Lipohar and Secretary, Department of Social Services (Social services second review) - [2022] AATA 3266

Lipohar and Secretary, Department of Social Services (Social services second review) [2022] AATA 3266 (11 October 2022)
Division:GENERAL DIVISION
File Number:2021/3990
Re:John Lipohar
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member Andrew McLean Williams
Date11 October 2022
Place:Brisbane

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 16 April 2021 is affirmed.
.............................[SGD]...........................................
Member Andrew McLean Williams
CATCHWORDS
SOCIAL SECURITY - Newstart allowance - overpayment –debt due to the Commonwealth – where conceded debt attributable solely to administrative error and recovery of debt waived – previous Tribunal decision set aside - Meaning of “setting aside” of a decision - question as to whether the setting aside of a decision extends to include the elimination of prior facts used in the formulation of the decision set aside - Question as to whether a subsequent decision maker can reconsider the same set of prior facts - Tribunal answer in the affirmative Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Regulations 1994 (Cth)
Social Security Act 1991 (Cth)
REASONS FOR DECISION
Member Andrew McLean Williams
11 October 2022
introduction

By an Application for Review of a Decision filed before the Tribunal on 3 June 2021,[1] Mr John Lipohar seeks a review of a decision of the Social Services and Child Support Division (‘SSCSD’) of the Tribunal made on 16 April 2021,[2] thereby affirming a prior decision,[3] made on 24 September 2018 by an Authorised Review Officer (‘ARO’) as a Delegate of the Secretary of the Department of Social Services, wherein the ARO had determined that:
(a)Mr Lipohar was a member of a couple with Ms Guolan Zhang, during the period 1 November 2014 until 28 March 2018; and;
(b)Mr Lipohar has a recoverable age pension debt of $19,131.67 (‘the age pension debt’) for the period 1 November 2014 to 28 March 2018 (‘the debt period’).
[1] Exhibit 1, Section 37, T-Documents,T1, The Application for Review was filed out of time. Yet, on 1 July 2021 the Tribunal allowed for the extension of time for the making of an Application for Review, until 3 June 2021.
[2] Exhibit 1, Section 37, T-Documents,T3, pp. 3-5.
[3] Exhibit 1, Section 37, T-Documents,T14, pp. 147 – 152.
Issues before the Tribunal
On the hearing of this application for review the issues to be determined are:
(a)Whether Mr Lipohar was a member of a couple with Ms Goulan Zhang within the meaning of subsection 4(2)(b) of the Social Security Act 1991 (‘the Act’) in the debt period;
(b)Whether Mr Lipohar has an age pension debt, referable to the debt period; and
(c)Whether the age pension debt should be recovered, in part, or in full.
factual background
Mr Lipohar was born on 19 February 1940 in Croatia and has been an Australian citizen since 17 April 1970.
Originally, Mr Lipohar was granted the aged pension on 9 July 2008. This was at the lower, married rate.
The rate of aged pension is calculated in accordance with s.1064 of the Social Security Act 1991 (‘the Act’), which refers to a ‘rate calculator’. A person who is not a member of what is termed a couple relationship (for example, a marriage), is entitled to a higher rate of aged pension than in the case of a person who is in a couple relationship. The reason for the difference is that it is assumed that persons who are in a couple relationship are able to pool financial resources, thereby obtaining some economies of scale in relation to the costs of daily living. Meanwhile, aged pensioners who are living alone are unable to similarly pool expenses with their domestic partner, yet still face many of the same costs of living.
On 14 October 2011, Mr Lipohar’s aged pension was increased, to the higher, single rate. At times thereafter Mr Lipohar’s eligibility for aged pension was suspended, however on 13 November 2014 Mr Lipohar’s receipt of aged pension recommenced, again at the higher single person rate.
On 1 November 2014 Mr Lipohar was married to Ms Goulan Zhang, a Chinese citizen whom he had met by means of the internet.
Centrelink was not alerted to the fact of Mr Lipohar’s marriage to Ms Zhang until as recently as 3 April 2018, at a point when Ms Zhang had applied for a Low-Income Health Care Card.
On 23 January 2013, Centrelink (the public face of the Department of Social Services) had sent Mr Lipohar a periodic ‘information notice’, pursuant to s.68 of the Social Security (Administration) Act 1999 (‘the Administration Act’) in relation to his ongoing receipt of the aged pension. In part, the information notice warned:
What you must tell us
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you or your partner (if you have one).
…
·Household: Tell us if you marry; are in or commenced a registered or de facto relationship (either opposite or same sex); reconcile with a former partner or start living with someone as their partner; separate from your partner or your partner dies…
Then, on 18 November 2014 (only 17 days after his marriage to Ms Zhang), Centrelink issued Mr Lipohar with another information notice pursuant to s.68 of the Administration Act, again requiring that he inform Centrelink of any relevant changes in his circumstances: including the fact of his either marrying, or otherwise commencing in a new domestic partner relationship.
On 9 February 2015, Ms Guolan Zhang lodged an application for a partner visa (Subclass 801 visa) with the Department of Immigration and Border Protection. On the partner visa application, Mr Lipohar was nominated as being Ms Zhang’s sponsor. The Subclass 801 visa was ultimately granted to Ms Zhang on 16 January 2018.
On 4 June 2018, Centrelink wrote to Mr Lipohar, to advise that the eligibility rate for his aged pension was a matter under review. The letter contained a questionnaire for Mr Lipohar to complete and return to Centrelink, within 14 days.
On 31 July 2018 Centrelink decided to raise an overpayment debt of $19,131.67 against Mr Lipohar; and to commence action to recover the overpayment debt, on the basis that Mr Lipohar was assessed to be a member of a couple relationship since 1 November 2014, yet had continued to receive the aged pension at the higher rate, applicable to single persons.
On 5 August 2018, Centrelink wrote to Mr Lipohar. Centrelink advised that Mr Lipohar could not be paid at the higher rate because he had a domestic partner; and because he was not in any evident financial difficulty: which is defined to mean not being able to pay for accommodation or other basic needs of living; or to be otherwise without adequate means of financial support.
At this juncture Mr Lipohar sought an internal review from Centrelink in relation to the decision made on 31 July 2018 to raise and recover from him an overpayment debt of $19,131.67; as well as of the decision made on 5 August 2018 that he was to be treated as a member of a couple relationship, with Ms Zhang. On 24 September 2018, an authorised review officer (‘ARO’) within Centrelink affirmed both of those decisions (‘the ARO decisions’).
On 20 August 2018 Mr Lipohar advised Centrelink that there had now been a change in his domestic circumstances, as he and Ms Zhang had now separated. The date for their separation was advised as having been 25 April 2018.
On 14 September 2018 Centrelink wrote to Mr Lipohar and advised that it was accepted that Mr Lipohar and Ms Zhang had now separated, with effect from 25 April 2018.
Mr Lipohar then applied to the Social Services and Child Support Division (‘SSCSD’) of this Tribunal, seeking a review of the ARO decisions. The matter was listed for a hearing on 28 February 2019; yet Mr Lipohar failed to attend the hearing, such that, initially, his application for review was dismissed by the SSCSD.
On 30 December 2020, Mr Lipohar lodged a further application in the Tribunal seeking to reinstate his application to review the ARO decisions in the SSCSD. As part of that, Mr Lipohar claimed he had not attended the hearing on 29 February 2019 due to a medical condition. The application to review the decisions of the ARO made on 24 September 2018 was then reinstated by the SSCSD.
On 16 April 2021 the ARO decisions were reviewed by Member Brakespeare, in the SSCSD. In reasons for decision given on that same date, the SSCSD affirmed the ARO’s decisions, determining that:
(a)Mr Lipohar and Ms Zhang were members of a couple throughout the debt period;
(b)There was no ‘special reason’ why Mr Lipohar should not be treated as a member of a married couple throughout the debt period;
(c)Mr Lipohar was entitled to be paid aged pension at the lower, married aged pension rate throughout the debt period;
(d)Mr Lipohar had been paid at the higher, single person aged pension rate, resulting in an overpayment debt amount of $19,131.67; and
(e)The debt amount should be recovered, in full (‘the SSCSD decision’).
On 3 June 2021 Mr Lipohar applied to the General Division of this Tribunal seeking a further review of the decision by the SSCSD. On 1 July 2021 Senior Member Pola made an order pursuant to s.29(7) of the AAT Act extending the time for making an application to review the SSCSD decision, until 3 June 2021.
The application for review was ultimately heard before the General Division on 12 May 2021. Mr Lipohar was granted leave to appear by telephone, as well as leave to be assisted before the Tribunal by a friend, a Mr David King.
Mr Lipohar’s Contentions Before the Tribunal:
In a statement made on 6 December 2021 for purposes of the Tribunal hearing, Mr Lipohar contended:
-His old age pension is being “taxed”, as he receives only $728 per fortnight when he should be in receipt of $960, per fortnight.
-After approximately six months of marriage, Mr Lipohar decided that he wished to be divorced from Ms Zhang. Ms Zhang became upset, and had pleaded that in the event of their divorce she would be sent back to China. Mr Lipohar says that he felt sorry for Ms Zhang, so agreed at that point to merely separate from her, rather than divorce. Ms Zhang moved into a granny flat, located in another part of the same property.
-At around this time Ms Zhang had also applied to Centrelink for a Low-Income Health Care Card. It was Ms Zhang who had advised Centrelink that she and Mr Lipohar were married. Prior to this, Mr Lipohar did not even know that he was supposed to advise Centrelink about these types of things. Mr Lipohar is 81 years of age, and claims to have trouble with both reading, and writing: “If I had of known, or if Centrelink had informed me I would have notified them of my current marriage situation during the six month period we lived together as man and wife”.
-Ms Zhang did not pay for anything, and Mr Lipohar had paid for everything.
-“This whole thing has blown up out of my misunderstanding of the rules that Centrelink applied even after I paid for her visa to come to Australia, this was tiresome enough let alone trying to find out about all the local reporting conditions”.
During the hearing before the Tribunal on 12 May 2022, Mr Lipohar further elaborated upon the reasons why he was now seeking a review of the decisions that he was in a partner relationship with Ms Zhang, and is required to repay an overpayment debt to Centrelink:
·“I done nothing wrong except I didn’t know that I have to report myself that I was married”;[4]
·“I didn’t know that I have to do any paperwork”;[5] and
·Notwithstanding Centrelink having been advised[6] in a form signed by Mr Lipohar on 20 August 2018 of the separation having occurred on 25 April 2018, the separation from Ms Zhang had actually taken place much earlier than that, and was in the first half of 2015.[7]
[4] Transcript, p. 4 line35.
[5] Transcript, p. 7 line 1.
[6] Exhibit 1, Section 37, T-Documents, T13, page 141.
[7] Transcript, p. 7, lines 26-31; line 45.
As a preliminary matter in relation to Mr Lipohar’s specific claims that he did not know of the requirement to inform Centrelink of his changed domestic circumstances; or variously that “boys in his neighbourhood had been pilfering his mail”, such that he did not receive the s.68 notices,[8] the Tribunal is unable to accept the validity of either of those excuses. Section 66A of the Administration Act provides that a person in receipt of social security payments ‘must’ within 14 days inform the Department of an event that may impact on their social security payment entitlement. Section 68 provides the Department with the lawful authority to issue information notices - in the manner issued to Mr Lipohar - requiring the provision of information relevant to the calculation of social security payments. Section 72 provides that a notice under this subdivision must be given in writing and may be given by post. Section 74 then provides that it is an offence to not comply with a s.68 information notice. In light of same, it is sufficient notice to Mr Lipohar that the s.68 notices were sent to him by Centrelink by means of ordinary mail, at the address last nominated by him for these purposes.
[8] Transcript, pp. 20-21.
In relation to the advice given to Centrelink on 20 August 2018 regarding the declared fact of separation from Ms Zhang having occurred on 25 April 2018, the following exchange took place with Mr Lipohar - and with his representative Mr King - when they were each before the Tribunal:
MS MARKOV:    “...On that form you wrote that you separated from Ms Zhang on 25 April 2018. Why did you put that date?
MR LIPOHAR:    “Because before she – I was divorce it started by after six months, but she beg me and she cry a lot and couldn’t – I didn’t want to send her back to China. And because of that, I didn’t do anything”.
…/
MEMBER:…Mr Lipohar, did you complete that form with the assistance of Mr King?
MR LIPOHAR:    No. She was apply for Medicare and that’s how they are discover that this is all about problem.
MS MARKOV:   Mr Lipohar, I believe you signed the form yourself, is that right?
MEMBER:Ms Markov, what page in the T documents?
MS MARKOV:   Yes, it’s T13, page 141, Member.
MEMBER:141.
MS MARKOV:   (Indistinct).
MEMBER:Let me just have a look at this. Yes, I have the form.
MS MARKOV:   So, Member, I’ve just taken you to the page with the signature where it says David King assisted with the form.
MEMBER:Yes, I see that. Who’s signature is that? Is that your signature, Mr Lipohar?
MR LIPOHAR: Listen, I’m now 82 years old. I can’t remember nothing much really.
MEMBER:Well, do you have a copy of the form there in front of you?
MR KING:No, we don’t, but it more than likely would be his signature I’m assuming.
MEMBER:There’s a signature. The date under the signature is 20 August 2018. The form indicates that assistance was provided by Mr King and the details of why the assistance was provided, in handwriting, says, “English is second language”.
MR KING:Yes, well, it would have been me if that’s the case, yes, correct. Yes.
MEMBER:All right. So, do you recall helping Mr Lipohar with a form where you completed, Mr King, a question with the answer, “English is second language”? Do you recall that, Mr King?
MR KING:Yes. Well, I certainly would have.
MEMBER:And, did Mr Lipohar sign that form, after you had assisted him to fill it in?
MR KING:That would probably would have been correct, yes. I do a fair bit of assistance of new people coming into the country, yes.
MEMBER:All right. Yes, all right. And that’s perfectly acceptable that you’ve provided that assistance.
MR KING:Yes.
MEMBER:But the form indicates, does it not, that the date of separation was 25 April 2018?
MR LIPOHAR: That was, that was probably fill out like this, but that’s not the case. Because as I tell you, because she was worried, if I do any paperwork she’d be returning back to China, so I never done nothing before.
MEMBER:Mr Lipohar ---
MR KING:So, that would have been the current date we
MEMBER:Mr Lipohar, but the form contains a declaration. The declaration says:
“I understand that giving false or misleading information is a serious offence”.
Now, you’ve signed this form, and you’ve declared that you separated from your former partner on 25 April 2018. You’ve made a formal declaration that that was the date of separation. What am I to make of that?
MR KING:Yes, but I could understand how easily that would be come about, yes, because the second language that would be easy thinking of the date that he was signing, not the date of the actual separation date. I can see that technicality popping up and it would probably pop up with ---
MEMBER:Well, it’s not a technicality, Mr King, it’s a declaration. It’s a declaration that the separation took place on 25 April 2018. It’s not a technicality. It is a formal declaration.
MR KING:Well, they had their separation six months after they were married, and she moved into the other dwelling here. And then
MEMBER:Well, this declaration says that the separation happened on 25 April 2018. That’s three and a half years, approximately, after the date of marriage, not within six months. What am I to make of that declaration? Am I to simply ignore that, am I?
MR LIPOHAR: But the point is, because when she applied for Medicare that is all about, and we - before I didn’t do anything, because she was worried that she’d be returned back to China, and that’s why we didn’t do any other papers before.
MS MARKOV:   If I may, Member.
MEMBER:Yes, of course, Ms Markov.
MS MARKOV:   This form was filled out after Ms Zang applied for a low income healthcare card with Services Australia. So this form was filled out in August, and Ms Zang applied for that card on 3 April, and the date of signature, as I’m sure you’ve noticed, is also different to the date of separation that was listed.
MEMBER:Yes, I’ve seen that. Now, in fact, I’m looking at that form right now.
Mr Lipohar, isn’t it a difficulty for you that you’ve made a declaration, you’ve declared formally under a declaration that the form is truthful, that the date of separation was 25 April 2018?
MR LIPOHAR: I, -- I most probably done it, because as I said before, it was because of her worry that she has to go back to China, so I probably put in that, sort of, because I didn’t think is going to be any problem with the pension all that.
MEMBER:Yes?
MR LIPOHAR: So that’s why I probably done that, that’s why.”
Post-hearing Evidence
At the conclusion of the hearing the matter was reserved for the Tribunal’s deliberation, and the preparation of reasons.
Yet, on 15 June 2022, the solicitor acting for the Respondent wrote to the Tribunal to indicate that the Respondent had - on 9 June 2022 - received further relevant documents, that it had requested from the Department of Immigration and Home Affairs well prior to the hearing, back on 30 March 2022. A delay in receiving these documents had arisen because they were being held in storage offshore, and these first needed to be retrieved. As the recently received documents were ‘relevant’, the Respondent was obligated - under s.38AA of the Administrative Tribunals Act 1975 - to now lodge these with the Tribunal, which it did, on 15 June 2022 (‘the new information’).
In fairness to Mr Lipohar, it became necessary for the new information to be shown to him, and for Mr Lipohar to be afforded an opportunity for further comment. Accordingly, the Tribunal issued a further direction requiring that the Respondent file any further submissions referable to the new information on or before 8 July 2022; and for Mr Lipohar to then provide any further submissions referable to either the new information, or in response to the Respondent’s further submissions, on or before 22 July 2022.

The Respondent provided additional submissions[9] on the new information on 7 July 2022. However, no further submissions - either in respect of the new information, or in response to the Respondent’s submissions - have been received by the Tribunal from Mr Lipohar.
[9] These are dated 1 July 2022.
As to the new information, the Respondent submits:
·The materials received from the Department of Home Affairs reveal that Ms Zhang had applied for a Temporary Partner Visa on 9 February 2015, sponsored by Mr Lipohar. The date for the commencement of their relationship - as recorded on the Temporary Partner Visa application - is declared to have been 1 January 2013.
·As part of the Subclass 801 partner visa application, Mr Lipohar and Ms Zhang had also submitted letters of support from friends indicating that they were known by these friends as being in a genuine and committed relationship with one another since at least as early as 16 April 2014.
·The proper inference to be drawn from the totality of the documentary information now before the Tribunal is that Ms Zhang and Mr Lipohar were in a so-called “couple relationship” with one another from 1 January 2013 until 25 April 2018, which is the date formally notified[10] by each of them to Centrelink as being the date of their separation.
[10] Exhibit 1, Section 37, T-Documents,T12, p.119; T13, p. 131.
In relation to the new information, the Tribunal determines that its primary relevancy relates to the commencement date of the relationship between Mr Lipohar and Ms Zhang. The new information sheds no real light on the question regarding the date for the cessation of their relationship; which Mr Lipohar now contends was in the first six months of 2015, and not on 25 April 2018, as previously declared to Centrelink by both himself and Ms Zhang.
Ultimately, the Tribunal assesses the new information as not especially germane to the central issue in this application for review.
Relevant law and policy:
“Member of a Couple”
Section 4 of the Act defines those who are to be considered as a member of a couple for social security purposes, which includes the receipt of the aged pension. Relevantly, s.4(2) of the Act provides:
Member of a couple – general
(2) 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 2E 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.
The Applicant and Ms Zhang were married on 1 November 2014, yet the Applicant now contends[11] that they separated shortly afterwards, albeit thereafter continuing to live separately and apart at the same address, with Ms Zhang having moved into the granny flat, located elsewhere on the same property.
[11] Transcript p.7, line 45.
For the purposes of forming an opinion about the relationship between two people for purposes of paragraph (2)(a), subparagraph (2)(aa)(ii), or subparagraph 2(b)((iii),[12] regard must be had to all of the circumstances of the relationship, including in particular the following matters, as are set out in s.4(3):
[12] ie: the question as to whether two persons are living “separately and apart from one another on a permanent or indefinite basis”.
(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.
In relation to the various matters set out in s.4(3) (above), the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 said, at [20]:
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
Separation involves destruction/breakdown of the marital/de facto relationship. The Federal Court in Staunton-Smith stated at [37-38]:
Addressing the subject of “separation” Watson J. said in In the Marriage of Todd (No.2) (1976) 9 ALR 401:
“In my view ‘separation’ means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.”
The Full Court of the Family Court (of which Watson J. was a member) expressed in In the Marriage of Pavey (1976) 10 ALR 259 its general agreement with that statement of the law, with two qualifications. It said that it was appropriate to use the word “breakdown” instead of “destruction” (p 262) and it considered “the nurture and support of the children of the marriage” as a constituent element of the marital relationship. (p 263)
The Federal Court in Pelka v Secretary, Department of Social Security [2006] FCA 735; 151 FCR 546 held (at [46]), that assessment of the s.4(3) criteria requires consideration of the totality of the relationship. In this vein the Tribunal must consider all the circumstances of the case; and must make an objective assessment based on the evidence, although the parties' subjective view of their relationship may still be relevant. In VBH and Secretary, Department of Family and Community Services [2006] AATA 1 at [94], the Tribunal said:
The s.4(3) criteria does have some subjective components, but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.
In Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 at [70] the Tribunal held:
“…being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy a few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.”
In RFZX v Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA at [35] it was observed that:
“In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in paragraph 33 of these reasons and the other matters before it and is satisfied that there are a number of telling inconsistencies and contradictions in the applicant’s evidence when compared with the other information available. Overall, the Tribunal is not satisfied that the applicant gave a truthful account of the essential matters pertaining to her relationship with Mr B…”
In those circumstances where a person’s evidence is inconsistent with objective or independent evidence, the Tribunal ought generally place greater reliance on the objective/independent evidence. As was said in Day v Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 at [43]:
“In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming an opinion about the nature and the character of the relationship between the applicant and Mr B – in particular, whether or not they had a “marriage-like relationship” within the meaning of s.4(2)(b)(iii) of the Act – in the relevant period, generally to place greater reliance on the relevant objective or independent evidence when the applicant’s evidence is inconsistent with that evidence, at to accept the applicant’s evidence regarding material matters only where it is corroborated or supported by objective or independent evidence”.
In this matter the Respondent submits that the credibility of the Applicant is an important issue. In light of the declaration given by each of Ms Zhang and Mr Lipohar on 20 August 2018 - in which each of them had previously officially declared to Centrelink that the date of their separation was 25 April 2018 - yet with Mr Lipohar now claiming that their separation occurred far earlier, in early 2015, the Tribunal concurs that the credibility of Mr Lipohar becomes a centrally important issue.
Ultimately, the Tribunal assesses Mr Lipohar’s credibility very poorly and assesses him as a person with a preparedness to state things that are tailored to suit his immediate purpose - which here is to avoid the need for repayment of a social security overpayment debt - without regard for the truthfulness of the matters now asserted by him with that aim in mind. As such, the Tribunal is unable to repose any confidence in the truthfulness of things now said by Mr Lipohar regarding the cessation date for his couple relationship with Ms Zhang. The Tribunal will therefore look to the other available information when determining the true state of things.
4(3)(a) The Financial aspects of the relationship
In Lambe v Director-General of Social Services (1981) 57 FLR 262 at 271, the Full Federal Court found that, even though there was no support in the social security legislation for the contention that mutual financial support is the only or paramount consideration, ‘it is without doubt an important factor, the significance and weight of which will doubtless vary from case to case’.
In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546; [2006] FCA 735 at [52], the Federal Court considered the meaning of the phrase ‘pooling of financial resources’ in section 4(3)(a)(ii) of the Act:
A relevant constructional question which arises under the first ground is the meaning of the term ‘pooling of resources’ in s 4(3)(a)(ii). The ordinary meaning of the word ‘pool’ in this context is set out in the New Shorter Oxford English Dictionary thus: ‘put resources into a common stock or fund; share in common, combine for the common benefit’. This, in my opinion, is the sense in which the noun ‘pooling’ is used in s 4(3)(a)(ii). It plainly involves something more than financial cooperation or separate contributions to different elements of household expense.
In Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135 at [33], the Tribunal held:
The fact that members of a couple maintain financial independence does not mean they do not gain some benefit of pooling of resources, because sharing rent and household expenses is a form of pooling of resources. The fact that Mr Phillip and Ms Price do not share income and assets does not mean that he has nothing to pool, or that he obtains no benefit from Ms Price pooling her resources with him to the extent that she does. Nor is he left without any means of supporting himself.
Similarly, in Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 126 ALD 151; [2012] AATA 131 at [33], the Tribunal held:
“As can be seen, the financial arrangements between Ms Burkett and Mr Lavender are not entirely separate; there is some pooling of resources and income, most notably in respect of the joint household and arrangements in which they share, and from which they and their respective children benefit. Arrangements of this kind are not unusual, uncommon or out of the ordinary course”.
Consideration of the financial aspects of the relationship includes a need to consider each of the following:
(i) Joint Ownership of real estate or other major assets
There is no evidence before the Tribunal indicating any joint ownership of any assets of any significance.
(ii) Any Significant Pooling of financial resources
Mr Lipohar contends that there was no pooling of any financial resources, and that he had paid for ‘everything’ during his relationship with Ms Zhang, such that this should now be taken as evidence in proof of the absence of a couple relationship. As against that however, the Respondent submits that the financial aspects of the relationship tend strongly towards a conclusion that Mr Lipohar and Ms Zhang were members of a couple, by reason of the following:
-Ms Zhang’s form SS487 (T7, p.68) where she reports being unemployed (T7, p.77), and that neither herself or Mr Lipohar being in receipt of any rental income (T7 p.84); and that she and Mr Lipohar had supported themselves, together, by means of the aged pension (T7, p.88);
-On 14 May 2018 Mr Lipohar advised Centrelink “my wife never applied for a patyment (sic) in her name as we knew she was not eligible” (T26, p.276);
-Mr Lipohar’s QSS32 form, received by Centrelink on 12 June 2018, in which in response to the question: ‘what steps have you or your partner taken to reduce financial difficulty, such as looking for work, studying, applying for a permanent visa etc?’ Mr Lipohar responded by stating “my wife have to look after me” (T10, p.100);
-Mr Lipohar’s signed statement to the Tribunal (dated 6 December 2021) in which he stated, amongst other things that:
(iv)‘So we decided to have a separate life in the same house and we slept in separate bedrooms and operated as single people. After a short period of time I thought it best that she might go to find other accommodation, however accommodation was and still is very hard to find so I let Golan stay in the granny flat which is attached to the house while she organized a safe place for her-self to live’;
(v)he had not received any money from Ms Zhang and that he paid for ‘everything’;
(vi)‘Golan (sic) and I lived for six months together as husband and wife she had no other income’;
(vii)‘Golan (sic) could not register a vehicle under her name because of her visa so it was registered under my name. Golan (sic) paid for all the running expenses to the vehicle’;
(viii)Mr Lipohar had paid for Ms Zhang’s visa, to come to Australia.
The Tribunal determines that there has been a pooling of resources by Mr Lipohar and Ms Zhang in the sense that Mr Lipohar has extended the availability of accommodation and financial support to Ms Zhang, such that Ms Zhang ‘joined the financial pool’ then being operated by Mr Lipohar. The Tribunal now attaches significance to these financial arrangements as being highly indicative of Mr Lipohar and Ms Zhang having formed a couple relationship.
(iii) Any Legal obligations owed by one person in respect of the other
Mr Lipohar’s submissions before the Tribunal are silent on this issue. However, the Respondent submits that the following aspects become relevant:
(a)Mr Lipohar and Ms Zhang were married on 1 November 2014 (T26 p. 273).
(b)Ms Zhang’s partner visa grant notice dated 16 January 2018 states that Mr Lipohar is her sponsor (T6 p.61).
(c)Ms Zhang’s Form SS487 - as received by Centrelink on 3 April 2018 - indicates that Mr Lipohar was authorised to speak with Centrelink on her behalf (T7 p. 70).
In partner visa matters, the ‘sponsor’ is the domestic partner of the applicant. Eligibility for a partner visa is governed by s.5F of the Migration Act 1958 (Cth) (‘Migration Act’) and requires that the Applicant (Ms Zhang) and her sponsor (Mr Lipohar) be in a ‘genuine spousal relationship’ from before the date of application for the visa that is then still on-going as at the date of the conferral of the partner visa. Ms Zhang’s partner visa was not conferred until as recently as 16 January 2018. The Tribunal concludes that these matters therefore afford further evidence in support of Mr Lipohar and Ms Zhang having remained in a couple relationship throughout the debt period, as conferral of the partner visa required that Mr Lipohar and Ms Zhang maintain the representation that they were in a genuine and ongoing spousal relationship throughout the assessment period for the partner visa.
(iv) the basis of any sharing of day-to-day household expenses
Mr Lipohar’s submissions before the Tribunal are silent on this issue, other than to assert that, after their alleged separation in the first six months of 2015, Ms Zhang had lived separately and independently from Mr Lipohar and had paid the running costs of the car used by her, yet still registered in his name. Meanwhile, the Respondent submits that the following is relevant with respect to the sharing of day-to-day household expenses:
(i)During the debt period, the Applicant made the mortgage repayments for the property in which the Applicant and Ms Zhang both resided at [address redacted] (T3, p5 at [13]);
(ii)In the Statement by Mr Lipohar lodged with the Tribunal on 6 December 2021, Mr Lipohar had contended that he paid for ‘everything’;

The evidence before the Tribunal suggests that there was a sharing of household expenses, in the sense that Mr Lipohar paid for virtually everything, to the joint benefit of both Ms Zhang and Mr Lipohar. Again, this is taken by the Tribunal as evidence in support of a couple relationship having been maintained by Mr Lipohar and Ms Zhang throughout the debt period.
4(3)(b) The nature of the household
Section 4(3)(b) requires that when considering the nature of the household that the Tribunal consider two matters: (i) joint responsibility for the care of any children; and (ii), the living arrangements of Mr Lipohar and Ms Zhang. Joint responsibility for the care of any children is not relevant in this case, given that the marriage here under consideration involves two persons at a later stage in life, beyond child rearing.
(ii) Living arrangements
As to the living arrangements between Mr Lipohar and Ms Zhang, Mr Lipohar contends they lived separate lives - albeit from the same address – since the early months of 2015. Meanwhile, the Respondent contends that the following is relevant:
(a)Mr Lipohar and Ms Zhang were living together throughout the debt period, variously at [addresses redacted].
(b)The Respondent merely notes Mr Lipohar’s submission that Ms Zhang lived in a granny flat attached to [address redacted] (T3, p5 at [8]);
(c)Mr Lipohar’s QSS32 form received by Centrelink on 12 June 2018 in which, in response to the question ‘what steps have you and your partner taken to reduce financial difficulty, such as looking for work, studying, applying for a permanent visa etc.?’, Mr Lipohar had stated, ‘my wife have to look after me.’ (T10, p100);
(d)Ms Zhang’s SS293 form received by Centrelink on 22 August 2018 in which she reported (T12, p118):
(i)the date of separation as 25 April 2018; and
(ii)that Mr Lipohar and Ms Zhang used separate bathrooms and had a separate bedroom, specifically Ms Zhang had use of a Granny Flat that was for her sole use and not shared with the Applicant.
(e)Mr Lipohar’s SS293 form received by Centrelink on 22 August 2018 in which he reported that (T12, p131):
(i)the date of separation as being 25 April 2018;
(ii)that he and Ms Zhang used separated bathrooms; and
(iii)that there were no rooms or areas of the home that were for his sole use and not shared with Ms Zhang;
(f)Mr Lipohar’s SS293 form received by Centrelink on 19 July 2019 in which he reported the date of separation being 25 April 2018 (T12, p155).
Ultimately, the Tribunal attaches no weight to the fact that Mr Lipohar and Ms Zhang may have used separate bathrooms, and bedrooms. Indeed, such arrangements are not altogether uncommon in the case of many married couples, particularly in the case of marriages between older persons. In light of other evidence - now directly contradicting Mr Lipohar’s claims of the couple having separated in the early months of 2015 - the Tribunal is not prepared to attach any credibility to these claims and now finds that the available evidence in relation to Mr Lipohar and Ms Zhang’s living arrangements is also supportive of them having remained in a couple relationship until 25 April 2018.
(iii) the basis on which responsibility for housework is distributed.
Mr Lipohar’s evidence before the Tribunal is silent on the distribution of housework, although it is to be noted that in Mr Lipohar’s form QSS32 - as received by Centrelink on 12 June 2018 - he had stated that Ms Zhang did not have time to look for work by reason that ‘my wife have to look after me’. From this, the Tribunal now infers that in exchange for Mr Lipohar’s financial support, Ms Zhang performed the preponderance of domestic household tasks. In the Tribunal’s assessment, such an arrangement is also consistent with that which pertains in many traditional marriages.
4(3)(c) Social aspects of the relationship
Although Mr Lipohar and Ms Zhang were married on 1 November 2014, Ms Zhang was not conferred with a partner visa until as recently as 16 January 2018. Partner visas have “time of decision” eligibility criteria, which require that Ms Zhang and Mr Lipohar continue to meet the requirements of the definition of “spouse” in s.5F of the Migration Act as at the date of the decision to confer the partner visa.
Relevantly, s.5F of the Migration Act provides:
Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a)        they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)        they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)         the relationship between them is genuine and continuing; and
(d)        they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
The Respondent contends that it is likely that the Applicant and Ms Zhang continued to hold themselves out to the Department of Immigration as being in a genuine and continuing relationship and provided positive evidence to demonstrate the social aspects of their spousal relationship all the way up until the point at which Ms Zhang was conferred with a partner visa (on 16 January 2018), and hence obtained permanent residency status in Australia. The Tribunal concurs with this assessment, and notes Mr Lipohar’s evidence before the Tribunal of his agreeing with Ms Zhang to conduct himself in a particular manner, in order that Ms Zhang would ‘not be sent back to China’.
(i)Whether the people hold themselves out as married to each other
With respect to whether Mr Lipohar and Ms Zhang held themselves out as being in a relationship, the following is relevant:
(a)Ms Zhang’s SS487 form received by the Agency on 3 April 2018 in which Ms Zhang provides permission for the Applicant to speak to Centrelink on her behalf (T7, p70);
(b)Ms Zhang is now in receipt of a Partner visa (subclass 801) in which the Applicant is listed as her Sponsor (T6, p61).
(c)Had the relationship between the Applicant and Ms Zhang broken down prior to the grant of the Partner Visa, then the Applicant and Ms Zhang were legally obliged to inform the Department of Immigration and Border Protection of the breakdown of the relationship.
(d)There is no evidence before the Tribunal that at any time prior to the receipt of the Visa Grant Notice of the Partner Visa on 16 January 2018, the Applicant and/or Ms Zhang advised the Department of Immigration and Border Protection that their relationship had broken down.
(ii)The assessment of friends and regular associates of the people about the nature of their relationship
In relation to the assessment of friends and regular associates of Mr Lipohar and Ms Zhang regarding the nature of their relationship, the following evidence has been placed before the Tribunal:
(a)a Statutory Declaration of a Mr David Illic declared on ‘28 April 202’ (sic) that “… we are very close when John Ivan Lipohar married Goulan Zang after a few months he separated from her and meanwhile she lived at the same address as him in a granny flat” (T20, p171).
(b)a Statutory Declaration of a Ms Fadila Steels declared on 25 May 2021 that “I know John Ivan Lipohar for over 30 years. We have been in regular contact. Whan (sic) he got married with Guolan Zhang after few monthshe (sic) told me that he has no future with her.”
Although the evidence of Ms Illic and Ms Fadila does not support that the Applicant and Ms Zhang having remained in a couple relationship until 25 April 2018, these third-party statements are inconsistent with Mr Lipohar and Ms Zhangs own declarations to Centrelink signed on 20 August 2018 that they had separated on 25 April 2018 (T13, p131). So too, neither of Mr Illic or Ms Steels were called to give direct evidence before the Tribunal: such that the extent of their true understanding of the domestic relationship between Mr Lipohar and Ms Zhang was unable to be tested. In all the circumstances the Tribunal is not prepared to attach any weight to their evidence.
(iii) The basis on which the people make plans, or engage in, joint social activities:
With respect to the basis on which Mr Lipohar and Ms Zhang made plans for or engaged in joint social activities:
(a)The Respondent acknowledges that there is no evidence before the Tribunal regarding the basis on which the Applicant and Ms Zhang either made plans for, or engaged in social activities.
(b)The Respondent contends that, the Applicant and Ms Zhang would likely have provided the Department of Immigration and Border Protection of their future plans together and joint social activities to establish they were in a genuine and ongoing relationship for the purpose of the application for the Partner Visa, given this was not conferred on Ms Zhang until January 2018.
In the Tribunal’s assessment, there is insufficient reliable evidence before it in respect to the specific issue of the basis on which Mr Lipohar and Ms Zhang made plans for, or engaged in, joint social activities to either support, or derogate from, a finding that they ceased to be in a couple relationship in the first half of 2015.
In an overall sense the Tribunal concludes that the social aspects of the relationship point to a “member of a couple” arrangement, particularly in light of the eligibility criteria that would have been required to have been satisfied in order for Ms Zhang to be granted a Partner (Residence) Visa.
4(3)(d) Any Sexual Relationship
There is no evidence of a sexual relationship between the Applicant and Ms Zhang. Nevertheless, and consistent with social security policy as set out in the Guide (at topic 2.2.5.30), the absence of a sexual relationship is not a conclusive indicator of a complete breakdown of the relationship, and is but one factor among many that must be considered when determining whether the parties are members of a couple relationship.
Moreover, given Mr Lipohar and Ms Zhang’s respective ages, the Tribunal considers that the absence of a sexual relationship (or at least of any evidence of a sexual relationship) ought be considered as a neutral factor, and not as evidence either in support of, or against, Mr Lipohar and Ms Zhang being in a couple relationship.
4(3)(e) Nature of any commitment to one another
Section 4(3)(e) requires consideration of (i), the length of the relationship; (ii), the nature of any companionship and emotional support that the people provide to one another; (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. Mr Lipohar would have it that his relationship with Ms Zhang ended relatively quickly, in the first half of 2015.
Meanwhile, the Respondent contends that the nature of the commitment to each other weighs strongly in favour of Mr Lipohar and Ms Zhang being assessed as members of a couple. The Full Federal Court in Pelka v Secretary, Department of Families, Community Services and Indigenous Affairs (2008) 102 ALD 22; [2008] FCAFC 92 at [30] stated that the nature of the commitment has to be qualitatively different from the commitment that either party to the relationship has to any other person. Mutuality of the commitment is essential: Pelka at [46] and Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404 at [61].
The parties married 1 November 2014, and shortly following their marriage Ms Zhang moved to Australia from China, to reside with the Applicant.
In order for Ms Zhang to have been granted a Class BS Partner (subclass 801) (Residence) visa, as at 16 January 2018, the Department of Immigration and Border Protection was required to consider - and accept as genuine - the nature of their commitment to one another, including the duration of the relationship, the length of time they had lived together, and the degree of companionship and emotional support they drew from each other.[13] The Subclass 801 visa application had been submitted almost three years prior to this, on 9 February 2015 (T6, 61), and the same considerations as were applicable at the date of their applying for the partner visa - in February 2015 - were also applicable at the time of the conferral of the partner visa, in January 2018.
[13] Migration Regulations 1994, Regulation 1.15A(3)(d).
With respect to the length of the relationship between Mr Lipohar and Ms Zhang, the Respondent contends the following to be relevant:
(a) On 3 April 2018 Ms Zhang reported to Centrelink that she and the Applicant had been partnered since 1 November 2014 (T26, p273);
(b) Ms Zhang’s SS293 form received by the Agency on 22 August 2018 in which she reported the date of separation as being 25 April 2018 (T12, p118); and
(c) The Applicant’s SS293 form received by the Agency on 22 August 2018 in which he reported that the date of separation as being 25 April 2018 (T12, p131);
(d) The Applicant’s SS293 form received by the Agency on 19 July 2019 in which he reported the date of separation being 25 April 2018 (T12, p155).
With respect to the nature of any companionship and emotional support they provide to one another, the Respondent contends the following becomes relevant:
(a) The Applicant’s QSS32 form received by the Agency on 12 June 2018 in which, in response to the question ‘what steps have you and your partner taken to reduce financial difficulty, such as looking for work, studying, applying for a permanent visa etc.?’, the Applicant stated, ‘my wife have to look after me.’ (T10, p100).
With respect to whether they consider that the relationship was likely to continue indefinitely, the Respondent contends that there is no evidence in the material before the Tribunal of an intention to end the relationship during the debt period, and that the nature of the commitment between the Applicant and Ms Zhang was qualitatively different to the relationship between the Applicant and any other person during the debt period.
Ultimately, the only evidence of an intention to end the relationship commitment to Ms Zhang in early 2015 is that of Mr Lipohar, as is then partly supported by the statutory declarations provided by each of Mr David Illic, and Ms Fadila Stees. Previously, the Tribunal has indicated that it does not accept the credibility of Mr Lipohar; and that it is not prepared to attach any weight to the statutory declarations given by either of Mr Illic or Ms Steels. In those circumstances the Tribunal relies upon the other evidence before it that indicates a spousal commitment between Mr Lipohar and Ms Zhang throughout the debt period, and not ending until 25 April 2018.
Was Mr Lipohar in a couple relationship with Ms Zhang?
Ms Zhang was granted a partner visa in her capacity as the wife of Mr Lipohar on 16 January 2018. In order for that to happen, the Delegate assessing the partner visa application was required to be satisfied as at the time of making the decision to confer Ms Zhang with a partner visa that she and Mr Lipohar met the requirements of s.5F of the Migration Act, which required that they be validly married, and be mutually committed to a shared life as a married couple, to the exclusion of all others; and to have a genuine and continuing relationship and to live together, or to not live separately and apart on a permanent basis. The Delegate on 16 January 2018 decided that each of Mr Lipohar and Ms Zhang satisfied the definition of “spouse” and can only have done so on the basis of evidence that had been submitted by Ms Zhang and by her sponsor and husband, Mr Lipohar.
Ultimately, the Tribunal concludes that the evidence that was supportive of a conclusion that Ms Zhang was the spouse of Mr Lipohar on 16 January 2018 also supports the claim previously made by Mr Lipohar, in August 2018, of his having not separated from Ms Zhang until 25 April 2018, and does not support his more recent claim of their having separated in the first half of 2015.
Is there now any ‘special reason’ not to treat Mr Lipohar as a member of a couple?
Section 24(2) of the Act allows a person who is a member of a couple to be deemed not to be a member of a couple relationship, if there is a ‘special reason’ to do that, in any particular case.
The expression ‘special reason’ is not defined in the Act. However, the Federal Court observed in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531; [1999] FCA 106 at [18] that, although the section 24 discretion is ‘not lightly to be enlivened’, it ‘does not require that the case be extremely unusual, uncommon or exceptional’. Instead, the requirement is ‘that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course’. Nothing to meet that requirement has been submitted before the Tribunal by Mr Lipohar.
The interpretation to be given to various provisions under social security law is informed by the Guide to Social Policy Law (‘the Guide’). Although the Guide is not binding on the Tribunal, it will still usually be applied, unless there is a cogent reason for the Tribunal not doing that.[14]
[14] Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634; [1979] AATA 179.
Section 2.2.5.50 of the Guide sets out circumstances wherein a person who is a member of a couple should be treated as if they were a single person, under s.24 of the Act:
“Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:
-Is there a special reason to be considered in this couple’s circumstances?
-Is there a lack of being able to pool resources for the couple as a result of the circumstances?
-Is there financial difficulty as a result of the couple’s circumstances?”
Perusal of section 2.2.50 of the Guide makes clear that the discretion in s.24 should only be exercised sparingly, in circumstances wherein the specific circumstances of any particular person’s case would make it unjust or unreasonable not to do that.
In Crem and Secretary, Department of Social Services [2019] AATA 5520, after referring to Brennan J’s statement in Drake on the Tribunal’s application of policies, the Tribunal stated (at [28]–[31] and [36]):
Approaching the content and application of the Guides, in accordance with the instructive statements of Brennan J, leads to the following observations. The Guides are structured in a way that provides an explanation of the purpose of s 24. The explanation conveys that the discretion is available in cases where the partnered social security recipient is still required to meet means and income tests before being eligible for any payment from the “public purse”.
The Guides then provide that all the circumstances of the recipient must be taken into account and three questions are to be considered. It is of significance, in my view, that the Guides merely identify considerations as part of the assessment of all the circumstances. One of the three questions is – “is there financial difficulty as a result of the couple’s circumstances?”
Expressed in the manner it is, the third question does not impose a mandatory pre-condition of financial difficulty for exercise of the discretion. Instead, it identifies financial difficulty as a potentially relevant consideration of the overall circumstances to be taken into account. This is entirely consistent with the purpose of s 24 in the context of the system of social security provided for by the Act.
Further, the Guides contain a section headed “Is there financial difficulty as a result of the couple’s circumstances? This section of the Guides refers to the financial situation as a consideration, as distinct from a pre-requisite, and in this context the notion of readily available funds from assets when compared to expenditure is mentioned. The terms of the Guides are entirely consistent with the object of the system of social security provided for under the Act.
…
Availability of the exercise of the discretion exists in the context of the purpose of the social security system, where its recipients are subjected to relatively less favourable financial circumstances. Accordingly, the recipient’s personal finances are relevant, as is the overall financial situation in which the recipient is in. Therefore, in my view, there is no excess of reach or power in the Guides when they refer to financial difficulty as a consideration involving:
1. if there is inability to provide accommodation and the basic necessities of life;
2. being left without adequate means of support; or
3. that income and readily available funds from all sources should be taken into account.

The financial circumstances of Mr Lipohar and Ms Zhang as were declared to Centrelink on 12 June 2018 reveal a number of quite significant cash deposits, and withdrawals, from Ms Zhang’s accounts; as well as eleven (11) unexplained cash deposits into the account of Mr Lipohar totalling $7,650 during the debt period: thus suggesting further available funds that ought be factored into the mix, when considering this couple’s overall financial circumstances. Moreover, these unexplained transactions suggest that Ms Zhang had some financial means of her own, and no explanation has ever been afforded as to why Ms Zhang was not ever asked by Mr Lipohar to contribute to pooled household expenses. There does not appear to be any basis for a finding by the Tribunal that there was an inability to pool financial resources, and the fact that Mr Lipohar and Ms Zhang did not pool financial resources does not now give rise to a special reason why Mr Lipohar ought be treated under the discretion in s.24 as if he were a single person.
Mr Lipohar also previously informed the SSCSD (T3, p.5) that Ms Zhang was in receipt of a Chinese pension throughout the period when they resided together. In his statement to the Tribunal dated 6 December 2020 Mr Lipohar also claimed that Ms Zhang was generating income in Australia by purchasing infant milk formula in Australia, to send back to China for resale.
Ultimately, the Tribunal concludes that there is no ‘special reason’ in Mr Lipohar’s case as to why he ought be treated as not being the member of a couple with Ms Zhang, despite the Tribunal’s finding that he was a member of a couple with Ms Zhang throughout the relevant period.
Does Mr Lipohar have an age pension debt?
Pursuant to s.55 of the Act a person’s rate of age pension is calculated using the Pension Rate Calculator set out at s.1064. The amount ultimately determined by means of the Pension Rate Calculator depends on whether a person is a single person, or a member of a couple relationship.
The Respondent contends that over the period 1 November 2014 until 25 April 2018 Mr Lipohar was paid $239,518.57 as if he were a single aged pensioner, whereas as a member of a couple relationship his entitlement was only $220,386.90: meaning that Mr Lipohar was overpaid by $19,131.67.
Section 1223 of the Act specifies that if a person is paid more than their social security entitlement, then the excess payment amount is a debt to the Commonwealth.
Mr Lipohar has not sought to challenge the arithmetic basis for the calculation of the overpayment debt: other than to now claim it to be broadly ‘unfair’, and ‘wrong’. Yet, the Tribunal can see no logical basis for disturbing the basis for calculation of the overpayment amount. There is no demonstrable error in the calculation of that debt amount.
Should Mr Lipohar’s age pension debt be recovered?
There is an expectation that overpayments of social welfare will be recovered. In Secretary, Department of Social Services v Hales (1998) 82 FCR 154 at 155, French J (as he then was) said:
“The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which lead to the overpayment and the circumstances of the person concerned”
Pursuant to s.1236 of the Act, a social security debt may be ‘written off’, if the debtor has no capacity to repay the debt. A debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being put into severe financial hardship.
The term ‘severe financial hardship’ is undefined in the Act. However in Re Lumsden v Secretary, Department of Social Security (1986) 10 ALN N225; [1986] AATA 228 the Tribunal (at [20] – [21]) required that for severe financial hardship to arise a person’s total financial position would need to be materially less than is the current rate of pension. Similarly, in Stubbs v Secretary, Department of Families and Community Services [2003] AATA 729 the Tribunal said (at [20]):
Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature.
The Respondent submits that Mr Lipohar does not meet the requirements of s.1236 because he has an evident capacity to repay the debt, by way of modest withholdings from his fortnightly aged pension. Although Mr Lipohar now claims to have fortnightly expenses of $1,638.70 per month (T3, pp.12-13), an amount which is in excess of his current pension receipts after the imposed withholdings, the Tribunal is not prepared to accept these claims in light of the unexplained cash deposits ($7,650) into Mr Lipohar’s account, and the obvious regular discretionary expenditure by Mr Lipohar (T10, pp 107 – 108) on further on-line dating services; and in light of the reservations already previously expressed by the Tribunal regarding Mr Lipohar’s overall credibility. In light of same, it cannot reasonably be suggested that Mr Lipohar has ‘no ability’ to repay the debt, hence the doorway to s.1236 is not open to Mr Lipohar in these circumstances.
Section 1237A of the Act then provides that the recovery of the debt may be waived, if the debt is received by the person in good faith and was solely caused because of an error by the Commonwealth. In this instance the overpayment was not in consequence of any sole administrative error by the Commonwealth. Rather, the overpayment arose by reason of Mr Lipohar’s failure to inform Centrelink of his changed circumstances in the manner required in response to the s.68 Information Notice, within 14 days after the date of his marriage to Ms Zhang. In these circumstances s.1237A is also not available to Mr Lipohar.[15] In this regard there is ample authority to the effect that sole administrative error cannot be found to have arisen in circumstances in which any overpayment arises by reason of a failure by an applicant to comply with reporting requirements made clear to them in notices issued pursuant to s.68(2) of the Administration Act.[16]
[15] Consider also Gerhardt v Department of Employment, Education and Training [1996] AATA 173; Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41; [2003] FCA 76, at [41].
[16] Stafford v Secretary, Department of Social Services [2018] AATA 2746 at [78]; GGGD v Secretary, Department of Social Services [2020] AATA 802 at [79] – [85]; Moir v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 48 at [79].
Special Circumstances Waiver?
Section 1237AAD of the Act allows recovery of the debt to be waived in whole or in part where the person has not knowingly made a false statement or failed to comply with provisions contained in social security law and there are ‘special circumstances’ (other than financial hardship alone) that make it desirable to waive.
Section 1237AA is not available to Mr Lipohar by reason that the Tribunal concludes that the debt arose in consequence of Mr Lipohar having failed to comply with a specific requirement imposed on him under social security law to notify Centrelink within 14 days of the fact of his marriage to Ms Zhang. Even if the Tribunal were prepared to find that the debt did not arise wholly or partly from Mr Lipohar having knowingly failed to comply with this obligation, the Tribunal is still not satisfied that there are any special circumstances in this case to make it desirable to waive the debt, as it is relevant to consider how the debt came about when considering the question of special circumstances.[17] In this instance, the debt arose solely by reason of the failure by Mr Lipohar to disclose his relationship status, such that it would not be appropriate to now exercise the discretion in order to waive the debt.
[17] Dranichnikov v Centrelink (2003) 75 ALD 134; [2003] FCAFC 133 at [66]
DECISION
The decision of the SSCSD made on 16 April 2021 is affirmed.

I certify that the preceding 102 (one-hundred and two) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams

...............................[SGD].........................................
Associate
Dated: 11 October 2022

Dates of hearing:

12 May 2022

Applicant:

By videoconference

Solicitor for the Respondent:

Nadia Markov

Services Australia