Kupelian and Secretary, Department of Social Services (Social services second review)

[2022] AATA 3980

Kupelian and Secretary, Department of Social Services (Social services second review) [2022] AATA 3980 (24 November 2022)

Division:GENERAL DIVISION

File Number:          2021/4797

Re:Avedis Kupelian

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:24 November 2022

Place:Sydney

The reviewable decision made on 15 June 2021 is affirmed.

...............................[sgd].........................................

Mrs J C Kelly, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension (DSP) – whether DSP should be paid at partnered rate or single rate – partner visa – whether there was financial difficulty – whether there was a special reason to not treat the applicant as a member of a couple – reviewable decision affirmed

Legislation

Social Security Act 1991 (Cth)

Cases

Ahamed v Secretary, Department of Social Services [2020] FCCA 1245

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

24 November 2022

Introduction

1. The Applicant, Mr Kupelian, wishes to have his Disability Support Pension (DSP) paid at the single rate and not at the partnered rate, from 22 July 2019.  

2. The single rate is more than the partnered rate. He does not dispute that he resided with his wife as members of a couple on that day or since then.

3. The reviewable decision was made by the Social Services & Child Support Division of the Tribunal on 15 June 2021 to the effect that Mr Kupelian be paid DSP at the partnered rate from 22 July 2019.

4. I have to decide whether I am satisfied that Mr Kupelian should, for a special reason in the particular case, not be treated as a member of a couple, pursuant to subsection 24(1) of the Social Security Act 1991 (Cth) (the Act).

   Uncontested facts

5. On 26 September 2012, Mr Kupelian began receiving DSP. He met Mrs Kupelian in 2013. They married on 18 October 2016. She is a Thai national who was born in 1973.

6. On 19 December 2016, the Applicant filed a Mod P (partner) form indicating that Mrs Kupelian was living in Thailand and was awaiting a resident visa to move to Australia. A decision was made to treat the Applicant as a single person under section 24 of the Act for the purposes of the rate of his DSP.

7. She began to reside with Mr Kupelian in Sydney from 9 October 2018. She held a Partner (subclass 309) visa which had been granted on 19 September 2018.  She was permitted to work or study.

8. The obligations of a partner when sponsoring a visa applicant are to provide accommodation, financial assistance, including English language courses, ‘if needed’, and other support if needed, for two years. 

9. Mrs Kupelian’s English is limited.

10. The couple returned to Thailand from 22 July 2019 until 3 September 2019.

11. On 2 July 2019, $37,000 was withdrawn from one of Mr Kupelian’s bank accounts, which had an opening balance of $350,000, to pay a deposit on a property.

12. On 19 July 2019, Mr Kupelian filed a Mod P (partner) form and a Mod IA (income and assets) form which included the following information:

    (a)Mrs Kupelian was living in Australia in the same home as the Applicant;

    (b)Mrs Kupelian did not have any assets; and

    (c)The Applicant’s assets comprised:

    (i)$20,000 for household contents and personal effects; and  

    (ii)a motor vehicle worth $10,000.

13. On 25 July 2019, the Agency reviewed Mr Kupelian’s circumstances and issued a notice to him that his DSP was to be paid at the partnered rate from that date on because he and Mrs Kupelian were able to pool their resources and were not in financial difficulty. 

14. Documents that he provided on 30 September 2019 show that one of his bank accounts had a balance of $20,644.80 on 26 September 2019 and the other had a nil balance. He had settled on the purchase of a property on the Central Coast on 3 September 2019 for $370,000.

15. On 1 November 2019, Mr Kupelian requested that he be paid at the single rate because Mrs Kupelian’s visa did not allow her to work, and he was supporting them both on the partnered rate.

16. On 26 April 2021, an authorised review officer affirmed the decision made on 25 July 2019.

17. On 13 May 2020 Mr Kupelian was granted a partner (subclass 100) permanent resident visa which permitted her to work or study.

18. Mrs Kupelian received JobSeeker Payment (JSP) between 1 June 2020 and 9 April 2021.  I understand that this was a special measure during the COVID-19 pandemic. Mrs Kupelian is subject to the Newly Arrived Resident Waiting Period (NARWP) which precludes her from receiving most social security benefits for four years. Any period when she is overseas is not included in that four-year period. Her visit to Thailand means that approximately another six weeks is added to the four-year period. 

19. On 24 September 2021, Mr Kupelian provided his council and water rates notices and two bank statements showing a closing balance of $581.94 and an outstanding loan amount of $43,627.81, respectively. The loan statement showed that the loan limit was $46,095.81 and available funds were $2,468.

    The oral evidence  

20. During cross-examination, Mr Kupelian said the following. He was aware of his obligation as sponsor of his wife’s partner visa, but his situation has changed. He had an inheritance of $350,000 in the bank earning interest which he used it to buy the house on the Central Coast to avoid paying rent. He also has a loan. He thought that was the best option and that they would manage ‘somehow’.

21. When asked if he had thought about selling the house, Mr Kupelian responded: ‘Where are we going to live?’ and said that they would have to get a rental property again.

22. He agreed that from 5 September 2020 and 4 June 2021, he and his wife were living within their means.  

23. Mrs Kupelian said that while she was receiving JSP she was contributing 50 per cent to the household. 

24. The Respondent suggested that she may be eligible for Special Benefit payment. Mr Kupelian said Centrelink had said that she had no entitlement to any social security payment.  

25. Mrs Kupelian only contributed to the household finances when she was receiving JSP. Mr Kupelian pays all the bills.

26. Mr Kupelian said that Mrs Kupelian had shut down her Thai bank account which he declared in the Mod P form he filled out in July 2019, had a balance of 8,534.06 baht. However, she said that she does have a bank account in Thailand which she uses when she is there. She has no income. It has a balance of approximately 9,000 baht which reflects wages that she saved.

27. In Thailand, Mrs Kupelian worked from 2013 as a ‘beautician’ helping out her sister when she was very busy. She did fingernails and shampooed hair. She also minded children over one or two years. From 2010 to 2013, she worked as a public relations representative of a Japanese restaurant. From 2005 to 2010, she did administrative tasks for a Japanese company, hiring vehicles and organising golf games for visitors. She has no qualifications.

28. Mr Kupelian provided financial support when she needed it from 2013 while she waited for a visa. 

29. Mrs Kupelian’s principal barrier to getting work in Australia is her limited English. Mr Kupelian said that they had looked and were continuing to look for a job as a beautician.  Mrs Kupelian said that she was asked about her English language competency at interviews for work in restaurants and cleaning. She had to say that she was not very confident. There were a lot of things she does not understand. She can speak everyday English but not business English.

30. Mr Kupelian said that his wife was too busy to explore English classes when she arrived in 2018 because they were looking for a house and doing other things. She did attend free English classes at TAFE for about three months from February 2021 until her JSP ended. Mrs Kupelian was attending four days a week paying bus fares of $10 a day return, a total of $160 a fortnight which they could not afford after her JSP ended.  

31. Mrs Kupelian gave the following reasons for her limited engagement in English lessons.  When she first arrived, she was not ready. She did not know where to go in Sydney and Mr Kupelian had a sore back and could not accompany her. Sometimes Mr Kupelian looked for places but getting there was difficult. Although free English lessons were offered, there were lots of expenses the government did not pay for: notebooks, pens, pencils, rubbers, food, and dressing up in costumes to celebrate different festivals. In 2020 when she was receiving JSP, TAFE closed for lockdowns and was opening and closing. She was enrolled in various places. She found online courses very difficult. The teacher asked questions she could not understand. The teacher said that students were finding it difficult during lockdown.

32. Mrs Kupelian said that she definitely intended resuming English classes, but she has to be very frugal. 

33. When it was put to her that she expected to be supported by Mr Kupelian in Australia and did not expect to work, Mrs Kupelian said that was correct, and then said, not totally. She would like to work but the first step was to study English.  

    Consideration

34. The Respondent referred to relevant provisions of the Guide to Social Security Law (the Guide), the explanatory memorandum, and numerous cases, including some that question aspects of the Guide.

35. In Ahamed v Secretary, Department of Social Services [2020] FCCA 1245 (Ahamed), Reithmuller J set out a series of cases regarding the exercise of discretion in section 24 of the Act at [13]-[15]. His Honour concluded at [16] to [17]:

    What emerges from these cases is that couples are expected to pool resources. In the ordinary run of cases this presents few difficulties for decision makers, as a spouse will be entitled to half of a couple’s pension unless they have other resources or income (whatever category of benefit or pension one considers). That a couple in this situation have expenses greater than income, or choose lifestyle arrangements that cost more than their income amount, is not generally a special circumstance. Where, however, one member of the couple has no work rights and no assets or pension, the section is usually satisfied. The difficulty arises where the lack of pension or employment is not simply a legal impediment (such as a visa condition) but rather a practical one. In these circumstances careful consideration of the specific circumstances of the couple is required.

    In the context of the appellant’s case the question arose as to whether his wife could in practice work, given her lack of English and illness, and if not, whether she was actually entitled to some form of government benefit. As she had no resources of her own, at least one of these factors was necessary to enable her, on a practical level, to pool her resources with the appellant. This question is not sufficiently answered by merely pointing to a visa condition that provides legal permission to engage in employment, nor a legal discretion that may result in payment of a benefit. Rather, some consideration was required of whether the appellant’s wife could ‘on a practical level’ work or whether she was likely to fall within the discretion for payment of a benefit or pension. Where both parties are Australian citizens living in Australia this question generally admits of a simple answer, as anyone without assets and unable to find work is generally entitled to a form of benefit (although see the unusual features of Holt’s Case).

36. I must give careful consideration to the specific circumstances of Mr and Mrs Kupelian to determine whether there is a special reason in Mr Kupelian’s case, that he not be treated as a member of a couple.

37. Mrs Kupelian has no resources or income to pool with Mr Kupelian. Her bank account in Thailand has a balance of $300 to $400, depending on the exchange rate at a particular time. She has not worked since she arrived in Australia.  

38. Mr Kupelian’s reason for requesting that he receive DSP at the single rate on 1 November 2019 was because his wife’s visa did not allow her to work, and he was supporting them both on the partnered rate. 

39. His wife’s visa did allow her to work. He had just spent his $350,000 inheritance to purchase a house and therefore no longer had those funds available to supplement his DSP to pay the couple’s living costs. He had not disclosed the fact that he had approximately $313,000 in his bank account in the Mod IA income and assets form he provided on 19 July 2019.  Further, he proceeded with the purchase of the house after being advised on 25 July 2019 that he was to be paid the partner rate. 

40. Mr Kupelian has not been forthright when providing information in relation to this matter.

41. As Mrs Kupelian’s sponsor for a partner visa, Mr Kupelian had obligations to provide accommodation, financial assistance, including English language courses, ‘if needed’, and other support if needed, for two years. He was aware of those obligations.

42. Mrs Kupelian is subject to the NARWP for four years for most payments and concessions including JSP and special benefit. It is a two-year period for carer payment. Those limits applied because her permanent residence visa was granted after 1 January 2019. If granted before that date, the period was two years for most payments and concessions. Whether Mr Kupelian knew of either time limit is not relevant in my view. It is Australian law and is not a circumstance that constitutes a special reason.  

43. Mrs Kupelian has limited English, no qualifications and limited work experience in Thailand.  She has undertaken about three months of English language lessons in the three plus years she has been in Australia. She has applied for jobs in restaurants and cleaning, and perhaps looked for jobs as a beautician.

44. While COVID-19 in 2020 and 2021 was not given as a reason for Mrs Kupelian not seeking work, I take that circumstance into consideration, as I do in relation to the short period she undertook English language lessons. However, I am not persuaded that Mr and Mrs Kupelian planned that Mrs Kupelian would work when she came to Australia, and therefore it was not a priority for her to learn English. They were preoccupied with buying a house after she arrived. As soon as they had done that, Mr Kupelian requested to be paid at the single rate.

45. Mr and Mrs Kupelian’s present financial circumstances are a result of lifestyle choices they have made, including using funds of $350,000 to purchase a house and which are therefore no longer available to support their lifestyle, and Mrs Kupelian not prioritising studying English so she could find employment. They may be living frugally, but they are not suffering financial difficulty.

46. I am not satisfied that Mr Kupelian should, for a special reason in the particular case, not be treated as a member of a couple, pursuant to subsection 24(1) of the Act.

    Decision

47. The reviewable decision made on 15 June 2021 is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................

Associate

Dated: 24 November 2022

Date of hearing:	7 December 2021
Applicant:	In person
Counsel for the Respondent:	Ms C Hammerton