Khan and Secretary, Department of Family and Community Services
[2002] AATA 941
•17 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 941
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/6
GENERAL ADMINISTRATIVE DIVISION )
Re Sher Afzal Khan
Applicant
And Secretary, Department of Family & Community Services
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Date17 October 2002
PlaceSydney
Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal of 5 December 2001 which affirmed the decision of the Authorised Review Officer of Centrelink of 16 October 2001 which had affirmed the decision of Centrelink of 21 August 2001 to garnishee the Applicant, Mr Sher Afzal Khan's income tax refund in order to recover part of an unemployment/sickness benefit debt.
..............................................
Ms G Ettinger
Senior Member
catchwords
Social Security - Social Services Act 1947 - Social Security Act 1991- whether recovery statute barred - whether garnishee lawful - whether to waive whole or part of debt based on assessment of special circumstances - decision affirmed
legislation
Social Services Act 1947 ss 107, 108 and 140
Social Security Act 1991 ss 1230C, 1233, 1236 and 1237AAD
Acts Interpretation Act 1901 ss 28A and 29
case law
Secretary, Department of Social Security v Danielson (1996) 44 ALD 19
Walker v Secretary, Department of Social Security (No.2) (1997) 75 FCR 493
Jonauskas and Secretary of Family and Community Services (2001) 65 ALD 553
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 7 ALD 670
Secretary, Department of Social Security v Hulls (1991) 22 ALD 570
Secretary, Department of Social Security v Smith (1991) 30 FCR 56
Commonwealth v Daniels (1994) 33 ALD 111
Secretary, Department of Social Security v Banks (1990) 20 ALD 19
Secretary, Department of Social Security v Ellis (1997) 46 ALD 1
Director-General of Social Services v Hales (1983) 47 ALR 281
REASONS FOR DECISION
17 October 2002 Ms G Ettinger – Senior Member
The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Social Security Appeals Tribunal ("the SSAT") of 5 December 2001 (T2, Exhibit R1) which affirmed the decision of the Authorised Review Officer of Centrelink on 16 October 2001 (T66/67) which in turn affirmed the decision of Centrelink of 21 August 2001 (T43). The SSAT affirmed the decision to garnishee the Applicant, Mr Sher Afzal Khan's income tax refund in order to recover part of an unemployment/sickness benefit debt.
Mr Khan was self represented in these proceedings, and the Secretary, Department of Family & Community Services ("the Respondent") was represented by Mr B Slattery of the Advocacy and Administrative Law Team at Centrelink.
BACKGROUNDBy way of background I noted that the amount of overpayment garnisheed from Mr Khan's tax refund relating to the relevant period under review was $3,276.67 being payments made as follows:
4.9.01 $406.67
14.9.01 $2,643.63
14.9.01 $155.55
14.9.01 $70.82
It was agreed by the parties that Mr Khan had debts to the Commonwealth other than the one subject of the present application before the Tribunal, although I noted that the figures were calculated on a number of occasions, with very different results, (ranging from $28,000 to $20,000). I noted also that Mr Khan felt aggrieved that he did not receive information which he had requested from Centrelink, in a timely manner.
I noted also by way of background that a delegate of Centrelink had written to Mr Khan on 21 March 2000 (T35, Exhibit R1) in the following terms:
"You were out of Australia 32 times during the period 8/1/1980 to 5/5/1988, you also commenced a Import Export business on 17/12/84 and this business was still operational till 12/8/87. The debt has been calculated that you were not entitled to be paid for the periods you were out of Australia between 8/1/1980 till you commenced the Import Export business. You were not entitled to be paid any benefit during the 17/12/84 to 12/8/1987 the period of the business as you were not unemployed. The period from 12/8/87 to 5/5/88 you were not entitled to be paid for any times you were out of the country."
I noted further that the period of the debt which the SSAT considered was 8 January 1980 to 16 December 1984 (T2, Exhibit R1, paragraph 1), whilst Mr Slattery submitted at the present Hearing that the relevant dates were 13 October 1980 to 23 November 1984. The quantum upon which the decisions of the Authorised Review Officer and the SSAT were made, was a debt of $5,694.82 which had been raised by the Department of Social Security, predecessor of Centrelink, on 25 February 1987. Mr Slattery told me that the debt was in fact recalculated at $8,300.65, and submitted a document (Exhibit R5), in which the amount had been recalculated for the period 13 October 1980 to 23 November 1984.
In his opening Mr Slattery also addressed the jurisdiction of the Tribunal with regard to the garnishee and whether the matter was statute barred as claimed by Mr Khan. He indicated that neither the Authorised Review Officer (T66), nor the SSAT (T2), had dealt with specific debts, and I noted that the Authorised Review Officer had not specified the period for the debt.
In considering this matter, I raised the issue that both the Authorised Review Officer and the SSAT had found that Mr Khan owed a debt of $5,694.82, (the SSAT for the period 8 January 1980 - 16 December 1984), which required repayment, whereas I was being asked to consider the debt to be the sum of $8,300.65 for the period 13 October 1980 - 23 November 1984. After consideration of the submissions, I decided that this did not interfere with my jurisdiction. It is likely that the figures at Exhibit R5, are accurate. However, as I am not required to deal with the amounts, but only with whether it was lawful to garnishee Mr Khan's tax refund, I have merely noted the recalculation of the dates and the debt.
ISSUES BEFORE THE TRIBUNALThe issues before the Tribunal were:
(a)whether Mr Khan owes a debt to the Commonwealth representing the overpayment of unemployment benefits and sickness benefits calculated as $5,694.82 for the period 8 January 1980 to 16 December 1984, and dealt with as such by the SSAT (recalculated to $8,300.65 for the period 13 October 1980 and 23 November 1984 by the Respondent); and if so,
(b)whether the Respondent was authorised to recover debt by means of garnishee from the Applicant's tax refund; and
(c)whether all or part of the debt should be recovered taking into account the law with regard to "special circumstances".
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is the Social Services Act 1947 ("the 1947 Act"), in particular sections 107, 108 and 140 and the Social Security Act 1991 ("the 1991 Act"), in particular relevant sections 1233(7A), 1233(7C), 1233(7E), 1236 and 1237AAD which follow:
"SOCIAL SERVICES ACT 1947
107(1) Subject to this Part, a person … is qualified to receive an unemployment benefit in respect of a period (in this section referred to as the "relevant period") if, and only if-
(a) …
(b) the person resided in Australia throughout the relevant period and on the
date on which he lodged his claim for the benefit and…
108(1) Subject to this Part, a person … is qualified to receive a sickness benefit in respect of a period (in this section referred to as the "relevant period") if, and only if-
(a)…
(b)the person resided in Australia throughout the relevant period and on the date on which he lodged his claim for benefit and -
(i)had resided in Australia for a period of not less than 12 months immediately proceeding that date; or
(ii)satisfies the Director-General that he is likely to remain permanently in Australia; and
…
140(1) Where, in consequence of a false statement or representation, or in consequences of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth"
"SOCIAL SECURITY ACT 1991
1233(7A) Subject to subsections (7C), (7D) and (7E), action under this section for the recovery of a debt is not to be commenced after the end of the period of 6 years starting on the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt.
…
1233(7C) If:(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period part of the amount owing is paid;
action under this section for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.…
1233(7E) If:(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period:
(i) action is taken under this section or section 1231 (deductions) or 1232 (legal proceedings) for the recovery of the debt; or
(ii) a review of a file relating to action for the recovery of the debt occurs; or
(iii) other internal Departmental activity relating to action for the recovery of the debt occurs;
action under this section for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b).
…
1236 Secretary may write off debt
…
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or(c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
1237AAD 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 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.
Note: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth."
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following other evidence:
ITEM DATE NAME
Statement of Recoverable Account 8 January 1980 – 16 December 1984 Exhibit A1
Applicant's Claim for Job Network Assistance undated Exhibit A2
Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the Act"), ("T-documents") T1-78 pp 1-317 Exhibit R1
Supplementary T-Documents T79-88 pp 318-344 Exhibit R2
Supplementary T-Documents T89-99 pp 345-378 Exhibit R3
Respondent's Statement of Facts and Contentions 22 May 2002 Exhibit R4
Respondent's Supplementary Submission 27 May 2002 Exhibit R5
Respondent's Supplementary Submission 30 May 2002 Exhibit R6
Computer Printout, Applicant's Debt $5,694.87 28 May 2002 Exhibit R7
Computer Printout, Applicant's Debt $1,143.47 28 May 2002 Exhibit R8
Computer Print Out, Applicant Debt $309.60 30 May 2002 Exhibit R9
EVIDENCE OF MR SHER AFZAL KHAN – THE APPLICANT
Mr Khan, whose date of birth is 21 September 1947, gave oral evidence before the Tribunal. He told me that his particular concern was the recovery of a debt by way of garnishee by the Commonwealth, because it had been dealt with by way of an unlawful notice. He said that the legislation mandated the Respondent to explore other avenues of recovery before exercising powers of garnishment, and that the Respondent was already recovering money from him when the garnishee was undertaken. Further, he said that he would be willing to accept the debt if the Respondent were able to convince him that a particular debt existed, but that no one had done so up to the present.
Mr Khan was very concerned about the history of the debt, because he considered his affairs had been inappropriately dealt with by Centrelink, and that he had been dealt with in a discriminatory manner. He said that he had never been sure of what the size of the debt was, that it had varied between $28,000, $23,000 and sometimes $20,000. He said that he had asked over a period of time for details of the debt, and had been unable to obtain the information. He said that responses had come two years after he had asked for information. Mr Khan said that in 2000 the Authorised Review Officer had divided the $20,000 debt into two parts, and that in fact $15,000 had been written off. He said that if Centrelink wanted to pursue the remaining $5000 debt, they should have done that two decades previously. Further he said there had been an investigation of his affairs, and he had never been given the result. I noted that $15,670.10 (debt for the period 17 December 1984 - 12 August 1987) had been written off because the Respondent had held that there was insufficient evidence to maintain the debt, but that the Respondent had also noted that the debt had been deferred subject to future recovery (T21, T22, Exhibit R1) (section 1236 of the 1991 Act).
Mr Khan said that when he informed the Department of Immigration that he was going overseas, he had been told that if it was for a short period, then that would be satisfactory as far as his pension payments went. He said that he notified Centrelink regarding his absences by telephone.
As to the social security payments; he said that there had been people living in his unit while he was away, and they may have taken the cheques and banked them, or they may have been returned to Centrelink. Mr Khan said that Centrelink should have pursued him years ago, and notified him if they wanted to deal with the debt, because he could not now get copies of bank statements going back to the 1980s, and was unable to prove he had not received the payments. I noted from the record at T79/318 (Exhibit R2), that the printout indicated payments had been made to Mr Khan in the appropriate ways.
When referred by Mr Slattery to T81, (Exhibit R2), the record of an interview between Mr Khan and Mr Cook, a senior field officer of the Respondent dated 10 September 1987, Mr Khan said he had no recollection of the interview. I was mindful that the interview recorded questions and answers with regard to Mr Khan's applications for social security benefits made by his wife and signed on his behalf during his absences from Australia. It seemed to me that in comparing Mr Khan's oral evidence on this point, the above mentioned interview, and the report of the SSAT's finding in that regard, that Mr Khan had several versions of the same events.
Mr Slattery referred Mr Khan to document T4/31, Exhibit R1, a Department of Immigration document which gave dates of departures of Mr Khan from Australia between 8 January 1980 and July 1986, although of course the only dates of interest to this Tribunal in this Hearing were until the end of 1984. I noted that various reasons including business, holidays and visiting relatives were recorded as reasons for travel. There was a further document at T77/205, Exhibit R1, which recorded both arrivals and departures by Mr Khan. After considerable discussion in the Tribunal, Mr Khan conceded that the lists of departures and arrivals as produced by the relevant authority were most probably right.
Mr Khan was then cross-examined about the signing and lodgment of forms applying for benefit, at T99 (Exhibit R3) dated 6 August 1984, 20 August 1984, 3 September 1984, 29 October 1984 and 12 November 1984 signed "S Khan". Mr Khan agreed that they had been signed by his wife, but when asked whether he gave permission for his wife to sign his documents in his absence, he answered in the negative. Mr Slattery referred me to documents T81 (dated 10 September 1987, Exhibit R2), and T10/47 (17 June 1987, Exhibit R1). I noted two other versions of Mr Khan's evidence as to social security payments during his absences overseas. As relevant they follow.
The interview at document T81 (Exhibit R2) recorded relevantly as follows:
"Cook: I have some forms here, that I would like you to examine and tell me if they were signed by you.
Khan: What forms?
Cook: (Producing Form SU19B, dated 6.8.84 and signed S.Khan), I would like you to examine this form and tell me if it was signed by you.
Khan: Yes, I signed it.
Cook: (Producing Form SU19B, dated 20.8.84 and signed. S.Khan.) Was this form signed by you?
Khan: No, my wife did.
Cook: What is your wife's name?
Khan: Youma Khan
Cook: But this signed S.Khan; not Y.Khan. The form was addressed to you and was supposed to be filled out and signed by you. The information supplied in the form is about you. You are the person receiving benefit, not your wife.
Khan: It is all right for her to sign it on my behalf. I said she could.
Cook: The signature is supposed to be made by you. Your wife has forged your signature. I will show you the other forms. (Producing Forms SU19B, dated, 17.9.84, 29.10.84, 12.11.84, 26.11.84, 21.1.85, each form signed S.Khan). I would like you to examine each of these forms and tell me if each form was signed by you.
Khan: Yes, each of these forms were signed by me.
Cook: (Producing Forms SU19B dated 18.2.85 and 4.3.85 each signed S.Khan.) I would like you to examine each of these forms and tell me if each form was signed by you.
Khan: No, my wife signed these forms; she had my permission. She signed them on my behalf.
…
Cook: (Producing Form SU2, , dated 27.6.84). I would like you to examine this form and tell me if it was signed by you.
Khan: Yes, I signed it. After that, I changed my signature.
Cook: We'll go back to the forms that I have shown to you.(Producing Form SU19B dated 6.8.84). You have told me that you signed this form. Did you lodge this form with the Department?
Khan: Yes.
Cook: How could you? You were overseas at the time. You left Australia on 4.8.84.
Khan: Yes, my wife would have lodged it for me.
…
Cook: My information is that you left Australia on 4.8.84 and didn't return until 12.9.84. You could not have signed or lodged this form.
Khan: Could I have a look at the form again?
Cook: Yes. (Mr Khan re-examined the form).
Khan: My wife signed this.
Cook: You told me you signed it. It's signed S.Khan
Khan: I was wrong. My wife signed it. She can I gave her permission to sign it on my behalf.
Cook: Did you receive the benefits payable in connection with these applications that I have shown to you?
Khan: Yes, my wife and me. Listen I am paying this money back. I don't want to talk anymore; you can do what you like.
…"I noted that the document at T10/47 (Exhibit R1) was a decision of the SSAT, deciding an appeal by Mr Khan against termination of unemployment benefit in October 1986, which recorded relevantly as follows:
"Mr Khan stated he did not think it relevant to notify DSS that he had an interest in these as no income was being received from them by him. He also stated he was unaware that his wife could not complete his SU19B's when he was out of the country."
Mr Slattery then cross-examined Mr Khan about medical certificates certifying he was unfit for work because of lower back pain. One appeared at T92 (Exhibit R3) dated 30 October 1980, and certifying Mr Khan unfit for work for a month due to "injured spine". Mr Slattery then drew Mr Khan's attention to T4 and T77/205 in Exhibit R1, official records of Mr Khan's arrivals and departures for a similar period. The official records indicated Mr Khan had been out of Australia between 13 October 1980 and 25 November 1980, a period when a medical certificate was lodged which indicated Mr Khan was indisposed due to an injured spine. Mr Khan's reply to cross-examination was that a doctor would not lodge a certificate without having examined a patient. He was reminded that doctors did not lodge certificates, rather a person applying for benefit would do so, likely in this case to have been his wife when applying for benefit on his behalf during one of his trips out of Australia. I noted that Mr Khan was either not able or unwilling to give further information on this.
Mr Slattery also drew Mr Khan's attention to a further medical certificate dated 19 February 1982 at T95/354 (Exhibit R3) certifying him unfit for work from 21 February 1982 to 21 March 1982 due to "lower back pain". I noted that the official record of travel at T4 (Exhibit R1) recorded Mr Khan has having been out of Australia on "business" in February 1982. Mr Khan's reply to Mr Slattery in cross-examination was that he had told the authorities he was going to Pakistan, and they had told him that if it was a temporary departure, the situation with regard to his social security position was "ok". I noted that the medical certificates were lodged at times when Mr Khan was recorded by official records as having been out of Australia, and that he did not deny that.
Mr Khan also gave evidence with regard to his "special circumstances" by reason of which he felt the debt should be waived. This included financial hardship due to a failed business in New Zealand, his health (cataracts), and his wife's breast cancer.
SUBMISSIONS AND CONCLUSIONSIn order to assess whether the garnishee of Mr Khan's income tax refund in order for the Respondent to recover unemployment/sickness benefit debt for the period 1980 to 1984 was the correct and preferable decision, I had to take into account all the evidence before me, including the written documentation as well as the submissions of the parties, the legislation and the relevant case law. As foreshadowed at the Hearing, I accepted for consideration, the correspondence of the parties sent after the Hearing in clarification of certain items. I was satisfied each party had ample opportunity to put its case both orally and in writing.
mr khan's submissionsMr Khan made submissions that:
Centrelink and its predecessor had not treated him correctly, and had over the years not provided information to him as requested and in a timely manner.
To demonstrate inaccuracies and inefficiencies of Centrelink, Mr Khan tendered a document (Exhibit A2) in which his country of birth was, inaccurately, he said, shown as Australia. He told me he had been born in Pakistan.
Mr Khan also indicated that the $15,670.10 debt which the Authorised Review Officer had on 13 September 2001 waived, was still shown as a debt on a document he received as a printout from the Respondent dated 14 May 2002. (I noted that Mr Slattery accepted this, and said that he had, on 28 May 2002, caused the inaccurate entry to be removed, and produced a document showing this. There is no doubt that this demonstrated a considerable delay in amending a document, and certain inefficiencies in the management of Mr Khan's debt by Centrelink.)
Mr Khan disputed the amount of debt claimed by the Respondent, but submitted that he was unable to dispute the exact amounts, only object to the exercise of the garnishee, which he considered was unlawful. He submitted that pursuant to the legislation other options had to be explored before such action could be taken, submitting that there was no reason to take such action when recovery was already taking place.
Mr Khan made submissions with regard to the statement of the SSAT at paragraph 27 of its decision (T2/9, Exhibit R1), recording his evidence to that body. There was discussion of whether he had notified a change of address to Centrelink. Mr Khan submitted that he could recall doing so. I noted from the findings of the SSAT at paragraph 77 of its decision:
"There is no evidence to support Mr Khan's assertion that he provided the Department of Social Security either with advice concerning his absences from Australia or gave an address at which he could be contacted when he was outside Australia."
Mr Khan submitted that he had lived in New Zealand between 1991 and 1997 and said that evidence that he had given indicating his change of address was demonstrated in the fact that Centrelink wrote both to him and to his wife at their NZ post office box address. In corroboration of that assertion, he submitted a letter dated 28 March 1991 from the then Department of Social Security addressed to Mrs Youmna Khan at a post box address in Auckland. (I was mindful that this letter had not been before the SSAT). Mr Khan then submitted that because he informed the then Department of Social Security in 1980 that he was leaving Australia, recovery of any payment was now time barred and there should have been no garnishee.
Mr Khan also objected to paragraph 97 of the SSAT decision which I noted also dealt with the situation regarding Mr Khan's address, and referred to Centrelink records. He argued that a statutory limitation had arisen due to the fact that the Respondent had not followed up any debt for more than six years.
Mr Khan also referred to paragraph 63 of the SSAT decision submitting that he had not claimed a benefit in 1995. I noted that the SSAT recorded as follows:
"From 1995 payments to Mr Khan were credited to BSB 762107 Account No.15451. This finding is based on the Tribunal's sighting of Centrelink's Masterfile records."
· In support of his claim that his case merited consideration of "special circumstances", Mr Khan submitted that he and his wife suffered financial hardship and health problems. He said he had a cataract and his wife, breast cancer.
whether there was overpayment of sickness/unemployment benefit to mr khan in the period 1980 to 1984
I was mindful that the SSAT in its decision of 5 December 2001 (T2, Exhibit R1), reviewed the amount of $5,694.82 for the period 8 January 1980 to 16 December 1984 and that the Authorised Review Officer had not specified the relevant date in his decision at T66 (Exhibit R1).
I noted further that the debt for the period 13 October 1980 - 23 November 1984 when Mr Khan was outside of Australia, was presently claimed to be $8,300.65. (Respondent's letter of 31 May 2002 to the Tribunal). In it, Mr Slattery wrote:
"The respondent did not specify at the hearing that the payments in question represented the member of a couple rate paid in full to Mr Shah (sic). During the period 1980 to 1984 one member of the couple, usually the "job seeker" was paid at the combined "member of a couple" rate. … All the payments totalling $8,300.65 in the relevant period represented the entitlement of both Mr Khan and his wife."
I was satisfied from the document dated 27 May 2002 at Exhibit R5 that the calculation was correct, and reflected sickness benefit and unemployment benefit paid to Mr Khan during his absences from Australia between 13 October 1980 and 23 November 1984. His absences from Australia which Mr Khan after some discussion accepted as correct, and which I accepted, were documented at T4 and T77 (Exhibit R1). However neither the amount nor the specific dates between 1980 and 1984 affected my decision, which was to consider whether the garnishee of Mr Khan's tax return was the correct and preferable decision. I noted that the amount garnisheed for the relevant period was $3,276.47.
Mr Khan's submissions were that Centrelink and its predecessor had not treated him correctly, and had over the years not provided information to him as requested and in timely manner. He said that he did not accept the amount of the debt (although of course this Tribunal was dealing with only a part of a far larger debt some of which had already been recovered through withholdings), and that in any case because of a gap of in excess of six years, the recovery was statute barred.
Mr Khan made submissions (as detailed in the section above), with regard to the findings of the SSAT about his non-notification of change of address. He submitted that he could recall notifying his change of address to Centrelink. Mr Khan submitted that he had lived in New Zealand between 1991 and 1997. I noted his submission that he sold his unit in 1991, and that notwithstanding notification to Centrelink, letters to him were sent to his former address in 1995 and 1997. By way of corroborating that he had indeed given that notification, he indicated that Centrelink had written both to him and his wife at their address in New Zealand in a letter dated 28 March 1991 which was before the Tribunal.
Mr Khan also submitted that in his absence overseas at various times, other people had been living in his house and may have misappropriated his benefit cheques.
I was mindful of Mr Khan's argument that he did not receive all the cheques during his absences, and that, although he had requested these, due to the effluxion of time he was unable to produce bank statements. I noted his assertion that some cheques were probably misappropriated by persons living in his house during his absence, or that cheques had been returned.
Mr Slattery submitted Mr Khan had asked for proof regarding who had cashed the cheques and that he had made inquiries. He indicated that due to the effluxion of time, and as noted by the SSAT, the departmental records were no longer available either. However he submitted that there was a strong argument on balance, that the Tribunal should accept if the cheques had been returned they would have been stopped, and the benefit payments stopped until Mr Khan was able to be contacted. The fact they were not stopped indicated none had been returned he submitted. Certainly records at T79 (Exhibit R2) list all the payments made, and can be relied upon. I was mindful also of the Respondent's submissions and accepted that pursuant to Secretary, Department of Social Security v Danielson (1996) 44 ALD 19, the absence of direct evidence does not mean that there is no evidence of particular facts, and that these can be inferred from the existence of other facts.
There was no evidence before me to satisfy me, and I did not therefore accept Mr Khan's argument that while he was absent overseas other persons lived in his house/apartment who misappropriated the money.
I was not impressed by Mr Khan's evidence and noted his obfuscation when it came to replying to Mr Slattery's cross-examination and a number of my questions. On a number of occasions Mr Khan did not reply directly to Mr Slattery's cross-examination, and this extended to a discussion regarding the recognition of Mr Khan's own signature which appeared on particular documents.
I preferred the Respondent's argument that if a cheque had been returned, pension would have been stopped unless Mr Khan could be located. I was mindful further from the points made in paragraphs above that Mrs Khan signed application forms for social security payment on her husband's behalf and lodged them seeking payment of benefit in his absence. I was mindful further of the contents of T81 (Exhibit R2) as detailed above, and the inconsistent evidence given in that regard when I compared the evidence of Mr Khan given to the SSAT, given at this Tribunal, and as recorded in T81.
I was mindful also from section 28A of the Acts Interpretation Act 1901 which follows as relevant, that there is a presumption of delivery unless documents "sent" or "given" are returned, and that I am able to take into account the factual situation surrounding the sending of the social security benefit to Mr Khan during his absences from Australia.
"SECTION 28A
Service of documents(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate - by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
SECTION 29
Meaning of service by post(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
…"
Noting the implications of the above mentioned sections of the Acts Interpretation Act, I was satisfied that no cheques had been returned during Mr Khan's absences from Australia and that he was unable to demonstrate that persons other than he himself and/or his wife had benefited from the payments during that period. Accordingly, and in the absence of any further documentation from Mr Khan regarding any theft, I preferred the submissions of Mr Slattery, and found that applying the relevant sections of the Acts Interpretation Act, and Danielson (supra), that the moneys from Centrelink were paid to Mr Khan during the relevant periods of his absence from Australia.
I found that because of Mr Khan's absences from Australia at the relevant times, he was not eligible for unemployment benefit (section 107(1) of the Social Services Act 1947) or sickness benefit (section 108(1) of the Social Services Act 1947) for the relevant periods from 1980 to 1984. That situation may be a little different under the current legislation but it was certainly the case for the period relating to Mr Khan's acceptance of benefit. I did not accept Mr Khan's evidence that he told the Department of Immigration about his absences and was assured that all was well if his absences from Australia were short, noting that in any case, absences were frequent, and at times for extended periods.
On that basis, I preferred the submissions of the Respondent and was not minded to accept Mr Khan's argument. I therefore found that Mr Khan had incurred a social security debt as claimed by the Respondent in the period 1980 to 1984. Applying section 140(1) of the Social Services Act 1947, that amount had to be recovered. I noted of course that certain amounts had already been recovered by way of garnishee and withholdings. As relevant section 140(1) of the Social Services Act 1947 follows:
"s140(1) Where, in consequence of a false statement or representation, or in consequences of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth"
There are of course situations where with the application of section 1236 of the 1991 Act in appropriate cases, all or part of the debt may be written off. I noted in fact that in Mr Khan's case $15,670.10 of the debt had been written off pursuant to section 1236 of the 1991 Act, and the Applicant notified by letter of 19 September 2001. Where "special circumstances are found, all of part of the debt may be waived (section 1237AAD of the 1991 Act). However, as Mr Khan argued that recovery of the payments was statute barred, I have first moved to consider that issue.
whether recovery of mr khan's debt is statute barredMr Khan submitted that recovery of moneys paid to him for unemployment and sickness benefit between 1980 and 1984 was statute barred pursuant to section 1233(7A) of the 1991 Act, which specifies that debt recovery is not to be commenced "after the end of the period of 6 years starting on the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt." He submitted that no debt recovery had occurred during the relevant period and it was therefore statute barred, and the garnishee unlawful. In this connection, Mr Khan again made the argument that he had notified his change of address and could have been contacted by the relevant authorities. As I have already detailed that argument above, I shall not repeat it here except to say that if recovery action had not been taken within the six year period, then it would indeed have been statute barred.
Mr Khan submitted that although the debt arose in 1980, notification of it to him was only made in 1987, exceeding the six year statutory limit. I was mindful that the debt period in question at this Tribunal commenced in 1980 but continued until 1984, so that the notification of the debt in 1987 was well within the six year period. In addition, in the T-documents before the Tribunal there were quite extensive records which included many approaches from the Respondent to Mr Khan requiring repayment of the debt, (T24 and T3, Exhibit R1, T3 being a Time Line of Key Debt Recovery Dates).
Accordingly I found that there was never a gap of six years in communicating with Mr Khan, although I noted that there were times when correspondence was returned. Mr Khan of course expressed displeasure that correspondence had been sent to an old address even after he had notified the Department of Social Security (as it then was), of a change of address. I was mindful that in the documents lodged after the hearing was a copy of a letter of the then Department of Social Security dated 28 March 1991 addressed to Mrs Khan at a post office box address in Auckland, New Zealand. I was mindful that this may have been an annoyance to him, but did not affect the issue of the statutory limitation in this case as he had been correctly notified on many occasions within the six year time period. The only requirement is that "review of the file relating to recovery of the debt occurs" or "other internal Departmental activity relating to action for the recovery of the debt occurs" within a six year period (section 1233(7E)(ii) and (iii) of the 1991 Act).
Mr Khan also drew my attention to the fact a sum of $15,670.10 of the debt had been written off pursuant to section 1236 of the 1991 Act. I noted that the Applicant was notified of this by letter of 19 September 2001 but that this was not strictly relevant to the limitations argument.
I was mindful of sections 1233(7A), (C) and (E) of the 1991 Act which follow as relevant:
"1233(7A) Subject to subsections (7C), (7D) and (7E), action under this section for the recovery of a debt is not to be commenced after the end of the period of 6 years starting on the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt."
"1233(7C) If:
(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period part of the amount owing is paid;
action under this section for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment."
"1233(7E) If:
(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period:
(i) action is taken under this section or section 1231 (deductions) or 1232 (legal proceedings) for the recovery of the debt; or
(ii) a review of a file relating to action for the recovery of the debt occurs; or
(iii) other internal Departmental activity relating to action for the recovery of the debt occurs;
action under this section for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b)."
Mr Slattery did not disagree that recovery of a debt had a six year statutory limit for commencement, but took me through a number of transactions which indicated that reviews had taken place within the relevant time, and that regular annual follow-ups occurred.
In conclusion I accepted Mr Slattery's argument that the Respondent had been following up Mr Khan for his debt well within the statutory six year period, and had continued to so so that there was never a gap of six years. Accordingly I held that the garnishee was not statute barred.
jurisdictional issues regarding the garnisheeI was mindful that Mr Khan's history of debt with the Commonwealth spans more than twenty years, and that because the Respondent was unable to establish to its satisfaction over a certain period that Mr Khan was in business during the relevant period between December 1984 and August 1987, $15,670.10 was written off in September 2001.
Mr Khan expressed displeasure that a garnishee of his tax refund had been undertaken, asserting that it was inappropriate when other recovery was already taking place. He referred to sections 1230C and 1233(7D)(b) of the 1991 Act which follow as relevant.
"1230C Methods of recovery of debt
1230C(1) Subject to subsection (2), a debt due to the Commonwealth under this Act is recoverable by the Commonwealth by means of one or more of the following methods:
(a) if the person who owes the debt is receiving a social security payment—deductions from that person's social security payment;
(b) if, in respect of the debt, section 1234A applies to another person who is receiving a social security payment—deductions from that other person's social security payment;
(c) repayment by instalments under an arrangement entered into under section 1234;
(d) legal proceedings;
(e) garnishee notice.1230C(2) Subject to subsection (3), a debt due to the Commonwealth under this Act is recoverable by means of a method mentioned in paragraph (1)(d) or (e) only if the Commonwealth:
(a) has first sought to recover the debt by means of a method mentioned in paragraph (1)(a), (b) or (c); and
(b) can establish that the person who owes the debt:
(i) has failed to enter into a reasonable arrangement to repay the debt; or
(ii) after having entered into such an arrangement, has failed to make a particular payment in accordance with the arrangement.
1230C(3) If the Secretary determines that the recovery of the debt by means of a method mentioned in paragraph (1)(a), (b) or (c) is not appropriate having regard to the circumstances of the case, paragraph (2)(a) does not apply in respect of the recovery of the debt."
"1233(7D) If:
(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period, the person who owes the amount acknowledges that he or she owes it;
action under this section for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgment."
In order to clarify the situation I noted, as I have above, the amounts recovered by garnishee for the relevant period between 1980 and 1984 was $3,276.67. The detail of recovery follows:
4.9.01 $406.67
14.9.01 $2,643.63
14.9.01 $155.55
14.9.01 $70.82
I was mindful that Mr Khan had sought assistance from the Welfare Rights Centre with regard to the issue of garnishment of the debt from his tax refund. A letter from the Welfare Rights Centre dated 29 October 2001 was at T73 of Exhibit R1. Relevantly, it raised a number of issues on which Mr Khan sought to rely:
Centrelink is required under section 1233(4) of the Social Security Act 1991 to give a copy of any garnishee notice to the debtor. It is not clear whether Centrelink provided you with such a notice.
The Guide to the Act states at paragraph 6.7.2.50 that a garnishee notice can only be used "after all other recovery options have failed". Centrelink must be able to show that it has attempted other recovery methods in your case.
In his decision dated 16 October 201 on the appropriateness of the garnishee action in your case, the Authorised Review Officer did not consider the above two fundamental rules.
The overpayment to which the garnishee order relates was raised in the early eighties. According to sections 1233(7A) of the Act, Centrelink is precluded from issuing a garnishee notice to recover a debt where 6 years have passed from the day on which an officer becomes aware of the circumstances that gave rise to the debt. Section 1233(7B)-1233(7E) provide exceptions to this rule."
Mr Khan also submitted that he had informed the appropriate authorities of his departure to New Zealand in 1990, and that his wife had received correspondence from Centrelink, correctly addressed to her in New Zealand in 1991 (as noted above), but that Centrelink had informed him later they had not known of his whereabouts.
Mr Khan also submitted that recovery could not take place because it was statute barred. As I have already addressed the argument regarding whether the recovery of debt was statute barred and found it not to be so in the paragraphs above, I do not propose to go into detail here except to say that I had evidence before me to satisfy me to the requisite standard that review of the file and recovery had taken place regularly over the relevant period, that it had commenced within the statutory six year period, and had continued as appropriate. Accordingly, it was not statute barred.
I was mindful that although there was other recovery on foot, the Respondent was entitled, given all the factual circumstances surrounding the difficulty in recovery, and Mr Khan's extensive periods out of Australia, to recover debt by way of garnishee from Mr Khan. I noted that he was notified of the action.
In that regard I was mindful that in Walker v Secretary, Department of Social Security (No.2) (1997) 75 FCR 493, Mr Walker appealed to the SSAT and the Tribunal against a decision of the Department to garnishee by way of recovery of part of a debt arising from false claims. He had contended that he had been denied natural justice by not being notified before the action was taken, and that his financial position had not been taken into account. He was unsuccessful at the Federal Court before a single judge, and their Honours (in the Full Federal Court), held that section 1233 of the 1991 Act did not impose on the decision-maker a general obligation to comply with the requirements of natural justice before determining to issue a garnishee notice. Neither, they said, was the decision-maker required to take Mr Walker's financial circumstances into account. I am of course bound by that decision.
I was mindful that pursuant to section 1233 of the 1991 Act which follows as relevant, this Tribunal has the power to review the garnishee.
"1233 Garnishee notice
1233(1) If a debt is recoverable from a person (in this section called the debtor) by the Commonwealth under section 1227A or 1230C of this Act, under the 1947 Act or under the Social Security (Fares Allowance) Rules 1998, the Secretary may by written notice given to another person:
(a) by whom any money is due or accruing, or may become due, to the debtor; or
(b) who holds or may subsequently hold money for or on account of the debtor; or
(c) who holds or may subsequently hold money on account of some other person for payment to the debtor; or
(d) who has authority from some other person to pay money to the debtor;
require the person to whom the notice is given to pay the Commonwealth:
(e) an amount specified in the notice, not exceeding the amount of the debt or the amount of the money referred to in the preceding paragraph that is applicable; or
(f)such amount as is specified in the notice out of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied; or
(g) such percentage as is specified in the notice of each payment that the person becomes liable from time to time to make to the debtor until that debt is satisfied.
1233(2) The time for making a payment in compliance with a notice under subsection (1) is such time as is specified in the notice, not being a time before the money concerned becomes due or is held or before the end of the period of 14 days after the notice is given.
1233(3) A person who fails to comply with a notice under subsection (1) to the extent that the person is capable of doing so is guilty of an offence.
Penalty: Imprisonment for 12 months.
Note 1: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.
Note 1A:If a body corporate is convicted of the offence, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a maximum fine of an amount that is 5 times the maximum fine that could be imposed on an individual convicted of the same offence.
Note 2: see also section 1230 (consequence of failure to comply with notice under this section).
1233(4) If the Secretary gives a notice to a person under subsection (1), the Secretary must give a copy of the notice to the debtor.
1233(5) A person who makes a payment to the Commonwealth in compliance with a notice under subsection (1) is to be taken to have made the payment under the authority of the debtor and of any other person concerned.
1233(6) If:
(a) a notice is given to a person under subsection (1) in respect of a debt due; and
(b) an amount is paid by another person in reduction or in satisfaction of the debt;
the Secretary must notify the first-mentioned person accordingly, and the amount specified in the notice is to be taken to be reduced by the amount so paid.
1233(7) If, apart from this subsection, money is not due or repayable on demand to a person unless a condition is fulfilled, the money is to be taken, for the purposes of this section, to be due or repayable on demand, as the case may be, even though the condition has not been fulfilled.
1233(7A) Subject to subsections (7C), (7D) and (7E), action under this section for the recovery of a debt is not to be commenced after the end of the period of 6 years starting on the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt.
…
1233(7C) If:
(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period part of the amount owing is paid;
action under this section for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.1233(7D) If:
(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period, the person who owes the amount acknowledges that he or she owes it;
action under this section for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgment.
1233(7E) If:
(a) subsection (7A) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and
(b) within that period:
(i) action is taken under this section or section 1231 (deductions) or 1232 (legal proceedings) for the recovery of the debt; or
(ii) a review of a file relating to action for the recovery of the debt occurs; or
(iii) other internal Departmental activity relating to action for the recovery of the debt occurs;
action under this section for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b).
1233(7F) This section applies to money in spite of any law of a State or Territory (however expressed) under which the amount is inalienable.
1233(8) In this section, person includes:
(a) the Commonwealth; and
(b) a State; and
(c) a Territory; and
(d) any authority of the Commonwealth or of a State or Territory."Taking into account the submissions made, the factual situation regarding the garnishee, the case law, in particular Walker (supra), and the legislation, I was satisfied that the garnishee was lawful.
whether "special circumstances" apply to either write off, or waive the whole or part of the debtIn coming to a conclusion, I was reasonably satisfied from the submissions of the Respondent and documentation in Exhibit R5, that the debt incurred by Mr Khan for the period 13 October 1980 - 23 November 1984 was correctly calculated as $8300.65. I considered whether there were jurisdictional issues in dealing with $8,300.65 because the Authorised Review Officer and the SSAT had both reviewed the sum of $5,694.82. However I decided that as I was simply reviewing whether the garnishee was lawful and the recovery dealt with debt between 1980 and 1984, I did not have to decide on the revised periods and revised quantum of debt.
As discussed above, I accepted the information on Mr Khan's Australian departures and arrivals as recorded in the documents from the then Department of Immigration at T4/31 (Exhibit R1) and T77/205 (Exhibit R1), and concluded that in the periods when Mr Khan was out of the country, and pursuant to section 107(1)(b) (unemployment benefit) and section 108(1)(b) (sickness benefit) of the 1947 Act, he was not eligible to be paid unemployment benefit or sickness benefit between various periods between 1980 and 1984.
Having decided that Mr Khan owed a debt to the Commonwealth, I was mindful it had to be recovered unless the discretion could be exercised to write it off pursuant to section 1236 of the 1991 Act, or unless there were "special circumstances" which indicated that all or part of the debt should be waived pursuant to section 1237AAD of the 1991 Act.
I was mindful that section 140(1) of the 1947 Act mandated as follows;
"s140(1) Where, in consequence of a false statement or representation, or in consequences of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance, endowment or benefit which would not have been paid but for the false statement or representation, failure or omission, the amount so paid shall be recoverable in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth".
I was mindful that $15,670.10 of the debt had been written off by the Respondent relating to payments made for the period 17 December 1984 and 12 August 1987, pursuant to section 1236 of the 1991 Act, which follows as relevant.
"1236 Secretary may write off debt
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt."
I have considered the write-off provisions in section 1236 of the 1991 Act, and do not find in applying the tests there which have been dealt with in well established case law, that it would appropriate to apply write-off for the rest of the debt in this case.
Accordingly, I moved to consider section 1237AAD of the 1991 Act, pursuant to which the Tribunal standing in the shoes of the Secretary, may in certain circumstances exercise the discretion to waive the right to recover all or part of a debt. As relevant, section 1237AAD follows:
"1237AAD 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 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."
I was mindful that section 1237AAD of the 1991 Act can apply, and a debt may be waived if the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation. In that regard I noted that Mr Khan's wife knowingly made a false representation when she lodged forms for him in his absence from Australia in 1987.I was satisfied that Mr Khan participated in applying for, and receiving social security payments to which he was not entitled during the relevant periods, and hence was also knowingly making false statements and representations. A recent authority in which the concept of "knowingly" has been considered is Jonauskas and Secretary of Family and Community Services (2001) 65 ALD 553, on which I have relied in this case.
Notwithstanding Mr Khan's assertions, there was no evidence before me to convince me to the requisite standard that any person had informed Mr Khan that for short absences, he was covered for his social security payments. Indeed even if that had been relevant, the evidence before me indicated that the absences had been frequent and were not short. As noted above, Mr Khan was not entitled pursuant to sections 107(1)(b) and 108(1)(b) of the 1947 Act to be paid unemployment and sickness benefit for the relevant periods.
Accordingly I could not be satisfied to the requisite standard that the debt did not result wholly or partly from Mr Khan or another person knowingly making a false statement or a false representation, which is a prerequisite to the application of a discretion to waive a debt pursuant to section 1237AAD of the 1991 Act.
However, in case I am wrong about that, I proceeded to also consider whether there were "special circumstances" in Mr Khan's case which would justify waiving the debt to the Commonwealth in full or in part. I considered the submissions of Mr Khan in that regard, noting from section 1237AAD, that financial hardship alone is insufficient to activate the application of waiver pursuant to section 1237AAD of the 1991 Act.
In support of his argument for the application of "special circumstances", Mr Khan told me in his evidence that he had suffered a cataract, that he was a diabetic, that his wife had had breast cancer, that he had legal pressures, and that their business venture in New Zealand had been unsuccessful.
I considered the application of "special circumstances", which are not defined under the Act, but which have well established case law surrounding the concept. In particular I took into account the case of Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464 where Deputy President Todd had found that in relation to "special circumstances" a global approach had to be taken. I noted Mr Khan's evidence that he had diabetes and cataracts, and that his wife suffered breast cancer, noting that in Bolton (supra), a decline in health of the applicant in that case had not been found sufficient to constitute "special circumstances". I noted that Bolton (supra) had been decided pursuant to the Social Security Act and that at paragraph 24 Deputy President Todd had stated:
"In the various decisions which turn on this question, the Tribunal has consistently searched for circumstances which are 'unusual, uncommon or exceptional' to ascertain whether strict application of s 153 is 'unjust unreasonable or otherwise inappropriate'...It appears that the useful guidelines for the exercise of the discretion set out in Re Krzywak (1988) 15 ALD 690 have been followed by the Tribunal in later decisions. The factors to be considered are thus financial hardship; legislative changes; incorrect legal advice; and ill health…"
I noted another leading case in ReBeadle and Director-General of Social Security (1984) 6 ALD 1 (affirmed by the Full Federal Court in Beadle v Director-General of Social Security (1985) 7 ALD 670) where "special circumstances" is defined as being those which are "unusual, uncommon or exceptional". There are many other cases such as Secretary, Department of Social Security v Hulls (1991) 22 ALD 570, Secretary, Department of Social Security v Smith (1991) 30 FCR 56, Commonwealth v Daniels (1994) 33 ALD 111, Secretary, Department of Social Security v Banks (1990) 20 ALD 19 and Secretary, Department of Social Security v Ellis (1997) 46 ALD 1 where "special circumstances" have been considered.
In Beadle v Director-General of Social Security (1985) 7 ALD 670 the Full Federal Court, in examining "special circumstances" within the terms of section 102(1) of the Social Security Act 1947 stated at 674:
"It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given."
In Director-General of Social Services v Hales (1983) 47 ALR 281 at 321 Sheppard J said:
"The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances."
I was mindful of their Honours statements in Beadle (supra) and Hales (supra) that financial hardship is a circumstance of almost every person who is obliged to rely on income support. I was mindful also that in relation to section 1237AAD, the legislation specifically mandates that financial circumstances alone cannot constitute "special circumstances". Mr Khan told me about his own health and that of his wife, and of a failed business venture in New Zealand which caused them to return to Australia. Whilst I am sympathetic, I was mindful there was little factual data about the "special circumstances" relied upon.
I noted that Mr Khan was out of Australia in a pattern of constant absences, and that his wife signed his social security applications a number of times. I did not have evidence of other indicia which I could take into account in making a favourable decision for Mr Khan. I could not be convinced to the requisite standard that Mr Khan's circumstances met the tests for "special circumstances".
Accordingly the whole of the debt must be recovered.
DECISIONThe Tribunal affirms the decision of the Social Security Appeals Tribunal of 5 December 2001 which affirmed the decision of the Authorised Review Officer of Centrelink of 16 October 2001 which had affirmed the decision of Centrelink of 21 August 2001 to garnishee the Applicant, Mr Sher Afzal Khan's income tax refund in order to recover part of an unemployment/sickness benefit debt.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: H Sim .....................................................................................
AssociateDate of Hearing 30 May 2002;
Further submissions with regard to debt of the Applicant - 31May 2002 to 9 July 2002
Date of Decision 17 October 2002
Counsel for the Applicant Self Represented
Advocate for the Respondent Mr B Slattery
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