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

Qadoura and Secretary, Department of Social Services (Social services second review) [2019] AATA 4307 (23 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2245
Re:Ruba Qadoura
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 October 2019
Place:Sydney

The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Special Benefit – cancellation decision – where applicant failed to comply with reporting obligations – failure to return information requested by Secretary – consideration of date of effect – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 October 2019

This case involves a series of interactions between Mrs Qadoura (the Applicant) who is an Arabic-speaking lady with only a rudimentary understanding of both the English language and of her legal obligations under social security law and the Secretary of the Department of Social Services (the Respondent) who is authorised to pay social welfare benefits to recipients only when the necessary paperwork is in order.
The Applicant claims that, on a number of occasions, she did not receive[1], or failed to understand certain correspondence from the Department, while the Department claims that it made or withheld payments to the Applicant purely in accordance with her having met or failed to meet, its reporting requirements.
[1] Submission of the Applicant’s representative, Mr Jamal Daoud, dated 23 July 2019 at pages [1] and [2].
The immediate issue arises from the Department’s decision of 3 February 2016 to cancel the Applicant’s payment of Special Benefit (SpB) as from 20 January 2016. That decision was affirmed by an Authorised Review Officer (ARO) of the Department on 23 January 2016. Following an appeal to the Social Services and Child Support Division of this Tribunal (AAT1) that decision was again affirmed by the AAT1 on 3 April 2019. The Applicant sought a review of the AAT1 decision on 23 April 2019 and the matter came before this Tribunal for hearing on 14 October 2019.
Special Benefit is paid where an individual is in financial hardship and unable to earn sufficient livelihood for themselves and their dependants due to circumstance beyond their control and where they are not able to access any other income support payment. In order to qualify, an individual must meet certain residency requirements and there are limits both on the amounts payable and the time during which payments may be made. The payment is subject to means and assets testing and may include payment of rental assistance.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Social Security (Administration) Act 1999 (the Act), although the Tribunal must also have regard[2] to the policy guidelines which are set out on the Social Security Guide, issued by the Department to assist in the interpretation of the Act and as a guide to decision-makers.
[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645].
Payments under the Act may only be made where recipients have been able to provide certain information to the Department which establishes their eligibility for initial or continuing payment. This eligibility is established when the applicant responds to one or more notices which are sent to them by the Department seeking information. There are a large number of such notices given under various sections of the Act and it is necessary to set out in some detail the way in which they operate with specific relevance to these proceedings.[3]
[3] This outline is taken, with acknowledgment and appreciation from the Respondent’s Statement of Facts, Issues and Contentions
Section 63 of the Administration Act provides as follows:
Requirement to attend Department etc.
Secretary may require person to attend Department etc.
(1) Subsection (2) applies to a person if:
(a) the person is receiving, or has made a claim for, a social security payment; or
….
(2) If the Secretary is of the opinion that a person to whom this subsection applies should:
(a) attend an office of the Department; or
(b) contact the Department; or
(c) attend a particular place for a particular purpose; or
(d) give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
….
(5) The Secretary may notify a person under subsection (2) or (4):
(a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Secretary; or
(b) in any other way the Secretary considers appropriate
….
Consequence of not informing person of effect of failure to comply with requirement in notice
(7) If a person is notified under subsection (2) or (4) and the notice does not inform the person of the effect of section 64, subsection 64(1) or (5) (as the case requires) does not apply to the person in relation to the requirement in the notice.
Section 64 of the Administration Act details the effect of failing to comply with a notice given:
Effect of failing to comply with requirement to attend Department etc.
Person receiving, or claiming, social security payment
(1) If:
(a) a person is receiving, or has made a claim for, a social security payment; and
(b) the Secretary notifies the person under subsection 63(2) or (4); and
(c) the requirement in the notice is reasonable; and
(d) the person does not comply with the requirement; and
(e) except if the person is receiving, or has made a claim for, a participation payment--the Secretary is not satisfied that the person had a reasonable excuse for not complying with the requirement; and
(f) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the payment that the person is receiving or has claimed is not payable.
(4) If:
(a) a social security payment is not payable to a person because of subsection (1); and
(b) the Secretary is satisfied that it is no longer reasonable for that subsection to apply to the person in relation to the requirement in the notice given to the person under subsection 63(2) or (4);
the Secretary may determine that, on and after a day specified by the Secretary, subsection (1) ceases to apply to the person in relation to that requirement.
Section 68 of the Administration Act relevantly provides that the Secretary may give a person who is being paid a social security payment a notice that requires the person to give a statement about a matter that might affect their social security payment.
Section 72 specifies the requirements for a notice given under subsection 68(2) of the Administration Act. It relevantly states:
Provisions relating to notice
(1) A notice under this Subdivision:
(a) must be given in writing; and
(b) may be given personally or by post or in any other manner approved by the Secretary; and
(c) must specify how the person is to give the information or statement to the Department; and
(d) must specify:
(i) in the case of a notice under section 68 that requires the giving of more than one statement, each relating to the payment of the social security payment in respect of a period--the date by which the person is to give each statement to the Department; or
(ii) in any other case--the period within which the person is to give the information or statement to the Department; and
(e) must specify that the notice is an information notice given under the social security law.
(2) A notice under this Subdivision is not invalid merely because it fails to comply with paragraph (1)(c) or (e).
…..
(3) Subject to subsections (4), (6) and (7), the period specified for the purpose of subparagraph (1)(d)(ii) must:
(c) in the case of a notice under section 67 or 68 that requires the giving of a statement that relates to the payment of the social security payment in respect of a period specified in the notice--end not earlier than 7 days after the day on which the notice is given; or
(d) in the case of a notice under section 67, 68 or 69 that requires the giving of a statement, not being a notice to which paragraph (c) applies--end not earlier than 14 days after the day on which the notice is given; or
….
Division 1 of Part 5 (sections 191 to 198) of the Administration Act contains further information gathering provisions.
Section 192 relevantly provides:
The Secretary may require a person to give information, or produce a document, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:
(a) the question whether a person who has made a claim for a social security payment is or was qualified for a social security payment;
(aa) the question whether a person is or was qualified for a social security payment for which a claim is not required;
(b) the question whether a social security payment is payable to a person who is receiving the payment;
(c) the question whether a social security payment was payable to a person who has received the payment;
(d) the rate of social security payment that is or was applicable to a person;
….
Section 196 specifies the requirements for a notice given under subsection 192 of the Administration Act. It relevantly states:
Written notice of requirement
(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
(2) The notice:
(a) may be given personally or by post or in any other manner approved by the Secretary; and
(b) must specify:
(ia) a description of the information or document to which the requirement relates; and
(i) how the person is to give the information or produce the document to which the requirement relates; and
(ii) the period within which the person is to give the information or produce the document to the Department; and
(iii) the officer (if any) to whom the information is to be given or the document is to be produced; and
(iv) that the notice is given under this section.
Note:The notice may describe the information or documents by class (see subsection 33(3AB) of the Acts Interpretation Act 1901 ).
(3) For the purposes of subparagraph (2)(b)(ii), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the social security law, to specify a shorter period.
Sections 80 and 81 of the Administration Act provide for the cancellation and suspension of social security payments. They relevantly state:
80 Cancellation and suspension determination
(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a)who is not, or was not qualified for the payment; or
(b)to whom the payment is not, or was not payable (other than because of the operation of Division 3AA);
the Secretary is to determine that he payment is to be cancelled or suspended.
Note: Division 3AA is about compliance with participation payment obligations for persons who are not declared program participants.
…
81 Cancellation or suspension for non-compliance with certain notices
(1) If:
(a) a person who is receiving a social security payment (other than a newstart allowance) has been given:
(i) a notice under section 67 or 68 that requires the person to give the Department a statement; or
(ii) a notice embodying a requirement under Division 1 of Part 5; and
(b) the person does not comply with the requirement of the notice;
the Secretary may determine that the payment is to be cancelled or suspended.
Section 85 provides for the resumption of payment after a cancellation or suspension. It states:
(1) If:
(a) a person's social security payment is:
(i) cancelled by force of section 93 or 94 or subsection 95C(2); or
(ii) cancelled or suspended under section 80, 81 or 82; or
(iia) suspended under subsection 95C(1); or
(iii) cancelled under Part 3C (schooling requirements); and
Note: For reconsideration of the suspension of a schooling requirement payment, see sections 124J, 124N and 124NG.
(b) the Secretary reconsiders the decision; and
(c) as a result of the reconsideration, the Secretary is satisfied that, because of the decision:
(i) the person did not receive a social security payment that was payable to the person; or
(ii) the person is not receiving a social security payment that is payable to the person;
the Secretary is to determine that the social security payment was or is payable to the person, as the case requires.
(2) The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 129 or a reconsideration on the Secretary's own initiative.
Section 109 of the Administration Act provides for the date of effect of a favourable determination resulting from review. It relevantly provides:
Date of effect of favourable determination resulting from review
(1) If:
(a) a decision (the original decision ) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) within 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the determination embodying the original decision took effect.
(2) If:
(a) a decision (the original decision ) is made in relation to a person's social security payment; and
(b) a notice is given to the person informing the person of the original decision; and
(c) more than 13 weeks after the notice is given, the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
the favourable determination takes effect on the day on which the application for review was made.
(3) If:
(a) a decision (the original decision ) is made in relation to a person's social security payment; and
(b) the person is not given notice of the original decision; and
(c) the person applies to the Secretary, under section 129, for review of the original decision; and
(d) the favourable determination is made as a result of the application for review;
Section 237 of the Administration Act provides:
Notice of decisions
(1) If notice of a decision under the social security law is:
(a) delivered to a person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.
(2) Notice of a decision under the social security law may be given to a person by properly addressing, prepaying and posting the document as a letter.
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post unless the contrary is proved.
Subsection 23(12) of the Social Security Act 1991 (Cth) also provides:
(12) If:
(a) section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b) sections 28A and 29 of the Acts Interpretation Act 1901 (the Interpretation Act) apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Finally, instruction 4.2.6 SpB Income Test & Limits of the Social Security Guide provides that for the purpose of special benefit, any income earned by the special benefit recipient or their partner is treated as follows:
Direct deduction income test
The direct deduction income test reduces the rate of SpB by the amount of ALL gross income. There is no allowable income free area and no taper. Payment to the partner (1.1.P.85) of an SpB recipient is assessed as if the SpB recipient received any other benefit or allowance.
THE APPLICANT’S SOCIAL SECURITY RECORD
The facts are set out in the Respondent’s Statement of Facts Issues and Contentions as follows (reference and footnotes omitted):
[5] The Applicant was in receipt of special benefit from 3 September 2015.
[6] On 9 November 2015, the Department sent the Applicant a Special Benefit review form that was required to be returned by 26 November 2015. This form specified that this was a notice under section 63 of the Administration Act and that the Applicant was required to complete and return the form within 14 days. The form noted that if the Applicant failed to comply with this notice, her payments may stop.
[7] On 7 December 2015, the Department cancelled the Applicant’s special benefit as she had not completed her special benefit review.
[8] On 15 January 2016, the Applicant returned the special benefit review form. The Applicant’s special benefit was restored and the Applicant received payment for the period from 7 December 2015 to 19 January 2016.
[9] On 20 January 2016, the Department requested the Applicant provide a completed rent certificate with a copy of her lease agreement (if she had one) and bank statements for account numbers XXXX01 and XXXX49 for the period from 23 August 2015 to 29 November 2015. This notice provided that if the Applicant did not provide this information by 3 February 2016, that her special benefit payments may be stopped.
[10] On 3 February 2016, the Department cancelled the Applicant’s special benefit from 20 January 2016 as the documents the Department requested had not been received.
[11] On 1 March 2016, the Applicant provided:
·a Rent Certificate;
·a bank statement for account number 886401 for the period from 9 July 2015 to 4 February 2016; and
·a bank statement for account number 767349 for the period from 22 January 2016 to 18 February 2016.
[12] On 3 March 2016, the Department requested further information as they had noticed from the Applicant’s partner’s bank statements that the Applicant’s partner was earning money from plumbing. They informed the Applicant that her payments could not be restored until her partner’s income was declared. In particular, the Department requested the Applicant provide:
·If the Applicant’s partner was self-employed – a MOD F Business details form and a profit and loss statement for the period he commenced work until 30 June 2016; or
·If the Applicant’s partner was a wage and salary earner – Payslips for the period he commenced working to current.
The Department stated that the Applicant’s special benefit would be re-assessed on the return of these documents and that the Applicant needed to provide the requested information by 3 May 2016.
[13] On 7 March 2016, the Applicant advised the Department that her partner does not have wages or salary. She stated it was his uncle that put the money in his account so her partner can fix his bathroom as he does not have enough money to fix it. The Departmental Officer advised that bank statements were needed from the Uncles bank account showing money was withdrawn from this account, as well as a statement from the uncle to explain why he gave the Applicant’s partner this money. The Applicant was advised that her payment cannot be restored until these details are provided.
[14] On 22 June 2017, the Applicant contacted the Department regarding making a claim for parenting payment.
[15] On 17 September 2018, the Applicant sought review of the decision to cancel her special benefit.
[16] Also on 17 September 2018, the Applicant lodged a claim for parenting payment . On 21 September 2018, the Department rejected the Applicant’s claim for parenting payment as she did not meet the residency requirements.
[17] On 5 October 2018, the Applicant provided:
·bank statements for account number XXXX49 for the period from 4 December 2015 to 5 September 2016;
·bank statements for account number XXXX01 for the period from 10 November 2015 to 10 November 2016.
[18] On 23 January 2019, the ARO affirmed the decision to cancel the Applicant’s special benefit with effect from 20 January 2016.
[19] On 3 April 2019, the AAT1 affirmed the decision.
[20] On 23 April 2019, the Applicant lodged an application for review with this Tribunal.
[21] On 27 May 2019, the Applicant lodged another claim on parenting payment[4]. The Applicant was granted parenting paying from 10 June 2019.
[4] The Applicant’s Submission, attached to her application for review, notes that the child in question was born on 25 May 2015. Section 37 Tribunal Documents at [97].

Payment of another social security benefit – in this case parenting payment, renders the Applicant ineligible for SpB payments as from the date of the grant of the former.
THE SPB CANCELLATION AND RESUMPTION
January to March 2016
The Applicant was in receipt of SpB from 3 September 2015. This was cancelled on 7 December 2015 as she had not completed the Department’s standard special benefits review, which is undertaken at regular intervals to assess continuing eligibility for SpB payments. Information which had been requested in this initial notice was supplied, in part, on 15 January 2016 and, as a result, her SpB payments were reinstated as from 7 December 2015 up until 19 January 2016.
On the following day, 20 January 2016, she was asked to supply certain documents to the Department to allow verification of her payments. She was asked to do so by 3 February 2016.[5] The documents requested were a copy of a rent certificate and bank account details for two separate bank accounts between certain specified dates. She failed to do so and her SpB was cancelled on that date, effective from 20 January 2016.
[5] Section 37 Tribunal Documents at [72].
On 1 March 2016 the Applicant provided the required rent certificate and also provided two bank statements. However, these bank statements did not cover the full range of dates specified in the original request. The Department then concluded that as the full range of material it had required had not been supplied, there was no basis upon which to reinstate the SpB payments and they remained cancelled.
Beyond March 2016
On 3 March 2016 the Department sought further information from the Applicant. On this occasion the Department reported that they had noticed that the Applicant’s partner appeared to be in receipt of earned income from plumbing activities. The basis of this request was that the Department had noticed a number of deposits into his account from companies (KJA Group) and individuals (Mr Jaafar Moussa) which gave such an indication. Mr Mohamad Qadoura’s bank account reveals three relevant deposits:
·8 February 2016 : Deposit KJA Group Plumbing : $1,730.00
·15 February 2016 : Deposit Mr Jaafar Moussa Plumbing :$400.00[6]
·24 December 2015: Deposit KJA Group: $800.00.[7]
[6] Ibid at [84].
[7] Ibid at [127].
This further information was required to be supplied by 3 May 2016.[8]
[8] Ibid at [86].
On 7 March 2016 the Applicant informed the Department that her partner was not in receipt of any wages or salaries. She claimed that the deposits were from a family member (her partner’s “uncle”[9]) and were gifts to allow her partner to undertake necessary repairs of his bathroom which he could not otherwise afford. The Department then determined that the original notice which they had given to the Applicant also required her to supply information which corroborated her statements about the sources of the deposits into her partner’s account, and moreover, that she had failed to do so.
[9] The Tribunal accepts that in this context “uncle” does not mean a parent’s sibling but is rather a term used to describe an older person with some sort of (non-biological) connection to the family or a family member.
There is a discrepancy in the account given by the Applicant to the Department[10] as to the origin of the deposits and that given by the Applicant’s partner to the AAT1 where he said that the payments were in order to allow him to purchase plumbing materials for a job, on behalf of Mr Moussa, because he was able to access such materials at a discounted rate.[11]
[10] Section 37 Tribunal Documents at [180].
[11] Ibid at [10]-[11].
The AAT1 in its determination stated:
“Overall, the Tribunal found the submissions and both witnesses’ [Mr and Mrs Qadoura] evidence about the nature of the money deposited into Mr Qadoura’s bank utterly unconvincing. The tribunal could not determine whether Mrs Qadoura had any direct knowledge of the financial transactions underlying the deposits into her bank account. However the Tribunal was satisfied that Mr Qadoura was not truthful when he told the Tribunal that the deposit of 8 February 2016 was money given to him by a close family friend for plumbing supplies which he purchased for a discount because of his father’s discount arrangement with another plumber.”[12]
[12] Ibid at [11].
Both Mr and Mrs Qadoura appeared as witnesses before this Tribunal and both were questioned about the matter of these bank deposits. Mrs Qadoura was unable to shed any light on the situation and Mr Qadoura maintained his position that these were payments from Mr Moussa in order for Mr Qadoura to obtain plumbing supplies for Mr Moussa at a discount price. The question of whether there was any plumbing work actually undertaken in any bathroom (either the Qadoura family home or that of Mr Qadoura’s father with whom they had lived previously) was confusing. Apparently Mr Moussa is involved on the building/rendering industry (not as a plumber) and the supplies in question may have been directed to those needs.
The Tribunal would not go so far as AAT1 to conclude that there was any deliberate intent on the part of Mr Qadoura to be misleading or dishonest.
However, an initial deposit was made (followed by others) – it was either for services rendered by way of employment or by way of agency. One way or the other it was a form of income and its origins needed to be explained to the Department. It rightly triggered the attention of the Department. The Department provided the Applicant with an opportunity to explain the nature of the payment. Her failure to do so was what then precipitated the cancellation decision.
THE APPLICANT’S POSITION
The case put on behalf of the Applicant is as follows:[13]
(a)The Applicant became eligible for Special Benefit after attaining the necessary residential qualifications[14] and was thereafter paid that SpB as from 3 September 2015.
(b)The Department acted to cancel the Applicant’s SpB via a ”strange letter” from Centrelink on 7 December 2015 which gave as its reason for cancellation “you have not completed your Special Benefit review.”[15]
(c)Thereafter the Department noted certain payments into the Applicant’s partner’s account and as it was put orally to the Tribunal “made unsubstantiated and improper conclusions” that he was working and gaining payment as an employee, thereby altering the income levels which the family had for the purposes of calculating the Applicant’s rate of SpB.
(d)In any event Centrelink both failed to (again as put to the Tribunal) “take any action against Mohamad to cancel his Newstart allowance”, or, in the alternative, simply adjust the Applicant’s rate of SpB payment in accordance with this new information.
(e)Thereafter the Department sent the Applicant demands, via letters of Notice to produce information which required her to provide information which was not, as section 192 of the Administration Act provides, “in the persons’ custody or under the persons’ control.” Hence the Applicant was in no position to comply with the notices as she did not have access to the information being requested.
(f)Finally, the Secretary has failed properly to exercise her discretion to consider matters under section 729(2)(e) of the Social Security Act 1991 which provides that certain payments can continue to be made where
“(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason;”.
[13] Allegations were put to the Tribunal by the Applicant’s representative suggesting that there was deliberate behaviour on the part of Departmental officers to deny the Applicant her proper entitlements. However nothing was put to the Tribunal to substantiate any such claims and, as such, the allegations were not further considered by the Tribunal.
[14] The Applicant arrived in Australia on 10 April 2013 on a prospective marriage visa and was married shortly after her arrival. Section 37 Tribunal Documents at [96].
[15] Idem.
Unfortunately for the Applicant, the central propositions of their case cannot be sustained for the following reasons:
1.The decision to cancel the Applicant’s SpB was first made on 7 December 2015 because the Applicant had failed to provide the Department with information requested as part of the normal processes of regular review of SpB payments. This information was first requested on 9 November 2015 and was required by 26 November 2015. There was nothing strange or unusual about this request.
2.The original cancellation decision was varied upon late receipt of some of the required information and the Applicant was paid SpB from 7 December 2015 to 19 January 2016.
3.On 20 January 2016 further information was requested from the Applicant related to both rental certificate details and bank account statements. This information was not provided within the time specified. As a result a cancellation decision was made on 3 February 2016.
4.On March 1 2016, the Applicant provided some information and it was after this was received that the Department became aware of payments into the Applicant’s partner’s account, resulting in further requests for information issued on 3 March and 7 March 2016. Neither of these requests was responded to in full.
5.The information requests in terms of bank accounts for both Mr and Mrs Qadoura was, at all times, available to the Applicant. The evidence given to the Tribunal was clear in demonstrating that while Mr Qadoura had general management of the family finances, each was aware that there were, at various times, both joint and separate bank accounts held by each party. All correspondence from the Department to the Applicant was given to Mr Qadoura who generally managed all aspects of the Applicant-Department relationship, including the face-to-face interviews at the Liverpool offices of Centrelink.
6.Contrary to earlier claims, it appears that there can be no doubt, based on the Applicant’s oral testimony, that she received all the relevant notices and notifications from the Department.
7.In relation to requests for other information it can be said that:
a)either the Applicant or Mr Qadoura should have had, at all times, access to any documents which would have shown whether or not Mr Qadoura engaged in paid employment;
b)to the extent that Mr Qadoura received money from Mr Moussa for the purchase of supplies, there would have been evidence to show that such purchases were made and such evidence, supportive or corroborative of the Applicant’s claims about the sources of her partner’s income (via bank deposits), would have been producible at the time. At the very least a letter or statement from Mr Moussa about these transactions could have been provided to clarify relevant concerns.
8.In the absence of any evidence before the Tribunal about the full extent of Mr Qadoura’s income, the Tribunal is in no position to determine whether or not the Secretary was in a position to establish what the family’s “sufficient livelihood” status was.
THE SECRETARY’S POSITION
The Secretary contends:
1.The Applicant was originally assessed for and granted SpB.
2.The failure of the Applicant to answer a formally issued notice dated 9 November 2015 (under s. 63 of the Act) led to the proper cancellation of the SpB on 7 December 2015.
3.The SpB was temporarily restored when some of the required information was provided and remained in place until further information was requested on 20 January 2016.
4.The Applicant failed (and has continued to fail) to provide the information requested in the notice of 20 January 2016 and furthermore has failed to provide further information as required by notices dated 3 March 2016 and 7 March 2016.
5.The failure to respond to the 20 January 2016 notice gave rise to the 3 February 2016 cancellation decision.
6.All the notices issued were and are valid notices under sections 192(d) and 196 of the Act.
7.In the absence of the information as requested, being provided, there is no discretion for the Secretary to exercise her powers under section 85 of the Act to restore a payment which was properly cancelled under section 81(1) for non-compliance with information requests.
8.In any event, even were a determination to be made that the cancellation was invalid ab initio, payment could not be restored and backdated to the date of the original cancellation as the Applicant had failed to comply with the further requirement of section 109(2) of the Act to lodge a review request within 13 weeks of the original cancellation notification. This period expired on 3 May 2016 but not review request was lodged until 17 September 2018.[16]
9.As the Applicant has been in receipt of parenting allowance since 10 June 2019, and as SpB cannot be paid to any person otherwise in receipt of alternative social security payments, the only period in which there could be claim for back payment of SpB would be in that period from 17 September 2018 to 10 June 2019.
[16] Ibid at [122].
CONSIDERATION
There is absolutely no doubt that the administrative requirements attendant upon the payment of SpB in this case are of exceptional complexity. The system of notices itself involves sections 63, 64, 69, 72, 192 and 196 of the Act. Decisions about cancellation and restoration bring into effect sections 80, 81 and 85 of the Act. The review process requires compliance with section 109.
It must be exceptionally difficult for individuals, especially those who are in financial circumstances that require them to rely on meeting the stringent tests for SpB and who, moreover, have difficulty managing the English language, to both understand and comply with the Act’s requirements. The evidence presented by the Secretary in terms of the notes of recorded conversations between the Applicant, her partner and officers of the Department reveal the difficulties faced by all parties in establishing clear, meaningful and well-understood communications; for example the culturally-laden use of terms such as “uncle”, import different meanings to different participants and adds to this confusion.
Mrs Qadoura’s complaint that she did not understand everything she was required to do and that even with the help of her husband she faced difficulties in compliance is more than appreciated.
Nevertheless, the administration of Australia’s social security laws and the responsibility of any Departmental Secretary to ensure maximum protection of the public revenues, cannot occur without adherence by all parties to statutory requirements, no matter how complex, mysterious or daunting.
In order to qualify, and to continue to qualify for SpB, the Applicant was required to provide certain information to the Department. In and of itself, none of that information was too difficult to assemble and present. It consisted of a Rental Certificate and certain bank statements (between clearly specified dates). The Applicant and her partner had ready access to this material but the Applicant failed to supply it as required.
If the Applicant’s partner was either self-employed or earning a wage or salary, he would have had ready access to information to establish the facts of his position.
If the Applicant’s partner had received money from Mr Moussa (or any other source) in order to make certain purchases on his behalf, and those purchases were legally made, there would have been receipts or, alternatively, it would have been possible for Mr Moussa to provide a statement attesting to the fact that he had given Mr Qadoura certain monies to undertake certain legal transactions.
No such information was forthcoming to either the Department as requested, nor to either the AAT1 or the hearing of this Tribunal.
In the absence of the information needed by the Secretary to be satisfied that that the Applicant was entitled to SpB, it was reasonable (and indeed, required) for the Secretary to cancel the payment and decline, in the continuing absence of that information, to restore it.
Because that critical information has not been furnished to the Tribunal in its hearings, there is no basis for the Tribunal to call into question the determination made by the Secretary, either initially, or as it relates to the period from 17 September 2018 to 10 June 2019.
DECISION
The decision under review is affirmed.

I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.............................[sgd]...........................................
Associate
Dated: 23 October 2019

Date(s) of hearing: 14 October 2019

Advocate for the Applicant: Mr J Daoud, New Life Migrants Solutions

Solicitors for the Respondent: Ms E Ulrick, Department of Human Services

[2019] AATA 4307

23 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Jurisdiction

Date(s) of hearing:	14 October 2019
Advocate for the Applicant:	Mr J Daoud, New Life Migrants Solutions
Solicitors for the Respondent:	Ms E Ulrick, Department of Human Services