Jaafar and Department of Family and Community Services
[2000] AATA 1031
•24 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/724
GENERAL ADMINISTRATIVE DIVISION )
Re RAAFAT JAAFAR
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr JD Campbell, Member
Date24 November 2000
PlaceSydney
Decision The Tribunal determines that the decision of the SSAT be set aside and substitutes that the right to recover the whole of the debt is waived and no administrative breach rate reduction period applies to the Applicant.
[Sgd] Dr J Campbell
Member
CATCHWORDS:
Social Security – newstart allowance – overseas travel – whether failure to notify – no direct evidence – whether debt exists – waiver provisions – administrative breach rate reduction period
Social Security Act 1991
R v Glennan [1970] 2 NSWR 421
Secretary, Department of Social Security v Danielson (1996) 44 ALD 19
REASONS FOR DECISION
This is an application by Raafat Jaafar ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 6 April 2000. The SSAT affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 17 February 2000, and the decision of an authorised review officer dated 29 February 2000, to raise and recover an overpayment of newstart allowance to the Applicant in the sum of $1496.25 and to impose an administrative breach rate reduction period of 13 weeks at 16 per cent. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 11 May 2000.
The Tribunal hearing was held in Sydney on 7 November 2000. The Applicant was self-represented and assisted by an interpreter in the Arabic language. The Respondent was represented by Cheryl Collis, an advocate from the administrative law section of Centrelink.
The Applicant provided oral evidence. The following written material was also placed into evidence before the Tribunal:
Material prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T29, pp 1-75
Respondent's statement of facts and contentions dated 2 November 2000 Exhibit R1
Centrelink computer printout of 'Earned Income Details' screen (two pages) dated 2 November 2000 Exhibit R2
Centrelink computer printout of 'General Information' screen dated 1 November 2000 Exhibit R3
Centrelink computer printout of 'Medical Conditions & Rehabilitation Summary' screen dated 3 November 2000 Exhibit R4
background
The Applicant was in receipt of newstart allowance with an exemption from the activity test as he was temporarily unfit for work due to depression and anxiety. On 19 November 1999 a medical certificate was provided to Centrelink with regard to the period 19 November 1999 to 2 February 2000. On 24 November 1999 the Applicant departed Australia for Lebanon, allegedly due to his mother's illness. During his absence overseas, the Applicant continued to receive newstart allowance. He returned to Australia on 21 January 2000. On 2 February 2000, the Applicant submitted a further medical certificate covering the period 2 February to 2 April 2000.
On 9 February 2000 a letter was sent to the Applicant requesting that he contact Centrelink to discuss a data match with the Department of Immigration and Multicultural Affairs dated 6 December 1999, which had revealed to Centrelink that the Applicant departed Australia on 24 November 1999. On 16 February 2000 the Applicant contacted the department and the following file note was made:
"Cust [customer] called 16/2/00, he was unsure of dor [date of return]. Advised him to take p/port [passort] to csc [customer service centre] by 18/2/00 or payments will be suspended. Customer spoke English till asked if he advised dept of travel. Brother got on phone advised p/port to csc. Went o/s [overseas] as mother ill."
The Applicant subsequently provided his passport to Centrelink and as a result, a debt was incurred and an administrative breach rate reduction period imposed, reducing the Applicant's newstart allowance by 16 per cent for 13 weeks ending on 16 May 2000.
The Applicant alleges that on 23 November 2000 he informed Centrelink of his intended travel. He therefore requested a review of the decision to raise a debt and impose an administrative breach rate reduction period. The decision was subsequently affirmed by an authorised review officer and the SSAT, who found no evidence of any communication with Centrelink on 23 November 1999. The decision of the SSAT provided that:
"…In addition to the fact that there are no corroborative Centrelink records, the tribunal considers that Mr Jaafar's evidence concerning the alleged notification is vague and uncertain. (The advice allegedly given to Mr Jaafar by the Centrelink telephone operator is in the tribunal's opinion implausible. The tribunal is unable to relate the alleged advice to any provision or mechanism within the Act…".
issues
The Applicant does not dispute that he was overseas from the period 24 November 1999 to 21 January 2000. Further, the Applicant does not dispute that he received and understood notification of his obligation to inform the Respondent if he planned to travel overseas. The remaining issues before the Tribunal are as follows:
a)whether the Applicant failed to notify Centrelink of his departure to Lebanon; and
b)whether the Applicant ceased to be entitled to newstart allowance when he left Australia on 24 November 1999; and
c)whether the newstart allowance paid to the Applicant during his overseas absence is a debt due to the Commonwealth; and
d)whether there are any grounds for waiver of the debt in whole or in part; and
e)whether the Applicant's actions attract the imposition of an administrative breach rate reduction period.
legislation
The legislation used to make the reviewable decision was the Social Security Act 1991 ("the Act") and in particular sections 593, 631, 644B, 644H, 657, 1224, 1237A and 1237AAD which provide as relevant:
"593 (1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
…
(g) throughout the period the person:(i) …
(ii) is an Australian resident; and
(iii) subject to subsection (1A), is in Australia; and…
593(1A) For the purposes of subparagraph (1)(g)(iii), if:
(a) a person is, under subdivision BA, not required to satisfy the activity test; and
(b) the person is temporarily absent from Australia; and
(c) the person is absent in order to seek medical treatment of a kind that is not available in Australia;
the person is taken to be in Australia……
631 If a person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 656, 657, 658 or 1304:
(a) a newstart allowance is not payable to the person; and
(b) if, at a later time, a newstart allowance becomes payable to the person – an administrative breach rate reduction period applies to the person.…
1224(1) If:
(a) an amount has been paid to a recipient by way of social security payment; and
(b) the amount was paid because the recipient or another person:
(i) made a false statement of a false representation; or(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due to the Commonwealth.
…
1237A Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable soley 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.
…
1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:(a) the debt did not knowingly result wholly or partly from the debtor or another person knowingly:
(I) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt. "
applicant's oral evidence and submissions
The Applicant stated that he was born on 14 July 1960. He undertook his schooling in Lebanon and left at the age of 14 or 15, having completed the seventh grade. He then worked in the family business, selling furniture. He married in 1986. He came to Australia approximately 13 years ago and had difficulty finding employment, which he felt was largely due to the language barrier. Since arriving he has done intermittent labour work but 'nothing serious', amounting to one or two days per month. He last worked in 1998. In September 1998 the Applicant became divorced and his ex-wife has now returned to Lebanon. The Applicant stated that she 'took the kids and ran away' about three and a half months ago, showing the Tribunal court orders in relation to his attempts to regain custody of his children. The Applicant now lives alone in a housing commission property in Bankstown.
The Applicant stated that his mother suffers from a heart condition, for which she had an operation in 1998. In late 1999, she called the family and told them that she was ill. Consequently, the Applicant and his sister went to Lebanon on 24 November 1999 and stayed for approximately six weeks. While in Lebanon, the Applicant cared for his mother, but was not otherwise very active.
The Applicant did not dispute that prior to going overseas he had been told that he needed to inform Centrelink if he left the country, stating, 'Yes, this is written on all forms'. The Applicant contends that on 23 November 1999 he telephoned Centrelink and spoke to a female member of staff in the Arabic language. He stated that he told her his name, address and that he wanted to urgently go to Lebanon because his mother was very sick. He told the Tribunal that he was then informed that his payments would cease because he would not be looking for work while overseas, to which he replied that he had not been looking for work in the past due to illness, a situation which Centrelink was aware of as the Applicant provided medical certificates every three months. The Applicant advised the Tribunal that after informing the Centrelink staff member of this, she stated that in these circumstances he would be paid while overseas. The Applicant's sister then lent him some money and insisted that he go to Lebanon with her, and the next day they departed.
The Applicant told the Tribunal that on his return to Australia, he attended an appointment at the Liverpool office of Centrelink. He stated that he had an argument with a departmental officer who asked why he went overseas. When the Applicant replied that he went to Lebanon because his mother was sick, the officer said that that was the same reason used in the previous year, and he would be penalised for 13 weeks at 16 per cent. The Applicant stated that he wanted to speak to the 'person in charge' but was told that this person was not there.
In cross examination, the Applicant stated that his English is 'medium' and he needs to use interpreters when dealing with government departments. Ms Collis for the Respondent asked the Applicant why he did not use an interpreter for the alleged telephone conversation with a Centrelink officer on 23 November 1999. The Applicant stated that the officer could speak Arabic, so there was no need to request an interpreter as there could be no misunderstanding between them. He did not recall the name of the officer he spoke to. Ms Collis could not confirm that the Applicant spoke to an Arabic speaking officer, and indeed the Respondent disputes that he spoke to any officer at all on this date, but she stated that it could be feasible that an Arabic speaking person would be employed by Centrelink.
Ms Collis stated that Centrelink has no record of the alleged conversation between the Applicant and a Centrelink officer on 23 November 1999, which indicates that no-one accessed his computer records on that date by the use of his Centrelink reference number. The Applicant stated that he was not asked for this number and recounted the conversation with the officer as detailed above. The Applicant refuted the suggestion that the conversation did not take place. He stated that he was also told that there would be no pharmaceutical allowance paid to him while he was overseas, which would reduce his payment by a small amount. The Applicant stated that while he was overseas, he had a friend withdraw his payments and send them to him. He did not notice that there was in fact no reduction of pharmaceutical allowance, because he knew that this would only be a few dollars and would make little difference to him.
Ms Collis referred the Tribunal to the Centrelink file note at T24, as quoted above. Ms Collis asked the Applicant whether he remembered making a phone call to Centrelink on 16 February 2000. He stated that he didn't remember the exact date, but that he did speak to Centrelink on the telephone around that time. The Applicant told the Tribunal that he did speak in English for this phone call and that the details on the file note were correct. However, he does not have a brother living in Australia, and instead a female friend assisted him with making this call. The Applicant photocopied his passport and took it to a Centrelink office, who forwarded it to 'Graham' at Liverpool. The next day he attended his appointment with Graham and an interpreter was present.
In reference to his 1998 trip, the Applicant stated that he spoke to the Respondent before he left Australia, and did the same before a trip in 1995. Ms Collis confirmed that payments were correctly cancelled while the Applicant was overseas in September 1998, but had not sought out information with regard to 1995. When asked why, after his previous experiences, he did not find it unusual that he was paid in 1999, the Applicant stated that the Respondent helped him with providing the correct information to them and he believed from the information provided to him by the Centrelink officer that his situation was different to that of 1998, because he now did not have to look for work due to illness.
With regard to his health, the Applicant stated that he saw a doctor on two occasions in Lebanon for a 'nervous breakdown' and psychological problems he experienced in relation to his family situation and his 'loneliness'. He agreed with the contention of Ms Collis that this condition was of a temporary nature. The Applicant also agreed that he suffers from no other medical conditions.
The Applicant stated that his financial situation is difficult. He did not dispute that he currently receives an amount $356.40 per fortnight from Centrelink, from which there are currently some deductions in relation to his debt. He stated that he pays $80.40 per fortnight in rent and has outstanding bills including arrears of rent, amounts owing from his trip to Lebanon, and furniture bought on credit. The Applicant has a mobile phone for which there is no amount owing as he purchases pre-paid cards, and primarily uses it to receive calls. The Applicant has friends and some family in Australia, who he said were always willing to help him.
respondent's submissions
Ms Collis for the Respondent contended that it is clear the Applicant was absent from Australia during the relevant period and was not seeking medical treatment of a kind not available in Australia pursuant to section 593(1A) of the Act . Therefore, he was not entitled to receive newstart allowance under section 593(1) of the Act.
Ms Collis submitted that the Applicant was notified of the requirement to advise Centrelink if he departed Australia. Further, Ms Collis contended that, despite such notification, the Applicant did not inform Centrelink of his departure overseas. Consequently, Ms Collis submitted that the Applicant has a debt under section 1224 of the Act. Further, there is no basis on which to waive the debt under section 1237A of the Act as there was no administrative error on the part of Centrelink and the sole cause of the debt was the Applicant's failure to either make the telephone to Centrelink or to identify himself successfully and communicate that he was about to go overseas. In addition, Ms Collis submitted that that the payments were not received in good faith. Nor is there any basis on which to waive the debt under section 1237AAD, as the Applicant knowingly failed or omitted to comply with a provision of the Act and in any event there are no special circumstances which would warrant the exercise of the Secretary's discretion. Ms Collis cited R v Glennan [1970] 2 NSWR 421 which provided:
"…the circumstances of a given case may be such as to reveal not merely a failure to make inquiry, but a failure to make an enquiry which is of such a kind as to suggest that the defendant has deliberately abstained from acquiring knowledge because he suspected the existence of a fact which would have been ascertained on inquiry, or that the defendant has acted recklessly in the sense that he did not care whether the facts existed or not…"
With regard to the administrative breach rate reduction period Ms Collis contended that the Applicant's failure to notify of his intended departure constituted a failure to comply with a provision of the Act, without reasonable excuse, resulting in the imposition of the rate reduction period at the rate of 16 per cent of his maximum rate of newstart allowance. In her statement of facts and contentions, Ms Collis stated:
"…The Respondent submits, that the requirement to notify of the applicant's intended departure overseas was reasonable in respect of his prior knowledge of the notification provisions (evidenced by his notification of an earlier departure overseas). There is no evidence of anything which would have prevented the applicant from notifying in November 1999. Given his considerable language difficulties, it would appear that an alleged attempted notification by telephone, without the assistance of a telephone interpreting service, was not a reasonable approach for the applicant to take." (Exhibit R1)
The Respondent submitted that this matter primarily turns on the issue of credibility of the witness and again contended that the Applicant knowingly failed to notify the Department of his impending departure to Lebanon. Ms Collis stated that if the Tribunal also finds that the Applicant did not notify, then the overpayment and breach must stand.
consideration and findings
It is clear to the Tribunal that, pursuant to sections 593 and 593(1A), a person is not qualified for newstart allowance if they are not in Australia, unless they are absent in order to seek medical treatment of a kind that is not available in Australia. The Applicant does not dispute that he was overseas for the period 24 November 1999 to 21 January 2000 and received newstart allowance during that period, nor does he seek to claim that the purpose of his travels was for his own medical treatment. Therefore, the Applicant was not qualified for newstart allowance for the period 24 November 1999 to 21 January 2000.
In establishing whether a debt exists for this period, the Tribunal must first establish the primary factual issue in this matter. That is, did the Applicant notify Centrelink on 23 November 1999 of his intention to depart Australia the following day? The Tribunal now turns to consider this issue.
As stated above, the Applicant does not dispute the contention that he received and understood notices requiring him to inform Centrelink if he was to depart Australia. On his oral evidence and upon examination of the notices sent to the Applicant, the Tribunal is satisfied that he was in fact notified of his obligations and that the notices were valid and in compliance with the relevant provisions of section 657 of the Act.
The Applicant's oral evidence is that on 23 November 2000 he did notify the Respondent of his intention to travel. However, in contradiction to this, there is no direct evidence of the Applicant making contact with the Respondent on this date. A customer record access monitor report at T29 shows that the Applicant attended a Centrelink office on 19 November 1999 and lodged a medical certificate covering the period 19 November 1999 to 2 February 2000. He also made an application for an advance payment. There is no recorded contact with Centrelink after that date, until the Applicant returned from overseas.
The Tribunal found the Applicant to be an honest witness, and accepts his evidence that the purpose of his trip was an urgent need to be with his mother who was seriously ill. There was no history of dishonesty disclosed to the Tribunal in any of the Applicant's dealings with the Respondent in the past. The Applicant willingly informed the Tribunal that he knew he had to notify Centrelink of his travels because this was stated on all letters received by him. The Tribunal found no inconsistencies in the material before it, or in the oral evidence provided by the Applicant.
Further, the Tribunal finds relevance in the Applicant's previous pattern of behaviour. In 1998, he notified Centrelink of his travel plans and had his payments cancelled for the duration of his trip, and again acted honestly in his dealings with the Respondent. The Applicant stated that this was also the case in 1995, although this was unconfirmed by the Respondent. The Applicant told the Tribunal that, due to previous cancellations of entitlement whilst overseas, he was aware that he may not be paid newstart allowance when he phoned to inform Centrelink of his imminent departure. However, the Tribunal is satisfied that he did have a reasonable expectation that on this occasion his entitlements may differ from those previous, due to the fact that he was currently exempt from looking for work due to illness.
The Tribunal notes that the SSAT accepted the Applicant's evidence that his decision to travel was made on 22 November 2000, which explains why he made no mention of his plans when he attended a Centrelink office on 19 November 1999. However, the SSAT found that the Applicant's evidence with regard to notification of his travel was 'vague and uncertain'. The SSAT decision stated that the advice allegedly given to the Applicant by a Centrelink officer on 23 November 1999 was implausible, and that:
"…Given Mr Jaafar's language difficulties, the importance of him ensuring the continuing payment of newstart allowance (without which, on his evidence, his trip could not take place) and his previous experience of newstart allowance being cancelled in such circumstances, it is difficult to accept that Mr Jaafar would have chosen a telephone communication."
It was apparent to the Tribunal that the Applicant's English skills are limited, however, the Tribunal does not find it difficult to accept that the Applicant would make telephone contact with Centrelink, given his ability to speak some English and his knowledge of the availability of telephone interpreters. Nor does it find that the alleged advice provided to the Applicant was implausible, given the complexity of the Social Security legislation, and the fact that the Applicant's computer records were not accessed to ascertain relevant information. In addition, the Tribunal is aware that Centrelink does employ people of non-English speaking backgrounds who sometimes provide interpreting assistance to customers. Ms Collis for the Respondent conceded that in relation to the alleged conversation on 23 November 1999, it was a possibility that the Applicant spoke with a Centrelink officer in the Arabic language. The Tribunal cannot concur with the findings of the SSAT.
The Tribunal is satisfied that, despite the absence of a contemporaneous entry in the Respondent's records, it can be inferred from the surrounding facts that the Applicant did in fact notify the Respondent on 23 November 1999 of his intention to travel overseas. The surrounding facts include the Applicant's previous honest conduct in his dealings with the Respondent, his knowledge of the need to notify of overseas travel, previous notification of travel, a lack of inconsistencies in the evidence before the Tribunal, the urgent nature of the Applicant's reason for travel as an explanation for the lateness of his notification, and his reasonable expectation that entitlements may differ to those on previous occasions due to an exemption from the activity test. The Tribunal notes the reasons for decision of Cooper J in Secretary, Department of Social Security v Danielson (1996) 44 ALD 19 which provide, as relevant:
"…that there is no direct evidence of a fact does not necessarily mean that there is no evidence of a fact. Courts and tribunals are frequently asked to infer the existence of a particular facts from the existence of a series or number of other facts which, taken together, suggest that the existence of the particular fact in question is more probable than not…"
Having so found, the Tribunal turns to consider the issue of whether a debt of newstart allowance exists. Without a failure or omission to comply with a provision of the Act, there can be no debt under section 1224(1). However, the Tribunal notes subsection 1223(1) of the Act which provides:
"1223(1) Subject to subsection (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:
(a) the recipient was not qualified for the social security payment when it was granted; or
(b) the amount was not payable to the recipient;
the amount so paid is a debt due to the Commonwealth."
The Tribunal finds that a debt exists under section 1223(1), despite the Applicant's notification to the Respondent. That is because the Applicant received newstart allowance when in fact it was not payable, because he was not entitled to the payment while he was absent overseas.
The Tribunal must now consider whether there are any grounds for waiver of the debt. The Applicant does not claim any special circumstances which would warrant the exercise of the section 1237AAD discretion to waive the right to recover the debt. However, the Tribunal finds that the Applicant satisfies the provisions of section 1237A of the Act in that failure to cancel the Applicant's newstart allowance payments after notification of his intention to depart Australia was the sole factor contributing to the overpayment and represents sole administrative error on the part of the Respondent, in relation to the whole of the debt. In addition, the Tribunal finds that the Applicant received the payments in good faith. He had notified the Respondent that he was leaving Australia, his payments were not cancelled, and he had a reasonable expectation that his situation was different to that experienced during previous travels due to his illness and subsequent exemption from the requirement to look for work.
Further, as the Tribunal has found that the Applicant did not fail to comply with the requirement to notify the Respondent of his departure overseas, it follows that no administrative breach rate reduction period ought to be imposed on the Applicant in accordance with section 631 of the Act.
determination
The Tribunal determines that the decision of the SSAT be set aside and substitutes that the right to recover the whole of the debt is waived and no administrative breach rate reduction period applies to the Applicant.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell.
Signed: .....................................................................................
AssociateDate of Hearing 7 November 2000
Date of Decision 24 November 2000
Representative for the Applicant self-representedRepresentative for the Respondent Cheryl Collis
0
1
0