Rezaei and Secretary, Department of Social Services (Social services second review)
[2020] AATA 109
•31 January 2020
Rezaei and Secretary, Department of Social Services (Social services second review) [2020] AATA 109 (31 January 2020)
Division:GENERAL DIVISION
File Numbers: 2019/2028 & 2042
Re:Nazi Rezaei
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member C.J. Furnell
Date:31 January 2020
Place:Melbourne
The Tribunal decides to:
·Affirm each of the decisions under review as involved the raising and recovery of a debt in relation to an excess payment year;
·Set aside each of the decisions under review as involved the raising and recovery of a debt in relation to a zero entitlement year;
·Decide in substitution for each of the decisions under review as involved the raising and recovery of a debt in relation to a zero entitlement year (other than the year ending 30 June 2017) that amounts by way of family tax benefit paid to Ms Rezaei in relation to the year did not exceed her family tax benefit entitlement with respect to the year; and
·Remit the decision under review as involved the raising and recovery of a debt in relation to the year ending 30 June 2017 for reconsideration in accordance with a direction that any debt sought to be raised and recovered in relation to the year not be calculated on a “non-lodger” basis but, instead, be calculated on the basis that Ms Rezaei and Mr Rashidi were then a couple.
...[sgd].....................................................................
Senior Member C.J. Furnell
Catchwords
SOCIAL SECURITY – family tax benefit – s32AE of the A New Tax System (Family Assistance) (Administration) Act 1999 – whether to apply 6.4.3 of the Family Assistance Guide – where applicant has not lodged a tax return – where applicant has not notified respondent that they are not required to lodge a tax return – whether determination under s28(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 exists – whether member of a couple – married during relevant period – debt – whether debt can be waived or written off – whether special circumstances – decision relating to zero entitlement set aside – decision relating to excess payment affirmed
Legislation
Administrative Appeals Tribunal Act 1975
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Income Tax Assessment Act 1936
Social Security Act 1991Supreme Court Act 1986 (Vic)
Cases
Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342
Afghani and Secretary, Department of Social Services (Social services second review), Re [2017] AATA 410
Beverley Sybil Anderson and Secretary, Department of Social Security, Re [1993] AATA 172
Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277
Boskoski and Secretary, Department of Social Services, Re [2014] AATA 915
Bozdag and Secretary, Department of Social Services (Social services second review), Re [2016] AATA 765
Comcare v Power (2015)149 ALD 286
Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428
Dimov and Secretary, Department of Family and Community Services, Re [2005] AATA 912
Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
DTDJ and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 4295
George; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2011] AATA 91
Idlabi and Secretary, Department of Social Services (Social services second review), Re [2016] AATA 20
In the Marriage of Todd (No.2) (1976) 9 ALR 401
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Kettlewell and Secretary, Department of Social Services (Social services second review), Re [2018] AATA 8
Lorraine Joy Shearing and Director-General of Social Security, Re [1983] AATA 116
Lyons and Secretary, Department of Social Services (Social services second review), Re [2018] AATA 3644
McDonald v Director-General of Social Security (1984) 6 ALD 6
Melvin v Secretary, Department of Social Security [2016] FCA 375
Micallef and Secretary, Department of Family and Community Services, Re [2004] AATA 485
Milovanovic and Secretary, Department of Employment and Workplace Relations, Re [2006] AATA 930
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Mosaui and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 715
Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re (2011) 54 AAR 188
Pavey, In the Marriage of (1976) 25 FLR 450
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Secretary, Department of Employment and Workplace Relations and Gilson, Re [2007] AATA 1361
Secretary, Department of Education, Employment and Workplace Relations and Hitchcock and Anor, Re [2008] AATA 677
Secretary Department of Social Services v Hales (1998) 51 ALD 695
Sperring and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 1050
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 175
Synnes and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 338
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor, Re [2010] AATA 284
Toomey and Secretary, Department of Education, Employment and Workplace Relations, Re [2009] AATA 468Vo and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 234
Secondary Materials
Department of Social Services (2 January 2020), Guides to Social Policy Law < Memorandum, Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
REASONS FOR DECISION
Senior Member C.J. Furnell
31 January 2020
In the period 4 October 2018 to 10 October 2018 a delegate of the Respondent made decisions to raise and recover from Ms Rezaei certain debts.
In particular, the delegate made decisions to:
· raise what was characterised as a non-lodger debt in respect of each of six financial years;[1]
· raise in respect of each of four other financial years a debt said by the Respondent to have arisen consequent upon it having been notified of changes to Ms Rezaei’s family income for the relevant financial year;[2] and
· recover each debt so raised (that is, not write off or waive the debt).
[1] The non-lodger debts were raised on the basis that Ms Rezaei and/or her partner had not lodged his, her or their income tax return(s) for each relevant financial year. The relevant financial years, and the amount raised with respect to each of them, are the financial year ending 30 June 2006 ($14,818.80); the financial year ending 30 June 2009 ($12,948.11); the financial year ending 30 June 2010 ($13,806.56); financial year ending 30 June 2011 ($16,169.49); financial year ending 30 June 2012 ($16,621.44) and the financial year ending 30 June 2017 ($16,815.55).
[2] The relevant financial years, and the amount raised with respect to each of them, are the financial year ending 30 June 2013 ($4,071.23); the financial year ending 30 June 2014 ($8,963.90); the financial year ending 30 June 2015 ($4,555.20) and the financial year ending 30 June 2016 ($5,852.34).
The six financial years with respect to which it was decided to raise so-called non-lodger debts I shall refer to as the zero entitlement years.
The four other financial years with respect to which it was decided to raise a debt I shall refer to as the excess payment years.
On 15 November 2018 the decisions to raise and recover these various debts were affirmed by an Authorised Review Officer of the Respondent.
On 20 March 2019 the Tribunal’s Social Services and Child Support Division also decided, in effect, to affirm those decisions, albeit that it characterised those decisions as “a decision of the Department of Human Services (Centrelink) to find that Ms Rezaei was partnered between 2005 and 2017 and to raise and recover a series of family tax benefits as a result” (AAT first review decision).
On 11 April 2019 Ms Rezaei applied for a review of the AAT first review decision (which, in this context, is taken to be the decision as affirmed by the AAT first review decision).[3]
[3] A New Tax System (Family Assistance) (Administration) Act 1999 s128(2).
As a result of that review, I have decided to:
·Affirm each of the decisions under review as involved the raising and recovery of a debt in relation to an excess payment year;
·Set aside each of the decisions under review as involved the raising and recovery of a debt in relation to a zero entitlement year;
·Decide in substitution for each of the decisions under review as involved the raising and recovery of a debt in relation to a zero entitlement year (other than the year ending 30 June 2017) that amounts by way of family tax benefit paid to Ms Rezaei in relation to the year did not exceed her family tax benefit entitlement with respect to the year; and
·Remit the decision under review as involved the raising and recovery of a debt in relation to the year ending 30 June 2017 for reconsideration in accordance with a direction that any debt sought to be raised and recovered in relation to the year not be calculated on a “non-lodger” basis but, instead, be calculated on the basis that Ms Rezaei and Mr Rashidi were then a couple.
I elaborate on my reasons for this decision later but, put shortly:
·with respect to each zero entitlement year, I am not satisfied that Ms Rezaei is indebted to the Commonwealth in the amount which has been sought to be raised in relation to the year. In order for her to be so indebted she would have to have had no family tax benefit entitlement in relation to the relevant year. On the material before me, I am not satisfied that she did not have such an entitlement;
·with respect to each excess payment year, I am satisfied that Ms Rezaei is indebted to the Commonwealth in the amount which has been sought to be raised in relation to the year. That amount reflected the amount by which payments made to her by way of family tax benefit exceeded her family tax benefit entitlement for the relevant year. Those payments were excessive because they were calculated without regard to the fact that in the relevant year she was a member of a couple, the other member of which was a Mr Rashidi; and
·with respect to the 2017 financial year, payments of the family tax benefit to Ms Rezaei might have been excessive as she and Mr Rashidi were then a couple.
Elements of the Factual context
Ms Rezaei was married to a Mr Rashidi in Turkey in around 1998. They have not divorced. In 1999 they moved to Australia. They have two daughters both of whom were born in Australia. The first was born in April 2000, with the second being born in May 2002. When her children were born Ms Rezaei lived with Mr Rashidi in Lower Templestowe.
Approximately two years after their second child was born (that is, sometime in 2004), Ms Rezaei and Mr Rashidi began to live in separate households. Ms Rezaei continued to live in Lower Templestowe while Mr Rashidi moved in with his parents.
I find that, until relatively recently, at all times after 2004 Ms Rezaei and Mr Rashidi continued to live in, and maintain, separate households. While there was some material before me suggestive of multiple separations in that period rather than one single, long term separation,[4] the validity of that material was not tested at the hearing of this proceeding. The only person to provide oral evidence, Ms Rezaei, strongly denied any suggestion of multiple separations and reconciliations in the period concerned. She generally impressed me as a witness of credit, at times (as will be seen later) willingly acknowledging matters adverse to her interests in this proceeding.
[4] See, for example, Exhibit A6, a statement of a Mr Vlahos who suggested that Ms Rezaei and Mr Rashidi had been through several separations.
In May 2013 Ms Rezaei purchased a property in Eltham and she and her children have resided there ever since. (I address later in more detail the circumstances of that purchase.)
In 2015 Mr Rashidi began to reside next door to that Eltham property. I find that he continued to do so until roughly six months before the hearing of this proceeding, at which time he began to reside with Ms Rezaei and their two children in her Eltham property. There was some material before me inconsistent with this finding, material suggestive of Ms Rezaei and Mr Rashidi having commenced to co-habit in 2015.[5] Again, however, the only person to provide oral evidence, Ms Rezaei, strongly denied this. Further, Ms Rezaei’s evidence was corroborated by other material before the Tribunal (which I elaborate on later) and by evidence apparently adduced at the hearing conducted by the Tribunal prior to its having made the AAT first review decision.[6]
[5] T11,T-Documents, 376: Mr Rashidi stated in October 2018 in an online application for Newstart Allowance that he was then living at the address occupied by Ms Rezaei and had started living there in April 2015.
[6] T3,T-Documents, 11–12: where Mr Rashidi confirmed his separation from Ms Rezaei and that he was not residing in her house.
At all relevant times Ms Rezaei received payments on account of the family tax benefit at what might be characterised as the single rate, that is, at a rate calculated on the basis that she was not a member of a couple.
Of what did the Tribunal need to be satisfied?
The conclusions I have arrived at are expressed (albeit briefly) in terms of being satisfied or not satisfied of certain matters. This reflects the evidentiary burden that arises when a party seeks to alter what might be characterised as an accepted position. The Tribunal needs to be positively satisfied of the appropriateness of the change or shift in position[7] and, for that to occur, there needs to be material before the Tribunal sufficient to enable it to arrive at that state of satisfaction. Mere suspicion as to the appropriateness of the change or shift is not sufficient.[8]
[7] Toomey and Secretary, Department of Education, Employment and Workplace Relations, Re [2009] AATA 468 at [58]–[59].
[8] Lorraine Joy Shearing and Director-General of Social Security, Re [1983] AATA 116 at [30]. See also Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, 685 (Deane J).
In this matter, the accepted position entailed the receipt by Ms Rezaei of payments on account of the family tax benefit at the single rate, that is, at a rate calculated on the basis that she was not a member of a couple.
A determination in Ms Rezaei’s favour had been made under s16 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Administration Act).[9]
[9] Respondent’s further submissions of 21 November 2019.
Pursuant to that section, if a claim is made for payment of a family tax benefit by instalment, a determination must be made that the claimant is entitled to be paid the benefit for each day on which the determination is in force (assuming eligibility for the benefit under certain provisions of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act)). Such a determination so made remains in force “at all times afterwards”,[10] albeit that it is subject to variation in certain circumstances.
[10] Administration Act s21(1).
The Respondent seeks to establish a case against that accepted position. Its case is that Ms Rezaei had no family tax benefit entitlement in respect of the zero entitlement years and only a qualified entitlement in the excess payment years.
In order for the Respondent to be successful, the material before the Tribunal needs to be such as to enable it to be positively satisfied of the loss of Ms Rezaei’s family tax benefit entitlement in the zero entitlement years or the qualification of that entitlement in the excess payment years.[11]
[11] George; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and [2011] AATA 91 at [36] citing McDonald v Director-General of Social Security (1984) 6 ALD 6, 11. See also Comcare v Power (2015) 149 ALD 286, 298 at [63].
Zero entitlement years
The Respondent submits that Ms Rezaei had no family tax benefit entitlement in respect of any zero entitlement year.
If that submission were to be accepted, Ms Rezaei would owe a debt due to the Commonwealth for all family tax benefit payments made to her in relation to each zero entitlement year.[12] Indeed, the amount of the debt which the Respondent decided to raise and recover from Ms Rezaei in relation to each zero entitlement year reflected the sum of the amounts paid to her by way of family tax benefit in relation to that year.[13]
[12] Administration Act s71(1).
[13] T147, T-Documents, 473.
On the material before me, however, I am not positively satisfied of the validity of the Respondent’s submission.
Initially, the loss of Ms Rezaei’s family tax benefit entitlement in relation to the relevant years was said by the Respondent to be because she and/or Mr Rashidi had, in relation to each relevant year, failed to lodge a tax return or advise that she or he (as applicable) was not required to do so.[14] Section 32AE of the Administration Act was said to provide that there is no entitlement to a family tax benefit in the event of such a failure.[15] This is not, however, what s32AE provides.
[14] Respondent’s statement of facts issues and contentions at 5.1(b) and 5.83(b).
[15] Ibid at 5.78.
While under the section a person may lose his or her family tax benefit entitlement for a certain period in certain circumstances:
·There is a precondition to this loss of entitlement, being three or more variations to the relevant entitlement determination under s28(2) of the Administration Act.[16]
·In order for the section to apply there must have been a requirement to lodge a tax return and a failure to observe that requirement.[17] The relevant circumstances do not include a failure to have advised of there being no requirement to lodge a tax return.
[16] Administration Act s32AE(1).
[17] Administration Act s32AE(3).
In advance of the hearing of this proceeding on 30 October 2019 the parties were, on 21 October 2019, invited by the Tribunal to make further submissions, noting a lack of clarity in the material then before the Tribunal as to the basis on which it might be said that s32AE operated in the circumstances.
Pursuant to that invitation the Respondent provided a submission on 28 October 2019 (October 19 submission).
In that submission, the Respondent continued to rely on s32AE as the basis for its contention that Ms Rezaei had no family tax benefit entitlement in the zero entitlement years.
This time, however, the Respondent did not suggest that a failure to advise of there being no requirement to lodge a tax return was of any relevance to the section’s operation, albeit the Respondent continued to rely on non-lodgement of a return as a condition of s32AE (and of s28). The Respondent also acknowledged that the section required that there have been three or more s28(2) determination variations and contended, in relation to Ms Rezaei’s determination, that there had been six such variations.
The Respondent contended that the six determination variations under s28(2) arose because of the non-lodgement of tax returns. No reference was made in the October 19 submission to that aspect of the section which renders it conditional on there being a requirement to lodge a return.
While not suggesting that a failure to advise of there being no requirement to lodge a tax return was of any particular relevance to the operation of s32AE, the Respondent nevertheless contended that, in order to receive a family tax benefit, that advice had to be provided. In this regard, the Respondent referred to 6.4.3 of the Family Assistance Guide (the Guide). There it is said that an individual claiming a family tax benefit “…is required to lodge an income tax return or inform Centrelink if it is determined that they are not required to lodge…”.[18] 6.4.3 goes on to suggest that a non-lodger debt will be raised if the requirement is not met.
[18] Department of Social Services, Family Assistance Guide version 1.216 (2 January 2020), Guides to Social Policy Law < (the Guide).
Despite 6.4.3, I reject the Respondent’s contention. In its terms, 6.4.3 does not purport to impose a requirement; it simply refers to a requirement without identifying the source of it. The Guide cannot be that source. It provides guidance as to the manner of exercise of administrative discretion.[19] It is intended simply to assist in an understanding of the law and policy, and its application.[20] Of itself, it cannot operate so as to impose conditions on a legal entitlement. At the hearing of this proceeding I asked that the Respondent identify that source. Other than the Guide, no source has been identified.[21]
[19] Mosaui and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 715 at [54] quoting Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 at [640] (Brennan J).
[20] See Department of Social Services (2 January 2020), Guides to Social Policy Law < where the purpose of the Guides is to “… assist decision makers administering social policy law. The purpose of each Guide is to support decision making by assisting in understanding the related law and policy, and its application. Decision makers must base their decisions on the relevant law, with regard to the Australian Government's policy and intent.”
[21] My suspicion is that the Respondent might have had in mind the operation of s32A of the Administration Act and its associated provisions. As I understand it, the effect of those provisions is to preclude inclusion of the family tax benefit supplement A in the calculation of family tax benefit entitlements unless and until certain reconciliation conditions are satisfied at a particular time, which, in the case of a person not required to lodge a tax return (s32J), may vary depending on when and if notification is given by the person of his or her adjusted taxable income (Synnes and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 338 at [29]; Afghani and Secretary, Department of Social Services (Social services second review), Re [2017] AATA 410 at [13]). This was not, however, put to me and there was not enough information before me on which I could be satisfied as to whether and, if so, how the relevant provisions would operate in the circumstances.
Reference was made in the October 19 submission to several provisions of the Administration Act not referred to in the Respondent’s Statement of Facts, Issues and Contentions (and not again referred to in the Respondent’s written submission made after the hearing).
In particular, the Respondent:
· Contended that ss32C and 32D of the Administration Act obliged individuals to lodge their tax returns, absent special circumstances. I reject this contention. Those sections do not impose such an obligation. In any event, those sections appear to be of relevance to the non-payment of supplements to the family tax benefit unless and until certain reconciliation conditions are satisfied.[22]
· Appeared to contend that, under s32AA of the Administration Act, the Respondent was obliged not to make any family tax benefit payments to Ms Rezaei because of variations to the determination in her favour made under s28(2). As to this apparent contention, inherent in it is a proposition that such variations were made. I address that proposition later.
[22] Administration Act s32A(2).
In response to questions about the October 19 submission posed in the course of the hearing the Respondent sought, and was granted, an opportunity to provide further written submissions. I gave a direction about this. It was in the following terms:
The Tribunal NOTES:
1.The Respondent contends that part of the Applicant’s debt arises by application of section 32AE of the A New Tax System (Family Assistance) (Administration) Act 1999 and in turn that contention depends on the Respondent’s further contention that on six occasions section 28 of that Act has been applied to vary the Applicant’s entitlement to family tax benefits; and
2.The Respondent further contends that for the purposes of satisfying those sections a person who has not lodged a tax return in respect of an income year must notify the Respondent that they are not required to lodge a tax return for that income year.
The Tribunal DIRECTS:
1.On or before 14 November 2019,[23] the Respondent must lodge with the Tribunal and serve on the Applicant, written submissions directed to identifying the matters to be established in so applying sections 32AE and 28, and identifying how those matters have been established; …
[23] A date subsequently changed at the Respondent’s request to 21 November 2019.
Pursuant to that direction the Respondent provided a submission on 21 November 2019 (November 19 submission). In it the Respondent maintained its position that Ms Rezaei had no family tax benefit entitlement in the relevant years because of the operation of s32AE of the Administration Act.[24]
[24] November 19 submission, 7 [3.40].
As indicated earlier, s32AE may only apply where there has been three or more variations to a family tax benefit determination under s28(2) of the Administration Act (as the Respondent accepts).[25]
[25] Ibid 6 [3.35].
The Respondent contends that six s28(2) variations were made in relation to Ms Rezaei’s determination.[26]
[26] Ibid [3.36]–[3.37].
I am not satisfied, however, that there were any such variations. In particular, I am not satisfied that there was, in the circumstances, a capacity to vary Ms Rezaei’s determination under s28(2).
As the Respondent accepts,[27] in order for there to have been a capacity in the circumstances to vary Ms Rezaei’s determination, it would have been necessary, that:
·Ms Rezaei (or, if she and Mr Rashidi were then a couple, Mr Rashidi) have been required to lodge an income tax return for the relevant year;
·Ms Rezaei (or, if she and Mr Rashidi were then a couple, Mr Rashidi) have failed to lodge the return within a particular time-frame; and
·An assessment under the Income Tax Assessment Act 1936 of the taxable income of Ms Rezaei (and, if she and Mr Rashidi were then a couple, of Mr Rashidi) not have been made by a particular time.
[27] Ibid 5 [3.27].
These requirements are cumulative. If on the material before me I am not satisfied that one of them is met, I cannot then be satisfied that there was a capacity to vary Ms Rezaei’s determination under s28(2).
I am not satisfied that the first requirement is met. That is, I am not satisfied on the material before me that Ms Rezaei or Mr Rashidi was required to lodge a tax return in relation to each of the zero entitlement years in respect of which it is contended by the Respondent that she or he (as applicable) failed to lodge a return.[28]
[28] I note that the Respondent appears to be contending that there was such a failure by Ms Rezaei in relation to two only of the six zero entitlement years, with the failure being on the part of Mr Rashidi in relation to the other four years: ibid 4 [3.18]–[3.19].
While the Respondent asserts that they were so required,[29] its own submission does not support that assertion. Rather, the Respondent simply notes that Ms Rezaei and Mr Rashidi would have been required by s161(1) of the Income Tax Assessment Act 1936 to lodge a return if he or she is a person described in certain instruments. The Respondent does not contend that she or he is a person so described and,[30] on the material before me, I am unable to determine whether she or he is such a person.
[29] ibid 5–6 [3.28(b)].
[30] Ibid 3 [3.11]–[3.12].
The Respondent contends that Ms Rezaei and Mr Rashidi should be taken to be required to lodge a tax return, absent receipt of notification that she or he was not required to do so.[31] This presumption is said to arise as a result of the operation of 6.4.3 of the Guide.
[31] Ibid [3.13] and [3.15].
I do not agree. A requirement to lodge a tax return is a clear, express, precondition to the capacity to vary a family tax benefit determination under s28 of the Administration Act. Given the nature and purpose of the Guide (as previously outlined), it cannot alter the conditions under which a legislative power or obligation is exercisable or arises.
While unnecessary to address it, I am also not satisfied that the third requirement is met. That is, I am not satisfied on the material before me that there was no assessment under the Income Tax Assessment Act 1936 of the taxable income of Ms Rezaei (and, if she and Mr Rashidi were then a couple, of Mr Rashidi) in relation to each zero entitlement year in respect of which it is contended by the Respondent that she or he (as applicable) failed to lodge a return.
The Respondent appears to contend that an assessment could not have been issued in relation to each such year as no income information had been provided by Ms Rezaei (or, as applicable, Mr Rashidi) in relation to that year.[32]
[32] Ibid 5 [3.23]–[3.25].
I reject this contention. The making of an assessment is not conditional on lodgement of a tax return. For instance, default in lodging a return might result in an exercise of the Commissioner of Taxation’s power to issue an assessment under s167 of the Income Tax Assessment Act 1936.
Even if I were to be satisfied that there is a capacity to vary Ms Rezaei’s determination under s28(2) in relation to any of the zero entitlement years, it is not clear from the material before me that the capacity was ever exercised (although I come to no conclusion on this issue).
First, there is nothing in the material before me indicating observance of the process relating to a s28 variation contemplated in the Guide. In particular, adoption of that process would appear to have required preliminary advice concerning the lodgement of a tax return[33] and the issue of a “variation of entitlement” notice allowing a 75 day grace period to resolve “non-lodger status”.[34]
[33] The Guide topic 6.4.3.20.
[34] Ibid 6.4.3.
Second, a notice of any variation under s28 would have to have been given to Ms Rezaei stating the effect of the variation and that she could apply for review of the variation decision in the manner set out in Part 5 of the Administration Act. As to this, the Respondent contends that six such notices were given.[35] The notices to which the Respondent refers, however, were accounts payable in which no reference is made to either a variation or s28.
[35] November 19 submission, 6 [3.31].
Quite apart from its contentions concerning s28 variations (and s32AE), the Respondent appears to contend that Ms Rezaei’s family tax benefit determination could have been varied under another provision of the Administration Act. Reference was made to s29 which was said to be applicable because of a failure or refusal to provide information which Ms Rezaei and Mr Rashidi were required to provide under s161 of the Income Tax Assessment Act 1936.[36]
[36] Ibid 4 [3.20]–[3.21].
The reason for this contention is unclear. It was not accompanied by any suggestion that any power under s29 to vary Ms Rezaei’s determination was ever exercised in the circumstances and, on the material before me, I am not satisfied that it was.
I turn now to address the debts sought to be raised and collected in relation to the excess payment years.
Excess payment years: general context
As I stated earlier, the Respondent submits that the amount by way of family tax benefit paid to Ms Rezaei in relation to each excess payment year exceeded the amount of the benefit to which she was entitled in relation to that year.
In making that submission the Respondent relies on a contention that Ms Rezaei and Mr Rashidi were a couple in relation to each relevant year.
This contention is of relevance because Ms Rezaei’s eligibility for, and the amount of, her family tax benefit is, in part, a function of her “adjusted taxable income”.[37] The income to be taken into account in calculating an individual’s adjusted taxable income includes, if a person is a member of a couple, the adjusted taxable income of the other member of the couple.[38]
[37] Family Assistance Act sch 3 cl 1.
[38] Ibid cl 3(1): “For the purposes of this Act (other than Part 4 of Schedule 1), if an individual is a member of a couple, the individual’s adjusted taxable income for an income year includes the adjusted taxable income for that year of the individual’s partner.”
Hence, if, as the Respondent contends, Ms Rezaei was a member of a couple in relation to the excess payment years, income derived by the other member of the couple (being, according to the Respondent, Mr Rashidi) ought to have been taken into account in calculating the amount of Ms Rezaei’s family tax benefit.
Mr Rashidi’s income was not so taken into account. As a result, the amount paid to Ms Rezaei by way of family tax benefit in respect of each excess payment year is said by the Respondent to have exceeded the amount to which she was entitled in relation to that year, with the amount of the excess[39] being a debt due to the Commonwealth.[40]
[39] See the amount as calculated by the Respondent in T147, T-Documents, 474.
[40] Administration Act s71(2).
It is not disputed that if, indeed, Ms Rezaei and Mr Rashidi were a couple in relation to each excess payment year, the amount by way of family tax benefit paid to Ms Rezaei in respect of the year exceeded her family tax benefit entitlement by the amount of the debt which the Respondent has sought to raise against Ms Rezaei in relation to the year.
Hence, the Tribunal is not confronting a calculation issue. Indeed, the question in issue with respect to the excess payment years is simply whether Ms Rezaei and Mr Rashidi were a couple in relation to those years.
As I stated earlier, I have concluded that they were.
What is a couple?
Under the Family Assistance Act the member of a couple concept has the meaning given to it in the Social Security Act 1991.[41]
[41] Family Assistance Act s3.
Under the latter act a person who is legally married to another (such as Ms Rezaei) will, in the context of a proceeding before the Tribunal, constitute a member of a couple unless:
·in the Tribunal’s opinion, the relevant persons are living separately and apart from each other on a permanent or indefinite basis;[42] or
·even if they are not living separately and apart from each other on a permanent or indefinite basis, the Tribunal is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple.[43]
[42] Social Security Act 1991 s4(2).
[43] Ibid, ss4(6) and 24.
I address later the question of whether there is a special reason not to treat Ms Rezaei as a member of a couple.
As for the first exclusion to married persons being members of a couple, it depends very much on the separately and apart concept. There are a number of aspects to that concept.
First, the applicability or otherwise of that concept to a particular situation is not determined by the subjective views of the persons concerned. While those subjective views are of importance,[44] they need to be considered in the light of objective indicators as to the nature of the relevant persons’ relationship.[45] (As an aside, I do not doubt that Ms Rezaei is genuine in her view that she and Mr Rashidi were not a couple at all relevant times. In concluding that they were, however, I do not intend to suggest any dishonesty on her behalf. Quite to the contrary, when regard is had to where her interests lay, at the hearing of this matter, Ms Rezaei was, in some respects, ruthlessly honest.)
[44] Boskoski and Secretary, Department of Social Services, Re [2014] AATA 915 at [63].
[45] Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re (2011) 54 AAR 188, 195 at [27].
Second, a couple of propositions are of lesser and greater assistance in identifying when the concept applies. One proposition is that persons are unlikely to be considered to be living separately and apart from each other on a permanent or indefinite basis if they maintain a marriage-like relationship.[46] This proposition might be said, however, to do little to advance the cause of analysis. This is because the concept of a marriage-like relationship is ephemeral; what it is composed of varies from couple to couple.[47] Of more assistance is a second proposition to the effect that two persons are more likely to be a couple if the relationship they share differs from that which they have with anyone else.[48]
[46] Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, 555–6 at [46].
[47] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 175; see also, Sperring and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 1050 at [70] where Senior Member Isenberg acknowledged the difficulty is ascertaining whether a particular relationship was marriage-like.
[48] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22, 28at [30]; cf Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428: where what would appear to be a unique relationship between persons living under one roof was nevertheless not such as to constitute them as a couple.
This second point leads on to a third. The nature of a person’s relationship with another is not determined by physical aspects of the relationship. The subsistence of a marriage-like relationship is not a function of ongoing physical proximity:[49] “What must be considered is not only whether the parties live separately, in physical terms, albeit under one roof, but also whether their de facto relationship (the consortium vitae) has broken down.”[50] In an oft cited[51] decision of Watson J, His Honour stated that
“…‘separation’ means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention or alternatively act as if the marital relationship has been severed.”[52]
[49] Utczas and Secretary, Department of Social Security, Re [1989] AATA 756 at [11]; Dimov and Secretary, Department of Family and Community Services, Re [2005] AATA 912 at [31].
[50] Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2011] AATA 5 at [64].
[51] See, eg, Kettlewell and Secretary, Department of Social Services (Social services second review), Re [2018] AATA 8 at [18]; Mosaui and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 715 at [38].
[52] In the Marriage of Todd (No.2) (1976) 9 ALR 401, 403.
More succinctly, the living separately and apart concept denotes both a physical and mental element, with the mental element being independent of the physical one.[53] Hence, the maintenance of separate physical residences does not preclude a finding that the persons concerned are a couple. [54]
[53] SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1, 13 at [55]–[56]; Melvin v Secretary, Department of Social Security [2016] FCA 375 at [83].
[54] Dimov and Secretary, Department of Family and Community Services, Re [2005] AATA 912 at [31]; SZOXP v Minister For Immigration and Border Protection (2015) 231 FCR 1, 13 at [55]–[57].
Four, the Tribunal’s opinion as to whether persons are living separately and apart is one required to be formed having regard to certain specific considerations, albeit considerations which are not exhaustive.[55] “[A]ll the circumstances of the relationship” must be considered, having regard to the relevant persons’ “interpersonal relationship as a whole.”[56]
[55] Social Security Act 1991 s4(3).
[56] Melvin v Secretary, Department of Social Security [2016] FCA 375 at [19] citing Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [46].
The specific considerations to which regard must be had are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the issue of any sexual relationship and the nature of the commitment which the persons who are members of the putative couple have to each other.
Financial aspects
In looking to the financial aspects of the relationship between Ms Rezaei and Mr Rashidi with respect to the excess payment years, consideration needs to be given to:
·any joint ownership of real estate or other major assets and any joint liabilities;
·any significant pooling of financial resources especially in relation to major financial commitments;
·any legal obligations owed by one person in respect of the other person; and
·the basis of any sharing of day‑to‑day household expenses.
The evidence before the Tribunal does not suggest that Ms Rezaei jointly owned any real estate or other major asset with Mr Rashidi at any relevant time. (In a claim form completed by Mr Rashidi in early October 2018[57] he suggested that he and Ms Rezaei were jointly entitled to cash which he then held. Given the amount of that cash, however, I do not consider it to be a major asset.)
[57] T111,T-Documents, 380.
Ms Rezaei and Mr Rashidi did (and do), however, share a significant joint liability. In particular, in May 2013, the property in Eltham was purchased in Ms Rezaei’s name using, primarily, funds she and Mr Rashidi jointly borrowed, but also funds both she and Mr Rashidi contributed.
The contribution of their own funds to the purchase of the Eltham property reflected a pooling of their financial resources; it plainly involved “…more than financial cooperation or separate contributions to different elements of household expenditure.”[58] It reflected their having put resources into a common fund, combining resources for a common benefit.[59] (Here the benefit in common was the provision of residential accommodation for the two children of their marriage, as well as for Ms Rezaei.)
[58] Pelka v Secretary, Dept of Family and Community Services (2006) 151 FCR 546, 556 at [52].
[59] Vo and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 2341 at [29] citing Pelka.
In addition, their joint borrowing of funds to purchase the Eltham property not only gave rise to material, ongoing, joint liabilities but also to significant legal obligations between them.
In particular, Mr Rashidi had agreed with Ms Rezaei that he would make the payments due with respect to the borrowed funds in lieu of him paying child support (albeit that those payments significantly exceeded the amount that would have been payable by Mr Rashidi in respect of child support). Even if this agreement was not legally binding (noting that the evidence before the Tribunal was not such as to enable a finding on this issue one way or the other), the mere fact of their joint borrowings would be sufficient to have given rise to significant, mutual, legal obligations. As joint debtors they would each have a right of contribution exercisable against the other of them,[60] as well as a statutory right of indemnity should one of them satisfy the joint liability.[61]
[60] Albion Insurance Co Ltd v Government Insurance Office of New South Wales (1969) 121 CLR 342 at 350.
[61] Supreme Court Act 1986 (Vic) s52.
As for the sharing of household expenses, as will become apparent from my comments on the “nature of the household” consideration, I have found that Ms Rezaei and Mr Rashidi maintained separate households in the four financial years that comprise the excess payment years. I accept Ms Rezaei’s evidence that the day-to-day expenses of those separate households were not, as a general rule, shared.[62]
[62] Exhibit A1: “That left me with everything else-all the bills, school fees, school uniform, groceries, etc”.
Despite not sharing household expenses, I nevertheless find that, overall, the financial aspects of Ms Rezaei and Mr Rashidi’s relationship are such as to support a conclusion that they were not living separately and apart in relation to the excess payment years. Together they voluntarily entered into significant,[63] long-term, arrangements roughly 10 years after their supposed separation in around 2004 in order to obtain residential accommodation for their children and for Ms Rezaei.
[63] Compare the joint tenancy arrangement considered in DTDJ and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 4295 at [25].
The nature of the household
In looking to the nature of Ms Rezaei’s household consideration needs to be given to:
·any joint responsibility for providing care or support of children;
·the living arrangements of the people; and
·the basis on which responsibility for housework is distributed.
I find that Ms Rezaei and Mr Rashidi accepted joint responsibility for providing care and support of their children. It was a joint responsibility albeit that, under its auspices, they each had an accepted, discrete, role.
Ms Rezaei’s role entailed the performance of a range of household tasks for the children such as cooking and cleaning, as well as attending to the funding of ongoing, “operational” expenditure, such as for utilities.
Mr Rashidi’s role principally entailed the provision and maintenance of adequate accommodation. Not only did he accept responsibility for meeting payments on the significant borrowings undertaken to acquire a home for Ms Rezaei and their children, he renovated that home after its acquisition to make it more suitable for their occupation and thereafter maintained the home.
The provision and maintenance of accommodation was not, however, Mr Rashidi’s only role in relation to his and Ms Rezaei’s two children. According to Ms Rezaei, Mr Rashidi at all times supported their two children. Ms Rezaei provided particulars of that ongoing support. For example:
·While Ms Rezaei would drop their two children off to school, it was Mr Rashidi who, throughout their schooling, would generally pick them up after school.
·Mr Rashidi often funded non-recurring significant expenditure items, such as new television sets for use in Ms Rezaei’s family home.
·Mr Rashidi began to reside next door to his children’s home in order to be close if something happened or simply to check on things. I infer from this that an aspect of the role accepted by Mr Rashidi in relation to his children involved affording them (and also Ms Rezaei) a level of security.
As for Ms Rezaei’s and Mr Rashidi’s living arrangements, in arriving at the AAT first review decision, the Tribunal was not satisfied that they had been living in separate residences (despite what was thought to be somewhat inconsistent evidence of Ms Rezaei and Mr Rashidi to the contrary).
The evidence of their having lived in separate residences has, however, now been corroborated, in particular by way of:
·An email from one of their daughters confirming the fact of the separation since her early childhood;[64]
·An undated, unsigned, statement from a Mr Vlahos, which appeared to confirm an initial separation “back in 2004/2005” and a subsequent separation;[65]
·An undated, unsigned, statement from a Mr Kent, which appeared to confirm that Mr Rashidi had resided with him at an address adjacent to Ms Rezaei’s address since August 2015;[66]
·An undated statement from a person representing himself as Ms Rezaei’s brother purporting to confirm that Ms Rezaei and Mr Rashidi had been separated for over 10 years;[67] and
·An undated statement from a person representing himself as a relative of Mr Rashidi also purporting to confirm that separation.[68]
[64] Exhibit A2.
[65] Exhibit A6.
[66] Exhibit A3.
[67] Exhibit A4.
[68] Exhibit A5.
While this corroborating material is not individually of significant probative value (given that by and large it is unsigned and undated, and certainly untested), in aggregate and along with the evidence provided by Ms Rezaei, it is sufficient for me to be satisfied (and I so find) that Ms Rezaei and Mr Rashidi resided in separate households throughout the excess payment years (albeit that Mr Rashidi would occasionally stay the night at Ms Rezaei’s house, sleeping on the couch, and, on special occasions, share meals with Ms Rezaei and their children).[69]
[69] T3, T-Documents, 10.
I arrive at this finding despite Mr Rashidi having stated in October 2018 that his address was that of Ms Rezaei’s Eltham home[70] and despite several evidentiary inconsistencies (such as Mr Kent stating that Mr Rashidi had moved into his Eltham home in August 2015 when Mr Rashidi stated that he moved into Ms Rezaei’s Eltham address in April 2015[71]).
[70] T111, T-Documents, 376.
[71] Ibid.
As for the basis on which responsibility for housework is distributed, while Ms Rezaei accepted responsibility for housework (including cooking and cleaning) in relation to her, and her children’s, accommodation, she did not accept any responsibility for housework in relation to Mr Rashidi’s accommodation.
Despite Ms Rezaei and Mr Rashidi’s acceptance of a joint responsibility in relation to their children I find that, overall, the circumstances concerning the nature of the household maintained by Ms Rezaei during the excess payment years were such as to support a conclusion that they were then living separately and apart.
Social aspects of the relationship
In looking to the social aspects of Ms Rezaei and Mr Rashidi’s relationship, consideration needs to be given to:
·whether they hold themselves out as married to, or in a de facto relationship with, each other;
·the assessment of their friends and regular associates about the nature of their relationship; and
·the basis on which they make plans for, or engage in, joint social activities.
As for how Ms Rezaei represented her relationship with Mr Rashidi to others during the excess payment years, she would describe them as a couple or as simply the father of her children.[72] It is her perspective that they were always husband and wife and this, I infer, would have influenced the way she would have represented their relationship to third parties.
[72] T3, T-Documents, 10 at [15].
As for Ms Rezaei’s relatives, she has two siblings in Australia, one of whom appears to have provided an undated statement purporting to confirm that Ms Rezaei and Mr Rashidi had been separated for over 10 years.[73] According to Ms Rezaei, however, while her family members were aware that she and Mr Rashidi lived separately, they would have still considered her and Mr Rashidi to be a couple as Mr Rashidi is the father of her children.[74]
[73] Exhibit A4.
[74] T3, T-Documents, 10.
As for Mr Rashidi, while a couple of his friends were said to have been aware that he had separated from Ms Rezaei,[75] I conclude that his friends and family would not, as a general rule, have considered that he had separated from Ms Rezaei.
[75] As reflected in the undated, unsigned, statement from a Mr Vlahos: Exhibit A6.
According to Ms Rezaei, the move by Mr Rashidi to live with his parents was discreet in the sense that Mr Rashidi wanted to be able to explain to the rest of his family that he only did it to look after his sick father and no-one, not even Mr Rashidi’s siblings, knew of the separation.[76] This is consistent with Mr Rashidi’s evidence that, while his Australian relatives were probably aware that he and Ms Rezaei had lived separately, he tried not to talk about it with them[77] (noting, however, that the Tribunal now has before it an undated statement from a person representing himself as a relative of Mr Rashidi also purporting to confirm that Ms Rezaei and Mr Rashidi had been separated for over 10 years).[78]
[76] Exhibit A1.
[77] T3, T-Documents, 12 at [27].
[78] Exhibit A5.
This reluctance to disclose their separation to third parties or, put another way, this desire to hide their marital difficulties, is reflected in Ms Rezaei’s evidence that she and Mr Rashidi would unite for family events and outings.[79]
[79] Exhibit A1.
Other than those family events and outings, the evidence does not suggest that Ms Rezaei and Mr Rashidi jointly engaged in social activities during the excess payment years. Nor, however, does it suggest, at least with respect to Ms Rezaei, that any significant social outings were engaged in individually.
I find that, overall, the circumstances concerning the social aspects of the relationship during the excess payment years were such as to offer some, but not significant, support for the conclusion that they were not then living separately and apart.
Any sexual relationship
Evidence was given at the time of the hearing which resulted in the AAT first review decision that there had been no sexual aspect to Ms Rezaei and Mr Rashidi’s relationship for at least two years.
I infer, therefore, that there had been a sexual aspect to their relationship at some time during the excess payment years, an inference supported by Ms Rezaei’s evidence at the hearing of this proceeding. That evidence suggested, however, that this aspect of their relationship was very limited, if not reflective of a one-off occurrence.
Given this, I find that this consideration was such as to support a conclusion that Ms Rezaei and Mr Rashidi were living separately and apart in relation to the excess payment years.
Nature of commitment to each other
In looking to the nature of Ms Rezaei and Mr Rashidi’s commitment to each other consideration needs to be given to:
·the length of the relationship;
·the nature of any companionship and emotional support that they provide to each other;
·whether they consider that the relationship is likely to continue indefinitely; and
·whether they see their relationship as a marriage‑like relationship or a de facto relationship.
Having been married in 1998, Ms Rezaei’s relationship with Mr Rashidi was long term. Clearly, Ms Rezaei was concerned to maintain that relationship for the sake of their children. Her evidence at the hearing of this proceeding was that:
·she was trying to make her relationship with Mr Rashidi work “for the family”;
·she did not want a divorce as her children needed a father;[80] and
·she and Mr Rashidi were just thinking about the future for their children.
[80] In Exhibit A1: Ms Rezaei stated that she did not want her children not to have a father in their lives.
The concern to maintain a household for the family is evident from material before the Tribunal submitted by one of the two children of the marriage.[81] In that material, a daughter stated that Ms Rezaei and Mr Rashidi “had always wanted us to be part of a united loving family”.
[81] Exhibit A2.
This concern of itself might be considered suggestive of a marriage-like relationship.[82]
[82] See, eg, Beverley Sybil Anderson and Secretary, Department of Social Security, Re [1993] AATA 172. In that case persons were considered to comprise a couple where they set aside their interpersonal difficulties in order to maintain “some kind of family relationship” (at [55]) “in the interests of the children” (at [59]).
In In the Marriage of Pavey,[83] it was said that "[t]he nurture and support of the children of the marriage [w]as a constituent element of the marital relationship." In Milovanovic,[84] Senior Member Professor Shearer stated that “[w]hile one would not want to lay down a rule that joint care of a child automatically disqualifies a person from being regarded as anything other than a couple for the purposes of the Act, there was evidence in the present case that there was a significant degree of dependence by Mrs Milovanovic on the continued existence of the relationship, and especially its financial aspects, in caring for their son.”
[83] (1976) 25 FLR 450 at 455 cited and adopted in Micallef and Secretary, Department of Family and Community Services, Re [2004] AATA 485 at [27].
[84] Milovanovic and Secretary, Department of Employment and Workplace Relations, Re [2006] AATA 930 at [32].
I recognise, however, that a relationship between parents founded simply on a desire to care for their children might simply be characterised as one reflective of a commitment to the children as opposed to a commitment to each other.[85]
[85] Secretary, Department of Education, Employment and Workplace Relations and Hitchcock and Anor, Re [2008] AATA 677; Secretary, Department of Employment and Workplace Relations and Gilson, Re [2007] AATA 1361; Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor, Re [2010] AATA 284.
Here, however, I find that the relationship Ms Rezaei had with Mr Rashidi went well beyond one solely concerned with their children. In particular, throughout the excess payment years, she was given considerable support by Mr Rashidi while she gave significant support to him.
Quite apart from the support they indirectly provided each other by sharing responsibility for their children, Ms Rezaei’s evidence was that:
·when they separated Mr Rashidi had committed to support “his children and me” in times of desperate need;[86]
·Mr Rashidi had always supported her (consistent with the Eltham property being in Ms Rezaei’s name despite the fact that Mr Rashidi was meeting the mortgage loan payments);
·Mr Rashidi is her support and that is the reason they could not completely divorce;[87]
·Mr Rashidi had at all times assisted with the funding of more expensive items such as repairs to her car;
·Ms Rezaei had supported Mr Rashidi in setting up his business and with various medical appointments (as reflected in the fact that Mr Rashidi listed Ms Rezaei’s home address as the address of his business);[88] and
·Mr Rashidi lived next door to her residence so that he could check on things (or be close in case something happens)[89] and, in so doing, no doubt provided a measure of support to Ms Rezaei.
[86] Exhibit A1.
[87] T3,T-Documents, 11 at [23].
[88] T3, T-Documents, 11; Exhibit A1: “…we decided to make his business’ billing address the same as ours just to save him the trouble of getting a P.O. box…”
[89] T3, T-Documents, 12
I also find that both Mr Rashidi and Ms Rezaei considered that their relationship was one likely to continue indefinitely.
As for Mr Rashidi, he saw no reason to seek another relationship.[90] As for Ms Rezaei, despite having been already separated for around 14 years, in the separation details she provided to Centrelink in October 2018 she indicated she was unsure as to whether she and Mr Rashidi would get back together and that she was “currently trying to figure things out.”[91] In an undated statement provided to the Tribunal in July 2019 Ms Rezaei said she “was always optimistic and wanted to try and make it work for the family, I have always been open to letting him in and working things out…”.[92] This is in the context of a relationship that had endured for a long time despite some turbulence, without either of them having obtained (and, at least in the case of Ms Rezaei, having sought) a new partner.[93] According to Ms Rezaei, she had had no other partner; there was no-one else in her life other than Mr Rashidi.
[90] Ibid.
[91] T140, T-Documents, 452.
[92] Exhibit A1.
[93] T3, T-Documents, 11–2.
As for how they see their marriage, Mr Rashidi apparently considered Ms Rezaei always to be his “de facto”.[94] As for Ms Rezaei, in characterising her relationship with Mr Rashidi, as far as she was concerned, she and Mr Rashidi were husband and wife.
[94] Ibid 9; T111, T-Documents, 377.
As with the situation considered in Bozdag, it “is plain from the evidence…” that Ms Rezaei and Mr Rashidi
“…come together for their children; they support each other emotionally and financially. I am satisfied that their relationship goes beyond mere cooperation… The marriage, albeit perhaps not a ‘happy’ marriage, is still a marriage, with many of the indicia of a marriage.” [95]
[95] Bozdag and Secretary, Department of Social Services (Social services second review), Re [2016] AATA 765 at [46].
I find that the circumstances concerning the nature of Ms Rezaei and Mr Rashidi’s commitment to each other during the excess payment years were such as to support a conclusion that they were not then living separately and apart.
Conclusion as to living separately and apart issue
Despite not all the considerations to which I am required to have regard pointing in the same direction[96] I find that the relationship Ms Rezaei had with Mr Rashidi in the excess payment years was, on balance, marriage-like, different from any other relationship Ms Rezaei had.
[96] Cf Sperring and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 1050 at [70]: “As observed in Cullinane (where there was found to be a marriage-like relationship) being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple.”
While the physical aspect of the living separately and apart concept may have been satisfied in the excess payment years, the mental aspect was not.
Accordingly, in relation to the excess payment years, I conclude that Ms Rezaei did not live separately and apart from Mr Rashidi on a permanent or indefinite basis.
Events that occurred after 30 June 2016 (ie, after the last of the excess payment years) are consistent with this conclusion. I refer, in particular, to the following facts:
· The “couple” and their children travelled together overseas in June and July 2018.
· Mr Rashidi paid for that trip, or at least for most of it.
· On return from the trip in around July 2018 Ms Rezaei asked Mr Rashidi to stay in her Eltham home.
· As Mr Rashidi had been injured towards the end of that trip and was unable to work on his return to Australia, Ms Rezaei commenced paying for certain of his expenses (such as for petrol and for certain medical expenses), and on occasion deposited funds into his bank account.
· In October 2018, in a Centrelink claim form submitted by him,[97] Mr Rashidi identified Ms Rezaei’s home as his residential address and provided personal details as to her financial position and circumstances that, I infer, she willingly shared with him.
· Mr Rashidi now lives in Ms Rezaei’s Eltham home and has done so since around the time of the hearing which resulted in the AAT first review decision (that is, since in or around March 2019).
[97] T111, T-Documents, 376–83.
While I appreciate that, as a general rule, it is difficult to draw from events and circumstances occurring or subsisting at a particular time inferences about the situation subsisting at an earlier time, I nevertheless find that these facts (particularly when considered in the aggregate) do afford support for, or at least are consistent with, my conclusion that, in relation to the excess payment years, Ms Rezaei and Mr Rashidi did not live separately and apart.
Given this conclusion Ms Rezaei would be considered to be a member of a couple in relation to the excess payment years unless there was a special reason not to treat her as a member of a couple (an issue I address shortly).
2017 Year
The proposition that Ms Rezaei and Mr Rashidi were a couple is one which the Respondent put in relation to all relevant years, not only the excess payment years.
My findings in relation to the various aspects of Ms Rezaei and Mr Rashidi’s relationship with respect to the excess payment years apply equally to the zero entitlement years subject to one, significant exception and one qualification.
My finding that the financial aspects of Ms Rezaei and Mr Rashidi’s relationship were such as to support a conclusion that they were not living separately and apart relied principally on facts concerning the purchase of property in Eltham in May 2013 and the funding arrangements made in relation to that purchase.
That purchase and those arrangements were, however, remote from all of the zero entitlement years, other than the 2017 financial year. As such, that purchase and those arrangements have little to say about the financial aspects of Ms Rezaei’s relationship with Mr Rashidi in those years.
Given that remoteness, I do not find that those financial aspects were such as to support a conclusion that they were not living separately and apart in the zero entitlement years (other than the 2017 year).
Moreover, unlike the position that subsisted in relation to the excess payment years, Mr Rashidi did not live next door to Ms Rezaei in the zero entitlement years (other than the 2017 year) and, as such, the support and security he afforded by doing so was not provided in those years. As applied to the zero entitlement years (other than the 2017 year), this lends additional weight to my conclusion that the circumstances concerning the nature of the household maintained by Ms Rezaei were such as to support a conclusion that they were living separately and apart.
The foregoing shifts the result achieved in the balancing exercise conducted in determining whether Ms Rezaei and Mr Rashidi were a couple.
As for the zero entitlement years (other than the 2017 year), I am not satisfied that the relationship Ms Rezaei had with Mr Rashidi was then marriage-like, different from any other relationship Ms Rezaei had.
Hence, with the exception of the 2017 year, I am not satisfied that they were a couple in the zero entitlement years.
Special reason?
The Tribunal could determine not to treat Ms Rezaei as a member of a couple if it were to be satisfied that she ought not be treated as a member of a couple for a special reason in the particular case.[98]
[98] Social Security Act 1991 ss 4(6), 24(1).
It has not been contended, however, and it does not appear to me, that there is any such special reason in Ms Rezaei’s case.
The capacity to determine not to treat a person as a member of a couple if there is a special reason in the particular case has been said to be one that ought only be exercised as a last resort.[99] It is a discretionary power which “is not lightly to be enlivened.”[100]
[99] Mosaui and Secretary, Department of Social Services (Social services second review), Re [2019] AATA 715 at [50].
[100] Boscolo v Secretary, Department of Social Security (1999) 53 ALD 277, 281at [18].
The justification for a single person receiving more by way of benefits than a member of a couple “…is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple…”.[101] From this justification it may be inferred that a special reason might be considered to exist if a person is unable to benefit from the sharing of living costs, that is, if the members of the putative couple are unable to pool their resources.[102]
[101] Explanatory Memorandum, Social Security Legislation Amendment Bill (No 4) 1991 (Cth) at 17.
[102] Lyons and Secretary, Department of Social Services (Social services second review), Re [2018] AATA 3644 at [73]; see also Idlabi and Secretary, Department of Social Services (Social services second review), Re [2016] AATA 20 at [59].
Here, however, no legal or practical reason has been identified as to why Mr Rashidi’s income should be considered to be unavailable for pooling[103] (the identification of which would, in any event, be difficult to reconcile with the conclusion I arrived at earlier to the effect that there was at least some financial pooling taking place in the excess payment years).
[103] See Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [40], [42].
Resultant debt waived or written off?
Given the conclusions I have arrived at, Ms Rezaei is indebted to the Commonwealth in respect of the debts raised in relation to the excess payment years.
In this proceeding I may exercise powers of the underlying decision maker that are relevant to the decision under review,[104] which would include any power the decision-maker may have had to waive the Commonwealth’s right to recover or write off Ms Rezaei’s debts.
[104] Administrative Appeals Tribunal Act 1975 s43.
Is there, in this matter, a proper basis for exercising such a power and thereby departing from the expectation “that in the ordinary course money paid to people which they are not entitled to receive will be recovered...”?[105] I conclude that there is not. In particular, I am not satisfied that there should be a waiver of the right to recover the debts owed by Ms Rezaei or that they should be written off.
[105] Secretary Department of Social Services v Hales (1998) 51 ALD 695, 696.
In terms of waiver, the right to recover a debt in respect of an overpayment of family tax benefit might be waived in certain circumstances if the debt is solely attributable to an administrative error made by the Commonwealth.[106] In this proceeding it has not been submitted that the Commonwealth made such an error and nor, on the material before me, am I satisfied that such an error was made.
[106] Administration Act s97.
The right to recover a debt in respect of an overpayment of family tax benefit might also be waived in certain circumstances if there are “special circumstances (other than financial hardship alone) that make it desirable to waive”.[107] In this proceeding it has not been submitted that there are such special circumstances and nor, on the material before me, am I satisfied that there are such circumstances.
[107] Administration Act s101.
In terms of write off, power to write off a debt owed by Ms Rezaei might have arisen if: the debt was irrecoverable at law; Ms Rezaei has no capacity to repay it; Ms Rezaei’s whereabouts are unknown; or it is not cost effective to take action to recover the debt,[108] or (in certain circumstances) Ms Rezaei ceased to be a member of a couple after the excess payment year to which the debt relates.[109]
[108] Administration Act s95(2).
[109] Administration Act s95(4A).
Subject to Ms Rezaei’s submission concerning her relationship with Mr Rashidi, in this proceeding it has not been submitted that any of the circumstances in which a debt may be so written off apply and nor, on the material before me, am I satisfied that any such circumstances apply.
DECISION
The Tribunal decides to:
·Affirm each of the decisions under review as involved the raising and recovery of a debt in relation to an excess payment year;
·Set aside each of the decisions under review as involved the raising and recovery of a debt in relation to a zero entitlement year;
·Decide in substitution for each of the decisions under review as involved the raising and recovery of a debt in relation to a zero entitlement year (other than the year ending 30 June 2017) that amounts by way of family tax benefit paid to Ms Rezaei in relation to the year did not exceed her family tax benefit entitlement with respect to the year; and
·Remit the decision under review as involved the raising and recovery of a debt in relation to the year ending 30 June 2017 for reconsideration in accordance with a direction that any debt sought to be raised and recovered in relation to the year not be calculated on a “non-lodger” basis but, instead, be calculated on the basis that Ms Rezaei and Mr Rashidi were then a couple
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C.J. Furnell
....[sgd]....................................................................
Associate
Dated: 31 January 2020
Date of hearing: 30 October 2019 Date final submissions received: 26 November 2019 Applicant: In person Advocate for the Respondent: Anneliese Massey Solicitors for the Respondent: Sparke Helmore Lawyers
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