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

[2019] AATA 715

Mosaui and Secretary, Department of Social Services (Social services second review) [2019] AATA 715 (17 April 2019)

Division:GENERAL DIVISION

File Number:           2018/4205

Re:Sayed Mosaui

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:17 April 2019

Place:Melbourne

The Tribunal affirms the reviewable decision.

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

Senior Member D. J. Morris

Catchwords

SOCIAL SECURITY – member of a couple – whether Applicant a member of a couple – if so, whether discretion should be exercised not to treat Applicant as a member of a couple for purposes of Act – consideration of circumstances of Applicant – purposes of the discretionary provision – special reasons in a particular case must be satisfied – not satisfied particular circumstances of Applicant enliven discretion – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 38AA

Social Security Act 1991 (Cth), Long title, ss 4, 24

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2); Re (1979) 2 ALD 634
Gordon and Secretary, Department of Employment and Workplace Relations, Re: [2006] AATA 792
Holt and Secretary, Department of Education, Employment and Workplace Relations, Re: [2010] AATA 143
In the Marriage of Todd (No 2) (1976) 9 ALR 401
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084
Purdie and Secretary, Department of Social Services, Re: [2013] AATA 743
Sperring and Secretary, Department of Employment and Workplace Relations, Re: [2007] AATA 1050

Secondary materials

The Concise Oxford Dictionary of Current English; H. W. & F. G. Fowler (Eds), 4^th Ed. (E. McIntosh, Ed.); Oxford University Press (1951)

Social Security Guide; Version 1.253; Department of Human Services; Released 20 March 2019.

REASONS FOR DECISION

Senior Member D. J. Morris

17 April 2019

Introduction

1. Mr Sayed Mosaui disagrees with a decision of the Social Services and Child Support Division of this Tribunal made on 12 July 2018 (the AAT1).  That decision affirmed a decision made by an Authorised Review Officer (ARO) of the Department of Human Services (the Department) on 3 April 2018 that Mr Mosaui should be treated as a member of a couple for the purposes of the Social Security Act 1991 (the Act).

2. The task of the Tribunal is, first, to decide whether, in the period from 14 September 2016, Mr Mosaui was a member of a couple with his wife, Mrs Bibi Fatima Mosaui.  If the Tribunal decides that the answer to that question is ‘Yes’, then the next step is to decide whether the discretion, which is available to the Secretary of the Department (and, as the decision-maker standing in the Secretary’s shoes, to the Tribunal) under section 24(1) of the Act, should be exercised to treat Mr Mosaui as not a member of a couple.

3. The hearing was held on 22 January 2019.  Mr Mosaui spoke for himself.  Mr Cameron Munro, a legal officer of the Department of Human Services, represented the Respondent.  The Tribunal was assisted by an interpreter in the Hazaragi language.  Mr Mosaui made an opening statement and was cross-examined.

4. The Respondent tendered to the Tribunal a dossier of documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T-documents) (Exhibit R1), and a bundle of supplementary T-documents (Exhibit R2), and, under section 38AA of the AAT Act, a number of additional supplementary T-documents (Exhibit R3).

   Legislative framework

5. Part 1.2 of the Act concerns Definitions of terms used in the Act.  Section 4 concerns Family relationships – definitions – couples.  Section 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;…

6. Section 4(3) of the Act relevantly states:

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

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

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

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

   (iii)  any legal obligations owed by one person in respect of the other person; and (iv)  the basis of any sharing of day-to-day household expenses;

   (b)  the nature of the household, including:

   (i)  any joint responsibility for providing care or support of children and (ii)  the living arrangements of the people; and (iii)  the basis on which responsibility for housework is distributed;

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

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

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

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

   (d)  any sexual relationship between the people;

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

   (i)  the length of the relationship; and

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

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

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

7. Section 4(6) of the Act states that a person is not a member of a couple if a determination under section 24 is in force in relation to the person.  Section 24 relevantly provides:

   (1)  Where:

   (a)a person is legally married to another person; and

   (b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

   (c)       the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

   the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of the Act.

   Background

8. Mr Mosaui was born in 1979.  He and Mrs Mosaui married in 2002.  Mr Mosaui first arrived in Australia in 2010. Mrs Mosaui has never been to Australia and she resides with their children in Pakistan.  Mr and Mrs Mosaui have four living children, three sons born in 2003, 2007 and 2009, and a daughter born in 2017.  They also had another child who sadly died in 2012.  None of the children have ever been to Australia.

9. On 22 December 2015, Mr Mosaui received a payment of $111,153.33 from Prime Superannuation.  Before 14 September 2016, the Department was treating Mr Mosaui as not being a member of a couple for the purposes of the Act (and, therefore, for the purposes of social security payments).  On 14 September 2016, the Department decided that Mr Mosaui was to be treated as a member of a couple for the purposes of the Act.  This is the original decision (T56). 

10. Mr Mosaui sought review by an ARO, an officer of the Department not involved in the original decision.  On 3 April 2018, the ARO affirmed the original decision (T86).  Mr Mosaui asked for the ARO’s decision to be reviewed by the AAT1.  On 12 July 2018, the AAT1 affirmed the ARO’s decision. 

    The Respondent’s submissions – are Mr and Mrs Mosaui a couple?

11. Mr Munro contended that Mr Mosaui was a member of a couple with Mrs Mosaui and should not be treated as not being a member of a couple.  Mr Munro stated that the Applicant has stated that Mrs Mosaui and his family are financially dependent upon him, and that Mrs Mosaui is unable to work in Pakistan and does not contribute to household expenses.

12. Mr Munro said that on 6 December 2016 a Department officer reported that Mr Mosaui had told the Department he had sent $50,000 to his wife.  The Secretary therefore contended that Mr Mosaui is supporting his wife, that there is pooling of resources and that the financial aspects of the relationship weigh in favour of Mr Mosaui being a member of a couple.

13. In terms of the nature of the household, the Respondent submitted that Mr Mosaui has been living physically apart from Mrs Mosaui since he arrived in Australia in February 2010 as a refugee, except for three periods: January to March 2012, September to December 2013 and March to June 2016, when Mr Mosaui has visited Pakistan to be with his wife.

14. The Secretary noted that Mrs Mosaui and their children do not have the right to reside in Australia and that Mr and Mrs Mosaui are living apart geographically as a result of the Applicant’s wife and children not having the right to reside in Australia, and so the assessment of the nature of the household was not of assistance in assessing whether Mr and Mrs Mosaui are members of a couple.

15. In terms of the social aspects of the relationship, the Respondent referred to several T-documents where Mr Mosaui stated he and Mrs Mosaui were a member of a couple and then a statement the Applicant made on 22 February 2017 (T71, p 260) that he did not have a partner.  The Respondent submitted that Mr and Mrs Mosaui hold themselves out as married to each other and that this weighs in favour of deciding that they are members of a couple.

16. In terms of a sexual relationship, the Respondent submitted that the presence of a sexual relationship is an element relevant to consideration, but the absence of a sexual relationship is not conclusive evidence that the person is not a member of a couple and cited as an authority Deputy President Groom in Re:Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792, at [34] (Gordon).  The Secretary noted that Mr Mosaui has had several children with Mrs Mosaui and that AAT1 recorded (T2, p 6) that their youngest child was conceived when Mr Mosaui travelled to Pakistan to visit his wife in 2016.  The Respondent therefore submitted that a sexual relationship exists and supports the conclusion that the Applicant is a member of a couple.

17. In terms of the nature and commitment to each other, the Respondent submitted that Mr and Mrs Mosaui had been married “since around 2002 or 2003 and have had five children together”.  There was some evidence in the T-documents that Mr Mosaui had explored obtaining a visa for his wife and children to join him in Australia.

18. The Respondent submitted that, whilst Mr Mosaui and his wife are physically separated, they still have a marital relationship, he maintains regular telephone contact with Mrs Mosaui (see T24, p 93), he has returned to Pakistan three times to be with her since first arriving in Australia and evidence points towards them being mutually committed to overcoming the separation by Mrs Mosaui joining her husband in Australia, with the children.

19. Mr Munro said that the evidence indicates that Mr and Mrs Mosaui pool their financial resources, are legally married to one another, are not, having regard to all the circumstances including those mentioned in section 4(3) of the Act, living “separately and apart from each other on a permanent or indefinite basis”, and that they are members of a couple under section 4(2) of the Act.

    The Respondent’s submissions – should the discretion be exercised to treat the Applicant as not being a member of a couple?

20. Mr Munro drew the Tribunal’s attention to the Federal Court decision in Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084, where Barker J decided, after commenting with approval of a decision of Senior Member Creyke in Re:Holt and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 143, at [41]:

    41.The case law canvassed by Senior Member Creyke in Holt’s case confirms, in my view correctly, that there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.

    42.It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources.

21. Mr Munro noted that Mr Mosaui contended he does not benefit from the pooling of resources that a member of a couple generally enjoys, and it is the Applicant’s evidence that Mrs Mosaui does not have any resources to pool other than her own home, personal property and $10,011 (see T53, p 192).  However, the Respondent submitted that there is evidence that Mr Mosaui may have given Mrs Mosaui the bulk of the $111,153.33 superannuation payment he received.

22. In terms of Mr Mosaui’s financial circumstances, Mr Mosaui told the ARO on 8 October 2015 (T42, p 171) that he had been borrowing money for two years.  On 19 August 2016, Mr Mosaui submitted a form to the Department (T53, p 191) which stated that he had $55,000 in the bank and that Mrs Mosaui owned her own home outright.

23. On 6 December 2016, a Departmental officer recorded that Mr Mosaui had said, through an interpreter, that he gave $50,000 to his wife to pay for her rent.  The interpreter also reported that Mr Mosaui had also given $40,000 to his wife but “had no intentions [sic] of telling Centrelink” (T 91, p 400).

24. On 13 July 2017, Mr Mosaui told the Department that a withdrawal of $50,000 from his account on 26 November 2016 was used to repay a loan which his family had taken out overseas and that some was for his mother’s medical treatment (T91, p 410).

25. On 12 July 2018, Mr Mosaui told AAT1 that he had spent “approximately $90,000 on his mother’s medical treatment which included a significant amount of money for a particular medication” and that he also used money from his superannuation payment to support Mrs Mosaui and their children (T2, p 6).

26. The Respondent submitted that Mr Mosaui was not in financial hardship at the time of the original decision and that there was a paucity of objective evidence to explain how the $111,153.33 superannuation payment has been disbursed, so the level of satisfaction required to exercise the discretion available under section 24 was not achieved.

27. In terms of the decision to live separately from his wife, the Secretary contended that there was no evidence that Mr Mosaui had made an application for a visa for his wife and children to come to Australia and noted that he had told AAT1 that he “could not afford the application fee”.

28. The Respondent submitted, in terms of Mr Mosaui’s health, that the Applicant’s medical conditions are significant but could not be described as unusual or uncommon in the general context of recipients of a disability support pension (DSP), such as Mr Mosaui.

    Submissions of the Applicant

29. Mr Mosaui said he first applied for a section 24 determination in 2016.  He said at that time he was asked how he had spent his superannuation payment and told the Department he had sent it overseas because his mother was sick.

30. Mr Mosaui said he had been asked by the Department to obtain receipts to verify what money had been spent on his mother’s treatment, so he contacted his wife.  He said that his mother had passed away and the hospital where she had been treated in Lebanon queried the need for receipts, given that she had died.

    Evidence of the Applicant

31. Mr Mosaui agreed that he was married to Mrs Mosaui and they had children together.  In terms of the $111,153.33 superannuation payment he received in December 2015, he was asked about a withdrawal he made on 7 March 2016 of $29,000.  Mr Mosaui said he sent “all of this money” for his mother’s treatment, as she was suffering from cancer of the blood.

32. Mr Mosaui said he spent a further $10,000 on his wife and family when he went to visit them in Pakistan in 2016.  The Applicant was asked about a withdrawal on 14 June 2016 in the amount of $9,240, and he said that these were the funds he was referring to when he spoke of money that he spent on his family.

33. Mr Mosaui was asked about the transfer of an amount of $50,750 in November 2016 to a person named Sayed Ewaz; he said this person is his wife’s brother and he sent him the funds because women could not receive money directly, and Mr Ewaz passed the money on to Mrs Mosaui and it was used for medical treatment of Mr Mosaui’s mother.

34. Mr Munro asked Mr Mosaui about a Department officer recording that he said he had “sent $50,000 to wife for rent” and he said that he did not say this, and there must have been some misunderstanding.  Mr Munro asked about what the interpreter said about an additional payment of $40,000 that the Applicant allegedly was not going to inform the Department of, and Mr Mosaui said the interpreter told him “not to worry about” the payment, and he felt deceived by the interpreter.

35. Mr Mosaui said that $50,000 was used to repay a loan which his family had taken out to fund the treatment of his mother.  He said his wife borrowed money from her brother and a family friend.  Mr Mosaui was reminded that he told AAT1 that he spent $90,000 on medical treatment, and he confirmed it was “between $85,000 and $90,000.”

36. Mr Munro asked Mr Mosaui why he did not spend part of his superannuation payment to apply for visas for his wife and children.  Mr Mosaui responded that he needed the money for his mother’s treatment and expenses for the family in Pakistan, and that he was sick as well.  He said that he “spoke to some people who said they can help, and two or three months ago started to apply for my family”.

37. In answer to a direct question from the Tribunal as to why he didn’t apply for visas for the family when he first received the superannuation payment, Mr Mosaui said he spent the money on his late mother’s medical treatment.

    Consideration

38. As mentioned above, the first step is to decide whether or not Mr Mosaui is a member of a couple.  In terms of section 4(2)(a) of the Act, there was no dispute that the Applicant and Mrs Mosaui are legally married; that was indeed Mr Mosaui’s oral submission.  In terms of the question as to whether Mr and Mrs Mosaui are living apart on a ‘permanent or indefinite basis’ having regard to all the circumstances of the relationship, including (but not limited to) the matters contained in section 4(3) of the Act, the attention of the Tribunal was drawn to the decision of Watson J in In the Marriage of Todd (No.2)(1976) 9 ALR 401, where His Honour said, at [403]:

    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 [i.e. the Family Law Act 1975] 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.

1. In Re:Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050, Senior Member Isenberg said, at [70]:

   70. Determining whether a relationship is ‘marriage-like’ is a difficult task. The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above. As observed in Cullinane (where there was found to be a marriage-like relationship) 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 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.

2. The Tribunal respectfully agrees with these two approaches.  There are a range of ingredients that may contribute to forming an opinion that a person is a member of a couple, and the factors that are included in section 4(3) of the Act are some of those ingredients.  But care must be taken when applying these factors to a particular case; it would be a wrong approach for a decision-maker to apply a ‘tick and cross’ type approach in assessing a person’s relationship because one factor which might be common in a regular couple’s relationship, for example a sexual relationship, may not be present.  As Deputy President Groom, I think rightly, said in Gordon, the absence of this factor may not be conclusive to forming an opinion.

3. In Mr Mosaui’s case, he did not dispute he was married to Mrs Mosaui, nor that he was the father of their five children.  He gave evidence that he was in regular contact with his wife and that he remitted funds to her (or, via her brother, for her) to support her and their children.  I accept the Respondent’s submission that the fact Mr and Mrs Mosaui are living physically apart, and indeed in different countries, should not be interpreted as a factor against coming to the opinion that they are a couple, but should be considered in the context of Mrs Mosaui’s immigration status, and the circumstances of her husband’s arrival in Australia in 2010 (by boat, accepted as a refugee).

4. I note that Mr Mosaui says he is assisting his wife financially (see, for example T82, p 332).  Mr Mosaui indicated that he loved the children they had together and would like them to come to Australia.  There is possibly no ‘pooling’ of financial resources in the sense of putting money into a common fund, but I take into account the Applicant’s evidence about technical difficulties with transferring money to his wife and his openness  about having arranged for her to have funds transferred to her for her household and family expenses.  It would seem to me that, while it is perhaps uncommon for a marital relationship to continue for some years with the two persons married residing in different countries, the fact that Mr Mosaui has several times returned to Pakistan for reasonably substantial periods and has clearly on each occasion resumed an intimate relationship with his wife, and has a clear intention that she and their children should one day join him in Australia leads me to the conclusion that I am satisfied that he is a member of a couple with Mrs Mosaui. 

5. The next step, having decided Mr Mosaui is a member of a couple, is to consider whether the discretion should be exercised under section 24.  Deputy President Hack, QC, in Re:Purdie and Secretary, Department of Social Services [2013] AATA 743 (Purdie) considered section 24(3) of the Act and said, at [14]:

   14.         I turn then to the question of whether there is a special reason in the circumstances of this case to treat Mr Purdie as not being a member of a couple.  The Secretary’s submissions point to the departmental policy guide for the application of this discretion.  That guide suggests that three questions need to be considered as part of an assessment of the application of s 24.  Those questions 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?  For my part I remain unpersuaded that the section poses three questions.  It seems to me the section poses only one question – is there a special reason to treat Mr Purdie in the present case as not being a member of a couple.  It may well be that the inability to pool resources informs the policy reason for the insertion of s 24 in the Act but the requirement to consider financial difficulty, whilst no doubt relevant in many cases, is not something I see dictated by the plain words of the statute.

6. The Tribunal takes the view that the Parliament has written section 24(1)(c) of the Act to include two elements: there needs to be a special reason in the particular case, i.e. a reason which is special to the person and the person’s circumstances, not a general reason that may be applicable to other persons, even other persons in the same general circumstances as the Applicant (that is, persons receiving a DSP).  In addition, once the Secretary is satisfied that there is such a special reason, the Secretary may make a determination.  

7. It is logical that the foundation of the discretionary power conferred by section 24 is on the financial circumstances of the person seeking not to be treated as a member of a couple.  In Mr Mosaui’s case, he received a substantial superannuation payment and, while it may be accepted that he used some of it to fund his late mother’s medical treatment at the Aga Khan Hospital in Karachi, and he provided some medical receipts and other documents which support that (Exhibit R2), there is a lack of clarity around how much he actually paid, and how much of these funds he remitted to his wife.  He has quoted various amounts, but they have varied more than once.

8. I note the ARO remarked that Mr Mosaui is in receipt of a DSP at the rate of $684.10 per fortnight, lives in government housing and pays rent of $120.70 per fortnight.  The ARO concluded that the Applicant had stable accommodation and income for his basic necessities and could not be considered to be in financial hardship.

9. It is significant, in the Tribunal’s mind, that Mr Mosaui’s evidence was that he had only recently entered into discussions with lawyers in relation to making applications for his wife and children to apply for visas to come to Australia.  He has been somewhat inchoate in his evidence about this in the past, but admitted in the hearing that he “two or three months ago started to apply for my family”.  Two or three months before the hearing would be October-November 2018.

10. In answer to direct questions from the Tribunal, Mr Mosaui said that after his initial arrival in Australia as a refugee in 2010, he was granted a protection visa.  He gave evidence that he has travelled overseas three times, each time returning to Pakistan.  He agreed that he stayed between two and two and a half months each time he returned to Pakistan.  I asked Mr Mosaui if he had ever had any political problems or other factors which affected his situation in Pakistan, and Mr Mosaui said he had never had any political problems there.  The Tribunal asked Mr Mosaui whether it was his choice to reside in Australia, and he responded “Yes”.  Later, Mr Mosaui changed his evidence and submitted that he was “scared of the new prime minister in Pakistan, you cannot talk freely there; it is a very different lifestyle.”

11. Mr Munro advised the Tribunal that Mr Mosaui has been granted a DSP at the partnered rate from 22 February 2017.  The Tribunal asked Mr Mosaui why he thought he should receive the DSP at the single rate when he was married, as opposed to another married DSP recipient who is paid the partnered rate.  Mr Mosaui said it was “because I am alone and have to pay bills, rent, accommodation and electricity” costs.  The Tribunal pointed out that these costs would be required if his family was with him, and Mr Mosaui said that if the family was here, they would help financially.  When asked how they would help, given the children’s ages range between 1 and 14, Mr Mosaui said that they could help with cooking and cleaning and that he assumed “Centrelink would pay them” (by which the Tribunal took him to mean that he may receive some additional government assistance if his children were in Australia).

12. The Long Title of the Act is “An Act to provide for the payment of certain pensions, benefits and allowances and for related purposes.”  Section 4 provides, amongst other things, for the definition of ‘a couple’.  Section 24 should be read in the context of providing a discretionary qualification to the definition in section 4(2).  The Secretary is given a power to make a determination to treat a person who is a member of a couple as not being a member of a couple by section 24.  However, as mentioned above, section 24(1)(c) requires that the decision-maker be satisfied that there is a special reason in a particular case.  It is, in essence, a provision of last resort, only to be used if the circumstances of the coupled person receiving a pension, benefit or allowance at the partnered rate merit them being treated as single, because to do otherwise would lead to an unreasonable result.  The Tribunal believes this is essentially a precis of the reasoning in Purdie.

13. In this case, Mr Mosaui has received a significant superannuation payment and has given the Tribunal scant and inconsistent evidence of the disposition of those funds.  It may be accepted that it was natural that he directed some of those funds to pay the medical costs incurred for the treatment of his late mother, but the exact proportion was unclear.  It may also be accepted that some of those funds have been directed to support his family back in Pakistan, but again the quantum is unclear.   There is almost a complete absence of corroborative material on how much of the $111,153.33 superannuation payment has been spent.  The Respondent submitted that there were four withdrawals of amounts of $29,150, $9,240, $2,000 and $50,750 but no corroborative evidence of the disposition of this money, and, on the documents before me, the Tribunal agrees.

14. Section 24(1)(b) requires that a person who is the subject of a determination must be living separately and apart from the other person on a “permanent or indefinite basis”.  The evidence of Mr Mosaui was that he did not intend to be permanently apart from his wife.  In terms of whether they are apart on an ‘indefinite’ basis, the Tribunal looked to The Concise Oxford Dictionary definition of ‘indefinite’, which is: vague, undefined; unlimited.  While it may not be clear exactly when Mr and Mrs Mosaui will be reunited, I look at this term in the context of the purposes of the section, and find that the Applicant has within his power options to resume living with his wife, either in Pakistan or, if she is granted a visa, in due course in Australia.  They are not apart for an unlimited time, even if the precise length of their separation is not known.  I do not, therefore, conclude that Mr Mosaui satisfies the requirements of section 24(2)(b) of the Act.

15. Part 2.2.5.50 of the Department’s Social Security Guide, Version 1.253 provides policy guidance to delegates of the Secretary considering determinations under section 24.  In discussing a situation where a member of a couple may be overseas, the Guide states:

    Do either of the parties have the power to alter the situation and, if so, are they taking reasonable steps to do so?

    Has the situation arisen beyond the control of either partner or as an unintended consequence of the partner's actions?

16. While the Tribunal is not constrained by government policy, for reasons of fairness it is relevant to consider the Guide when a discretionary power is being exercised in terms of a social security benefit.  Brennan J, then President of the Tribunal, said in Re: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at [640]:

    Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.

17. Applying these two considerations in the Guide, I am not satisfied that Mr Mosaui has made any real attempts to seek visas for his wife and children to join him in Australia.  It also is clear on the evidence that he is free to travel back to Pakistan to be with his family, and he has done so several times.  While in this assessment the Tribunal is not considering any protection claims the Applicant might make which may affect his ability to return to his home country, Mr Mosaui had the opportunity to make such a case at the hearing and did not, in any concrete form.  His domestic circumstances in terms of his separation from Mrs Mosaui and their children would therefore seem to be a matter of personal choice and wholly within his control.  The circumstances that may have been beyond his control, when first he came to Australia and his refugee status was accepted, would seem now, on his own evidence, to have changed.  I therefore conclude that he, at least, has the power to alter the situation but has not taken reasonable steps to do so.

18. Lest it be thought I have not adequately considered that Mr Mosaui is on a DSP and has a range of health conditions, I have taken this into account but must do so through the lens of other persons who are also on a DSP, single persons and couples.  It is fair that the Applicant’s circumstances be considered in relation to this class of persons, not in terms of the general populace.  I do not conclude that there is a special reason to consider that Mr Mosaui’s overall financial circumstances, in terms of other DSP recipients, are inherently more impoverished.

19. It is incumbent on Mr Mosaui to provide evidence to satisfy a decision-maker (in this case the Tribunal) that a determination under section 24 should be made in his particular case.  On the evidence before me from the Applicant and the material provided by the Department, I find that the provisions of section 24(1)(b) and (c) are not met (and they are conjunctive and both must be met) and so the discretion at the end of the section for a determination to treat Mr Mosaui not as a member of a couple is not enlivened.  Accordingly, the decision under review was the correct decision.

    DECISION

20. The reviewable decision is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 17 April 2019

Date of hearing:	22 January 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Cameron Munro Department of Human Services