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

This matter concerned an appeal by Mr. Mosaui against a decision by the Secretary of the Department of Social Services to treat him as a member of a couple for the purposes of the social security legislation. Mr. Mosaui, who arrived in Australia in 2010, is legally married to Mrs. Mosaui, who resides in Pakistan with their four children. The Department had previously treated Mr. Mosaui as not being a member of a couple, but this decision was reversed in September 2016. Subsequent reviews by an Authorised Review Officer and the Administrative Appeals Tribunal affirmed the Department's decision. The appeal was heard by D. J. Morris SM.

The primary legal issue before the court was whether Mr. Mosaui should be treated as a member of a couple under the Act. This involved determining if he and Mrs. Mosaui were living separately and apart on a permanent or indefinite basis, and if so, whether there were special reasons in his particular case for the Secretary to exercise discretion not to treat him as a member of a couple under section 24 of the Act. The court was required to consider the nature of their marital relationship, drawing on principles from cases such as *In the Marriage of Todd (No.2)* and *Re: Sperring*, which emphasise that separation involves more than mere physical separation and requires an intention to sever the marital relationship.

The court reasoned that for the discretion under section 24 to be enlivened, both the condition of not living separately and apart on a permanent or indefinite basis and the existence of special reasons must be satisfied. The court found that the evidence did not satisfy these conjunctive requirements. While Mr. Mosaui provided explanations for financial transfers to his wife and family, including for medical treatment and family expenses, these did not demonstrate an intention to sever the marital relationship or establish special reasons to override the general rule. The court concluded that the circumstances of Mr. Mosaui's case did not enliven the discretion provided by section 24.

Accordingly, the court affirmed the decision under review, finding that the Secretary's decision to treat Mr. Mosaui as a member of a couple was correct.