Saqa and Secretary, Department of Family and Community Services and Anor
[2006] AATA 439
•22 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 439
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1302
GENERAL ADMINISTRATIVE DIVISION )
) No N2005/1367Re
METUISELA SAQA
Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
And
SECRETARY, DEPARTMENT OF WORKPLACE RELATIONS
Respondents
DECISION
Tribunal Senior Member Robin Hunt Date22 May 2006
PlaceSydney
Decision The tribunal affirms the decisions under review. [sgd]
Ms R Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Three issues - Claim for family tax benefit – Claim for maternity allowance - Dispute about calculation of parenting payment - Applicant’s child born in Fiji - Child had not entered Australia before or at time of claim – Child not living with father - Child not an Australian resident at date of claims - no entitlement to family tax benefit – no entitlement to maternity allowance - Centrelink calculation of parenting payment partnered debt correct – no grounds not to recover debt – No ground for waiver – no special circumstances - decisions affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999, ss. 7, 21, 22, 36 (the FA Act)
A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act)
Migration Act 1958 s 58
Social Security Act 1991 (the Act)
CASES
Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992)
Taslim and Secretary, Department of Family and Community Services [2004] FCA 789
Levene v Inland Revenue Commissioners (1928) AC 217
Gauthiez v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 512
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 53
Re Gerhardt and SDEET (1996) (AAT 10941, 17 May 1996)
De Neumann and SDSS (1996) (AAT 11280, 4 October 1996)
Re Ivovic and Director –General of Social Services (1981) 3 ALN 95
Director-General of Social Services v Hales (1983) 78 FLR 373; 47 ALR 281
Re Groth and SDSS (1995) 37 ALD 797REASONS FOR DECISION
22 May 2006 Ms R Hunt, Senior Member SUMMARY
1. Mr Metuisela Saqa, the applicant, applied for review of two decisions of the Social Security Appeals Tribunal (“SSAT”) regarding his entitlements to three allowances. Two of these allowances, family tax benefit and maternity allowance, were administered by the Secretary, Department of Family and Community Services and were connected to the birth of his son, Filimoni Saqa. Mr Saqa also sought review of a decision that he had been overpaid the parenting payment to which he was entitled and that the overpayment, therefore, was a debt due to the Commonwealth. Parenting payments were formerly administered by the Secretary, Department of Family and Community Services, but at the date of hearing were administered by the Secretary, Department of Employment and Workplace Relations. The delegate who made the parenting payment decision decided that Mr Saqa contributed to the overpayment by incorrectly declaring his income. Consequently, the overpayment was not due solely to the Secretary’s administrative error and recovery of the debt should not be waived. The delegate also found no special circumstances sufficient to waive or write off the whole or part of the debt.
2. The tribunal has found that Mr Saqa was overpaid $636.67 in parenting payments because he did not correctly declare his income from employment. The result is that the overpayment amount is a debt due to the Commonwealth. The tribunal has found further that it is not appropriate for the Commonwealth to waive recovery of this debt. This means that Mr Saqa has not succeeded in overturning the reviewable decision about his parenting payment.
3. Mr Saqa also sought payment of the maternity allowance and the family tax benefit in respect of his youngest child, Filimoni. The SSAT upheld a delegate’s decision to reject Mr Saqa’s claim for family tax benefit in respect of his son Filimoni. Further, the SSAT affirmed a decision to reject Mr Saqa’s claim for a maternity allowance in respect of Filimoni. The tribunal has decided that Mr Saqa is not entitled to the maternity allowance. In addition, the tribunal has found that Mr Saqa was not entitled to family tax benefit for Filimoni before Filimoni became a resident of Australia. This means Mr Saqa has not been successful in overturning the reviewable decisions, namely, the decisions that he did not qualify for the maternity allowance and was not entitled to family tax benefit for Filimoni while Filimoni was still living overseas.
BACKGROUND
4. Mr Saqa’s son, Filimoni Saqa, was born on 2 August 2002, in Fiji. Filimoni was entitled to Australian citizenship as his father is an Australian citizen. Filimoni was accordingly registered as an Australian citizen at the Australian High Commission in Suva, Fiji. The process of registration took a few weeks and occurred on 25 September 2002. Mr Saqa had to inform the High Commission of the situation and the High Commission had to then process Mr Saqa’s application for Filimoni’s status to be recognised officially. Filimoni subsequently was issued with an Australian passport on 1 October 2002, a few days after he was registered as an Australian citizen. He first entered Australia the following year, in 2003.
5. The records before the tribunal show that Mr Saqa made enquiries about his social security entitlements for Filimoni on 7 August 2002 and on several later occasions. Mr Saqa was already receiving some family assistance payments before the birth of Filimoni. Further records before the tribunal show Mr Saqa had been receiving family tax benefit since May 2001 in respect of other members of his family. Mr Saqa first lodged an application for family assistance regarding Filimoni on 16 October 2002. He sought payment of the maternity allowance, family tax benefit (FTB) and parenting payment for Filimoni.
6. Mr Saqa left Australia on 16 February 2003 and returned on 22 March 2003. Upon his return to Australia, he again lodged a claim for FBT and the maternity allowance for Filimoni, on 23 March 2003. On 24 March 2003, Centrelink granted his new FTB claim, as Filimoni was by then resident in Australia. Centrelink again rejected his maternity allowance claim. The SSAT on 14 February 2003 affirmed the decision to reject Mr Saqa’s original claim for FTB. The SSAT also subsequently, on 12 September 2005, affirmed the decision to reject his claim for the maternity allowance. The parenting payment debt decision was reviewed and affirmed by the SSAT at the same time as the maternity allowance decision, that is, on 12 September 2005.
ISSUES
7.There are 3 issues for the tribunal to determine:
· Is Mr Saqa entitled to payment of family tax benefit for Filimoni Saqa prior to 22 March 2003?
· Is Mr Saqa entitled to payment of the maternity allowance for Filimoni Saqa?
8. The above questions turn on a determination of whether Filimoni was a resident of Australia at the time when Mr Saqa lodged his claim, that is, on 16 October 2002.
9. The third issue is whether Mr Saqa owes a debt to the Commonwealth as a result of overpayment to him of the parenting payment. The debt claimed by the Secretary is $636.67 for the period 3 April 2005 to 16 June 2005. If the debt is due, the further question is whether there are grounds not to recover the debt.
ANALYSIS AND FINDINGS
10. Centrelink records show Mr Saqa has been in receipt of family tax benefit (FTB) since May 2001. On 7 August 2002, a Centrelink officer made a record on Mr Saqa’s file that he enquired about portability of his Centrelink payments. The parties agree Mr Saqa did not go overseas at that time but did travel overseas after the birth of his son, Filimoni, in Fiji, on 22 August 2002. The Secretary accepts that Mr Saqa was listed as Filimoni’s father on the birth certificate.
11. On 25 September 2002, Filimoni was registered as an Australian citizen at the Australian High Commission in Suva, Fiji. A little later, on 1 October 2002, Filimoni was issued in Fiji with an Australian passport. On 11 October 2002, Mr Saqa enquired again about claiming FTB for Filimoni. He was recorded as saying he was:
“becoming partnered at a future date. Unsure of date. Partner still living overseas. Moves to AU later this year”.
12. On 16 October 2002 Mr Saqa lodged a FTB claim for Filimoni and declared that Filimoni was living in a boarding house in Fiji and had come into his care financially on 22 August 2002. Centrelink rejected Mr Saqa’s claim for the benefit and for the maternity allowance and maternity immunisation allowance claims for Filimoni. Mr Saqa returned to Australia on 22 March 2003 and Filimoni and his mother also entered Australia on 22 March 2003.
Is Mr Saqa entitled to payment of family tax benefit for Filimoni Saqa prior to 22 March 2003?
13. When Mr Saqa lodged his claim for FTB for Filimoni on 16 October 2002, Filimoni had not yet arrived in Australia. Mr Saqa travelled to visit Filimoni and Filimoni’s mother in Fiji. He returned to Australia on 22 March 2003 and lodged a further claim for FTB and maternity allowance the following day, 23 March 2003. In his application, he stated that Filimoni was born overseas but no longer lived overseas. Centrelink accepted this later claim and has been paying FTB from the date of Mr Saqa’s return to Australia but has not acceded to any earlier claim for Filimoni.
14. Centrelink rejected Mr Saqa’s original claim because Filimoni was not resident in Australia in October 2002. The relevant legislation is contained in the Acts set out under the legislation table above. Section 21(1) of the FA Act provides that a person may receive FTB for an FTB child. For Filimoni to be an FTB child, he must satisfy one of subsections 22 (2), (3) or (4) of the FA Act. All three require that Filimoni be an Australian resident, within the meaning of section 7(2) of the Social Security Act (the Act), or a special category visa holder or living with Mr Saqa. Section 7(2) of the Act states an Australian resident is a person who resides in Australia and is an Australian citizen, the holder of a permanent visa or a special category visa holder who is a “protected SCV holder”. Filimoni was not a special category visa holder nor was he living with Mr Saqa, but living with his mother in Fiji. It is not disputed that Filimoni was not living with his father on 16 October 2002. Mr Saqa submitted that he should be considered an Australian resident as it was always his intention to bring his son to Australia and that he was entitled to live here as an Australian citizen.
15. There have been many cases where the concept of residence has been considered judicially and in the tribunal. In Wybrow and Secretary, Department of Social Security (AAT 8321, 19 October 1992), Deputy President McMahon held that, while theAct requires certain factors to be taken into account in deciding whether, for the purposes of the Act, a person is residing in Australia, these are not intended to be exhaustive and are made in relation to the ordinary concept of residence. As well, in Taslim and Secretary, Department of Family and Community Services [2004] FCA 789, Beaumont J noted the term “residence” encompasses temporal and emotional factors. Thus, to establish residence there must be both a physical presence in the particular place as well as the intention to treat that place as “home”. In Levene v Inland Revenue Commissioners (1928) AC 217 at page 222Viscount Cave LC defined “reside” as:
"the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning to dwell permanently or for a considerable time".
16. Mr Taslim sought to qualify as a resident by virtue of a brief visit to Australia. The tribunal found Mr Taslim’s brief visit to Australia did not meet the requirements as to his commencing to reside in this country under the Act nor did his six day visit satisfy ordinary concepts of residing in Australia during that visit. Beaumont J approved the tribunal’s reasoning on appeal. His Honour observed the tribunal was correct in noting the term “residence” encompasses temporal as well as emotional factors.
17. The facts are that, prior to Filimoni’s arrival in Australia on 22 March 2003, he was not residing in Australia. There are several tests of residence and Filimoni satisfies none of them. For example, section 7(3) of the Act provides that:
“In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
…
(c) the nature and extent of the person’s employment, business or financial ties with Australia. “
18. I am satisfied that Filimoni was residing in Fiji with his mother. As Gummow J said, at 519, in Gauthietz v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 512, the meaning ordinarily given to the phrases such as “resides”, “usually resides” and “ordinarily resides” is such as to make the result in a given case depend largely upon matters of fact and degree. In the ordinary sense of the word reside, a person is located in a place of residence as well as having an intention to reside in that location. Filimoni, being an infant, was unable to form any intention and had never arrived at any location in Australia at the time his father made the application for FTB that was rejected on this basis. While Filimoni had ties with Australia in that his father was an Australian citizen residing in Australia, he was still residing in Fiji with his mother. The word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning to dwell permanently or for a considerable time. Even a brief visit does not meet with the requirements of commencing to reside in Australia. Filimoni however had not even paid a visit to Australia let alone commenced to reside here.
19. As Filimoni had never entered Australia at the time of Mr Saqa’s application which is the subject of this review, it follows that he cannot have been an Australian resident at that time. Under both the legislative criteria and the common law, Filmoni could not be considered a resident at least until he entered Australia as well as demonstrating the intention that he stay and settle here. It follows that he cannot give rise to his father’s claim for an FTB entitlement as a resident and was not an FTB child at that time.
20. While Mr Saqa did not present an argument that he was entitled to FTB for Filimoni before 22 March 2003 on the basis that he was living with Filimoni in Fiji for a time before they all travelled to Australia, this may be the situation. The Secretary indicated that Mr Saqa’s claim would be reconsidered on this basis with arrears payable form the date he commenced living with Filimoni. It is a matter for Mr Saqa to follow up this possibility.
Is Mr Saqa is entitled to payment of the maternity allowance for Filimoni Saqa?
21. Section 36 of the FA Act sets out the eligibility criteria for the maternity allowance. To qualify for this allowance, Mr Saqa must have been eligible for the FTB within 13 weeks of Filimomi’s birth. On the material before me, Filimoni was born 22 August 2002 and the 13 week period expired on 21 November 2002. There is nothing before me to suggest that Mr Saqa was entitled to FTB for Filimoni as early as 21 November 2002. Even if he was living with Filimoni for a time before bringing him to Australia on 22 March 2003, the evidence suggests that this was not within the relevant period. Mr Saqa gave evidence that he had to return to Australia after visiting Filimoni and his mother soon after the birth and returned to collect them in 2003. Mr Saqa said he flew to Fiji on 22 September 2002 and stayed with the mother, paying for her living expenses and those of the child. He came back to Australia on 11 October 2002 because he needed to return to work. On 16 October 2002 he registered his son at Campsie although Filimoni was not yet in Australia. He finally brought Filimoni to Australia in March 2003. He later brought Filimoni’s mother over to Australia as well. As Filimoni arrived in Australia a considerable time after his birth, it follows that Mr Saqa and the mother of the child are not eligible for the maternity allowance which can only be paid in circumstances set out in section 36.
22. The Secretary’s facts and contentions suggest that Mr Saqa and Filimoni may have commenced to live together on 16 February 2003. Mr Saqa did not provide any evidence that they commenced living together any sooner apart from his earlier visit to Fiji from August to October 2002. The visit had ended at the time of Mr Saqa’s application on 16 October 2002 and by then he was back in Australia. As he and Filimoni did not commence to live together by 21 November 2002, Mr Saqa does not qualify for the FTB by that date. The result is that he cannot claim the maternity allowance according to section 36.
Does Mr Saqa owe a debt to the Commonwealth as a result of overpayment to him of the parenting payment?
23. The debt claimed by the Secretary is $636.67 for the period 3 April 2005 to 16 June 2005. On the evidence before me, Mr Saqa has been receiving parenting payments since well before the time of the disputed overpayment. It was not until 2005 that Centrelink found he had been overpaid for a period earlier that year. The Centrelink records before me show that Centrelink wrote to Mr Saqa in 2003 about his obligations and again on several occasions in 2005.
24. Once Filimoni arrived in Australia, Mr Saqa started receiving parenting payment for Filimoni as well as for his other children. Mr Saqa had periods in and out of employment partly related to his difficulties in maintaining employment when he was overseas taking care of Filimoni and arranging to bring him and his mother to Australia. He also told the tribunal that he lost a job because he had to look after Filimoni for a period. Mr Saqa gave evidence that he put his claim for parenting allowance on a particular day of each week which was a day ahead of his employment wages because Filimoni’s mother needed the money as soon as possible. I have drawn the conclusion from Mr Saqa’s explanation that the manner in which Mr Saqa made his claim for parenting allowance relied on his estimate of wages rather than the actual payment or print out of his entitlement. This led to some confusion.
25. Counsel for the Secretary explained to the tribunal that an activity management record or AMR is generated when an activity or a transaction is conducted on a Centrelink computer record. The numbers are assigned sequentially, i.e. the lower numbers were activities that occurred earlier. In Mr Saqa’s case, AMRs 949, 957, 969, 979, 998, 1004 and 1011 were activities/transactions arising from a Centrelink officer coding earnings as declared by Mr Saqa. AMR 993 was an activity on 6 May 2005 arising from an office review which coded earnings based on payslips provided by Mr Saqa for the period 28 February 2005 to 27 March 2005. AMR 1018 was the activity arising from Ms Harris’ coding on 28 June 2005 of the earnings as declared by Mr Saqa’s employer for the period 28 February 2005 to 27 May 2005. These records were before the tribunal. The timing of declarations of income and checks by Centrelink with the employer’s records led to some adjustments in Centrelink records. In simple terms, Centrelink relied on employer declarations which are before the tribunal to make accurate records of Mr Saqa’s actual earnings.
26. Mr Saqa received more parenting payment than his correct entitlement because Centrelink did not have accurate information from him and some time passed before Centrelink was able to make accurate calculations based on the employer’s declarations. Subsection 1223(1) of the Social Security Act, the Act, states that, if a person has been paid a social security payment and for any reason the person was not entitled to that amount, the amount overpaid is a debt due to the Commonwealth. Mr Saqa was overpaid parenting payment, and it follows that the amount by which he was overpaid is a debt due to the Commonwealth. (T35/148-152).
27. I am satisfied that the Parenting Payment debt of $636.67 for the period 03 April 2005 to 16 June 2005 was solely due to Mr Saqa’s failure to declare his earnings correctly. Consequently, a debt as calculated exists for this period.
Should the debt be recovered?
28. The Act makes provision in limited circumstances for debts not to be recovered. Under section 1236 of the Act, the Secretary may write-off a debt in very specific circumstances. Mr Saqa’s circumstances do not meet any of the criteria for the use of the write-off provisions. Therefore, the debt cannot be written-off.
Should the debt be waived?
29. Debts may be waived under section 1237A of the Act. However, for a debt to be waived under section 1237A of the Act, two conditions must be met, namely, that the debt arose solely because of administrative error and the debtor received the payments in good faith. The word “sole” is defined as “one and only, exclusive, alone, unaccompanied”. This approach was used by the tribunal in Re Gerhardt and SDEET (1996) unreported AAT 10941, 17 May 1996, in which the tribunal stated:
40. There is nothing in sub-section 289(1) which indicates that any meaning should be given to ‘solely’ other than its ordinary meaning. Applying those ordinary meanings to the sub-section meant that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. The Secretary’s duty to waive does not extend to those debts which are attributable to error or other factors which are independent of the Commonwealth’s administrative error.
This decision was referred to with approval in De Neumann and SDSS (1996) AAT 11280, 4/10/96. The tribunal stated that “solely” in sub-section 1237A(1) should be given its ordinary meaning (“only” or “to the exclusion of all else”).
30. Centrelink sent various letters such as the ones at T25 and T27, to Mr Saqa advising him of his reporting requirements and notification obligations. The letter sent on 10 March 2005, (T27), even explained the way the income test applied to earnings and the effect on parenting payment rate. There has been no error made by Centrelink since the debt was caused solely by Mr Saqa’s failure to correctly declare his earnings. As such, the issue of whether Mr Saqa received the overpayment in good faith need not be explored.
31. Centrelink sent various notices (T28/130-131; T29/132; T30/133-134; T31/135) to Mr Saqa to request for information on his correct earnings, however Mr Saqa did not respond to any of the requests. Centrelink, therefore, sent a request to Mr Saqa’s employer HJ&B Industrial Pty Ltd to request details about Mr Saqa’s income and relying on the information received (T34/144-147) corrected the information recorded and thus raised the debt.
32. Centrelink’s calculations show Mr Saqa was paid parenting payment of $1580.92 based on his incorrect declaration of earnings when he was actually entitled to $944.35. There was no administrative error on the part of Centrelink as the inaccurate information was provided by Mr Saqa. It follows that Mr Saqa has not met the requirement that he was free of fault in receiving the overpayment and is not entitled to claim relief under s 1237A.
Are there special circumstances?
33. Under section 1237AAD debt may be waived where there are special circumstances. Special circumstances were considered in Re Ivovic and Director-General of Social Services (1981) 3 ALN 95 at N 97 the AAT said:
“The reference to special circumstances ‘by reason of which’ a person liable ‘should be released’ requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes…Thus Whilst keeping the dominant principle of [recovery of a debt] in mind, [the decision-maker] must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate.”
34. In order for financial hardship to be “special circumstances” under the Act, the financial circumstances must be more than “straitened”. They must be “exceptional”. In Director-General of Social Security v Hales (1983) 78 FLR 373; 47 ALR 281 Sheppard J of the Full Federal Court stated:
“The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common: they will be impecunious and in straitened circumstances.”
35. In Re Groth and SDSS (1995) 37 ALD 797 at paragraph 50, the Tribunal concluded that:
“Mr Groth must be very careful financially and the choices he and his family have are severely curtailed both by their limited finances and their poor health. Difficult as [Mr and Mrs Groth’s] circumstances are, however, they are not special when considered in light of others in a similar situation and in light of the objects of the Act.”
36. I have considered Mr Saqa’a circumstances according to his evidence. While he has a large family and has suffered some loss of income while he travelled to Fiji in order to make arrangements to bring his son, Filimoni, and Filimoni’s mother to Australia, he has not demonstrated to me that he is in a situation that is so out of the ordinary as to amount to special circumstances. He was receiving benefits at the time of the tribunal hearing. In my opinion, no cogent evidence has been lead by Mr Saqa to find grounds for the waiver under special circumstances. I am satisfied accordingly that he should not benefit from relief on this ground.
DECISION
The tribunal affirms the decisions under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt
Signed: Ms R Pietrini
AssociateDate/s of Hearing 3 March 2006
Date of Decision 22 May 2006
Counsel for the Applicant N/A
Solicitor for the Applicant N/A
Counsel for the Respondent N/A
Solicitor for the Respondent Susan Mantaring, Advocate
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