Sobhee and Secretary, Department of Social Services (Social services second review)

[2024] AATA 24

Sobhee and Secretary, Department of Social Services (Social services second review) [2024] AATA 24 (12 January 2024)

Division:GENERAL DIVISION

File Numbers:         2023/3645, 2023/3647, 2023/3648

Re:Delshea Sobhee

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:12 January 2024

Place:Melbourne

1.In applications 2023/3645 and 2023/3647, pursuant to s 43(1)(b) of the Administrative Tribunal Act 1975, the Tribunal varies the reviewable decisions as follows: The Applicant incurred a debt to the Commonwealth by the payment of Jobseeker payment and coronavirus supplement in the period 17 April 2020 to 26 November 2020 when there was no basis in law for the payment. Fifty per cent of the debt is waived on the basis of special circumstances applicable to the Applicant. A further amount of $500 is waived on the basis that this payment was made through sole administrative error by the Respondent’s Department.

2.In application 2023/3648, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal finds that the Applicant incurred a debt to the Commonwealth by the overpayment of Jobseeker payment in the period 22 May 2021 to 4 June 2021 and remits the reviewable decision to the Respondent for recalculation of the debt, in accordance with these reasons.

.......[sgn].................................................................

Senior Member D. J. Morris

CATCHWORDS

SOCIAL SECURITY – applicant applied for Jobseeker Payment – applicant was not in Australia – claim for Jobseeker Payment wrongly granted – authorised review officer found debt – First Review by Tribunal waived part of debt – Second Review sought – whether benefit payable – benefit not payable – whether debt incurred – whether solely due to administrative error by Department – whether monies received in good faith – whether special circumstances applicable to applicant – applicant stranded overseas by pandemic restrictions – part of debt due solely to administrative error – part of debt waived owing to special circumstances – decision under review set aside and new decision substituted

SOCIAL SECURITY – applicant received coronavirus supplement – supplement not payable unless recipient receiving another benefit – applicant received Jobseeker Payment in error – Jobseeker Payment cancelled owing to applicant being out of Australia – Department continued to pay coronavirus supplement for period – debt waived in part as solely due to administrative error

SOCIAL SECURITY – applicant in receipt of Jobseeker Payment – wrong reporting of income received – authorised review officer found debt – First Review by Tribunal affirmed decision – new information on income received now before Tribunal – decision remitted to Respondent with direction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Electronic Transactions Act 1999 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Herbert v Byrne [1964] 1 All ER 882

SECONDARY MATERIALS

Services Australia - Altered processes and mutual obligation requirements for job seekers due to coronavirus (COVID-19) responded 001-20100119 (Currently published version valid from 1/08/2023 10.28 PM) .

REASONS FOR DECISION

Senior Member D. J. Morris

12 January 2024

1. Ms Delshea Sobhee received Jobseeker Payment (‘JSP’) from 17 April 2020 until 26 November 2020. This is application number 2023/3645.

2. She also received a coronavirus supplement payment for the period from 30 April 2020 to 23 November 2020. This is application number 2023/3647.

3. The Respondent’s Department cancelled the Applicant’s JSP on 11 December 2020 on the basis that Ms Sobhee was not in Australia and was therefore not entitled to the benefit. The consequence of that cancellation is that the coronavirus supplement payment Ms Sobhee was receiving was also cancelled.

4. The Applicant sought review of this decision by an authorised review officer (‘ARO’) of the Department of Social Services (‘the Department’ or ‘Centrelink’) and on 10 October 2022 the ARO affirmed the debt decisions. For ease of understanding, these will be called the ‘2020 debts.’

5. Separately, the Department had levied a debt against Ms Sobhee for overpayment of JSP in May and June 2021. The Applicant sought review of this decision by an ARO, who affirmed the debt on 7 October 2022. This will be called the ‘2021 debt’. The application relating to the 2021 debt is number 2023/3648.

6. Ms Sobhee then sought review of the 2020 debts and the 2021 debt by the Social Services and Child Support Division of this Tribunal (‘First Review’). On 27 April 2023 Senior Member Longo set aside the decision relating to the 2020 debts and substituted a decision to waive fifty per cent of the amount levied on the basis of special circumstances. On the same date, the First Review affirmed the 2021 debt.

7. The Applicant has now sought a Second Review before the General Division of the Tribunal. The 2020 debts and the 2021 debt were the subject of three different application numbers but were heard together. This decision and reasons encompass all three applications.

   HEARING

8. A hearing was held in Melbourne on 22 November 2023. Ms Sobhee represented herself, made submissions and gave oral evidence. Ms Stefana Doslo, an Acting Senior Government Lawyer of the Department, represented the Respondent.

9. At the conclusion of the hearing, the Tribunal asked the Respondent to provide additional information, within a week, and advised the parties that the decision would then be reserved. Because of submissions made during the hearing by the Respondent and concessions made by the Applicant, the Tribunal advised that the decision in relation 2023/3648 (i.e. the 2021 debt) is that the matter will be remitted to the Respondent under s 43(1)(c)(ii) of the Administrative AppealsTribunal Act 1975 (‘the AAT Act’) with a direction that the debt be recalculated.

10. The Tribunal took the following documents into evidence:

    (a)Letter from the Applicant to the Tribunal dated 8 October 2023 (Exhibit A1);

    (b)Travel advice updates for Mauritius dated 1 April and 2 June 2020 (Exhibit A2);

    (c)Emails from Australian High Commission at Port Louis dated 27 May 2020, 19 August 2020, and 5 October 2020 (Exhibit A3);

    (d)Email to Applicant from Australian High Commission at Port Louis dated 28 May 2020 regarding return flights to Australia and from Australian High Commissioner to ‘Australians in Mauritius’ dated 30 September 2020 (Exhibit A4);

    (e)Correspondence in March and November 2020 and March 2021 between Applicant and her travel agent (Exhibit A5);

    (f)Volume of documents lodged under s 37 of the AAT Act (‘TD’ documents) lodged 23 June 2023 (Exhibit R1);

    (g)Volume of supplementary (‘ST’) documents lodged 27 October 2023 (Exhibit R2); and

    (h)Volume of further supplementary ST documents lodged 21 November 2023 (Exhibit R3).

11. On 27 October 2023, the Tribunal received a Statement of Facts, Issue and Contentions (‘SFIC’) from the Respondent. On 21 November 2023, the Respondent lodged a further SFIC. Both of these documents were taken into account.

12. The Tribunal emphasised to the Applicant that it was considering the three original decisions to levy the 2020 debts and the 2021 debts. It was not reviewing the First Review findings, although evidence given to the First Review might be informative. It was made clear to the parties that the outcome might be one that is more detrimental to the Applicant, in that the whole of the 2020 debt could be reinstated, as is urged in submissions by the Respondent. Ms Sobhee said she understood that.

13. On 29 November and 8 December 2023 the Respondent lodged further material with the Tribunal in response to specific queries raised by the Tribunal during the hearing. On 18 December 2023, the Applicant lodged additional material, being a photograph from her phone screen of contacts with Centrelink. Leave was not granted for Ms Sobhee to lodge further information but, consistent with the principles of procedural fairness, the Tribunal accepted the material and provided a copy to the Respondent.

    APPLICANT’S OPENING STATEMENT

14. In March 2020 in company with her then partner, Ms Sobhee left Australia and travelled to the Republic of Mauritius, where her parents and other family live. Ms Sobhee is a citizen of Mauritius and at the time held a visa of a class entitling her to permanent residence in Australia. She told the Tribunal that she has since become an Australian citizen. Her partner at the time held a bridging visa.

15. In her written submissions (A1), Ms Sobhee stated that they intended to be in Mauritius for six weeks for a holiday. They planned to return to Australia on 19 April 2020. Ms Sobhee said she generally visited her birth country every four years or so to see family and friends. She said that at the time of leaving Australia, the reach of SARS-Cov-2 (severe acute respiratory syndrome coronavirus, commonly called Covid-19) was not appreciated. About three weeks into their stay, Covid-19  began to spread globally, including to Mauritius. Within a day, she submitted, the Mauritian Government imposed a lockdown and flights to and from the island were grounded. She wrote that she tried to seek assistance from the Australian High Commission in Mauritius, Emirates airline and the Mauritius High Commission in Canberra, but that no one could provide a solution. Her and her partner’s flights back to Australia were cancelled.

16. Ms Sobhee wrote:

    Realizing that we would be unable to depart Mauritius on the originally planned date of 17^th April 2020, without income and unable to rely on my parents financially, I applied for the Jobseeker payment. This required multiple lengthy international calls and significant costs due to international roaming, plus called to various entities including my landlord, the Home Affairs Department, Qantas flight centre and Emirates and my banking institutions to arrange refunds and put a hold on all of my direct debit responsibilities.

    With only a modest amount of savings, I also withdrew $10,000 from my superannuation to ensure I could continue paying rent in Australia. It is also important to note that Pierre [the Applicant’s then partner] was ineligible for any payments or income assistance, so I had no other means of financial support. I was unable to end my lease with all my home effects and belongings unable to be retrieved whilst I was overseas and Australia in lockdown as well as not having any understanding as to how long the situation would continue.

    That day, the lady I spoke to from Centrelink was trying to calm me down and reassured me that it would be ok. I was stressed and panicked, having explained that I was stuck overseas, could not return to Australia, had cancelled flights and that all my financial obligations were continuing – my rent, car repayments and that even my cat was alone in my house. She explained the process and went through the details with me, providing me with a CRN (Customer Registration Number) which I used throughout a 7-month period. In late November 2020 I faced some difficulties [logging in to] the Centrelink portal.

    On 26^th November I called Centrelink to inquire as to how to get log back [sic] in the portal. I again explained to Centrelink that I was overseas and therefore could not attend a physical Centrelink office. It was at this time that the officer informed me that they would cease any further payments on the basis that I was not in Australia. I explained to the officer that I had been receiving it for 7 months and that I still needed it due to the circumstances. I was unbelievably stressed and pleaded for the payments to continue as my situation was worsening, but the officer did not reinstate the payments.

17. In her oral submissions, Ms Sobhee said she believed she first contacted Centrelink at the end of March. She said she explained the situation she was in and that she was stranded in Mauritius. She noted that at the First Review, SM Longo asked for the recording of any contacts between her and Centrelink, but they were not available. She said that the later contact she had with Centrelink was on 17 April 2020 which was the date of claim for JSP.

18. Ms Sobhee said she has resided in Australia since 2006 and had never previously sought welfare assistance and when asked for her CRN, explained she did not have one. Ms Sobhee noted that the Respondent is now contending she did not mention she was overseas. The Applicant said that she was telling everyone at the time, such as her bank, landlord and other service providers. She told the Tribunal that she received social security money not knowing she was not entitled to it.

19. Ms Sobhee noted that the time she contacted Centrelink to obtain a CRN was not recorded and that the time she contacted the Department should have been some indication that she was out of the country.

20. Ms Sobhee noted that the printout of contacts with Centrelink dated 25 November 2022 (STD, p 65) recorded that she went overseas in early March 2020 and returned to Australia on 12 January 2021. She noted further that two further payments of coronavirus supplement were paid to her on 4 and 7 December 2020, totalling $500, which were made after it is clear the Department knew she was out of Australia (see STD, p 99).

21. The Applicant noted that the Respondent contended that when she was asked to provide her address in the claim form for JSP, she provided her residential address, which was in a Melbourne suburb. She said a normal response to this question would be to provide a person’s residence, not the address of a place where you were holidaying. She noted that the claim form has since been updated to ask an additional question, “Are you in Australia right now?” which was not a question on the on-line form in April 2020.

22. Ms Sobhee noted that she has correspondence from the Department of Foreign Affairs and Trade in the relevant period which records that she has provided both her Australian address and her overseas address.

23. In respect of the 2021 debt, the Applicant agreed there was some uncertainty. She said she checked her payslips and that an amount of money ‘hit’ her account on 25 May 2021, but it was not for income earned at the time. She said she worked casually as a film extra and payments were sometimes made within a fortnight but other times up to six weeks after a particular filming job.

    RESPONDENT’S SUBMISSIONS

24. The Respondent submitted that the Secretary relies on the SFIC and supplementary submissions. Ms Doslo said in relation to the 2020 debts that the Applicant was overpaid because her claim for JSP is taken not to have been made because she was outside Australia at the time of making it.

25. The Respondent submitted that the 2020 debts cannot be written off or waived on the basis of sole administrative error by the Department. She said that ‘sole administrative error’ means an error that is exclusively on the part of the agency. She emphasised that the Secretary was not submitting that Ms Sobhee had intended to make a false claim or was intending to defraud the Commonwealth.

26. Ms Doslo said that the Applicant did not engage with the Department’s notice which was sent to her by post, or with a SMS text message also sent on 29 April 2020 alerting her that it contained further information. She therefore submitted that the Applicant ‘turned a blind eye’ to her obligations in regard to receiving a social security payment.

27. In respect of whether the 2020 debts are affected by special circumstance, Ms Doslo submitted that it is open to the Tribunal to find that Ms Sobhee contributed to the payment by not acting on information provided to her. She submitted that the Applicant’s circumstances as a whole were not ‘unusual or uncommon’ but that the Respondent conceded that the administrative processes of the Department on this occasion were less than ideal. Ms Doslo said there is no evidence before the Tribunal that Ms Sobhee’s experience at this time was different from the experience of many others.

28. In the alternative, the Respondent submitted that if the Tribunal did not accept the Secretary’s submissions that the First Review decision be set aside and the 2020 debts restored in full as due and payable, at most the Tribunal should not waive more than fifty per cent of the debt found to be owed.

29. In respect of the 2021 debt, the Respondent submitted that additional information provided from employers of Ms Sobhee meant that the amount of JSP that was overpaid owing to other income should be recalculated, in the light of the new information. Again, Ms Doslo emphasised that it was not the Secretary’s contention that the Applicant had intentionally tried to commit a fraud by being overpaid.

    ORAL EVIDENCE

30. In relation to the 2021 debt, Ms Sobhee agreed that she applied for JSP on 16 January 2021. When asked if she received notices from the Department by post in relation to the payment, she said she could not recall.

31. Ms Doslo then took Ms Sobhee to various documents in relation to the 2021 debt. The Applicant said she did believe she reported her income on 13 May 2021 but “can’t 100 per cent say I did it in that week. I did report it to the ATO.”

32. In relation to the 2020 debts, Ms Doslo put to the Applicant that Department records show she first contacted Centrelink on 17 April 2020 in relation to JSP. Ms Sobhee responded, “No, I called Centrelink prior to that date. I believe my CRN was created way prior. There were phone calls back and forth. They sent texts saying they would call me back. I find it bizarre that the CRN was created on the same day as the claim.”

33. Ms Sobhee said she did make some phone calls from a fixed line service in Mauritius to Centrelink as well as from her mobile phone. When asked how she knew to apply for JSP and not for some other payment, Ms Sobhee said: “I was talking to a lot of people. My sister spoke to immigration services who gave me several links. Maybe one of them gave me the link to Centrelink.”

34. Ms Sobhee conceded that she might have gone to the Centrelink website to find the number to call. She agreed that she “did some research.” She said she called the general assistance line.

35. Ms Doslo asked the Applicant what her understanding was about how long she would be in Mauritius. She responded, “No idea. Nothing was real. We didn’t know what was going on.”  Ms Sobhee said the Mauritian Government did not give guidance on how long the lockdowns would last, because everything was uncertain. She agreed that she did not know how long she would be in Mauritius.

36. In terms of providing her home address (TD, p 16) Ms Doslo asked what the Applicant’s understanding was. She responded, “My home address. I have been living there since 2014. It was a mistake of mine to say in the form I had been living there since 17 April 2020.”

37. Ms Doslo asked Ms Sobhee why she did not include a postal address. She responded that her postal address was still her apartment in Melbourne. She told the Tribunal that her sister was monitoring it for her and, in response to a direct question from the Tribunal, said her sister was collecting mail “when she could.”

38. She said she did not really expect her sister to collect mail and notify her, and she did not arrange for mail to be forwarded. Ms Sobhee said that her sister was going to the flat to feed her pet cat, but not going every day. She said in some instances her sister opened some mail and sent her photographs of documents her sister thought should be dealt with.

39. Ms Sobhee agreed that it looks like she was in Australia from her claim form. Ms Doslo asked whether she remembered receiving a text message (STD, p 131), and she said she did and still had the message on her phone. The message states that a letter would be sent with more information, but Ms Sobhee said she did not receive it. When asked whether she wondered why she had not received the letter, she said she did not. The Applicant agreed she had no contact with Centrelink by telephone until November 2020.

1. The Tribunal queried Ms Sobhee about accommodation costs she said she incurred in Mauritius. The Applicant said she stayed with her parents and when she referred to ‘accommodation and other’ costs she more accurately meant food costs. She said she did not work in Mauritius and received no social welfare support from the Mauritian Government.

2. In her closing submissions, Ms Sobhee emphasised that she received JSP in good faith even though she now understands she was not entitled to it. She contended that the payment was the result of sole administrative error by the Department.

3. In the Secretary’s closing submissions, Ms Doslo accepted that the conduct of the Department has ‘not been ideal’ but the 2020 debts did not come about solely because of administrative error by Centrelink. The Respondent submitted that the Applicant was not physically in Australia when she made her claim, and Ms Sobhee did not provide an additional postal address or an alternative address. Ms Doslo submitted it is arguable that the Tribunal can conclude the Applicant “turned a blind eye” and did not turn her mind to her obligations to Centrelink. Ms Sobhee had confirmed she had no contact with the agency between April and November 2020 and that there was no evidence that the Applicant had contacted the Department other than on 17 April 2020. The Respondent submitted that special circumstances are ‘not available’ to waive part of the 2020 debts.

4. In regard to the 2021 debt, the Respondent submitted that this should be remitted to the Department for recalculation, based upon fresh information now received from Ms Sobhee’s employers during the debt period. In reply, in regard to the 2021 debt, the Applicant said her under-declaration of her income was “purely a mistake and I am happy to repay the debt”.

   CONSIDERATION

5. As mentioned above, after the hearing, on 18 December 2023, the Applicant provided the Tribunal with a photograph of her mobile phone showing apparent text messages received from Centrelink. The first of these is dated 6 April 2020 and states:

   Your intent to claim is registered. You do not need to do anything more now. We will phone you with the next steps. Do not reply by SMS.

6. The second text message is dated 7 April 2020 and is in identical terms.

7. The third text message is dated 15 April 2020 and relevantly states:

   We will call you shortly about your intent to claim with Centrelink. We will call from a private number. Please take the call. Do not reply by SMS.

8. The Tribunal notes that, at this time, in response to the Prime Minister’s announcement of the closure of Australia’s borders, and the decision by state and territory governments to impose lockdowns in response to the coronavirus pandemic, the social welfare agencies, including Centrelink, were experiencing enormous pressure. The Tribunal remarked during the hearing, and Ms Doslo accepted, that many public servants who were not usually employed by the Secretary’s Department were drafted to help manage the large influx of citizens and permanent residents making inquiries about, or applying for, various social welfare assistance as a consequence of the lockdowns.

9. The evidence from Ms Sobhee’s phone supports my conclusion that she made contact with Centrelink at least on 6 April 2020, if not earlier, and that her first contact was not on 17 April 2020 as the Secretary contended at the hearing. That does not mean that she was given a CRN before 17 April 2020, but it does mean that she had indicated her intention to lodge her claim.

10. The Tribunal is not satisfied that, in filling in her on-line claim form for JSP at the time, that Ms Sobhee misrepresented her personal circumstances, except to the extent of incorrectly entering the date when her Melbourne residence became her correct address as ‘17 April 2020’. It is logical that a person when asked for their residential address would provide their usual residential address, keeping in mind that it was not contested that the Applicant had occupied her current apartment in Melbourne since 2014 and was continuing to pay rent and her other utility bills in relation to that apartment while she was stranded abroad.

11. It is well established that a person can have a domicile even if the person is frequently away from that place. There is a seminal case, Herbert v Byrne [1965] 1 Ell ER 882, where Lord Denning MR considered whether a tenant was in ‘personal occupation’ of a house. His Lordship said:

    A sea captain may be away from his house for months at a time, but it is none the less his house.

12. Factors that might be relevant in a decision about whether or not a place is the genuine residential address of a person would include whether the person pays rent or a mortgage or holds title to the residence; whether the person has personal effects there; whether the person receives mail there; and whether the person is responsible for utility costs such as electricity and water at the place. In this case, the evidence relating to her Melbourne apartment is that Ms Sobhee paid rent, had her furniture and other possessions there, and continued to pay utility costs. Her cat continued to live at the residence, and was fed by a family member who came in. The locus of the feline is, in this consideration, an important element, because the arrangement to feed it reflects the fact that Ms Sobhee and her then domestic partner had only intended to be away from Australia temporarily.

13. I conclude it was not only reasonable but logical that Ms Sobhee cited this as her residential and postal address. I see no subterfuge in her doing so, and there was no evidence before me that the form allowed for an alternative address to be also cited.

14. In response to a query in the on-line form about ‘Residence,’ Ms Sobhee wrote ‘I am currently living in Australia’ (TD, p 17). Later in the form, in respect of her then partner, she wrote ‘Pierre is currently living in Australia.’ (TD, p 18) These responses may be accepted to have been true, because Ms Sobhee and her then partner both resided at the flat in Melbourne as their usual place of residence. However, at the same time, these responses may have given an officer assessing entitlement for JSP a misleading impression, because both of them, at the time of claim, were physically in Mauritius.

15. It is significant to me that the Respondent conceded that an additional question, “Are you in Australia right now?” which was subsequently included by the Department in the JSP application form, was not a question in the form at the time Ms Sobhee filled it in. Clearly the inclusion of the additional question is an indication that the Department encountered ambiguity in other cases and found the need for added clarification by claimants.

16. The Respondent included in written submissions that one reason recipients must be in Australia to received JSP is that they are (unless otherwise exempted) meant to be trying to find employment. The Tribunal asked for information on what general suspensions on the mutual obligation requirement for JSP recipients occurred owing to the lockdowns in Victoria. The Respondent provided a document titled ‘Altered processes and mutual obligation requirements for job seekers due to coronavirus (COVID-19) responded 001-20100119’.

17. That document, at Table 2, shows that the full mutual obligation required was ‘paused’ for all job seekers in all local government areas in Victoria from 24 March 2020 to 23 November 2020, from 12 February 2021 to 24 February 2021, from 16 July 2021 to 4 August 2021 and from 29 October 2021 to 4 November 2021.

18. This fact weakens the point of the Respondent that because Ms Sobhee was out of Australia, she was not looking for employment, when that requirement at the time was in fact ‘paused’ (i.e. suspended) for all JSP recipients by a decision under s 40T of the Social Security (Administration) Act 1999 (‘the Administration Act’).

19. However, although Ms Sobhee contends that the Tribunal should waive all of the 2020 debts on the basis of sole administrative error by the Department, the Tribunal cannot accept that is the case. In spite of the exceptional measures taken to suspend the mutual obligation requirements because of the lockdowns, as set out above, the fact that remains is that JSP is a social welfare benefit payable to a person who is in Australia, is not working, and who is endeavouring to obtain employment. It is not a general welfare payment for Australian citizens or permanent residents who are in straitened financial circumstances. Unlike certain other social security payments, there is no provision in the law for JSP to be paid to persons who are abroad (see s 52 of the Administration Act).

20. The Tribunal finds that the Department erred in accepting Ms Sobhee’s claim for JSP and in instituting payments for her. This was because she was not in Australia at the time of her claim and was therefore not entitled to the payment because of s 29(1)(b) of the Administration Act. In such a case s 29(2) of the Administration Act provides that the claim is taken not to have been made.

21. The decision by officers of the Department to accept and process the claim was an administrative error. The Tribunal might have found it was sole administrative error within the terms of s 1237A of the Social Security Act 1991 (‘the Act’) (and see the note to that section), however, to make such a finding would ignore the fact that the Department then initiated paper correspondence to Ms Sobhee which included explicit advice that she had an obligation to inform Centrelink of any change of circumstances. Having received JSP (albeit wrongly), the Tribunal accepts that from her perspective her circumstances did not change until she was able to leave Mauritius and fly back to Australia, but, on the other side of the coin, she was formally advised and can reasonably be found to have known that she must be in Australia to receive the benefit. Therefore, the waiver power in s 1237A cannot be invoked in favour of Ms Sobhee because the debt is partly caused by a factor other than administrative error, in this case the failure of the Applicant to respond to written notices.

22. The Respondent’s submissions at the hearing that there is no claim by the Secretary that Ms Sobhee intended to defraud the Commonwealth are accepted by the Tribunal. However, I also find that the Applicant was – at best – incurious about her obligations as a recipient of JSP. She received regular notices from the Department and, after 31 July 2021 in response to a direct question from her to the Department, they were sent to her electronically. As such, she is deemed to have received them on the day they were emailed to her (see s 14A of the Electronic Transactions Act 1999). The Applicant therefore had several opportunities to provide updated or more accurate information to the Department.

23. It if the Applicant’s sister was collecting her mail at the time from her flat and had permission to open mail that looked important, and was photographing at least some of those items of mail and sending the information to Ms Sobhee for her appropriate action, why regular Centrelink notices about JSP were not thought to be in this category is unclear. However, I can make no finding about that as there is no evidence from the sister before me.

24. I do not accept the Secretary’s contention that the special circumstances provisions in the law to waive part of the debt are ‘not available.’ There was a clear error by the agency to assure itself that Ms Sobhee was indeed eligible for JSP at the time of her claim. But after the agency made that error, the Applicant herself contributed to the perpetuation of a payment to which she was not entitled by not attending to notices sent to her. These notices relevantly included the following:

    Information from Australia’s immigration department may have been used in assessing your claim and may be used to assess future entitlements.

    This information will be updated as changes occur and may automatically affect your entitlements if you leave Australia.

    If you need more information about what effect an absence from Australia will have on your payment and/or cards, please contact us prior to your departure.

    (Emphasis added)

25. A fair reading of this notice would alert the reader that being out of Australia may affect a social security entitlement.

26. Ms Sobhee had an obligation, notwithstanding the exceptional circumstances of being unexpectedly stranded in Mauritius by the cessation of flights, when she intended to be there for a short holiday, to properly apprise Centrelink of her circumstances. That is an obligation applicable to all persons receiving social security payments.

27. Section 1237AAD of the Act provides that the Secretary (or the Tribunal standing in his shoes) may waive the right to recover all or part of a debt if the Secretary is satisfied that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation, failing to comply with a provision of the Act or the Administration Act, and that there are special circumstances (other than financial hardship alone) that make it desirable to waive, and, finally, that it is more appropriate to waive than to write off the debt or part of the debt.

28. I do not accept the Respondent’s written submissions in his SFIC that Ms Sobhee ‘knowingly’ failed to comply with her obligations in how that term should be interpreted in s 1237AAD. I am satisfied that special circumstances arise in this particular case because of the coalescence of a mistake by the agency, the sudden lockdown, the suspension of the mutual obligation requirement, and – tellingly – the omission of a particular query in the claim form that the person was in Australia physically at the time of claim, which has now been remedied.

29. In this regard, although in this Second Review I am not reviewing the decision at First Review, I come to the same conclusion as did SM Longo that an appropriate waiver of the 2020 debt is in the amount of fifty per cent. However, in addition to that, I am satisfied that the Department continued to pay Ms Sobhee the coronavirus supplement after it had been advised that her JSP had been cancelled because of ineligibility. The coronavirus supplement was contingent on the JSP payment, and should have ceased at the same time. I find that this small payment of the coronavirus supplement in the amount of $500 was paid to the Applicant solely because of administrative error by the Department, so that quantum (only) of the second part of the 2020 debts is completely waived.

30. Finally, in regard to the 2021 debt, the Tribunal accepts the frank concessions from the Applicant that she under-declared her income at the time and therefore there is a debt because of the new payslip information provided by Ms Sobhee’s employers at that time, which was not before the First Review. This new information requires that the 2021 debt be recalculated and raised afresh.

31. The Tribunal considers that the Applicant was candid in her submissions and agrees with the Respondent that there is no evidence of an attempt to defraud the Commonwealth. However, where a person received a social security payment for an extended period which he or she was not entitled to receive, and it is found that the person was periodically advised by written notice of their continuing obligations to advise their circumstances, but did not, a debt must be found to arise.

32. In regard to the late material sent in by the Applicant after the conclusion of the hearing, I make one particular comment. I accept that the screenshots provided by the Applicant on 18 December 2023 show she had made contact with Centrelink – as she submitted – earlier than 17 April 2020, and contrary to the Respondent’s submissions. But while I accept that, this does not assist Ms Sobhee, because it does not particularly amplify the error by Centrelink in granting her first JSP claim. It does verify the accuracy of her submissions and evidence to the Tribunal in this respect.

33. The result of the Tribunal’s consideration of the additional submissions made by the parties is that fifty per cent of the JSP debt for the period 17 April 2020 to 26 November 2020 will be waived. Fifty per cent of the coronavirus supplement debt paid for the period 30 April 2020 to 23 November 2020 will also be waived, plus an additional amount of $500. In regard to the JSP debt for the period 22 May 2021 to 4 June 2021, that debt will be remitted to the Respondent for recalculation in accordance with these reasons and the recalculated amount will be a debt raised against the Applicant.

    DECISION

34. In applications 2023/3645 and 2023/3547, pursuant to s 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal varies the reviewable decisions as follows: The Applicant incurred a debt to the Commonwealth by the payment of Jobseeker payment (JSP) and coronavirus supplement in the period 17 April 2020 to 26 November 2020 when there was no basis in law for the payment. Fifty per cent of the debt is waived on the basis of special circumstances applicable to the Applicant. A further amount of $500 is waived on the basis that this payment was made through sole administrative error by the Respondent’s Department.

35. In application 2023/3648, pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal finds that the Applicant incurred a debt to the Commonwealth by the overpayment of JSP in the period 22 May 2021 to 4 June 2021 and remits the reviewable decision to the Respondent for recalculation of the debt, in accordance with these reasons.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........[sgn].............................................................

Associate

Dated: 12 January 2024

Date(s) of hearing:	22 November 2023
Applicant:	Self-Represented
Advocate  for the Respondent:	Ms Stefana Doslo