Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Rahim

[2010] AATA 946

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 946

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1710

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And TIMOR RAHIM

Respondent

DECISION

Tribunal Ms K Hogan, Member  

Date23 November 2010

PlacePerth

Decision

The Tribunal affirms the decision of the Social Security Appeals Tribunal under review as follows:

(a) Mr Rahim was entitled to be paid family tax benefit in the period 7 March 2004 to 6 March 2007. 

(b) Mr Rahim was not entitled to be paid family tax benefit in the 2007/2008 financial year.

..(sgd) K Hogan....................

Member

CATCHWORDS

Social Security – whether Family Tax benefits are payable – effect of absences from Australia - decision of SSAT affirmed.

LEGISLATION  

SocialSecurity Act 1991

Social Security (Administration) Act 1999
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999

CASES

Estafanos and Secretary, Department of Family and Community Services [2005] 88 ALD 778

Smith and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 839

Secretary, Department of Family, and Community Services and Indigenous Affairs and Brunner [2003] 77 ALD 130

Associated Picture Houses v Wednesbury Corporation [1948] 1KB 223

Groth v Secretary, Department of Social Security (1995) 40 ALD 451

REASONS FOR DECISION

23 November 2010   Ms K Hogan, Member

History

1.    Mr Rahim is the father of Hanzala (born 14 December 2002), Huemza (born 24 November 2003), Zakraya (born 27 September 2006) and Zade (born 19 June 2009).

2.    Mr Rahim was being paid family tax benefit in respect of Hanzala and Huemza at the time he returned to Afghanistan on 7 March 2004.

3.    On 30 March 2004 Centrelink sent a notice to Mr Rahim requesting that he provide a new estimate of his income.

4.    On 20 April 2004 Centrelink decided to cancel Mr Rahim’s family tax benefit with effect from 20 April 2004 as he did not provide his income details to Centrelink.  Centrelink sent Mr Rahim a notice to inform him of this decision.

5.    On 31 March 2009 Mr Rahim returned to Australia with his family.

6.    On 2 April 2009 Mr Rahim contacted Centrelink in relation to claiming family tax benefit.  He also requested a review of the decision made on 20 April 2004 to cancel his family tax benefit.

7.    On 23 April 2009 a Centrelink officer decided that Mr Rahim could not be paid family tax benefit for the 2007/2008 financial year as he did not meet the Australian residence requirements.  Mr Rahim requested a review of this decision.

8.    On 2 November 2009 a Centrelink authorised review officer (“ARO”) affirmed the decisions to cancel Mr Rahim’s family tax benefit on 20 April 2004 and to not pay any back pay of family tax benefit, and to not pay family tax benefit for 2007/2008 financial year. 

9.    On 11 May 2009 a Centrelink officer decided to raise and recover a debt of $533.32 as it was determined that Mr Rahim had been overpaid family tax benefit in the period 7 March 2004 to 19 April 2004, as Mr Rahim departed Australia on 7 March 2004.

10.     Mr Rahim requested a review of this decision and on 12 February 2010 a Centrelink ARO affirmed the decision.

11.     On 4 February 2010 Mr Rahim lodged an application for review of the above decisions of the ARO with the Social Security Appeals Tribunal (“SSAT”).

12.     On 23 March 2010 the SSAT decided that

(a)Mr Rahim was entitled to be paid family tax benefit in the period 7 March 2004 to 6 March 2007.  The amount of family tax benefit to which Mr Rahim was entitled in that period is to be calculated by Centrelink.

(b)Following calculation of Mr Rahim’s entitlement to family tax benefit, if Mr Rahim was paid more family tax benefit than he was entitled in the period 7 March 2004 to 19 April 2004, then Mr Rahim has been overpaid, the overpayment is a debt and the debt is to be recovered. 

(c)Mr Rahim was not entitled to be paid family tax benefit in the 2007/2008 financial year.

13.     The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs applied to review that decision to this Tribunal.

Issues

14.     Is Mr. Rahim eligible for family tax benefit after 7 March 2004?

15.     Is Mr Rahim entitled to receive family tax benefit for the 2007/2008 income year?

16.     Was Mr. Rahim overpaid family tax benefit in the period 7 March 2004 to 19 April 2004, and if so, is the overpayment a debt to the Commonwealth that should be recovered?

Consideration of Issues

17.     The Tribunal was provided with a number of documents including:

(a)The section 37 documents;

(b)Written submissions from the parties;

18.Relevantly the section 37 documents contained;

(a)A record of the un-contradicted oral evidence given by Mr Rahim to the SSAT;

(b)Mr Rahim’s Centrelink file and electronic record;

(c)Letter from Robert R Brueschke, Clinical Psychologist, dated 18 March 2010;

(d)Certificate of Sickness from Dr Chee Meng Chang, dated 16 March 2010;

(e)Extracts from Mr Rahim’s medical file from Graylands Selby-Lemnos Special Care Health Services which included information for the period 10 February 2004 to 2 March 2004, and also a Discharge Summary for the admission of 20 April 2000 to 2 May 2000;

19.        The Tribunal considered the legislation which was in place at the time relevant. to the decision.

Legislative Framework

20.     The legislation relevant to this decision is contained in the A New Tax System (Family Assistance) Act 1999 (“the Act”) and the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”).

21. Division 1 of Part 3 of the Act contains the provisions regarding eligibility for family tax benefit.

22. Division 1 of Part 4 of the Act contains the provisions regarding the rate of family tax benefit, which is calculated in accordance with the rate calculator in Schedule 1 of the Act.

23. Part 4 of the Administration Act contains provisions relating to overpayments and debt recovery.

Issue One:

24. Section 21 of the Act provided, among other things, that to be paid family tax benefit a person must have at least one “FTB child”. 

25. Section 22 of the Act provided that a child is an “FTB child” of an adult if the child is aged under 18, the adult is legally responsible for the day-to-day care, welfare and development of the child, the child is in the adult’s care, and the child is an Australian resident.

26. Subsection 58(1) of the Act provided that a person’s annual rate of family tax benefit is calculated in accordance with the Rate Calculator in Schedule 1 to the Act.

27. Subsections 24(1) (2) and (3) of the Act provided for the effect of certain absences of a family tax benefit child from Australia:

1.If:

(a)  either:

a.an FTB child leaves Australia; or

b.a child born outside Australia is an FTB child at birth; and

(b)  the child continues to be absent from Australia for more than 3 years;

the child is not, during that absence from Australia, an FTB child at any time after the period of 3 years beginning on the first day of the child’s absence from Australia.

2.If:

(a)  an FTB child who has been absent from Australia for more than 26 weeks, but less than 3 years, comes to Australia, and

(b)  the child leaves Australia less than 26 weeks later;

for the purposes of subsection (1), the child is taken not to have come to Australia.

3.If:

(a)  a child is not an FTB child because of the application of subsection (1) or a previous application of this subsection; and

(b)  the child comes to Australia; and

(c)  the child leaves Australia less than 26 weeks after coming to Australia,

the child is not an FTB child at any time during the absence from Australia referred to in paragraph (c).

28. Subsections 24(4), (5) and (6) of the Act relate to the payment made to the individual:

(4)If an individual leaves Australia, the maximum period for which the individual can be eligible for family tax benefit during that absence from Australia is the period of 3 years beginning on the first day of that absence.

(5)If:

(a)  an individual who has been absent from Australia for more than 26 weeks, but less than 3 years, returns to Australia, and

(b)  the individual leaves Australia again less than 26 weeks later;

the individual is taken not to have returned to Australia for the purposes of subsection (4).

(6)If:             

(a)  an individual is eligible for family tax benefit while the individual is absent from Australia; and

(b)  the individual then ceases to be eligible for family tax benefit because of the application of subsection (4) or a previous application of this subsection; and

(c)  the individual returns to Australia; and

(d)  the individual leaves Australia again less than 26 weeks after returning to Australia;

the individual is not eligible for family tax benefit at any time during the absence from Australia referred to in paragraph (d).

29. Section 62 of the Act provided for the effect of temporary absences from Australia on a person’s entitlement to family tax benefit:

(1)Subsection (4) modifies the operation of Schedule 1 in working out an individual’s rate of family tax benefit for a period during which the individual is an absent overseas recipient.

(2)If an individual leaves Australia, the individual is an absent overseas recipient for any period that occurs:

(a)  during that absence from Australia; and

(b)  after the end of the period of 26 weeks beginning on the first day of that absence.

(3)If:

(a)  an individual is eligible for family tax benefit while the individual is absent from Australia; and

(b)  the individual then becomes an absent overseas recipient because of the application of subsection (2) or a previous application of this subsection; and

(c)  the individual returns to Australia; and

(d)  the individual leaves Australia again less than 26 weeks after returning to Australia;

the individual is an absent overseas recipient for any period that occurs during the absence from Australia referred to in paragraph (d).

30. Section 109A of the Administration Act provided that a person may apply for the review of a decision they are affected by. Subsection 109D(1) of the Administration Act provided that the application for review must be made within 52 weeks after being notified of the decision. Subsection 109D(2) provided that if there are special circumstances that prevented the person from applying for a review of a decision within 52 weeks, the Secretary may allow a person to apply for a review of the decision after the end of 52 weeks and within a period determined to be appropriate.

Evidence

31.     Mr Rahim had provided the following evidence to the SSAT:

(a)In February 2004 he was admitted to Graylands Hospital as an involuntary patient.  He was suffering from a mental breakdown.

(b)He had been admitted as an involuntary patient on a number of occasions since 1993.  He has been diagnosed with Schizophrenia and Bi-polar Disorder.

(c)When he was discharged from hospital in February 2004 he was discharged on a Community Treatment Order and discharged into the care of his mother and Joondalup Community Mental Health.

(d)His wife does not speak or read any English so it was not possible for her to care for him in Australia.  His family decided that he should return to Afghanistan with his wife and children to be cared for by his mother.  He was at home for a few days before he left Australia for Afghanistan.

(e)He did not consider that he made a choice to go to Afghanistan.  He considered that he “was taken”.  He was in no fit state to make such a decision.

(f)His wife and children travelled with him to Afghanistan.

(g)He was still very ill when he went to Afghanistan.  He was like a zombie with all the medicine he was taking which included an injection (depot) and oral medication.

(h)It always takes him a long time to recover, sometimes up to a year, when he becomes so ill and needs to go to hospital.

(i)His GP in Balga provided a supply of depot medication which the family took to Afghanistan.  When family members came from Australia to Afghanistan to visit they would bring a new supply of the depot medication.

(j)Between March 2004 and November 2008 he had numerous breakdowns in Afghanistan which required involuntary admission.  This occurred at least once a year.  He was also admitted in Pakistan to Shafique Clinic, Peshawar.  He had Electro Convulsive Therapy in Pakistan.  Treatment in these countries was extremely poor.  He was heavily sedated and put in chains. 

(k)He was never very well during the years in Afghanistan.  He got a few jobs but was never able to hold these down as he was unwell.

(l)When he was not in hospital he would take his depot medicine to the chemist to have this administered.

(m)He always intended to return to Australia.  He was under the impression that his wife’s visa was only for two years.  He started to feel better toward the end of 2007 and he applied by email to the Australian High Commission for a visa for his wife.  She was required to undergo medical examinations.  It was not until they moved to Pakistan in November 2008 and he was employed with the Australian High Commission that he realized his wife’s visa was valid the entire time.

(n)He did not recall receiving any correspondence from Centrelink regarding the cancellation of his family tax benefit.  He was in Afghanistan when this happened.  His wife did not make any arrangements for forwarding of their mail as she could not speak, read or understand English.

(o)He returned to Australia on 31 March 2009.  His wife and children returned with him.

32.     The SSAT recorded, at paragraph 29, the following information from Mr Rahim’s Centrelink file:

(a)Mr Rahim was paid family tax benefit in respect of Hanzala (born 14 December 2002) from 12 September 2003.  Hanzala was born in Afghanistan.

(b)Mr Rahim was paid family tax benefit in respect of Huemza from his date of birth being 24 November 2003.  Huemza was born in Australia.

(c)On 2 March 2004 Centrelink sent Mr Rahim a notice informing him of his rate of family tax benefit.  This notice also informed Mr Rahim about the need to inform Centrelink if he left Australia.

(d)On 30 March 2004 Centrelink sent a notice to Mr Rahim asking him to provide a new estimate of his total family income.  The notice also informed him that if he did not provide this information his family tax benefit would be cancelled.

(e)On 20 April 2004 Centrelink sent a notice to Mr Rahim informing him that his family tax benefit had been cancelled as he had not provided the income details requested.  The notice also told him that if he did not agree with the decision he had 52 weeks to ask for a review of the decision from the date he was informed of the decision.

(f)On 25 September 2006 Mr Rahim sent an email to Centrelink informing them that he had two children under 4 in his care with another child on the way.  He asked if he was entitled to any family tax benefit while in Afghanistan, and if he was entitled to back pay for the last two years they had lived in Afghanistan.  Centrelink’s response to this inquiry states, “Action taken: adv cus needs to be a permanent resident in order to claim family tax benefit/MPY cus advised not intending (six) to return to AU at this stage  If the customer contacts after the initial Email Team action please finalise the enquiry and make any necessary updates”.

33. The SSAT recorded, at paragraph 30, the following information from Mr Rahim’s medical file from Graylands Selby-Lemnos and Special Care Health Services:

(a)Mr Rahim was admitted to Graylands Hospital on 11 February 2004, after presenting on 10 February 2004.  He was diagnosed with Schizoaffective Disorder (modified during admission from previous diagnosis of Schizophrenia) and Polysubstance abuse.

(b)His first episode of psychosis was in 1994.  He had been admitted to Graylands Hospital in 1994, 1997, 1998 and 2000.

(c)He was discharged on a Community Treatment Order which required him to have medicines as prescribed, and accept visits by staff or Joondalup Community Mental Health.

(d)His return to Afghanistan had been discussed in a family meeting during his admission.  Mr Rahim’s GP agreed to supply medicine to Mr Rahim while he was in Afghanistan.

(e)On 2 March 2004 his mental state had changed and the family had contacted Joondalup Community Mental Health about their concerns.

(f)Letter dated 18 March 2010 from Robert Brueschke, Clinical Psychologist, “…He (Mr Rahim) reports a history of psychotic disorder going back to 1993 and at least 6 admissions to Graylands.  He reports being very unwell between 2004 and 2009.  He has tried to obtain confirmation of this from Doctors in Afghanistan and Pakistan but has been unable to contact them to date.  Given the instability of that region that is not surprising.  At this point I am inclined to believe Mr Rahim and believe he was unable to look after his own affairs during this period …”

(g)Certificate of Sickness written by Dr Chee Meng Chang on 16 March 2010 which stated “… In March 2004 he (Mr Rahim) left for Afghanistan so that his mother could look after him.  He was on regular medication while over there and returned to Australia in March 2009”.

Agreed Facts:

34.Mr Rahim and his wife and children departed and returned to Australia as follows:

Departure from Australia	Return to Australia
20 August 1999	17 October 1999
10 July 2000	30 May 2001
26 June 2001	12 September 2003
7 March 2004	21 March 2009

35.Hanzala was born in Afghanistan on 14 December 2002.

36.Mr Rahim was paid family tax benefit in respect of Hanzala from 12 September 2003.

37.Huemza was born in Australia on 24 November 2003.

38.Mr Rahim was paid family tax benefit in respect of Huemza from 24 November 2003.

39.On 25 September 2006 Mr Rahim contacted Centrelink and enquired if he was entitled to family tax benefit while in Afghanistan, and if he was entitled to any back payment of family tax benefit.

40.Zakraya was born in Afghanistan on 27 September 2006.

41.On 2 April 2009 Mr Rahim asked Centrelink to review the decision to cancel his family tax benefit from 20 April 2004.

42.Zade was born in Australia on 19 June 2009.

Submissions

APPLICANT’S SUBMISSION

43. Mr Rahim was eligible for family tax benefit in respect of Hanzala from 14 December 2002 pursuant to subsection 21(1) of the Act.

44. Section 24(4) of the Act prescribes that the maximum period for which an individual can be eligible for family tax benefit during an absence from Australia is 3 years beginning on the first day of that absence.

45. Subsection 24(5) of the Act as it applied during the relevant period in question, provides that if a person has been absent from Australia for more than 26 weeks but less than 3 years, a return to Australia of less than 26 weeks is disregarded when considering subsection 24(4) of the Act.

46.     Mr Rahim was absent from Australia from 10 July 2000 to 12 September 2003, returning to Australia for less than 26 weeks between 30 May 2001 and 26 June 2001.

47. Subsection 24(5) of the Act provides that Mr Rahim’s return to Australia between 30 May 2001 and 26 June 2001 is disregarded when determining a 3 year period applicable in subsection 24(4) of the Act, see Estafanos and Secretary, Department of Family and Community Services [2005] 88 ALD 778 at 13.

48. There is nothing in the wording of subsection 24(4) of the Act that would allow the relevant date to be construed as the date of receipt of family tax benefit or date or application for family tax benefit.  The provision plainly states that the maximum period for which an individual can be eligible for family tax benefits while absent from Australia is 3 years beginning on the first day of their absence. 

49. Mr Rahim was absent from Australia for 3 years on 10 July 2003 and ceased to be eligible for family tax benefit from that date in accordance with the provisions of subsection 24(4) of the Act.

50.     The provisions precluding Mr Rahim’s eligibility to family tax benefit whilst he was overseas ceased to have effect on 12 September 2003 when Mr Rahim arrived back in Australia.  Mr Rahim received family tax benefit from 12 September 2003 making a claim for payment on 17 September 2003.

51. Subsection 24(6) of the Act as it applied in the relevant period precludes payment of family tax benefit to a person from the day they leave Australia if they cease to be eligible for family tax benefit because they had been absent from Australia for 3 years or more, and leave Australia less than 26 weeks after returning. The individual may however, be eligible for family tax benefit while in Australia. Mr Rahim left Australia again on 7 March 2004 which is less than 26 weeks after he returned to Australia on 12 September 2003 and contends that subsection 34(6) of the Act applies in Mr Rahim’s case and he is not eligible for family tax benefit from 7 March 2004.

52.     As Mr Rahim did not return to Australia until 31 March 2009 Mr Rahim was not eligible to receive family tax benefit in the 2007/2008 income year.

53.     In Smith and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 839 the Tribunal found that from June 2004, which was 3 years after Mrs Smith’s first departure, she was not eligible for the family tax benefit, even though her son Callum was an FTB child from the time of his birth (12 May 2006). Mrs Smith was not eligible for family tax benefit for him until she returned permanently to Australia which was on 8 November 2006 (which was the first date of her return after his birth).

54.     See also Secretary, Department of Family, and Community Services and Indigenous Affairs and Brunner [2003] 77 ALD 130.

RESPONDENT’S SUBMISSION

55.     The decision made by the SSAT was correct. 

56. The issues involve an interpretation of the relevant legislation, in particular section 24 of the Act, and the general principles which apply in Administrative Law.

57. The words of section 24 must be interpreted in their context and with the purpose and object of the Act in mind.

58. Section 24 should therefore be read down in the context of eligibility for family tax benefit in the circumstances where there would otherwise be an entitlement to receive family tax benefit. It should not be construed to preclude eligibility for family tax benefit before that entitlement exists.

59. The purpose of the Act was “to improve the assistance that families can get through the tax and social security systems” P Costello, Second Reading Speech, Wednesday 13 March 1999.

60. Subsection 21(1) of the Act sets out when under normal circumstances, an individual is eligible for family tax benefit.

61.     Subsection 21(2) qualifies that eligibility.

62. Section 5 of the Administration Act further qualifies that eligibility in that “the only way a person can become entitled to be paid family tax benefit is to make a claim in accordance with this subdivision”.

63. The plain meaning of eligible in the context of the Act is to have a right or an entitlement to family tax benefit.

64. Entitlement to receive family tax benefit does not crystallize until a claim is made in accordance with the Administration Act. Mr Rahim therefore, only became eligible to receive family tax benefit on the making of his claim in September 2003.

65. Although section 24 of the Act sets out the effect that absences from family tax benefit, unless a claim has been made, the provisions of section 24 do not come into operation.

66. Subsection 24(4) provides that the maximum period for which an individual can be eligible for family tax benefit during an absence from Australia is 3 years beginning of the first day of that absence.

67. Subsection 24(5) provides that if a person has been absent from Australia for more than 26 weeks but less than 3 years, a return to Australia of less than 26 weeks is disregarded when considering subsection 24(4) of the Act.

68.     Mr Rahim was absent from Australia for a period of more than 3 years (from 10 July 2000 to 12 September 2003) returning only briefly between 30 May 2001 and 26 June 2001.

69. Subsection 24(5) can only apply where the individual has been absent from Australia from more than 26 weeks but less than 3 years.

70. Subsection 24(5) would only apply had Mr Rahim returned to Australia prior to 10 July 2003, which he didn’t and therefore can have no application. Further, no claim for family tax benefit had been made at that time and Mr Rahim was not entitled to family tax benefit at that time.

71. Similarly, subsection 24(6) precludes payment of family tax benefit to a person from the day they leave Australia if they ceased to be eligible for family tax benefit by operation of subsection 24(5). Unless subsection 24(5) applies, subsection 24(6) can have no application.

72.     In normal circumstances Mr Rahim may have become eligible for family tax benefit on the birth of his son, Hanzala in December 2002 but he did not apply for family tax benefit until 17 September 2003. 

73. Mr Rahim only became eligible to receive family tax benefit on his return to Australia on 12 September 2003 and on his making of a claim in accordance with section 5 of the Administration Act (see Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Katherine Smith [2008] AATA 839 at 12).

74.     To interpret the legislation to preclude Mr Rahim from receiving the benefit would be manifestly unreasonable.

75. In the circumstances of Mr Rahim’s mental illness and involuntary departure to Afghanistan an interpretation of the relevant provisions of the Act to preclude payment of family tax benefit to Mr Rahim contravenes the purpose of the Act, namely, “to improve the assistance that families can get through the tax and social security systems”.

76.     Given the evidence of Mr Rahim’s personal circumstances the result would be manifestly unreasonable in the sense described by Lord Greene MR in Associated Picture Houses v Wednesbury Corporation [1948] 1KB 223.

77.     Parliament could not have intended, that an individual in the circumstances in which Mr Rahim found himself should have his children denied the benefit of family tax benefit payments because the individual was so unwell as to be taken out of Australia by his carers 4 days short of 26 weeks and that communications that clearly were not received operate to preclude eligibility.

78.     The interpretation of the legislation is centered upon the fact that when Mr Rahim was absent from Australia, or commenced his absence, there was no eligibility for family tax benefit 

79.     The cases referred to by the applicant can be distinguished on the basis that in those cases claimants were people who had children, had taken the children out of the country, spent a significant period of time out of the country and then returned to Australia.  Mr Rahim’s circumstances were quite different.  Mr Rahim commenced his absence having no eligibility for family tax benefit.  The birth of the child in December 2002 theoretically created the eligibility.  In the other cases a claim had been made when the claimants were out of the country and coming back in. 

80.     There is a distinction between eligibility (an entitlement to do something) and entitlement (the right to do something).  These are not necessarily interchangeable in language.  There may be an entitlement to do something and therefore eligibility but that one cannot be eligible to do something without being entitled.

81. The eligibility criteria are contained in section 21.

82. Section 5 of the Administration Act states that a person can become entitled to be paid a family tax benefit only once a claim has been made in accordance with the subdivision.

83. Section 7 of the Administration Act speaks of a claim that needs to be made and to the effect of it must be in a form and manner and contain certain information. Mr Maishman, on behalf of the applicant said that section 24 of the Act refers to eligibility for family tax benefit and the family tax benefit. Mr Grayden, on behalf of the respondent, argued that you do not become entitled to receive family tax benefit unless you are both eligible and you make a claim.

84. One needs to be eligible before the absence can exclude one from eligibility. One only becomes eligible once there is an FTB child. Without the FTB child there is no eligibility. Mr Grayden contended that one needs to read the whole section - the headings, the context and the purpose of the Act.

85.     Smith’s case may have been relevant because it dealt with a person who had been out of the country for a period greater than 3 years which was the same as the present circumstances.  However, there was no eligibility in Mrs Smith’s case until she came back to the country and made her application for family tax benefit. That is when she became both eligible and entitled.  Mr Rahim became eligible and entitled when he came back Australia and made his claim. 

86.     The respondent argued that when Mr Rahim left in 2004, that was the first time that he left Australia being an eligible and entitled recipient of family tax benefit. Therefore the 3 year time period of ineligibility should run from 2004. 

Application of Law

87. It was not disputed that Mr Rahim and his children were Australian residents for the purposes of the Act during the period of absences from Australia.

88. Mr Rahim told the ARO that in March 2004 he was taken overseas by his family so that he could be nursed by his mother in Kabul. He believed it was just for a little while and he always intended to come back to Australia when he was well enough. The ARO decided that Mr Rahim was an Australian resident under section 7 of the Social Security Act 1991 who was temporarily absent from Australia during the period 7 March 2004 to 30 March 2009.

89.     The applicant contends that Mr Rahim’s request for a review of the decision to cancel his family tax benefit should be rejected as Mr. Rahim did not request a review within 52 weeks of the decision being made and there were no special circumstances in this case.

90. The Tribunal must first consider if Mr Rahim asked for a review of this decision within the time frame required under section 109D of the Administration Act.

91. The Tribunal is satisfied that Mr Rahim’s request, made by email on 25 September 2006, asking for consideration to be given to his entitlement to back pay of family tax benefit for the previous two years, was a request for review of the decision to cancel his family tax benefit. This request was made more than 52 weeks after being notified of the decision to cancel his family tax benefit i.e. on 30 April 2004 thereby not meeting the requirements of subsection 109D(1) of the Administration Act.

92. The Tribunal then considered if under subsection 109D (2) of the Administration Act there were special circumstances which prevented Mr Rahim from applying for a review of the decision within 52 weeks.

93.     In considering the matter of special circumstances the Tribunal was guided by decisions of the Federal Court and the Administrative Appeals Tribunal which have afforded a consistent interpretation of what is meant by ‘special circumstances’.

94.     In the case of Beadle v Director-General of Social Security (1985) the Full Federal Court held that consideration of special circumstances would depend upon the facts of the case and include those matters which render circumstances unfair or inappropriate.

95.     Justice Kiefel said in Groth v Secretary, Department of Social Security (1995) 40 ALD 451 that special circumstances would require something ‘to take it [the case] out of the usual or ordinary case’ and that ‘it would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary’.

96.     In considering if special circumstances exist in the case of Mr Rahim the Tribunal made note of the following:

(a)Mr Rahim was in Graylands Hospital from 10 February 2004 to 27 February 2004;

(b)Mr Rahim left Australia when he was still mentally unwell on 7 March 2004;

(c)In 2004 Mr Rahim’s wife did not speak, read or understand English;

(d)Mr Rahim was overseas when Centrelink requested information from him about his income, and then cancelled his family tax benefit when he failed to provide this information;

(e)Mr Rahim did not receive any correspondence from Centrelink after he left Australia on 7 March 2004;

(f)Mr Rahim has a psychotic illness which has led to numerous admissions to psychiatric hospitals in Australia, Afghanistan and Pakistan.  Between March 2004 and the end of 2008 Mr Rahim was admitted to hospitals in Afghanistan and Pakistan on a number of occasions as a result of psychotic breakdowns;

(g)After psychotic breakdown it can take Mr Rahim up to 12 months to recover;

(h)Mr Rahim stated he did not start to feel well again until late 2007.

97.     In the case of Mr Rahim the Tribunal is satisfied that, as Mr Rahim was mentally unwell in March 2004 and for at least the 52 weeks after and he did not receive the notice from Centrelink informing him that his family tax benefit had been cancelled, there are special circumstances which take his case ‘out of the ordinary’, and that these circumstances prevented him from applying for a review of the decision to cancel his family tax benefit within 52 weeks of being notified of the decision.

98.     In view of Mr Rahim’s mental illness the Tribunal determines that it is appropriate to allow Mr Rahim until the end of 2007 (the time when Mr Rahim states he started to get better) in which to apply for this review.  As Mr Rahim asked for a review of the decision on 25 September 2006, the Tribunal is satisfied that Mr Rahim has asked for a review within the appropriate period.

99. Therefore under subsection 109D(2) of the Act Mr Rahim’s request for a review of the decision to cancel his family tax benefit from 30 April 2004 and to consider if he was entitled to any back pay of family tax benefit which he made on 25 September 2006 must be considered.

100.   The Tribunal then went on to consider if it was correct to cancel Mr Rahim’s family tax benefit on 30 April 2004.

101. The Tribunal considered the effect of Mr Rahim’s and his children’s absences from Australia. Section 24 of the Act provided for the effect of absences from Australia on the status of a family tax benefit child and also the effect on the individual in receipt of family tax benefit.

102. The Tribunal considered the effect of Mr Rahim’s absences from Australia. The Tribunal considered subsections 24(4) and (5) of the Act which stated:

(4)If an individual leaves Australia, the maximum period for which the individual can be eligible for family tax benefit during that absence from Australia is the period of 3 years beginning on the first day of that absence.

(5)If:

(a)  an individual who has been absent from Australia for more than 26 weeks, but less than 3 years, returns to Australia, and

(b)  the individual leaves Australia again less than 26 weeks later;

the individual is taken not to have returned to Australia for the purposes of subsection (4).

103.   The Tribunal noted that Mr Rahim had left Australia on 10 July 2000, returned on 30 May 2001 and then departed on 26 June 2001, this being a period of less than 26 weeks from when Mr Rahim returned to Australia.  Mr Rahim next returned to Australia on 12 September 2003.

104.   The Tribunal noted that Mr Rahim was not paid family tax benefit in respect of Hanzala until 12 September 2003, after he had re-entered Australia. 

105. The Tribunal finds that as Mr Rahim was not eligible for family tax benefit until 12 September 2003 his earlier departures and returns to Australia prior to this date cannot be considered, and subsection 24(5) does not apply.

106. As the Tribunal was satisfied that subsection 24(4) of the Act is relevant in this case the Tribunal determined that Mr Rahim was eligible to be paid family tax benefit during his absence from Australia for a period of three years from 7 March 2004 to 6 March 2007.

107. To be paid family tax benefit under section 21 of the Act Mr Rahim must have at least one FTB child. The Tribunal then considered if Hanzala and Huemza, in respect of whom Mr Rahim was being paid family tax benefit, were FTB children during this period.

108. The Tribunal considered the provisions of subsection 24(1) of the Act in respect of Hanzala and Huemza. Hanzala was born outside Australia on 14 December 2002. Mr Rahim applied for family tax benefit for Hanzala when he returned to Australia on 12 September 2003 and family tax benefit for Hanzala was granted to Mr Rahim from 12 September 2003 and not from Hanzala’s date of birth. The Tribunal accepts that Hanzala became an FTB child on 12 September 2003 and was not regarded as an FTB child at birth. The Tribunal was satisfied that Huemza was an FTB child from his date of birth on 24 November 2003.

109. In applying subsection 24(1) the Tribunal was satisfied both children were FTB children when they left Australia on 7 March 2004, and they were both absent from Australia for more than 3 years. Under subsection 24(1) both Hanzala and Huemza ceased to be FTB children after they had been absent from Australia for three years from 7 March 2004. That being the case they both ceased to be FTB children on 7 March 2007.

110. Therefore when considering the combined effect of subsections 24(1) and (4) of the Act Mr Rahim was entitled to be paid family tax benefit in respect of Hanzala and Huemza in the period 7 March 2004 to 6 March 2007.

111.   The Tribunal therefore decided that Mr Rahim was entitled to be paid family tax benefit in the period 7 March 2004 to 6 March 2007. 

Issue Two –

112.   Mr Rahim was absent from Australia during the 2007/2008 financial year.

113.   On 23 April 2009 Centrelink sent a notice to Mr Rahim informing him that he could not be paid family tax benefit for the 2007/2008 financial year as he did not meet the Australian residence requirements for the payment.

114.   The Tribunal has already decided that as Mr Rahim was absent from Australia he was only entitled to be paid family tax benefit in the period 7 March 2004 to 6 March 2007.

115.   As the 2007/2008 financial year is outside of this period Mr Rahim was not entitled to be paid family tax benefit in this year.

Issue Three

116.   The parties agreed that if the Tribunal found there was an entitlement in the relevant period, that the issue of debt and recovery falls away. Therefore the Tribunal, having found an entitlement in the relevant period, did not need to consider the third issue.

Decision

117.    The Tribunal affirms the decision of the Social Security Appeals Tribunal under review as follows:

(a) Mr Rahim was entitled to be paid family tax benefit in the period 7    March 2004 to 6 March 2007. 

(b) Mr Rahim was not entitled to be paid family tax benefit in the 2007/2008 financial year.

I certify that the 117 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member

Signed: ..(sgd) T Freeman.............................
  Associate

Date/s of Hearing  19 October 2010
Date of Decision  23 November 2010
Representative for the Applicant    Mr P Maishman
Solicitor for the Respondent          Mr R Grayden