Lin and Secretary, Department of Social Services
[2014] AATA 194
•9 April 2014
[2014] AATA 194
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/5333
Re
Wei Ming Lin
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D Letcher QC, Senior Member
Date 9 April 2014 Place Sydney The Decision under review is affirmed
.......................[sgd].................................................
Mr D Letcher QC, Senior Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Request for information – Suspension of payment – Failure to comply ‘without reasonable excuse’ – Unexplained cash deposits – Decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
9 April 2014
The applicant was born in Shanghai, China on 8 October 1962, and came to Australia in December 1989. He received Newstart Allowance (“NSA”) from 26 February 2001 until 15 June 2013 when, after receiving information and pursuing enquiries, Centrelink suspended his payments. The applicant requested a review, and on 16 July 2013 a Centrelink Authorised Review Officer confirmed the suspension. The applicant then sought a review by the Social Security Review Tribunal (“SSAT”) which, on 23 September 2013, affirmed the Centrelink decision. The applicant now seeks review of the SSAT determination.
LEGAL BACKGROUND
Section 80(1) of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended“.(Emphasis added – this is a mandatory direction)
Section 80(4)(b) defines “Social security payment” to include Newstart Allowance.
Section 81 provides that if a person is receiving a social security payment, “other than a Newstart allowance”, and they do not comply with a notice under s 67, 68 or 192, “the Secretary may determine on cancellation or suspension.” (Emphasis added – this is a discretionary decision).
However, Section 631 of the Social Security Act 1991 (Cth) (“the main Act”) provides that:
“A Newstart allowance is not payable to a person if the person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 67, 68 or 192 of the Administration Act”.(Emphasis added)The difference between these provisions is that a refusal or failure to comply ‘without reasonable excuse’ renders the Newstart allowance ‘not payable’ under s631, and under s80(1) it is mandatory for the Secretary to suspend or cancel the payment. If the payment is not a NSA then s81 applies, and the Secretary has discretion as to the appropriate outcome.
In the case of this applicant receiving NSA, Centrelink sent a Request for Information under s192 to the applicant on 31 May 2013 requiring him to provide information within 14 days. The request was made in the following terms:
“Please advise the source of all cash deposits made to your Westpac bank account during period 21/2/2012 to 21/2/2013. Please include documentary evidence to support your claims”
Centrelink had received a ‘tipoff’ that the applicant was receiving additional sources of income, and had obtained records of the applicant’s ANZ and Westpac bank accounts to verify the claim. The records noted cash deposits made into the Westpac account which were of a size and regularity that was possibly consistent with earnings or business takings.
The Request did not require the applicant to reply in writing, and permitted, under the heading “How to provide the information”, that the applicant could provide the information by “visiting your nearest Centrelink Customer Service Centre”. The applicant thereafter contacted Centrelink by telephone on 6 June 2013 (within the 14 day limit) and stated the source of the deposits.
The applicant gave a series of inconsistent accounts to explain the source of the deposits (see [15] below), but ultimately relied upon statements from his sister and friend, Sue, dated 28 July 2013. In those statements the women state that they provided all of the cash for the deposits as loans. This was also the applicant’s case at the Tribunal hearing .The respondent’s case was that the applicant did not give truthful or complete information about the source of those cash deposits, and that he had no reasonable excuse for not doing so. Therefore, his NSA was not payable, and was to be suspended or cancelled.
In addition to the request of 31 May, Centrelink sent a further letter on 15 June 2013, reiterating the applicant’s obligation to inform Centrelink of any “income” received which might have altered his rights to Newstart payments.
Section 8 of the main Act defines exhaustively “income” as :
“income”, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsections (4), (5) or (8).
“Income amount” means:
(a) valuable consideration ; or
(b) personal earnings ; or
(c) moneys ; or
(d) profits;
(whether of a capital nature or not)
The respondent claims that the applicant did not inform Centrelink of receipt of moneys received for his own use, which constituted “income’ as defined in the main Act.
Centrelink sent the applicant an Income Statement which required him to provide details of his “Income Type Amount Frequency Date of Effect”, and the applicant did not advise that any of the cash deposits constituted ‘income’. The respondent contends that if, at 15 June 2013, the applicant had received income of some $21,750 not disclosed to Centrelink, then NSA was not payable, and the applicant’s NSA should be suspended or cancelled.
EVIDENCE IN THE CASE
The respondent relied on several documents; including contemporaneous notes of phone calls recording the applicant’s inconsistent responses to the original Centrelink Request for Information of 31 May 2013. I accept the general accuracy of these notes, which were not challenged by the applicant. Those notes indicated as follows:
1.The first response from the applicant was a telephone call on 6 June 2013, in which the applicant said “he loaned money to friends and they just repay it”.
2.There was a second telephone conversation on 6 June 2013, in which the Centrelink employee said it was odd that the applicant was on Newstart but could afford to lend money to friends, to which the applicant replied “the money was from Newstart and his mum and his family send him money”. The Centrelink employee pointed out that his story had changed, and the applicant said that his “mother was wealthy and sent him money to pay for Chinese medicine due to ill health”. The Centrelink employee then noted, “I asked if the money from his mum was ongoing gifts and he said it was but for his health. I said this can be treated as income and a debt may have occurred.”
3.On 25 June 20123 the applicant sent a signed handwritten document which read:
“From 21/02/ 2012 to 21/02/2013 Centrelink payments to my ANZ bank. everytime I withdraw payment from ANZ bank. than cash deposits to Westpac bank. Because. ANZ bank withdraw fee from savings acc every months. So I don’t like ANZ bank. I need to using Westpac bank. thanks” (sic)
4.That same day the applicant rang Centrelink and said that the deposits to his Westpac account were all from his Centrelink payments, and he did not receive any income from any other source. He said that after his NSA was paid into his ANZ account, he would go to an ATM and withdraw the payment in cash, and then deposit it into his Westpac account, so as to avoid being charged fees by ANZ. The Centrelink employee noted that:
“I asked him again, if I checked all his accounts, would I be able to see that it was just NSA being withdrawn and put straight into his Westpac account, and he stated that this was the case”.
5.On the next day, 26 June 2013, the Centrelink employee rang the applicant, and told him that his Westpac deposits did not match his ANZ withdrawals. The applicant “continued to maintain it was all from Centrelink, at various times he also said that he received money from his mother, his sister and friends, but stated that they all went to the bank and put it in for him to use for medical expenses”. There were two more similar calls that day.
6.The same day, 26 June 2013, he signed another handwritten document which read:
“All cash money come from ANZ bank [NS payment], my mum and My sister.
My mum name, (redacted). Tel 00118621(redacted). She is in Shanghai.
My sister Name (redacted) Tel [03](redacted).
Sometimes. I get cash put in Westpac bank. Because. I use to for medication.”
7.On 5 July 2013, a review officer noted that the applicant “indicated various sources of income, one being that a business man friend goes to China, his mother gives cash to him to give to the customer”.
8.On about 8 July 2013, the applicant supplied a copy document reading:
“I am MR.WEI MING LIN sister,I meet to him offen. I give to him Cash money sometimes. Because. He is a patient.
[Sister’s name]
[Chinese characters signature]
06.07.2013”
9.On about 9 July, the applicant supplied another handwritten document reading:
“I am the best friend with MR Wei Ming Lin.I always look after him about Life. Chinese medicine and centrelink payment. Because. He is a patient. Sometimes. I give some cash money for him.
Sue
O8.07.2013”
10.On 16 July 2013, the Centrelink Authorised Review Officer spoke to the applicant, and affirmed the decision of 15 June 2013 to suspend his Newstart on the basis that the handwritten documents supplied were “insufficient to verify the source”, and that “the department is not satisfied as to your current entitlement to Newstart Allowance”.
11.On 5 August 2013, the applicant then sent another handwritten letter reading:
“I write about my social security matter.From February 2012 to February 2013 I never done any business
Because. They said that I have some business income and check my medication.I am not happy with Centrelink decision. Mant times. I ring them.
Said. How do you know I have some business income.
I have reported income from employment for the period. And I sent two documents to you From my sister and friend.
Sgd WEI MING LIN
05.08.2013” [sic]
12.The two documents referred to by the Applicant, were statements made by the applicant’s sister, and his friend Sue, specifying the amounts of money allegedly paid to the applicant, and the dates that those payments were made. The Applicant’s sister noted a total payment of $12,050, made between 2 March 2012 and 22 June 2012, and Sue noted a total payment of $8740, made between 6 July 2012 and 19 November 2012.
THE APPLICANT’S EVIDENCE
At the Tribunal hearing the applicant’s evidence was that he received the Westpac deposits as loans from his friend Sue and his sister, insisting that “I have never received money as a gift in my life”. He said that after he commenced receiving NSA, “the government asked me not to work more than 15 hours a week because of my illness”, referred to by the applicant as “very serious high blood pressure” – hypertension. He said that after he moved from Melbourne to Sydney in early 2012 he had medical expenses, including tablets costing $6.00 a box. However, he said that the Westpac deposits were spent on “Chinese herbal, massages and my daily expenses”. These expenses comprised monthly Chinese herbal medicine and massage, at a rate of $500, and were said to treat the applicant’s hypertension and ‘prostate tissue’. He also attended a private clinic at the Lemongrass Centre Chatswood where Sue worked as a masseuse. The applicant explained that Sue had paid the $8740 as a loan, because his expenses far exceeded $500 a month, and because he had just moved to Sydney he required additional funds to pay his rent and to purchase furniture and other things.
The applicant also gave evidence that his sister gave him cash when she came to Sydney - “whenever I needed her to bring the money” - and that this was the only way he would receive money from her. It was the applicant’s evidence that his sister came to Sydney for business every one or two months. He said that he would set aside $50-$100 from the cash Sue and his sister gave him, and would deposit the remainder into Westpac. He said that his sister had stayed in Sydney from the 2nd to the 30th of March. When asked what business brought his sister to Sydney he said it was “a private matter”, but specified that she owned a coffee shop, was a partner in a business and that the partners owned a few coffee shops in Sydney and Melbourne - although he did not know where they were.
He said that Sue’s income was from employment by a company, but that she had a few part-time jobs, “here three days, and others a few days”.
In cross-examination, the applicant said that when in Melbourne he had given Centrelink a medical certificate saying he could work no more than 15 hours a week for the rest of his life, and that when he arrived in Sydney he had some money from working but by 15 March he needed some money so he borrowed it. He said that he had to pay rent of $155 a week, a bond of one month’s rent and that his visits to doctors were paid on a Medicare card.
He said that his sister had faxed him her statement. He denied that he had told his sister the dates and amounts to put on the statement, “she has her own records…she knows how much I owe her”. He was asked whether in March 2012 his sister was employed, and he replied: “I have told you before, she is a businessman”. He said that he met his sister in Sydney on 2, 12, 21, 23 and 30 March. She came to his place and saw his living conditions and offered to help. He said that the basic needs of a person in Sydney were expensive. He said that he had never worked for his sister; he knew that she had a coffee lounge in Southland Shopping Centre in Melbourne, but did not know where her business was in Sydney.
He said that Sue was his only friend in Sydney, and although she worked in a herbal medicine shop he did not buy his herbal medication from there, he only paid for her massage services. He said that his mother’s source of income was from a Chinese government superannuation payment of 2,000 RMB a month (about $A335). He denied that he had said that his mother had sent him money, and stated that the law said that money could not be sent from China to Australia. He denied that he had told Centrelink that the deposits were money repaid to him: “That’s why I said that this information was manipulated, I said I borrowed money not lent”.
EVIDENCE OF OTHER WITNESSES
Sue gave evidence that she had given the applicant $8240 cash in six payments between 6 July 2012 and 19 November 2012; five of which were loans to help him pay for hypertension medications. One payment of $3,300 was for him to buy her a second-hand car, but he did not do so. Sue said she had obtained IOU’s for each amount, had asked for repayment repeatedly but had received payment of only $500 and $800 in early 2014. She denied that she had not made these payments to the applicant.
Sue agreed that the document in her handwriting (confirming the dates and amounts of the six payments) was a copy written made by her from a document prepared by the applicant which had been given to her for that purpose.
Sue said that the first payment of $1,500 on 6 July 2012 was made in the afternoon at her then place of work in Burwood. (It should be noted that this amount was deposited at Haymarket Westpac on that same day)
She said that she thought she paid the amount of $2,600 on 29 October at his home in the evening. The Westpac bank statement records a deposit on that day at South Parramatta branch and her written statement notes that it was $2,500. Sue said that in the 2012-2013 financial year she worked two to three days a week as a masseuse, and earned just over $10,000 (but immediately changed to “about $15,000”). It was in this year that she paid the applicant $8,240 and received no repayment.
She said that if the applicant had told her he intended to put each amount in his bank account she would not have paid him any of the amounts. She said that she had paid $3,300 to the applicant but that was to buy her a second-hand car. He had not bought the car nor repaid the money.[In his evidence the applicant said all the payments from Sue were loans and he did not mention anything about an alleged car purchase].
The applicant’s sister gave evidence by telephone from Melbourne. She said that between 5 Feb (or March) 2012 to June 2012 she paid $12,150 to her brother, and that those payments were made following his request that she forward him money to pay for his medication. There was no explicit agreement about repayment but she noted that, “when he has the money I want him to repay it”.
She gave a full list of the amounts and dates of payments (which corresponded exactly with the statement she had signed, but which differed from the Westpac statements). She said that she did not have a job, and had sold her business of ‘AJ SandwichWorks’ last year, after which she had no other business. In fact, although she said initially she was at work, she later said that she was on her way to a Centrelink training course and that she received Centrelink payments. As to the business, she said: “I got money from the sale of…actually did not sell, it was too quiet so I closed it…it was sold for $175,000”. She said that her husband was in charge of all financial and tax matters, and although she had done “some preparing work” in the sandwich business she was no longer involved with the business. In response to a question about her own finances she said that she did not have a joint account with her husband but that they had separate accounts. She said that she had given her own money to her brother and that she no longer had any savings: “No, I lent all my money to him”.
Ms Lin said that she had always been involved in sandwich businesses, and that she had never travelled outside of Melbourne, stating that, in fact, she had never been to Sydney. It was put to her that, “your brother says you came to Sydney”, to which she replied: “I never said that”.
She said that after the applicant moved to Sydney he rang her on 2 March asking for money, and she told him that he would have to come to Melbourne to get the money himself. She said that “he asked for a lump sum and I gave him bits. I gave him the cash at my home in Highett (a Melbourne suburb).” The applicant’s sister insisted that she had memorized the amounts and dates of the payments, and denied that she had a copy of the prepared statement with her while giving her evidence.
She said that her brother would usually collect the cash in person from her home, but that sometimes a friend would go in his place. She did not know the name of the friend, and could not specify the friend’s gender, saying only that “the person had long hair, looked like a female’. She could not explain how she knew to give that person the money except to say that “my brother told me in advance”.
She said that there was “no agreement about repayment of the money as such, he’s my brother”, and that she did not know if he even had a bank account. With respect to the statement she provided for the applicant, she noted that “he wrote it for me to sign”. She also said that the applicant had not repaid her any of the amounts she advanced him.
DISCUSSION
The issue is whether “without reasonable excuse” the applicant did not give a truthful and complete account of the source of the cash deposits made to his Westpac account between 21 February 2012 and 21 February 2013.
The applicant’s account is that all the deposits were loans from his sister and friend. He does not advance any excuse for not telling the truth, and says that his account is correct. If the applicant has given an untruthful account it is then difficult to see how a reasonable excuse for not telling the truth could arise, and there is no material upon which a reasonable excuse could be based.
The difficulty for the respondent is that three persons, under affirmation or oath, have sworn to the truth of that account or a portion of it. The three give a prima facie internally consistent version of events supporting the applicant’s account. It is necessary to examine the reconciliation of that version with the objective facts, to compare the concordance of one person’s detailed testimony with that of the others, and the credibility of each of the individuals.
1.The applicant and each of his witnesses say that they made payments to him of specific amounts on particular dates. They all adhere to the dates and amounts outlined in each woman’s statement. However, even a cursory cross-check with the Westpac bank statements shows:
a)Each cash payment was allegedly banked at a Sydney CBD or western suburbs Westpac branch the very day the payment was made, although the sister says most if not all her payments were made in Melbourne, and Sue says she made several in the evening or at Chatswood.
b)The women’s statements were constructed with reference to the Westpac bank statements with the occasional transposition error. Each admitted under cross-examination that their statement was merely a copy of what the applicant wrote out. Although each said they had made notes of the deposits or had IOU’s specifying the details no such evidence was produced. Despite their insistence that they had relied upon accurate notes, the differences between the bank and the women’s statements were obvious:
The sister asserted that she had made a payment of $1,100 on 12 March yet the bank record shows a deposit of $500 on 8 March and, on the next line, a deposit of $600 on 12 March. She also alleged that she had made payments of $500 on 21 March and $600 on 30 March; however, the bank records show deposits of $450 on 21 March and only a withdrawal on 30 March (but a deposit of $600 on 23 March on the adjacent line). Sue alleges payment of $3,300 on 19 November but the bank records that amount deposited on 8 November (but a withdrawal on the next line on 19 November).
c)In the period he was receiving ‘loans’ from his sister for medication the applicant’s Westpac balance was generally $3,000-$4,000 in credit .
2.The sister was not a businesswoman with business interests in Sydney with a partner. She claimed that she assisted her husband doing ‘preparation work’ in connection with a sandwich bar in Melbourne which she described both as having closed in 2012 because it was “too quiet so I closed it”, but which she later added: “was sold for $175,000”. She also asserted that she had only worked in a sandwich business, and that she had never been to Sydney in her life. At the commencement of her telephone evidence she said that she giving her evidence while at work, but when questioned about her location said she was on her way to a Centrelink training course and that she was receiving Centrelink benefits. She recited in evidence the list of amounts and dates in her statement exactly but denied that she was reading from any document. I believe that at all relevant times the sister was a person of modest means, never travelled to Sydney and did not advance by loan or gift any of the amounts the applicant alleges he received from her .I believe that she told lies to assist her brother.
3.Sue described herself as a “friend’s friend” of the applicant, while the applicant referred to her as his best and only friend in Sydney. She was also from Shanghai. In a year when she earned $10,000 to $15,000 (“Just over $10,000 I would say….about $15,000”) she allegedly gave the applicant $8,740 in 5 months and did not receive any repayment until 2014. When the applicant did repay some amount it was only the sum of$1,300, although $3,300 of the total was allegedly given to the applicant to buy Sue a car - he did not return that amount nor did he buy the car. It was this $3,300 which represented the largest single amount paid to the applicant, and such a sum was likely to stick in the witness’ memory. She said it was advanced on 19 November but it was in fact deposited on 8 November 2012. I do not accept Sue as a witness of truth, and I do not believe that she lent any of the alleged amounts to the applicant.
There is an overwhelming improbability that two women of very limited means would advance substantial amounts of cash to the applicant without any agreement as to repayment time or terms. The applicant had no need for the advances as he held substantial credit balances in his account for most of that period. There is no evidence to substantiate his claim that he spent some of the money on Chinese medications and, in fact, he was taking common Western medication for his hypertension.
The applicant impressed as a forceful, assertive and persistent person, prepared to cast aside a discredited explanation and move on to the next one as required to achieve his ends. I do not believe that he borrowed the amounts claimed from his sister and friend. There is no direct evidence that the cash amounts banked came from earnings. I find that the applicant deliberately told an untrue account and suborned his sister and friend into supporting him with false testimony. The fact that the applicant told lies is not necessarily evidence that the amounts came from earnings but that is not a matter on which I am obliged to make any finding.
CONCLUSION
I find on the balance of probabilities that the applicant did not give full or truthful advice as to the source of all cash deposits made to his Westpac bank account during the period 21 February 2012 to 21 February 2013 in response to the lawful request made by Centrelink on 31 May 2013 pursuant to s192 of the main Act. I find that the suspension of the applicant’s NSA on 15 June 2013 was correct in law and on the merits of the case.
DECISION
The decision under review is affirmed.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr D Letcher QC, Senior Member ........................................................................
Associate
Dated 9 April 2014
Dates of hearing 28 January, 14 February and 17 March 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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