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

Raineri and Secretary, Department of Social Services (Social services second review) [2022] AATA 2258 (14 July 2022)
Division:GENERAL DIVISION
File Number: 2019/3324
Re:Angelina Raineri
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:                  R Cameron, Senior Member
Date:  14 July 2022
Place:  Melbourne

The Tribunal affirms the decision under review.
.....[sgd].. .................................................................
R Cameron, Senior Member

Catchwords
SOCIAL SERVICES – review of a decision of the Social Services and Child Support Division – decision of the authorised review officer affirmed – decision to seek recovery of a disability support pension debt – whether applicant was an attributable stakeholder of the trust – what is the appropriate attribution percentage – whether trust assets are receivable – whether assets are unrealisable – whether decision was correct – whether applicant has a debt – whether debt should be recovered – decision affirmed
Legislation
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Cases
Beadle and Director-General of Social Security (1984) 6 ALD 1
Bornecrantz v Secretary Department of Social Services [2017] FCA 1010
Secondary Materials
Social Security (Attributable Stakeholder and Attributable Percentages) Principles 2000
REASONS FOR DECISION
R Cameron, Senior Member
14 July 2022
INTRODUCTION

The applicant seeks a review of a decision made by the Social Services & Child Support Division of this Tribunal on 3 May 2019 (“the reviewable decision”). The reviewable decision affirmed a decision made on 5 May 2016 by an authorised review officer (“ARO”) affirming a previous decision to raise and seek recovery of a debt for a disability support pension incorrectly paid to the applicant in the sum of $211,489.08.
THE HEARING
The applicant was self-represented. She gave evidence on oath. Mr Sra and Ms Booth also gave evidence. Each of those witnesses had also prepared witness statements which were received in evidence.
The documents lodged by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) were also in evidence.
RELEVANT FACTS
There are several facts that are not in dispute. Phillip Raineri died on 30 March 1998. Phillip Raineri left a Will dated 14 March 1998 (“the Will”). On 8 October 1999 probate of his estate was granted to his mother, Maria Raineri, and the applicant who is his sister.[1]
[1] A copy of the grant of Probate with the Will of the deceased annexed is at page 265 of the T documents.
Several Clauses in the Will are relevant to this application:
(a)Clause 4(a)(iv) created a Will trust (‘the trust”);
(b)Clause 4(c) provides that the executors must pay all or part of the income, all or part of the capital, and all or part of the capital accretions of the Fund to any one or more of his mother, the applicant, and the applicant’s son David Raineri (“the beneficiaries”). They must do so from such part of the capital or income of the fund, in the shares and amounts at such times as the executors in their discretion think fit, without any obligation to make payments for all any of them nor to ensure equality among those to whom payments are made;
(c)Clause 4(d) provides that the executors must, on the later of the date on which the deceased’s mother has died and his nephew (David Raineri) has reached 50 years or died under that age, pay the balance of the fund to his beneficiaries then living and if more than one then as tenants in common in equal shares;
(d)Clause 6(i) provides that with respect to the deceased’s estate and any fund (or part thereof) the executors have the additional power in their discretion to apply, for the maintenance, education, advancement or benefit of the beneficiary, the whole or any part of the capital and income; and
(e)Clause 6(p) provides that the executors have the power to borrow money or raise money for any purpose connected with the trust either with or without giving security; and enter into any mortgage, charge, bill of sale, lien or security over any part of the property which forms part of any fund arising from the estate.
By a deed made on 27 December 2001 Maria Raineri resigned as a joint trustee of the trust.[2] The applicant remained the sole trustee. Maria Raineri died in September 2012.
[2] See paragraph 7 of the applicant's statement of facts issues and contentions, dated 11 October 2019. Also see document T35 of the T documents.
David Raineri was born on 23 September 1984.
The applicant received a disability support pension from 25 September 2000. She received the sum of $211,489.08 between 1 October 2002 and 26 January 2016 (“the relevant period”).
Between 2002 and 2016 the Department of Social Services (“the Department”) sent to the applicant numerous notices under section 68(2) of the Social Security (Administration) Act 1999 which informed her that she must tell the Department if she was involved in, or received a benefit from, a private trust or private company.[3]
[3] The notices concerned are to be found at document T39 of the T documents.
In approximately September 2011, as a result of data matching, the Department identified that the applicant was the registered proprietor of three properties.
A letter was sent by the Department to the applicant on 9 October 2014 advising that it wished to make sure the applicant was receiving the correct rate of payment. It said it did this by matching its data with data obtained from other government agencies and third parties. It said it wished to confirm that it had the correct details. It required the applicant to make contact with it by 1 November 2014; otherwise. the payments being made to her would be stopped.
On 3 November 2014, a file note held by the Department reveals that the applicant contacted it.[4] When probed about the properties concerned, she stated that they belonged to her late brother and she was executor of the Will but did not know what was to happen with them. The file note records that she could not confirm if ownership of those properties was transferred to her. It is also recorded in the file note that the applicant undertook to provide a copy of her brother’s Will. It should be noted that at the hearing the applicant gave evidence on oath that she provided a copy of the Will to the Centrelink office in 2002, to an officer called “Graham”. More will be said about this later in these reasons. Suffice to say, there is an inconsistency between the contents of the file note of 3 November 2014 and the applicant’s evidence. One has to ask the question, why would the applicant give an undertaking to provide a copy of her brother’s will during that conversation if she had already done so. Had she done so already it would be expected that she would have said so to the Departmental officer she was speaking to at the time.
[4] The file note is at page 1128 of the T documents and is part of document T35.
The Department has identified 11 properties relevant to this application which are registered to the applicant.[5]
[5] Precise details of those properties are found in paragraph 12 of the respondent's Statement of Facts, Issues and Contentions. They need not be reproduced for the purposes of these reasons. It was common ground that the first two of those properties identified in that paragraph are owned by the applicant in her own right and not held on trust pursuant to the provisions of the Will trust created by the Will.
A decision was made to cancel the applicant’s disability support pension on 12 February 2016. She has sought review of that decision.
A decision requiring repayment of a disability support pension paid to the applicant during the relevant period in the sum of $212,356.08 was made on 24 February 2016.
An authorised review officer made a decision on 5 May 2016 that the applicant repay the sum of $211,489.08 for the disability support pension received during the relevant period.
The applicant sought a waiver or reduction of the amount due on 2 June 2016 which request was rejected by the authorised review officer.
On 31 August 2018, the applicant sought reconsideration of the decision to cancel her disability support pension and to require her to repay a debt of $211,489.08. From this decision she sought review in the Social Services and Child Support Division of this Tribunal.
ISSUES FOR CONSIDERATION BY THE TRIBUNAL
The Tribunal considers that the issues identified by the respondent in its Statement of Facts, Issues and Contentions accurately identify the matters for consideration by. They are as follows:
(a)whether the applicant is an attributable stakeholder of the trust during the relevant period;
(b)what the appropriate attribution percentage for the applicant is, pursuant to section 1207X of the Social Security Act 1991 (“the Act”) and the Social Security (Attributable Stakeholder and Attributable Percentages) Principles 2000 (“the Principles”);
(c)whether the value of the assets of the trust falls within section 1118 (1)(j) of the Act, and whether that section has application to section 1208E of the Act;
(d)whether the assets of the trust are unrealisable assets pursuant to section 11(12) and 11(13) of the Act;
(e)whether section 1129 and 1130 of the Act apply to the applicant;
(f)whether the decision to cancel the applicant’s disability support pension was correct;
(g)whether the applicant has a debt of a disability support pension; and if so
(h)whether the debt should be recovered.
CONSIDERATION
The parties agreed that in order to be paid the disability support pension during the relevant period the applicant had to satisfy the means test under section 1064 of the Act. The applicant in her reply submissions prepared by the lawyers then acting for her, dated 21 January 2020, at paragraph 14 helpfully identified the thresholds that disqualify a single homeowner pensioner from receiving the pension during the relevant period. They need not be reproduced for the purposes of these reasons.
Part 3.18 of the Act, “Attribution of assets of controlled private companies and controlled private trusts” deals with the attribution of assets to individuals for the purposes of the Act, when they are held in a company or trust structure. It is a means of piercing the corporate or trust veil, or in layman’s terms, going behind such structures. Reference was made to a passage of Justice Perry in Bornecrantz v Secretary Department of Social Services[6] that “Part 3.18 was inserted …. So as to ensure that Social Security customers who held their assets in private companies or private trusts received comparable treatment under the means test to those customers who held their assets directly”.[7]
[6] [2017] FCA 1010 at [38].
[7] Paragraph 17 of the respondent’s Statement of Facts, Issues and Contentions.
It is not in dispute that the trust is a designated private trust within the meaning of section 1207P of the Act.[8]
[8] Paragraph 20 of the applicant's Statement of Facts, Issues and Contentions is referred to. See also paragraph 50 of the applicant’s reply submissions of 21 January 2020.
It is also not in dispute that the trust is a controlled private trust within the meaning of section 1207V of the Act by reason of the applicant satisfying the control test.[9]
[9] Paragraph 21 of the applicant's Statement of Facts, Issues and Contentions is also referred to.
The applicant has conceded she is an attributable stakeholder of the trust, and was so during the relevant period, under section 1207X of the Act.[10]
[10] Paragraph 22 of the applicant's Statement of Facts, Issues and Contentions is also referred to.
Under section 1208E of the Act “Attribution of assets”, for the purposes of the Act:
(a)if an individual is an attributable stakeholder of a trust, and
(b)at the time the trust owns a particular asset, and
(c)if at that time such asset had been owned by the individual instead of the trust, and the value of the asset would not be required to be disregarded by any express provision of the Act, and
(d)it is not an excluded asset;
There is to be included in the value of the individual’s assets an amount equal to the individual’s asset attribution percentage of the value of the asset.
Sections 1207X(2)(c) and (d) of the Act prescribe that if an individual is an attributable stakeholder of a trust, unless the Tribunal otherwise determines, the individual’s asset attribution percentage in relation to the trust is 100%. Under section 1207X(5) of the Act, in making the determination the Tribunal must apply any relevant decision-making principles.[11]
[11] In this matter the relevant decision-making principles are the Principles.
The applicant contends that the attribution percentage in relation to the trust should be nil. She does so on two alternative grounds. Firstly, on a true and proper construction of the Will the testamentary trust is a form of blocked testamentary trust for her, the assets of which are not able to be received until the later of David Raineri attaining the age of 50 years on 23 September 2034 and Maria Raineri dying so the value of the assets is disregarded for the relevant period applying section 1118(1)(j) of the Act.
Secondly, and alternatively, the applicant relies on section 1208F of the Act concerning unrealisable trust assets to an attributable stakeholder, which has the effect of excluding attribution of those unrealisable trust assets.
When one considers the Principles, Clause 16 “Circumstances affecting relationship with company or trust”, and Clause 18 “Past benefit from distributions by company or trust”, are apposite. Clause 16(2)(c) requires the decisionmaker to have regard to the relationship between the individual and the company or trust; and whether the individual can reasonably be expected to exercise effective control in relation to the company or trust, and if so, the extent of that control.
Clause 4 of the Will gives the executor, who in this case is the applicant, a broad and unfettered power to pay all part of the income, all or part of the capital and all part of the capital accretions of the trust to her or David, in the shares and amounts at such times in her discretion she thinks fit. It is a broad and unfettered power, enabling her to make a distribution from the capital or income of the trust to any beneficiary at any time.
The applicant contends that this power is fettered by operation of Clause 4(d) of the Will. She contends that the use of the word “balance” in that Clause when David attains 50 years, on its proper construction creates a contingent interest only in the fund which does not vest in the applicant unless she is alive, and David attains 50 years or predeceases her. Therefore, it is contended that section 1118(1)(j) “Certain assets to be disregarded in calculating the value of the person’s assets” applies to exclude the trust assets in her assets for the purposes of applying the means test. Section 1118(1)(j) provides that, in calculating a person’s assets for the purposes of the Act, the value of any assets (other than a contingent, remainder or reversionary interest) to which the person is entitled, from the estate of a deceased person which has not been and is not able to be received, is disregarded.
The Tribunal cannot accept this contention. On its true and proper construction, Clause 4(d) of the Will only has application when David has reached 50 years of age or died under that age, and therefore directs the executor to apply the balance of the Fund then existing to the beneficiaries then living, and if more than one as tenants in common in equal shares. It does not have application prior to David reaching 50 years of age or dying under that age.
The Tribunal also refers to Clause 6(i) of the Will “Powers of Executor” which gives a very broad power to the executor to apply the income or assets of the trust to a beneficiary. This Clause is not subject to any time constraint or restriction and can be exercised at any time. The construction that the applicant seeks to place on both these Clauses is artificial; or as was contended for by the respondent at the hearing of the application, is an unnatural reading or application of the language used by the document itself.
The Tribunal notes that Clause 6(g) of the Will confers on the executor in her discretion a broad power of sale in respect of any of the assets of the trust.
Another reason why the Tribunal cannot accept the applicant’s contention that it is some kind of locked or blocked trust, arises from the way that the trust has been administered over some years. It was not in dispute that income from the trust had been distributed to David over many years. There were tax returns in evidence which revealed distributions were made to David.[12] The applicant resides with David. She is registered proprietor of the property which she holds as trustee of the trust. It was not in dispute that the applicant lives in the property rent free, and that the trust meets all the expenses associated with the property, such as utility bills, rates, maintenance and repairs. It was conceded by the lawyer previously acting for the applicant that it was a benefit to her.[13]
[12] See page 569 of the T documents. There were admissions made to this effect also in a letter from the applicant’s then solicitors to Centrelink on 31 August 2018 at page 515 of the T documents.
[13] See paragraph 65 of the reasons of the Tribunal of 3 May 2019.
Additionally, trust assets have been used as security for loans.[14] It should be observed that Clause 6(p) of the Will gives the executors the power in their discretion to borrow money or raise money for any purpose connected with the trust either with or without giving security; and they may enter into any mortgage or other security over any part of the property which forms part of any fund arising from the estate.
[14] There was for instance the applicant's signature on a letter of offer from the Commonwealth Bank at pages 306 & 307 of the T documents, amongst others. There was also a Deed of Loan between the trust and Perpetual Nominees Ltd at page 387 of the T documents.
Therefore, the Tribunal finds that because there is a power in the applicant as trustee of the trust to apply the income and capital at any time for the benefit of a beneficiary in her absolute discretion. Section 1118(1)(j) has no application in this case.
Similarly, by reason of the forgoing analysis, the Tribunal considers that section 1208F (unrealisable trust assets) does not apply to the applicant as an attributable stakeholder so as to exclude the trust assets consistently with sections 11(12) or (13) of the Act.
As for the determination of the asset attribution percentage, the Tribunal does not consider that there are relevant circumstances that make it inappropriate for the applicant to have an asset attribution percentage of 100%.
When one considers the provisions of Clause 16(2)(c) of the Principles, it can be seen, for the reasons articulated previously, that the applicant can reasonably be expected to exercise effective control in relation to the trust in accordance with the provisions of the Will. The Will gives her a very broad power to apply the income and capital of the trust together with realising its assets. She has an unfettered discretion to make distributions of income and capital to beneficiaries, including herself. Those provisions of the Will have been explained previously in these reasons.
Clause 18 “Past benefit from distributions by company or trust” of the Principles obliges the decision-maker to consider whether the individual has received a benefit from a distribution made by the company or trust. The value of the benefit must be considered; and whether or not the benefit has been received on more than one occasion, the frequency with which the applicant has received benefits. The applicant contends that all income and corpus of the trust has been applied for the benefit of David. The Tribunal cannot accept this contention. It should be repeated that the applicant lives rent-free in a trust property. The trust meets all expenses associated with the property such as utility bills, rates, and all maintenance and repairs. This arrangement has continued for many years. It is a material benefit from the trust that the applicant receives and has received over many years.

The applicant has contended that the appropriate attribution percentage is nil on a proper application of the principles. Save and except for her contention that the trust is some kind of blocked or locked trust, which has been addressed earlier, no other contention was advanced in support of the argument that the attribution percentage should be reduced to nil.
It should be noted that the applicant has conceded that a reduction of the attribution percentage to a percentage other than nil will, having regard to the value of the trust properties, exceed the applicable asset value thresholds.[15]
[15] See paragraph 67 of the applicant’s Reply to the respondent’s Statement of Facts, Issues and Contentions dated 21 January 2020 (“applicant’s Reply”).
By reason of these matters, the applicant’s attributable assets exceeded the relevant threshold under the means test or assets test. This means that the disability support pension rate was nil and not otherwise payable. The Tribunal accepts the contention of the respondent that the applicant’s disability support pension was correctly cancelled pursuant to the provisions of section 80 of the Social Security (Administration) Act 1999.
The applicant was overpaid a disability support pension of $211,489.08 during the relevant period. By operation of section 1223(1) of the Act such sum is a debt due to the Commonwealth.
The applicant gave evidence that on 14 November 2002 she went to see an officer at Centrelink called “Graham”. She said she did so to make sure she was not going to lose any of her pension because of her late brother’s estate. She stated that she gave a copy of the probate with the Will attached to Graham, who examined the document and took a copy of it. She gave evidence, in a witness statement and from the witness box, to the effect that Graham stated that her pension would not be reduced because of her brother’s estate assets and to come back and see them after David turned 50. In the witness box she said this all took place in approximately 15 minutes. The reference to the time it took was not included in her witness statement.
The Tribunal found the applicant’s evidence on this topic unconvincing. It is not persuaded that the applicant did attend Centrelink in November 2002 as she said. It has the hallmarks of a recent invention. There are several reasons for this.
There was no reference to the visit to Centrelink in November 2002 and the provision of a copy of the grant of probate and the Will together with the advice given by Graham in the file note of the conversation between the applicant and the Centrelink officer on 3 November 2014. Had she previously provided a copy of the Will and the probate to Centrelink she would have said so during that conversation and obviously referred to Graham. Tellingly, the file note records that she undertook to provide a copy of her brother’s Will and said she would write a letter to explain matters. Surely, as she had already explained the matter to Graham, and provided a copy of the probate and the Will to Centrelink previously (not to mention having received the advice from him that it would not have affected her pension), there was no need for her to do this.
On 3 December 2015, the applicant wrote to Centrelink and there was no reference to a provision of a copy of grant of probate and the Will to Graham in November 2002. If Graham had said the pension would not be reduced because of the trust assets one would have expected all these facts to have been placed before the Department in that correspondence.
On 12 January 2016, the applicant sent a fax to the Department in which no reference was made to Graham, and of providing him with a copy of the grant of probate and the Will in November 2002. Once again if Graham had said the pension would not be reduced because of the trust assets, one would have expected all these facts to have been placed before the Department in that correspondence.
A letter was sent on 29 April 2016 from the applicant’s then solicitors to the Department in which no reference was made to Graham and the provision of a copy of the grant of probate and the Will in November 2002. Yet again, if Graham had said the pension would not be reduced because of the trust assets one would have expected all these facts to have been placed before the Department in that correspondence.
On 31 August 2018, the applicant’s then solicitors wrote a detailed and carefully constructed letter to Centrelink.[16] That letter contained no reference to the visit to Centrelink on 14 November 2002; nor a reference to the provision of a copy of the grant of probate and the Will to Graham and the advice that he gave in that meeting. Had such an event occurred one would have expected it to have been referred to in that letter.
[16] The letter was in evidence before the Tribunal at page 515 of the T documents.
At the hearing of the matter before the Social Services & Child Support Division of this Tribunal, which gave written reasons 3 May 2019, there was also no reference to the visit to Centrelink by the applicant and the provision of a copy of the grant of probate of the Will to Graham, let alone reference to the advice he was supposed to have given. Once again, had such an event occurred one would have expected it to have emerged in the evidence before that Tribunal as constituted.
In this application, a Statement of Facts, Issues and Contentions was lodged with the Tribunal by the applicant’s then solicitors, and no reference was made to Graham and the provision of a copy of the grant of probate of the Will to him at all, let alone the advice that he supposedly gave on that occasion. Once again, one would have expected to have seen a reference to it in that document.
The first time that a reference to Graham and the provision of the documents to him occurred was in the applicant’s witness statement of 18 October 2019.
Having had the opportunity to observe the applicant in the witness box, the Tribunal found her to be very alive to protecting her own interests where the occasion called for it. It seems inconceivable that, had she visited Graham in November 2002, provided him with the documents and received the advice from him as she stated during her evidence, that it would not have seen the light of day at the earliest opportunity, particularly when her solicitors sent the carefully drafted letter of 31 August 2018 to Centrelink. Not to mention the earlier correspondence that she sent to the Department or was sent on her behalf.
There was also the evidence of Mr Sra and Ms Booth. Mr Sra, who the Tribunal found to be a most impressive and fair witness, stated that he had worked at the relevant Centrelink office for 27 years. He could not recall anyone named Graham ever working at the office concerned. He was confident that he would recall if there was an officer employed by the name of Graham. He also pointed out that if a Centrelink customer revealed that they were involved in a trust it was normal practice to issue what is known as a Module PT, so that the details of the trust could be provided by the customer and an assessment of the trust completed. No Module PT was issued on or about November 2002. The Tribunal accepts Mr Sra’s evidence.
Ms Booth had conducted a search of the respondent’s archive records and found nothing relating to a Will or probate or involvement in a trust on or around 14 November 2002. She also conducted a search of the applicant’s paper file and similarly found no trace of any such documents. By way of completeness, she conducted searches of David Raineri’s electronic and paper files and found no records and no trace of probate or Will documents on or around 14 November 2002. She found nothing to reveal that the applicant had contact with a Centrelink officer on 14 November 2002. The Tribunal accepts her evidence.
The applicant has acknowledged that she does not seek a write-off of the debt under section 1236 of the Act, which gives the power to the Secretary to write off a debt if it is irrecoverable at law, the debtor has no capacity to repay or amongst other things it is not cost-effective for the Commonwealth to take action to recover it. She accepts the debt is not irrecoverable at law. She acknowledges she will suffer hardship but not severe financial hardship within the meaning of the section and has the capacity to pay the debt.[17]
[17] Paragraph 75 of the applicant’s Reply is referred to.
The applicant seeks a waiver of the debt arising from error by application of section 1237A of the Act. That section obliges the secretary to 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.
The basis of the applicant’s claim is that, as noted earlier in these reasons, on 14 November 2002 she was provided advice by Graham at Centrelink that the testamentary trust assets would not reduce the applicant’s entitlement to a disability support pension. This incorrect advice, it is contended, has caused the overpayment leading to the debt. It is also contended that the debt being in such a significant sum will cause hardship in all the circumstances.
It is contended that the administrative error was:
(a)giving incorrect advice or information that the trust property value was not attributable until David attained 50 years of age;
(b)failing to correctly update and action the information so as to vary the applicant’s benefit entitlement; or
(c)failing to advise the applicant what steps should be taken to confirm whether the trust property value was or was not attributable until David attained 50 years of age.[18]
[18] See the applicant’s Reply at paragraph 82.
By reason of this error is the applicant contends that the debt should be waived for the relevant period.
The Tribunal has found that the applicant did not attend the Centrelink office on 14 November 2002 and did not provide the documents to Graham or receive the advice as alleged. Therefore, there is no administrative error within the meaning of section 1237A of the Act as contended by the applicant.
In the alternative, the applicant seeks a waiver in special circumstances under section 1237AAD of the Act. That section gives the Secretary the discretion to waive the right to recover all or part of the debt if they are satisfied that the debt did not result wholly or partly from the debtor knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the Act; and there are special circumstances other than financial hardship alone that make it desirable to do so.
Once again, the applicant relies heavily in support of her contention that this section should be applied, on the advice allegedly provided by Graham. The Tribunal has not accepted this evidence from the applicant.
The grounds relied upon by the applicant to contend that there are special circumstances applicable within the meaning of section 1237AAD of the Act is said to be the erroneous understanding induced by Graham on behalf of the Department. She contends that, by reason of the erroneous understanding induced by Graham, it was reasonable for her not to make any further disclosures when in receipt of the relevant notices from the Department on numerous occasions that requested she inform it if the value of her assets exceeded the threshold amount, or if she was involved in, or received a benefit from, a private trust.
It must be repeated that the Tribunal has found that the applicant did not attend at the Centrelink office on 14 November 2002 and provide the documents to Graham or receive the advice as alleged.
The respondent referred to the decision of this Tribunal in Beadle and Director-General of Social Security[19] for the meaning of the term “special circumstances” which was said to be, “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…. They must have a particular quality of unusualness that permits them to be described as special”.[20]
[19] (1984) ALD 1.
[20] See paragraph 70 of the respondent’s Statement of Facts, Issues and Contentions.
The Tribunal agrees with the respondent’s contention that the position that the applicant is in, and the evidence that is before the Tribunal, does not enable it to reach a conclusion that the circumstances as a whole are sufficiently unusual or uncommon so as to permit them to be described as special.
DECISION
By reason of the foregoing matters, the Tribunal affirms the reviewable decision.

I certify that the preceding 71 (seventy- one) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...[sgd]..................................................
Associate
Dated: 14 July 2022

Date of hearing:
31 May 2022

Applicant:

Counsel for the Respondent:

Self-represented

N Swan

Solicitor for the Respondent: Mills Oakley Lawyers

[2022] AATA 2258

14 July 2022

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Standing

Appeal