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

[2023] AATA 1986

Lin and Secretary, Department of Social Services (Social services second review) [2023] AATA 1986 (10 July 2023)

Division:GENERAL DIVISION

File Number:          2022/6102

Re:Jun Lin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:10 July 2023

Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the decision under review, being the First Review decision dated 8 July 2022 which affirmed three decisions of Centrelink to

(a)Cancel the Applicant’s disability support pension from 8 May 2013;

(b)Raise and recover a DSP debt of $202,182.15; and

(c)Refuse the Applicant’s 18 February 2022 claim for Job Seeker Payment

is affirmed.

...............................[SGD].........................................

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – pensions, benefits and entitlements – where applicant in receipt of disability support pension (DSP) – where DSP cancelled because annual income exceeded allowable limit – where debt raised as undisclosed income not taken into account when calculating rate of DSP payment – where applicant applied for Job Seeker payment – where Job Seeker application rejected as income above allowable limit – where authorised review officer affirmed three decisions – where First Review affirmed authorised review officer’s decisions – where applicant sought Second Review – implausible evidence about sources of income – very significant deposits into applicant’s bank accounts during period applicant receiving social security benefits – no claim that debts were raised in error – no claim that repayment would result in severe financial hardship – decisions under review affirmed

PRACTICE AND PROCEDURE – where hearing held and decision reserved – where applicant sought leave to provide further material within a timeframe – where applicant did provide further material within timeframe – where applicant delivered additional documents to Tribunal after timeframe on several occasions – where applicant apparently did not provide additional documents to respondent – general principles about re-opening a matter when decision reserved – where applicant made no specific submissions about relevance of additional material – where applicant had ample opportunity to submit documents – fairness to other party – where no evidence additional material pivotal to decision under review – objective of the Tribunal – desirability that matters be finalised – additional  material provided after timeframe not considered by Tribunal

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Ford and Ethel Reynolds and Secretary to the Department of Social Services; Re: [1986] AATA 120
Kintominas v Secretary, Department of Social Services [1991] FCA 437
Re: Australasian Meat Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491
Read v Commonwealth (1988) 167 CLR 57
Reid v Brett [2005] VSC 18
Secretary, Department of Social Security v Dellis [1990] FCA 349
Secretary, Department of Employment and Workplace Relations v Richards [2008]168 FCR 438

Zhang and Secretary, Department of Education, Employment and Workplace Relations; Re: [2009] AATA 937

Other materials

A guide to Australian Government payments 20 March – 30 June 2013, Department of Human Services

A guide to Australian Government payments 1 January– 19 March 2022, Services Australia

Explanatory Memorandum to the Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Company’s Integrity of Means Testing) Act 2000

REASONS FOR DECISION

Senior Member D. J. Morris

10 July 2023

1. Ms Jun Lin has brought three decisions to the General Division of the Tribunal to review. They are decisions made by an authorised review officer (ARO) of the Department of Social Services (‘the Department’).

2. On 13 April 2022 an ARO made a decision to cancel Ms Lin’s disability support pension (DSP). The basis of this cancellation decision was because the ARO was satisfied that the Applicant’s income exceeded the allowable income limit threshold for payment of DSP. The date from which the DSP was cancelled was retrospective, from 8 May 2013.

3. On 5 May 2022 an ARO made a decision that, while a recipient of DSP, in the period from  8 May 2013 to 1 February 2022, Ms Lin was paid $202,182.15 whereas, because of other income, she was entitled to zero payment in that period, therefore the $202,182.15 amount is an overpayment that is a recoverable debt to the Commonwealth.

4. Also on 5 May 2022 an ARO made a decision to reject Ms Lin’s application for Job Seeker Payment, which she made on 18 February 2022. The reason for the rejection decision was because bank records revealed significant deposits totalling approximately $3.7 million into bank accounts of which Ms Lin was a signatory in the period from 8 May 2013 to 12 September 2021. The ARO decided that Ms Lin had been unable to adequately explain what the source of the deposits was and therefore decided that the Applicant’s income exceeded the limit for Job Seeker Payment.

5. Therefore, there are three decisions Ms Lin is dissatisfied about and of which she sought review: a DSP cancellation decision, a debt decision and a Job Seeker Payment rejection decision.

   HEARING

6. A hearing took place on 28 April 2023 in the hearing rooms at the Tribunal’s Melbourne Registry. Ms Lin represented herself and was cross-examined by Ms Jessica Eggar of Hunt & Hunt Lawyers, representing the Secretary of the Department, who is the Respondent in these proceedings. Ms Eggar appeared by video by leave of the Tribunal under s 33A of the Administrative Appeals Tribunal Act1975 (‘the AAT Act’). The Tribunal was assisted by an interpreter of the Chinese Mandarin language.

7. The Tribunal had regard to documents which were submitted by the parties, and which are listed in the annexure to these reasons. The Tribunal also had regard to a Statement of Facts, Issues and Contentions (‘RSFIC’) lodged by the Respondent. On 28 April 2023 the Tribunal made an order under s 35 of the AAT Act prohibiting the publication of Annexure G to the RSFIC, otherwise than to the parties in these proceedings.

8. At the conclusion of the hearing, the Applicant sought leave to provide further information. The Tribunal granted leave and made a direction on 28 April 2023 that Ms Lin could provide the following documents to the Tribunal and the Respondent by 5 pm on 19 May 2023: evidence of the periodic payment of her car loan which was discharged at the end of 2022; and a copy of statements of the family trust account which was discussed at the hearing on 28 April 2023. In the same order the Tribunal gave leave to the Respondent to make any submissions on documents Ms Lin tendered during the hearing which were admitted as Exhibit A18 or advise he did not intend to. The direction noted that on receipt of further documents from the parties the Tribunal’s decision would be reserved.

9. On 17 May 2023 Ms Lin attended the Tribunal and provided documents relating to the car loan but told a Tribunal officer that she could not provide the family trust account statements because that account had been closed sometime ago. The Respondent separately advised he did not intend to make submissions in relation to Exhibit A18. Therefore, the decision was deemed reserved from 19 May 2023.

10. On 23 May, 30 May and 1 June 2023 the Applicant attended at the Tribunal with further documents which she asked to be photocopied and provided in relation to her application. In discussion with a Tribunal officer she acknowledged that the documents were late.

11. On 2 June 2023 the Tribunal’s Associate wrote to the Applicant, copied to the Respondent, in the following terms:

    At the conclusion of the hearing on 28 April 2023, the Tribunal made an order giving you leave to provide the following two documents:

    . evidence of your periodic car loan which was discharged at the end of 2022;

    . a copy of the statements of the family trust account discussed at the hearing.

    You provided those, and the Respondent indicated that they did not have any submissions to make on those documents. The decision is now reserved and the Tribunal will advise when a decision will be published. Leave was not granted to you or the Respondent to provide any further material. The Senior Member is aware that you have recently delivered a number of other documents to the Tribunal by hand. Please understand that these documents may not be taken into account by the Tribunal.

12. The AAT Act gives the Tribunal wide discretion to determine its own procedures (s 33(1)(a)) including informing itself on any matter as it thinks appropriate (s 33(1)(c)). Section 33(1)(b) of the AAT Act provides:

    The proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit;…

13. Given the powers in s 33 of the AAT Act, the Tribunal has an undoubted power to reopen a hearing that has concluded; however, should it do so? The answer to that question depends on the circumstances. The Courts have held that the principles to follow in regard to reopening a matter where the hearing has concluded but judgment not yet been delivered are:

    (a) the further evidence is so material that the interests of justice require its admission;

    (b) the further evidence, if accepted, would most probably affect the result of the case;

    (c) the further evidence could not by reasonable diligence have been discovered earlier;

    (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

    (See Reid v Brett [2005] VSC 18, [41] citing Toohey J (then of the Federal Court) in Re: Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491, 493-494.)

14. In this case, Ms Lin has provided copious copies of bank statements, but no other submissions on their relevance. She has not, apparently, provided copies of this material to the Respondent. The environment in which she has provided this further material is as follows: by order of a Conference Registrar of the Tribunal on 10 February 2023 the parties had ample opportunity to provide material in support of their contentions. Both did so, and Ms Lin provided a large amount of material. At the hearing, additional material from the Applicant was admitted into evidence. At the conclusion of the hearing, the Applicant asked for leave to provide further specific documents, which was given. She provided some of those additional documents but said others were not obtainable. The Tribunal made clear orally at the end of the hearing that it would reserve its decision when the parties’ further material was provided or when each indicated it had been provided. In addition, that point was re-emphasised in writing in the direction issued to the parties on 28 April 2023.

15. The Tribunal considers that, in the absence of any indication from the Applicant as to why this information is pivotal to her case and why the information could not have been provided earlier, it should not have regard to the additional material. In addition, the Applicant has not provided the additional material to the Respondent. It is not the job of the Tribunal’s Registry to do that. Therefore, were I to take the additional material into account, it would have to be provided to the Respondent and time given for the Secretary to make any response. Otherwise, it would be procedurally unfair to take the further unsolicited material into account in the Tribunal’s consideration of the three decisions before it.

16. The Tribunal must have regard to conducting the proceeding with as much expedition as proper consideration permits. The Tribunal must also have regard to the principle set out in s 2A of the AAT Act which includes that the mechanism of review be fair, just, economical, informal and quick (s 2A(b)). In a case where a party has become aware of a piece of information that might be pivotal to a decision, that would be a good reason for the reopening of a proceeding. But I am not satisfied that is the case here. Ms Lin has simply provided additional material to the large amount of material she has already provided, with no indication that it is singularly important. I consider the information was capable of being provided for the hearing and that prejudice would ensue to the Respondent were I to consider it, without providing the Secretary an opportunity to make submissions. I consider that to do that would elongate this proceeding unnecessarily.

    The entitlement to the social security benefit

17. A person may be entitled to a social security benefit but, because of other income that the person receives, the rate may be reduced and, if the other income is such that the rate of payment would be nil, then the benefit is not payable (see s 98 of the Social Security Act1991 (‘the Act’)).

18. If a person meets the qualifications for DSP, the rate that the DSP is payable is established under s 117 of the Act by a formula using the Pension Rate Calculator A which is at s 1064 of the Act. Module A of the Rate Calculator provides the overall rate calculation process and other modules provide for how component amounts should be used in the overall rate calculation. Module E is an income test and Module G is an assets test. Which ever test provides the lowest or nil rate prevails.

19. Module E provides that a person’s ordinary income on a yearly basis must be worked out in order to determine the effect that income they receive has on the maximum rate of payment. Ordinary income which is earned, derived or received by a person (which includes deemed income minus any permissible reductions if the person is carrying on a business) must be applied to the income test in Module E in s 1064 in order to determine what is the correct rate of DSP.

20. Ms Lin’s debt period starts on 8 May 2013. In accordance with Module E, her rate of DSP reduced by 50 cents in the dollar for any ordinary income above $152 per fortnight before reaching a cut-off amount of $1,768.80 (A guide to Australian Government payments 20 March – 30 June 2013, Department of Human Services, page 32).

21. In a similar way to DSP, a person’s rate of Job Seeker Payment is found by using Benefit Rate Calculator B at s 1068 of the Act. That also provides that a person’s rate of Job Seeker Payment must take into account the ordinary income test in Module G.

22. Ms Lin applied for Job Seeker Payment on 18 February 2022.  At that date the income limit for a single person with dependent children was $1,311.50 per fortnight. Each dollar of income between $150 to $256 per fortnight above the income limit has the effect of reducing the rate of Job Seeker Payment by 50 cents.  Each dollar of income above $256 per fortnight reduces the rate of payment by 60 cents. (A guide to Australian Government payments 1 January– 19 March 2022, Services Australia, page 48)

23. The Respondent submitted that the rationale for the income and assets test in the Act was set out in the explanatory memorandum to the Social Security and Veterans’ Entitlements Legislation Amendment (Private Trusts and Private Company’s Integrity of Means Testing) Act 2000, which stated:

    Social Security pension and allowance payments are intended for people who, because of age, disability, unemployment, or caring responsibilities, are unable to adequately support themselves. Social Security payments are targeted to those most in need through assets and income tests – together known as the ‘means test’. The means test is the fairest way to ensure that the limited taxpayer funds available for social security expenditure go to those in greatest need.

    The assets test is based on the principle that people with substantial assets apart from their home should use those assets either directly or to produce income to meet day to day living expenses before calling upon community resources for income support through the social security system.

    What is ‘income’?

24. Section 8(1) of the Act defines ‘income’ as:

    ”income”, in relation to a person, means:

    (a)an income 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 subsection (4), (5) or (8).

25. Subsections 8(4) and (5) of the Act refer to how income is treated in terms of home equity if a person is or is not a member of a couple. This is not relevant to the present Applicant.

26. Subsection 8(8) of the Act sets out other amounts that are to be excluded in terms of assessing income. These include other social security payments, insurance payments, payments from certain specified trusts established for persons with specific medical conditions, payments to members of the Australian Defence Force Reserve and other stipulated exclusions, none of which appear to be relevant to Ms Lin.

27. Section 8(1) of the Act defines ‘income amount’ as:

    “income amount” means:

    (a)      valuable consideration; or

    (b)      personal earnings; or

    (c)      moneys; or

    (d)      profits;

    (whether of a capital nature, or not)

28. It can therefore be seen that the definitions set out in the Act reflect the Parliament’s intention that the concept of ‘income’ should be given a broad, rather than a narrow, meaning. In Read v Commonwealth (1988) 167 CLR 57, Brennan J said (in dissent, but not on this point), at [2]-[3]:

    2. The definition of “income” in the Act is relevant to the determination of the rate of pension payable to individual pensioners and correspondingly to the level of public expenditure on social security pensions….

    (His Honour then set out the definition clause in the Act.)

    3. The definition is exhaustive: the term “income” means what it is defined to mean; it does not man what “income” would be understood to mean if the definition were not in the Act. The definition is couched in the widest terms, presumably to ensure that public expenditure is directed to those who stand in actual need of the periodic support which income-related pensions provide. The definition is wide enough to embrace receipts of a capital nature as well as receipts of income, for “income” is defined to mean, inter alia, any moneys, valuable consideration or profits irrespective of the means by which or the source from which those moneys, etc. are received.

29. In Secretary, Department of Social Security v Dellis [1990] FCA 349, the Federal Court was considering an appeal from a Tribunal decision where the Tribunal had accepted arguments put before it that certain received monies were not ‘income’. Neave J said, at [12]:

    ….The question whether certain payments answer the description of “income” as defined is to be answered by making findings of fact as to the circumstances in which the payments were received and the consideration for them and objectively assessing those facts against the requirements of the statutory definition. It cannot be correct to determine the question, as the Tribunal did in this case, by reference to the belief of the recipient that the payments are properly to be characterised as falling outside the statutory definition.

30. The Respondent submitted that if an income amount is found to have been “earned, derived or received” by the Applicant, it is then necessary to inquire into whether it was earned, derived or received for that person’s “own use or benefit”.  The Secretary submitted that payments received in the capacity of being a mere trustee for a third person are not payments received for a person’s own use or benefit (see Kintominas v Secretary, Department of Social Services [1991] FCA 347), subject of course to the attribution provisions in the Act.

31. In addition, a payment received must be in the form of, or in the nature of, something that the person can use or benefit from (see Secretary, Department of Employment and Workplace Relations v Richards [2008] FCAFC 97).

1. Because of the broad nature of the statutory definition of “income” in s 8(1), except for exclusions, the source of the money received is not relevant, for instance payments received from an illegal activity can be an “income amount”.

   The Respondent’s submissions

2. In respect of Ms Lin’s entitlement to DSP payments, the Respondent submitted she was paid $202,182.15 in the relevant period and submitted that the Applicant had ‘nil’ entitlement to DSP during that period on account of income received by her into undisclosed bank accounts during that period.

3. Banks provided the following information to the Department of Social Services: The Applicant either held, or was a signatory, to twelve bank accounts with the Bank of Sydney.  In respect of Bankwest, the Applicant held or was a signatory to ten bank accounts. She had three accounts with IMB Bank. ANZ Bank advised that she had four accounts during the relevant period. Suncorp-Metway Bank advised of eight accounts. The Bank of China advised of three bank accounts in the Applicant’s name. CBA advised of seven bank accounts where Ms Lin was the account holder or a signatory. Westpac Banking Corporation advised of 13 accounts, all solely in Ms Lin’s name.

4. The Bank of Melbourne, St George Bank and the Bank of South Australia cumulatively advised of 17 bank accounts – all but one solely in Ms Lin’s name, and one where she was a co-signatory. National Australia Bank advised of six accounts solely in the name of the Applicant.

5. A mortgage company, Baccus Investments, advised the Secretary that on 17 November 2021 Ms Lin held the following mortgage investments in her own name, with values as follows:

   $250,000 as at 9 November 2021;

   $300,000 as at 30 June 2020; (1)

   $300,000 as at 30 June 2020; (2)

   $340,000 as at 30 June 2019;

   $50,000 as at 30 June 2018;

   $100,000 as at 30 June 2017;

   $100,000 as at 30 June 2017

   $100,000 as at 30 June 2016;

   $100,000 as at 30 June 2015; and

   $300,000 as at 30 June 2014

6. In addition, Baccus Investments advised Ms Lin held joint mortgage investments with another person (four with one person, two with a second person and one with a third person) valued as follows:

   $0 as at 30 June 2018;

   $80,000 as at 30 June 2017;

   $480,000 as at 30 June 2016: and

   $400,000 as at 20 June 2015;

   $0 as at 30 June 2015;

   $200,000 as at 30 June 2014; and

   $100,000 as at 30 June 2015

7. The Respondent submitted that Ms Lin has failed to provide an adequate or persuasive explanation as to the source of the deposits into her bank accounts.

8. In respect of the refusal of Ms Lin’s application for Job Seeker Payment, the Respondent submitted that was correct because when she applied for that benefit on 18 February 2022 it was assessed that her fortnightly income was $7,423.74, comprised of $176.07 deemed income per fortnight from known financial investments; $640 rental income per fortnight and $6,607.67 other income per fortnight from unexplained bank deposits.

9. The Respondent noted that the First Review found that Ms Lin’s income from undisclosed deposits exceeded $54,990 for the 2021-22 financial year and submitted that the decision to reject her application for Job Seeker Payment was therefore correct, as her income exceeded the income limit.

10. In respect of the allowable income in May 2013 for a single DSP recipient with two dependents (which describes Ms Lin’s circumstances at that time), the allowable income limit was $43,632 per annum. The Respondent noted that the First review found that the Applicant’s income from lump sum deposits between 2013 and 2022 exceeded $400,000 and therefore she was not eligible for DSP at that time because her income exceeded the allowable income limit. The Secretary therefore submitted the decision to cancel was correct.

11. In respect of debts, the Respondent drew the Tribunal’s attention to s 1223 of the Act, which provides:

    1223 Debts arising from lack of qualification, overpayment, etc.

    (1) Subject to this section, if:

    (a) a social security payment is made; and

    (b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

    The amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtained the benefit of the payment.

12. The Act provides mechanisms for all, or part of a debt owed to the Commonwealth to be either waived or written-off. In respect of the write-off provisions, s 1236 of the Act states that the Secretary (or, here, the Tribunal standing in his shoes), may decide to write off a debt for a stated period if, and only if, the debt is irrecoverable at law; the debtor has no capacity to repay the debt; the debtor’s whereabouts are unknown; or it is not cost effective for the Commonwealth to take action to recover the debt.

13. If a debt is recoverable by means of deductions from the debtor’s social security payment, s 1236(1C) of the Act provides that the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the person being in severe financial hardship. The Tribunal notes that Ms Lin is currently in receipt of Job Seeker Payments (in relation to a later claim which is not relevant to these proceedings),and receives child support payments.

14. The phrase ‘severe financial hardship’ is not defined. Deputy President Jennings, QC, considered the phrase in Re: Ford and Ethel Reynolds and Secretary to the Department of Social Services [1986] AATA 120. The learned Deputy President was referring to the old Social Security Act, but the provision is equivalent. He said, at [29] and [31]:

    29. However, the applicants must also satisfy the Tribunal that they would suffer “severe financial hardship” if s. 6AD did not apply to them. That expression is not defined. The pensions benefits and allowances which the Act provides for persons who fulfil the requirements of the Act are clearly designed (inter alia) to avoid severe financial hardship to persons who would otherwise be without adequate means of support.

    …

    31. The decision to introduce the assets test was the implementation of a policy not to subsidise the income of some persons who had sufficient resources of their own. If those resources in fact produce an income in excess of the maximum penalty payable to an aged person it will be difficult for such a person to demonstrate “severe financial hardship”. It may be possible if his or her reasonable living expenses are unusually high for some exceptional reason. But in the ordinary case “severe financial hardship” is a condition that is more likely to be demonstrated by a person whose income is materially less than the current maximum pension.

15. While not a perfect analogy, the Tribunal considers the logic of this reasoning sound and a fair measure to take account of in making a general assessment of whether a person faces severe financial hardship. Although Mr and Mrs Reynolds’ case related to the age pension, the DSP is payable at the same rate.

    The Applicant’s submissions

16. Ms Lin submitted that she was eligible to receive DSP. She said she had received a ‘$400,000 compensation payment’ which she was told was not counted as income. She submitted that some of her apparent income relates to a ‘family money pool’. In respect of the statements from Baccus Investments, the Applicant said that some of this was her husband’s money, some was her ex-husband’s money, and some was a friend’s money.

17. Ms Lin told the Tribunal she “recycled” money from the compensation payment she received.  She said in 2017 she lost a lot of money because of an ‘international scam’, and ‘we’ lost $80,000 because of the actions of an accountant. She told the Tribunal she had a total loss from Baccus Investments of $750,000. Ms Lin said she also borrowed money from an old friend and still owes this friend $5,000.  She later gave evidence that this friend had given her several loans of $5,000.

18. In response to direct questions from the Tribunal, Ms Lin said she lived in an apartment in central Melbourne which she owns but on which there is a $280,000 mortgage. In respect of the compensation payment, the Applicant said she received $359,000 around 2003 as the result of a finding of negligence against her lawyer. (It would appear that this was actually the ‘$400,000 compensation payment’ she referred to earlier.) She confirmed that she had an investment property for which she received rental income, which she declared to the Australian Taxation Office. Ms Lin said she sold that property in November 2023.

    Oral Evidence

19. Under cross-examination, Ms Lin agreed she has been in receipt of DSP but was not sure of the date it commenced. When asked whether she was aware that her income affects her eligibility for DSP, Ms Lin responded, “I don’t believe my income exceeded the limit. I didn’t have property at that time.”

20. Ms Eggar asked whether the Applicant recalled receiving notices from Centrelink reminding her of her obligation to inform the Department of any change in her income. She responded, “Maybe they sent the letters but because my English is not good…I called them in the past once.”

21. Ms Lin was asked if she recalled receiving a letter from Centrelink in November 2021 about the money held in various bank accounts. She responded, “I remember a request for information regarding $50,000 because I got that from my friend.”

22. Ms Lin was then taken to the letter (TD, p 1886) and asked if she remembered receiving it. She responded, “I don’t remember because my English is not good.”  She did not remember whether she responded.

23. Ms Eggar asked Ms Lin about several cash deposits ranging from $500 to several thousand dollars which were described as ‘law cover’ and asked if she could further explain those.  The Applicant responded, “In 2013 I had compensation. I recycled it. Law cover is my compensation for the negligence of the lawyer.”

24. Ms Eggar asked the Applicant whether she could show how the compensation money was ‘recycled’. The Applicant responded, “Centrelink has all the information. Baccus recycled the money. Child support. FTB A and B, and a car loan.”  Ms Lin agreed that the amount totalled about $1.5 million over a ten-year period.

25. In respect of other cash deposits, the Applicant responded:

    For example, the $600 amount sometimes I take out from Baccus, sometimes from my pension. I deposit it. Or have money in my offset home loan account. I borrowed money from the bank. It wasn’t cash money from working. I had a seven-year car loan, which has just finished. Pension. FTB A and B. Child Support. A friend lent me $5,000 several times. Have to pay them back.

26. Ms Lin agreed she transferred the money from the bank accounts on her own. Ms Eggar asked her whether she handled investments on behalf of friends, and they loaned her money which she managed.  She responded, “Not just me, also the investment company did the investment. Got money from ex-husband because we had a joint bank account.”

27. Ms Lin said she only had three sources of income: her DSP, Family Tax Benefit A and B and child support payments.  Ms Lin said she paid around $445 to $500 per month for her car loan. She said sometimes she put a little more in, and that the car loan finished in February 2022.

28. When asked about deposits with no explanation (TD, p 1984), Ms Lin responded, “I can’t prove, but they must be from compensation money. This money is recycled. You can see in the Baccus statements.”

29. The Tribunal directly asked Ms Lin whether she could show evidence that the compensation payment of $359,000 has been ‘recycled’. She said, “The money I got in compensation was paid in a lump sum that invested in Baccus in smaller amounts. After the money matured it was deposited in Westpac. The maturity dates differ.”

30. When asked if she can show in the documents before the Tribunal or other documents the trail of money where it matured, and the evidence of these transfers, Ms Lin responded, “The bank account has now closed. I don’t keep records of this account.”

31. When asked for an explanation for deposits into trust accounts (TD, p 1994), Ms Lin responded, “The money either was from compensation or Baccus investment. In September 2020 $8,000 from Baccus was withdrawn and put into the family trust account and then deposited in to the NAB.”

32. Ms Eggar then said that the transfers the Tribunal was considering were from 2013-14, not 2020. The Applicant then responded, “I am missing the Baccus 2013 statements.”

33. When asked about a cash deposit of $5,000 in November 2013 and where it came from, Ms Lin responded, “Family trust account, since closed. The bank has now close. The branch has now closed.”

34. When pressed about this $5,000 amount as to whether she could explain where it came from, the Applicant responded, “No. I would need a statement.”

35. When asked whether she managed the trust accounts, Ms Lin responded, “Yes, I managed it because my ex-husband’s English was limited, and our son was young. It was family money. I don’t see it as my own.”

    Consideration

36. The Tribunal has set out the way income is defined in the Act, and the means test that applied to the Applicant in the relevant period. The Tribunal found Ms Lin’s evidence entirely unconvincing. She was unable to provide any distinct responses to the significant deposits that have come into some 83 bank accounts, either in her name or where she was a co-signatory, during the relevant period , which are set out above. Her explanation that this is money simply ‘recycled’ from a 2013 compensation payment is frail at best, and even if that might be partly true, in spite of the dearth of corroborating evidence, the amount of cash flow into her accounts simply does not match the $359,000 payment for a lawyer’s negligence she received ten years ago.

37. After the hearing, by leave, the Applicant provided some detail of a discharged car loan. This accounts for certain withdrawals but not for the other large amounts of income the Applicant received in the relevant period.

38. Ms Lin also provided medical documentation in support of her eligibility for DSP. Whether the Applicant was eligible for DSP in the relevant period is not the subject of this review. The Tribunal is not considering that question. It is considering the separate question as to whether the DSP was payable in terms of whether the recipient’s income exceeded the income limit in the Act.

39. Overall, the Tribunal found Ms Lin’s evidence shambolic and circuitous. She proffered possible explanations for certain deposits but when asked to explain what she meant, either retreated, changed the explanation or said that she no longer had the bank statements, so could not be sure. On many occasions she did not respond directly to questions put to her about the origin of deposits and instead offered vague statements about money being ‘recycled’ through an investment company from an historical compensation payment. She expressed annoyance at being asked to explain the sources of her income.

40. The fact remains that over a period of eight and a half years, Ms Lin as a recipient of DSP and with no other income, she states, other than Family Tax Benefit and some childcare payments, transacted more than $3.7 million.

41. The Applicant had ample opportunity to explain her sources of income as prompted by correspondence from Centrelink before the reviewable decisions were made. She did not satisfactorily do so.

42. In Re: Zhang and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 937, Deputy President Tamberlin, QC, a former Federal Court judge, was considering a case of unexplained deposits. He decided, at [31]:

    Under s 8 of the Act, “income” is very broadly defined so as to be able to include the amount credited to Ms Zhang’s various bank accounts and term deposits which were held in her name during the relevant period fell within the definition of “income amount” in s 8 as they are monies received for her use and benefit. These moneys received have not been shown to be exempt from assessment.

43. In this case, the Tribunal has been unconvinced by the claims Ms Lin has made that her income has been wrongly assessed during the relevant period when she was receiving DSP and when she applied for Job Seeker Payment in 2018. The Tribunal finds no reason that the income attributed to her by the Authorised Review Officer’s decision should be exempted from assessment.

44. In addition, the Applicant made no cogent case that any of the debts should be written-off, nor that they are the result of administrative error. She claimed to have ‘no money’ other than her current social security income, but has not made out any case before me that she should be considered to be in severe financial hardship. On the basis of her apparent assets and income, as revealed in the bank statements before the Tribunal, she has access to well over the current DSP and aged pension rate per fortnight.  Following the logical basis laid down in Reynolds, I find that she could not make a case that she is in severe financial hardship. Nor would she be if she resumes repayment of the debt which was paused by the Respondent because of these proceedings.

45. As a consequence, the Tribunal finds that in the relevant period Ms Lin’s income was such that her payment of DSP at that time should have been nil. The cancellation was correct, as was the decision to raise and recover the DSP debt because the ‘nil’ amount payable led to payments being made to the Applicant by the Department to which she was not entitled. In addition, she was over the income threshold when she applied for Job Seeker Payment in February 2018. The consequence of these findings is that the three decisions under review were correctly made. There is no reason for the Tribunal to disturb the findings of the First Review.

46. The Tribunal reiterates the point that this decision relates solely to the provisions in the Act relating to income. As is set out above, the policy basis of social security payments is that they should not be payable to a person who, while otherwise eligible, has income and assets which exceed the allowable amounts. That is because the social security budget is finite, and people who are able to draw on their own financial resources are expected so to do.

47. The Tribunal decides to affirm the three reviewable decisions.

79.     I certify that the preceding 78 (Seventy-Eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................................. [SGD].......................................

Associate

Dated 10 July 2023

Date of hearing:	28 April 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Jessica Egger
Solicitors for the Respondent:	Hunt & Hunt Lawyers

ANNEXURE

Schedule of exhibits

R1         ‘TD’ documents lodged by the Respondent (9 volumes)

R2         Applicant’s further materials

A1         Statutory declaration of the Applicant dated 21 October 2022

A2         Applicant’s handwritten notes

A3         Applicant’s bank records, Feb-Oct 2022

A4         Applicant’s text messages

A5         Applicant’s additional evidence, medical and bills

A6         Letter from Baccus Investments dated 16 August 2022

A7         Applicant’s NAB account summary

A8         Baccus Investments statement November 2022

A9         Baccus Investment records

A10       Applicant’s letter to Centrelink dated 6 December 2022

A11       Various evidence

A12       Baccus Investments Cash Funds Movements dated 25 July 2022

A13       Applicant’s NAB account summary

A14       Baccus Investments Cash Funds Summary dated 25 July 2022

A15       Letter from Baccus Investments dated 25 July 2022

A16       Applicant’s evidence with notes

A17       Applicant’s further evidence

A18       NAB bank statement dated 26 April 2023