Qiu and Secretary, Department of Social Services (Social services second review) - [2023] AATA 2911

Qiu and Secretary, Department of Social Services (Social services second review) [2023] AATA 2911 (14 September 2023)
Division:GENERAL DIVISION
File Number(s): 2020/7617; 2020/7618; 2020/7619
Re:Lei Qiu
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:14 September 2023
Place:Sydney

The decision under review is affirmed.
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Senior Member A Poljak
Catchwords
SOCIAL SECURITY – parenting payment (single) - family tax benefit – coronavirus supplement - payments made at the single rate - whether a member of a couple – whether debt owing to the Commonwealth – whether debt should be waived or written off – decision affirmed
Legislation
A New Tax System (Family Assistance) Administration Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Beadle and the Director-General of Social Security (1984) 6 ALD 1
Boskoski v Secretary, Department of Social Services [2014] AATA 915
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
RFZK and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Secondary Materials
REASONS FOR DECISION
Senior Member A Poljak
14 September 2023

Ms Lei Qiu, the applicant, has a child with Mr Hao Huang (Mr Huang), born on 8 January 2018. The applicant claimed and was in receipt of parenting payment at the single rate from 16 January 2018.
On 28 April 2020, Services Australia (the Agency) commenced an investigation in relation to the applicant and initiated a review of the applicant's entitlement to the parenting payment entitlements. On 13 August 2020, the Agency determined that the applicant and Mr Huang were members of a couple from 16 January 2018, and therefore, she had nil entitlement to parenting payment (single) from 16 January 2018 to 5 August 2020 (the relevant period). As a result of this finding, the applicant’s parenting payments were cancelled on 17 August 2020, and the following debts were raised:
(i)parenting payment (single) in the amount of $52,839.71 for the relevant period;
(ii)Coronavirus supplement in the amount of $4,400.00 for the period 29 April 2020 to 4 August 2020;
(iii)family tax benefit (newborn upfront payment) in the amount of $540.00 on 24 January 2018;
(iv)family tax benefit in the amount of $4,112.33 for the 2017-2018 financial year; and
(v)family tax benefit in the amount of $9,584.73 for the for the 2019-2020 financial year.
On 18 August 2020, the applicant submitted a request for an internal review of the above decisions, which were affirmed by an Authorised Review Officer (ARO)within the Agency on 31 August 2020. On 11 November 2020, the Administrative Appeals Tribunal (Social Services & Child Support Division) (SSCSD), considered and affirmed the decision of the ARO. This is the reviewable decision in these proceedings.
On 15 January 2021, the applicant lodged a new claim for parenting payment (single) which was approved by the Agency from this date. The applicant is currently receiving $934.00 per fortnight in parenting payment (single) and family tax benefit in the amount of $492.66 per fortnight.
Issues
The issues for determination in these proceedings are whether:
(a)the applicant was a member of a couple with Mr Huang, as defined in subsection 4(2) of the Social Security Act 1991 (Cth) (the Act) from 16 January 2018;
(b)the decision to cancel the applicant's parenting payment (single) was correct;
(c)the applicant was overpaid:
(i)parenting payment (single) in the amount of $52,839.71 for the period 16 January 2018 to 5 August 2020;
(ii)Coronavirus supplement in the amount of $4,400.00 for the period 29 April 2020 to 4 August 2020;
(iii)family tax benefit (newborn upfront payment) in the amount of $540.00 on 24 January 2018;
(iv)family tax benefit in the amount of $4,112.33 for the 2017-2018 financial year; and
(v)family tax benefit in the amount of $9,584.73 for the 2019-2020 financial year.
(d)the amounts overpaid are legally recoverable debts; and
(e)there is any basis to write off or waive part or all of the debts resulting from the overpayments.
Relevant Legislative Proceedings
Subsection 4(2) of the Act provides that a person is a member of a couple for the purposes of the Act if the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection 4(3)), living separately and apart from the other person, on a permanent or indefinite basis; or all of the conditions in paragraph 4(2)(b) are met.
“Partner” is defined to mean in relation to a person who is a member of a couple and means the other member of the couple. The term “member of a couple” has the meaning given by subsections 4(2), 4(3), 4(3A), 4(6) and 4(6A).
Relevantly, in forming an opinion about the relationship between two people, the Secretary is to have regard to all the circumstances of the relationship including the following matters, pursuant to section subsection 4(3) of the Act:
(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.
When deciding whether a person is in a relationship, I must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3). The decision-maker must specifically consider the ‘total picture of the relationship created by all of those factors’; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [46].
Whilst all aspects of the relationship must be considered, differently structured relationships may satisfy different criteria set out in subsection 4(3). As the Tribunal observed in Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789 at [16]:
People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view that the applicant is in fact a member of a couple.
Deputy President J W Constance said in Boskoski v Secretary, Department of Social Services [2014] AATA 915 at [63]:
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However, the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
The assessment of a person’s credibility is frequently of vital importance in determining whether a person is a member of a couple; RFZK and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 at [35]. If a person’s evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence; Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415 at [43].
Relationship Status
Agency records reveal the applicant's marital status to be as follows; married on 8 June 2007; married on 6 April 2009; separated on 8 December 2009; separated 8 December 2016; in a de facto relationship on 16 January 2018; and separated on16 September 2020.
On 8 August 2019, a Verification of Relationship Status was completed indicating that the applicant's current relationship status was 'single'.
The applicant contends that she and Mr Huang were not in a de facto relationship that she has 'never been in a relationship' with Mr Huang and that they are merely friends and co-parents for their daughter. She explained that she had previously indicated Mr Huang to be her 'former partner' in her claim for parenting payment for 'cultural' reasons.
During the relevant period, the applicant claims that she lived between two properties. She claims she had been living in shared accommodation at a property in Hurlstone Park NSW (Hurlstone Park premises) since 28 March 2010, and her postal address was Norton Street, Ashfield. She also stated that she mostly stayed with her mother, stepsister, and stepfather at their place of residence, in Norton Street, Queen Street, and then Markham Place in Ashfield (Ashfield premises). Mr Huang resides at a property in Kogarah (Kogarah premises).
Financial Aspects
Before the SSCSD and in these proceedings, the applicant gave evidence that she and Mr Huang did not own any joint assets. She previously stated that she could not remember whether they ever had a joint bank account and, in these proceedings, accepted that they had joint bank accounts but said they never used them. She said the accounts were set up with the intention to be used for child related expenses for their daughter.
Documents provided by the Commonwealth Bank of Australia indicate that the applicant and Mr Huang did in fact have two joint bank accounts during the relevant period. The accounts were closed on 18 October 2020 and 17 July 2020. On review of the available documents, it appears the records reveal transaction of money being transferred into an out of the joint accounts into the applicant’s account. The applicant could not explain why the transactions occurred or where the money had come from.
On 1 July 2016, the applicant and Mr Huang registered a business for fuel tax credits with the Australian Taxation Office. In Mr Huang's Relationship Status Declaration, he explained that this business was started to sell goods online such as mobile phone accessories and advertising signs. The business does not appear to have been successful. The results of an ASIC search confirms that this company was deregistered on 28 March 2020.
Before the SSCSD the applicant gave evidence that her mother and stepfather allowed Mr Huang to use their company in order to obtain a loan to purchase a Mercedes Benz. In these proceedings, the applicant has given evidence that the Mercedes Benz was owned by her mother’s business and that Mr Huang borrowed the car for transporting their daughter. She said the car was parked at the Ashfield premises. Mr Huang has no known involvement with the mother’s business.
The financial aspects, objectively, fall neutral when considering whether the applicant was a member of a couple relationship with Mr Huang during the relevant period.
Nature of Household
The applicant’s evidence regarding her living situation is very unclear and contradictory. The applicant claims that during the relevant period, she resided with her mother, stepsister and stepfather at their residence(s) in Ashfield but was still paying rent at the Hurlstone Park Premises. The applicant claims that she paid her mother $300 per week. The applicant claimed that she would sometimes stay at the Kogarah property, however her evidence was unclear and contradictory in regard to how many nights she actually spent at the Kogarah property as was her evidence about her living conditions and why her daughter attended day care close to the Kogarah property. This was especially perplexing when the applicant could not drive, and she claimed that it took her an hour and a half to travel between Ashfield and Kogarah using public transport. Mr Huang did not have access to a vehicle and apparently drove the applicant’s mother’s car, which was housed at their residence in Ashfield. The applicant claimed that she did not share a bed with Mr Huang when she stayed at the Kogarah property, and only stayed the night when her daughter had childcare or was unsettled.
It does appear, on the objective evidence that the applicant and Mr Huang lived together at the Kogarah premises during the relevant period. This is particularly evident from the findings consequent on the execution of the search warrant by the Australian Federal Police and fraud investigators in May-June 2020 of the Kogarah and the Ashfield premises. In speaking with the investigating officer, the applicant referred to Mr Huang as her 'partner’ and advised that she did not have a permanent address and spends time at the Kogarah premises and her mother's home, the Ashfield premises. Additionally, and significantly, the findings record:
(a) The Kogarah premises had three bedrooms, with the largest bedroom belonging to Mr Huang. Mr Huang's bedroom had a queen size bed, built in wardrobe, desk and cot. Investigators found women's personal hygiene items on the desk, women's jewellery packaging/bags in the wardrobe and a small suitcase of clothing. Men and children's clothing was also found in the wardrobe. Also found at the Kogarah premises were a baby highchair, and toys.
(b) The Ashfield premises was small and had one bedroom. There was a bed in the lounge area with a small dining table and TV unit opposite the bed. The applicant's mother confirmed that her husband slept in the first room, and that she and her 9-year-old daughter slept in the second room. No highchair or other items used to typically care for a toddler were found at the Ashfield premises.
These findings indicate that the Kogarah premises are the applicant and her child's main place of residence.
For the above reasons, the nature of the applicant's household, objectively, is indicative of a member of a couple relationship. The applicant and Mr Huang did not live separately and/or apart on a permanent or indefinite basis.
Social Aspects
For the following reasons, I am satisfied that the applicant and Mr Huang held themselves out as being members of a couple to the community, as well as their families during the relevant period.
In discussions with fraud investigators in May-June 2020, the applicant continually referred to Mr Huang as her partner. Mr Huang was observed to be wearing a wedding band on his left ring finger. When asked if he was married, Mr Huang stated that 'they aren't really married and there wasn't a proper wedding'. The applicant also submitted at hearing that the “wedding ring” was just an “accessory”. In subsequent telephone conversation with a case officer on 1 June 2020, the applicant said, “my husband needs his laptop” and after stating that her payments were cancelled, said, “my husband, sorry…sorry we are not married. My partner…we are not together; my partner pays child support…”
The applicant and Mr Huang travelled overseas to China on similar dates in 2017, and identical dates in 2018 and 2019. The evidence of the applicant on this aspect is inconsistent. The reasons of the SSCSD record that the applicant gave evidence that she and Mr Huang had booked their flights together. The applicant also stated that Mr Huang paid for her accommodation, that they travelled in 2018 for Mr Huang's father to meet their daughter, and in 2019 to attend the funeral of Mr Huang's father. In these proceedings, the applicant first stated that they didn’t travel together, despite being on the same flights. She also stated that she went to China with her daughter for medical reasons and didn’t visit Mr Huang’s family and didn’t attend his father’s funeral. When pressed, she stated that Mr Huang did pay for one night’s accommodation and that her daughter met Mr Huang’s family.
In Medical Certificates dated 13 September 2019, 15 February 2020 and 6 April 2020, Mr Huang is noted to be providing care for the applicant. In the Medical Certificates dated 13 September 2019 and 6 April 2020, Mr Huang is noted to be the applicant's partner. At the SSCSD, and in these proceedings, the applicant gave evidence that the medical practitioners must have 'assumed' that she and Mr Huang were in a relationship.
In letters dated 24 August 2020 and 2 October 2020, the applicant's clinical psychologist, Dr Amar Kaur, noted Mr Huang to be the applicant's 'ex-partner'. The letter dated 2 October 2020, notes that the applicant and Mr Huang began a relationship in 2017, whereas a later letter dated 2 November 2020, noted that the applicant and Mr Huang 'never really had a relationship. They didn't have shared commitments, never lived together, and were financially independent… their friends did not know about their connection'. The evidence is contradictory to the applicant’s oral evidence about the time she spent at the Kogarah premises and that she had never been in a relationship with Mr Huang. The letter dated 2 November 2020, is given little weight as it describes that the letter was provided at the applicant’s request to further clarify her relationship status and to correct terms previously used to describe the relationship. All of which appears to be based on the applicant’s self-reporting and description.
I do note that on 9 August 2019, a Verification of Relationship Status was completed by the applicant's friend indicating that the applicant was single and that she 'lives separated to child's father Hao Huang'. At hearing, it was clarified that the ‘friend’ who completed the form was actually Mr Huang’s mother.
For these reasons, I am satisfied that overall, the social aspects of the relationship, objectively, are indicative of a member of a couple relationship.
Sexual relationship
There is no evidence to suggest that the applicant and Mr Huang have a sexual relationship. The applicant and Mr Huang have a daughter born on 8 January 2018, before the start of the relevant period.
The absence of a sexual relationship is not determinative of a lack of a member of a couple relationship.
Nature of Commitment
Paragraph 4(3)(e) of the Act sets out the following criteria:
(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.

Considering the evidence as a whole, it is plain that the nature and commitment of the applicant’s relationship with Mr Huang indicates that they are a member of a couple. In summary, this consideration includes the length of the relationship, the fact that Mr Huang and the applicant share a child together, the finding that the applicant and Mr Huang were living together during the relevant period and the social aspects of the relationship.
Consideration
37. On the totality of the evidence, and the factors in section 4(3) of the Act, the evidence indicates that the applicant and Mr Huang were not living separately and apart on a permanent or indefinite basis, and therefore, I am satisfied that the applicant and Mr Huang were members of a couple during the relevant period.
The Debt
Subsection 1223(1) of the Act provides that when a social security payment is made and 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.
Section 1223(1AB) of the Act provides a non-exhaustive list of circumstances in which a person is taken not to have been entitled to obtain the benefit of a payment. A person who obtains a benefit in any of the prescribed circumstances has a debt that arises when he or she obtains that benefit. Section 71 of the A New Tax System (Family Assistance) Administration Act 1999 (Cth) (Family Assistance Administration Act) provides that an overpayment of family tax benefit is a debt to the Commonwealth.
During the relevant period, the applicant received parenting payment (single) and coronavirus supplement payments in the total amount of $57,239.71 and was entitled to receive these payments based upon her circumstances as a member of a couple with Mr Huang. Therefore, subsections 1223(1AB)(c) and (d) of the Act apply in the applicant’s case.
The applicant also received family tax benefit (newborn upfront payment) of $540.00 on 24 January 2018, and family tax benefits during the relevant period on the basis that she was single and in receipt of parenting payment (single). Based on the finding that the applicant was a member of a couple with Mr Huang for the relevant period, a re-reconciliation of the applicant's entitlement to family tax benefit was completed, and it was found that she was overpaid family tax benefit in the amount of $4,112.33 in the 2017-2018 financial year; and $9,584.73 in the 2019-2020 financial year.
These amounts were overpaid and are debts owed to the Commonwealth in accordance with subsection 1223(1) of the Act or section 71 of the Family Assistance Administration Act.
Can the Debt Be Waived or Written Off?
Section 1236 of the Act set out circumstances in which a debt may be written off. There is no evidence that the applicant’s debt is irrecoverable at law or that she has no capacity to repay the debt given that her whereabouts are known.
Subsection 1237A(1) of the Act provides:
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.
For the debt to be waived under section 1237A of the Act, it must be found that the debt was caused solely by administrative error; see Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35]. There is no evidence of sole administrative error leading to the existence of the debts in this case. Accordingly, the debt should not be waived pursuant to section 1237A of the Act.
Section 1237AAD of the Act provides:
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, the Administration 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.
Each of the three limbs of the section must be satisfied before the debt may be waived.
Despite the Department sending the applicant numerous letters about her reporting obligations, the applicant failed to disclose that she was a member of a couple with Mr Huang during the relevant period as required by subsection 68(2) of the Social Security (Administration) Act 1999 (Cth).
In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, Deputy President Forgie said at [48]:
There is nothing in s 1237AAD which suggests that the word ‘knowingly’ should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
The onus is on the applicant to meet her obligations as defined in Centrelink correspondence; Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72. Ignorance of the law is no excuse. During the relevant period, the applicant knowingly made a false representation, resulting from her failure to accurately disclose her relationship status.
That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Special circumstances are not defined in the Act however the Tribunal is provided some guidance by several Federal Court and Administrative Appeals Tribunal cases. In the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances of that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon 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 must have a particular quality of unusualness that permits them to be described as special (emphasis added).
I am not satisfied that there are any special circumstances in this case which are sufficient to warrant exercising the discretion to waive all part of the debt under section 1237AAD of the Act. It is in the public interest that the applicant’s debt is repaid. In Skinner and Secretary, Department of Social Services [2015] AATA 569 the Tribunal said at [48]:
It is important to recognise the need to ensure the integrity of the social security system and the public interest. This means that those recipients who have received monies to which they are not entitled, are generally expected to repay those monies unless the repayment is in the specific circumstances unjust, unreasonable or inappropriate.
The applicant has not advanced a sound reason as to why the debt should not be repaid.
Neither part nor all of the debt should be written off or waived.
DECISION
The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 14 September 2023

Date of hearing: 28 August 2023 and 4 September 2023

Applicant:

Self-represented

Solicitor for the Respondent: Mr M Gauci, Hunt & Hunt Lawyers

Date of hearing:	28 August 2023 and 4 September 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers