretary in the Statement of Facts, Issues and Contentions. That material was not evidence. It is in the nature of contentions only. Also, Mr Revulge continually referred to a complaint to be investigated against a Centrelink officer. Any such complaint can have no bearing on my findings on the evidence before me on the hearing of this matter. This Tribunal makes its finding on the evidence before it, not on the statements made in a Statement of Facts, Issues and Contentions lodged by either party.
Although Mr Revulge submitted there were no income changes of which Centrelink should have been informed in the relevant period, I have found that not to be the case. The deposits into the NAB account alone, which is in Mr Revulge’s name only, amounted to approximately $142,000 between 1 July 2010 and 14 July 2015. Mr Revulge was not able to account for those deposits by way of evidence at the hearing. I find those monies were correctly determined to be regarded as his income for the purposes of the Social Security Act.
DEBT DUE TO THE COMMONWEALTH
Debts arising from overpayments made by Centrelink are dealt with in s. 1223 of the Social Security Act. Relevantly, it provides:
(1) Subject to this section, 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.
…
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a)…
(b)The person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c)the payment was not payable;
(d)the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
…
In this case, the payments received by Mr Revulge over the periods in question, for which he may have been qualified, were nevertheless not payable due to his undisclosed income. Furthermore, the fact that he failed to disclose income despite receiving notices pursuant to s. 68 of the Administration Act, constitutes a contravention of the social security law. Accordingly, I find that Mr Revulge’s receipt of Special Benefit payments; Austudy payments; and Student Start-up Scholarship payments in 2014 were payments which he received when not entitled to them. Those overpayments are a debt due to the Commonwealth.
WAIVER OF DEBT
Section 1237A of the Social Security Act provides for compulsory waiver of debt arising from error. It provides:
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely 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.
(1A) Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
There was no evidence before me indicating that the debt arose due solely to an administrative error made by the Commonwealth. It arose because of Mr Revulge’s failure to notify Centrelink of income payments he received throughout the relevant period.
While there is also provision in s. 1237AAD of the Social Security Act for the Secretary to exercise discretion to waive all or part of the debt, that discretion only arises where there are special circumstances which make it desirable to waive the debt. The discretion is only enlivened where the debt did not result wholly or partly from the debtor making a false statement or false representation; or failing or omitting to comply with the provision of the Social Security Act or the Administration Act. It clearly does not apply to Mr Revulge.
CONCLUSION
I have found that Mr Revulge received overpayment of social security benefits as a result of his failure to disclose to Centrelink income which he received during the relevant periods. Those overpayments constitute a debt owed to the Commonwealth. I have found there is no basis upon which the mandatory waiver provision could be applied or the Secretary’s discretion exercised to waive the debts.
Therefore, I find that the decision made by AAT 1 on 14 October 2016 which affirmed the ARO decision that the special benefit payments in February 2009 and between March and September 2009; the Austudy payment between March and September 2014; and the Student Start-up Scholarship paid in March and July 2014 were payments to which Mr revolt was not entitled, was the correct decision. I affirm that decision.

77.

78.     I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

.....[sgd]...................................................................
Associate
Dated:            9 February 2018

Date of hearing: 31 August 2017

Applicant: In person

Solicitor for the Respondent: Mr Joshua Lessing, Sparke Helmore

[2018] AATA 303

9 February 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	31 August 2017
Applicant:	In person
Solicitor for the Respondent:	Mr Joshua Lessing, Sparke Helmore