Siavash Khorramdel and Secretary, Department of Social Services
[2015] AATA 383
•29 May 2015
[2015] AATA 383
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/0933, 2013/0394 & 2013/0935
Siavash Khorramdel
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Ms Jill Toohey, Senior Member
Dr James Popple, Senior MemberDate 29 May 2015 Place Sydney
The Tribunal affirms the decision under review.
.............................................
Jill Toohey, Senior Member
CATCHWORDS
SOCIAL SECURITY - newstart allowance - whether applicant was employed while receiving payment - whether debts incurred by applicant - whether applicant failed to declare income - whether documents in other names in fact concerned the applicant - procedural fairness - Tribunal satisfied applicant was employed and not qualified for newstart allowance during the relevant period - whether any special circumstances - no reason debts should not be recovered in full - decision under review affirmed
LEGISLATION
Social Security Act 1991, ss 593, 1223(1), 1236, 1237A, 1237AAD
CASES
R v Hillier (2007) 228 CLR 618
REASONS FOR DECISION
Jill Toohey, Senior Member
James Popple, Senior Member29 May 2015
Background
In August 1995, Mr Siavash Khorramdel applied for newstart allowance. From 25 June 1996, he was paid at the maximum rate. Apart from a brief period when he was overseas in 1998, he continued to receive newstart allowance until March 2004 when he was granted disability support pension (DSP).
On 1 November 2006, Centrelink cancelled Mr Khorramdel’s DSP on the ground that he was employed full time and not entitled to the payment. Centrelink further alleged that Mr Khorramdel had not been entitled to payment for most of the time since June 1996.
In March and April 2007, Centrelink raised debts over two periods as follows:
·25 June 1996 to 19 June 2001: $49,965.45; and
·26 September 2001 to 31 October 2006: $61,267.72.
Mr Khorramdel was charged in relation to the debts incurred during the second period. For reasons which are not clear but do not matter here, the debts raised in respect of the earlier period were not the subject of prosecution. This earlier period is “the relevant period” in these proceedings.
In August 2008, Mr Khorramdel pleaded guilty to two counts of causing a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code Act 1995 in respect of the debts incurred in the second period. In October 2008, he was sentenced to 18 months imprisonment with a non-parole period of 12 months. He was released in October 2009. During 2008, he repaid the debts that were the subject of the charges.
In November 2008, while he was in prison, Mr Khorramdel’s wife asked that the debts incurred during the relevant period be written off. Centrelink agreed to her request. The effect of writing off a debt is that recovery is temporarily or permanently suspended. There is no bar to Centrelink pursuing recovery at any later time: s 1236(3) of the Social Security Act 1991 (the Act).
Following Mr Khorramdel’s release from prison, Centrelink recommenced action to recover the debts for the relevant period. Mr Khorramdel denies they are his debts. He says he was not employed during the relevant period, and that documents on which Centrelink relies concern persons who are not him.
For convenience, we refer to the respondent here as “Centrelink”.
Relevant legislation
At the start of the relevant period, s 593 of the Act provided that, subject to certain other provisions, a person qualified for newstart allowance if he or she was unemployed and either satisfied, or was not required to satisfy, the activity test. The Act was amended at various times during the relevant period but the requirement that a person be unemployed in order to qualify for newstart allowance remained.
It is not in dispute that the amount of any social security payment obtained by a person who was not entitled to it is a debt due to the Commonwealth (see s 1223(1) and its equivalent during the relevant period).
It is common ground that, if Mr Khorramdel is found to have been employed as Centrelink asserts, he was wholly unentitled to newstart allowance during the relevant period.
Preliminary matters
Prior to the hearing, and at its commencement, submissions were made on behalf of Mr Khorramdel to the effect that the Tribunal could not, and in any event should not, determine the application before it.
Firstly, it was said, it was unfair for Centrelink to pursue debts allegedly incurred between 13 and 18 years ago. It was submitted that “the delay” was a breach of procedural fairness because Mr Khorramdel had been unable to obtain access to documents such as bank records, and to obtain positive evidence from alleged employers to show that he was not employed by them during the relevant period.
It was also said that Mr Khorramdel had been unable to examine records of the Australian Taxation Office (the ATO) on which Centrelink relied. In fact, it appears that the records that Mr Khorramdel requested were made available to him prior to the hearing.
Secondly, it was said, Centrelink had advanced no reason why it should be permitted to take action to recover debts for the relevant period when it had: raised debts for both periods around the same time; pursued criminal charges in respect of the second period only; and written off the debts for the relevant period.
It was submitted that Centrelink’s failure to have all matters “resolved together” so as not to “duplicate proceedings” was unreasonable and, in the circumstances, the Tribunal should not allow Centrelink to pursue the present debts.
We reject those submissions. To the extent that there has been any delay, it cannot fairly be laid at Centrelink’s feet. Centrelink commenced investigations into Mr Khorramdel’s entitlement in May 2005 following a routine tax file declaration form review. It is apparent from the documents submitted by Centrelink that its investigation entailed numerous oral and written inquiries of employers, the ATO, banks and other institutions. Centrelink cancelled Mr Khorramdel’s payment in November 2006 and raised the debts in March 2007.
Mr Khorramdel cannot reasonably complain that Centrelink took no action in relation to the relevant period until 2005. If, as he maintains, he was entitled to payments during that period, Centrelink had no reason to question them. On the other hand, if he was earning income under other names, it is not surprising that the overpayments went undetected. Moreover, once the debts were raised, they were for a time written off at the request of Mr Khorramdel’s wife, and further time passed while he sought to challenge the debts.
Having written off the debts temporarily, Centrelink recommenced recovery action in August 2009 by garnisheeing Mr Khorramdel’s tax refund. It was not until June 2010 that he challenged the debts. In the process, he sought access to ATO documents under the Freedom of Information Act 1982 (Cth). His application for access, which itself involved an application to this tribunal, took over two years and it was not until October 2012 that Mr Khorramdel sought review by the Social Security Appeals Tribunal and, ultimately, by this Tribunal, of the decision that he was not entitled to payment during the relevant period.
It is true that, in relation to the relevant period, some employers advised Centrelink that they no longer held records, or their records were limited. To that extent, there are some gaps in the information available to the Tribunal. However, delay does not necessarily make a breach of procedural fairness and, as set out below, there is ample evidence in other documents to satisfy us that Mr Khorramdel was employed during the relevant period and was not entitled to the payments he received.
In relation to the second submission, Centrelink is not required in these proceedings to show why it should be permitted to raise the debts after they had been written off. The Act provides that there is no bar to “anything being done at any time” to recover a debt that has been written off: s 1236(3).
It is not relevant that criminal charges were pursued in respect of the second period only; whatever the reason, it is not the Tribunal’s concern.
We are satisfied that the Tribunal can, and should, proceed to determine the matter.
Evidence before the Tribunal
Mr Khorramdel says, and we are satisfied, that his lawful name is Siavash Khorramdel and that he was born on 6 July 1962 in Iran. That name and date of birth appear on his passport and Australian citizenship record. They also appear on his student records from Victoria University, an ANZ bank card issued in 2003, his Medicare card, an ING direct savings account and records of the National Australia Bank.
Centrelink contends that Mr Khorramdel has used various names for a range of purposes including taxation returns, employment and banking, in particular that he has used, in various combinations, the first names Sivash and Simon, and the last names Khoramdel, Kheramdel and Khordmel.
Centrelink relies on documents from which it says the only plausible inference is that persons identified by those various names were in fact Mr Khorramdel, and that he was employed throughout the relevant period. The respondent relies in particular on ATO returns lodged during the relevant period in the name Sivash Kheramdel.
Mr Khorramdel gave evidence that, from 2001, he preferred to be known as Simon for employment purposes. We accept that evidence. It is relevant that ATO records show that the person known as Sivash Kheramdel, whom Centrelink contends was Mr Khorramdel, also went by the name Simon for various purposes.
Copies of the documents relied on by Centrelink are before the Tribunal. We are satisfied that each is genuine and its contents accurate.
Mr Khorramdel’s evidence generally
In our view, Mr Khorramdel was not a truthful or reliable witness. He was argumentative and evasive despite repeated opportunities to answer questions or clarify what was asked of him. By way of examples: he maintained he was “not qualified” to say whether signatures on documents were his or even whether they appeared similar; he claimed he could not recall documents and matters that he could reasonably be expected to recall; he claimed his memory was affected by medication; that ATO records were unreliable; that a payslip in the name S Kheramdel that he provided to AMP in support of a loan application was not clear and “could be very well read Khorramdel”; that documents used in the criminal proceedings which showed he was known to his employer after 2001 as Kheramdel contained typing mistakes.
Much of Mr Khorramdel’s evidence was implausible. In particular, he claimed that, at different times, he lived at the same address in Johnston Street, Annandale as persons by the names Simon Khordmel and Sivash Kheramdel, all three of whom were born on 6 July (two of them in 1962 and one in 1960 or 1968). Further, that Sivash Kheramdel (whose ATO returns Centrelink says were lodged by Mr Khorramdel) later moved and lived at the same address as him in Calliope Street, Guildford. In our view, the only plausible explanation for the extent of common employers, addresses and bank accounts is that Mr Khorramdel was employed during the relevant period as Centrelink contends.
Use of the names Siavash Khoramdel
Mr Khorramdel’s NSW driver’s licence shows his name as Siavash Khoramdel. He says this is a typographical error that has found its way into other documents including:
·a resume submitted with his application in 2001 for employment with Central Sydney Area Health Service (CSAHS), and in employment records of CSAHS and South Western Sydney Area Health Service (SWSAHS);
·an application for a home loan in March 2002; and
·a contract for the sale of land in 2004 and related land titles records.
We accept that mistakes can be made as Mr Khorramdel claims. Nothing turns on this slight variation in spelling.
Mr Khorramdel’s employment from 2001 with CSAHS and SWSAHS
It is not in dispute that, on 8 October 2001, Mr Khorramdel commenced full-time employment at Royal Prince Alfred Hospital in the CSAHS under the name Siavash Khoramdel. In May 2005, he was transferred to the SWSAHS. At no time did he notify Centrelink of his employment. He continued to receive newstart allowance and, from June 2004, DSP. Payments received during this period were the subject of prosecution.
In his application for employment with the CSAHS, Mr Khorramdel gave his address as 10/45–47 Calliope Street, Guildford and he submitted a resume setting out his employment from February 1993 to August 2001.
In these proceedings, Mr Khorramdel denies that the employment history in the resume is his. He claims he copied parts of it from the resume of a person named Simon Khordmel with whom he shared a room at a boarding house in Johnston Street, Annandale in 1998 and who happened to have the same date of birth. He says he had been unemployed for many years and was desperate to find employment, and had to make up an employment history in order to secure employment. The employment history in the resume is discussed below.
ATO records for Siavash Khorramdel
In the 1996 tax year, Mr Khorramdel lodged a tax return declaring income of $19,900 including an amount of newstart allowance. No further tax returns were lodged in the name Siavash Khorramdel (or Khoramdel) from 1997 to 2005.
Centrelink records indicate that Mr Khorramdel was exempt from lodging returns between 1997 and 2006 because he was receiving the full rate of newstart allowance and then DSP. On five occasions he declared small amounts of income but none affected his rate of payment.
As will be seen, employment and ATO records indicate that Mr Khorramdel (or Khoramdel) was also known to his employer as Siavash or Sivash Kheramdel, and lodged tax returns in that name while employed by CSAHS and SWSAHS for the period 2002 to 2005.
ATO records for Sivash Kheramdel
ATO records show tax returns lodged by a person named Sivash Kheramdel for each year in the relevant period as follows:
Tax Year
Employer
Gross Income
1996
Unknown employer
$15,728
Total $15,728
1997
CIT Cards Aust Ltd
J Blackwood & Son Ltd
Seaport Shipping Services P/L
Real Time Aust P/L
Royal Aust College of General Practitioners
“last 2 certs”
$2,426
$465
$6,142
$4,784
$13,691
$2,623
Total $30,131
1998
Seaport Shipping Services P/L
Spectrum Network Systems
The University of NSW
CIT Cards
$3,201
$9,529
$10,407
$4.439
Total $27,576
1999
The University of NSW
SHAR
R S Components
$9,987
$191
$39,533
Total $49,711
2000
R S Components
Halas Dental Ltd
$41,730
$1,095
Total $42,825
2001
Citrix Systems Asia Pacific P/L
Digital Storage P/L
Port Link International P/L
Unknown
$15,020
$10,202
$17,250
$17
Total $42,4849
Centrelink contends that Sivash Kheramdel is Mr Khorramdel. Giving evidence, Mr Khorramdel alternatively denied ever using the name Siavash or Sivash Kheramdel, or claimed he could not remember doing so.
ATO records obtained by Centrelink show a taxation declaration form signed by Sivash Kheramdel (Simon), an employee of Citrix Systems Asia Pacific Pty Ltd, on 26 October 2000. According to the form, Mr Sivash Kheramdel was born on 6 July 1968 and lived at 10/45–47 Calliope Street, Guildford.
A similar ATO record in respect of earnings from CSAHS show a taxation declaration form signed by Siavash Kheramdel, born 6 July 1962, of 10/45–47 Calliope Street, Guildford on 8 October 2001. Mr Khorramdel does not dispute that he commenced employment with CSAHS on 8 October 2001.
ATO records show returns lodged in respect of Mr Khorramdel’s earnings from CSAHS and SWSAHS for the tax years 2002 to 2005 in the name Sivash Kheramdel. Records for the 2005 tax year show income earned by Siavash Khoramdel at SWSAHS “AIS name Sivash Kheramdel”.
CSAHS records show Siavash Khoramdel, born 6 July 1962, of 10/45–47 Calliope Street, Guildford, earned $22562 in the period 1 July 2004 to 26 December 2004, and $20230 for the remainder of that financial year. ATO records show identical amounts earned in the same period by Sivash Kheramdel.
We do not understand Mr Khorramdel to suggest that a person by the name Siavash Kheramdel or Sivash Kheramdel was employed by CSAHS and SWSAHS at the same time as him.
Other uses of the name Sivash Kheramdel or S Kheramdel
Centrelink contends that Mr Khorramdel used the name Sivash Kheramdel or S Kheramdel for the following purposes:
·to open a Commonwealth bank account in August 2000;
·when advising CSAHS of the name and number of the bank account into which his pay should be deposited;
·on a Commonwealth Bank debit card linked to his account;
·on pay slips issued by the CSAHS in 2001, 2002 and 2003;
·for employment by Citrix Systems Asia Pacific in 2000 and 2001 (where he said he was born on 6 July 1962);
·in employment records of the University of New South Wales (where his birth date is recorded as 6 July 1968).
The resume submitted to CSAHS
As discussed above, Mr Khorramdel applied to the CSAHS for employment in the name Siavash Khoramdel and submitted a resume in that name. It gave his date of birth as 6 July 1962 and his address as 10/45–47 Calliope Street, Guildford. It gave his employment history during the relevant period as follows:
Jan 1996 – Jan 1998 Dept. of Fair Trading, NSW
Computer Support Officer (contract)
Feb 1998 – Sep 1998 University of NSW, Randwick
PC/LAN Support (contract)
Oct 1998 – Feb 2000 RS Components Pty Ltd, Smithfield, NSW
Computing Systems Administrator (permanent)
Aug 2000 – Oct 2000 Digital Storage Pty Ltd, Ultimo, NSW
Systems Engineer (contract)
Oct 2000 – Jan 2001 Citrix Systems Asia Pacific, North Ryde, NSW
Support Specialist (contract)
Feb 2001 – Aug 2001 Portlink International, St Peters, NSW
Systems Administrator (contract)
Giving evidence, Mr Khorramdel denied being employed by any of the employers listed on the resume. He claimed he was desperate to find work and copied the employment history from the resume of a person named Simon Khordmel who was living at the time at the same boarding house in Johnston Street, Annandale and at one time shared a room with him.
Mr Khorramdel produced to the Tribunal a document purporting to be the resume of Simon Khordmel. Mr Khorramdel said that he had been given a hard copy of the resume by Simon Khordmel and had copied it. Much of it is identical in content and layout (including its typeface) to the resume Mr Khorramdel submitted to CSAHS. If he in fact copied it, that might not be thought unusual. But merely producing a document that he says he copied does not satisfy us that another person existed. We place no weight on the document purporting to be Simon Khordmel’s resume.
University of NSW records
In the course of its investigations, Centrelink asked the University of New South Wales (UNSW) whether Mr Khorramdel had been employed there. UNSW replied on 20 February 2007 that he was employed under the name Simon Kheramdel, born on 6 July 1968, of 30/96–98 Johnston Street, Annandale.
Payroll records provided by UNSW for a person employed under the name Simon Kheramdel, born 6 July 1968 of 30/96–98 Johnston Street, Annandale show regular fortnightly payments from 16 February 1998 to 17 September 1998.
Mr Khorramdel denies this person was him and has pointed out that Simon Kheramdel was born on the same day but in 1968. In all the circumstances, we place no weight on this detail.
Citrix Systems Pty Ltd
ATO records show a tax file declaration form for Sivash (Simon) Kheramdel of 10/45–47 Calliope Street, Guildford was signed at Citrix Systems Pty Ltd in October 2000.
Centrelink asked Citrix Systems Pty Ltd whether Mr Khorramdel had been employed there. They advised on 6 November 2006 that “Sivash (Simon) Kheramdel”, of 10/45–47 Calliope Street, Guildford, was employed from 26 October 2000 to 22 January 2001; his salary was deposited into a Commonwealth Bank account in the name Sivash Kheramdel (the BSB and account number were provided).
Giving evidence, Mr Khorramdel agreed that he used the name Simon but maintained he only used it after 2001. He agreed that in 2001 he lived at the same address as given in the declaration by Sivash (Simon) Kheramdel but he denied that the bank account details for Sivash Kheramdel were in fact his bank account.
A CSAHS Staff Appointment Form shows that Siavash Kheramdel born 6 July 1962 of 10/45–47 Calliope Street, Guildford, provided the same Commonwealth bank account details to CSAHS for payment of his salary. The account was in the name S Kheramdel. Mr Khorramdel conceded that he completed the form when he started work at Royal Prince Alfred Hospital.
Port Link International Pty Ltd
Mr Khorramdel agreed in cross-examination that he lived for a time in Edensor Street, Epping, and applied to AMP for a home loan for that property on 23 March 2002.
The AMP Home Loan Application Form obtained by Centrelink shows an application for pre-approval in the name Siavash Khoramdel (“aka Simon”) (with “aka Simon” struck out) of 10/45–47 Calliope Street, Guildford born on 6 July 1962. The applicant gave his current employer as CSAHS and his previous employer as Port Link International.
Mr Khorramdel conceded the signature on the application form was his, but claimed the bank officer completed the information on the form for him. He claimed he told the officer he was employed by Port Link International because he was relying on his resume.
In response to Centrelink inquiries, Sims Partners, accountants, advised they had previously acted as liquidators for Port Link International but the directors had not delivered up its books and records. They were therefore unable to advise about employment of “Siavash Khorramdel (Sivash Kheramdel).”
Halas Dental
ATO records show an employment declaration signed on 29 June 2000 by a person named Simon Khoramdel of 10/45–47 Calliope Street, Guildford for an employer, Halas Dental Limited.
Mr Khorramdel again agreed he had used the name Simon, and spelled his last name as shown on the ATO records, and that he lived at that address in Guildford, but denied working for that employer.
Bank account records
A document obtained from the Commonwealth Bank shows an account opened on 28 August 2000 in the name Sivash Kheramdel, born 6 July 1962, of 3 Fordham Avenue, Camberwell, Victoria. Mr Khorramdel claimed he could not remember that address or opening that account. Records provided by CSAHS show that Siavash Khoramdel gave his emergency contact as his sister of 3 Fordham Avenue, Camberwell, Victoria, and provided the same bank account details as above.
Asked whether the signature on the account form was his, Mr Khorramdel repeatedly refused to answer the question and claimed he was “not qualified” to say whether it was his or not. He claimed he could not remember anything about that account and claimed that his medication affected his memory. This is the same bank account that he nominated for payment of his wages from CSAHS.
Commonwealth bank records also show an account opened on 30 April 2003 in the name Sivash Kheramdel, born 6 July 1962, of 10/45–47 Calliope Street, Guildford. Mr Khorramdel claimed again to be “not qualified” to say whether the signature on the bank form was his, and he could not remember opening that account.
Commonwealth bank records also show an account opened on 1 April 1999 in the name Sivash Kheramdel, born 6 July 1962, of 1/20 Morinda Street, Ringwood East, Victoria. Mr Khorramdel claimed he could not remember opening that account and would not comment on the signature which bears a striking resemblance to his signature on his application for review in this Tribunal.
Evidence of ATO witness, Jan Ogle
Ms Jan Ogle has been employed by Centrelink as an investigations case officer since 2003. In 2003, she obtained a Certificate 4 in Government (Fraud Control Investigation). From 2001 to 2008, she was also the Centrelink Taxation Office Special Project officer at the Hurstville office. In that role she liaised between Centrelink and the ATO for the purposes of investigating cases that “might not be identified through the traditional methods of data exchange”. She gave sworn written and oral evidence.
Under a Memorandum of Understanding between Centrelink and the ATO, Ms Ogle’s functions included attending the local ATO office on several days each week. She did not have direct access to ATO computer records; if information were needed, she would contact the ATO and request it. Documents showing requests for information and the ATO’s replies are in evidence.
In an affidavit and oral evidence before the Tribunal, Ms Ogle described her investigation into Mr Khorramdel’s payments which commenced in about 2005. The scope of her investigation was limited to the period he was in receipt of Centrelink payments so she obtained records, as far as she could recall, from “probably the early nineties to around 2007”. She gave evidence she could not recall precisely the steps she took but described her general practice.
Ms Ogle gave evidence that she asked the ATO to complete a search for a taxpayer named Sivash Kheramdel and she made inquiries with various employers. She obtained the following in the course of her investigation:
·ATO records showing income tax returns lodged in the names Siavash Khorramdel and Sivash Kheramdel; she could not locate any records in the name Simon Khordmel.
·AMP documents indicating that Mr Khorramdel may have used the names Siavash Khoramdel and Sivash Kheramdel in connection with his employment; in particular, he had provided pay slips from CSAHS in connection with his home loan application in the name S Kheramdel;
In November 2006, Ms Ogle caused inquiries to be made with RS Components. In response to the question “Is/was Mr Siavash Khorramdel employed”, the HR and Payroll Coordinator advised: “In searching RS Components payroll system for 2005 and 2006 Mr Siavash Khorramdel does not appear on it”.
Ms Ogle also caused inquiries to be made with PC Support Pty Ltd who, according to Mr Khorramdel’s resume, employed him from February 1993 to December 1995. In response to her request for information about “Siavash Khorramdel (Sivash Kheramdel)” born 6 July 1962, and her question “Is/was Mr Siavash Khorramdel (Sivash Keramdel) employed” PC Support responded: “This person is NOT employed by us, nor known to us”.
Mr Khorramdel submitted that these responses support his evidence that he was not employed during the relevant period. In our view, all they indicate is that records of RS Components and PC Support Pty Ltd do not show a person employed under those names.
In the course of her investigation, Ms Ogle received an email from Mr John Vo at the ATO. In response to her inquiry whether “the two tax records of Sivash Kheramdel and Siavash Khorramdel DOB 6/07/1962 [are] linked?” or whether there are “alternate names listed against each record?”, Mr Vo replied “No”. Mr Khorramdel contends Mr Vo’s reply shows that the ATO “considers them separate entities” and we should infer that Sivash Kheramdel actually exists. Ms Ogle gave evidence that she did not know, and she did not inquire, why the two records were not linked, but she believed Mr Vo may have been incorrect. Whatever the explanation, even if the ATO treated Sivash Kheramdel and Siavash Khorramdel as separate entities, it is not proof that they are different persons and nor does it outweigh the evidence that points to them being the same person.
For Mr Khorramdel it was further submitted that Ms Ogle lacked experience of taxation records and her evidence should not be relied on. We do not accept that submission. It is true that she could not recall every detail of her investigation but that is not surprising given how long ago it was. We are satisfied she is (and was at the time) an experienced investigator with sufficient understanding and knowledge for her to perform her task properly. She acknowledged that she had no training in the tax system itself but that is not required of her for the purposes of her investigation. She had seven years on-the-job experience investigating matters involving social security fraud and serious non-compliance which involved regular exposure to ATO documents and processes. We accept her evidence.
Centrelink’s contentions
Centrelink contends that Mr Khorramdel is the person known as Sivash Kheramdel who lodged tax returns in relation to income earned in the 1997 to 2005 tax years. In particular:
·he used the name Sivash Kheramdel in the course of his employment with CSAHS and SWSAHS, and for banking with the Commonwealth Bank;
·Sivash Kheramdel’s date of birth in the ATO records is the same as his;
·he did not lodge any tax returns under the name Siavash Khorramdel or Khoramdel for the tax years 1997 to 2005 even though he concedes he was employed from 2001;
·the only tax returns in respect of his income from CSAHS and SWSAHS for the tax years 2002 to 2005 were lodged under the name Sivash Kheramdel;
·his employers noted in an email that the spelling of his name on his citizenship certificate was Khorramdel but his tax file number declaration was in the name Kheramdel;
·ATO records to 2005 show his name as Siavash Khoramdel “AIS Name: Sivash Kheramdel”
·he provided payslips from CSAHS in the name S Kheramdel to AMP for the purpose of a home loan application;
·SWSAHS advised Ms Ogle that “Siavash Khoramdel (preferred name Simon), AKA Kheramdel and Khorramedel (as per Tax Advice) (DOB 6/7/1962) commenced employment on 8/10/2001 on permanent full-time, 38 hours per week, basis for Sydney South West Area Health Service (SSWAHS as an Analyst, as is to date still currently employed [sic]”;
·the address for the Commonwealth bank account in the name of Kheramdel was the same as used by Mr Khorramdel for his ING savings account;
·addresses declared to UNSW and Citrix Systems Pty Ltd in relation to Sivash Kheramdel were addresses where Mr Khorramdel lived;
·the resume he provided to CSAHS in 2001 included employers for which income was declared in prior tax years under the name Sivash Kheramdel;
·he lodged tax returns for 2002 to 2005 in the name Sivash Kheramdel at addresses, both of which were his home addresses according to Centrelink records.
Gap in payroll records in 1998
Mr Khorramdel says he was not in Australia from 28 March 1998 to 29 April 1998. Stamps in his passport confirm this. The Employment Declaration form records fortnightly payments made by UNSW to a Simon Kheramdel from 16 February 1998 to 17 September 1998. There are unexplained variations in the amounts paid between 16 February and 28 May 1998, including a period when Mr Khorramdel says he was overseas. On its face, the payroll record appears at odds with his absence overseas but we have no evidence as to his leave entitlements, wages or conditions for his employment with UNSW. The record raises questions but that is all. It does not establish that Mr Khorramdel was not employed by UNSW as Simon Kheramdel, and it does not outweigh the material that strongly supports the conclusion that he was.
Evidence of witnesses
In support of his claims, Mr Khorramdel submitted brief letters from two persons. The first, dated 20 July 2014, was from Ms Zahra Khorramdel, his sister-in-law in Iran. It stated that “between early 2000 to around mid-2001” she transferred approximately $120,000 to Mr Khorramdel in Australia through a third party in Iran. The money was “inherited sums of money from his parents who were living in Iran”.
Mr Khorramdel maintains that the letter from his sister-in-law shows he had an income during the relevant period that was not attributable to employment. Further, that it explained any “irregularities” in monies in his accounts other than Centrelink payments.
Statements for Mr Khorramdel’s ING Savings Maximiser account shows that he accumulated savings of more than $100,000 during much of the relevant period. His statement for April to June 2001 shows a balance of $115,484.12 at 30 June 2001 and several large deposits, all of which Centrelink contends are inconsistent with newstart allowance being his sole income. Mr Khorramdel says his sister-in-law’s evidence would counter this contention.
Whatever the source of the funds in Mr Khorramdel’s account, we disregard it for our purposes. Even if we accept that his sister-in-law sent him large amounts by way of his inheritance, it does not follow that he was not employed during the relevant period.
The second letter, dated 8 July 2014, was from Mr Mehran Erfanian who stated he was a friend and “often” visited Mr Khorramdel during 1996 to 2001 at his residences in Johnson Street, Annandale, and Calliope Street, Guildford, and they often talked by phone; to the best of his knowledge, Mr Khorramdel “was unemployed and was not working”.
Whether the Tribunal would hear from these witnesses was discussed at some length at the start of the hearing on 21 January 2015 and again on 30 March 2015.
The transcript of the hearing on 21 January 2015 shows there was some discussion about what weight the Tribunal might give to a witness by telephone when there is limited opportunity to test the evidence and, even if we did hear the evidence, how it would assist. The transcript shows that counsel for Mr Khorramdel said that, in the circumstances, Ms Khorramdel’s evidence “probably would not assist the Tribunal”.
In relation to Mr Erfanian, counsel for Mr Khorramdel agreed that his evidence amounted to saying that, to the best of his knowledge, when he visited Mr Khorramdel during the relevant period, he was not employed. The transcript shows that counsel said “He never, for example, picked him up from a workplace, or anything like that” and “again, it’s simply low level corroborative of what the applicant would give in his evidence”.
No objection was made, at the 21 January hearing, to our decision that it would not assist us to hear from either witness.
On 30 March 2015, shortly before the hearing was to resume for closing submissions, submissions were made for Mr Khorramdel that we should hear evidence from both witnesses. It was submitted that neither was available for the resumed hearing and that a failure to hear from either would be a breach of procedural fairness.
Counsel for Mr Khorramdel said he had been unable to obtain sworn evidence from Ms Khorramdel or Mr Erfanian since being instructed in the matter and, as neither was available that day, the hearing should be adjourned.
We accept there might be some difficulty obtaining sworn evidence from a witness overseas but no reason was advanced as to why a sworn statement had not been obtained from Mr Erfanian who lives in Victoria. In any event, counsel conceded that he proposed each witness be called and sworn simply in order to adopt their statement;
We did not agree to adjourn the hearing. Mr Khorramdel made his request within days of the resumed hearing, more than nine weeks after the hearing had been adjourned for closing submissions and after his counsel agreed that the evidence of Ms Khorramdel and Mr Erfanian would be of limited assistance. We decided we would proceed as if the witnesses had been called and adopted their written statements, and we would hear submissions on the basis that that had occurred.
Sentencing remarks
For Mr Khorramdel, it was submitted that the sentencing remarks of Judge Freeman on 17 October 2008 go to show that he has not assumed different identities. Judge Freemen said:
In his favour, as [his solicitor] has pointed out, this is not a case in which there has been the assumption of false identities and the claiming of several different forms of benefit contemporaneously. He, that is, the offender, has in fact been working and to that extent has been contributing through payments of income tax and the like back to the Commonwealth with one hand whilst defrauding them on the other. It is not as reprehensible as the erection of false identities but it is nonetheless a clear and serious course of dishonesty upon which the offender set himself some years ago.
Judge Freeman’s remarks were made in the context of sentencing Mr Khorramdel for criminal offences committed during a different period than the relevant period in these proceedings. They are not evidence, and they do not assist us in our task.
Claims of mental illness
Mr Khorramdel claims that one reason he did not work during 1996 to 2001 is that he was suffering from a significant mental illness.
On 26 August 2008, Dr Adam Martin, a general and forensic psychiatrist, interviewed Mr Khorramdel and prepared a report for the purposes of the criminal proceedings. His report is in evidence. Dr Martin recorded that Mr Khorramdel reported “a long history of problems with insomnia” and “he has always worried about a great many things”. He told Dr Martin he had recently been referred to a psychologist by his general practitioner for treatment of “depression and anxiety”.
Dr Martin thought Mr Khorramdel had an anxiety disorder “probably complicated by a more recent adjustment disorder with anxious and depressive symptoms, in the context of stress caused by his charges, and the prospect of prison”. He thought, from the history Mr Khorramdel gave, that the anxiety disorder was long-standing and had “been an issue for him for at least 10 years”.
Nothing in Dr Martin’s report supports the conclusion that Mr Khorramdel was incapable of working during the relevant period. He was aware that Mr Khorramdel had been working throughout the period in relation to which he was facing charges despite his apparent anxiety disorder. If Mr Khorramdel was suffering a mental illness during the relevant period, it does not detract from the very large amount of material supporting the finding that he was employed.
Consideration
Centrelink contends that it would be an improbable coincidence that Mr Khorramdel and Sivash Kheramdel would share birth dates, employment history, bank accounts, and at times addresses. Centrelink contends Mr Khorramdel was engaged in full-time employment during the relevant period and earned income that he failed to declare and so was not entitled to newstart allowance during that period.
The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance: R v Hillier (2007) 228 CLR 618 at [46]. Considered in isolation, a plausible explanation might be found for apparent coincidences between Mr Khorramdel and persons of similar names. Considered as a whole, however, the only plausible inference that can be drawn was that Mr Khorramdel was employed during the relevant period under the name Sivash Kheramdel.
For Mr Khorramdel it is submitted that Centrelink has failed to undertake inquiries such as with the Registrar of Births Death and Marriages to establish that there is not a person born on 6 July 1962 or 1968 by the name Sivash Kheramdel. It is true that Centrelink has not made such inquiry but, equally, Mr Khorramdel might have made it himself. However, this is not an adversarial process. It is not for Centrelink to establish or explain every gap in information or apparent discrepancy in information as Mr Khorramdel asserts. Centrelink is not required to prove that Sivash Kheramdel positively is Mr Khorramdel, any more than it falls to him positively to establish that he is not. Centrelink is not required to prove a case against Mr Khorramdel. We are required to be reasonably satisfied on the material before us. We are so satisfied.
Is there any reason the debts should not be recovered?
A debt may be written off if the debtor has no capacity to repay, if the debt is irrecoverable at law, if the debtor’s whereabouts are unknown or if recovery is not cost-effective: s 1236 of the Act. As there is no evidence to suggest that any of these applies in this case, there is no ground for writing off the debt, whether temporarily or permanently.
A debt must be waived where it is wholly attributable to administrative error and the debtor received the payment in good faith: s 1237A. There is nothing to suggest that payment to Mr Khorramdel was attributable to administrative error and nor are we satisfied that he received payment during the relevant period in good faith.
A debt may be waived where a debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation, and there are special circumstances that make it desirable to waive the debt: s 1237AAD. For the reasons we have given, we are satisfied that Mr Khorramdel’s debt arose wholly from false statements or representations on his part.
There is no reason why the debts incurred by Mr Khorramdel during the relevant period should not be recovered in full.
Conclusion
We are satisfied that Mr Khorramdel was employed throughout the relevant period under the name Sivash Kheramdel and that gross taxable income declared by Sivash Kheramdel was earned by him. As he was not unemployed, he did not qualify for newstart allowance during the relevant period and has a debt to the Commonwealth in the amounts claimed by Centrelink. No ground is made out as to why he should not be required to repay those debts in full.
We affirm the decision under review.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Members Toohey and Popple. .....................................................
Associate
Dated 29 May 2015
Dates of hearing 21 January and 30 March 2015 Counsel for the Applicant Mr Matthew Campbell Counsel for the Respondent Ms Brin Aniwell Solicitors for the Respondent Legal Services Division, Department of Human Services
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