Qazizada; Secretary Department of Employment and Workplace Relations and
[2007] AATA 1856
•16 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1856
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 200600126
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
ABDUL MAJID QAZIZADA & WAHIDA QAZIZADA
Respondents
DECISION
Tribunal Ms G Ettinger, Senior Member Date16 October 2007
PlaceSydney
Decision The decision of the SSAT is set aside, and in substitution I remit the matters to the Secretary for recalculation of Mr and Mrs Qazizada’s debts, and recovery relevant to the debt period 29 June 2000 to 9 July 2003.
Ms G Ettinger
Senior MemberCATCHWORDS
Social Security debt – whether Respondent unemployed while receiving newstart allowance – wife’s parenting payment debt – whether special circumstances – decision of SSAT finding special circumstances to waive the debt set aside.
Social Security Act 1991 - ss 1068A, 1223(1), 1236(1), 1237(1) & 1237AAD
Social Security (Administration) Act 1999 s 68(2)
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553 at 570-572
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v Danielson (1996) 44 ALD 19
McKenna and Director-General of Social Services (1981) 3 ALD 219
Secretary Department of Employment and Workplace Relations v Joss (2006) 92 ALD 60
Director-General of Social Services v Thomson (1981) 38 ALR 624
McAuliffe v SDSS (1991) 23 ALD 284
Re Vavaris and Director-General of Social Security (1982) 5 ALN N13
REASONS FOR DECISION
16 October 2007 Ms G Ettinger, Senior Member BACKGROUND
1. Mr Abdul Majid and Mrs Wahida Qazizada arrived in Australia from Afghanistan in 1991. They have five children. By 1996, Mr Qazizada had trained as a taxi driver. He told me that he had been a judge for 18 years in Afghanistan, and that he had studied law at Kabul University. Mr Qazizada told me that he had no documents to show me in respect of his background because they had all been destroyed.
2. Mr Qazizada has worked as a taxi driver from 1996 to the present, has purchased at least three properties, and has, unfortunately given evidence which was on several occasions inconsistent with documentation before me in the T-documents, and inconsistent with evidence as recorded by the Social Security Appeals Tribunal (“the SSAT”). Not unusually, for purposes of this hearing, I had substantially more documentary and oral evidence before me than that which was before the SSAT.
3. Centrelink raised debts of $20,326.50 due to newstart allowance it held was overpaid to Mr Qazizada for the period 29 June 2000 to 9 July 2003, and similarly an overpayment of $25,663.78 of parenting payment partnered (“PPP”) to Mrs Qazizada.
4. The SSAT held that the debts should be waived in full, and that there were no moneys owing. The appeal before me was that of the Secretary, Department of Family and Community Services (“the Secretary”). I was assisted at the hearing by competent interpreters in the Pushtu language at both the substantive hearing and the making of closing submissions.
5. Unfortunately Mrs Qazizada was unable or unwilling to give evidence, to the extent that she did not admit to knowing her own residential address either in English or in Pushtu. I informed her that I found issues of credit in regard to her evidence, and told her that what evidence she did give was not of assistance to me in coming to a decision.
ISSUES BEFORE THE TRIBUNAL
6. I have to decide:
· Whether and for what period Mr Qazizada was overpaid newstart allowance between 29 June 2000 and 9 July 2003;
· Whether and for what period Mrs Qazizada was overpaid PPP between 29 June 2000 and 9 July 2003;
· If such debts were correctly raised, whether any circumstances, or “special circumstances” exist in order to exercise the discretion to waive those debts.
THE LEGISLATIVE CONTEXT
7. The following Acts are relevant, the Social Security Act 1991 (the Act), and the Social Security (Administration) Act 1999.
8. The rate of newstart allowance payable to a qualified person is calculated in accordance with section 1068 of the Act, and the rate of parenting payment partnered (PPP), pursuant to section 1068A of the Act. The rate of PPP to which Mrs Qazizada was entitled, was related to her husband’s income.
9. The rules and obligations relating to disclosure by social security recipients of their personal circumstances, and changes to these are governed by section 68(2) of the Social Security (Administration) Act 1999.
10. Section 1223(1) of the Act provides for the raising of a social security debt when a person who obtains the benefit of a payment was not entitled for any reason to obtain that benefit.
11. The section’s predecessor was section 1224(1) and had a similar effect. It applies to that part of the debt which occurred before 1 July 2001.
12. Section 1237A deals with the mandatory waiver of debts due to sole administrative error which has not been argued, and which I find is not applicable in this case.
13. Section 1236 of the Act deals with write-off which I find does not apply in the matter I have to decide.
14. If I find that the newstart allowance debt incurred by Mr Qazizada and Mrs Qazizada’s PPP debt did not result wholly or partly from Mr or Mrs Qazizada or another person knowingly making a false statement or a false representation, then I can consider whether “special circumstances” exist pursuant to section 1237AAD to either waive part of the debt or the whole of the debt.
WHETHER AND FOR WHAT PERIOD BETWEEN 29 JUNE 2000 AND 9 JULY 2003:
· MR QAZIZADA WAS OVERPAID NEWSTART ALLOWANCE; &
· MRS QAZIZADA WAS OVERPAID PPP
15. The rate of newstart allowance payable to a qualified person is calculated in accordance with section 1068 of the Act, and the rate of PPP, pursuant to section 1068A of the Act. The rate of PPP to which Mrs Qazizada is entitled, is related to her husband’s income.
16. In order to ascertain whether Mr Qazizada was overpaid newstart allowance between 29 June 2000 and 9 July 2003, and whether Mrs Qazizada was overpaid PPP, I had to consider the evidence before me regarding Mr Qazizada’s activities in relation to the earning of income, in that period. In that regard I had the section 37 documents before me, as well as Exhibits A1 to A4 consisting of medical evidence and evidence of taxi work sheets, and the oral evidence of Mr and Mrs Qazizada and Mr Ted Robertson, the senior compliance and fraud investigator for Premier Cabs Pty Ltd.
17. I noted that Mr Qazizada who has been in Australia since 1991, travelled overseas from November 1998 to May 1999, and again from August 1999 to January 2000. On his return in January 2000, he applied for, and was granted newstart allowance (T9).
Health Issues
18. Mr Qazizada’s case was that he was honest all times, and reported his earnings to Centrelink. In support of the fact he had declared only a minimum income, Mr Qazizada said that due to his back condition, he had been told he would be paralysed if he worked more than four hours a day. (Transcript p16). He tendered a medical certificate of Dr F Machart, an orthopaedic surgeon dated 22 September 1995 which stated that he had a degenerative condition of the lumbar spine, and noted that he was fit for light duties but should avoid lifting and bending (Exhibit A1). Mr Qazizada has not consulted Dr Machart since that time, although he gave evidence that he wanted to see a specialist in 1996/7 and/or 2000, his general practitioner did not agree, and he was denied that opportunity. The Applicant also tendered two certificates of the Rawson St Medical Centre dated 8 November 1995 and 21 February 1996, both indicating he was fit for light duties, but that he should not lift heavy weights or stand or sit for a long time. Exhibit A2 was the “Professional Report – work ability” of Dr Esam Abdel-Megeed dated 16 April 2003, prepared for Centrelink. Dr Megeed indicated in the report that there were no other factors which were likely to impact upon Mr Qazizada’s ability to work, and indicated he had seen Mr Qazizada twice in the 12 months before he prepared the report. Mr Qazizada said Dr Megeed had been his general practitioner for approximately ten years from 1995 to 2004. Consulting one’s general practitioner twice in a year did not, in my view, signal any serious problems.
19. Mr Qazizada told me about what he considered were his medical conditions in support of his argument that he drove a taxi only on Saturdays and Sundays, and only occasionally during the week. He said that he often took breaks, and rested.
20. I was satisfied from the medical evidence available that Mr Qazizada has a degenerative condition of the lumbar spine, but was not able to be satisfied that he may suffer paralysis if he works more than four hours a day. Indeed, as was indicated in the documentary evidence which is discussed in the paragraphs below, it was clear he worked far more than that.
Taxi Driving
21. I moved then to consider the evidence in regard to the Applicant’s taxi driving activities. He told me that he in 1996 (when he commenced driving taxis), for the period prior to going overseas in 1998, he drove for Nasim and other owners, and worked Saturdays and Sundays.
22. Mr Qazizada said that when he returned from overseas in 2000, he commenced driving for Faisal Temuri. He said that he collected the car on Saturday afternoon and returned it on Sunday afternoon, a period of 24 hours. Mr Qazizada described his pattern of driving as:
Mr Qazizada: “I – honestly I’m driving taxi one hour, two hour, three hour, then for half an hour, one hour or more than that I have rest in pump station, home or somewhere else….
If I get tired in city, if I go from here to Blacktown it’s a drive it’s very hard for me to there, then I go in a pump station for half an hour, then if I a bit more tired then I’m going home”.
Mr Carter: “Okay, so if the records provided show that you had the taxi out for long shifts or semi-shifts and that you were earning significant amounts of money on those shifts how do you explain that you were able to earn that money and at the same time take these very frequent rest breaks?”
Mr Qazizada: “This log on and log off time, it’s not it’s mean that I’m working in this period that I log on and log off. When I have rest, when I have on at home usually I’m sleep not at home for rest. I’m sleep but radio still on.”
23. I had before me as Exhibit A3, certain daily driver worksheets which related to the time Mr Qazizada drove the taxi for Mr Temuri. The first sheet of a large bundle was dated 2 March 2001, and towards the end the dates related to April 2003. Whatever it is Mr Qazizada agreed to actually pay to Mr Temuri per shift is one aspect of this matter. Mr Temuri stated in a handwritten note dated 25 November 2004 (T87), that Mr Qazizada paid him $200 - $300 per week. However the number of kilometres travelled, which ranged from approximately 400 to well over 600 per shift, and to 751 on 30 November 2002, indicate that Mr Qazizada’s account of driving for a short time and taking many breaks is quite at odds with the facts as indicated on the sheets. Mr Qazizada referred to the long shift times, explaining that he did not log on and off each time he had a rest, and that the taxi remained logged onto the system. There was no notation on the taxi sheets that Mr Qazizada took breaks.
24. Mr Robertson the senior compliance and fraud investigator for Premier Cabs Pty Ltd who gave oral evidence and whose statement was Exhibit A4, said that there was nothing in the records to indicate that Mr Qazizada was taking time out after driving for 1 – 2 hours. He described Mr Qazizada as a “road runner” who averaged 400 – 450 kms per shift although he sometimes reached more than 800 kms (7 December 2002). Mr Robertson said that this was not consistent with a driver who was taking frequent rest periods as claimed by Mr Qazizada.
25. Annexures to Mr Robertson’s statement were a document showing Mr Qazizada’s driver log-on commencing 1 January 2003 and extending to 6 February 2005 as well as a record of radio calls from his (also Mr Qazizada’s base), dated 1 January 2003 to 31 July 2003. Mr Robertson explained that a driver offering himself for work at a rank or in the street is obliged to accept work taking him or her to anywhere in the area of operation (in the Sydney Metropolitan area in Mr Qazizada’s case), but is not obliged to bid for a radio job. He told me that a driver can set the computer so the driver is offered work within a 10 km radius of a nominated local area, but that Mr Qazizada’s pattern of radio work indicated he was accepting jobs which took him all over the Sydney Metropolitan area.
26. I preferred the evidence of Mr Robertson and the documentary evidence before me indicating the number of kilometres Mr Qazizada drove in the relevant period, and find that this was not consistent with Mr Qazizada’s evidence that he only earned approximately $100 or less per week. I was not able to accept that Mr Qazizada had the rest periods he claimed. The records indicated that Mr Qazizada worked regularly and did not declare many of the days (which were not weekend days), during which he worked. Accordingly his earnings must have been substantially higher than disclosed to Centrelink.
27. I also considered evidence regarding real estate purchases Mr Qazizada made, and how he financed those.
Real Estate Transactions
28. Mr Qazizada was examined on the property purchases he has made. He currently owns his residence at a suburb I shall refer to as AG. He also owns a warehouse at Blacktown from which he operates his Afghan Rice and Spice Trader business.
First Purchase – Unit at Blacktown
29. Mr Qazizada’s first purchase of real property in Australia was a unit at Blacktown. I shall refer to that as Blacktown One, which he purchased in March 2001 for $247,000, and for which he received the benefit of the first home buyer’s grant. Mr Qazizada took out a mortgage from the National Australia Bank for $200,000 to purchase that property. Mr Qazizada told me he obtained approximately $30,000 from a second cousin who is married to his niece.
30. Mr Qazizada said that he sold the unit in May 2003 for $350,000. At that time, $192,802 was repaid to the NAB. (T20/65). Mr Qazizada told me that the eight months gap (approximately July 2003 and March 2004), between the sale of their residence and before the new house at AG was completed, he and his family lived with a daughter and son-in-law.
31. In the settlement sheet, there is a notation that an amount of $147,593 was lent (without interest), on a short term basis, to a cousin. When Mr Carter asked Mr Qazizada how he managed financially, and was able to lend the money interest free to his cousin whilst taxi driving and earning what he declared to be not more than $100 per week, Mr Qazizada replied:
“No this about my income now. There is nothing without this $120 maximum handling, $40, $100. I swear to God, last night – I worked last night, $80 I work.” (Transcript p 43)
Second Purchase
32. In August 2003, Mr Qazizada applied to the Royal Guardian Mortgage Corporation Pty Ltd for a loan (T21/67). Mr Qazizada told me that his broker, David, filled in the form. He acknowledged that a signature appears on the form near his name on T21/70, but insisted he did not sign the form. He was also referred to T21/71, a page of the contract, where his name and that of his wife appear. At page 244 of the T-documents, there is a handwritten document addressed to Centrelink which Mr Qazizada said was written by Abdullah Ahmadi and signed by him.
33. He denied signing the document at T21/73, and said that although the signature near his wife’s name looked like it was her signature, she did not sign the document. The document was prepared to obtain a loan for the purchase of land and building of his present residence, the cost of which was $480,000. Mr Qazizada told me that the details in the application (T21/68) are “all fake”.
34. Mr Carter then asked Mr Qazizada about the signature on page 90 of the T-documents.
Mr Carter: “Yes, so at page 90 you accept that as your signature?”
Mr Qazizada: “Yes, it is my one.”
…
Mr Carter: “And do you recognise the signature to the right?”
Mr Qazizada: “Yes”
Mr Carter: “Whose signature is that?”
Mr Qazizada: “It is my wife’s on it.”
35. Notwithstanding Mr Qazizada’s acceptance that his wife’s signature appeared on page 90 of the T-documents in a schedule to a building contract dated 12 August 2003, Mrs Qazizada denied signing anything.
36. I noted that what appear to me to be the same signatures, that is of Mr and Mrs Qazizada appear at the bottom of each page of the building contract at T25, that is pages 90 – 107 inclusive, above the designation “Owner’s initials”. I do not hold myself out to be an expert in signatures, but a similar signature appears again alongside Mr Qazizada’s name at T21/73.
37. I noted that at T61/244 of the T-documents, there is a document which Mr Qazizada said was written for him by Abdullah Ahmadi of the Afghan Money Exchange. During the cross-examination, Mr Qazizada changed his mind about who prepared the loan documents for the Royal Guardian Mortgage Corporation Pty Ltd, and said it was Abdullah Ahmadi, and not David (Transcript p59). He repeated that David had prepared the documents for the NAB loan application. When asked about the Royal Guardian Mortgage Corporation application which was at (T21/67), Mr Qazizada said he did not know how the application was filled in because it had been prepared for him by Mr Ahmadi. The witness said: “He told me I will talk money from bank for you and then he fill out this one and give it to the bank and they gave us.” (Transcript p60).
38. Unfortunately the application form had untruths in it as admitted by Mr Qazizada, including the statement that he had $30,000 in savings, a motor vehicle worth $15,000 (which he said at the hearing was not worth more than $2,000), and personal effects disclosed as $50,000 (which Mr Qazizada said were not worth more than $20,000). The form also indicated that the Applicant had a gross income of $54,000 p.a., and his wife $47,000. I asked:
“So all the items were wrong Mr Qazizada?”
Mr Qazizada: “Yes, when we asked broker to talk (sic – take) money for me then they make document from their own so to just took money from the bank.”
Ms Ettinger: “But you agreed to allow him to do that, didn’t you?”
Mr Qazizada: “Not for to do wrong things. I was allowed to get money from the bank for me.”
Ms Ettinger: “But the wrong information made it possible to get the money from the bank.”
Mr Qazizada: “Honestly I wasn’t agree with them to give wrong information. I wasn’t agree and I am not agree.”
Ms Ettinger: “But in fact your name appears at the bottom of the form and probably your signature.”
Mr Qazizada: “And honestly this one is not my signage and everywhere you send it for professional people it is not my signage. I didn’t sign. I didn’t saw this document at all. They took all details and then tomorrow they sent for me for example after one week it is approved for you this money are talking.”
(Transcript p64)
The Warehouse
39. Mr Carter also asked Mr Qazizada about the loan application to La Trobe Home Loans of Australia (T33/137), which was for the purchase of the warehouse, and showed the name of the business as Majid Imports, and Mr Qazizada’s income from rice and spice as $2,650 per week. Mr Qazizada said that this document was also prepared by Mr Ahmadi. There were further exchanges between Mr Qazizada and Mr Carter about the preparation of the application, and whether the Applicant signed it. Mr Qazizada denied he or his wife had signed the application, and also disclosed that the financial information given about him in it, the name of the accountant and the name of the company, were incorrect. In reply to questions about signature, Mr Qazizada said: “No, they try to make like that, you see on page 139 in the top one this signature and the other signature at 256 when you compare this signature with the one then you know.”
40. The application was dated 21 January 2004, but Mr Qazizada had told Centrelink, and this Tribunal that he only began trading in rice and spice on 15 August 2004. I noted that the business was registered in February 2004 which is outside the period with which I am concerned. I was not able to draw conclusions regarding the commencement of the rice and spice business from the documents before me.
41. Unfortunately however, the tax returns prepared for Mr Qazizada to submit with his loan applications also had false information in them, and were not actually lodged with the Commissioner. In fact he had not lodged any for some years previously. Mr Qazizada was not able or unwilling to give an answer as to who prepared the tax returns, and in connection with which loan they were prepared. Mr Qazizada’s answers were not of assistance to me except to indicate that he was being an untruthful and unreliable witness.
42. Mr Carter inquired of Mr Qazizada where he obtained $161,000 for the purchase of the warehouse to which the Applicant replied that $100,000 came from La Trobe. He also said that a further $100,000 came from an increase in his daughter’s mortgage. I noted that the documents indicated La Trobe had lent Mr Qazizada only $90,600.
43. Mr Carter referred Mr Qazizada to paragraph 15 of the SSAT decision where the SSAT had recorded that Mr Qazizada made a profit of $150,000 from the sale of the Eggleton St house, and that he had used this money and $100,000 from the Royal Guardian Mortgage Corporation to purchase the warehouse. In reply to questioning about why he told the SSAT information which was different from what he told this Tribunal about the loans, Mr Qazizada replied as follows;
Mr Carter: “Right so paragraph 15 reflects what you told the Social Security Appeals Tribunal?”
Mr Qazizada: “Tribunal, that’s right.”
Mr Carter: “Now what you’ve told us today is quite different. Why is that?”
Mr Qazizada: “I think I made mistake there. I didn’t say they made mistake. Maybe I made mistake for that one.”
‘Unemployed’
44. Section 593 of the Social Security Act 1991 requires that for a person to be qualified for newstart allowance for a period they must satisfy the Secretary that they are unemployed for that period. Against the background of the evidence before the Tribunal, the Secretary contends that Mr Qazizada was not unemployed in the relevant period.
45. In McAuliffe v SDSS (1991) 23 ALD 284, the Federal Court considered a number of cases on the meaning of "unemployed" and stated at 292:
"The questions whether the appellant was "unemployed" during the whole or part of the period when benefit was paid was essentially a question of fact and degree to be decided having regard to the above principles".
46. The main principles that have been taken into account in determining whether a person is "unemployed" in previous cases appear to be the extent of the person’s involvement and commitment to the work in question, including whether the person has sought or been available to undertake other work during the relevant period. Mr Qazizada indicated in Centrelink forms (T13 - T15, T17 - T19), which he was required to lodge, that he was driving 18 hours a week and looking for work.
47. I am satisfied after checking the taxi records, that those statements contained false information, and that Mr Qazizada declared far less days and hours than he was actually working. That means his income was substantially more than that declared. Mr Carter submitted that the consistent under-declaration in fortnights for which income statements are available permits a decision maker to infer that he has done the same in fortnightly income statements for other periods. (Secretary, Department of Social Security v Danielson (1996) 44 ALD 19). I am mindful that the taxi work sheets I had commenced on 2 March 2001 and that the final ones were dated April 2003 (Exhibit A3). That does not cover the whole of the debt period 29 June 2000 to 9 July 2003. I noted also that the driver log-on records dated only from 17 February 2003 (T91). However I was satisfied from the pattern of earnings recorded, the amount of newstart paid, and applying Danielson, that notwithstanding there were gaps in the documentary evidence, I could nevertheless be satisfied that Mr Qazizada had not declared the full amount of his earnings.
48. In McKenna and Director-General of Social Services (1981) 3 ALD 219, the AAT stated at 222 –
"When regarded in the context of the apparent legislative intent and the other terms and expressions used in the subsection, it seems to us that the word "unemployed" bears its colloquial or popular meaning of not being engaged in work of a remunerative nature".
49. The above statements from the cases of McKenna and McAuliffe were endorsed by the Federal Court in the recent case of Secretary Department of Employment and Workplace Relations v Joss(2006) 92 ALD 60.
50. Again, in McKenna the AAT stated –
"the proper question is whether a person has so organised his affairs ... that a Tribunal may conclude that he is seriously engaged in the conduct of a business".
51. I am satisfied that Mr Qazizada was working regular long shifts during the period for which he was receiving newstart allowance, and his wife was receiving PPP.
52. In Re Vavaris and Director-General of Social Security (1982) 5 ALN N13, the AAT stated that it is necessary to consider whether a person is so "seriously engaged in economic enterprise" as to lead to a finding that they are not unemployed.
53. The Secretary contended that Mr Qazizada was so fully engaged in taxi driving that he was not unemployed. I accept that his work was on a substantial basis over a long period of time, and that he did not undertake any other kind of work, although by 2004, he was engaged with trading in rice and spice. I agree that it can be said that Mr Qazizada was "seriously engaged" in working for himself to the exclusion of all other work.
54. I accept the Secretary’s submissions that Mr Qazizada was not qualified for newstart because he cannot satisfy me that he was actually unemployed. I am satisfied that he underdeclared the times he worked and the income earned. Mr Qazizada was able to purchase his first real property in Australia, a unit at Blacktown in March 2001, and was apparently able to make the repayments for the various loans he obtained. As discussed in the paragraphs above, he subsequently purchased other properties.
55. I find that Mr Qazizada was not unemployed in the relevant period under review, and was earning more than he declared to Centrelink. Accordingly a debt must be raised pursuant to section 1224 (prior to 1 July 2001), and subsequently section 1223 of the Act. This is discussed in the paragraphs which follow.
mrs qazizada
56. Mrs Qazizada said that she did not know anything about any financial transactions which her husband had undertaken, including the purchase of their principal residence. She did not recognise either her husband’s signature on loan documents, nor what purported to be her own. Mrs Qazizada’s replies to questions asked of her were evasive, and did not assist me.
57. I found that Mrs Qazizada who has lived in Australia since 1991, and told me she did not know her own address, was not being truthful. The transcript records her evidence which commences with my asking her her full name and address through the interpreter, speaking in her language, which is Pushtu:
Ms Ettinger: “Can you give your full name and address please.”
The Witness: “Wahida Qazizada”
The Interpreter: “Wahida Qazizada”
Ms Ettinger: “And your address”
The Interpreter: “No, she doesn’t know her address.”
Ms Ettinger: “Where do you live?”
The Interpreter: “I don’t know address”.
58. I accepted Mrs Qazizada had not worked outside the home or earned income from paid work at any time during the relevant period. However she operates a bank account in her own name, albeit with the assistance of her daughter, she said.
59. The rate of PPP is calculated pursuant to section 1068A of the Act. The rate of PPP to which Mrs Qazizada may be entitled, is related to her husband’s income.
Conclusions I have drawn from the above
60. I found it difficult to sort out Mr Qazizada’s evidence because, notwithstanding the assistance of a competent interpreter, he did not reply to questions asked, and matters took a long time to clarify. I was satisfied that this was not a matter of difficulties with language, but rather because Mr Qazizada was obfuscating.
61. However my conclusions are that:
· Mr Qazizada has not been truthful regarding his income from taxi driving at least since he has been receiving newstart allowance.
· Mr Qazizada has been a party to documents containing untruths which have been submitted to lending institutions regarding the status of his earnings. In order to obtain newstart allowance Mr Qazizada told Centrelink that he earned between approximately $100 a week from taxi driving. I have found that on the balance of probabilities taking into account the evidence of Mr Robertson and the documentary evidence indicating the number of kilometres Mr Qazizada regularly drove per shift, that in the relevant debt period he earned substantially more than the amount disclosed. Mrs Qazizada also received PPP to which she was not entitled on the basis of those declarations to Centrelink.
· Notwithstanding Mr and Mrs Qazizada’s denials, it is likely that where a signature appears on a document close to Mr Qazizada’s name, it is his signature, and that of his wife on some of the documents.
· Both Mr and Mrs Qazizada have signed documents containing false information submitted to lending institutions in order to obtain loans. Mr Qazizada admitted at the hearing that he permitted another person to complete loan applications containing information which he agrees was false. Documents before the Tribunal indicated that Mrs Qazizada was earning an annual income of $47,000 from rug repairs. Inquiries by Centrelink to the company named indicated she was unknown to them. I accept from the evidence that Mrs Qazizada has not been in paid employment in Australia.
· Mr Qazizada has permitted income tax returns showing incorrect income details for both himself and his wife which were not submitted to the Commissioner of Taxation, to be submitted in order to obtain loans.
· Mr Qazizada gave inconsistent evidence to the Tribunal and the SSAT regarding the source of funds for real property purchases. Notwithstanding Mr Qazizada’s supposed reliance on social security payments, he was able to assist a relative (albeit for a short time), with an interest free loan of approximately $143,000 to purchase real property.
· Mr Qazizada’s evidence regarding his medical condition and the possibility of paralysis if he worked more than four hours a day was not able to be substantiated with any medical evidence, and is on the balance of probabilities quite unreliable. That is so particularly in light of the findings I have made from the taxi records which show that Mr Qazizada drove regular and lengthy shifts.
· Mr Qazizada owes a debt of newstart allowance which he received as a result of understating his earnings in the relevant period. Mrs Qazizada owes a debt of PPP because her benefit was calculated and paid on the basis of what Mr Qazizada declared.
DID MR AND MRS QAZIZADA INCUR OVERPAYMENTS OF NEWSTART ALLOWANCE AND PPP IN THE RELEVANT PERIOD
62. Section 1223(1) of the Act which deals with how a debt may occur, and provides as follows:
“1223(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”
63. The section’s predecessor was section 1224(1), and had a similar effect. It applies to that part of the debt which occurred which occurred before 1 July 2001.
64. As I have found that Mr Qazizada was not unemployed in the terms of the legislation, and was receiving newstart allowance for the period 29 June 2000 to 9 July 2003, and Mrs Qazizada whose level of PPP is dependent on her husband’s income was receiving PPP during the same time, they have received benefits to which they were not entitled. Accordingly they have incurred debts to the Commonwealth for that period. Unless the debts can be waived they must be repaid.
AS THE DEBTS WERE CORRECTLY RAISED I HAVE TO CONSIDER WHETHER THEY CAN BE WAIVED IN FULL OR IN PART
65. Section 1236 of the Act deals with write-off which I find does not apply in this matter, in particular because the debt is legally recoverable, the parties involved are able to be contacted, and they have a capacity to repay by withholdings from benefits or garnishee of wages.
“
- SECT 1236
Secretary may write off debt
1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.”
66. Section 1237A deals with the mandatory waiver of debts due to sole administrative error.
“- SECT 1237A
Waiver of debt arising from error
Administrative error
1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
67. There was no question in this case that administrative error had played a part in the genesis of the debt.
68. I turned then to consider whether Mr and Mrs Qazizada’s situation satisfies section 1237AAD of the Act, and whether there are “special circumstances” pursuant to section 1237AAD, (apart from financial hardship), in order to either waive all or part of the debt.
69. If I find that the newstart debt and the PPP debt did not result wholly or partly from Mr or Mrs Qazizada or another person knowingly making a false statement or a false representation, then I can consider whether “special circumstances” exist pursuant to section 1237AAD to either waive some or part of the debt. As relevant, the section follows:
“- SECT 1237AAD
Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.”
70. The phrase "special circumstances" has been the subject of consideration in courts and the AAT many times. A leading case is Re Beadle and Director-General of Social Security (1984) 6 ALD 1 where Toohey J stated:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special.
71. I am mindful that the financial circumstances of persons on income support are generally difficult, noting however that the Qazizadas own real property and seem to have managed since the benefits were ceased in 2005. I note in any case that financial considerations alone do not constitute “special circumstances” pursuant to section 1237AAD of the Act.
72. However I am satisfied that Mr Qazizada misrepresented and understated his level of income to Centrelink from the time he applied for and was granted newstart allowance, and during the relevant period. I find that the debts of newstart allowance and PPP cannot be waived in whole or in part because both have resulted either wholly or partly from Mr and Mrs Qazizada or another person knowingly making a false statement or a false representation. The overpayment of PPP to Mrs Qazizada is a direct result of those false statements or representations and accordingly section 1237AAD cannot be considered to either waive the debts in full or in part.
73. However, even if I were able to apply section 1237AAD, I would be satisfied that there are no unusual, uncommon or exceptional circumstances in the “special circumstances” sense in relation to the Qazizadas which would indicate the debts should be waived.
74. Accordingly the decision of the SSAT is set aside and the debts referred to Centrelink for recalculation and recovery.
DECISION
75. The decision of the SSAT is set aside, and in substitution I remit the matters to the Secretary for recalculation of Mr and Mrs Qazizada’s debts, and recovery relevant to the debt period 29 June 2000 to 9 July 2003.
I certify 75 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 9 August 2007; 24 September 2007
Date of Decision 16 October 2007
Counsel for the Applicant Self Represented
Solicitor for the Applicant Mr A Carter
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