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

Saffoury and Secretary, Department of Social Services (Social services second review) [2021] AATA 3259 (9 September 2021)
Division:GENERAL DIVISION
File Number: 2019/6453
Re:Sultan Saffoury
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:9 September 2021
Place:Melbourne

The decision under review is varied, in so far as the Applicant has a Disability Support Pension debt of $104,658.36 for the period from 7 July 2011 to 28 February 2018, and otherwise affirmed.
........................................................................
Mr A. Maryniak QC, Member
Catchwords
SOCIAL SECURITY – disability support pension – overpayment – recovery – impact of bankruptcy – decision partially varied and otherwise affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security Act (Administration) 1999 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Australian Government’s Social Security Guide
REASONS FOR DECISION
Mr A. Maryniak QC, Member
9 September 2021
BACKGROUND

This is an application for review of a decision of the Social Services and Child Support Division of this Tribunal made on 27 August 2019, varying a decision of an authorised review officer (ARO) of 17 May 2019 by deciding that:
(a)the decision that the Applicant has a disability support pension (DSP) debt of $129,658.36 for the period from 7 July 2011 to 28 February 2018 is affirmed;
(b)Centrelink must gather relevant evidence about the details of the Applicant’s bankruptcy in 2012 and determine whether that part of the Applicant’s debt arising in the period 7 July 2011 to the date of bankruptcy is recoverable pursuant to the Social Security Act 1991 (Cth) (the Act); and
(c)that part of the Applicant’s debt arising from his date of bankruptcy is to be recovered.
The issues to be decided by this Tribunal are:
(a)whether the Applicant was overpaid DSP in the period of 7 July 2011 to 28 February 2018 (the debt period) and therefore has a debt for overpayment of DSP; and
(b)if so, whether all or part of the debt ought to be recovered, including if the Applicant’s bankruptcy has had an impact on the recovery of any part of the debt.
The 44-year-old Applicant was in receipt of DSP during the debt period.
The documentary evidence before the Tribunal comprised the T-Documents, the Supplementary T-Documents and various documents from the Applicant.[1] Oral evidence was given by the Applicant, the Applicant’s mother, Widad, and the Applicant’s sister, Lamees Jaba.
[1] Exhibit A1.
The following facts, as asserted by the Respondent, have been established on the evidence.
On 8 February 2010, the Applicant was made bankrupt following presentation of a debtor’s petition. He was discharged from bankruptcy on 9 February 2013.[2]
[2] T-Documents at T5/30.
During the debt period the Applicant was sent information notices which notified him of his obligation to advise Centrelink of any change in his circumstances, including income changes, and any information which impacted on his entitlement to receive DSP. The notices also put the Applicant on notice that providing false or misleading information was a serious offence.[3]
[3] T-Documents at T44/670-906.
On 4 November 2011 the Applicant lodged a form with Centrelink entitled ‘Income and Assets Update’ in which he responds ‘no’ to questions about whether he owns a home, whether he has any accounts in banks, building societies or credit unions and whether he has any cash or income from any other sources. He also responds ‘no’ to the question of whether he receives any other income or assets not already advised and that he does not work.[4]
[4] T-Documents at T4/21.
On 22 February 2012 the Applicant lodged a form with Centrelink stating that he no longer owned the property at Filler Drive, Figtree, New South Wales, 2525. It was a forced sale by the bank and the property settled on 26 August 2008. There was a shortfall to the loan of $48,433.26 and this was written off by the bank.[5]
[5] T-Documents at T5/27-30.
On 24 March 2013 the Applicant lodged a ‘Separation Details Form’ with Centrelink
stating that there had been no change to his income and assets since the separation.[6]
[6] T-Documents at T7/35-38/.
In Rent Certificates dated 27 March 2013, 15 May 2013 and 21 February 2014, the Applicant respond ‘no’ to the question of whether he or his partner owns a home or has
a mortgage.[7]
[7] T-Documents at T8-10.
On 30 September 2015 the Applicant lodged a form entitled ‘Real Estate Details’ stating he purchased a property at Swanston Street, Melbourne (the Swanston Street property) on 25 September 2014 for the sum of $245,000. The then current value was estimated at $190,000. He owns the property 100%. The Applicant states ‘no’ to the question of whether he is using the property to produce an income, claiming he will use it for caring responsibilities. The property is mortgaged and he owes around $128,500. He took a $163,500 loan to purchase the property.[8]
[8] T-Documents at T11/45-74.
On 13 June 2018 Centrelink wrote to the Applicant enclosing notice under s 63 of the Social Security (Administration) Act 1999 (the Administration Act) and asked him to review the enclosed tables of cash deposits, transfers made to his bank accounts and provide ‘full documentary evidence in relation to each deposit…for each deposit showing where the funds originated from and the purpose of the funds’. It also asked for an explanation and supporting documentation regarding transfer deposits to his Westpac bank account 682548 on 26 March 2018 for the sum of $10,211.76 and $88,326.37 and various other information including his wages for his employment with 4E Australia Pty Ltd and rental ledger for the property at Swanson Street. The bank accounts were as follows:
(c)ANZ Account xxxx xxxx07;[9]
(d)ANZ Account xxxx xxxx56;[10]
(e)National Australia Bank account xxxx xxxx75;[11]
(f)Commonwealth Bank account xxxx xxxx86;[12]
(g)Commonwealth Bank account xxxx xxxx31;[13]
(h)Commonwealth Bank account xxxx xxxx31; [14]
(i)Commonwealth Bank account xxxx xxxx87; [15]
(j)Bank of Melbourne account xxxx xxxx99.[16]
[9] T-Documents at T13/82.
[10] T-Documents at T13/83.
[11] T-Documents at T13/84.
[12] T-Documents at T13/85.
[13] T-Documents at T13/86-87.
[14] T-Documents at T13/86-87.
[15] T-Documents at T13/88.
[16] T-Documents at T13/89.
On 13 July 2018 the Applicant completed an ‘Income and Assets’ form which disclosed
he owned a Toyota Hilux van worth about $4,000. He disclosed details of his bank
accounts which included most of those disclosed in the Centrelink correspondence of
13 June 2018. The Applicant responded ‘no’ to the question of whether he receives
any money from investments or any other assets not previously disclosed. He states
he works at 4E Trading Pty Ltd earning $7,500 per fortnight. He responds ‘no’ to the
[17] T-Documents at T14/91-107.
question of whether he receives any payments from any other sources other than Centrelink.[17]
On 13 July 2018 Belleli King Lawyers wrote to Centrelink on behalf of the Applicant in
response to the correspondence of 13 June 2018 and s 63 notice stating as follows:

(a)The Applicant obtained a portion of the monies referred to in the notice from busking which were all in cash and he is unable to identify each cash deposit.
(b)He received DSP in good faith and had no intention of deriving an income from busking.
(c)He also received gambling winnings and referred to the cheques of 4 December 2017 and 14 March 2018 for $31,295 and $19,500 respectively.
(d)Otherwise the amounts comprise monies which were paid to him as gifts from his family and former wife’s family as set out in the letter. Gifts were also paid to him in relation to his children.
(e)In relation to the Swanston Street property, this was purchased with monies from gambling wins, gifts from family members and performing. For the period 2016, 2017 and up to the present the property has been rented under a private tenancy agreement. The Applicant accepts he failed to disclose the income earned from the tenancy agreement.
(f)In relation to the Westpac account the sums of $10,211.76 and $88,326.37 were transferred to a separate Westpac account.
(g)The Applicant commenced working at 4E Trading on 1 March 2018.[18]
[18] T-Documents at T15.
On 25 July 2018 Centrelink notified the Applicant that he owed the sum of $3,841.87
for the period from 1 March 2018 to 18 April 2018 as his earnings from 4E Australia
had not been taken into account in assessing his income.[19]
[19] T-Documents at T15.
On 25 July 2018 Centrelink notified the Applicant that a debt had been raised for
overpayment of DSP in the sum of $129,658.36 and sought repayment of his amount.
Centrelink was not satisfied with the Applicant’s explanation for the deposits and
decided that each of the amounts as set out in the attached tables should be
characterised as ‘income’ and therefore taken into account in assessing the Applicant’s
rate of DSP. Given that these amounts had not been taken into account in assessing
[20] T-Documents at T17; T43/658.
his rate of DSP, the Applicant had been overpaid DSP.[20]
On 8 August 2018 Centrelink notified the Applicant that it had information suggesting
he failed to advise the Department of his true financial situation, did not declare bank
accounts and failed to advise he commenced employment. Nevertheless Centrelink
advised that it had not referred the Applicant’s matter to the Commonwealth Director of
[21] T-Documents at T18/249-250.
Public Prosecutions.[21]
On 21 August 2018 Belleli King Lawyers wrote to Centrelink enclosing taxation records
for the years ending 2016 to 2018, busking licences for the years 2009, 2011, 2012,
2013 and 2014 and receipt for the sale of the father’s property in Israel, of which their
[22] T-Documents at T19/251-280.
client received the sum of $25,000 on 11 June 2018.[22]
On 21 September 2018 the Applicant took out a loan in the sum of $272,000 for
purchase of a house at Scott Street, Dandenong (the Dandenong property). The
Applicant stated in the loan application he had $275,000 in property assets and
$94,740 in cash deposits. He earned $1,334 in income. He owed $71,000 on his
[23] T-Documents at T22/285-302.
existing mortgage. The property purchase price was $340,000.[23]
On 9 April 2019 Westpac advised Centrelink that in relation to the Swanston Street
property the present balance of the loan was $19,925.84 and $49,732 was available to
[24] T-Documents at T23/305.
redraw.[24]
On 17 May 2019 an ARO affirmed the decision made on 25 July 2018 that the
Applicant must repay a DSP debt of $129,658.36 for the debt period. [25]
[25] T-Documents at T29/321-332.
APPLICABLE LEGAL PRINCIPLES
The provisions applicable to the decision under review are contained in:
(a)The Act; and
(b)The Administration Act.
The policy in the Australian Government’s Social Security Guide (Guide) is relevant. The policy should be applied by the Tribunal unless there are cogent reasons to depart from the policy.[26]
[26] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Section 8(1) of the Act defines ‘income’ as follows:
income, in relation to a person, means:
(a)an income amount earned, derived or received by the person for the person's own use or benefit; or
(b)a periodical payment by way of gift or allowance; or
(c)a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
……
income amount means:
(a) valuable consideration; or
(b) personal earnings; or
(c) moneys; or
(d) profits;
(whether of a capital nature or not).
ordinary income means income that is not maintenance income or an exempt
lump sum.
CONSIDERATION
It is not in issue that the Applicant received money from busking since 2009. The Applicant was obliged to inform Centrelink of such amounts, which are clearly income, and notices to this effect were sent to the Applicant between 2011 and 2018.[27] Consequentially, such amounts earned from busking, which were not previously taken into account in assessing the Applicant’s rate of DSP, are to be taken into account in such an assessment.
[27] T-Documents at T44/ 670-906.
Further, it is clear on the evidence and essentially admitted by the Applicant that he received deposits into his bank account by way of rent from tenants living at the Swanston Street property. Bank statements indicate that between 3 March 2015 and 17 January 2018, the Applicant received regular rental payments into accounts in his name.[28] The Tribunal is satisfied that such payments constitute income, as do the monies from busking, for the purposes of s 8 of the Act. Again, the Applicant should have informed Centrelink of such rent payments as they are to be taken into account in assessing his rate of DSP entitlement.
[28] T-Documents at T48/1107-1228.
The Applicant also conceded during the hearing that he had not informed Centrelink of the details of moneys held by him in bank accounts in the ‘Income and Assets Update Form’ lodged with Centrelink on 4 November 2011[29] and he had failed to inform Centrelink of the amounts earned by him from renting his property in Swanston Street in 2004 and from his busking between 2011 and 2018.
[29] T-Documents at T4/15-26.
The Applicant also received various funds by way of deposits into bank accounts held in his name.[30] He claims that many of those deposits were gifts from his family and the family of his former wife, Ms Fang.
[30] T-Documents at T13/79-90.
The evidence, both oral and documentary,[31] establishes that the Applicant was a regular gambler during the debt period. In those circumstances, the winnings from gambling are income as they do not represent a ‘one off’ win or ‘windfall’. They cannot be treated as an ‘exempt lump sum’ for the purposes of s 8(11) of the Act.
[31] Exhibit R1 pp 117-112.
On balance, the state of the evidence only permits the Tribunal to be satisfied that a limited number of cash gifts were given to the Applicant during the debt period. The generality of the evidence does not allow any other conclusion. The Applicant’s evidence has been given limited weight as against the extensive documentary evidence before the Tribunal. Save for specific cash gifts as identified below, the body of evidence before the Tribunal does not support the Applicant’s assertion that the remaining funds were a result of cash gifts.
The Tribunal accepts the direct oral evidence of the Applicant’s mother in respect of gifts she gave to the Applicant of $5,000 and $2,000 during the debt period.[32] The Tribunal similarly accepts the direct oral evidence of the Applicant’s sister that she gave the Applicant $1,000 and $8,000 during the debt period.[33]
[32] Transcript of Proceeding p 47.
[33] Transcript of Proceeding pp 57-62.
There is insufficient evidence to support the asserted cash gifts from the Applicant’s aunt. There is no direct evidence from her in respect of such gifts, she gave no oral evidence and further was not available for cross-examination. Equally, there is insufficient evidence to support any of the asserted cash gifts from the Applicant’s father in circumstances where he did not give evidence at the hearing and was not available for cross-examination. A similar finding applies apropos of the cash gifts asserted from the Applicant’s brother.
In respect of the asserted cash gifts from the Applicant’s former wife’s family, the Tribunal finds that it is more likely than not on the evidence before it, including evidence as to traditions and customs, that some gifts would have been received in envelopes or via other means relating to the marriage. As best the Tribunal can do within the limitations of the generality of this evidence, it finds that an amount of $9,000 was gifted to the Applicant. The Tribunal otherwise rejects the remaining amounts asserted to have been given to the Applicant in this regard as they are not supported by sufficient evidence, including the fact that the Applicant’s former wife did not give oral evidence and was not available for cross-examination.
The Applicant was declared bankrupt on 8 February 2010. The Tribunal finds that the debt of overpayment of DSP was not incurred by him until after July 2011. Hence, as the debt was not incurred before he became bankrupt, the debt is not ‘irrecoverable at law’ pursuant to s 1236 of the Act.
With regards to special circumstances in the context of s 1237AAD, the Tribunal, having considered the evidence and submissions, including those going to the Applicant’s personal circumstances, his mental health conditions, and financial circumstances (including the assets owned by him as referred to above), finds no special circumstances apply in this matter.
In light of the findings above, the Tribunal finds that the Applicant has debts totalling $104,658.36 for overpayment of DSP which should not be written off or waived.
The decision under review is to be varied accordingly.
DECISION
The decision under review is varied, in so far as the Applicant has a Disability Support Pension debt of $104,658.36 for the period from 7 July 2011 to 28 February 2018, and otherwise affirmed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision of Mr. A. Maryniak QC, Member

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

Dated: 9 September 2021

Dates of hearing:

Last Date of Submissions:

14 and 15 December 2020

15 January 2021

Advocate for the Applicant:

Self-represented

Advocate for the Respondent:

Ms Peta Heffernan

Solicitor for the Respondent:

Australian Government Solicitor

[2021] AATA 3259

9 September 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Dates of hearing: Last Date of Submissions:	14 and 15 December 2020 15 January 2021
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Ms Peta Heffernan
Solicitor for the Respondent:	Australian Government Solicitor