LEMAN KAYA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2012] AATA 190
•2 April 2012
[2012] AATA 190
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/5140
Re
LEMAN KAYA
APPLICANT
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 2 April 2012 Place Melbourne The Tribunal:
1.sets aside the reviewable decision dated 17 September 2010 and in substitution decides that the Applicant earned income between 11 July 2005 and 22 July 2005, inclusive (the period) which was not declared to Centrelink; and
2.remits the application to the Respondent to calculate the Applicant's entitlement to parenting payment for the period in accordance with these reasons and an overpayment, if any, is a debt due to the Commonwealth.
(sgd) John Handley
Senior Member
SOCIAL SECURITY – parenting payment – whether the applicant failed to declare earnings to Centrelink – whether overpayment – whether debt due to the Commonwealth – whether debt recoverable – decision set aside.
LEGISLATION
Social Security Act 1991 ss 8(1), 1068A, 1072 1223(1), 1237AD
Administrative Appeals Tribunal Act 1975 s 33(1AA)
CASES
SECONDARY MATERIALS
REASONS FOR DECISION
Mr John Handley, Senior Member
Mrs Kaya, the Applicant, has been receiving parenting payment (PP) from 1997. Centrelink investigations gave rise to a suspicion that she had worked and failed to declare her earnings. On 9 October 2006 Centrelink decided that Mrs Kaya had been overpaid PP between 3 November 2004 and 21 August 2006, and raised a debt of $23,132.42. On 20 November 2009, an Authorised Review Officer (ARO) reduced the debt to $12,746.51 on the basis that Mrs Kaya had been overpaid between 30 June 2004 and 25 July 2005 only. The ARO’s decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 17 September 2010.
Mrs Kaya applied to this Tribunal for review of the SSAT’s decision on 25 November 2010. Mrs Kaya gave evidence with the assistance of a NATI accredited Turkish interpreter. The Tribunal also heard evidence from Mr Yalcin, Mrs Erdogan and Mr Okutgen, friends of Mrs Kaya; Mrs Kayhan, Mrs Kaya’s sister; and Mr Duran, her employer. The witnesses each prepared a statutory declaration which was tendered as evidence (Exhibit A1-A5).
The Respondent did not call any witnesses. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT) (the T‑documents) and documents produced under summons by the National Australia Bank (the NAB) (Exhibit R3).
Mrs Kaya contended that the decision to raise the debt is incorrect because she did not work as alleged by Centrelink, save for two weeks and was not overpaid PP. The Respondent contends that the documentary evidence, namely pay slips, bank records, records from the Australian Taxation Office (ATO) and statements from her employer Duranoglu Import and Export Pty Ltd (Duranoglu) found within the T-documents indicated that Mrs Kaya did work between June 2004 and July 2005 and earned in excess of $60,000.
The issues before the Tribunal are:
(a)Did Mrs Kaya fail to declare income from employment to Centrelink?
(b)Was she overpaid PP (single) between 30 June 2004 and 25 July 2005 or some other period?
(c)Is there a debt due to the Commonwealth? and
(d)Is the debt recoverable?
LEGISLATION
Section 1068A of the Social Security Act 1991 (the Act) provides that the rate of PP (single) is calculated in accordance with the Rate Calculator. Module A of the calculator sets out the steps involved and provides that the ordinary income test in Module E must be applied. A person’s ordinary income consists of their gross earnings from all sources (s 1072) and includes An income amount earned, derived or received by the person for the person’s own use or benefit that is not maintenance income or an exempt lump sum (s 8(1)). Therefore, a person’s income may affect the rate of PP they are entitled to receive.
Section 1223(1) of the Act provides that if a person receives a social security payment to which they were not entitled, the amount is a debt due to the Commonwealth. Part 5.4 of the Act sets out circumstances in which the debt may not be recovered, including the existence of special circumstances (other than financial hardship alone) that make it desirable to waive the debt (s 1237AAD).
EVIDENCE
Mrs Kaya
In evidence, Mrs Kaya said that she worked for Duranoglu on a trial basis for two weeks between 11 and 22 July 2005. The position required her to work at the back and the front of the store. However, she was unable to work at the front because her poor command of the English language caused difficulties communicating with suppliers and customers and her employment was ended. She earned $600 per week. She agreed that she did not advise Centrelink of her earnings for that two week trial and acknowledged that it was a mistake on her part. Mrs Kaya said that her friend told her that she was only required to advise Centrelink if she earned $5,000 or more and given that she had only earned $1200 for the two week trial with Duranoglu, she did not believe she was required to advise Centrelink of those earnings.
Mrs Kaya told the Tribunal that she was paid in cash and did not receive a pay packet, receipt or any other document to show what the money was for (Transcript of 3 November 2011, p 9). When she was referred to three pay advices in the T-documents, she acknowledged that they recorded her name and also recorded a gross amount of $1200.04 was paid to her on each of 8 July 2005, 29 June 2005 and 13 July 2005 (T3, p 14-15). However, she denied earning or being paid those amounts. She also denied been given those documents and said she had never seen them until examined at the hearing.
Mrs Kaya said that she did not know who was responsible for the wages at Duranoglu. She did remember a young lady working there but could not recall her name. She was referred to a statement on what appears to be the Duranoglu letterhead and signed by H Z… A…, Payroll Officer on 14 July 2005. The author wrote that Mrs Kaya is employed with the company as a Store Manager, earns $1200 gross per week and is a valuable employee (T3, p 16). Mrs Kaya said that she had never seen this statement and said that if I was that valuable, why did they think my English wasn’t good enough? (Transcript, p 14). There are numerous references to the payroll officer in these reasons. Her identity will not be disclosed and for reasons that will emerge, she will be identified as HZA, HA and JA.
In cross-examination, Mrs Kaya adamantly denied ever having seen the pay advices or the statement of 14 July 2005 prior to the hearing before this Tribunal. She said she did not receive the T-documents and if she had, they would have been at home and she would have brought them to the hearing with her (I note that Mrs Kaya did not have the T‑documents at the hearing but rather the documents received from the SSAT). When asked about the accuracy of her memory, Mrs Kaya said that her memory is not good at all (Transcript, p 16). Despite not keeping a record of the dates and times she worked, she was able to recall precisely when she worked for Duranoglu because she has been asked that question so many times… it’s impossible not to have memorised it (Transcript, p 16). She said that it was impossible that she worked more than two weeks.
When asked whether she could produce evidence to demonstrate that she only worked for two weeks, Mrs Kaya said that she only worked for two weeks and did not know of any other way to prove it. Again she acknowledged that she made a mistake in not advising Centrelink of her earnings during the two week trial and said she is prepared to pay back for that (Transcript, p 17).
Mrs Kaya said in cross-examination that she received two cash payments of $600 in an envelope for the two week trial with Duranoglu. She was not concerned about not receiving a pay advice because she only worked for two weeks. If she was employed on a full-time ongoing basis she said she would have queried the absence of a pay advice. Mrs Kaya said that with the exception of the trial with Duranoglu, she has never worked anywhere else in Australia.
Mr de Uray referred Mrs Kaya to documents produced by the NAB (Exhibit R3). Those documents included a home loan application by Mrs Kaya and approval for that loan. Mrs Kaya said that she doesn’t know anything about the [loan application]. Her husband drank excessively and was a problem gambler. Although they were separated, he would come to her house to visit their child. One day he came to the house with another man and asked her to sign a document because he was buying a house for her (the Roxburgh Park property). She said she could not afford to make payments on a house and he said that he would make the payments. Her husband indicated where her signature was required. She recalled signing at least one document. She could not recall if there were others. She was not sure whether the documents were from the bank. Mrs Kaya said in the Turkish culture – women don’t get much say in these things (Transcript, p 27).
Mrs Kaya was referred to a bank document which she allegedly signed in front of an authorised officer of the bank, FK, who also signed the document as a witness (T11, p 60 and Exhibit R3, p 9). Mrs Kaya said that it did not look like her handwriting and the signature was different to her usual signature. She denied that she ever attended the NAB to sign the document and to have it witnessed. She said she does not know the authorised officer, FK.
Mrs Kaya suggested that her signature may have been forged. I referred her to her application for review to the SSAT. She did not know what the form was and could not recall who completed it. She said the signature was not hers and compared to the signature on the home loan application, she said they’re all very different to each other. One was with big print; the other one was small (Transcript, p 46).
Mrs Kaya said that she was not allowed to open letters, including letters addressed to her. Although her husband was not living with her, he instructed her not to open any letters and to leave them aside for him to collect. When she moved into the Roxburgh Park property in 2005, she said that she noticed a letter from the bank. She asked her husband about it and he told her for the first time that the mortgage was in her name. In response to a question from Mr de Uray, Mrs Kaya said that when she signed the document at the request of her husband and the other man, she was not aware that the mortgage would be in her name; she believed that her husband was purchasing a house for her.
Mr de Uray referred Mrs Kaya to the NAB’s Personal Particulars report in which personal details are recorded (T11, p 62). Mrs Kaya’s name and date of birth appear on the report. However, she said that she thought the residential address was that of her husband from whom she was separated. She said the mobile phone number belonged to him. In the Employment Details section of the report, Mrs Kaya’s Position/Tile is recorded as Manager (T11, p 61). She did not agree with that description and said [h]ow can I be a manager with no English? (Transcript, p 36). Mrs Kaya said that she does not have any qualifications. She was an employee with Duranoglu and her duties involved packaging at the back and tidying up the store. She tried to sell things, but [her] English wasn’t good enough (Transcript, p 36-37).
When questioned about the history of her relationship with Mr Duran, Mrs Kaya said that neither she nor her husband knew him. She said that his wife lives near some friends and she knows her. Friends told Mrs Kaya that he was looking for employees and she approached him. She was advised about the duties, including the need to serve customers. However, she believed that all the customers would be Turkish and when they weren’t Turkish, [she] couldn’t do it (Transcript, p 37).
In response to questions about the mortgage, Mrs Kaya said that it was now paid off. She did not contribute to the mortgage re-payments because she paid the utilities and supported her son. Her husband made most of the payments. He was later injured in an industrial accident and did not earn income. Her siblings gave her the money to meet the remaining repayments until eventually the mortgage was discharged. She could not recall whether she advised Centrelink that her husband had been paying off her mortgage. Mrs Kaya said that she did not receive the money directly and although the house was in her name, she regarded it as being for the benefit of her son.
Mr de Uray questioned Mrs Kaya about her relationship with her husband. She said that there were difficulties in her marriage prior to 2005. However, her husband had left the house, she was afraid to ask where he was living (Transcript, p 40) and he would occasionally visit in 2005 and 2006 to spend time with their son. She agreed that he had a bedroom in the house. She understood that he owned another property which he sold in 2005. She said that her husband worked as a renderer. She learnt that he later ceased working. However, she did not know how he was able to meet the mortgage payments.
Mrs Kaya said that her husband suffered a brain haemorrhage as a result of the industrial accident in September 2008. He had multiple surgeries after the accident and now lives in a nursing home. She said he has not worked since because he couldn’t walk; he couldn’t speak; he couldn’t eat. He has to be fed through a tube (Transcript, p 42). She said she frequently visits her husband in the nursing home because her son wants to see his father and she must take him.
Upon further questioning from me, Mrs Kaya said she was not aware of a Flexi Account with the NAB which was opened on the same day as the Offset Home Loan account and in her name alone. A bank statement for the Flexi Account shows cheque deposits of $34,000 on 19 September 2005 and $30,200 on 20 September 2005 (T11, p 40). The statements also indicate that cash was deposited into the account on 23 September 2005 ($1200), 7 October 2005 ($8,000), 3 February 2006 ($2,200); and 7 March, 24 April and 13 June 2006 ($3,000) (T11, p 40-43). A bank statement for the Home Loan account shows that a cheque for $144,088.15 was deposited to that account on 9 November 2005 and $10,000 in cash was deposited on 22 November 2005 (T11, p 49).
When asked about the source of those deposits, Mrs Kaya said that her husband had sold another property and she presumed that he transferred the proceeds to the home loan for the Roxburgh Park property.
Mr Yalcin
Mr Yalcin recorded in his statutory declaration that he and Mrs Kaya are family friends and have known each other since 1995 (Exhibit A1). He is aware that she worked briefly in mid-2005 for 2 weeks and ceased because her English was poor. He confirmed the contents of his statutory declaration in evidence.
In cross-examination, Mr Yalcin said that he did not write the declaration because he cannot speak or write English. He explained that he dictated it and Mrs Kaya’s sister-in-law wrote it for him. He then signed it. He denied that anyone told him what to write. While he could not specify the exact dates or times that Mrs Kaya worked, he was certain that it was less than 4 weeks and believed that it was more likely to be 2 weeks or 10 days. He said that he knew this because he was seeing her all the time and would ask her (Transcript, p 55-56). He assumed that she ceased work because of the language barrier and when he asked her, she confirmed it.
Mrs Erdogan
Mrs Erdogan has been Mrs Kaya’s neighbour since 1998. They are very good friends and confidants. She recorded in her statutory declaration that she knows for a fact that the Applicant did not work for a long time anywhere (Exhibit A2). Mrs Erdogan stated that Mrs Kaya worked for a Turkish wholesaler for 2 weeks in mid-2005 and Mrs Kaya told her that she could not perform her duties because of her poor English.
Mrs Erdogan confirmed the contents of her statutory declaration in evidence. In response to a question from me, she said that she was certain, 6 years later, that Mrs Kaya worked for 2 weeks only in mid-2005 because they see each other almost daily and talk about everything. Mrs Kaya also left her son in Mrs Erdogan’s care a couple of times (Transcript, p 58). Although she could not recall the exact dates Mrs Kaya worked, she knew that it was during the week in the middle of 2005. She did not believe it could have been more than 2 weeks because she and Mrs Kaya normally have their breakfast together.
Mr Okutgen
Mr Okutgen has known Mrs Kaya and her family since 1996. Their children were in the same class at primary school. He recorded that one day he went to pick up his child from school and Mrs Kayhan, Mrs Kaya’s sister was picking up Mrs Kaya’s son. When he asked where Mrs Kaya was, Mrs Kayhan told him that she was working. He stated that a couple of weeks later, [he] saw [the Applicant] picking up her son and she told him that she had to leave the job because she was unable to speak English (Exhibit A3).
Mr Okutgen confirmed the contents of his statutory declaration in evidence. In cross-examination he said he wrote it himself and denied that Mrs Kaya told him what to write. He could not specify the exact dates Mrs Kaya worked. When challenged he said that he used the expression a couple of weeks because he was uncertain whether Mrs Kaya worked for one week or three. In addition to Mrs Kayhan collecting Mrs Kaya’s son from school, he noticed that for a short period, Mrs Kaya was not visiting his wife at his home.
Mrs Kayhan
Mrs Kaya’s sister, Mrs Kayhan prepared a statutory declaration on 13 October 2011 in which she stated that her sister worked for Duranoglu from 11 July 2005 to 22 July 2005 and she ceased work because of her poor command of the English language. Mrs Kayhan collected her nephew from school during this period.
In cross-examination, Mrs Kayhan said that she was able to recall the exact dates her sister worked because she has had to repeat it numerous times in response to Centrelink enquiries. She confirmed her sister’s evidence about Mr Kaya’s workplace accident and his current health.
Mrs Kayhan said that she was aware of the home loan. However, she did not know it was with the NAB. She said that after Mr Kaya’s accident, she and her other siblings provided the money to discharge the mortgage.
In cross-examination, Mrs Kayhan said that she did not ask the other witnesses to attend the Tribunal to give evidence nor did she tell them what to write in their statutory declarations.
Mr Duran
Mr Duran prepared a statutory declaration on 10 October 2011 (Exhibit A4). He recorded that Mrs Kaya was employed by his company, Duranoglu on a trial basis between 11 July 2005 and 22 July 2005. At the end of the trial, there was a mutual understanding that her lack of English prevented her from fulfilling the duties expected of her.
Mr Duran confirmed the contents of his declaration in evidence. He said that he recorded the period between 11 and 22 July 2005 after seeking confirmation from his secretary who checked the company’s records. He did not have his records with him at the hearing, however, he said he could make them available.
In cross-examination he said he did not know Mrs Kaya’s husband prior to 2005, although he is now aware that her husband is unwell. Mr Duran said that Duranoglu is still operating with the trading name Sera Food International Pty Ltd. In relation to Mrs Kaya’s employment with his company, he said that his secretary had the authority to employ suitable persons who would begin on a trial basis. At the conclusion of the trial, it became obvious that Mrs Kaya’s lack of English prevented her from communicating with customers who were not Turkish. He said that Mrs Kaya was on trial as a store manager and it was anticipated that she would manage a small store with two or three other employees (Transcript, p 75). He said that ordinarily, he would interview candidates, particularly for important roles such as management. He did not interview Mrs Kaya because she had been engaged on a trial basis. He only engages persons as permanent employees.
Mr Duran was referred to a statement dated 13 October 2006 on Duranoglu letterhead signed by the payroll officer, HA (T21, p 128). It records that Mrs Kaya was employed between 11 and 22 July 2005 as a store manager and earned $1200 gross per week. He identified HA as his previous secretary who was then aged 30. She was responsible for hiring Mrs Kaya in 2005. HA is no longer employed by the Duranoglu and he does not know where she is. Mr Duran had no knowledge of the statement. He said that he paid Mrs Kaya $600 per week in cash but she was not registered as an employee because she was on trial. Mr Duran was also referred to the statement dated 14 July 2005 in which the payroll officer confirmed that Mrs Kaya is employed with the company as a Store Manager, earns $1200 gross per week and is a valuable employee (T3, p 16). He confirmed that HA and HZA are the same person. He said he could not comment on the statement because he did not write it. However, if he was happy with Mrs Kaya’s performance, he said he would have retained her as a permanent employee.
Mr de Uray referred Mr Duran to a Centrelink Work Details Report sent to Duranoglu on 31 July 2006 (T12, p 70). The form has not been completed. However, HA wrote on the form that Mrs Kaya has never worked for Duranoglu (T2, p 73). Mr Duran could not understand why that note was made.
When referred to the Duranoglu pay advices for Mrs Kaya (T3, p 14-15), Mr Duran said he did not know anything about these documents and that anyone could have written this; there’s no letterhead (Transcript, p 79). Although Mr Duran’s accountant would prepare pay advices, he would see them and the documents presented to him (at T3) did not resemble the pay advices issued by his accountant. When challenged, he said I didn’t say they’re not from my company. I said I didn’t know nothing about this (Transcript, p 80). Mr Duran again said he was prepared to provide his records, including a copy of a pay advice used in 2005.
Mr Duran was referred to a PAYG Summary that recorded that Mrs Kaya earned $62,402 and $21,217 of tax was withheld between July 2004 and June 2005. He said, I don’t know anything about this… she didn’t work… this is totally wrong (Transcript, p 85). He said he was surprised and had not seen the documents prior to giving his evidence. (I explained to him the importance of his records to this review and the need to make them available to the Tribunal which he undertook to do.)
Duranoglu Employment and Financial Records
At the conclusion of Mr Duran’s evidence, Mr de Uray and I agreed that the employment and accounting records pertaining to Mrs Kaya were crucial in this application and the hearing should be adjourned part-heard to cause those records to be produced and examined. After a lengthy discussion in the presence of Mr Duran, I decided that a summons should be issued to both Mr Duran’s office and his accountant. Mr Duran was advised that he will be required to attend the resumed hearing to assist in interpreting the records. He indicated a preparedness to do so. I also asked the Respondent to consider whether records could be obtained from the ATO and whether the Respondent has the ability to locate the payroll officer, Ms HA.
Mr Duran identified his account’s firm as FK accountant in Sydney Road, Coburg. However, searches after the hearing using that information did not reveal any such firm. Consequently, one summons was issued to Mr Abdulbaki Duran C/- Duranoglu Imports and Exports Pty Ltd on 7 November 2011. A process server was engaged by the Tribunal on the same day. On 21 November 2011, the Tribunal was advised by the process server that Mr Duran could not be located. The process server and Tribunal staff conducted searches of other residential and business listings for Mr Duran and his company without success. All the telephone numbers for Mr Duran and Duranoglu were disconnected.
On 22 November 2011 the District Registrar wrote to Mrs Kaya and Mr de Uray advising that attempts to locate Mr Duran as advised by a process server were unsuccessful. Attempts to also contact him by telephone were unsuccessful. Both parties were notified that …no further attempts will be made by the Tribunal to serve or contact Mr Duran. However, this does not prevent you from pursing the matter.
The Tribunal contacted Mrs Kaya to ascertain whether she had Mr Duran’s current contact details. She provided a mobile telephone number and numerous attempts were made to contact him. However, an automated message stated that there were incoming call restrictions on that number. No further attempts were made by the Tribunal to locate Mr Duran. I was informed that Mrs Kaya’s attempts to locate Mr Duran through his wife revealed that she did know of his whereabouts and he had not made contact with his children for some time.
The hearing resumed on 16 December 2012. Mr Duran did not then appear and the records that had been sought were therefore, not available. Neither party tendered any additional material either from Duranoglu or the ATO. Neither party made any attempt to locate Ms HA, the payroll officer.
CONSIDERATION OF THE ISSUES
The first issue to be determined is whether Mrs Kaya was overpaid PP between 30 June 2004 and 25 July 2005. This depends on whether she earned income which she failed to declare to Centrelink. On the Centrelink documents, the evidence against Mrs Kaya may be thought to be compelling. There are three pay advices apparently issued by Duranoglu to Mrs Kaya dated 8 July 2005, 29 June 2005 and 13 July 2005 (T3, p 14‑15). The three advices record a weekly gross pay of $1,200.04, as well as tax and superannuation contributions. The advice issued on 29 June 2005 also indicates that the total of Mrs Kaya’s gross pay to that date was $62,402.08 which suggests that she was working for most of the 2004/2005 financial year.
There is a statement dated 14 July 2005 signed by Ms HZA, Duranoglu’s payroll officer (T3, p 16). It appears on the Duranoglu letterhead and confirms that as at 14 July 2005, Mrs Kaya was employed by the company earning $1200 gross per week and was considered a valuable employee.
In further support of the Respondent’s position, there is documentation from the NAB, namely a home loan application and bank statements. The home loan application purports to be an application by Mrs Kaya for a loan of $241,000. The Personal Particulars form which appears to have been signed by Mrs Kaya records that she had been employed full-time for two years as a store manager for Duranoglu and her gross monthly income was $4,800 (Exhibit R3). That information also appears on a Customer Particulars Report (T11). Amongst the bank documents is a contract for the home loan which Mrs Kaya apparently signed in the presence of a witness, Ms FK, an authorised officer of the bank.
A Flexi account was opened with the NAB on 26 July 2005 for which Mrs Kaya was the sole account holder (T11, p 40). An Offset Home Loan account was also opened with the NAB on the same day. The bank statements for these accounts reveal regular fortnightly home loan repayments of $805 in 2005 and 2006. They also show substantial deposits into those accounts in 2005 and 2006. On the basis of the bank statements it would be reasonable to infer that Mrs Kaya had been working and earning a regular income sufficient to allow her to meet the repayments on the home loan.
Mrs Kaya admits that she worked for Duranoglu for two weeks between 11 and 22 July 2005. She also admits that she failed to advise Centrelink of the income she earned during that period. That she only worked for two weeks is supported by the evidence of her friends and family and Mr Duran, the employer, who attended the Tribunal.
Mr Yalcin, Mrs Erdogan and Mr Okutgen could not specify the exact dates on which Mrs Kaya worked for Duranoglu, although they agreed that it was for a short period. Mr Yalcin said that as family friends, they spoke often and he recalled her working for less than four weeks in mid-2005. He believed that it was more likely two weeks. Mrs Erdogan described a close relationship between her and Mrs Kaya. She did not believe she worked for more than two weeks on the basis that they have their breakfast together almost daily and while working, Mrs Kaya left her son in Mrs Erdogan’s care on a couple of occasions. Mr Okutgen said that Mrs Kaya worked for a couple of weeks because he noticed her sister collecting her son from school. He also noticed that Mrs Kaya was not visiting his wife for a short period.
These witnesses gave sworn evidence and I have no reason to question their credibility. Their evidence was consistent with Mrs Kaya’s evidence. Significantly, Mr Duran, the employer said that Mrs Kaya was employed on a trial basis for two weeks only between 11 and 22 July 2005 and the employment was terminated because her lack of English prevented her from fulfilling the duties. Having observed Mrs Kaya give her evidence with the assistance of an interpreter, I accept that her English skills are very limited and she would therefore, have difficulty (especially six years previously) communicating with non-Turkish speaking customers.
Mr de Uray submitted that the witnesses called by Mrs Kaya were not truly independent and further, that they gave their evidence on the basis of what they were told by either Mrs Kaya or her sister, Mrs Kayhan. He added that they were asked to recall for the first time events that occurred six or seven years earlier (Transcript, p 14). Mrs Kaya represented herself with the assistance of her sister at the hearing without the benefit of legal representation. She did so, through an interpreter because her command of the English language is virtually non-existent. She filed statutory declarations prior to the hearing and called those witnesses to give evidence on her behalf. When she was informed about the inability to locate Mr Duran, unlike the Respondent, she made attempts to contact him. I accept that her case may not have been prepared or presented as it would have been had a lawyer been engaged. However, in the circumstances, her efforts and perseverance were admirable.
Mr de Uray relied on three pay advices (T3, p14-15). Mrs Kaya acknowledged that her name appeared on each pay advice. However, she denied ever having received a pay advice and said that she had never seen these documents prior to the review. I accept her evidence, particularly when it is corroborated by the evidence of Mr Duran.
Mr Duran said he did not know anything about the pay advices. Although he did not dismiss the possibility that the pay advices were issued by his company, he said that they did not resemble the pay advices issued by Duranoglu and the absence of the company’s letterhead indicated to him that anyone could have written this (Transcript, p 79). Consistent with Mrs Kaya, he said that she worked for two weeks and he paid her $600 cash per week. In the circumstances and in the absence of evidence from the payroll officer, I find it difficult to accept that the three pay advices are genuine or indeed an accurate record of Mrs Kaya’s employment and earnings.
To further support the Respondent’s position, Mr de Uray relied on the statement signed by Ms HZA which confirmed that as at 14 July 2005, Mrs Kaya was employed by Duranoglu and earned $1200 gross per week (T3, p 16). Closer examination of the material before me revealed that this statement is inconsistent with two further documents before the Tribunal. The first is a statement dated 13 October 2006 also signed by Ms HA, payroll officer which states that Mrs Kaya was employed as a store manager from 11 to 22 July 2005 and earned $1200 gross per week (T21, p 128). The second is a Work Details Report which Centrelink sent to Duranoglu’s payroll officer for completion. It was returned to Centrelink incomplete with a notation made by Ms JA stating that this person has never worked for Duranoglu (T12, p 70-73). Having regard to the evidence of Mr Duran and the similarity between the names, I am satisfied that HZA, HA and JA are the same person. Given the three different accounts from the payroll officer, I cannot place any weight on those documents.
Mr de Uray submitted that the bank documentation is objective and the Tribunal should place significant weight on it. He submitted the home loan application which Mrs Kaya signed in the presence of a witness, confirmed that she was employed by Duranoglu as a store manager and earned $1200 gross per week. He further contended that in those circumstances, it was extraordinary and far-fetched that her personal details may have been falsified by a third party. With all due respect to Mr de Uray, I disagree with his conclusion for several reasons.
Mrs Kaya vehemently denied employment with Duranoglu with the exception of two weeks and this was supported by her witnesses, including Mr Duran. She said that her husband purchased the home in Roxburgh Park for the benefit of their son and that he would meet the repayments. She admitted signing documents at the request of her husband but did not understand the nature of the documents. She denied attending the bank and meeting Ms FK. She suggested that her signature may have been forged. However, she did say that her memory is poor and I accept that she may not recall signing a document before Ms FK.
Assuming that she did attend the bank, Ms FK, the authorised officer witnessed Mrs Kaya signing the facility agreement which included a declaration that the information provided to the bank was accurate. There is no evidence that the terms of the contract or the declaration were interpreted to Mrs Kaya. In any event, it does not follow that the witnessing of the signature on the facility agreement would prevent a third party falsifying Mrs Kaya’s personal details, particularly when it is not known where the Personal Particulars form was completed. Perhaps my conclusion may have been different if Ms FK was called to give evidence. There was no evidence from any bank officer nor were the entire bank records produced. Some pages of the bank records within the T‑documents were missing.
In addition to the home loan application, Mr de Uray relied on the bank statements which showed regular fortnightly home loan repayments of $805 in 2005 and 2006 and large deposits. When questioned on this issue, Mrs Kaya said that her husband made those repayments. He was a qualified renderer and was employed until he had his accident in 2008. Therefore, he had an income and the means to meet those repayments. When asked to explain the substantial deposits to the bank accounts, Mrs Kaya said that her husband sold his house and used the proceeds of that sale on the mortgage for the Roxburgh Park property. I accept her explanation. There was no evidence to the contrary. In fact, the bank records available to the Tribunal lend support to her contention that her husband made payments to the home loan or at least made substantial contributions to it. An examination of the bank statements and bank deposit slips (T11 and T23) reveal that her husband contributed $208,288 to the $241,000 home loan made up of the following transactions:
(a)$30,200 drawn on his Citi Bank Account on 20 September 2005 (T23, p 141);
(b)$34,000 drawn on the same account on 9 September 2005 (T23, p 139); and
(c)$144,088.15 of which $4,250.45 was drawn on his account with the Commonwealth Bank of Australia and $139,837.70 was drawn on his ANZ bank account on 9 November 2005 (T23, p 138).
The bank statement indicates that fortnightly loan repayments of $805 were transferred from the credit balance in the Flexi account into the home loan account. The bank statements do not records receipt of income of $1200 per week or receipt of any income from any employment.
Statements from the Commonwealth Bank of an account in the name of Mrs Kaya between 1 April 2004 and 30 August 2006 (T15) record receipt of Centrelink pension payments only. No other moneys were deposited.
The substantial deposits into the NAB account by Mr Kaya reduced the mortgage balance at 7 November 2005 from $240,212.49 to $96,124.34. At 10 March 2006 being the date of the last NAB statement, $80997.01 was outstanding and fortnightly payments were continuing at $805 from the flexi account.
The weight of the evidence, especially the evidence at the hearing which was given by Mrs Kaya and her witnesses, gives an explanation not readily seen by the documents. I am satisfied on the balance of probabilities that the scales tip in her favour.
I was referred to a PAYG Payment Summary dated 10 July 2005 which indicated that $21,217 in tax was withheld from Mrs Kaya by Duranoglu and her gross earnings for the year ended 30 June 2005 was recorded as $62,402 (T22, p 132). When Mr Duran was asked to comment on this document, he said he was surprised and that it was totally wrong because she was not employed by Duranoglu (Transcript, p 85).
Mr de Uray submitted that Mr Duran’s evidence should be treated with caution because despite being informed about the importance of his employment records pertaining to Mrs Kaya and undertaking to produce them, he failed to do so at the resumed hearing on 16 December 2011. Not only did he fail to produce records but curiously, he could not be located or contacted.
Mr Duran attended the Tribunal on 3 November 2011 and he waited until 3pm before he was called. He then gave sworn evidence in support of Mrs Kaya. He said that she worked on a trial basis for two weeks in July 2005 and her employment was terminated because of poor English language skills. He also questioned the legitimacy of the documents that suggested otherwise. His disappearance is curious. However, I am not prepared to disregard his evidence, particularly when it is consistent with the evidence of Mrs Kaya and the other witnesses.
Attempts to serve Mr Duran with a summons initiated by the Tribunal and attempts personally by Mrs Kaya to locate him were unsuccessful. Criticism of Mrs Kaya for failing to call Mr Duran or produce his records at the resumed hearing was unfair, especially having regard to the resources available to the Respondent and its obligations pursuant to s 33(1AA) of the AAT Act to use its best endeavours to assist the Tribunal to make its decision in relation to the proceeding. Equally, I think it is unfair to have criticised Mrs Kaya for failing to have made enquiries of Mrs Duran about the whereabouts of her husband, especially when enquiries had in fact been made and Mrs Duran had advised Mrs Kaya that she did not know of her husband’s whereabouts (refer paragraph 45). It was open to the Respondent to attempt to locate Mr Duran and/or to call his wife to give evidence in this review and chose not to do so. The invitation to draw an adverse inference against Mrs Kaya was also unfair.
Having examined all the evidence, I must say, the timing of these events is noteworthy. Mrs Kaya admits that she worked for two weeks from 11 to 22 July 2005. The statement from the payroll officer confirming her employment was prepared on 14 July 2005; the three pay advices are dated 29 June, 8 July and 13 July 2005; the PAYG payment summary is dated 10 July 2005; and the home loan application was lodged on or about 18 July 2005. If Mrs Kaya was employed with Duranoglu from 2004 as alleged, I find it extraordinary that there is no material from 2004 or at least before June 2005 in support of that employment in either the T-documents or from the bank or elsewhere.
It may be said that this material, namely, the statement of 14 July 2005, the three pay advices and the PAYG payment summary were contrived to represent Mrs Kaya as a suitable and secure borrower for the purpose of obtaining a home loan. If that is so – and I do not make that finding – that is a matter between Mrs Kaya and the bank. I am inclined to the view, on the evidence heard, that the mortgage was taken out to fund the purchase of a home for Mrs Kaya. She understood her husband was buying a house for her. She did not know that there would be a mortgage registered in her name. There was evidence that Mr Kaya gambled heavily before his accident and it was thought the Roxburgh Park property registered in the name of Mrs Kaya only would never be available to him to meet gambling debts. I am not satisfied that Mrs Kaya was involved in, or had knowledge of the mortgage application.
On balance, I am satisfied that Mrs Kaya did not work for Duranoglu between 30 June 2004 and 25 July 2005. I am satisfied that she did work for the company between 11 and 22 July 2005 and earned income which she failed to declare to Centrelink. She earned a total of $1200 for that period which qualifies as ordinary income and should have been taken into account by Centrelink in calculating her entitlement to PP.
On the material available to the Tribunal, there is no evidence to permit a finding that the Applicant’s circumstances are such as to warrant a waiver or write-off of any overpayment.
DECISION
Accordingly, the Tribunal sets aside the reviewable decision dated 17 September 2010 and remits the matter to the Respondent for calculation of overpayment, if any, in accordance with these reasons. An overpayment, if found with respect to that limited two week period, will be a debt due to the Commonwealth. The issue of recovery is also remitted to the Respondent.
I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member.
...............................[sgd].............................
Associate
Dated 2 April 2012
Date(s) of hearing 3 August, 26 September and 16 December 2011 Applicant In person Advocate for the Respondent Mr T. de Uray Solicitors for the Respondent Centrelink Program Litigation and Review Branch
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