Li and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 204

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1102

GENERAL ADMINISTRATIVE DIVISION		)
Re		Yan Cong Li

Applicant

And Secretary, Department of Education, Employment & Workplace Relations

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date28 March 2011

PlaceSydney

Decision The decision under review is SET ASIDE and this matter remitted to the Respondent with the direction that the Applicant was a member of a couple for the periods 2 May 2000 to 26 March 2003 and from 26 March 2004 to 15 May 2009.

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

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY:  Whether Applicant was a member of a couple.  Marriage between the Applicant and husband one of convenience but sufficient indicia of marriage-like relationship existed to identify the Applicant as a member of a couple for two distinct periods.

LEGISLATION

Social Security Act 1991,Ss4(2) and (3), 1236(1), 1237A and AAD

CASES

Secrecretary, Department of Social Security v Ellis (1996-7) 535

Baker v Reg  (2004) 78 ALJR 1483

Pelka v Secretary, Department of Families Housing Community Services and Indigenous Affairs (2008) 145 FCAF 92.

Lynam v Director General of Social Security (1982-4) 6 ALD N28

REASONS FOR DECISION

28 March 2011 M D Allen, Senior Member            

1.By application made 19 March 2010 the Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”) on 15 February 2010 that determined that the Applicant:

(i)Was a member of a couple with Mr Liu from 2 May 2000 to 15 May 2009;

(ii)The Applicant’s entitlements to social security payments were to be reassessed by taking into account the Applicant’s and Mr Lui’s actual income for that period; and

(iii)There were no special circumstances pursuant to which any existing debts by the Applicant to the Respondent should be waived or written off.

2.The issues in this matter are therefore:

(i)Was the Applicant a member of a couple in the period 2 May 2000 to 15 May 2009 or any part thereof and therefore overpaid Newstart allowance and parenting payments single;

(ii)Whether the overpayments of Newstart allowance and parenting payment single are recoverable debts;

(iii)Whether there are grounds to write off or waive all or any part of the recoverable debts;

(iv)Whether the decision to cancel the Applicant’s parenting payment was correct.

3.Subsection 4(2) of the Social Security Act 1991 (“SSA”) states:

“Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)  the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(aa)  both of the following conditions are met:

(i) a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

(ii)  the person is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b)  all of the following conditions are met:

(i)  the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner );

(ii)  the person is not legally married to the partner;

(iii)  the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;

(iv)  both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v)  the person and the partner are not within a prohibited relationship.”

Whereas, Ss4(3) SSA states:

“In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)  the financial aspects of the relationship, including:

(i)  any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)  any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)  any legal obligations owed by one person in respect of the other person; and

(iv)  the basis of any sharing of day‑to‑day household expenses;

(b)  the nature of the household, including:

(i)  any joint responsibility for providing care or support of children; and

(ii)  the living arrangements of the people; and

(iii)  the basis on which responsibility for housework is distributed;

(c)  the social aspects of the relationship, including:

(i)  whether the people hold themselves out as married to, or in a de facto relationship with , each other; and

(ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)  the basis on which the people make plans for, or engage in, joint social activities;

(d)  any sexual relationship between the people;

(e)  the nature of the people's commitment to each other, including:

(i)  the length of the relationship; and

(ii)  the nature of any companionship and emotional support that the people provide to each other; and

(iii)  whether the people consider that the relationship is likely to continue indefinitely; and

(iv)  whether the people see their relationship as a marriage‑like relationship or a de facto relationship.”

4.In Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, the Full Court of the Federal Court said of Ss4(3) SSA:

“The matter to which s4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other.  It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person. The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different from the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl.  The same reasoning applies in relation to the commitment of Mr Kuhl to Ms Pelka.  The Tribunal, as the decision maker, had regard to precisely the matter to which it was required to have regard, namely, the nature of the commitment of Ms Pelka and Mr Kuhl to each other.”

5.In particular the Court had said earlier at paragraph 24 of the specific matters set out in Ss4(3) SSA:

“There is nothing in s 4(3) that requires the relevant decision maker to make a finding of fact as to any of the matters specified in that provision. Rather, the decision maker is required to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people. Having regard to a matter does not require making a finding of fact about that matter…”

6.The Applicant arrived in Australia in 1998 as a student.  She has since gained Australian citizenship.  She met her former husband Liu Ming in September 1997 and they married in October 1997.  At that time the Applicant had permanent residency in Australia but her husband did not and his visa was about to expire.  At about the time of the marriage the husband informed the Applicant that he had previously been married in China.

7.Three years into the marriage the Applicant became pregnant.  At this time the husband told the Applicant that he had a daughter in China and that he wanted to bring his daughter to Australia.  In response to this request the Applicant asked to go to China to meet his daughter, but his daughter did not respond to her so his daughter remained in China.

8.During the visit to China with her husband the Applicant found him in bed with another woman at his mother’s house.  The upshot of this was that when they returned to Australia, the Applicant required the husband to leave the matrimonial premises of which she was the owner.

9.Later, the Applicant’s husband told her he was living with a Mr Rong Bin Shen, originally at Granville and then when Mr Shen and his wife moved premises, at Auburn.

10.Both the Applicant and the Respondent have attempted to locate Ron Bin Shen.  The Respondent served a summons on Mr Shen by delivering it to an adult person at the address Mr Shen was known to be living.  In passing I note that this mode of service is not in conformity with Regulation 15 of the Administrative Appeals Tribunal Regulations 1976 as amended.  Suffice it to say that Mr Shen did not make any appearance at the Tribunal, nor could he be contacted during the course of these proceedings.

11.Following her husband’s departure from the matrimonial home the Applicant applied for Newstart allowance.  On 15 May 2000 the Applicant was informed by Centrelink that she was exempt from looking for work from 15 May 2000 due to her confinement.

12.The Applicant’s daughter was born at the end of May 2000.  On 4 July 2000 the Applicant applied for family allowance, stating that she had separated from her husband on 5 March 2000.  This date is inaccurate as the Applicant and her husband returned to Australia from China on 5 March and in evidence she said that her husband stayed a few days at the matrimonial premises in order to pack.

13.I do however accept the Applicant’s evidence that she said to her husband “You must go” and, although upset, he left.

14.Although separated, the Applicant’s husband visited her at the hospital when their baby was due and remained at the hospital while she gave birth.  The husband was nominated as the Applicant’s next of kin.  He visited her and the child while they were in hospital but did not take her home from the hospital.

15.The husband then continued to visit the Applicant and the child at the Applicant’s residence.  The Applicant said that she could not prevent her husband from coming to see the child, although he never looked after the child.  That statement must be qualified as the husband apparently did bath the child.

16.During the period 2000 to 2005 the Applicant obtained tertiary qualifications, namely a Masters Degree in Finance from the University of Wollongong.  During this time the child was cared for by the Applicant’s mother, although the husband did visit.  There were times when he ate at the Applicant’s home unit.  The Applicant did see her husband on weekends and said that at weekends he would be asked to help her with the shopping.

17.Until the husband’s return to china in 2009 the Applicant continued to receive his mail.  She said that she did not read the mail but just held it for him.  In his evidence the husband said that the Applicant would wait until he came then open his mail and read it to him.

18.The Applicant’s husband departed for China on 26 March 2003.  In the period from the alleged date of separation until the husband’s departure to China, the Applicant and her husband continued a close degree of involvement with each other.

19.At an interview held with a Centrelink Officer on 13 May 2009 the Applicant agreed that she told her daughter’s school that her husband lived with her and that when admitted to hospital on 30 May 2000 and 9 June 2000 she had listed her husband as next of kin.

20.The Applicant also conceded that her husband was contacted by his friends at her address and that he gave her address as his for official purposes such as for his drivers’ licence and bank statements.  At times he stayed at her home unit, sleeping on a couch.  The fact of their separation was not generally known and they continued to be invited to functions as a couple.

21.The material before me is very vague as to the husband’s sources of income.  It would appear he was not in the habit of lodging tax returns and the Applicant referred to his playing the poker machines and mah-jong.  A more interesting comment by the Applicant was that friends of the Applicant who knew their situation would not come and give evidence on her behalf as they were “illegal”.  I draw the inference that any income the husband did obtain while he was in Australia was not fully declared, and was more probable than not, incurred on the ‘black’ economy.

22.As stated above, the husband departed for China on 26 March 2003.  He returned to Australia on 26 March 2004.  In evidence to the Tribunal the husband said “I was looking for business to do and if I had been successful I would not have come back”.

23.In re-examination the Applicant accused the husband of living with another woman while he was in China.  Tellingly the husband replied “I was already separated from you, why couldn’t I live with other people?”

24.Upon his return to Australia on 26 March 2004 the husband asked the Applicant for a divorce.  By order of the Federal Magistrates Court that divorce took effect from 2 December 2005.

25.Notwithstanding the divorce between the Applicant and her now former husband, in the period following his return from China in March 2004 the parties appear to have continued as they had prior to the husband’s departure for China.

26.The husband’s mail continued to be sent to the Applicant’s address.  She continued to use his credit card, although the husband was reimbursed by the Applicant.  He was permitted to not only drive the Applicant’s motor vehicle, but also to have possession of it and the garage at the Applicant’s home unit was used to store the husband’s tools.

27.The Applicant was injured in a motor vehicle accident in 2008.  During the period she was incapacitated, namely from May to August, he came to her home unit and looked after their daughter.

28.Since 2004 the parties have had two trips to China together.  In 2006 the Applicant accompanied the husband to China as he had promised her a divorce settlement of $15,000.00 and she went with him to China to ensure she got this money.  In the end she received $7,500.00 in China and another $7,500.00 when she returned to Australia.

29.In 2008 the Applicant undertook a business trip to Hong Kong and China.  She was accompanied by her daughter but she arranged to hand over the child to her former husband at Shanghai.  He then took the child to visit his mother while the Applicant toured China for two weeks.  They then returned to Australia on the same flight.

30.Previously the Applicant has stated that the fact the husband was on the same flight from China to Australia with her was a mere coincidence.

31.In 2007 the husband’s brother visited from China.  The Applicant accompanied the brother and his family together with her husband to the Gold Coast for a holiday.  She states that although she accompanied her former husband, she slept on a couch during this trip.

32.The Applicant was extensively cross examined regarding the use of the husband’s credit card.  Although in the period 2005 to 2009 the husband was allegedly residing at Auburn, an examination of the use of the card shows that no entries indicated that it was used for any purpose at Auburn or its surrounding suburbs, but considerable use was made of the credit card in and around the suburb where the Applicant resided.

33.I am satisfied that at all times the relationship between the Applicant and her now former husband has been one of mutual convenience rather than an ongoing union of two people to the exclusion of all others.  But as Fitzgerald J pointed out in Lynam v Director General of Social Security (1982-4) 6 ALD N28 at N29:

“What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.  In any particularly case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

34.Having regard to the matters set out in Ss4(3) SSA it can be said that:

(i)At all times during the relationship that there was a degree of financial interdependence between the parties.  The Applicant continued to use the husband’s credit card and they shared the use of the Applicant’s motor vehicle.

(ii)It would appear both parties took a degree of responsibility for their child.  The husband continued to have his mail forwarded to the Applicant’s residence and she stored items for him.  The husband continued to visit and said that if the Applicant was in a good mood he would stay overnight at her home unit.  The husband also assisted by undertaking repairs to the residence and painting.

(iii)The Applicant has advised her daughter’s school that she is married and that she and her husband lived together.  They have taken a holiday to the Gold Coast together, with her husband’s brother, and the Applicant stated that she has held herself out to be still married to her husband.

(iv)The commitment of the Applicant and her husband to each other cannot be said to be ongoing or close but during the periods in question the Applicant has had support from her husband and even as late as 2008 he gave support to her and their child when the Applicant was injured in a motor vehicle accident.

35.I am satisfied that in the period 2 May 2000 to 26 March 2003 the Applicant was not living separately and apart from her husband.  However it is clear that once the husband departed for China on 26 March 2003 the consortium vitae ceased.  The husband gave evidence that if his business had prospered he would have remained in China and the clear inference from his evidence is that whilst in China he was living with another woman.

36.Upon the husband’s return to Australia on 26 March 2004, even though he then asked the Applicant for a divorce, the parties resumed their relationship on the same terms as previously.  Apart from the fact of a decree absolute nothing in their relationship changed until the husband finally departed for China in or around June 2009.

37.Section 1236(1) SSA provides that a debt due to the Commonwealth may be written off. As the Applicant’s debt to the Commonwealth has been paid, write off is not an option that needs to be considered.

38.Section 1237A SSA provides that a debt can be waived if it was incurred due to administrative error. No such error has been demonstrated in this matter.

39.Section 1237AAD SSA provides that a debt may be waived if special circumstances exist. The term ‘special circumstances’ has been discussed in decisions not only of this Tribunal but also by the Federal Court. Suffice it to say that for special circumstances to exist there must be something to take the case out of the ordinary. This might be because something unfair, unintended or unjust has occurred but the expression “out of the ordinary” invokes an enquiry being made. In this matter I see nothing to take the Applicant’s circumstances out of the ordinary or usual case so that it could be said special circumstances exist. Cf Secretary, Department of Social Security v Ellis (1996-7) 535 at 539 and Gleeson CJ in Baker v Reg (2004) 78 ALJR 1483 at 1487 paragraph 13.

40.     The decision under review is set aside and this matter remitted to the Respondent with the direction that the Applicant was a member of a couple for the periods 2 May 2000 to 26 March 2003 and from 26 March 2004 to 15 May 2009.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ..........[sgd]...........................
  K. Lynch, Associate

Dates of Hearing         2 February and 10 & 11 March 2011
Date of Decision         28 March 2011
Representative for the Applicant              Ms Li (self)
Representative for the Respondent          Centrelink Legal Services