Jorj; Secretary, Department of Families, Community Services and Indigenous Affairs and

[2007] AATA 1579

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1579

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200600549

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And MIDO JORJ

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD

Date24 July 2007

PlaceBrisbane

Decision

The Tribunal decides to:

1.        Set aside the decision of the Social Security Appeals Tribunal made on 29 June 2006 and substitute a decision that Mr Mido Jorj owes a recoverable debt to the Commonwealth in the sum of $7,486.81 in relation to the period 2 July 2004 to 27 January 2005 less the amount of any repayments which have been made by Mr Jorj;

2         Remit the matter to the Secretary to calculate the actual amount of the recoverable debt.

.................[Sgd].............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – recovery of special benefit debt – applicant did not disclose earnings – cancellation of special benefit by force of s 94 of the Social Security (Administration) Act 1999 – whether applicant was qualified to receive the payment of special benefit – decision set aside

Social Security (Administration) Act 1999 (Cth) ss 68, 94
Social Security Act 1991 (Cth) ss 729, 1223, 1237A, 1237AAD

REASONS FOR DECISION

24 July 2007    Senior Member P McDermott, RFD

Introduction

1.      I have to decide whether Centrelink is entitled to recover a special benefit debt from Mr Mido Jorj.

History of the Matter

2.      Mr Jorj was granted special benefit with effect from 26 July 2000. At that time Mr Jorj was the holder of a temporary protection visa.

3.      On 1 May 2003 Mr Mohammad Alrikabi (which is the previous name of Mr Jorj) was registered as a sole trader in the Australian Business Register under the trading name Googee Contracting and Googee Delivery [T 35, folio 361].

4.      From July 2000 to January 2006 Mr Jorj received special benefit payments.

5. In various notices that were issued under s 68 of the Social Security (Administration) Act 1999, Mr Jorj was advised of his obligation to disclose to Centrelink any change in his circumstances including whether he started paid work in any form of profession, trade, business or self-employment. He was also advised that he had to disclose whether he started to receive or stopped receiving income or if his income changed. The notices required Mr Jorj to make appropriate disclosure to Centrelink within 14 days of any change in his circumstances [see, eg, ST3 (9 September 2003); ST5 (26 September 2003); ST6 (2 October 2003)].

6.      Mr Jorj did not advise Centrelink of the fact that he registered himself as a sole trader in the Australian Business Register. He also did not advise Centrelink of the income that he derived from his business in the 2004/2005 income tax year.

Issues before the Tribunal

7.      The Social Security Appeals Tribunal found that Mr Jorj owed the Commonwealth the sum of $1,661.49 as a recoverable debt for the period 2 July 2004 to 12 August 2004. This finding is accepted by the Secretary and Mr Jorj.

8.      What is not accepted by the Secretary is the finding of the Social Security Appeals Tribunal that special benefit became payable to Mr Jorj after he ceased self-employment in August 2004.

9.      The Secretary accordingly contended that Mr Jorj was not entitled to receive the special benefit payments that he received between 13 August 2004 and 27 January 2005. The Secretary also contends that these payments are a debt to the Commonwealth which should be recovered.

Consideration

10.     At the outset I mention that Mr Jorj gave oral evidence before the Social Security Appeals Tribunal. However, he elected not to give evidence before me. I mention that in the absence of testimony from Mr Jorj I would not be prepared to make a finding that he ceased self-employment in August 2004.

11.     I have determined this application on the basis of the documentary material which has been admitted before me.

12. It was common ground at the hearing that the entitlement of Mr Jorj to receive special benefit was cancelled by the operation of s 94 of the Social Security (Administration) Act 1999 with effect from 2 July 2004 when Mr Jorj commenced his self-employment.

13.     Mr Jorj received gross earnings of about $14,546 in or about July and August 2004. Mr Jorj, under the name Googee Contracting, submitted an invoice to Tabletop Grapes on 23 July 2004 for $6,027.50. On 10 August 2004 under the name Googee Contracting he submitted another invoice for $8,002.50. Mr Jorj also advised the Social Security Appeals Tribunal that he did not advise Centrelink of his work for Tabletop Grapes.

14.     I mention that there is an unexplained discrepancy in the amount of earnings stated in Mr Jorj’s tax return and the total invoice figure. The amount of the discrepancy of about $518 is not material for the purposes of my decision. What is material for the purposes of my decision is that Mr Jorj received substantial earnings for work performed in July 2004 and August 2004.

15.      Despite the fact that the entitlement of Mr Jorj to receive payments of special benefit was cancelled by operation of law, the special benefit payments would continue to be made until a delegate made a decision to stop the payments.

16.     What is in issue before me is whether Mr Jorj was entitled to the resumption of payments of special benefit when he said that he ceased his self-employment on 10 August 2004. 

17.     I have come to the conclusion that Mr Jorj was not qualified to receive special benefit after 10 August 2004.

18.     The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period only if 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: see Social Security Act 1991, s 729(2)(e).

19. Having regard to the fact that Mr Jorj generated income of $14,546 in or about July and August 2004, I do not consider that I can be satisfied that Mr Jorj is unable to “earn a sufficient livelihood” within the meaning of s 729(2)(e) of the Social Security Act 1991. For this reason I do not accept the contention that Mr Jorj would have been entitled to obtain further payments of special benefit after August 2004 even if he had lodged a formal claim.

20.     I appreciate that Mr Jorj has made a claim that he incurred large expenses in his business activity. I am not prepared to accept this contention where Mr Jorj has elected not to give evidence. I also mention that he has not placed any documentary evidence before me which verifies his expenses. Before the Social Security Appeals Tribunal, Mr Jorj had claimed that when he was in prison (2 February 2005 to 21 September 2005) his flatmate threw out his papers. Yet, he stated that before he went to prison he gave all of his paperwork to his accountant to prepare his tax return. His accountant does not recall him having completed a statutory declaration in relation to his inability to provide documentation [T2, fol 4].

21.     Mr Jorj has submitted that if the Secretary is successful in this application the amount of the debt is $7,486.81; and that if the Secretary is unsuccessful the amount of the debt is $1,661.49.

22. I have come to the conclusion that the amount of $7,486.61 is a recoverable debt by the Commonwealth by virtue of the operation of s 1223(1) of the Social Security Act 1991.

23.     The sum of $7,486.81 represents payments for the period 2 July 2004 to 27 January 2005. The Secretary did not press any argument before me that the debt period should commence at a date earlier than 2 July 2004, such as the date of his registration on the Australian Business Register.

24.     In implementing this decision it will be necessary to have regard to any repayments (if any) which have been made by Mr Jorj prior to the date of this decision.

25. I have come to the conclusion that there is no basis for the waiver of the debt. There is no basis for the application of s 1237A of the Social Security Act 1991 as there is no evidence of administrative error on the part of the Commonwealth. There was also no evidence placed before me of any special circumstances which warrant the waiver of the debt under s 1237AAD of the Social Security Act 1991.

26.     I also mention that Mr Jorj concurs with the Secretary that it is not appropriate to write off the debt.

Decision

27.     I set aside the decision of the Social Security Appeals Tribunal made on 29 June 2006 and substitute a decision that Mr Mido Jorj owes a recoverable debt to the Commonwealth in the sum of $7,486.81 in relation to the period 2 July 2004 to 27 January 2005 less the amount of any repayments which have been made by Mr Jorj. The matter is to be remitted to the Secretary to calculate the actual amount of the recoverable debt.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  16 April 2007
Date of Decision  24 July 2007
Solicitor for the Applicant          Ms S Oliver, Australian Government Solicitor
Counsel for the Respondent     Ms N Kidson
Solicitor for the Respondent     Mr P Cranitch, Welfare Rights