Mr Johnson Bazi v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

[2011] AATA 345

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 345

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4822

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mr Johnson Bazi

Applicant

And Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date1 March 2011

PlaceSydney

Decision The Decision under Review is AFFIRMED.

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

M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY:  Overpayment of Disability Support Pension due to non-disclosure of assets.  Monies in possession of Applicant were confiscated by NSW Crime Commission.  Admission made by Applicant to Centrelink that he was in possession of money.  Applicant now sought to resile from that admission.  Evidence of Applicant not accepted and decision to recover overpayment of Disability Support Pension affirmed.

LEGISLATION

Social Security Act 1991, Section 1223

CASES

New South Wales Crime Commission v John Bazi [2009] NSWSC 88

REASONS FOR DECISION

24 May 2010 M D Allen, Senior Member            

1.      On 1 March 2011 at the conclusion of the hearing in this matter, I announced the terms of the decision that would be made, namely that the decision under review would be affirmed.

2. The Applicant has now, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested written reasons for my decision.  Set out below are those reasons.

3.      The Applicant sought review of a decision by the Social Security Appeals Tribunal (“SSAT”), made 13 October 2010 affirming a prior determination to raise and recover from him a Disability Support Pension (“DSP”) debt in the sum of $13,954.78.

4.      The said debt was raised against the Applicant following the notification by the Applicant to Centrelink by letter dated 12 June 2007 that he had understated to Centrelink the total assets in his possession.

5.      Given later evidence by the Applicant that the amount in his possession varied from time to time, I set out below part of the documents provided by the Applicant to Centrelink.  In reads inter alia:

“It was then that I decided to try and enter the ‘Currency Market’.  I had about $430,000 so I began buying and selling ‘foreign currency’ and made a little profit ($11,000).  On my third transaction I was stopped by Crime Commission on the 24.06.05 and my money was confiscated.  Later I was told that I had done the wrong thing by continuing to claim my disability pension if I had so much money.  I did not know that what I had been doing was wrong as I believed that my pension was my right.

I am now writing this statement to inform you of the situation and the amount of my asset total $429,000 which has been confiscated, I would appreciate your advise (sic) and help as to how to (mak) correct this situation…”

6.      Following this admission by the Applicant, Centrelink calculated that the Applicant’s assets exceeded the permissible amount and that he had therefore been ineligible to receive DSP for the period 2 May 2004 until the day prior to the seizure of the sum of $430,000.00 by the NSW Crime Commission, namely 23 June 2005.

7.      On 5 July 2007 a debt in the sum of $13,954.78 was raised against the Applicant, being the amount of DSP paid to him in the period 2 May 2004 to 23 June 2005.

8. Document T28 of the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a copy of the judgement of Hislop J in the NSW Crime Commission v John Bazi [2009] NSW SC 88. That judgement discloses inter alia that the NSW Crime Commission seized the sum of $430,000.00 in cash from the Applicant on 24 June 2005 and that amount was the subject of an assets forfeiture order made on 28 May 2007, the said sum being attributable to the proceeds of an illegal activity.

9.      Document T30 is a consent order by the NSW Supreme Court in which the Applicant agreed not to make any application challenging the validity of the assets forfeiture order made on 28 May 2007.

10.     In these proceedings the Applicant claimed that he never had the entire sum of $430,000.00 in his possession at any one time.  He said the money was from gambling and the total amount in his possession fluctuated from week to week.

11.     This evidence must be contrasted with the findings of the Supreme Court that the Applicant had been convicted of a serious crime being involved in the making and using a false instruments with intent.

12.     The SSAT in its decision recorded the Applicant as stating that he had won $430,000.00 from gambling around 2004.  The SSAT also stated:

“Mr Bazi did not dispute that he had $430,000.00 in cash in his possession from around 2 May 2004 until 24 June 2005.”

13.     The Applicant was cross examined regarding the notes made by a Centrelink Officer in a conversation with him on 7 September 2010.  The notes record the Applicant as stating that the Applicant said he had lied about the money and that he saw an opportunity to get $430,000.00.  So he lied to Centrelink that he had money for a period of time so that the Courts would believe the money was his.

14.     The Applicant became quite hostile to this line of cross examination and stated that the Centrelink Officer was lying.

15.     Following further cross examination, the following exchange took place:

“Mr Bazi:  No, no.  I don’t want – I will pay you the money but I will get you – believe me, I will get that money from government.  Somehow I will get it.  I will take my revenge.  This is – this is dirty.  I don’t want – I don’t want to continue.  I will pay it off”

Tribunal:  Well in that case I am affirming the decision.

Mr Bazi:  And I will take this to court different way. Don’t worry about that.

Tribunal:  All right.  Good morning Mr Bazi.

Mr Bazi:  Keep the papers.  I don’t want them.  Screw your system and screw you all.  Jesus Christ.  This is playing dirty.  How you sleep on it?  How do you sleep when you play like this?”

16.     In the circumstances I have no hesitation in stating that I do not accept the Applicant as a witness of credit.  I accept his original statement to Centrelink that he had possession of the sum of $430,000.00 since 2004 and that the sum was not disclosed to Centrelink.

17. As the Applicant was in possession of undisclosed assets his DSP was calculated on an incorrect basis and he is liable to repay to the Commonwealth the debt created by that overpayment (see section 1223 of the Social Security Act 1991).  I see no circumstances in which a waiver or write off of that debt or any part of it would be appropriate.  The decision under review is therefore affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .............[sgd]................
  K Lynch, Associate

Date of Hearing                   1 March 2011
Date of Decision                   1 March 2011
Date of Written Reasons  24 May 2011
Representative for the Applicant               Mr J Bazi (self)
Representative for the Respondent          Centrelink Legal Services