Jaroslav Fiala and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 369

[2013] AATA  369

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4518
Re	Jaroslav Fiala
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham, Senior Member
Date	3 June 2013
Place	Hobart

Decision Summary

The decision under review is affirmed.

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Ms A F Cunningham, Senior Member

CATCHWORDS

Social Security - age pension - overseas applicant - not permanent resident at time of lodgement of claim - overpayments - debt raised - applicant knowingly made false statements - no waiver of debt - decision under review affirmed

LEGISLATION

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security (International Agreements) Act 1999

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

1. On 23 August 2012 the Social Security Appeals Tribunal (SSAT) affirmed a decision of a Centrelink Authorised Review Officer to cancel the applicant, Jaroslav Fiala's age pension from 21 August 2008 and that the resultant debt in the sum of $44,169.73 was a debt recoverable by the Commonwealth. The SSAT further decided that Mr Fiala was not eligible for age pension for the period from 26 May 2011 to 31 August 2011 but found that the right to recover the resultant debt in the sum of $5771.45 should be waived under section 1237 AAD of the Social Security Act 1991 (the Act).

2. Mr Fiala appeals against the SSAT's decision that the debt in the sum of $44,169.73 arising from the cancellation of his age pension submitted on 21 August 2008 should not also be waived under section 1237 AAD of the Act.

3. Mr Fiala resides in the Czech Republic and gave evidence by telephone link. He was represented by Mr Henry Pill. The Secretary was represented by Mr Brian Sparkes. Mr Pill informed the Tribunal that Mr Fiala did not appeal the decision under review that found he was not eligible for age pension on the basis that he was not an Australian resident, but appealed the SSAT’s finding that the resultant debt was recoverable. Mr Sparkes advised that the respondent did not seek to appeal the SSAT’s finding that the debt in the sum of $5771.45 should be waived but submitted that the applicant’s circumstances do not justify waiver of the debt of $44,169.73, arising from cancellation of age pension pursuant to his claim made on 21 August 2008.

4. There was no argument regarding the calculation of the debt of $44,169.73 which comprised overpayments of age pension from the date of Mr Fiala's departure from Australia on 29 August 2008 and the cancellation of his age pension on 29 March 2011. The Tribunal is satisfied that this amount represents benefits paid to Mr Fiala to which he was not entitled and is a debt owing to the Commonwealth in accordance with section 1223 of the Act.

   ISSUES

5. The sole issue for the Tribunal to determine is whether the debt raised in the sum of $44,169.73 should be waived pursuant to the provisions of section 1237 AAD of the Act.

   LEGISLATION

6. The relevant law is contained in the Social Security (Administration) Act 1999 (Administration Act) and the Social Security Act 1991 (the Act).

7. It is conceded that Mr Fiala meets the qualification requirements for age pension as set out in section 43 of the Act in that he has 10 year’s qualifying Australian residence and meets the age requirements.

8. There was no Social Security Agreement under the Social Security (InternationalAgreements) Act 1999 with the country in which Mr Fiala resided when he left Australia in 2008.

9. It is accepted that Mr Fiala was not an Australian resident when he claimed age pension on 21 August 2008 and accordingly pursuant to subsection 29 (2) of the Administration Act his claim is taken not to have been made and subsequently deemed to be no claim at all.

10. It is further conceded that Mr Fiala was paid age pension totalling $44,169.73 between 21 August 2008 and 28 March 2011 to which he was not entitled. Section 1223 of the Act states that the amount of the payment is a debt due to the Commonwealth by the person who received the benefit.

11. Mr Fiala relies on the provisions of section 1237 AAD of the Act which provide:

    “Waiver in special circumstances

    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 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, the Administration Act or 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”

    CONSIDERATION

12. It was not contended and the Tribunal accepts that as the debt did not arise from administrative error made by the Commonwealth, the waiver provisions of section 1237A are not applicable. Nor was it is submitted and on the basis of the evidence, the Tribunal does not consider that the debt should be written off pursuant to the provisions of section 1236. In this regard the Tribunal accepts the reasoning of the SSAT as outlined in paragraphs 39 - 42 of its decision.

13. The evidence presented at the hearing before the AAT was, that in October 2012, Mr Fiala lodged a claim for age pension in accordance with that International Agreement which now exists between Australia and the Czech Republic. It was Mr Fiala's evidence that he has now supplied the information requested by Centrelink in order to process his claim. Once processed, Mr Fiala could be entitled to a lump sum payment to cover the period from the date of his claim made in October 2012.

14. It was submitted by Mr Sparkes that Mr Fiala's circumstances do not satisfy the provisions of section 1237 AAD in that the evidence does not support a finding in accordance with subparagraph (a) (i) and nor are there special circumstances that would make it desirable to waive the debt.

15. The hearing of the appeal before the AAT was originally convened on 25 March 2013. At the conclusion of the hearing on that date Mr Pill sought an adjournment in order to obtain a transcript of the proceedings and consider whether Mr Fiala should be recalled to give evidence with the assistance of an interpreter. The hearing was reconvened on 20 May 2013 and Mr Fiala was given leave to give further evidence with the assistance of an interpreter in the Czech language. Mr Pill advised that he wished to call further evidence from Mr Fiala to establish his state of mind in order to assist the Tribunal to determine whether Mr Fiala knowingly made false statements or false representations with respect to his claim for age pension as these considerations arise pursuant to section 1237 AAD of the Act.

16. In his Claim for Age Pension and Pension Bonus completed on 21 August 2008, Mr Fiala provided his permanent address as "19 Lambertia Street Greenwood postcode 6024" and his postal address as "PO Box 492 South Perth WA postcode 6951". At question 38 he was asked whether he lived permanently in Australia to which he answered “yes”. At question 39 he was asked to list all countries including Australia that he had lived in since birth and provided the following information “Czechoslovakia from 17/11/41 to /09/80; West Germany /09/80 to 01/07/81; South Africa /07/05 to /09/06; Czech Republic /10/06 to /08/08; Australia".

17. It was Mr Fiala’s evidence that he applied for age pension in 2008 because he was an Australian citizen and believed that after 10 years he would be entitled to an Australian age pension. He said that at the time he was not a permanent resident of any country. The evidence was that Mr Fiala had acquired over 23 years of Australian working life residence between July 1981 and December 2004 much of which time he spent working as a mine engineer in Western Australia and the Northern Territory. In 1982 he was granted Australian citizenship.

18. When asked under cross-examination whether the address he provided in his claim form in 2008 at 19 Lambertia Street Greenwood was in fact his permanent address, he replied that this was the address of his friend in Western Australia which was his only point of contact in Australia and where he kept some of his belongings. The postal address provided was that of his accountant and where he had his mail directed. The phone number provided in the form also was that of his accountant.

19. Mr Fiala agreed that in 2008 he was in Australia for a period of only nine days and that the purpose of his visit was "to get a pension". It was his recollection that he had travelled from South Africa and returned to South Africa at the end of the nine days. When it was pointed out that to Mr Fiala that his claim form indicated that he was living in the Czech Republic between October 2006 and August 2008 he said that he may have returned to Rwanda from where he travelled to the Czech Republic. The claim form indicates that he was living in South Africa between July 2005 and September 2006.

20. It is clear on the evidence and as conceded by Mr Fiala, the sole purpose of his visit to Australia for nine days in August 2008 was to claim an Australian age pension. It would appear that Mr Fiala had no intention of remaining in Australia for any longer period of time than it took to make his claim. It was his evidence that he returned to the Czech Republic where he has been residing for the past few years.

21. Mr Fiala next returned to Australia on 10 January 2011 and contacted Centrelink on 11 January 2011 seeking a Pensioner Concession Card. On 14 January 2011 Mr Fiala advised Centrelink that he was departing Australia the next day and returning to the Czech Republic. The immigration records confirm that Mr Fiala departed Australia on 15 January 2011. Mr Fiala's age pension was suspended on 29 March 2011 on the basis that he had left Australia within two years of his most recent return.

22. Mr Fiala next returned to Australia on 26 May 2011 and contacted Centrelink on 27 May 2011 about his age pension. He informed Centrelink that it was his intention to reside in Australia and he had no definite plans to depart again.  Although he made no claim for age pension, Centrelink resumed payment from 26 May 2011. The information contained in Centrelink records indicates that Mr Fiala did not intend to remain in Australia and that the sole purpose of his return visit was to secure an Australian age pension.

23. It is clear from the evidence that Mr Fiala was aware that in order to claim an Australian age pension he needed to be present in Australia and that was the sole purpose of his return visit in August 2008. There is a Centrelink record of a customer enquiry on 12 January 2007 noting that it had been explained that the customer was not able to claim that Australian age pension whilst living in the Czech Republic and that he was then working and living in South Africa. The subsequent notes confirm Mr Fiala's claim for age pension lodged on 21 August 2008. On 1 September 2008 there is a note regarding a portability enquiry and the fact that the customer had arrived back in the country on 20 August 2008 and that if he left the country within the next two years his payment would be cancelled immediately.

24. The Tribunal finds that Mr Fiala was also aware that he needed to establish residence in Australia in order to claim and maintain his pension.  This was the basis upon which his pension entitlement had been previously cancelled.

25. There is no evidence to support a finding that Mr Fiala had established permanent residence in Australia and clearly not in August 2008, being the period which is the subject of this appeal.  The evidence was that Mr Fiala departed Australia on 29 August 2008 and failed to advise Centrelink. His age pension was cancelled on 29 March 2011 on the basis that he had departed Australia within two years and the debt was raised in respect of payments made from 29 August 2008.

    FINDINGS

26. Mr Fiala made a number of applications for Australian age pension. He considered that as an Australian citizen who had acquired over 23 years of working life residence in Australia, he was entitled to be paid an Australian age pension. As there was no International Agreement between Australia and the Czech Republic at the time of lodgement of Mr Fiala's claim for age pension on 21 August 2008, eligibility and payment of age pension is governed by the provisions of the Social Security Act and the other related legislation referred to above.

27. The Tribunal considers that the evidence as outlined above, supports a finding that Mr Fiala was aware that in order to make a valid claim for Australian age pension he needed to satisfy the residence requirements of the Act. Although Mr Fiala was an Australian citizen at the relevant time he was not a resident. The Tribunal finds that Mr Fiala knowingly misrepresented to Centrelink that he was a permanent resident and falsely provided the address of a friend as his address.

28. It was Mr Fiala’s evidence that he did not have his own residential address in Australia and that he was using his friend’s address  to store some of his belongings and that he used his accountant’s post office box for his mail. The Tribunal does not doubt this evidence but finds that Mr Fiala was well aware of the fact that in order to be entitled to an Australian age pension he needed to be a permanent resident of Australia. Mr Fiala falsely misrepresented that on 21 August 2008 he was living permanently in Australia when it was his intention to return to the Czech Republic within a few days. The evidence was that Mr Fiala has had no permanent accommodation in Australia since at least 2004 and only returned to Australia for short periods in the years between 2004 and 2008.

29. As the Tribunal has found that Mr Fiala knowingly made false statements and/or false representations for the purpose of satisfying the residence requirements for Australian age pension, there is no basis upon which the debt could be waived pursuant to the provisions of section 1237 AAD of the Act. The decision under review is accordingly affirmed.

I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of

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Administrative Assistant

Dated

Date(s) of hearing	25 March 2013, 20 May 2013
Solicitors for the Applicant	Mr Henry Pill, Hobart Community Legal Centre
Solicitors for the Respondent	Mr Brian Sparkes, Program Litigation and Review Branch