Sheikh and Secretary, Department of Family and Community Services - [2004] AATA 92

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1106

GENERAL ADMINISTRATIVE DIVISION

Re: ASHRAF SHEIKH

Applicant

And: SECRETARY,
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES

Respondent

DECISION

Tribunal: Mr W.G. McLean, Member

Date: 4 February 2004

Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) W.G. McLean
Member

SOCIAL SECURITY — youth allowance - whether it is unreasonable for applicant to live at home - decision affirmed

Social Security Act 1991 ss 1067, 1069

REASONS FOR DECISION

4 February 2004 Mr W.G. McLean, Member

The Tribunal considered an application from Mr Ashraf Sheikh for the review of a decision of the Secretary to the Department of Family and Community Services (the respondent) made on 5 June 2003. The respondent decided not to approve the applicant's claim for the unreasonable to live at home rate of youth allowance. The respondent's decision was affirmed by the Social Security Appeals Tribunal (the SSAT) on 9 September 2003.
The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975.
The applicant was self‑represented. The respondent was represented by Ms K. Paul, a Centrelink advocate.
The applicant has received youth allowance pursuant to Part 2.11 of the Social Security Act 1991 (the Act) since 21 April 2000 when he turned 16 years of age. The applicant lodged with the respondent claims to be regarded as independent for the purposes of Part 2.11 of the Act on 30 December 2002 and 7 May 2003, on the premise that it was unreasonable for him to live at home. The following relevant legislation is provided by the Act:
1067A.(1) This section applies to determine whether a person is to be regarded as independent for the purposes of this Part and Part 2.11. A person is not to be regarded as independent except as provided by this section.
…
1067A.(9) A person is independent if:
(a)the person cannot live at the home of either or both of his or her parents:
(i)because of extreme family breakdown or other similar exceptional circumstances; or
(ii)because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well‑being due to violence, sexual abuse or other similar unreasonable circumstances; or
(iii)because the parent or parents are unable to provide the person with a suitable home owing to a lack of stable accommodation; and
(b)the person is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long-term basis; and
(c)the person is not receiving, on a continuous basis, any payments in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory.
At the commencement of the hearing the applicant was given time to re‑read and consider the reasons for the SSAT's decision (T2). He said that the following information recorded by the SSAT in its reasons for decision continues to correctly represent the factual basis for his application for review:
…
INFORMATION PROVIDED AT THE HEARING
13.Ms Sheikh has been in Australia since 1994, having come from Algeria, where he was born. His family is originally from Somalia, but his father worked at a diplomatic mission in Algeria where Mr Sheikh was born. When war broke out in Somalia, his parents were able to come to Australia.
14.Mr Sheikh told the Tribunal that there was no hitting or violence in the home because his parents were adherents of the Muslim religion. His reason for leaving home was that he could not get along with his family. They wanted to bring up their kids the way that they had been brought up. He could not live there and live the life a teenager is supposed to live. There was arguing with his parents. There were problems at school, and teachers were ringing up. He had not been paying attention at school because "there were too much [sic] problems in my head".
15.Mr Sheikh said that he willingly attended Muslim school each Saturday for 3 hours, and that there was no conflict with his parents over that.
16.Mr Sheikh also worked part time at Safeway during years 11 and 12, from about 5:00 pm to 10:30 or 11:00 pm. He had worked in 1999 until July and again in 2000, until about August. His parents did not like him working. His parents were, however, finding it difficult to support their family. When it came time for the Year 12 formal, Mr Sheikh was not able to afford to go.
17.Mr Sheikh had been socially active when living at home, playing soccer with a team from the high‑rise flats at North Melbourne. He was very interested in socializing, but his parents saw socializing as a waste of time. By age 17 or 18 he "couldn't take" his parents' attitude to this any more.
18.Some of the conflict about schooling had to do with his parents' "forcing" him to do an international business course at NMIT Preston. He had wanted to finish high school and then do a real estate course part‑time. The international business course ran for 2 years, and Mr Sheikh only completed the first year of the course. Despite his parents' urging, he refused to go back to finish the course. At the end of Year 12, he had not done well. His father was angry, and told Mr Sheikh that he had wasted his life.
19.There were also "dramas" over Mr Sheikh's wish to be out at night later than his parents thought to be appropriate. For example, if he were out at a party and not home until 10:00 or 11:00 pm he would face a "bad reaction" from his father.
20.Mr Sheikh told the Tribunal that he had tried to solve his problems with his parents, but they were telling him what he should do without giving him a reason. This, he said, might have been alright if he had been 15 years' old, but he was a 19 year‑old. It had been like this for 3 or 4 years, he said.
21.He left home on 12 January 2003, so he would no longer be a burden on the family. He was then homeless for a time. He said that when he announced that he was leaving home, his father said that he "didn't care", but his mother was concerned to ask him what he was going to do.
22.Since January 2003 Mr Sheikh has been to the family home only once or twice. His parents have not been to visit him. He tried to speak with his father about 2 months ago, but his father walked off and would not talk to him. Mr Sheikh believes that his mother would like him to come back home, but she has not said so directly, and he got this understanding from his sister. If he phones home he will speak to his mother. He phones so that he can speak with his brother and sister. He has also seen them personally sometimes.
23.Asked about a Centrelink module signed by his mother, Mr Sheikh said that he completed one form on her behalf, filling in the answers to the questions when she told him what to write. Another form that his mother completed was filled out with the help of his sister. Mr Sheikh denied having left home in December 2002, despite the information to this effect on forms lodged by him with Centrelink.
24.Mr Sheikh said that it is now too late to go home: he does not see himself as going home. He wants to stand on his own two feet. He has no income apart from youth allowance. From his fortnightly payment, his Ministry of Housing rent of $52 is deducted, as is $28, being a repayment of a loan. He is left with $124 per fortnight to pay his bills. He cannot afford transport. He has had to go to the Salvation Army to obtain some items of furniture, such as a bed and a cupboard. He is sometimes able only to afford one meal a day. He shares his flat with another person, and has to borrow from her and her boyfriend. He owes them $200 at present. She will pay for some things that he cannot afford.
25.Mr Sheikh gave the Tribunal his permission to speak with his mother. The Tribunal attempted to do so whilst Mr Sheikh was present, but there was no answer at the number called.
The applicant referred to his written comment recorded in clause 2 of the SSAT reasons for decision (T2) concerning his past relationship with his parents. He said that he withdrew his comment that "It's been that many times they've almost kicked me out". He said that the comment was untrue and that his parents had never endeavoured to force him to leave their family home.
The applicant gave evidence that he has not returned to his parents' home since he departed on 12 January 2003. He said that he occasionally speaks to his parents when he meets them from time to time and he confirmed that his parents would like him to return to their family home to live. The applicant has a good ongoing relationship with his sister aged 16 and his brother aged 12 who he meets from time to time. He said that he believes that his sister and brother are happily living with their parents at this time.
The applicant provided the following written submission in support of his application:
I'm currently appealing against my numerous lost decisions by Centrelink and the Appeals Tribunal which is situated on the corner of Bourke and Spencer. I've been living out of home since January 03 and reasons were because of unstable circumstances that went over the years.
Basically I don't have no income whatsoever from my parents even though they know my situation, but it's understandable because they're raising my brother and sister on Centrelink income and casual hrs of work a week. I have been looking for work but it's hard because sometimes I don't have transport fees or I'm too busy with looking for food vouchers and ways to get Centrelink to understand my situation. All I'm asking for is the normal away from home rate because it will make a difference, and if I do get the decision to go my way, it will help in [sic] pay my bills instead of being always behind or in debt to my room mate till now and also with food and transport. I've also found out a month ago that my girlfriend is pregnant and she has decided to keep the baby so I will have to get a job both ways and support my kid, so I hope you can understand my situation and make the progress quicker because it has taken 10 months so far and I'm wasting away because of no food and too much stress because of debts and money problems.
The away from home rate is not going to make me rich or make me have an advantage over anybody. It's just gonna give me a step in finding a job and paying my bill debits and etc. I hope this letter has been brief and clear because I don't know what else to say. I have written too many of these outlining $150 a fortnight is not survival, many social workers have told me your situation is acceptable for the rate your applying for but they couldn't do nothing because my case was processing somewhere else. So I hope this letter can help in my favour.
Thank you.
[signed Ashraf Sheikh]
The applicant gave evidence that he is not presently living with and financially supporting his girlfriend, who is pregnant and expecting their baby to be born in April 2004. The applicant said that he decided to discontinue his casual employment of approximately nine hours per week with Safeway, about the time that he left his family's home in January 2003. He has an application currently before Safeway for re‑employment, and is waiting for a position with Safety to become available. It is apparent that the applicant has the capability to undertake employment and is surprising that he has not been able to obtain regular paid employment, as he appeared to be a well‑spoken, energetic and capable young man.
The Tribunal concurs with the finding of fact by the SSAT that the applicant decided to leave his parents' home on 12 January 2003 because of arguments he was having with his parents over school attendance, study and his social life. However, the Tribunal finds that the evidence provided by the applicant does not indicate that he could not live at the home of his parents because of extreme family breakdown or other similar exceptional circumstances pursuant to sub‑s 1067A(9)(i) of the Act. The Tribunal also finds that the applicant was not subject to a serious risk of the nature provided under sub‑s 1067A(9)(a)(ii) of the Act.
The applicant gave evidence that both of his parents desire him to return and live in their family home and there is no evidence before the Tribunal that the applicant's parents are unable to provide the applicant with a suitable home owing to a lack of stable accommodation pursuant to sub‑s 1067A(9)(a)(iii) of the Act.
The Tribunal is also satisfied that the applicant has not worked for the number of hours and period required to enable consideration to be given to s 1069A of the Act.
The decision under review is affirmed.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr W.G. McLean, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing:  16 December 2003
Date of Decision:  4 February 2004
Advocate for the applicant:          Self‑represented
Advocate for the respondent:       Ms K. Paul, Centrelink