Skarzynski; Secretary, Department of Education, Employment and Workplace Relations and
[2008] AATA 1104
•10 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3660
GENERAL ADMINISTRATIVE DIVISION ) Re Secretary, Department of Education,
Employment and Workplace RelationsApplicant
And
Krzystof Skarzynski
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date10 December 2008
PlaceAdelaide
Decision 1. The tribunal sets aside the decision under review, and in place of that decision decides that:
(a) the respondent was not entitled to newstart allowance during the period 1 July 2001 to 31 December 2005;
(b) the amount of newstart allowance paid to the respondent during the period from 1 July 2001 to 31 December 2005 is a debt due by him to the Commonwealth;
(c) the decision to cancel payment of newstart allowance with effect from 4 May 2006 is remitted to the applicant for reconsideration in accordance with these reasons; and
(d) the decision to refuse the application for newstart allowance lodged on 24 August 2006 is remitted to the applicant for reconsideration in accordance with these reasons.
D G Jarvis
(Signed)Deputy President
CATCHWORDS
SOCIAL SECURITY – newstart allowance – overpayment – respondent granted newstart allowance in 1997 – respondent engaged in purchasing, repairing and reselling motor vehicles – intensity of activities – whether respondent satisfied activity test – whether newsart allowance was correctly cancelled – whether special circumstances – decision under review set aside – debt raised for portion of benefits paid to respondent – cancellation of newstart allowance and later application for newstart allowance remitted to applicant for reconsideration
Social Security Act 1991 (Cth), ss 593(1), 1223(1), 1237A(1) and 1237AAD
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Haidar v Secretary, Department of Social Security (1998) 52 ALD 255
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284
McDonald v Director-General of Social Security (1984) 1 FCR 354
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Te Velde and Director-General of Social Services (1981) 3 ALN 111
Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26
Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147
REASONS FOR DECISION
10 December 2008 Deputy President D G Jarvis 1. The respondent, Krzystof Skarzynski, received newstart allowance from on or about 19 September 1997 until 4 May 2006, when payment of the allowance was cancelled on the grounds that he was not unemployed, and was therefore not entitled to the allowance. A debt was raised against him for the payments he had received during the above period. Following reconsideration, the debt was calculated at $74, 835.71 in respect of the period 24 July 1998 to 4 May 2006 (the “relevant period”).
2. On 24 August 2006, Mr Skarzynski lodged a new claim for newstart allowance pursuant to the Social Security Act 1991 (Cth) (SS Act). This claim was rejected, and the decision to reject the claim was reconsidered and affirmed.
3. Mr Skarzynski requested a review of the above decisions. They were affirmed by an Authorised Review Officer.
4. Mr Skarzynski applied to the Social Security Appeals Tribunal (SSAT) for review of the above decisions. The tribunal decided that Mr Skarzynski was unemployed during the period from 24 July 1998 to the date of its decision, being 3 July 2007. The SSAT set aside all of the decisions under review and remitted the matter back to Centrelink to consider whether Mr Skarzynski was otherwise qualified for newstart allowance during all or any of the relevant period.
5. The Secretary, Department of Education, Employment and Workplace Relations (DEEWR) has applied to this tribunal for review of the decision of the SSAT.
Issues Before the Tribunal
6. The issues before the tribunal are as follows:
(a)whether Mr Skarzynski was entitled to newstart allowance during all or any part of the relevant period;
(b)whether there has been an overpayment of newstart allowance, and if so, of what amount;
(c)whether payment of newstart allowance was correctly cancelled with effect from 4 May 2006;
(d)whether the overpayment (if any) is a debt due to the Commonwealth;
(e)if the overpayment is a debt due to the Commonwealth, whether there are any grounds to waive or write off the debt or any part of it; and
(f)whether the new claim for newstart allowance lodged on 24 August 2006 was correctly rejected.
Background Facts
7. The following background facts are based on evidence from Mr Skarzynski that was not disputed and on the documentary evidence before me.
8. Mr Skarzynski migrated to Australia from Poland in January 1982, and after working as a taxi driver in Sydney for about three years, came to Adelaide in 1985. He worked as a weaver for about two years, and then worked for about ten years at a drive-in theatre as a caretaker.
9. He had had a back problem for a long time, and found that this was becoming worse. He gave up his work at the drive-in theatre in 1997, and applied for and received newstart allowance.
10. Centrelink notified Mr Skarzynski of his entitlement to newstart allowance by letter dated 30 July 1998 (exhibit A1, T4, pp 38-41). This letter notified him of his obligation to advise Centrelink if (amongst other things) he started “paid work or any form of profession, trade, business or self-employment”, or his income changed from the rate last notified or the income shown on the notice. The notice included an explanation of what was income in terms that made it clear that personal earnings were included. For two periods during the relevant period, namely from 14 November 1997 to 4 August 2000 and from 7 February to 7 August 2002, Mr Skarzynski was incapacitated and was excused from the activity test, which meant that he was excused from the obligation to look for work.
11. Mr Skarzynski gave evidence that when he was in Poland, his financial resources were limited, and the only way he could own a car was to buy an old, rather worn car with mechanical problems, and keep repairing it to keep it drivable. He would then use his old car as a taxi, since people in Krakow, where he lived, were prepared to accept lifts from private drivers for money. If a particular car caused trouble, he would sell it and get another old car in its place. He has never worked in a motor car workshop, and he learned how to fix cars from his own experience. He became a car enthusiast, and brought his passion for cars with him when he migrated to Australia.
12. After he had been in Adelaide for a time, he learned that damaged cars were being auctioned, and he started to purchase such cars and repair them for his own use. He later had the idea of developing a small part-time business to make some extra money by buying damaged cars, repairing them and then reselling them at a profit.
Legislative Scheme
13. Part 2.12 of the SS Act provides for the circumstances that must exist for a person to be qualified for newstart allowance. Section 593(1) of the SS Act provides relevantly in effect that a person is qualified for a newstart allowance in respect of a period if:
“(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed …”
14. There is a discretion under s 595(1) to treat a person as unemployed notwithstanding that he or she has undertaken paid work or any other activity.
15. An applicant for newstart allowance must also satisfy various other qualifications, including the activity test. This is provided for in s 601(1) which provides that:
“…a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.”
16. Persons are exempted from the activity test in various circumstances provided for in Subdivision BA of Division 1 of Part 2.12, and under s 603C these include temporary incapacity for work because of sickness or accident.
17. Under s 1068(1) the rate of newstart allowance is to be calculated in accordance with a Rate Calculator. Subsequent sections of Part 3.6 provide for Modules that establish the overall rate calculation process and the calculation of component parts used in the overall calculation.
18. The raising of a debt against Mr Skarzynski was based on ss 1223(1) and 1224(1) of the SS Act. Section 1224(1) of the SS Act, which applied prior to 1 July 2001, provided as follows:
“1224(1) If:
(a) an amount has been paid to a recipient by way of Social Security payment; and
(b) the amount was paid because the recipient or another person:
(i) made a false statement or a false representation; or
(ii) failed or omitted to comply with a provision of this Act or the 1947
Act…
(c) the amount so paid is a debt due by the recipient to the Commonwealth.”
19. Section 1223(1), which applies from 1 July 2001, provides as follows:
“1223(1) Subject to this section, if:
(a) a social security payment is made; and
(b)a person who obtains a benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”
20. The Secretary has delegated certain powers under the SS Act to employees of Centrelink, a statutory authority established pursuant to the Commonwealth Services Delivery Agency Act 1997 (Cth).
Cancellation of Newstart Allowance and Raising of Debt
21. In 2005 and 2006, Centrelink conducted an investigation into whether Mr Skarzynski was carrying on a business, and if so, the extent of that business. On 12 May 2006 Centrelink decided, on the basis of a number of factors that pointed to the carrying on of a business, including credits of substantial amounts to his bank account that (it considered) were not satisfactorily explained, that Mr Skarzynski was carrying on the business of buying, repairing and selling cars. As a result, Centrelink decided that he was no longer entitled to newstart allowance, and cancelled that allowance, and also raised a debt against Mr Skarzynski for the payments he had received up to the date of his last payment, which was 4 May 2006 (exhibit A1, T81, page 1437). As I have said above, that decision was affirmed on reconsideration (save for a reduction in the period for which the debt was raised), but reversed by the SSAT.
22. In the proceedings in this tribunal the Secretary contends that Mr Skarzynski was not unemployed for the purposes of the SS Act during the relevant period, and relies upon a number of steps taken by Mr Skarzynski that were consistent with his having operated a business. These included the following matters.
23. In December 2000, Mr Skarzynski obtained an Australian Business Number, and registered for GST.
24. On 11 August 2004, he registered a business name “Autocare Port Adelaide”, and described the nature of the business as “motor vehicle repairing detailing and transport” (exhibit A1, T101, page 1618). The application for registration stated that the principal place of business was his residential address, and that another place of business was 13 Aberdeen Street, Port Adelaide. It further stated that Mr Skarzynski was the only person carrying on the business, and that it commenced on 13 August 2004. The registration of the business name expired on 11 August 2007. There is no evidence that it was renewed.
25. Mr Skarzynski included information in various tax returns that indicated that he was engaged in a business. The first such information appears in the tax return for the year ended 30 June 2001, when he completed the section of the material relating to business activities, and described his business as “buying selling damaged cars after doing them up” (exhibit A1, T12, page 255). Similar descriptions of his business activity appeared in his tax returns for the years ended 30 June 2002 (exhibit A1, T21, page 513) and 30 June 2003 (exhibit A1, T21, page 521). In the tax return for the year ended 30 June 2005 (exhibit A1, T 66, page 1136) the business activity is described as “buying and selling damaged cars and/or trailers”, in the tax return for the year ended 30 June 2006 his business activity is described as “restoring a car” (exhibit A4, Appendix I). In the return for the year ended 30 June 2007, the activity is described as “restoring vehicles” (exhibit R7). I have not received a copy of the tax return for the year ending 30 June 2004, although a summary of opening stock, purchases, closing stock and other information appears in exhibit A1, T28, at page 857.
26. On 1 September 2004, Mr Skarzynski made an application to HomeStart Finance for an amount of $42, 000 for the stated purpose of home improvement and a house extension (exhibit A1, T36, page 911). In the application form he described his occupation as motor mechanic and his employer as “Autocare Port Adelaide”, and said that his period of employment was from 1 March 2004 to date, and that his weekly income was $653.80. The declaration at the foot of this form included a confirmation that the information contained in the application was true and correct.
27. The application to HomeStart was supported by a form headed “Employer’s Certificate of Income” dated 1 September 2004 (exhibit A2, T8, page 59). This form showed the employer as Autocare Port Adelaide, referred to Mr Skarzynski as an employee, and asserted that he was a permanent full-time employee whose term of employment had been for six months up to 31 August 2004. The form was purportedly signed by one Michael Parker, an authorised representative of Autocare Port Adelaide. Mr Skarzynski admitted that there was no such person, and that he had completed the form and signed the form in that fictitious name. He also admitted that he had prepared two pay-slips with pay dates of 26 August 2004 and 2 September 2004, which were also fictitious.
28. In or about September 2004, Mr Skarzynski took steps to list a name “Autocare Port Adelaide” in the White Pages of the Adelaide telephone directory (see exhibit A1, T111, page 1687, and exhibit R2, pp 13A-13C). The listing was included in one directory, and then repeated in the next directory, but not after that.
29. In an activity report dated 14 July 2005 (exhibit A1, T42, page 982) Mr Skarzynski said that during the period from 1 to 14 July 2005, he worked for four hours at Autocare Port Adelaide and earned $64. He admitted in evidence that this was not correct, and said that he had put that in the form to satisfy his case manager at Centrelink.
30. Mr Skarzynski answered “No” to a question in an income and assets form dated 31 March 2005 which asked whether he and/or his partner was involved in any other type of business, which (the form explained) included being a sole trader (exhibit A1, T40, page 974).
31. The Secretary also tendered a second “Employer’s Certificate of Income” in relation to a further application to HomeStart Finance for a loan. This application is dated 22 November 2005, refers to Mr Skarzynski as the employee, and asserts a term of employment of one year and eight months. Mr Skarzynski admitted in evidence that he also signed this form in the fictitious name of Michael Parker, and again produced fictitious pay-slips for pay dates of 11 and 18 November 2005, showing gross weekly income of $676.60. Like the earlier certificate, this certificate is stamped with the name “Autocare Port Adelaide”, its ABN, address and telephone number.
32. Detailed evidence was given in relation to the acquisition and disposal of various vehicles during the relevant period. In addition, the section 37 documents include copies of computer records which indicate that Mr Skarzynski and one Jolanta Kucmierz registered a number of vehicles in their names during the relevant period, and subsequently sold them. I refer below to the evidence relating to Ms Kucmierz’s involvement.
33. The Secretary also tendered documents establishing that Mr Skarzynski had over the years placed a number of advertisements in The Advertiser and The Trading Post for the sale of motor vehicles, and that he had bought and sold motor vehicles through two auction houses, namely Pickles Auctions and ManheimFowles Pty Ltd.
34. The Secretary further asserts:
(a)that Mr Skarzynski was using commercial premises to store and fix cars for his business;
(b)that he kept receipts of purchases consistent with a person who is carrying on a business of buying, selling and repairing cars (exhibit A1, T112, pages 1689-1797);
(c)that he travelled and purchased significant amounts for his business on his American Express card; and
(d)that he spent considerable time and effort on his business, and was committed to the business.
Consideration
35. This tribunal stands in the shoes of Centrelink in determining the issues raised, in that it may exercise all of the powers and discretions of the person who made the decision under review. However, the hearing in this tribunal is a hearing de novo, and each party may introduce new material and may rely on further or alternative grounds to challenge or support the decision under review. The tribunal must determine the issues raised by applications before it afresh, by reference to the material before it, and its task is not to decide whether the correct or preferable decision was made on the material before the decision maker who made the reviewable decision: Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147 at [33]-[42] and [96]-[100]. In the present matter, the central issues are whether Mr Skarzynski satisfies me that he was unemployed at the time when his newstart allowance was cancelled in May 2006, and also whether he was unemployed during all or part of the relevant period.
Was Mr Skarzynski “unemployed” between 24 July 1998 and 4 May 2006?
36. In Secretary, Department of Employment and Workplace Relations v Joss (2006) 152 FCR 541, Graham J considered the meaning of “unemployed” for the purposes of s 593(1) of the SS Act. His Honour reviewed a number of earlier decisions of the Federal Court and of this tribunal. The following principles that have relevance to the issues arising in the present proceedings are stated in effect in, or may be deduced from, Graham J’s judgment or the authorities to which he referred.
(a)The word “unemployed” bears its colloquial or popular meaning of not being engaged in work of a remunerative nature.
(b)This meaning must, however, be modified to some extent in that the income test provisions of the SS Act recognise that some income may be earned by a person in receipt of newstart allowance resulting in the diminution of the allowance, but not rendering the person ineligible for it.
(c)Work of a remunerative nature encompasses not only the normal employer-employee relationship but also a person who is self-employed.
(d)A person may be employed even though his activities do not produce an income or profit.
(e)The question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise.
Purchases and sales of vehicles
37. Prior to the hearing, Mr Skarzynski provided a detailed résumé of his “activities in regards to all cars that were (his) property or the ones that were not (his) property but (he) was in some measure involved with”, covering the period from September 1997 until December 2007 (exhibit R2, page 101). This résumé referred in detail to the time that he spent on those activities, and incorporated certain documentary records.It distinguished between cars registered in Mr Skarzynski’s name for his personal use which were his property, cars registered in Ms Kucmierz’s name which were her property, and which were either for her personal use or for their joint use, and finally vehicles purchased for Mr Skarzynski’s admitted business as a sole trader, which he said were his property.
38. However, for the purposes of determining whether Mr Skarzynski was unemployed during the relevant period, I do not think that it is appropriate to divide the vehicles into those separate categories. It is apparent from Mr Skarzynski’s evidence that he regularly purchased damaged cars, and then repaired them and onsold them, often within a comparatively short time of the repairs being completed. Many of the cars were purchased by him and onsold by him, after being registered in his name. In some cases vehicles were used by him for his personal use, but then sold after a relatively short period. I find that those vehicles nevertheless formed part of his business, and should not be excluded from my determination of his employment activity by characterising such vehicles as personal vehicles. In a significant number of other cases, the cars were purchased with funds provided by Ms Kucmierz, and after being repaired by Mr Skarzynski, they were registered in her name and sold, again usually within a short time of being registered, and after she had used them in the meantime. Some vehicles that had been purchased with the intention of using them for a joint holiday were sold after they had been so used. It is apparent that Mr Skarzynski and Ms Kucmierz intended, if possible, to resell the vehicles at a profit. Mr Skarzynski was actively involved in selecting, purchasing, repairing and selling the vehicles registered in Ms Kucmierz’s name. I find that these combined activities constituted the carrying on by Mr Skarzynski of a business activity, which comprised the whole of the purchases and sales of the vehicles in question, whether they were ultimately used by him or Ms Kucmierz for personal purposes, or registered in his name or in her name.
39. Mr Skarzynski claimed that the purpose of his work on vehicles that he and Ms Kucmierz owned and that were used by them for their own personal use was to minimise the high cost to them of owning a vehicle (see exhibit R2, page 43). I accept that this was the position, but he could only achieve this by taking steps to select, purchase, repair and resell suitable vehicles at a profit. He admitted that he intended to make a profit. The purpose for which he used the resulting profit does not alter the character of his activities. I find that those activities constitute employment activities for the purposes of determining whether he was unemployed within the meaning of s 593(1) of the SS Act, especially as those activities were taking place at the same times as similar activities in relation to vehicles which Mr Skarzynski admitted were business activities, albeit on what he asserted to be a “hobby” scale.
40. On the above analysis it is not necessary for me to determine the nature of the business relationship (if any) between Mr Skarzynski and Ms Kucmierz. However, in case I am wrong in concluding that it is unnecessary to determine that issue, I infer from the evidence before me that they were engaged in a joint venture. If or to the extent that this inference, or the conclusions to which I refer in the preceding paragraph, are inconsistent with the evidence of Ms Kucmierz, I reject that evidence, since she prevaricated on a number of matters, and I found her evidence to be vague and unreliable. I do, however, accept that Ms Kucmierz provided loans to Mr Skarzynski, and that those loans were used by him to purchase vehicles which he would repair and then resell. Some vehicles were registered in Ms Kucmierz’s name and some in his name. Particulars of the amounts and dates of the loans, and of two asserted repayments, are contained in a statutory declaration of Ms Kucmierz dated 5 April 2006 (exhibit R6). She did not charge interest on the loans (except, according to Mr Skarzynski’s submissions, where she had sourced the funds from home equity loans), and she provided the loans over a protracted period.
41. A helpful summary (MFI A26) of the evidence as to the vehicles sold and purchased by Mr Skarzynski during the relevant period was handed up by counsel for the Secretary, Ms Reed, as part of her final address. The position, derived from this document, may be further summarised as follows:
(a)Year ended 30 June 1998
Vehicles purchased: 1 (still retained by Mr Skarzynski)
Vehicles sold: 1(b)Year ended 30 June 1999
Vehicles purchased: 2 (including 1 for Ms Kucmierz)
Additional probable purchases: 1
Vehicles sold: 1(c)Year ended 30 June 2000
Vehicles purchased: 1 (being for Ms Kucmierz, but not counting a
Holden Commodore which, Ms Kucmierz said, he purchased for a friend)
Additional probable purchases: 6
Vehicles sold: 7(d)Year ended 30 June 2001
Vehicles purchased: 3 (including 2 for Ms Kucmierz)
Additional probable purchases: 1
Vehicles sold: 2 (including 2 for Ms Kucmierz)
Additional probable sales: 2(e)Year ended 30 June 2002
Vehicles purchased: 9 (including 1 for Ms Kucmierz)
Vehicles sold: 5
(f)Year ended 30 June 2003
Vehicles purchased: 7 (including 4 for Ms Kucmierz)
Vehicles sold: 8 (including 4 for Ms Kucmierz)
(g)Year ended 30 June 2004
Vehicles purchased: 10 (including 3 for Ms Kucmierz)
Vehicles sold: 4 (including 2 for Ms Kucmierz)
Additional probable sales: 1
(h)Year ended 30 June 2005
Vehicles purchased: 10 (including 3 for Ms Kucmierz)
Vehicles sold: 4 (including 2 for Ms Kucmierz)
Additional probable sales: 1
(i)Year ended 30 June 2006
Vehicles purchased: 9 (including 2 for Ms Kucmierz)
Vehicles sold: 8 (including 2 for Ms Kucmierz)
(j)Year ended 30 June 2007
Vehicles purchased: 8 (including 1 for Ms Kucmierz)
Vehicles sold: 6 (including 2 for Ms Kucmierz)
Additional probable sales: 1
42. In the preceding paragraph I have referred in some cases to probable purchases or probable sales. Whilst the records before me do not provide details of such transactions, I infer that they must have occurred. For example, in the year ended 30 June 2000, a Ford Festiva was sold on 1 July 1999, and I infer that it must have been purchased in the preceding year. Similarly, in the year ended 30 June 2000, some six vehicles were sold, but there are no records of any purchases, and so I have assumed that five vehicles were purchased (being six vehicles sold minus the Ford Festiva, which I assume was purchased in the previous year). In a number of cases, cars purchased in one financial year were sold in the next following financial year, and I have accordingly included them as sales in that later financial year.
43. I am unsure whether the above summary includes all of the vehicles listed in exhibit R9. That exhibit includes a summary prepared by Mr Skarzynski of vehicles sold and purchased by him and Ms Kucmierz. I have difficulty reconciling the summary prepared by counsel (MFI A26) with the following transactions referred to in exhibit R9, namely numbers 1, 3, 10 and 13 on page 2 of exhibit R9, numbers 21, 22, 24, 25, 6, 9 and 11 on page 3, and numbers 4, 9 and 1 on page 4. If these transactions are added to the summary in paragraph 41, they would increase the number of transactions in the years ended 30 June 2002 to 2006 inclusive for Mr Skarzynski, and in the year ended 30 June 2005 for Ms Kucmierz.
44. I take into account that in some cases, Mr Skarzynski purchased some vehicles only for parts, or found after buying a particular vehicle that the damage was too extensive for him to repair, and he then resold the vehicle without doing any work on it. Some of the vehicles I have counted were trailers. In some cases Mr Skarzynski still owns the vehicles. Sometimes he purchased or sold vehicles for persons other than Ms Kucmierz, but I have excluded such vehicles.
45. In a typical case, Mr Skarzynski had to attend to all or most of the following matters, namely identifying a prospective vehicle to purchase, inspecting the vehicle before purchasing it, bidding at the auction, arranging finance to purchase the vehicle, moving it to his house (or to the premises at 13 Aberdeen Street Port Adelaide, and then to his house), assessing the extent of necessary repairs, purchasing any parts or paint necessary to repair it, arranging for any necessary work to be done by an external workshop, carrying out the repair work he himself was competent to do, arranging for the vehicle to be inspected for roadworthiness, registering it, advertising it for sale, negotiating with one or more prospective purchasers, signing papers to transfer registration to the purchaser, and banking the proceeds of sale. He made four interstate journeys in connection with the purchase or proposed purchase of vehicles.
46. No doubt the time taken for such of those activities as were applicable varied from one vehicle to another. However, I do not accept the estimates of time in exhibit R2, or Mr Skarzynski’s evidence as to his estimates of the time spent on the sale, repair and purchase of vehicles. Whilst he sought to justify the false information he provided in connection with the two dealings with HomeStart Finance to which I have referred above on the basis that he needed funds to pay down his credit cards, and on the basis that his behaviour was little different from people obtaining mortgages through “Lo Doc” loan applications, the fact is that he was deliberately untruthful in those dealings. He also included incorrect information in a report form sent to Centrelink in 2006, in which he falsely reported that he had worked for 6 hours (exhibit A1, T42, page 988). Those matters indicate a propensity to act dishonestly in order to achieve a financial advantage or to avoid a detriment. Further, the total number of vehicles which Mr Skarzynski and Ms Kucmierz acquired during the relevant period has emerged progressively as a result of the continuing inquiries made by the Secretary; Mr Skarzynski did not at first, even in exhibit R2, disclose particulars of all of the transactions that are potentially relevant to the extent of his activities. I consider that his evidence as to the time he spent on the activities related to the vehicles in question was unconvincing and unreliable, and find that in his evidence and in exhibit R2, he significantly under-estimated the time he spent on those activities.
47. The amount of time spent on the relevant activities is a matter peculiarly within Mr Skarzynski’s own knowledge. There is no reliable evidence before me on that issue in view of my assessment of Mr Skarzynski’s evidence. I must therefore decide whether I should infer from the evidence before me that the intensity of his business activities reached such a level, during the whole or part of the relevant period, that he ceased to be unemployed for the purposes of s 593(1) of the SS Act.
48. I am mindful that there might have been additional transactions not included in the summary set out in paragraph 41 above, because the Motor Vehicle Department’s records only date back to 2002. However, the Secretary issued summonses to secure records from the two relevant auction houses, and the resulting information together with information provided by Mr Skarzynski appears to be reasonably accurate and complete. I therefore consider that, having regard to the lack of credible evidence as to the time actually spent by Mr Skarzynski on the relevant activities, the number of vehicles purchased and resold during the relevant period, in combination with the matters referred to in paragraphs 44 and 45 above, provides an appropriate basis for assessing the intensity of his business activities.
49. The summary of vehicles sold and purchased referred to in paragraph 41 above indicates that there was very little activity in years ended 30 June 1998 and 30 June 1999, and I find that Mr Skarzynski did not cease to be unemployed in those financial years. The summary further indicates that there was increased activity in the years ended 30 June 2000 and 30 June 2001, taking into account my findings as to probable purchases and probable sales. I am mindful that during the year ended 30 June 2001, Mr Skarzynski obtained an Australian Business Number and registered for GST, and also that in his tax return for that year he indicated that he was carrying on a business. Those matters are not indicative of the intensity of his business activities, but having regard to the numbers of vehicles involved in the 2000 and 2001 financial years, I find that he had not ceased to be unemployed during those years.
50. The numbers for the years ended 30 June 2002 to 30 June 2006 were more significant. In the first four of those financial years, purchases and sales were made on a reasonably regular basis, if regard is had to vehicles purchased by both Mr Skarzynski and Ms Kucmierz. The position in the financial year ended 30 June 2006 was somewhat different, because no vehicles were purchased by Mr Skarzynski after the end of the calendar year 2005, and only one vehicle was purchased by Ms Kucmierz after the end of that calendar year. Further, the last loan made by Ms Kucmierz was on 25 August 2005 (exhibit R6).
51. I find that in the period from 1 July 2001 to 31 December 2005, the intensity of his activities was such that he was not unemployed within the meaning of s 593(1) of the SS Act. In reaching this conclusion, I take into account that (in addition to the numbers of vehicles acquired and sold during that period), some fifteen loans were made to him by Ms Kucmierz. Further, the evidence as to Mr Skarzynski’s purchases of parts and materials indicates a more intense level of activity during the period to which I have referred, even if (as Mr Skarzynski states) those purchases are reduced by 50% so as to be confined to those effected by him. I refer in this regard to the summary in exhibit R2 at pages 31-35, and I note that the records there summarised are not complete, because they do not include purchases made in cash. I have also taken into account that during the above period, Mr Skarzynski also sold or endeavoured to sell parts from vehicles which he had purchased for their parts. I am satisfied that the level of Mr Skarzynski’s activities went beyond what could fairly be described as a hobby or small scale business, designed as a supplement rather than as an alternative to wages, as Mr Skarzynski contends.
52. I have not overlooked the fact that Mr Skarzynski failed to disclose in the financial year ended 30 June 2001 that he was carrying on a business, notwithstanding that he had registered for GST and referred to his business activity in his tax return. However, I think that even if he had made that disclosure, that should not have led to his newstart allowance being terminated at that time, because on my above finding the level of his activity would not have justified Centrelink taking that action. The non-disclosure did not therefore cause the newstart allowance to be paid, within the meaning of the former s 1224(1)(b) of the SS Act as it then stood, in circumstances where he would not otherwise have been paid.
Remuneration from business activities
53. Mr Skarzynski gave evidence that from an overall point of view, he made little or no profit from his business activities. As against this, Centrelink had as part of its investigations questioned whether the level of Mr Skarzynski’s expenditure during the relevant period exceeded the level of income he had disclosed to Centrelink. The Secretary called a forensic accountant, Peter Holmes, who had examined records provided by Mr Skarzynski and Jolanta Kucmierz to determine how Mr Skarzynski met certain credit card commitments, as well as whether there was evidence to confirm or refute allegations of vehicle purchases and sales involving either Mr Skarzynski or Ms Kucmierz. I have carefully considered Mr Holmes’ report (exhibit A4) and supplementary report (exhibit A5). His task was made difficult by the absence of certain records. Mr Skarzynski gave evidence that he was able to pay his American Express card and to make purchases of various motor vehicles by using drawdowns on his loan from HomeStart finance, by obtaining extended credit on credit cards, by receiving loans from Ms Kucmierz, and by selling various vehicles. Whilst Mr Holmes’ was unable to reconcile various transactions, his report does not seem to me to contradict Mr Skarzynski’s explanation of the source of funds that he used. The increased loans obtained by Mr Skarzynski on the equity in his home, the increased limits on his credit cards, and substantial loans made regularly by Ms Kucmierz appear to explain how he was able to finance the purchase of the vehicles, and also to explain the significant credits from time to time to his bank accounts.
54. The inflow of funds that Mr Skarzynski received does not of itself constitute proof that he was running the business at a profit, having regard to his explanation for the source of those funds. He provided detailed evidence as to the profit or loss that he made on particular vehicles on reselling them. The profit or loss arising from the sale of particular vehicles cannot, however, be deduced from the difference between the acquisition and sale prices, because in many cases, Mr Skarzynski had to purchase parts or paint in order to repair damage to the vehicles. There were no satisfactory records of the cost of such items in respect of particular vehicles.
55. However, the authorities indicate that a self-employed person may not be “unemployed” for the purposes of s 593(1) of the SS Act even though that person’s activities do not produce an income or profit: see Re Te Velde and Director-General of Social Services (1981) 3 ALN 111 and McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284. It is therefore not necessary, in order to decide whether Mr Skarzynski was unemployed during the relevant period, to determine the profitability or otherwise of Mr Skarzynski’s activities during that period.
Other matters
56. The Secretary also relied on evidence as to the relationship between Mr Skarzynski and his friend Michael Stockton as indicating that there was some business relationship between the two, and as further evidence that Mr Skarzynski was not unemployed during the relevant period. Mr Skarzynski did not dispute that he assisted Mr Stockton by driving him to various locations to acquire parts or materials for vehicles which Mr Stockton was repairing. He further admitted assisting Mr Stockton by placing advertisements on his behalf and assisting him to sell some vehicles, because of the unsuitability of Mr Stockton’s address as a location at which prospective buyers could inspect vehicles that he had for sale. Further, Mr Skarzynski admitted assisting Mr Stockton to collect a number of trailers which Mr Stockton had purchased after establishing a business acquiring and reselling trailers, but said that this happened from 1 April 2006 onwards. However, they each denied that there was any business relationship between them, or that they helped the other with repairs to vehicles that they had purchased. Whilst I think it appropriate to take into account the time spent by Mr Skarzynski on activities involving Mr Stockton in order to determine whether he was not unemployed, I am not satisfied on the state of the evidence before me that any formal business relationship existed between them. In any event, the amount of time spent by Mr Skarzynksi does not appear to have been significant.
57. I referred above to a number of other matters on which the Secretary relied in support of its contention that Mr Skarzynski was not unemployed during the relevant period. Mr Skarzynski addressed each of these matters in exhibit R2. In particular, he explained his reasons for obtaining an Australian Business Number and registering for GST, for registering the business name “Autocare Port Adelaide”, for listing that name in the telephone directory, for obtaining a telephone connection for premises at Aberdeen Street, Port Adelaide, for using those premises after he had purchased certain damaged vehicles, and for arranging for electricity to be provided to the premises. He also explained that for a number of years prior to the relevant period, and also during the relevant period, he had allowed Ms Kucmierz and Michael Stockton to use his American Express card, and he explained the arrangements he had with them for them to pay what they owed for purchases made by them with the card. I found some of Mr Skarzynski’s explanations as to the above matters somewhat bizarre, but am not persuaded that the above matters in themselves prove that he had ceased to be unemployed (except for the period to which I have referred above), and I find it unnecessary to make any further findings in relation to those issues.
Should the respondent be treated as being unemployed for all or part of the relevant period?
58. Section 595(1) of the SS Act provides in effect that the Secretary (and therefore, for present purposes this tribunal, standing in the shoes of the Secretary), may treat a person as being unemployed in certain circumstances. This section provides as follows:
“595(1) The Secretary may treat a person as being unemployed throughout a period if:
(a) during the period, the person undertakes:
(i) paid work that, in the Secretary’s opinion, is suitable for the person to undertake; or
(ii) any other activity;
as a result of which he or she would, but for this subsection, not be taken to be unemployed; and
(b) the Secretary is of the opinion that, taking into account:
(i) the nature of the work or other activity; and
(ii) the duration of the work or other activity; and
(iii) any remuneration received for the work or other activity; and
(iv) any other matters relating to the work or other activity, or to the person’s circumstances, that the Secretary considers relevant;
the activity should be disregarded.”
59. The discretion conferred by this section must be exercised by reference to the three specific criteria referred to in s 595(1)(b)(i)-(iii), and s 595(1)(b)(iv) enables the decision maker to consider any other matters relating to the work or other activity, or to the person’s circumstances, that he or she considers relevant. In Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26, Senior Member Dwyer referred to the predecessor of s 595(1) and said:
“The most common cases where the discretion is exercised would probably be where a person earns a small amount by casual part time work while looking for full time work. The respondent cannot exercise the discretion under s 107(3) unless he has information as to the nature and duration of the work being undertaken and any other matter relating to the work that he considers relevant.”
60. I have referred above to the nature and duration of Mr Skarzynski’s business activities during the period 1 July 2002 to 31 December 2005. On the evidence before me, it appears that his activities were reasonably consistent over that period, and the duration of the period is of course significant.
61. I referred to the evidence before me as to Mr Skarzynski’s remuneration in paragraphs 53-55 above. His income tax returns for the years in question also provide some information as to his remuneration. The income that he returned from his business activities was as follows:
(a)Year ended 30 June 2002 (exhibit A1, T21, pages 508-513)
Loss of $(1, 399.00)
(b)Year ended 30 June 2003 (exhibit A1, T21, pages 515-522)
Loss of $(27, 232.00)
(c)Year ended 30 June 2005 (exhibit A1, T66, pages 1223-1230)
Profit of $1,199.00
(d)Year ended 30 June 2006 (exhibit A4, Appendix I)
Salary and wages $1,600.00
Loss from business activity $(4, 754.00)
As mentioned above, a copy of the return for the year ended 30 June 2004 was not provided.
62. In Mr Skarzyinski’s statement of facts, issues and contentions (exhibit R2) he asserts that he was audited by the Australian Taxation Office. However, it appears that the audit did not relate to his personal income tax returns. A letter dated 12 January 2006 from that office merely refers to Mr Skarzynski having completed a goods and services tax office audit questionnaire and advises that based on the information provided, no further action would be taken (exhibit A1, T69, page 1274).
63. I am unable to derive any assistance from the income tax returns. Mr Skarzynski did not produce his working papers, and it is not possible to know how he derived the figures he included in his tax returns. The provision in the returns for opening stock and closing stock have either not been included at all, or where they have, they do not appear to be supported by other information shown in the returns. Further, certain type-written summaries of income and expenses prepared by Mr Skarzynski cannot be related to the income tax returns (see exhibit A1, T28, pages 857-858). I assume that the figures in the tax returns and in the summaries refer in some way to the vehicles which Mr Skarzynski acknowledged to be business transactions, but I have already found that his business activities extended to all of the vehicles that he acquired and sold during the relevant period; that is, the vehicles should have included the vehicles said to have been personal vehicles for his use, as well as the vehicles purchased for Ms Kucmierz.
64. The remuneration earned by Mr Skarzynski from his business activities is a matter peculiarly within his own knowledge. It was incumbent on him to adduce reliable evidence of his remuneration, in order to address the criterion in s 595(1)(b)(iii) and so to enable me to decide whether to exercise the discretion conferred by s 595(1). He did provide further information in relation to profits and losses in exhibit R9, but this contains estimates, and those estimates are not supported by appropriate documentation. I appreciate that some of Mr Skarzynski’s records were stolen in September 2005 when the vehicle he was driving was broken into, but he did not suggest that all of his records were stolen, and I do not have sufficient credible information before me to be able to determine the level of Mr Skarzynski’s remuneration during the period now under consideration.
65. Nevertheless, it does not appear from Mr Holmes’ reports or from any of the bank statements or other financial information before me that Mr Skarzynski’s activities resulted in any substantial profit or remuneration. On the contrary, he has been left with some vehicles which he did not repair or resell in a timely way, and I accept that this was in part because the vehicles were damaged more extensively than he had appreciated when buying them, and in part because his back condition made it difficult for him to work for extended periods. As a result, the vehicles have depreciated in value and are now worth significantly less than he paid for them. But even if I were to accept Mr Skarzynski’s contention that from an overall point of view he made no profit from his activities, that is not a matter in itself that would lead me to conclude that in the circumstances of this matter, his employment activities should be disregarded. Such a conclusion would be inconsistent with the authorities to which I have referred above, and with other authorities to the same effect, where the tribunal has concluded that the fact that relevant activities have not resulted in a profit does not mean that a person was unemployed.
66. There are no other matters that seem to me to be matters that could properly be regarded as relevant matters for the purposed of s 595(1)(b)(iv), and I conclude that this is not a matter where Mr Skarzynski’s activities during a part of the period that I referred to above should be disregarded, or where he should be treated as unemployed.
Has the respondent satisfied the activity test?
67. Counsel for the Secretary also contended that Mr Skarzynski did not satisfy the activity test during the relevant period because, by reason of his activities in relation to the acquisition and disposal of motor vehicles, I should not be satisfied that he was actively seeking or willing to undertake suitable paid work.
68. I have referred above to my findings as to the intensity of Mr Skarzynski’s activities in relation to vehicles. I have found that it was only during part of the relevant period, namely from 1 July 2001 to 31 December 2005, that the intensity of his activities was such that he was not unemployed, but it does not necessarily follow from this that he did not satisfy the activity test.
69. During the remainder of the relevant period, his activities in relation to vehicles were not sufficient of themselves to lead me to conclude that he did not satisfy the activity test. There was some evidence that he was engaged in assisting Ms Kucmierz with house renovations, but I find that these activities were not unduly time-consuming.
70. The Secretary has not therefore adduced new evidence that would suggest that Centrelink should not have been satisfied that Mr Skarzynski had met the activity test. As against this, Mr Skarzynski refers in exhibit R2 to his efforts to obtain employment, and to his ongoing back problems that restricted his opportunities for employment. He also refers to having undertaken three different courses of training. These matters indicate that Mr Skarzynski satisfied the activity test in respect of the relevant period, and perhaps even during the period in respect of which I have already found that he had ceased to be unemployed, and in the absence of contrary evidence from the respondent, I reject the Secretary’s contention that I should find that he did not satisfy the activity test when he was granted newstart allowance: see McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358, where Woodward J referred to the need for a party asserting facts to adduce evidence that those facts exist.
Was the respondent erroneously exempted from the activity test?
71. Counsel for the Secretary contended that Mr Skarzynski was erroneously exempted from the activity test from 14 November 1997 to 4 August 2000, and from 7 February to 7 August 2002.
72. This issue received little attention during the hearing. Reference is made in T11 to medical work assessments, and exhibit R2 includes at page 42A a copy of an extract from a letter from Centrelink to Mr Skarzynski granting him an exemption from the activity test following a recent medical review. However, the medical certificates that apparently resulted in the exemption were not tendered, and there was no evidence before me as to Mr Skarzynski’s medical condition during the two periods in question. There is no basis for the contention that there was an erroneous exemption from the activity test during the periods in question.
Was newstart allowance correctly cancelled with effect from 4 May 2006?
73. For the reasons referred to above, I am satisfied that Mr Skarzynski was unemployed as at May 2006, and that the amount of time and effort he was spending on his vehicle activities did not of itself mean that he failed the activity test.
74. However, there is no clear evidence before me as to whether Mr Skarzynski met the activity test in the relevant period(s) subsequent to 4 May 2006. The evidence to which I referred in paragraph 70 above does not specifically refer to such subsequent period(s). Further, the evidence before me as to Mr Skarzynski’s income is, as I have said, unsatisfactory, and there is no evidence before me as to his assets and liabilities at the relevant time(s) subsequent to that date. In those circumstances I think it appropriate that the question of whether his newstart allowance was correctly cancelled with effect from that date should be remitted to the Secretary for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth).
Should the debts be waived or written off?
75. It follows from my above conclusions that Mr Skarzynski was not entitled to receive newstart allowance during the period from 1 July 2001 to 31 December 2005, and by virtue of s 1223(1) of the SS Act, the payments he received in this period are a debt due to the Commonwealth. The question then arises as to whether this debt should be waived or written off.
76. Section 1236(1A) of the SS Act provides that the Secretary may write off all or part of the debt where (relevantly):
“(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
…
(d) it is not cost-effective for the Commonwealth to take action to recover the debt”.
77. Section 1237AAD of the SS Act gives the Secretary a discretion (which this tribunal standing in the shoes of the Secretary may also exercise) to waive a debt in special circumstances. It provides as follows:
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
78. Mr Skarzynski contends in exhibit R2 that he has no capacity to repay the debt, having regard to his indebtedness to Ms Kucmierz, three banks and GE Money. He submits further that it is not cost-effective for the Commonwealth to take action to recover the debt, having regard to the amount of his debts, his inability to work and the hardship that would result from his being forced to sell his house and the resulting adverse effect that this would have on him.
79. The discretion conferred by s 1236(1A) only applies where the relevant conditions precedent apply. On the evidence before me, I am not satisfied that this is the case. There is equity in Mr Skarzynski’s house which would be available to meet the debt, and this is not a case where it would not be cost-effective for recovery action to be taken.
80. The discretion under s 1237AAD applies if there are special circumstances that make it appropriate to waive recovery of all or part of a debt. The concept of what constitutes “special circumstances” has been discussed in many cases in the Federal Court and in this tribunal. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the tribunal was dealing with an application under a different section of the Act which also, however, involved a consideration of whether special circumstances existed. Toohey J said (at page 3):
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
81. In the same case on appeal ((1985) 7 ALD 670 at 674), the Full Federal Court reiterated the need to avoid limiting the scope of what might constitute special circumstances when it explained:
“We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”
The Full Court also said, at page 675, that they did not consider that any error of law had been made by the tribunal, but continued:
“While we would place less emphasis on one dictionary definition of “special”, we are in broad agreement with the approach of the Tribunal and are in agreement with its conclusion.”
82. In a later case, Groth v Secretary, Department of Social Security (1995) 40 ALD 541, at page 545, Kiefel J, after referring to the Federal Court’s decision in Beadle, observed that special circumstances:
“… would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case ... 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.”
83. The flexibility of the concept of special circumstances was also referred to in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443, where the Full Court of the Federal Court said, at page 450:
“Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”
84. Finally, I refer to Haidar v Secretary, Department of Social Security (1998) 52 ALD 255 at 263, where Hill J discussed another section in the SS Act that in effect permitted the abbreviation of a preclusion period in special circumstances. His Honour referred to the proposition that the legislature ‘was conscious of the possible harshness of a rule structured in an arbitrary way” and therefore provided the means for administrators to alleviate this harshness in an appropriate case but only where there were special circumstances.
85. I have referred above to Mr Skarzynski’s financial position. I also take into account that he has a back condition that restricts his capacity for work. However, in matters where debts are raised for over-payment of benefits paid under the SS Act, the recipients of the benefits are frequently in difficult financial circumstances, and have health issues that are often more serious or of a more incapacitating nature than Mr Skarzynski’s condition. I do not think that these matters constitute special circumstances, or that this is an appropriate case for the exercise of the discretion conferred by s 1237AAD of the SS Act.
Was the 2006 claim for newstart allowance correctly rejected?
86. Mr Skarzynski made a new claim for newstart allowance on 24 August 2006. He provided a letter from Port Trailers (Mr Stockton’s business) to say that he had been employed with that firm from 3 May 2006 as a caretaker on a casual part time basis, working eight hours a week for gross wages of $200 a week (exhibit A1, T98, page 1612).
87. Mr Skarzynski maintained that he was unemployed at that time. I referred above to the number of vehicles purchases and sold in the year ended 30 June 2007. On the face of it, those figures indicate a reasonable degree of activity, but of the vehicles purchased in that financial year, three were trailers, and in three cases little or no work was done on the vehicles purchased. It appears that by March 2006, Mr Skarzynski had become aware of the Centrelink investigation, and Centrelink decided to terminate his entitlement to newstart allowance in May 2006. Whilst Mr Skarzynski has admitted that he was doing some work on a Nissan Patrol vehicle that he had previously purchased, I am satisfied that he was unemployed as at 24 August 2006.
88. It was then necessary for Mr Skarzynski to satisfy Centrelink that he passed the activity test. Once again, counsel for the Secretary argued that this test was not satisfied, because of Mr Skarzynski’s activities in relation to relevant vehicles. I do not agree with this contention, and having regard to the matters referred to in the preceeding paragraph, I do not think that his activities in relation to vehicles were such that they precluded him from satisfying the activity test.
89. However, there is no clear evidence before me as to Mr Skarzynski’s activities in the period after 24 August 2006, and the information in exhibit R2 does not assist in regards to that period. Further, it will remain necessary to examine evidence as to Mr Skarzynski’s income and assets, in order to determine whether he meets the income and asset test of eligibility. In the circumstances, I think it appropriate to also remit these matters to the Secretary for further consideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth).
90. There is no evidence before me as to whether Mr Skarzynski has made any further application for newstart allowance, or indeed whether it was competent for him to have done so pending the determination of the within proceedings. Any such further application, or any fresh application which Mr Skarzynski might make hereafter, would of course necessitate reviewing Mr Skarzynski’s then current activities, as well as all other relevant conditions for the grant of newstart allowance.
Decision
91. The tribunal sets aside the decision under review, and in place of that decision decides that:
(a)the respondent was not entitled to newstart allowance during the period 1 July 2001 to 31 December 2005;
(b)the amount of newstart allowance paid to the respondent during the period from 1 July 2001 to 31 December 2005 is a debt due by him to the Commonwealth;
(c)the decision to cancel payment of newstart allowance with effect from 4 May 2006 is remitted to the applicant for reconsideration in accordance with these reasons; and
(d)the decision to refuse the application for newstart allowance lodged on 24 August 2006 is remitted to the applicant for reconsideration in accordance with these reasons.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President D G JarvisSigned: .....................................................................................
Louise Staker AssociateDates of Hearing 13 to 17 and 23 to 24 October 2008
Date of Decision 10 December 2008
Counsel for the Applicant Ms E Reed
Solicitor for the Applicant Minter Ellison Lawyers
Respondent In person
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