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

[2016] AATA 582

Radhi and Secretary, Department of Social Services (Social services second review) [2016] AATA 582 (6 July 2016)

Division	GENERAL DIVISION
File Number	2015/5285
Re	Hasanein Radhi
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	6 July 2016
Date of written reasons	9 August 2016
Place	Melbourne

The Tribunal affirms the decision under review.

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

Egon Fice, Senior Member

SOCIAL SECURITY – Newstart allowance – carer payment – overpayment of benefit – whether correct information provided by applicant – where no evidence in support of information provided by applicant – where no adequate explanation for information provided by applicant – decision affirmed.

Legislation

Social Security Act 1991 s 593, s 643, s 1068, s 198

REASONS FOR DECISION

Egon Fice, Senior Member

9 August 2016

1. Mr Hasanein Radhi received Newstart Allowance payments in the amount of $25,473.13 between 27 April 2011 and 30 April 2013.  Furthermore, between 1 May 2013 and 19 May 2014 Mr Radhi received $22,164.16 by way of Carer Payment.  On 27 August 2014 a delegate of the Department of Human Services (Centrelink) determined that Mr Radhi was not entitled to those payments.

2. In a letter dated 25 September 2014 Centrelink notified Mr Radhi that it had formed the view he had been overpaid Newstart Allowance in the sum of $25,473.13.  It explained that the correct amount of his other income from unexplained bank deposits was not taken into account in determining the amounts of the payments made to him.  It informed him that Centrelink was required to recover that sum.  In a further letter dated 27 August 2014  Centrelink informed Mr Radhi that he was not entitled to the Carer Payment he received between 1 May 2013 and 28 January 2014.  Centrelink informed Mr Radhi that the sum of $22,164.16 would be recovered from him as a debt owing to the Commonwealth.

3. Mr Radhi then sought review of those decisions by an Authorised Review Officer (ARO).  In a letter dated 20 May 2015 the ARO informed Mr Radhi that the decisions to seek and raise recovery of the amounts referred to above were correct.  The ARO affirmed those decisions.  Mr Radhi then sought review of the ARO decision by the Administrative Appeals Tribunal Social Services & Child Support Division (AAT 1).  On 4 September 2015 AAT 1 handed down its decision informing Mr Radhi that the ARO decision was affirmed.  On 12 October 2015 Mr Radhi lodged an application with this Tribunal seeking review of the AAT 1 decision.

4. This matter was set down for hearing before me on 6 July 2016.  Prior to the hearing, in an email dated 29 June 2016, Mr T Noonan, Principal Government Lawyer, who appeared for the Secretary, Department of Social Security (the Secretary), informed the Tribunal that he had spoken that day with Mr Haidar Radhi who he described as the Applicant’s representative assisted by the Applicant’s sister.  According to that email, Mr Hasanein Radhi was studying in Iraq and would not be returning to Australia for the hearing.  Furthermore, Mr Haidar Radhi would inform Mr Noonan whether the applicant would be available to give evidence by telephone at the hearing.

5. I should also explain that in a letter dated 1 June 2016 Mr Noonan wrote to Mr Haidar Radhi enclosing the Secretary’s Statement of Issues, Facts and Contentions and List of Authorities lodged with the Tribunal.  Mr Noonan referred to a number of paragraphs in the Secretary’s statement and asked that Ms Feenous Radhi, the Applicant’s sister, be available to give evidence at the hearing and be available for cross examination; and to provide to the Tribunal by 20 June 2016 a copy of her bank account statements in respect of withdrawals corresponding to a number of identified deposits in her Westpac accounts.  Mr Haidar Radhi was also asked to give evidence on the hearing of this matter as was a Mr Abdullah Almadni.

6. In his email of 29 June 2016 Mr Noonan confirmed that the requested bank statements (those of Ms Radhi) had not been lodged with the Tribunal.  Mr Noonan also pointed out that it was unlikely that the Applicant would have with him in Iraq the s. 37 documents which were voluminous, comprising 1720 pages.

7. A notice of the hearing date was sent by the Tribunal to Mr Haidar Radhi on 11 March 2016.  On 4 July 2016 the Tribunal contacted Ms Radhi by telephone and asked when her brother would be returning from Iraq.  She said she did not know.  When it was pointed out to her that it would be impossible to hold the hearing by telephone to Iraq without an interpreter and not having access to the s. 37 documents, Ms Radhi insisted that the hearing go ahead with Mr Haidar Radhi.

8. On the hearing day (6 July 2016) the Tribunal was able to contact Mr Haidar Radhi and it had an interpreter available in the hearing room.  Mr Haidar Radhi said that his sister, Ms Feenous Radhi could not be contacted.  Nevertheless, given the warnings that had been given to Mr Haidar Radhi and Ms Feenous Radhi regarding the difficulties in conducting a hearing in the circumstances, I had little choice but to proceed as best I could.

   THE EVIDENTIARY PROBLEMS

9. The following facts are taken from the s. 37 documents and the findings made by the ARO, which I had no basis before me to dispute.

   ·The Applicant departed Australia on 27 August 2014 and has not returned since.  He was said to have gone to Iraq to be married and also to study.

   ·Between December 2007 and May 2014 Centrelink regularly sent the Applicant letters about Newstart Allowance and Carer Payment.  He was reminded of his obligation to inform Centrelink if his income from any source changed or he commenced employment or purchased assets such as real estate.

   ·On 31 March 2011 the Applicant applied for a mortgage with Westpac bank to purchase a property in Shepparton.  On that application form Mr Radhi declared that he was self-employed at the Fryers Street Markets from 1 January 2008 to 3 July 2010 earning a gross income of $45,773 per annum.  He also stated he had $30,260 in savings.  Westpac granted the Applicant a loan in the amount of $172,000 on 27 June 2011.  The repayment amount was $1,163 per month.

   ·On 31 March 2011 he deposited $22,000 into a Westpac account.  A further deposit of $8000 went into that account on 11 April 2011.  He did not inform Centrelink of the source of those monies.

   ·The Applicant took possession of the property in Shepparton on 24 June 2011.  He did not inform Centrelink that he had acquired that real estate.  Mr Hasanein Radhi became the registered sole proprietor of the property on 30 June 2011.

   ·The Applicant’s Westpac accounts record numerous large deposits between April 2011 and April 2013 and also large withdrawals which appear to be related to the purchase of the property.  In the period between 31 March 2011 and 27 February 2013 the Applicant’s Westpac bank accounts recorded deposits totalling $245,165.

   ·According to AAT 1, Ms Hana Radhi, another of the Applicant’s sisters, explained that Ms Feenous Radhi provided the monies for the purchase of the Shepparton house as a gift to her brother the Applicant.  However, there was no evidence of that gift other than what was said at the hearing by AAT 1, by a person with no direct knowledge of the gift.

   ·Centrelink enquiries with the Koala Family Day Care Centre disclose the Applicant was employed by that business between 1 April 2013 and 8 July 2013.  It appears he was paid the total sum of $17,750.39 during that period.  Of that total, $2500 was paid on 7 July 2013 which was in the 2014 income year.

   ·1 April 2013 the applicant was registered on the Australian Business Register in his own name as a Sole Trader.  There was no evidence about the purpose of this registration.

   ·On 13 May 2013 the Applicant lodged an application with Centrelink for the Carer Payment.  On that application form he indicated he was studying at TAFE for 24 hours per week.  The Applicant also stated that the person who was the recipient of care was Mr Haidar Radhi.  He described the relationship to that person as: family member cousin.    The commencement date of care was said to be 1 May 2012.  The Applicant made a declaration that the information given in that application was complete and correct.

   ·On 16 July 2013 Mr Radhi completed a Carer Allowance Questionnaire for a carer not living with the person being cared for.  He indicated that he provided personal care in his home or the home of the person being cared for.  Care was said to be provided seven days each week.

   ·Carer Allowance payment was granted from 13 May 2013 in respect of care provided to Mr Haidar Radhi.

   ·Departmental records relating to Mr Haidar Radhi disclose that he departed Australia on 30 November 2013 to travel to Iraq, returning to Australia on 20 February 2014.

   ·Ms Hana Radhi, who appeared at the AAT 1 hearing, said that Mr Radhi was caring for Mr Haidar Radhi his brother in law but then remembered that he was caring for another family, Mr Abdulla Almadni.  Mr Almadni was not the subject of the Applicant’s Carer Payment application.

   ·Despite stating that he provided care on a daily basis, Koala Family Day Care informed Centrelink that it employed Mr Radhi on a full-time basis between 1 April 2013 and 8 July 2013.

   ·Furthermore, Mr Radhi was self-employed and doing work for Creative Kids Family Day Care between 8 July 2013 and 9 June 2014.  In addition, Mr Radhi was paid $2500 on 7 July 2013.  Mr Radhi’s gross income for the 2014 income year from the two day care centres was $79,970.40 ($2500 + $77,470.40).

   ·Mr Radhi’s income tax return for the 2013 income year returned gross income of $10,746 from his childcare service business.  His profit and loss statement for his Family Day Care business between 1 July 2013 and 31 December 2013 reported gross income of $28,225 and net income of $3648.  His gross profit between 1 July 2013 and 25 May 2014 was said to be $52,704 resulting in a net income of $8589.

   ·Mr Radhi’s income tax return for the 2014 income year returned a gross sum of $87,100 for the provision of child care services.  His net income returned for that financial year was $24,045.

10. No further evidence regarding Mr Radhi’s income or assets was lodged in the course of the hearing at which Mr Haidar Radhi appeared on behalf of the Applicant.  In fact, Mr Haidar Radhi attempted to give evidence and an explanation for the apparent anomalies and nondisclosures to which I have referred above.  However as I explained to him, I needed evidence from the Applicant and probably from Ms Feenous Radhi regarding the source of monies said to have been given to him by his sister for the purchase of the Shepparton house.  I also needed an explanation from the Applicant regarding his entitlement to the Carer Payment particularly as while he was receiving that payment, he was also working on a full time basis.  Not only were Mr Haidar Radhi’s statements hearsay and probably double hearsay, he was unable to articulate the basis for his explanations.

11. Despite receiving adequate notice of the hearing date and having staff at the Tribunal explain to Ms Feenous Radhi and to Mr Haidar Radhi the need for evidence from the Applicant, I had nothing whatsoever from the Applicant or Ms Feenous Radhi who was not available for cross examination.  On that basis I attempted to explain to Mr Haidar Radhi that because he was determined that the hearing go ahead, I had to make a decision based on the material which was before me. In doing so, I found that there was no evidence before me to dispute the findings made by the ARO or AAT 1.  Accordingly, I affirmed the decision of AAT 1.

12.     I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member

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Associate

Dated  9 August 2016

Date of hearing	6 July 2016
Advocate for the Applicant	Haidar Radhi
Advocate for the Respondent	Mr T Noonan, Department of Human Services FOI & Litigation Branch