Houssaini and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 193

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 193

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3760

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALI HOUSSAINI

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date7 March 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for Youth Allowance by applicant as “independent” – unreasonable to live at home – extreme family breakdown – serious risk of harm to applicant’s physical or mental wellbeing – decision affirmed. 

Social Security Act 1991 s 1067A(9)

Re Simakovic and Secretary, Department of Family and Community Services [2003] AATA 812
Re Ness and Department of Employment, Education, Training & Youth Affairs 50 ALD 925
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

7 March 2008   Senior Member R W Dunne  

1.      This is an application by Ali Houssaini (“applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 23 July 2007.  The SSAT affirmed a decision made by a Centrelink officer on 5 June 2007, which was affirmed by that officer on 12 June 2007 and in turn by an Authorised Review Officer on 15 June 2007, to refuse the applicant’s claim for Youth Allowance at the independent “unreasonable to live at home” rate.

2.      At the hearing, the applicant represented himself and was assisted by his cousin, Mr Ghulam Houssaini (“Ghulam”).  Both the applicant and Ghulam gave evidence before the Tribunal, along with Mr Tindaro Fallo, a clinical psychologist (by telephone).  Mr Peter Edwards, a Centrelink advocate, represented the Secretary, Department of Employment and Workplace Relations (as it was at the time) (“respondent”), and Mr Charles Wickins, a Senior Social Worker with Centrelink, gave evidence for the respondent.  The Tribunal received into evidence the T documents (Exhibit R1) and the supplementary T documents (Exhibit R2) tendered under s 37 of the Administrative Appeals Tribunal Act 1975.

issue for the tribunal

3. The issue for the Tribunal is whether the applicant is entitled to receive Youth Allowance at the independent “unreasonable to live at home” rate, in accordance with s 1067A(9) of the Social Security Act 1991 (“Act”), from the date of his claim, 7 May 2007.

legislation

4. Section 1067A(9) of the Act relevantly reads:

“1067A  When a person is regarded as independent

…

(9)      A person is independent if:

(a)the person cannot live at the home of either or both of his or her parents:

(i)because of extreme family breakdown or other similar exceptional circumstances; or

(ii)because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well‑being due to violence, sexual abuse or other similar unreasonable circumstances; or

(iii)because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation; and

(b)the person is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long‑term basis; and

(c)the person is not receiving, on a continuous basis, any payments in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory.”

background and evidence

5.      The applicant was born on 31 December 1989.  He left his parents’ home on 17 April 2007.  In an application dated 7 May 2007 he applied for Youth Allowance at the independent “unreasonable to live at home” rate.  In a statement accompanying his application, the applicant said that he was “struggling to cope with conflict at home and…was finding it very difficult to study and maintain a normal life-style”.  His parents were always pushing him to study hard and he had young siblings at home who made a lot of noise, so that he could not study.  The only place where he was able to study was his parents’ home.  When he told his parents about his study difficulties, they told him that it was his fault.  His grades at school were getting lower and lower, but his parents did not understand that this was because of the problems he had at home.  His parents were also forcing him to pray and do other things that were part of his culture, and that was why he could not cope.  He left school in February 2007, but the reason for leaving was not only his study problems.  He thought his parents were not encouraging him to study, because he was not a bright student, but they wanted him to work like his older brother.  His brother was able to go “clubbing” and “get it on with girls”, but when he tried to do the same thing his parents refused to let him.  They wanted him to work and provide money for them.  The applicant was presently living with his cousin, Ghulam, and he had been there since 17 April 2007.  He had also been living with friends, and sometimes with his cousin.  As his friends had moved on, he was now living only with his cousin.  Ghulam used to live at Parkside, but had recently moved to live near the airport.  The applicant said that he did not get along with his mother, nor with any of the other members of his family.

6.      At the time the applicant made his statement to Centrelink in May 2007, he was seeing a psychologist, Mr Tindaro Fallo.  He was not seeing Mr Fallo any more because, since he had left home, he found that he was feeling better, mentally.  Ghulam had suggested that he should see Mr Fallo and he had been referred by a general practitioner, who was the doctor that his cousin was seeing.  The applicant said that he did not wish to return home.  There had been violence at home in the past which involved an argument between his parents.  His father had thrown a brick at his mother and that was how the violence had started.  Ghulam had been present at his parents’ home at the time and was able to “bear witness” to what took place.  The violent argument had occurred over two years ago, but it seemed to the applicant that it was only last year.  When questioned by Mr Edwards, the applicant said that this had been the only incident of violence at his parents’ home and that there had been no further violence since then.  Although he was living with Ghulam, he would return to his parents’ home to collect his mail.  As his cousin’s address was only his temporary accommodation, he had not changed his postal address.  However, when he did return home he made sure his parents were not there.  If they were, he did not think they would let him in to collect his mail, and it had been some months since he had actually seen his parents.  His mother would often do his washing.  Physically, his brother was the same size as he was and they would share their clothes.  This sharing had occurred before he left, and as some of his clothes were still at his parents’ home, he would often go there to change.  He did not go home to have his mother do his laundry, but merely to change his clothes from time to time.  Although his parents lived at Para Hills, which was a considerable distance from where he lived with his cousin, he only went to his parents’ home about once a week and Ghulam would take him there.

7.      In cross-examination, Mr Edwards referred the applicant to a statement made by his parents on or about 13 July 2007 (Exhibit R1, T16).  He said the statement had been arranged by Ghulam and signed by both his parents before Mr Fallo.  When questioned further, the applicant said that only his mother had signed the statement before Mr Fallo, and that his father had not been there at the time.  He had signed the statement later.  Mr Edwards also referred to the Social Work Report by Mr Wickins dated 18 October 2007 (Exhibit R1, T18).  In the Report Mr Wickins referred to a statement made by the applicant’s older brother, Mr Abbas Houssaini, that the applicant lived with his parents at that time, but also went to “friends’ places”.  The applicant said he was surprised at his brother’s statement and did not know why he had made it.  He said he presently worked at Process Development Corporation, which made interiors for Holden motor cars.  He had been working there for about a month and had found the job through Jobs Network.

8.      Ghulam gave his evidence.  His father and the applicant’s father were brothers.  He said that the applicant did not live with him permanently, but only on a temporary basis from time to time.  He referred to the violent incident that had occurred involving the applicant’s parents.  He was living at the parents’ home at the time and had been involved in the incident as well.  He had been sleeping and was woken by the applicant’s parents arguing.  He saw the father hitting his wife.  He took hold of the father and told the wife to run away to a neighbour.  The father punched him, but Ghulam stopped him from going after the wife.  The father had gone into the kitchen, taken a large kitchen knife and had come after him and the applicant as well.  Eventually, the neighbour called the police and they came and took the father into custody.  He had been held in the Remand Centre for two or three weeks until he went to Court.  When questioned by the Tribunal about the incident and the applicant’s presence at the incident, Ghulam said:

“Yes, I was there, but he was there too and then he said something, you know, but his father just said something, like, swearing at him, you know, and saying:  I will kill you too.  I will kill all of you, you know.  I will just get rid of you, I’m sick of this life and these things so, yes, basically that was all.” (Transcript, page 21)

9.      ln his further evidence, Ghulam said that he had lived in the parents’ home before and knew how the applicant’s father behaved.  He said it was not suitable for the applicant to live there because of the arguments involving the parents.  He then said that he owned the parents’ home.  He did not live there himself but the applicant’s parents did and they paid him rent.  He lived elsewhere, paying rent, because he wanted “to be free”.  The parents’ home was crowded and noisy and they were always arguing.  The applicant could not study and it was unreasonable for him to have to continue to live there.  He said that Australia was a free country and was not like his own country, Afghanistan, where a son was unable to say anything against his father.  Ghulam had come to Australia and had worked in a meat factory.  He did not want to see the applicant in the same situation, but should be able to better himself through study. 

10.     Ghulam was referred to the statement signed by the applicant’s parents before Mr Fallo (Exhibit R1, T16).  He said he had prepared the statement and had read it back to the parents.  They had understood what was said in the statement.  He spoke the same language as the parents.  However, Mr Fallo could not speak their language, but Ghulam was there and interpreted what the parents were saying to him.  He said the statement represented the parents’ position in relation to the applicant.  It read:

“I Ghulam Sakhi Houssaini and my wife Ghul Jon Houssaini can not allow my son Ali Houssaini to live with us any longer.  Ali has completely forgotten his culture.  Wearing unusual clothes, having really long hair and having friends with the same problems are some examples.  He has dropped out of school and has no intention of continuing his education, which is a really bad influence to other children in the house.  I expect my children to finish their education and have a bright future but this would not be possible with Ali living with us, which is why I can not and will not allow Ali to live with us any longer.”

Ghulam said that he had spoken to the parents and they said that the applicant was not listening to them.  He was not praying and he was a bad influence on the other children in their home.  Although the parents stated that the applicant had dropped out of school, they wanted him to study, but they did not want him to do it at their home because of the way he behaved there.  Ghulam said the statement was signed by the applicant’s mother in Mr Fallo’s presence, but the father had signed it at home and not in Mr Fallo’s presence.  In cross-examination by Mr Edwards, Ghulam said the applicant would often stay with him four or five days a week.  On the other days, he would live with his friends.  He did not regularly go to his parents’ home to collect his mail.  The applicant’s brother would bring it to him.

11.     In giving his evidence, Mr Tindaro Fallo was referred by the Tribunal to the statement he had made in relation to the applicant’s application for Youth Allowance (Exhibit R1, T6).  He said his understanding, from what the applicant had told him, was that his parents found his conduct “in some respects offensive” and “in some respects deviant of their beliefs and values”.  He gave examples of the length of his hair, the way he dressed, the friends that he kept and the music that he listened to.  The applicant felt his parents were being unduly harsh towards him.  He was always fighting with them because he wanted to do things that he enjoyed, and that caused conflict with the family.  The applicant also expressed the belief that his parents thought his attitude and behaviour would spread to other members of the family and, for that reason, they wanted him either to change or leave.  Mr Fallo said that the applicant’s reports to him suggested that he was not coping, and that he had become withdrawn and neglectful of himself and his circumstances.  He was not concentrating, his memory was affected and he was generally feeling quite low and sad most of the time.  The applicant had six consultations with him under Medicare, the last being on 2 August 2007.  He said he thought the applicant was still suffering from depression.  Mr Fallo was also asked about the statement made before him by the applicant’s parents on 13 July 2007.  He said he recalled the applicant’s mother attending his rooms and signing the statement.  He asked her if she understood what was in the statement and, through Ghulam as interpreter, she said that she did.  However, he said that the applicant’s father was not present at the signing. 

12.     In cross-examination by Mr Edwards, Mr Fallo said that in his experience it was common for parents to have disagreements with their children over the music they listened to and the friends they kept.  Although there were approaches, in the applicant’s case, that could overcome these differences he thought it would be difficult because of the language barrier and the cost of a professional mediator and interpreter.  Nevertheless, he thought that mediation would be an option for a person in the applicant’s position.  He said that he had not had a lot of contact with the applicant’s parents.  The applicant had been referred for management of his depression and he assisted him in reducing some of his stressors, one of which was housing and the other was the support he needed for his application for review to this Tribunal.  There had been no request or offer on the part of the applicant or his parents for him to become involved in any counselling.  As an alternative to leaving home, he thought that generally some counselling or family therapy would be helpful, but this was not raised or asked for in the applicant’s case.  With the stressor relating to housing, he said he understood the applicant had put in an application for Housing Trust accommodation, but he was unaware of the outcome.

13.     As a Senior Social Worker with Centrelink, Mr Charles Wickins said that his primary task was working with young people, who felt it was unreasonable to live at home.  He would make assessments of whether they would qualify for an unreasonable to live at home rate of Youth Allowance.  He said he would speak to the young person to ascertain the circumstances that led to them leaving home. He would also to talk to third parties, who had an involvement with the young person, and to their family to get an independent assessment of why it would be unreasonable for them to live at home.  Mr Edwards referred him to the Social Work Report in relation to the applicant dated 6 June 2007 (Exhibit R1, T9).  He said the Report had been written by Fereshteh Sobhanian and he was her supervisor and responsible for her report.  The Report contained interviews with the applicant, the applicant’s parents and Mr Fallo.  The content of the interviews with the applicant and Mr Fallo was largely consistent with their oral evidence.  However, the report of the interview with the parents read:

“… They said that they have no problem with Ali in dressing the way that other young people dress in Australia.  Mr Houssaini said that he sees other young Afghans who have different hair style [sic] and dress according to the fashion and he has no problem with that because he understands that they live in Australia and life here is different from Afghanistan.  Mr and Mrs Houssaini said that their argument with Ali was about his future and his career.  They said that Ali left school and he does not look for work either.  Mr Houssaini said that Ali is only interested in going out with his friends and they try and advise him that he needs to make his education or finding a job his priority in life and he will still be able to go out and have fun as well.

Mr and Mrs Houssaini said that they did not ask Ali to leave home but Ali told them that he does not like to live with them any longer and he left.  They said that they want Ali to return home and do something positive and productive for his future.’’

14.     Mr Wickins said that, in the course of his work, the vast majority of young people he met would have their independent “unreasonable to live at home” claim rejected.  He said adolescents would attempt to become independent from their parents and would argue with them about various issues, such as clothing, the time to come home and what tasks they were to undertake.  These issues were the primary causes of arguments in most families, where the question of “reasonable to live at home” arose.  When referring to “most families”, Mr Wickins said that he had not been involved with many families with the same cultural background as the applicant.  However, Ms Sobhanian (who prepared the Report) was aware of the cultural differences.  He said that young people still needed to grow up and become independent, and the applicant’s behaviour was no different from most other young people he saw.  While on this, Mr Wickins said that, although Ms Sobhanian came from Iran, she did share the same language as the applicant. 

15.     Mr Edwards then referred Mr Wickins to the Social Work Report, prepared by him, dated 18 October 2007 (Exhibit R2, T18).  He said the Report had been prepared after the applicant had gone before the SSAT and the issue of the parents’ violent incident had been raised.  He said he had contemplated overturning the previous decision in relation to the “unreasonable to live at home” rate for the applicant.  However, when it transpired that the violent incident had occurred some two years before and that the applicant had continued to live at his parents’ home since that date, he said the earlier decision would stand.  The incident had been a one-off incident in the six years since the applicant and his parents had come to Australia, there had been no repetition of it, and no one in the family was concerned that it would happen again.  He said this had been confirmed by the applicant’s older brother, Abbas.  When asked by the Tribunal whether he had spoken to other members of the applicant’s family, Mr Wickins said that he had not spoken with his cousin, Ghulam.  He said he was looking for objective and distant third parties.  Ghulam had been involved in the completion of the parents’ statement and had assisted them to complete their “Unreasonable to live at home Statement by Parent(s)” (Exhibit R1, T4).  Ghulam was the person the applicant purported to live with, but was unable to provide any detail about where the applicant was staying when he was not living with him.  When it was pointed out to him that, on the evidence, Ghulam owned the parents’ home at Para Hills, Mr Wickins said that he did not have any information that would allow him to give a contrary opinion to that expressed in his Report.  In saying this, he said the perception that had been given to him by the applicant’s older brother was that the applicant (in October 2007) was still living at home.  His interpolation of this was that young people were very often away, but that the parental home was still their base.  They would come and go from the parental home, but that did not necessarily mean it was unreasonable for them to live at home.

consideration

16. The applicant has claimed Youth Allowance at the independent “unreasonable to live at home” rate. To be “independent” he must satisfy the three criteria contained in s 1067A(9) of the Act, that is, he must be unable to live at home for one of a number of specified reasons (s 1067A(9)(a)), he must not be receiving continuous support, whether directly or indirectly, and whether financial or otherwise (s 1067A(9)(b)) and he must not be receiving continuous income support payments other than Social Security payments (s 1067A(9)(c)). On the evidence, the Tribunal accepts that s 1067A(9)(b) and s 1067A(9)(c) have been satisfied. The only issue for consideration, therefore, is whether s 1067A(9)(a) is satisfied.

17.     Under s 1067A(9)(a), a person will be “independent” if they are unable to live at their parents’ home:

·     because of extreme family breakdown or other similar exceptional circumstances (s 1067A(9)(a)(i)); or

·     because there would be a serious risk to his or her physical or mental well-being due to violence, sexual abuse, or other similar unreasonable circumstances (s 1067A(9)(a)(ii)); or

·     because the parents are unable to provide the person with a suitable home owing to a lack of stable accommodation (s 1067A(9)(a)(iii)).

18.     In Re Simakovic and Secretary, Department of Family and Community Services [2003] AATA 812, Ms J Cowdroy, Member, referred with approval to the decision of Deputy President T E Barnett and Dr J G Billings, Member, in Re Ness and Department of Employment, Education, Training & Youth Affairs 50 ALD 295. In Re Ness, in the context of Austudy entitlements, the Tribunal considered the meaning of the phrase “extreme family breakdown”.  At paragraphs 35-37, the Tribunal said:

“35. This case raises important issues about what constitutes extreme family breakdown. The possibilities are many, depending upon the point of examination. From one point of view a family where the parents have separated has broken down but, if one parent provides a stable home for the student, that becomes the student's family unit and, from the student's perspective there has not been an extreme family breakdown. In another case the student's family and siblings may continue in a close knit family unit but if the student is excluded from the family home there is, from the student's point of view, an extreme family breakdown and it is not reasonable to expect the student to live in the family home.

36. What place does fault play in such cases? If the student has been excluded through no, or little, fault of his or her own and is prohibited from returning, clearly this would be extreme family breakdown from the student's perspective; particularly as this legislation is designed to facilitate his or her study. What if the need to leave home was the fault, or mainly the fault, of the student? This becomes relevant on the question of whether it would be reasonable for the student to return home. If reasonable adjustment to the student's pattern of behaviour would open the door back into the family home then it cannot be said that it is ‘unreasonable that the student live at the home of his parents because of extreme family breakdown’.

37. If, however, the family breakdown is so extreme, from whatever cause and because of whoever's fault, that no reasonable adjustment of the student's behaviour will mend the family breakdown, then, at that stage, it is unreasonable that the student live at the home of his or her parents because of extreme family breakdown.”

19.     In considering s 1067A(9)(a)(i), the guidelines published by Centrelink are of assistance.  The Tribunal notes that, although it is not bound to apply departmental guidelines, it will usually do so unless there are cogent reasons not to (see Re Drake and Minister for Immigration and Ethnic Affairs (2) (1979) 2 ALD 634). Having regard to the guidelines, any family breakdown must be extreme when considered in the context of the whole family situation. The existence of ongoing conflict with a parent alone is insufficient to constitute an extreme family breakdown under the Act. In looking at “other similar exceptional circumstances”, the guidelines provide examples, including situations where there is criminal activity or substance abuse by the parents, or severe neglect where adequate food, clothing, shelter, hygiene, medical attention and supervision are not being provided, or where extreme and abnormal demands are placed on the young person.

20.     There are a number of inconsistencies in the evidence given by the witnesses in this case.  In their statement made on 13 July 2007, the applicant’s parents said that they could not allow their son to live with them any longer.  He had completely forgotten his culture, wore unusual clothes, had long hair and had friends with the same problems.  In her Social Work Report, Ms Sobhanian said the parents had no problem with the applicant and the way he dressed.  The applicant’s father had seen other young Afghans who had different hairstyles and dress and he had no problem with that because life in Australia was different from Afghanistan.  The parents said their argument with the applicant was about his future and his career.  They did not ask the applicant to leave home and wanted him to return to do something positive and productive for his future.  The applicant had told them that he did not want to live with them any longer and he had left home.  The Tribunal notes that, in her Report, Ms Sobhanian said that Mr Fallo had diagnosed the applicant as suffering from depression.  Whilst he considered that the applicant was not physically at risk due to constant fights and arguments, he was psychologically at risk and that this could have a long-term impact on his life.  Although this was mentioned in the Report, no oral evidence was given by Mr Fallo that supported this diagnosis.  The Social Work Report of Mr Wickins referred to the interview he had with the applicant on 17 October 2007.  The Report noted that the applicant was currently receiving Youth Allowance at the “at home” rate and that the payments had commenced on 12 September 2007.  The applicant’s given address for the payments and for the forwarding of correspondence was his parents’ home address.  The applicant had stated that he did not wish to change his Centrelink contact details from his parents’ home address as he was often in the Salisbury area and it was more convenient to have his mail addressed to him at his parents’ home.  The Report also referred to a telephone contact with the applicant’s brother, Mr Abbas Houssaini.  Mr Houssaini stated that his father sometimes became upset at arguments in the home, but he controlled himself.  There had been no problem with his mother.  When asked if he knew where the applicant was living, Mr Houssaini replied, “he lives with us right now, but most of the time he goes to friends’ places”.

21.     The applicant’s own evidence concerning the relationship with his parents was inconsistent.  He said his parents were always pushing him to study, then said that the parents were not encouraging him to do so.  Instead, they wanted him to work.  The applicant also said that he would return home regularly to collect his mail and to share clothes with his brother.  He went home about once a week and Ghulam would take him there.  However, Ghulam’s evidence was that the applicant would not go to his parents’ home regularly to collect his mail.  Instead, the applicant’s brother would bring it to him.  Finally, there is the applicant’s evidence about the violent incident involving his parents that took place in around June 2005.  He said that, to him, it seemed like the incident had only taken place a year ago, in 2006.  On this point, the Tribunal observes that the applicant had been living at his parents’ home for approximately two years since the incident and there was no evidence of any other violence at the parents’ home in that two year period.  It appears from Mr Wickins’ Report that the applicant had admitted that the incident had been a “one-off event” in the six years since the applicant and his parents had come to Australia.

22.     On the evidence, the Tribunal acknowledges that there has been a breakdown in the family relationship in this case, particularly with regard to the relationship between the applicant and his father.  The applicant has stated that he had to leave home because of ongoing conflicts with his father over his study and other cultural issues.  Notwithstanding these factors, the Tribunal is not satisfied that the breakdown constitutes an “extreme family breakdown”.  The applicant has argued that his father chasing him with a knife and threatening to kill him would constitute an extreme family breakdown.  The Tribunal again observes that the incident took place over two years ago and there had been no evidence of anything like it happening again.  As to whether there were “other similar exceptional circumstances”, such as those exampled in the Centrelink guidelines, there was no evidence that such circumstances existed.  The Tribunal is also of the view that the applicant was not prevented from living with his parents because of a serious risk to his physical or mental well-being due to violence, sexual abuse or other similar unreasonable circumstances.  As already stated, the Tribunal accepts that the applicant was involved in a violent incident with his father on one occasion, but is of the view that this was an isolated incident and that there is no ongoing risk of violence to the applicant.  To complete its consideration of s 1067A(9)(a), the Tribunal is satisfied that there is nothing to suggest that the applicant’s parents are unable to provide him with a suitable home owing to a lack of stable accommodation.

23.     Based on the above considerations, the Tribunal is satisfied that the requirements of s 1067A(9)(a) have not been met and that the applicant has not been able to demonstrate that he is entitled to Youth Allowance at the “unreasonable to live at home” rate.  In reaching its decision, the Tribunal is also conscious of the thinking of Mr Fallo that, as an alternative to leaving home, some counselling or family therapy would be helpful in assisting both the applicant and his parents.

decision

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         .....................................................................................
  Associate

Date of Hearing  29 November 2007
Date of Decision  7 March 2008
Advocate for the Applicant       In person

Advocate for the Respondent   Mr P Edwards

Centrelink Legal Services Branch