Re Al Umari and Secretary, Department of Family and Community Services

[2003] AATA 431

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 431

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1329

GENERAL ADMINISTRATIVE  DIVISION

Re:         KHALIS AL UMARI

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY

AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             12 May 2003

Place:            Melbourne

Decision       The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY debt of newstart allowance – applicant travelled overseas – whether reason for travel was acute family crisis – whether debt – whether recoverable

Social Security Act 1991 ss 1212A, 1212B, 1223, 1237A, 1237AAD

Social Security (Administration) Act 1999 s 94

REASONS FOR DECISION

12 May 2003  M.J. Carstairs, Member

1.      This is an application by Khalis Al Umari (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 25 October 2002.  The SSAT affirmed a decision of a Centrelink delegate for the Secretary to the Department of Family and Community Services (the respondent), that the applicant owed a debt to the respondent of newstart allowance in the amount of $3949.45, paid to him for the period 16 March 2002 to 16 June 2002, and that the debt should be recovered from him. 

2.      At the hearing the applicant represented himself and was assisted by an interpreter in the Arabic language.  Mr M. Todd, a Centrelink advocate, represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the Act), as well exhibits marked R1‑R4. 

BACKGROUND

4.      The applicant is thirty-three years old and received newstart allowance in 2002.  He left Australia on 16 March 2002 to visit his mother in Syria.  His parents travelled from Iraq to Syria for the visit.  The applicant returned to Australia on 17 June 2002. 

5.      On 27 March 2002, after a data match conducted by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) recorded the applicant’s departure from Australia (T5), Centrelink sent a letter to the applicant seeking information about his absence from Australia.  On 22 April 2002 a computer note recorded that the applicant had failed to reply by the due date of 17 April 2002.  On 9 May 2002 (T6) Centrelink sent a further letter stating that the applicant’s newstart allowance was cancelled with effect from 14 March 2002 because he had not lodged an Application for Payment form.   On 15 May 2002 Centrelink informed the applicant that he had incurred a debt of  $862.30, being newstart allowance for the period 16 March 2002 to 10 April 2002.

6.      When the applicant returned to Australia on 17 June 2002 he contacted a Centrelink office about the cancellation of his newstart payment.  As a result of this  contact, he was paid newstart allowance for the whole period 16 March to 16 June 2002, apparently in error, without taking into account that the applicant was overseas during that time.  When the error was realised, another decision was made on 9 July 2002 (T16), raising a further debt.  That debt was calculated at $3949.45 (T16 and T21), including the earlier debt of $862.30.  The applicant sought review of the decision. The decision was affirmed by an authorised review officer (T23) and then by the SSAT (T2).  The applicant then sought review with this Tribunal on 9 December 2002.

EVIDENCE

7.      The applicant said that he came to Australia after escaping from Iraq in 1991.  He said that he has not seen his family for eleven years.  He said that his mother had developed cancer and he wished to see her.  He said that it was not possible for him to know when his mother and father could travel from Iraq to Syria and the arrangement was that they would let him know at short notice.  The applicant said that he had not advised Centrelink of his departure, as he had no time to do so.  He heard from his parents on a Friday afternoon that they could travel to Syria and he departed the next day.  He said that he had a lot going on in his life at the time and he did not have it in his mind to advise Centrelink. 

8.      The applicant said that he believed his mother’s condition might have been diagnosed some four or five months before he travelled to see her.  He said that he obtained a medical report, dated 21 August 2002, from a doctor in a general clinic in Syria where he had taken his mother.  He said she had not been hospitalised while they were in Syria.  The applicant was asked about a medical report dated 20 March 2002, which stated that the applicant’s mother was in a critical condition.  He said that after he came back to Australia he obtained the medical report from the clinic to which he had taken his mother in Syria.  Under cross-examination, he said the date of 20 March 2002 was the date that he had taken his mother to the clinic and was not the date of the report.

9.      Under cross-examination concerning his evidence given to the SSAT, that his mother’s health had been good when he visited her in Syria, he said that he was not in a position to describe her condition, as he was not medically qualified.  He said that, while he considered that his mother was well, he did not know.  When asked why, on his return to Australia, he had made a statement to Centrelink that he was in Australia during the period and had not been overseas, the applicant said that he thought that overseas was the name of a place and he had not been to a place called overseas.  When it was put to him that he had no difficulty in the past where the word overseas was used in forms he had completed, he said that he had been assisted by an interpreter when filling out the forms.

10.     The applicant gave evidence that he had studied for three years at La Trobe University towards a Bachelor of Technology (Electronics) but had been unable to complete it due to language difficulties.  When it was put to him under cross‑examination that he had completed the degree, he said that the university had awarded him a three-year degree, as a laboratory technician, when he could not complete the four years required for the degree in Electronics.

11.     A letter dated 20 March 2002 (exhibit R4) stated:

This is a report from the family doctor.  I have seen Mrs Zehra Al Umari the mother of Khalis Al Umari.  She is in critical condition and she had suffering from that disiases.

12.     A letter dated 21 August 2002 (T20) stated :

I am writing to you that Mr. Zahra Al Umari the mother of Khalis Al Umari.

She is currently suffering from breast cancer and now she is in critical condition.

That is why Mr. Khalis Al Umari must come to see his mother because he has not seen her since 1991 when he left Iraq.  

A translation of the Arabic letterhead on the document at T20 read Doctor Dala El-Ali Oral Medicine and Dental Surgery Medical Association of Syria.

13.     In regard to his present financial circumstances the applicant said that he owes money to people who have helped him while he was overseas, and owes money on his credit card and amounts for gas, electricity and water bills.  The debt to Centrelink is presently being recovered at the rate of $53 per fortnight from the applicant’s newstart allowance.

CONSIDERATION OF THE ISSUES

14.     The provisions in the Social Security Act 1991 (the Act) dealing with overpayments are to be found in Part 5.2 of the Act. From 1 July 2001, s1223(1) of the Act has provided:

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 … is a debt due to the Commonwealth …   .

15. Section 1223(1AB) provides:

1223.(1AB)     Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:

(a)the payment was made to the person by mistake as a result of a computer error or an administrative error;

(b)the person for whose benefit the payment was intended to be made was not qualified to receive the payment;

(c)the payment was not payable;

(d)the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;

(e)the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;

(f)the payment was intended to be made for the benefit of someone else who died before the payment was made. 

16.     Part 4.2 of the Act provides for the circumstances in which social security payments may be portable overseas.  The only circumstances in which newstart allowance may be paid overseas is for a temporary absence for the purpose of seeking certain medical treatment; to attend to an acute family crisis; or for a humanitarian purpose (s1217(5)).  Both humanitarian purpose and acute family crisis are defined in the Act.  The facts raised by the applicant do not meet the definition of humanitarian purpose in s1212B of the Act. Section 1212A provides in regard to acute family crisis:

1212A.     For the purposes of this Part, a person’s absence is for the purpose of attending to an acute family crisis at a particular time if the Secretary is satisfied that the absence is, at that time:

(a)for the purpose of visiting a family member who is critically ill; or

(b)for the purpose of visiting a family member who is hospitalised with a serious illness; or

(c)for a purpose relating to the death of a family member; or

(d)for a purpose relating to a life-threatening situation (other than an illness referred to in paragraph (a) or (b)) that:

(i)is facing a family member; and

(ii)is beyond the control of the family member. 

17.     The applicant submitted that his travel met the definition, as he was visiting his mother who was critically ill.  As this was attested to in the medical certificate, he submitted that this was conclusive evidence of the state of her health. Mr Todd submitted that the meaning to be given to critical is the ordinary meaning of the word, namely that it refers to an illness or condition involving danger of death.  Mr Todd submitted therefore that there was no credible evidence of an acute family crisis as defined in the Act.

18.    Mr Todd submitted further that a number of  notices had issued to the applicant, including that of 28 September 2001 (T4).  By these the applicant was put on notice that he must advise Centrelink if you leave or decide to leave Australia.   In regard to the question of waiver, Mr Todd contended that the discretion could not be exercised because under the legislation the applicant knowingly failed to comply with the Act.  In the alterative, he said, there were no special circumstances to waive the debt.  Mr Todd submitted that waiver on the basis of administrative error was not applicable as the debt was raised within the six-week time limit provided for in the Act.

19.     The Tribunal has reached a decision taking into account the oral and written evidence, and the submissions made at the hearing. 

20.     In regard to newstart allowance paid in respect of the period March to June 2002 the Tribunal is reasonably satisfied that the amounts have been correctly calculated as set out at T21.  The first amount that was raised as an overpayment was  $862.30 for the period 14 March 2002 to 10 April 2002, when it was noted that the applicant had departed from Australia without advising Centrelink.  The second amount is a payment made to the applicant on 18 June 2002 when the applicant was  paid for the whole of the period 14 March 2002 to 18 June 2002.  Therefore, within  the overall amount there is a double payment for the period 16 March to 10 April 2002. 

21. Whether the applicant had any entitlement to payments during the period depends on a favourable exercise of the discretion that is available under s1212A, where newstart allowance may be payable for a limited period in the circumstances set out in s1217 of the Act. The only relevant consideration arising on the facts is whether the applicant’s mother was critically ill within the meaning of s1212A. The Tribunal accepts the submission of Mr Todd that critically must be given its ordinary meaning.  That meaning is that the person’s condition must be severe or grave (Macquarie Dictionary: 2^nd Ed) or that there must be a crisis in the disease (New Shorter Oxford Dictionary: 4^th Ed).

22.     The Tribunal notes that the evidence of the applicant was that his mother was able to travel and appeared to him in good health.  She was not hospitalised and was being treated by a general practitioner in a country other than her own.  She was able to stay away from her home for a period of two months.  These are not health circumstances that could be described as critically ill, especially taking into account the applicant’s evidence that his mother appeared well to him.  The Tribunal gave little weight to the two letters said to be from a clinic in Syria where the applicant had taken his mother (T20 and Exhibit R4), as the Tribunal was not satisfied of their authenticity in the absence of objective supporting evidence.  There are two versions of the document, each appears to be from a clinic for oral medicine and not from a medical practice, and the Tribunal placed little confidence in the applicant as a witness of truth, as the Tribunal did not accept that he was honestly mistaken when he answered “no” to having travelled overseas.

23.     The discretion to pay newstart allowance for the time that the applicant was overseas should not be exercised, as the applicant’s travel was not in respect of an acute family crisis. As a result newstart allowance was not payable to him during any part of the period that he was overseas.

24. This means that a debt arises under s1223 of the Act, as the applicant was not entitled to payment in the period 16 March 2002 to 16 June 2002: s1223(1) and 1223(1AB)(c). The Tribunal considered the exercise of the discretion to waive any part of the debt in the applicant's case. The Tribunal finds that the payment made on 18 June 2002 to the applicant was made solely on the basis of administrative error by Centrelink, a delegate having decided prior to this that the applicant was not entitled to payment while overseas. Section1237A provides for situations where a debt has arisen solely as the result of administrative error. Having found that there was administrative error by Centrelink in paying the applicant on 18 June 2002, the Tribunal accepts the submission of Mr Todd that the legislation does not provide for waiver under s1237A if a debt is raised within six weeks of the first payment that caused the debt. This is provided for in s1237A(1A) in the following terms:

1237A.(1A)     Subsection (1) only applies if:

(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later.

25.     The debt in regard to this second amount was raised on 9 July 2002, less than six weeks after the payment was made in error on 18 June 2002.

26. In regard to the first debt amount ($862.30 for the period 16 March to 10 April 2002) notified to the applicant on 15 May 2002 (T8), the Tribunal finds that the debt did not arise as a result of administrative error by Centrelink. The debt arose because the applicant failed to comply with his obligations to notify Centrelink that he was leaving the country. Section 94 of the Social Security (Administration) Act1999 provides for a cancellation of payment where a person has been given notice of an obligation to advise of certain events and does not do so. The Tribunal is satisfied that the applicant was given such a notice and did not comply with it. The Tribunal accepts that he found himself too busy in the circumstances of his departure, but this does not relieve him of his obligation. In any event, the absence of entitlement to payment while overseas applies equally to the first debt of $862.30. That is also a debt under s1223(1) of the Act.

27. The Tribunal considered the provisions for special circumstances in s1237AAD of the Act. The Tribunal does not accept Mr Todd's submission that the discretion cannot be considered in this case. There is insufficient evidence to be satisfied that the applicant knowingly failed to comply with a provision of the Act.  However, the circumstances relied upon by the applicant as being special circumstances are not such as to warrant the exercise of discretion in the applicant’s case..  While the Tribunal recognises that the applicant may have other debts, the recovery of this debt is being made by regular deductions from his newstart allowance.  There are no circumstances raised by the applicant that are sufficiently unusual, uncommon or exceptional to justify a favourable exercise of the discretion.  The debt should not be written off under s1236 of the Act, nor should it be waived. 

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the twenty‑eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  29 April 2003

Date of decision:  12 May 2003
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr M. Todd, Centrelink