Taylor and Secretary, Department of Social Services (Social services second review) (Social services second review)
[2024] AATA 3622
•11 October 2024
Taylor and Secretary, Department of Social Services (Social services second review) (Social services second review) [2024] AATA 3622 (11 October 2024)
Division:GENERAL DIVISION
File Number: 2020/4540
Re:Julian Taylor
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:11 October 2024
Place:Hobart
Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to affirm the decision under review. The Applicant has a debt to the Commonwealth totalling $22,115.30 and this debt should not be waived.
..................................[signed]......................................
Senior Member D. J. Morris
Catchwords
SOCIAL SERVICES – pensions, benefits and allowances - job search allowance – where the applicant falsely claimed job search allowance under several identities and received payments to which he was not entitled – where a debt resulted from the applicant knowingly making false claims to obtain benefits to which he was not entitled – whether the debt should be waived under the relevant statutory provisions – where the respondent has earlier decided to write the debt off because the applicant has been deported – standard of satisfaction in such cases – consideration of Bradshaw v McEwans Pty Ltd – tribunal satisfied applicant received benefits to which he was not entitled – tribunal satisfied this constitutes overpayment – tribunal further satisfied that applicant has a debt to the Commonwealth and that no part of it should be waived – decision under review is therefore affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Crimes Act 1914 (Cth)Crimes Act 1958 (Vic)
Cases
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Director of Public Prosecutions v Taylor [2018] VCC 2271
Luxton v Vines (1952) 85 CLR 352
R v Bahntoff (Unreported Vic C of A 14 May 1998)
Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 19
Taylor v Minister for Home Affairs [2022] FCA 309
Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144
Taylor v The Queen 59 VR 163
Taylor v The Queen [2021] VSCA 131REASONS FOR DECISION
Senior Member D. J. Morris
11 October 2024
The Applicant in this matter is Julian Richard Taylor. That is the name under which he lodged his application for review with the Tribunal, although the papers before the Tribunal reveal that he has also been known by other names in the past, including by legal changes to his name. These names include, but may not be limited to: Steven Mark Barr, Steven Robert Barr, Steven Mark Bahntoff, Julian Mark Bahntoff, Julian Steven Taylor, Steven Robert Bahntoff, Steven Robert Parker and Steven Mark Bechtold-Meyer.
The matter before the Tribunal is, first, whether Mr Taylor received a social security benefit to which he was not entitled, in this case job search allowance (‘JSA’). If the answer to that question is ‘yes’, the second question is whether, by receiving JSA to which he was not entitled, the Applicant thereby incurred a debt to the Commonwealth. If the answer to that second question is also ‘yes’, the third question is whether all or some of the resultant debt should be waived pursuant to ss 1237A or 1237AAD of the Social Security Act 1991 (Cth) (‘the Act’).
HEARING
This matter has a long history. It had been listed for hearing on at least seven occasions, and on each occasion the hearing was vacated. There were requests from the Respondent for s 35 orders under the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in relation to certain documents which were lodged under s 37 of that Act, and various decisions by the Tribunal to attempt to accommodate the requests of the Respondent to protect the identity of third parties, whilst still affording the Applicant procedural fairness in terms of the documents which the decision-maker of the reviewable decision had before them. The fact of the Applicant being abroad also complicated matters, in respect to time differences, video capacity and means to convey documents to him.
A directions hearing was held on 22 January 2024 and the substantial hearing was held by video, as is permitted under s 33A of the AAT Act, on 30 April 2024 and 2 May 2024. The Applicant appeared by video from London and the Respondent, and the Tribunal participated by video link.
The Applicant represented himself, made oral and written submissions, and gave evidence. The Respondent was represented by Ms Peta Heffernan, a senior lawyer with The Australian Government Solicitor. The first day of the hearing was shortened by a video link failure. The second day of the hearing was also truncated because the Applicant advised the Tribunal that he had only a short time off from his work, so leave was given for Mr Taylor to make written closing submissions by 16 May 2024, and the Respondent in reply by 30 May 2024. Both parties did make written closing submissions. On 30 May 2024, the matter was reserved. Subsequently, the Applicant sent several other emails to the Tribunal, without leave, apparently related to this application. They were inconsequential and in the nature of bumf, as will be further explained later in these reasons.
The Tribunal admitted the following into evidence:
(a) Redacted T documents received on 20 February 2024 (Exhibit R1);
(b) Tribunal Book, paginated 1 to 654 (Exhibit R2);
(c)Respondent’s Updated Statement of Facts, Issues and Contentions with annexures A-G (Exhibit R3);
(d)Notice of appeal dated 13 April 2022 (Exhibit A1);
(e)Applicant’s statement dated 9 February 2021 (Exhibit A2);
(f)Federal Court unsworn affidavit dated 13 April 2022 (Exhibit A3);
(g)
Information obtained under Freedom of Information, lodged 1 January 2020
(Exhibit A4);
The Tribunal also had regard to a joint list of authorities and legislation.
RELEVANT BACKGROUND
The Applicant was born in the United Kingdom in 1965. He emigrated to Australia in 1969 in company with his parents and a sibling. He was educated in South Australia and attended university, graduating with a second-class honours degree in civil engineering. In 1988 he acquired Australian citizenship by conferral in the name Steven Robert Barr. However, in April 1995 he decided to renounce his citizenship. After that he held a Subclass BB 155 visa as a permanent resident with a right of return.
The Applicant was first before the Courts in May 1991. He was convicted before the Magistrates’ Court in Melbourne of the offence of Obtaining property by deception (19 counts) and fined $150 on each charge.
In February 1994, he was before the District Court of Queensland in Brisbane. He was convicted of the offences of False pretences, Forgery (5 counts), Uttering (5 counts); Misappropriation of property (2 counts) and Attempted false pretences. On each count he was sentenced to a concurrent term of imprisonment for three years and six months, wholly suspended for three years and six months, and ordered to pay compensation of $5,500.
In June 1994 he was before the County Court of Victoria. He was convicted of the offences of Obtain financial advantage by deception (five counts); and Theft. For these offences he was given a total effective sentence of eight months’ imprisonment, with four months suspended for four months.
Later in June 1994, the Applicant was before the Magistrates’ Court in Melbourne and convicted of the offences of Theft and Fail to answer bail. He was sentenced to four months’ imprisonment, suspended for 12 months.
In February 1998, the Applicant was before the County Court of Victoria and convicted of the following offences: Defraud the Commonwealth (27 counts) and Attempt to defraud the Commonwealth (19 counts). For these offences, which will be called the ‘Commonwealth fraud offences’, he was sentenced on each charge to six years’ imprisonment. He was also convicted of Breaching a restraining order (two counts) and sentenced on each charge to 18 months’ imprisonment. He was further convicted of the offence of Operate bank account in false name, and sentenced to six months’ imprisonment. The total effective sentence imposed by the Court was eight years gaol, with a non-parole period of six years.
In November 2018 Mr Taylor was sentenced in the County Court of Victoria of four charges of Use a copy of false document; one charge of Perjury; Seven charges of Obtain a financial advantage by deception; and one charge of Make/Use/Supply identification information, all contrary to provisions of the Crimes Act 1958 (Vic). In November 2018, he was sentenced to a total effective sentence of two years and eleven months, with a non-parole period of two years and two months. An amount of 752 days pre-sentence detention was declared.
The Applicant obtained registration from the Victorian Institute of Teaching by falsely declaring he had no prior convictions. That false declaration enabled him to be employed as a bogus teacher in several Gippsland schools.
On 21 December 2018, the Applicant’s visa was cancelled by a delegate of the Immigration Minister under s 501(3A) of the MigrationAct 1958 (‘Migration Act’) on character grounds relating to his criminal convictions. He did not pass the character test provided for in the Migration Act.
Mr Taylor sought review of the visa cancellation, and in 2021 Senior Member Nikolic of this Tribunal affirmed the delegate’s decision. He subsequently sought a review of the Tribunal’s decision in the Federal Court of Australia, and then in the Full Court of the Federal Court. In both Courts he was unsuccessful. The Applicant then made an application for special leave to appeal to the High Court of Australia, but that was refused in December 2022.
Separate to his immigration proceedings, the Applicant appealed the sentence imposed by the County Court of Victoria, but leave to appeal was refused by the Court of Appeal of the Supreme Court of Victoria in July 2019. Mr Taylor then applied for leave to bring a second appeal. That application for review was refused by the Court of Appeal, on the papers, in May 2021.
The Applicant then made a special leave application to the High Court of Australia to appeal against the decision of the Victorian Court of Appeal. On 9 September 2021 Gageler and Gleeson JJ refused special leave, stating that there is no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria and, further, that it was not in the interests of justice to grant special leave to appeal.
In March 2023, Mr Taylor was deported to the United Kingdom under s 198(2B) of the Migration Act, as he was an unlawful non-citizen. He has no lawful right of return to Australia.
RESPONDENT’S SUBMISSIONS
The Respondent noted that between July 1992 and December 1993 the Applicant was incarcerated at the Arthur Gorrie Correctional Centre in Queensland (TD, p 57).
On 15 December 1993, the Applicant applied for JSA under the name Steven Robert Barr (TD, p 491).
Between February 1994 and June 1994 the Applicant was again incarcerated following convictions on offences relating to fraud, false pretences and misappropriation of property (TD, pp 17, 18 and 71).
In November 1995, the Applicant was arrested and charged with Commonwealth fraud offences, including defrauding the Commonwealth pursuant to s 29D of the Crimes Act 1914 (Cth) (TD, p 17).
He was detained at Port Phillip Prison in Victoria, and in January 1998 he pleaded guilty to all counts in the indictment against him. He was sentenced to a term of imprisonment of eight years, in relation to the Commonwealth fraud offences (TD, p 17).
In September 1998, Centrelink, part of the Respondent’s Department, wrote to the Applicant advising that he had been paid JSA to which he was not entitled, in the names of various people identified in the letter at various times between the period 24 December 1993 and 3 August 1995. He was advised that consequently he had a debt for overpayment of JSA in the amount of $22,115.30 (TD, p 454).
The Applicant entered into correspondence with Centrelink seeking information on the basis of the debt, and in April 2003 asked for details of ‘charges laid against him’ (TD, p 290). Later in the same month, Centrelink responded and confirmed that no charges were laid against him in relation to debt (TD, p 457). The following day a fresh notice was sent to the Applicant advising him of the JSA debt.
There was further correspondence between the Applicant and Centrelink. In September 2013, Centrelink wrote to the Applicant regarding recovery of his debt, stated at that time to be $20,146.73 (TD, p 469).
The Applicant sought review by an authorised review officer (‘ARO’), who is an officer of the Department not involved in the original debt decisions. In May 2020, the ARO made a decision to affirm the decision to raise a debt against the Applicant in the sum of $22,115.30 for overpayment of JSA (TD, p 313).
In May 2020, the Applicant sought review by the Tribunal of the ARO’s decision. On 17 July 2020, Member Nalpantidis of Social Services and Child Support Division of this Tribunal, at first review, affirmed the decision under review. On 27 July 2020 Mr Taylor as he is entitled to do, sought second review by the General Division of the Tribunal.
On 14 January 2022, the Applicant filed an application with the Federal Court seeking judicial review of the decision to raise a debt against him (Federal Court proceeding VID 23 of 2022). Mr Taylor claimed he was denied procedural fairness, and there had been legal unreasonableness in relation to the debt raised against him.
On 3 June 2022, the Respondent applied for the Federal Court proceeding to be stayed pending the outcome of Mr Taylor’s Tribunal application.
On 7 August 2023, His Honour Justice Moshinsky ordered that the Federal Court proceedings be stayed pending the outcome of the Tribunal’s proceedings on the basis that there was overlap between the relief sought in the Federal Court and the Tribunal proceeding, and the relief sought before the Tribunal was broader than what could be sought in the Federal Court proceeding.
Because of Mr Taylor’s deportation from Australia, on 21 April 2023 the Secretary decided to write off the balance of the debt raised against the Applicant, pursuant to s 1236 of the Act.
On 12 May 2023, The Australian Government Solicitor, acting for the Secretary, wrote to Mr Taylor informing him of the decision to write off the balance of the JSA debt raised against him in September 1998, which at the date of write-off stood at $19,094.27. On the same day, the Applicant said he would still pursue his application for second review on the basis that he claimed there was no debt in the first place, and he is entitled to be reimbursed for the amounts that had already been paid towards the debt, adjusted for inflation.
Is there a JSA debt?
The Respondent contended that the Applicant had claimed JSA in the names of seven other men, all his fellow prisoners at one time. The individual details of the seven persons follow, but their names, although clear to the parties on the papers before the Tribunal, are not disclosed in these reasons.
Person A
The Respondent submitted that around 16 December 1993, an application was made to the Registrar-General of Births for a certified copy of a birth certificate in the name of a person who will be called ‘Person A’ who was born on a cited day in November 1973 (TD, p 93).
Around 24 December 1993, a claim for JSA was made in the name of Person A with that birth date.
Between December 1993 and March 1994, a total sum of $1,700 was paid into bank accounts in the name of Person A, and his address was stated to be a residence in Annerley in Queensland.
Person A was gaoled on 9 June 1992, and as at November 1997 he was serving a life sentence for the crime of murder (TD, p 95).
The Respondent submitted that the claim for JSA was not made by Person A on the following bases: that he was in gaol at the time the JSA claim was made, and at the time the application for a copy of his birth certificate was made. The Respondent further submitted that the birth certificate was requested to enable the requestor to open a bank account in the name of Person A.
Person B
Around 24 January 1994 a birth certificate was obtained in the name of a person who will be called ‘Person B’, who was born on a cited day in January 1960 (TD, p 107).
Around the same date a claim for JSA was lodged in the name of Person B, and an address quoted was a residential address in Indooroopilly in Queensland. Bank account details were provided, and a previous employer named. It was stated that Person B paid rent to a named landlord.
Between January 1994 and 14 March 1994 the total sum of $1,377.60 was paid into bank accounts in the name of Person B.
Person B was gaoled at the Arthur Gorrie Correctional Centre from 22 March 1993 to 19 November 1994, and then transferred to the Sir David Longland Correctional Centre, where he died on Christmas Eve, 1994 (TD, p 119).
The Respondent submitted that the claim for JSA was not made by Person B on the following bases: that he was in gaol at the time the JSA claim was made, and at the time the bank accounts were opened in his name, and that the birth certificate in Person B’s name was obtained just before the claim for JSA was made, in order to enable the requestor to open bank accounts in the name of Person B.
The Respondent further submitted that Person B was in prison at the time he allegedly worked for the named employer and was in gaol at the time he was allegedly renting premises from the named landlord.
Person C
In August 1994, a birth certificate was obtained in respect of a person who will be called ‘Person C’, who had a date of birth on a cited day in September 1968 (TD, p 136).
On 15 August 1994, a claim for JSA was made in the name of Person C. In the claim, Person C was claimed to be residing at an address in Fitzroy in Victoria. A credit union account number was provided. Person C’s previous employer was named, and it was stated that he paid rent to a named person.
In the period between August 1994 and February 1995, a total sum of $5,123 was paid to Person C’s nominated credit union account (TD, pp 141-142).
The Respondent submitted that the claim was not made by Person C on the following bases: Person C was in gaol from July 1992 to October 1994 and from November 1994 to the present (i.e. the time of the Tribunal’s hearing in May 2024). He was in prison on the date the JSA claim was made. A birth certificate in his name was obtained just prior to the JSA claim, which enabled the requestor to open a credit card in his name three days before the JSA claim was made.
Person C was also in prison at the time he was allegedly employed by the named person and at the time he allegedly entered into tenancy agreements with named people. The bank statements for Person C show that on the same day the JSA was paid into the credit union account in Person C’s name, almost all the entire sum was then withdrawn from the account.
Person D
In December 1993, an application was made in the name of a person who will be called ‘Person D’ who had a date of birth of a cited day in February 1969 (TD, p 156).
On 28 January 1993, a claim was made for JSA in the name of Person D, with his address stated as a residence in Hawthorn in Victoria. His employer was stated to be a named person where he had been employed in sales. It was stated he paid rent to a named person (TD, pp 146-153).
In August 1994, a further claim for JSA was made in the name of Person D. This time his address was stated to be at a residence in Dandenong in Victoria. It was stated that he worked for a company in June 1994 in a clerical position until the company went bankrupt.
Between August 1994 and March 1995, a total sum of $5,417 was paid into the bank account nominated by Person D.
The Respondent submitted that the JSA claim was not made by Person D on the following bases: that a birth certificate was obtained just prior to the first JSA claim to enable the requestor to open a bank account in Person D’s name, and that the bank account was opened on 19 August 1994, just prior to the second claim for JSA being lodged.
Person E
In July 1994, a birth certificate was obtained in respect of a person who will be called ‘Person E’, with a date of birth of a cited day in May 1970 (TD, p 200).
In late September 1994, a JSA claim was made in the name of Person E, with an address stated as a residence in Ringwood in Victoria and a post office box at the Ringwood Post Office. It was stated that he had been employed as a plumber until the business went broke and he paid weekly rent to a named person. National Australia Bank account details were provided.
Between September and October 1994 a total sum of $744 was paid to Person E.
The Respondent submitted that the JSA claim was not made by Person E on the following bases: that a birth certificate in his name was obtained just prior to the JSA claim being paid to enable the requestor to open a bank account in Person E’s name; that the Ringwood Post Office box cited in the JSA application was at the time rented by a doctor; and that in February 1994 Person E made a statutory declaration that the only bank accounts he has ever had are with the Commonwealth Bank and that he never opened any new accounts, nor authorised anyone else to do so (TD, pp 208-209).
Person F
In January 1995, a birth certificate was obtained in respect of a person who will be called ‘Person F’ with the date of birth of a cited day in August 1970 (TD, p 228).
In February 1994, a JSA claim was made in the name of Person F with the stated address of a residence in Blair Athol in South Australia. His employer was stated as a transport company where he worked as a labourer until the company went bankrupt. He paid $90 weekly rent to a named person and a credit union account number was provided.
In February 1994, a further JSA claim was made in the name of Person F. This time his address was stated to be a residence in Marsden in Queensland, and a previous employer was named. A Bank of Queensland bank account number was provided.
For the period January to August 1995 a sum of $5,183 was paid to Person F.
Person F was in prison between February 1996 and September 1996 (TD, p 236). The Respondent submitted that the claim for JSA was not made by Person F on the bases that: a birth certificate in his name was obtained just before the first JSA claim was made to enable the requestor to open an account in Person F’s name; and the address provided in the JSA application is actually the physical address of a post office.
Person G
The Respondent submitted that a birth certificate was obtained in the name of a person who will be called ‘Person G’, with a date of birth on a cited day in September 1960 (TD, p 264).
In February 1995, a JSA claim was made in the name of Person G, citing a residential address in Fairview Park in South Australia. The application stated that he worked as an ‘office boy’ for a car dealership in December 1994 and that he paid $95 per week to a named person. Bank Account details were provided.
For the period February 1995 to April 1995, a sum of $2,581.10 was paid to Person G (TD, pp 270-272).
Person G was in prison from 9 February 1993 to 19 November 1993 at the Arthur Gorrie Correctional Centre in Queensland and then from 30 November 1993 to November 1996 at a prison in Victoria (TD, p 276).
The Respondent submitted that the JSA was not lodged by Person G, on the bases that: the bank account was opened on the same day the JSA application was made, which was a time Person G was in prison. The address provided in the JSA application and tenancy agreement is the address of a shop which also serves as a post office agency (TD, p 39).
What is the Applicant’s connexion?
The Respondent contended that the claims for JSA for the seven men, Persons A to G, were made by Julian Taylor. The Respondent submitted that there are clear similarities between the names and addresses used for the seven men and those used by the Applicant.
The address used for the second JSA claim of Person D, in Dandenong, is the same address as that used by Person E in correspondence with the Australian Taxation Office, and is similar to an address used by the Applicant between 1991 and 1994. The address used by Person F on a residential tenancy agreement in the town of Slacks Creek is identical to the address of Mr Taylor for the period January 1994 to June 1994. The Applicant had used the same address, in Herbert Street, Dandenong, recorded in the Employment Separation Certificates for Person D and Person E in correspondence with the Australian Taxation Office. The address used by Person C on a residential tenancy agreement of ‘5 Laroche Street’ in Woodbridge, Queensland (an address which does not exist), is very similar to the address of the Applicant of 5 Laroche Street in Chestmead (the adjacent suburb), for the period from December 1993 to January 1994. The Respondent also noted that Person A and Person G both used the same address of “PO Box 1435, Coorparoo” for their tax assessments (TD, pp 84 and 25). The rent receipts submitted, purportedly by Person F and Person G, are sequentially numbered and appear to be from the same receipt book (TD, pp 237 and 273).
The Respondent also noted that, in the JSA claims for all except Person A, the reason for each of the persons ceasing work was that their employer went bankrupt, or ‘went broke’. Both the JSA claims for Person A and Person B state the name of the same purported employer.
The Respondent submitted that both Person A and Person B had their JSA payments directed to the same bank account (TD, pp 83 and 118).
The Respondent noted that Mr Taylor was incarcerated at the Arthur Gorrie Correctional Centre at the same time two of the persons, Person B and Person G were at the same prison.
The Respondent submitted that Mr Taylor’s bank account statements from December 1993 (TD, pp 63-64) show regular deposits of sums of around $300 to $400 into his account from unknown sources, whereas the bank accounts of Persons A to G show regular deductions for around $300 to $400 over the corresponding period. The Secretary therefore submitted that the Applicant was deducting sums from those accounts and depositing them into his own account.
The Respondent also submitted to the Tribunal that the Applicant pleaded guilty to charges in the indictment against him in respect of the Commonwealth fraud offences whereby it was alleged that he used the identities of prisoners, dead people and acquaintances to claim over $700,000 in tax refunds. It was in particular alleged in relation to those admitted offences that the Applicant used identities of persons he had come to know while serving time for other charges in both Victoria and Queensland, and as part of a ‘scheme’ he set up false addresses, and money was deposited into accounts held under false names and then withdrawn through automatic teller machines.
The Respondent therefore submitted that an inference should be drawn, taking into account the totality of the evidence, that it was the Applicant who lodged each of the JSA applications in the names of Persons A to G, and that his subsequent receipt of payments of JSA by using the identities of other persons led directly to an overpaid of JSA to him, and thereby a debt.
THE APPLICANT’S SUBMISSIONS
In his opening submissions, Mr Taylor submitted:
The issues identified by the Respondent are not correct. The issue at heart is has there been correct procedures followed. Either it is a criminal matter or a civil matter. There must be a trial and charges.
The AFP have done an investigation. They gave the file back to [name redacted, initials KL]. KL then decided to convict me on a criminal assertion. Never had a hearing. No trial. No documents served on me. KL made all these decisions himself. He is a pathetic little parasite staff member. He needs to adopt due process. The issue is has correct procedure been followed. He can bring a case; he needs to bring it before a jury. Despite numerous requests, they cannot show me a transcript of a trial because nothing has happened. KL has decided I am guilty. It is like robodebt.
THE RESPONDENT’S ORAL SUBMISSIONS
Ms Heffernan noted in her opening remarks that the debt was written off after Mr Taylor was deported. She said that the Secretary contends the Applicant received JSA to which he was not entitled and thereby incurred a debt. She submitted there is a body of circumstantial evidence and, on the balance of probabilities, the Applicant received the benefit.
Ms Heffernan noted that the more probable inference on the material before the Tribunal is in favour of what the Secretary is contending. She said the Respondent’s case is that Mr Taylor made applications in the names of seven other persons, and that the benefit paid to them was not payable to him. He made false representations to the Department. She submitted that if the Tribunal finds that the Applicant received the funds, there is no doubt that he did not receive the money in good faith. There is no evidence of administrative error, but there is evidence of a deceptive scheme.
Ms Heffernan further submitted that there is no evidence that special circumstances are applicable, and the only factor is that the Applicant no longer resides in Australia and at present cannot return. She submitted that there is no basis for a waiver or write-off of the debts.
APPLICANT’S ORAL EVIDENCE
Ms Heffernan asked the Applicant whether he recognised the names of the seven men (who are in these reasons referred to as Persons A to G). Mr Taylor responded: “I have heard some of those names before”. The following exchanges then occurred.
Ms Heffernan: Where did you hear them?
Applicant: In Queensland.
Ms Heffernan: What period of time?
Applicant: Around 1996.
Ms Heffernan: How did you come to know them?
Applicant: They were all remanded prisoners.
Ms Heffernan: You were remanded at that time?
Applicant: Yes.
Ms Heffernan Person A?
Applicant: He would have been there at the same time.
Ms Heffernan: Person B?
Applicant: Probably there at the same time.
Ms Heffernan: Person C?
Applicant: He was in a different unit at Arthur Gorrie.
Ms Heffernan: How long where you there?
Applicant: Two years on remand – sorry, 18 months.
Ms Heffernan: Person D?
Applicant: Don’t recall that name.
Ms Heffernan: Was his brother there?
Applicant: I don’t know his family.
Ms Heffernan: Person E?
Applicant: Never heard of the name.
Ms Heffernan: Have you heard of Person F?
Applicant: Yes. He was in the remand centre as well probably at the same time.
Ms Heffernan: Was [redacted] at Arthur Gorrie with you?
Applicant: He was in Arthur Gorrie.
Ms Heffernan: Did you complete tax returns for those persons?
Applicant: I don’t recall. I completed some.
Tribunal: Did you do tax returns?
Applicant:I did many tax returns for people and all the money went to their prison accounts.
Ms Heffernan: Do you remember [redacted)?
Applicant: I don’t recall the name.
Ms Heffernan: Do you recall evidence to the Tribunal that you did do tax returns for all these people?
Applicant: I don’t recall that – I am not saying I did, or I didn’t.
Ms Heffernan: You were convicted for lodging tax returns for other people and taking their returns.
Applicant: I was convicted. What the Court didn’t understand was the money went to their prison accounts.
Ms Heffernan: You agreed to 46 charges in the County Court?
Applicant: Under duress, yes.
Ms Heffernan: You recall the following names [names redacted)?
Applicant: Under duress, yes. I was forced into it.
Tribunal: Forced by whom?
Applicant: Forced by my barrister and the Court system.
Tribunal: You say your barrister forced you?
Applicant: I was sold down the river.
Ms Heffernan: You haven’t denied lodging tax returns for those people?
Applicant: I don’t recall.
Ms Heffernan: I put it to you, you haven’t denied lodging returns?
Applicant: I would help people in the remand centre to lodge their tax returns.
Tribunal:` You helped people lodge tax returns, but they lodged them?
Applicant: All I did was help them.
Ms Heffernan: Are you familiar with the T documents?
Applicant: You blanked out so much of them.
Ms Heffernan: Copies of birth certificates, tenancy agreements, employment certificates and others – have you not looked at them?
Applicant: Why would I look at them?
On the second day of the hearing, the Applicant was taken to various documents within the T documents lodged by the Respondent for the hearing. He denied ever seeing any documents including one which he apparently signed, stating, “Take me to trial and we will see”.
He denied any knowledge of any documents lodged in the names of Persons A to G and stated, “If you think you have a case, take me to trial”.
At the conclusion of the oral evidence on the second day, the Applicant said that he had to return to work because he only had a certain time off for the Tribunal proceedings. He sought to make oral closing submissions, but the Tribunal reminded him that he had been told there would not be that opportunity, but that leave would be given to both parties to make written closing submissions. The Applicant then accused the Tribunal of being biased and said, “this is a stitch up”. The hearing then concluded. The Tribunal issued a direction to the parties to lodge closing submissions, on the receipt of the last of which the matter would be reserved.
WRITTEN CLOSING SUBMISSIONS – THE APPLICANT
The Applicant lodged a closing submission with the Tribunal which consisted of an unsworn and unsigned affidavit of 28 pages.
The Applicant opened with criticism of the Tribunal hearing and described the Tribunal as a “weak spineless hatchet man for the government. A yes man to his satanic overlord”. He described the current Tribunal and the Senior Member who presided at the 2021 hearing relating to the cancellation of his visa as:
“sadistic psychopaths who willing break up families simply because they are told do so by the dark sadistic parasitic government. I hope I am wrong and there does exist a higher power so that Morris and [the other Senior Member] will receive their punishment in the afterlife for their deliberate destruction of lives in return for a blood payment called a salary. Selling their souls because they possess no skills to make an honourable living and can only exist by acting as money hungry skill-less mercenaries to evil dictators. They do, as all governments do, destroy and create nothing. Morris and [redacted] are effluent floating in the septic tank that is the Australian government.”
(All sic.)
Having got this somewhat splenetic proem off his chest, Mr Taylor then made submissions that the Respondent’s Department does not have jurisdiction to make the decision that he was guilty in the first place. He wrote:
Functus officio, No longer having power and jurisdiction and thus, Sublato fundamento cadit opus, the foundation being removed, the structure falls. The whole case of the Department thus fails and Morris, no matter how much he hates it, how much he hates me for being right, how much it eats away from him, how much his hatred of me consumes me and how much it contradicts the orders he has received from his satanic overlord and paymaster, he must rule in my favour.
(Emboldening in the original.)
Mr Taylor submitted that the Department has “unlawfully already convicted me” and that any decision on his ‘conviction’ or otherwise is not for the Department to decide internally as it is a decision for a jury in a Chapter III Court.
The Applicant then reproduced the contents of his correspondence with the Department asking for details of charges that have been laid against him. He then listed some pages of Latin maxims and texts from both the Old and New Testaments, and other quotes from sources unclear. He reiterated his arguments that the Department had ‘convicted’ him of an ‘offence’ and could not do that because it was not a Chapter III Court.
Mr Taylor also made an assertion about the legal validity of the status of Her Late Majesty as Queen of Australia, and that, in his submission, it therefore followed that no Senator or Member of the House of Representatives is duly elected, and consequently that the Minister administering the Respondent’s Department is not a ‘lawful’ minister, and any actions in the Department’s name, or the name of previous departments administering the Act, are unlawful.
In regard to Persons A to G, Mr Taylor said:
I point out that all the individuals the Department claim to have received money were all known to each other and so it could be concluded that anyone of these individuals could have been the perpetrator of this alleged fraud.
(All sic.)
Mr Taylor then provided, in tabular form, a list of deductions by the Department between April 1996 and August 2018 which he asserted totals $9,893.91 but “is now over AUD $10,000.00” and is an amount “stolen from me by the Department of Social Services”.
Mr Taylor then quoted extracts from the Universal Declaration of Human Rights, and finished off with a conclusion that the current Tribunal and officers of the Department are:
‘spineless gut-less psychopathic muppets,[1] hiding behind the abuse of government power.’
[1] As a general point, submissions couched in language that is not florid or grandiloquent tend to make the contentions they are advancing much more compelling.
Putting to one side this somewhat baroque wrapping paper, essentially, the nub of Mr Taylor’s closing submission is that the Department did not have the jurisdiction to make the ‘unlawful decision’ in the first place, so the Tribunal must find in his favour.
On 26 June 2024, the Applicant sent an email to the Tribunal with a 65-page affidavit apparently relating to a dispute some self-styled ‘lord’ has had with Warrington Council in the United Kingdom. It was not apparent how this material was relevant to his application to the Tribunal He also sent an email to the Tribunal referring to him having a hip operation and stating his view that he would have had to wait longer for it, had he still been in Australia. The Tribunal disregards both of these unsolicited communications.
WRITTEN CLOSING SUBMISSIONS – THE RESPONDENT
The Respondent noted that the parties had lodged a joint list of authorities, including cases relevant to how the Tribunal should assess and weigh circumstantial evidence contained in the Tribunal Book.
The Respondent submitted that in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (‘Bradshaw’), the High Court of Australia (Dixon, Williams, Webb, Fullager and Kitto JJ) said, at page 5:
The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be as to exclude reasonable hypotheses consistent with innocence while in the latter you need only circumstances raising a more probably inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty is it not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.
The Respondent noted that this principle in Bradshaw was repeated by Dixon, Fullager and Kitto JJ in a case in the following year, Luxton v Vines (1952) 85 CLR 352, at 358.
The Respondent noted that Mr Taylor had admitted in his oral evidence, at the hearing, that he was in prison with Persons A, B, C, E, F, and G (but not Person D). He said he completed tax returns for ‘a lot’ of prisoners, and agreed he may have helped these persons. He agreed that the grounds of his 1998 conviction for Commonwealth fraud offences included lodgement of tax returns for those persons, and that in his correspondence with Centrelink contesting the debt, he had not denied that he had lodged JSA claims in the names of Persons A to G.
He agreed that the subject of his 1998 conviction for Commonwealth fraud offences including lodgement of tax returns for those persons, and that in his correspondence with Centrelink contesting the debt he had not denied that he had lodged JSA claims in the names of Persons A to G.
However, in his oral evidence, Mr Taylor denied lodging JSA claims for Persons A to G.
In response to the Applicant’s suggestion that as Persons A to G all knew each other, and that any one of them could have perpetrated the fraud, the Respondent submitted that several of them were in prison when the JSA claims were made, whilst Mr Taylor was not, and that his suggestion ignores the other evidence linking the JSA claims to him directly.
CONSIDERATION
Was the Applicant overpaid JSA?
The matter before the Tribunal is not related to when Mr Taylor (as Steven Barr) made a valid claim himself for JSA after he was released from prison, and was paid whilst he was looking for work. It concerns seven other JSA claims for Persons A to G.
Mr Taylor’s arguments before the Tribunal (putting aside his flamboyant criticisms of the presiding member, the Department, the government and some officers of the Department) centred on the fact that he has not been charged in relation to receiving JSA to which he is not entitled.
The Applicant does not seem to grasp (or perhaps does not choose to grasp) that he is not being charged with financial fraud. The reviewable decision is that he is being required to repay social security debts for payments he received to which he was not entitled, according to the relevant requirements in the Act.
It was significant to the Tribunal that Mr Taylor’s denials, in relation to his conduct, were very selective. In his application for second review under the part of the form headed with ‘Why do you claim the decision is wrong?’, the Applicant wrote (TD, p 4):
Clearly the decision is incorrect. The tribunal did not take into account that there is no evidence that I received any money. The “evidence” for this matter has never been provided and examined in a court of law. The Centrelink decision is arbitrary and there has been no procedural fairness or natural justice.
Tellingly, the Applicant did not deny that he lodged fake claims for JSA, he instead challenged that the first review could have made its findings without criminal charges being laid. The Applicant admitted knowing each of Persons A to G, except quibbled about whether he knew Person D or not.
He admitted that he prepared tax returns for fellow prisoners when he was in Arthur Gorrie Correction Centre, including the named persons. But when questions were put to him about particular documents, he simply refused to look at references, and in one case denied vehemently receiving some correspondence from the Department, only a little later in the hearing having to admit he had, when documentary evidence was put before him from the lodged T documents.
The Tribunal considers that the High Court authority in Bradshaw is germane in this matter. Bradshaw related to a claim for damages by a widow. It was alleged in a civil trial that Mr Bradshaw’s death was caused by the negligent driving of a servant or agent of the respondent company using a van owned by McEwans (a large hardware firm).
The facts were that the deceased had departed a railway station around sunset to cycle three miles to his home. A witness saw a van owned by the respondent travelling towards the scene of the accident with no lights on. A second witness saw a stationary van and the body of the deceased lying at an angle from the front wheel. It was dark, the van had no lights on, and there were no streetlights. No evidence was given as to the deceased’s injuries, any marks on the road, or on the van or the presence of a bicycle. The respondent admitted that the van was being driven by its employee. The trial judge declined a non-suit order sought by the respondent and directed the jury that the evidence was clear that there was an impact at or near the scene between the deceased and the respondent’s van. The jury awarded compensation to Mrs Bradshaw. The respondent appealed to the New South Wales Supreme Court which by majority set the compensation award aside. Mrs Bradshaw then appealed to the High Court.
The High Court allowed the appeal and restored the jury’s verdict, finding:
i)The difference between the criminal and civil standard of proof in their application to circumstantial evidence is that the former requires the facts to exclude reasonable hypotheses consistent with innocence whereas the latter needs only circumstances raising a more probable inference in favour of what is alleged. Where direct proof is not available and a conclusion falls short of certainty, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference, provided they do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture. If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of a particular conclusion, it is not to be regarded as mere conjecture or surmise.
ii)Though the appellant’s evidence was not of great weight, it raises the inference, indicative of negligence, that the respondent’s van was unlit on a dark road when it collided violently with the deceased;
iii)As the respondent called no evidence which might displace the appellant’s argument, there was no contrary reasoning offering a higher degree of probability. This was enough to warrant the submission of the case to the jury;
iv)As the respondent called no evidence to support its hypotheses suggesting contributory negligence, for which it bore the onus of proof, it was open to the jury to reject them.
Applying these general principles in this case, the Tribunal is satisfied that the facts before the Tribunal raise a more probable inference in favour of what is alleged. The Applicant knew each of Persons A to G (though in his oral evidence he cavilled over knowing one of them). He agreed they were fellow prisoners at the same time he was in gaol (in one case it appears one was the brother of a prisoner). He agreed in writing that these same persons were the subject of tax returns he lodged but where he pleaded guilty to Commonwealth fraud offences in retaining their tax refunds.
The evidence about obtaining birth certificates and bank accounts being then opened, using those birth certificates, was not challenged by the Applicant. The fact that in several cases the men were in prison and incapable of applying for a birth certificate or JSA on the dates they allegedly did, was not challenged. The address similarities and links to the Applicant and the JSA claims in several cases was not challenged, nor was the evidence before the Tribunal that soon after JSA was paid into the bank accounts opened in the names of these seven men, the money was withdrawn, and deposits of the same quantum promptly appear on the bank statements of the Applicant’s own bank accounts.
In terms of mounting arguments that might displace the Respondent’s submissions, Mr Taylor really only put one (putting aside his maundering submissions on the title of Her Late Majesty and the consequent legitimacy of the Minister for Social Services and the actions of her Department). His contention was that, as Persons A to G all knew each other, any one of them could have perpetuated the fraud. The Tribunal finds that improbable to the extent of being satisfactorily excluded, because of the commonality in addresses with those associated with the Applicant, the fact that he was the only one of the group who was at liberty at all the relevant times, and the background fact that he had prepared tax returns for these men, and therefore had their full names and dates of birth. There is no evidence that any of the others had that same information about their fellow prisoners. The Applicant did have that information, however, because they had given it to him when he helped them prepare their tax returns for lodgement.
Importantly, in my coming to a state of satisfaction that the Applicant did receive JSA by making these claims in the names of Persons A to G, is that Mr Taylor has at no stage proffered any cogent alternative hypothesis, which might be plausible to entertain. His only refrain, apart from the argument referred to in the previous paragraph, is – at its heart – that because he has not been convicted, the Department was somehow acting ‘illegally’ in attempting to recover the overpayment of JSA.
There is no conflicting inference, or inferences, borrowing the words in Bradshaw, of an equal or equal degrees of probability and offering a compelling reasonable alternative hypothesis. I am satisfied that, in coming to this conclusion, the Tribunal has done so based not only on surmise or conjecture, but taking into account the circumstantial material before it and on a balance of probabilities excluding any reasonable other hypotheses.
The Tribunal finds that it is satisfied that Julian Taylor lodged applications for JSA in the names of Persons A to G without their knowledge, and that the payments were made by the Department into bank accounts which he, not they, controlled, for his own benefit.
The Tribunal further finds that the Applicant was ‘overpaid’ JSA to the extent that all the JSA payments made to these seven persons in relation to claims they themselves did not lodge (but the Applicant did) were monies he was not entitled to receive.
Does the overpayment amount to a debt to the Commonwealth?
Section 1223(1)(b) of the Act provides that if a person receives a social security payment to which he or she was not entitled to obtain that benefit, the amount of that payment is a debt to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Section 1223(1AB)(c) of the Act provides that a person who received a social security payment is taken not to have been entitled to obtain the benefit if the payment was not payable or, at s 1223(1AB)(d), the payment was made as a result of the contravention of the social security law, a false statement or a misrepresentation.
The Tribunal is satisfied that the JSA was not payable to the Applicant in relation to the claims made in the names of Persons A to G, and that the payments themselves were made as the result of false statements and misrepresentations.
Should the debt be recovered?
Where money has been paid without authority to a person, Part 5.2 of the Act provides that it is recoverable from the person unless the Secretary exercises any of the statutory discretions not to recover the debt. At the time the Secretary decided to write off the debt, the sum of $3,021 had been recovered from the Applicant. The Respondent submitted that the debt is now in the region of $20,509.46 (as at the date final submissions were lodged).
There is no contention by the Applicant that there has been error by the Department that would enliven the provisions of s 1237A of the Act (noting that Mr Taylor’s over-arching contention is that the recovery of any of the debt is ‘unlawful’).
There is no contention by the Applicant that the discretionary powers available to the Tribunal in s 1237AAD of the Act are relevant in his case. In any event, the Tribunal accepts the Respondent’s submissions that the Applicant knowingly made false representations by lodging with Centrelink claims for JSA for Persons A to G without their knowledge: therefore the Secretary’s waiver discretion (or the Tribunal’s in this second review) is not available because of the exception in s 1237AAD(a)(ii) of the Act.
Mr Taylor did not advance any argument as to why, if he accepts the debt will be recovered, there was any reason for the Commonwealth not to pursue recovery.
SUMMATION
The Respondent has written the debt off, on the basis that, as Mr Taylor has been deported, it is not practicable for the Commonwealth to recover the debts. Of course, when a debt is ‘written off’ under the Act, it is always open to the Secretary to pursue it at some future date – it is not written off forever. The Tribunal expresses no view on this decision of the Secretary, which was not part of the Applicant’s case.
During the hearing, the Tribunal noted to Mr Taylor that he has been deported so therefore it was unlikely that the Secretary would reverse the write-off decision, given that the Applicant cannot re-enter Australia. The Applicant contested this and said that ‘no; I still have matters before the Courts’. The Tribunal finds that this was deliberately misleading and, as the Applicant was giving evidence under affirmation, could constitute an offence under s 62A of the AAT Act. Mr Taylor knew that his right to retain his Australian visa has ended as his legal options in this regard have been exhausted by the High Court’s decision to refuse to give him special leave to appeal. And he knew that when he made this statement to the Tribunal. Even if the Tribunal took the charitable view that he might have been referring to the separate action he has before the Federal Court, currently stayed, that matter does not relate to his being barred from re-entering Australia.
The Applicant made many caustic comments in his unsigned affidavit lodged as his closing submissions, especially about the Tribunal and other persons. In the Victorian Court of Appeal, Beach and Priest JJA described Mr Taylor’s submissions to that Court as a ‘jumble of gobbledegook’[2]. Most of his prolix 28-page closing submission to this hearing may aptly be given the same description.
[2] Citing Bradley v The Crown [2020] QCA 252
Brooking JA in R v Bahntoff (Unreported C of A 14 May 1998: Brooking, Tadgell and Phillips JJA) remarked that Mr Taylor’s (or Mr Bahntoff’s, as he then was) offences fit him to become the Professor Moriarty of Victorian crime[3] However, Priest and Beach JJA, in Taylor v The Queen [2019] FSCA 162, whilst noting the allusion to the fictional archenemy of Sherlock Holmes, preferred to describe him as an ‘enthusiastic – although not entirely successful – fraudster’ who showed no remorse. The Tribunal respectfully agrees with the latter description.
[3] A. Conan Doyle, ‘The Adventure of the Final Problem’ Strand magazine; Dec 1893; London. The fictional character was described in the story as the ‘Napoleon of crime’.
The Tribunal’s view is that Mr Taylor is objectively an intelligent man. As mentioned above, he qualified as a civil engineer. Putting aside his activities as a sham teacher, he has successfully completed several other academic courses whilst incarcerated. The papers show he has tertiary qualifications in several of his names. He was certainly capable of preparing submissions that addressed the kernel of matters in dispute, rather than producing screeds of ad hominem assertions. But he chose not to. I conclude he did not rebut the Respondent’s contentions, because he knew, having brought his application to the Tribunal, he could not meet the Respondent’s case.
CONCLUSION
The questions before the Tribunal are therefore answered as follows. The Tribunal finds that Mr Taylor received a social security benefit to which he was not entitled (JSA, paid in relation to claims falsely made on behalf of seven other men). The Applicant therefore incurred a debt to the Commonwealth calculated to be $22,115.30. The Tribunal finds that none of the resultant debt should be waived or written-off under ss 1237A or 1237AAD of the Act.
The Tribunal is satisfied that the (very comprehensive) first review decision was correct, and therefore should be affirmed.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision of the Social Services and Child Support Division dated 17 July 2020. The Applicant has a debt to the Commonwealth totalling $22,115.30 and this debt should not be waived.
I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..................................[sgd]......................................
Associate
Dated: 11 October 2024
Date(s) of hearing: 30 April and 2 May 2024 Date final submissions received: 30 May 2024 Applicant: Self-represented Advocate for the Respondent: Ms Peta Heffernan Solicitors for the Respondent: The Australian Government Solicitor
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