Thi My Cao and and Secretary Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 273
•8 May 2012
[2012] AATA 273
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1251
Re
Thi My Cao
APPLICANT
And
Secretary Department of Education Employment and Workplace Relations
Secretary Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENTS
File Number
2011/1327
Re
Van Huong Nguyen
APPLICANT
And
Secretary Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 8 May 2012 Place Adelaide 1. In application 2011/1251:
(a) The decision of the Authorised Review Officer (ARO) (as affirmed by the SSAT), that Ms Cao has been a member of a couple with Mr Nguyen from 20 September 2004, is affirmed;
(b) The decision of the SSAT in relation to Ms Cao's Parenting Payment Single (PPS) debt is varied so as to provide that:
(i) The ARO’s decision to affirm Ms Cao’s PPS debt is set aside;
(ii) The debt owed by Ms Cao in respect of overpayment of PPS is to be recalculated on the following bases:
- She has been a member of a couple with Mr Nguyen from 20 September 2004 to date, and his income is to be taken into account after that date;
- The following deposits recorded in Ms Cao’s bank account do not represent income and are to be excluded in calculating her overpayment and debt:
$31,198.00 on 13 October 2003;
$65,964.00 on 13 September 2004;
$38,106.00 on 19 September 2006;
$60,837.00 on 18 May 2007; and
$52,000.00 on 8 October 2007.
(iii) There are no grounds upon which Ms Cao's PPS debt should be waived or written off; and
(c) The decision of the ARO to affirm Ms Cao's Family Tax Benefit debts (as affirmed by the SSAT), is set aside and in substitution for that decision it is decided that:
(i) The issue of the amount of the Family Tax Benefit debts owed by Ms Cao, and whether any part of those debts should be waived or written off, is remitted to the respondent for reconsideration in light of the tax returns lodged and any other relevant information provided by Ms Cao and Mr Nguyen, and consistently with these Reasons.
2. In application 2011/1327:
(a) the decision of the ARO (as affirmed by the SSAT) that Mr Nguyen has been a member of a couple with Ms Cao since 20 September 2004 is affirmed:
(b) the decision of the ARO (as affirmed by the SSAT) to affirm Mr Nguyen’s DSP debt of $1,690.22 for the period 22 November 2003 to 26 March 2004, is affirmed;
(c) the decision of the ARO (as affirmed by the SSAT) to affirm Mr Nguyen’s DSP debt of $76,772.18 in respect of the period 27 March 2004 to 14 May 2010, is set aside and in substitution for that decision it is decided that:
(i) the debt is to be recalculated having regard to this Tribunal’s findings relating to Ms Cao’s income for the period after 20 September 2004 and so as to exclude those deposits into Ms Cao’s bank account which this Tribunal has concluded were not income; and
(ii) there are no grounds on which the debt should be waived or written off.
....................[Sgd]....................................................
Senior Member K Bean
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - Family Tax Benefit - Parenting Payment - Applicants married - Whether living separately and apart on permanent or indefinite basis - Surveillance material - Reliability of applicants' evidence - Whether undeclared income and employment - Applicants members of a couple - Each has received undeclared income relevant to their entitlements - Decisions under review substantially affirmed.
LEGISLATION
Social Security Act 1991 (Cth) ss 4(2) & (3), 1236 (1), (1A)(b), (1C), & 1237AAD
CASES
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
Senior Member K Bean
8 May 2012
INTRODUCTION
The applicants, Ms Cao and Mr Nguyen, have been married since January 1994. However they claim that their relationship broke down soon after they were married and they separated in early 1995.
These proceedings concern debts which have been raised against Mr Nguyen and Ms Cao, partly on the basis that, although they each claimed to be single, they in fact continued to live together and have been members of a couple since 20 September 2004. The debts also relate to alleged undeclared income received by each of them and which was not taken into account in assessing their social security entitlements.
In the case of Mr Nguyen, he received Disability Support Pension (DSP) at the single rate between 22 November 2003 and 14 May 2010, during most of which time the respondent alleges that he was a member of a couple with Ms Cao. He also admits to having bought a business known as the Hove Deli in which he worked during 2004 and he also admits to having been self-employed at a bakery at Croydon Park from 2009. In addition, on investigation Centrelink discovered that his banking records disclosed a number of unexplained deposits which had not been declared to Centrelink. As a result, Mr Nguyen’s DSP was cancelled and a debt was raised against him for the period 22 November 2003 to 14 May 2010 totalling $78,462.40.
In relation to Ms Cao, she received Parenting Payment Single (PPS) for the period 23 October 2002 to 20 July 2010. She also received Family Tax Benefit (FTB) on the basis that she was not a member of a couple for the tax years 2004/05 to 2008/09.
In July 2010, a PPS debt of $96,093.90 was raised against Ms Cao for the period 23 October 2002 to 20 July 2010. The debt was raised both upon the basis that Ms Cao had been a member of a couple with Mr Nguyen since September 2004, and also on the basis of unexplained cash deposits disclosed by Ms Cao’s banking records and which had not been declared to Centrelink.
In November 2010, further debts were raised against Ms Cao on the basis of overpayment of FTB, the total of those debts amounting to approximately $96,000.00.[1] Those debts were raised partly on the basis that Ms Cao had been a member of a couple with Mr Nguyen and also on the basis that neither she nor Mr Nguyen had lodged tax returns for the relevant financial years.
[1] T3/108 – File 2011/1252 Cao.
In September and October 2010, Authorised Review Officers (AROs) affirmed the decision that Mr Nguyen has been a member of a couple with Ms Cao during the relevant period and also affirmed the debts which had been raised against Ms Cao and Mr Nguyen.
On 24 March 2011, the Social Security Appeals Tribunal (SSAT) affirmed the decision that Ms Cao was a member of a couple with Mr Nguyen after 20 September 2004 and also affirmed the decisions which had been made regarding the FTB debts owed by Ms Cao. However the SSAT set aside the “parenting payment debt decision” and remitted the matter to Centrelink with directions that “whilst there is a PPS debt that must be repaid by the applicant to the Commonwealth, that the debt amount should be recalculated to exclude any income by Mr Nguyen prior to the date of 20 September 2004”.
On 10 March 2011, the SSAT affirmed all of the decisions which had been made in relation to Mr Nguyen.[2]
[2] T2 - 2011/1327 Nguyen.
On 8 April 2011 Mr Nguyen applied to this Tribunal for review of the decision of the SSAT made in relation to him and on 5 April 2011, Ms Cao applied for review of the SSAT decision relating to the debts raised against her.
THE ISSUES
It follows that the issues for my consideration in relation to Mr Nguyen are as follows:
(a)Whether Mr Nguyen was a member of a couple with Ms Cao between 20 September 2004 and 14 May 2010;
(b)Whether, since November 2003, Mr Nguyen has failed to declare income from employment or other sources to Centrelink;
(c)Whether there have been overpayments of DSP to Mr Nguyen and if so, for what periods of time;
(d)The amount of any debts owed by Mr Nguyen to the Commonwealth;
(e)Whether any debts which do exist should be waived or written off, in whole or in part.
The issues in relation to Ms Cao are as follows:
(a)whether Ms Cao was a member of a couple with Mr Nguyen after 20 September 2004;
(b)whether, after 23 October 2002, Ms Cao received income which she failed to declare to Centrelink;
(c)whether Ms Cao was overpaid PPS and/or FTB;
(d)the amount of any debts owed by Ms Cao to the Commonwealth; and
(e)whether any such debts should be waived or written off, in whole or in part.
The first issue which arises in respect of both Ms Cao and Mr Nguyen therefore is whether they were in fact members of a couple between 2004 and 2010 and if so, during what periods. I therefore propose to address that issue first before proceeding to consider the other issues identified above.
WERE MR NGUYEN AND MS CAO A COUPLE BETWEEN 2004 AND 2010?
This question must be answered having regard to the applicable test contained in the Social Security Act 1991 (the Act). The applicable provision is s 4, which relevantly provides as follows:
4 Family relationships definitions—couples
…
Member of a couple—general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(aa)both of the following conditions are met:
(i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii)the person is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b)all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v)the person and the partner are not within a prohibited relationship.
Member of a couple—criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
Given that Mr Nguyen and Ms Cao were married throughout the relevant period, in determining whether they were members of a couple I must determine whether they were “living separately and apart” from one another on a “permanent or indefinite basis” having regard to the factors enumerated in s 4(3). Before proceeding to address each of the relevant criteria however, I propose to discuss the evidence before me directed to the question of whether they were living separately and apart during the relevant period.
The Evidence
Ms Cao
Ms Cao acknowledged in her evidence that she and Mr Nguyen were legally married on 2 January 1994 and have remained married since[3]. She also acknowledged that she has had four children since then, being Michael Nguyen born 16 August 1994, Danny Nguyen born 3 May 2001, Anthony Nguyen born 17 May 2004 and Daniel Nguyen born 20 March 2007. Mr Nguyen is listed as the father of all the children on the children’s birth certificates.[4]
[3] T13/244 - Cao. T19/218 - Nguyen
[4] T13/245-248 – Cao. T19/219-222 - Nguyen.
Ms Cao also acknowledged that on 26 January 1995, she advised Centrelink that she had separated from Mr Nguyen. She said in her evidence that she and Mr Nguyen separated relatively shortly after they were married and between 1995 and 2003 she only saw Mr Nguyen occasionally. She said she sometimes went to his sister’s house to look for him.
She acknowledged nevertheless that Mr Nguyen had lent her $30,000 at the time she purchased a home in Croydon, in 2001. Under cross examination, Ms Cao also acknowledged that at the time she bought her house in 2001, Mr Nguyen had sold a house he owned. She further acknowledged that she had refinanced her home loan at around the time Mr Nguyen purchased the Hove Deli in 2004, and that she had effectively repaid Mr Nguyen the $30,000 she had borrowed from him at around that time. When asked why she paid him back at that time, she said he had given her a few months’ notice that he needed the money to buy the delicatessen and she had paid the total amount to him over one or two weeks in small amounts.
In relation to child support, Ms Cao said she had asked Mr Nguyen for this but had not received anything from him directly. She said that she had sought child support through the Child Support Agency (CSA) and was not sure whether she had received this.
As to the extent to which she had worked in Mr Nguyen’s businesses, as Ms Cao said she had worked very little following the birth of her first child. She said she had recently commenced working in Mr Nguyen’s bakery at Croydon Park, that is, since October 2011, but he had not allowed her to work there previously. As to whether she ever worked in the Hove Deli, Ms Cao stated that she never worked there, although she did visit.
Ms Cao also said that Mr Nguyen had recently moved into her house to live, less than a year ago. However he had not lived there at any time prior to that.
Arising out of some surveillance undertaken at the request of Centrelink, Ms Cao was also asked in cross examination whether Mr Nguyen’s car was ever at her home during 2007. She said it was there sometimes and sometimes she hid his keys so that he could not take his car with him when he left.
Ms Cao was shown surveillance footage[5] for the date of 17 October 2007 which showed a silver Toyota four wheel drive with a particular registration number in the garage of her home, and she acknowledged that this was Mr Nguyen’s vehicle. Shown further footage for 22 October 2007 which again showed Mr Nguyen’s vehicle parked inside the garage of her home when the garage door opened, Ms Cao again acknowledged that this was his car but said that he was not inside the house. She said his car was there because she had hidden and kept his keys and that this sometimes resulted in his car remaining at her home for a few weeks. Asked why the car was parked in the garage, she said that she sometimes moved the car into the garage after he had parked in the street or driveway.
[5] Exhibit 11.
Ms Cao was also shown footage for 24 October 2007, 26 October 2007 and 6 November 2007 showing Mr Nguyen’s car still parked in her garage. She maintained that this was explained by her having stolen and hidden his keys and that on none of these occasions did the presence of his car indicate that Mr Nguyen was at her home. She was shown further footage showing Mr Nguyen’s car in her garage on 3 December 2007 and she again maintained that Mr Nguyen was not inside the house.
Ms Cao was also shown surveillance footage taken in May 2009 showing Mr Nguyen’s car again in the garage of her home. She responded to this by indicating that at that time her car had been damaged in an accident and could not be driven. She said that she therefore borrowed Mr Nguyen’s car to take the children to school. She said she went to his bakery to pick up the car. However she acknowledged that footage for this particular day showed Mr Nguyen driving his car at 8:43am. When she was shown footage of the bakery at around that same time on that day, it was also put to Ms Cao that this showed her inside the Croydon Park bakery, working. However she said she was not working in the bakery. She acknowledged that the footage showed her entering the front door of the bakery at 8:28am, but maintained that she left the bakery out the back door. She also added later in her evidence that she believed the woman in the bakery whilst Mr Nguyen was absent was actually the person who had previously owned the bakery. Apparently that person had agreed to stay on for two weeks following the handover of the bakery to assist Mr Nguyen establish the business. Ms Cao could not explain footage which showed Mr Nguyen arriving at her house in his car, picking something up and leaving again. Asked if he had keys to her house, she said that when he asked her for her keys she gave them to him.
Shown other footage of her at the bakery, Ms Cao also stated that she went there every day to ask for work, but Mr Nguyen would not allow her to work there. She said she often went there very early in the morning. She then acknowledged that she sometimes went along with Mr Nguyen to work in the same car when he had spent the night at her place. She said she sometimes kept him there for the whole night as she was very distressed and that he stayed there “very often”. She said this occurred from the beginning of 2008 onwards and at times during that period she had been very distressed and unwell. She said that he would often stay for one or two nights and then stay somewhere else. She said he sometimes slept in the bakery and sometimes at his sister’s place.
When it was put to her that in May 2009 she would often go with him to the bakery, later come home in his car and take the children to school and then drive the car back to the bakery, she said this was correct. However she continued to maintain that she did not ever mind the shop at this time whilst Mr Nguyen was absent from it. Shown footage of a person working in the bakery on different dates in June 2009, she said this probably was not her although she “went there many times”. Shown footage of a person apparently working in the bakery on 26 June 2009, serving customers, she acknowledged that the person looked like her but maintained that she never served customers at that time.
Shown footage of her leaving her home together with Mr Nguyen in Mr Nguyen’s vehicle at approximately 4:30am on various dates in 2009, Ms Cao said she did not often go with him to the bakery at that hour. However she said that if she had tricked him to come home with her and stay the night, then in the morning she would go with him to the bakery.
Asked why she had not divorced Mr Nguyen if their relationship had broken down in 1995, Ms Cao stated that she did not want a divorce as she still loves Mr Nguyen.
Mr Dieu Nguyen
Ms Cao also asked the Tribunal to receive evidence from Mr Dieu Nguyen, who she said could provide relevant information. Mr Nguyen gave oral evidence to the Tribunal. At first he had difficulty recalling Ms Cao but then confirmed he had known her some time ago when he was working in the Vietnamese church. He confirmed that in the period 2004 to 2010 she had had problems with mental illness and was looking for her husband. He said this was about seven or eight years ago. He said that at that time he did not believe they were living together.
Mr Phuoc Tran
Ms Cao also asked the Tribunal to receive evidence from her brother-in-law, Mr Phuoc Tran. Although he had not lived in Adelaide since 2001, he said he understood there had been problems in the marriage between Mr Nguyen and Ms Cao. However he was unable to provide much detail of those difficulties.
Mr Nguyen
Mr Nguyen confirmed in his oral evidence that he was currently living at Ms Cao’s house, and paying her rent of $50 or $100. However his evidence as to where he had lived prior to that time was vague. He said he had lived at his sister’s house for a relatively short period of time, one or two months. Before that he said he had lived at Kilkenny for a few months and before that at Mansfield Park. Asked where he had lived prior to the middle of last year, he said he had used his sister’s address and stayed the night at different places including his sister’s place. He said that before 2009 he had lived in Sydney for some time but that he had never stayed at Ms Cao’s house. Asked if he had ever slept overnight at Ms Cao’s house, he said this happened once and that he would also go to her house to pick up mail once per month which his eldest son would keep for him. He said he used Ms Cao’s home as a mailing address, partly because he had claimed her house as an asset when applying for a loan, although the house was not his.
Asked how often he saw Ms Cao between 2003 and 2008, Mr Nguyen said he did see her sometimes when she called him. He said that once she had been taken away by a doctor and the doctor had asked him to stay and look after the children. He said he stayed there one night but that was the only time he had stayed the night. He said on another occasion one of the children had been burnt with boiling water so he had taken the child to hospital. However he also acknowledged that Ms Cao called him every day.
Mr Nguyen also referred to a time when Ms Cao called him and asked him to come over and then took his car keys. He said he ran away to his sister’s place and this only happened once. He said he got the keys back from her after about two weeks. He said that Ms Cao had had a lot of problems with mental illness but this had improved recently. As a result he had relented and had recently decided to allow her to work in his bakery for a few hours a day and said he currently regarded Ms Cao as his friend. While he now lives at her house however, he said he does not sleep with her but sleeps in another room. He said Ms Cao was less agitated as a result of this arrangement and consequently he was able to look after his business and try to make it successful.
Under cross examination, Mr Nguyen confirmed that Ms Cao had taken his keys and kept his car only once, although he could not remember when this was. As to whether Ms Cao ever drove his car, he acknowledged that in more recent times she sometimes borrowed the car to take the children somewhere, and he had allowed her to borrow the car once or twice.
Mr Nguyen also confirmed that he had lent Ms Cao $30,000 when she purchased her Croydon house in 2001 as he had sold his house. He said he had also won some money at the casino. He also confirmed that Ms Cao had repaid this money or the bulk of it at around the time he bought the Hove Deli. Asked about a record of interview indicating that he told Centrelink that Ms Cao helped him in the Hove Deli, he claimed he had not said that she worked there.
When he was shown surveillance footage of 17 October 2007 which showed his car at Ms Cao’s house, Mr Nguyen said this was the occasion when Ms Cao took his keys and he walked away. He confirmed that this had only occurred once. When he was shown footage of his car in her garage again on 6 November 2007, he confirmed this was also explained by her having kept his keys. Shown further footage which showed his car in her garage on other occasions through until December 2007, he said that Ms Cao had tricked him to go inside and so he had parked his car there. He also mentioned that once her car had been damaged and she borrowed his. He said he was not living at Ms Cao’s house at that time but that sometimes she would call him and ask him to come over, get him drunk and he would stay the night at her place.
Mr Nguyen was also shown footage from May 2009 showing his car at Ms Cao’s place and Ms Cao driving his car and also at the bakery. In response to this he claimed that she had borrowed the car from him and was not working at the bakery. He said the person who had sold him the bakery had helped him in the first couple of weeks with the bakery and his sister sometimes also helped him.
However when he was asked whether Ms Cao ever went to the bakery with him he responded “no, never”. Shown footage of his car in Ms Cao’s garage at 4:30am on 28 May 2009, he then acknowledged that once or twice he had gone to her house in the evening and got drunk and slept in the lounge room. Asked whether Ms Cao ever went to work with him he first said “never”, but subsequently qualified this by indicating that once or twice she jumped into his car and went with him when he did not want her to. He said the period of May 2009 when he had taken over the bakery was a “terrible time” and Ms Cao had caused him a lot of trouble during this period.
Shown footage of him calling in at Ms Cao’s home, picking something up and then leaving, Mr Nguyen acknowledged that he may have had a spare key to the house. Shown footage of further occasions on which the two of them left the house together very early in the morning to go to the bakery, he said she must have called him over to her house in the middle of the night and he had come over. In the morning she had then jumped in the car to go with him to the bakery although he did not want her to. He also said she had often begged him to go to the bakery with him and he had sometimes given in, as he had to find a way to calm her down. In response to further footage he said that many times Ms Cao had called him over and many times he had stayed the night.
When Mr Nguyen was shown footage of Ms Cao apparently out the front of his bakery at Croydon Park in 2009, Mr Nguyen acknowledged that this was Ms Cao but said she was not actually working at the bakery at that time.
As to the fact that Mr Nguyen was listed as the father on each of Ms Cao’s children’s birth certificates, Mr Nguyen indicated that he accepted he was the father of Ms Cao’s eldest son but said he had doubts about the other boys. He acknowledged that he did have a sexual relationship with her during the relevant periods, but said this was very occasional and only when he was drunk.
Other Evidence
There is also some further relevant evidence amongst the documentary material. For example, in a Centrelink questionnaire answered by RAMS Home loans, RAMS advised that Ms Cao had given her marital status as “married”[6] in March 2007. However in a credit card application completed on 22 September 2003, she gave her marital status at “separated”.[7]
[6] T8.
[7] T23/357 Cao. T26/326 Nguyen.
Ms Cao also made an application to Centrelink for increased child care in 2004,[8] coinciding with Mr Nguyen purchasing the Hove Deli in mid 2004. As she acknowledged in her evidence, she also refinanced her home loan through Citi Bank in July 2004.[9]
[8] T5/137 Cao. T12/111 Nguyen.
[9] T27/881 Cao. T31/863 Nguyen.
Consideration
I propose to consider the above evidence in the context of each of the relevant criteria to which the Act requires me to have regard. However before turning to those criteria, I will first address the issue of the reliability of Mr Nguyen and Ms Cao’s evidence, as this question is central to resolution of many of the issues before me.
The Reliability of Ms Cao and Mr Nguyen’s evidence
On the question of the reliability of Ms Cao and Mr Nguyen’s evidence, I have concluded that I do not regard the evidence of either of them as being reliable. While their evidence was in broad terms consistent with that of each other, it was starkly inconsistent with some of the other material available, most notably the surveillance footage. It is significant in my view that until confronted with the surveillance footage, they both claimed to have had little contact in the relevant period, although Ms Cao admitted to more contact in the period from 2008 onwards. As to whether Mr Nguyen ever spent the night at Ms Cao’s house, they each indicated that this rarely or never happened and they both indicated that Ms Cao did not work in the Croydon Park bakery and if she went there it was because she wanted to see Mr Nguyen and/or to ask for work. Further, when asked about why Mr Nguyen’s car would be in Ms Cao’s garage, they each initially gave the explanation that Ms Cao had taken and hidden Mr Nguyen’s keys, with Mr Nguyen indicating that this definitely happened only once and that he was able to get his keys back from Ms Cao within a couple of weeks.
The surveillance footage is starkly inconsistent with all of this evidence, particularly their evidence that Mr Nguyen rarely stayed overnight at Ms Cao’s home. The surveillance report shows Mr Nguyen’s car at Ms Cao’s home between 17 October 2007 and 3 December 2007, as it was present in the garage on each occasion when the surveillance operative was able to observe the garage between those dates. That is a period of approximately 6 weeks and is not explained by Mr Nguyen and Ms Cao’s evidence that on one occasion Ms Cao had possession of Mr Nguyen’s car keys for a period of two weeks whilst he was elsewhere. In the absence of any other explanation, I can only conclude that this footage is explained by the fact that Mr Nguyen was living at Ms Cao’s home at Croydon throughout this period.
In reaching that conclusion I have also had regard to the fact that on every occasion that a surveillance operative observed Ms Cao’s garage during this period, Mr Nguyen’s vehicle was present. It would be an extraordinary coincidence if the event described by Ms Cao and Mr Nguyen, whereby Ms Cao took and hid Mr Nguyen’s keys, happened to occur at precisely the time that the surveillance was undertaken, and in any event, neither of them claimed that this explained the presence of Mr Nguyen’s car at Ms Cao’s home for a period of six weeks.
The surveillance footage taken in May and June 2009 is even more inconsistent with the evidence of both Ms Cao and Mr Nguyen. It not only shows Mr Nguyen’s vehicle in the garage of Ms Cao’s home, it also shows the two of them repeatedly leaving together very early in the morning and arriving at the bakery together. On some occasions, it also shows Ms Cao at the premises thereafter attending to matters associated with the business.
There is some footage which may show Ms Cao serving customers in the shop, although I accept that this has not been established, as the footage is not clear enough for the person depicted to be positively identified. What is established however is that on 28 May 2009, at 4:30am, they each left Ms Cao’s home together in Mr Nguyen’s vehicle and went to the bakery. On 29 May 2009, the surveillance footage also shows Ms Cao leaving her home in Mr Nguyen’s vehicle at 4:20am, going to the bakery and carrying trays into the bakery.[10] At 7:20am on the same day the surveillance footage shows Mr Nguyen leaving Ms Cao’s home address on foot and heading towards the bakery. He then collects his vehicle from the bakery and drives away. On 1 June 2009, at 4:30am the footage shows Mr Nguyen and Ms Cao leaving her house together in his vehicle and driving to the bakery. Again on 9 June 2009 the footage shows them leaving Ms Cao’s house together in his vehicle at 4:45am and driving to the bakery. On 15 June 2009, the footage also shows the two of them leaving the bakery at approximately 8pm and driving to Ms Cao’s home. Again on 26 June 2009, the footage shows them leaving together for the bakery at 4:45am. The surveillance report also records that they were each serving customers in the bakery on a number of the occasions referred to above.
[10] T 10/215 Cao. T17/189 Nguyen.
Having initially indicated that he never stayed at Ms Cao’s home other than on one or two occasions, Mr Nguyen indicated later in his evidence that he would occasionally stay the night if he got drunk and that she would then “follow him” to the bakery in the morning. However the surveillance footage shows the two of them leaving together and arriving at the bakery in a calm and orderly manner with no suggestion that Ms Cao’s presence is unwelcome to Mr Nguyen. For example, on a number of occasions he stops the vehicle while she gets out of the vehicle, closes the gates behind them and re-enters the vehicle. As with the previous footage, it is also unlikely that this period of surveillance, being a period of about five weeks in total, happened to coincide with a rare and unusual period during which Mr Nguyen was staying at Ms Cao’s home. It is far more likely that what has been captured by the surveillance footage was a pattern of conduct which had been going on prior to the surveillance footage and continued thereafter.
Given that the footage shows Mr Nguyen leaving Ms Cao’s home at approximately 4am in the morning on a number of occasions, I can only conclude that he has spent the night at her house on those days and that his evidence that he never did this is untrue. As with the previous footage, in the absence of any credible explanation from Ms Cao and/or Mr Nguyen which is consistent with them not living together during this period, I can only conclude that during May and June 2009 they were in fact living together at the Croydon house and I also consider it likely that they were living together prior to this time and continued living together thereafter. In reaching that conclusion I have also had regard to Mr Nguyen’s extremely vague evidence as where he was living prior to late 2011, when he admits that he started living with Ms Cao.
Of course it follows from those conclusions that I consider both Ms Cao’s evidence and Mr Nguyen’s evidence as to when they were or were not living together unreliable and I do not accept that evidence. It also follows that I consider other aspects of their evidence to be unreliable and I consider it likely that in their respective evidence they have sought to minimise the extent of contact and interdependence between them. However in light of all of the evidence, in particular the surveillance footage, I consider that they are likely to have been living together since at least October 2007 and that the financial and other arrangements between them are also likely to have been more reflective of a couple-like relationship than they have admitted to in their evidence.
It is against that background therefore that I must evaluate the evidence directed towards each of the criteria specified in the Act.
The financial aspects of the relationship
It is clear that there have been some financial dealings between Mr Nguyen and Ms Cao which are suggestive of a couple-like relationship. For example, it is not disputed that Mr Nguyen loaned Ms Cao $30,000 when she purchased her Croydon property and there is no suggestion that they entered into any formal written agreement in relation to that money. Having said this, on the evidence before me it also appears that Ms Cao has repaid all or most of this money and that most of it was repaid to Mr Nguyen at around the time he purchased the Hove Deli in 2004.
Whilst both Mr Nguyen and Ms Cao deny that Ms Cao worked in the Hove Deli, or that she worked in the Croydon Park bakery before 2011, Ms Cao admits to visiting the Hove Deli and there is considerable material before me which would support a conclusion that Ms Cao assisted Mr Nguyen in the Croydon Park bakery prior to 2011. In particular, the surveillance footage shows her going to the bakery with him early in the morning and some of the footage clearly shows her assisting with aspects of the business, such as for example putting the sign out the front of the bakery at the start of trade. Some of the footage also appears to show Ms Cao inside the shop serving customers, and the surveillance operative has reported observing Ms Cao serving customers in the bakery. Ms Cao acknowledged that on at least one of the occasions shown in the surveillance footage the person depicted serving customers in the bakery did appear to be her, although Mr Nguyen disputed that this was the case.
As to other aspects of the financial arrangements between them, Ms Cao and Mr Nguyen have each indicated that they lived separately until very recently and therefore did not share household expenses. Both have also stated that Ms Nguyen does not provide any child support directly to Ms Cao, although Ms Cao acknowledged that she did not know whether she was receiving child support via the CSA.
In light of the nature of the evidence, the conclusions to be drawn from it depend very much on the extent to which I accept Ms Cao and Mr Nguyen’s evidence. If I accepted their evidence, there would not be a sufficient basis to conclude that the financial aspects of their relationship suggested that they were members of a couple in the relevant period. However, as I have indicated above, I do not regard many aspects of their evidence as credible. Rather, I consider that each of them has given evidence which is untrue and misleading, with a view to creating the impression that there has been less contact and interdependence between them than is actually the case.
In that context and having regard to the evidence as a whole, I have concluded they have in fact been cohabiting for much longer than they admit to, and I also consider that their finances are far more entwined than they have claimed them to be. Having regard to the surveillance footage of Ms Cao travelling to the bakery with Mr Nguyen early in the morning and performing tasks associated with the bakery, I am also satisfied that at various times since May 2009 Ms Cao has actively assisted Mr Nguyen with the Croydon Park bakery in a manner consistent with her being his partner or spouse.
The nature of the household
As I consider that Ms Cao and Mr Nguyen have been cohabiting for much longer than they admit to, I also consider the nature of their household is likely to have been relatively consistent with a couple-like relationship. In particular I considerate it likely that whilst cohabiting Ms Cao and Mr Nguyen have shared responsibility for looking after the four children.
The social aspects of the relationship
There is little material before me directed to this criterion other than the evidence of Ms Cao and Mr Nguyen. Each of them gave evidence to the effect that they do not socialise or behave as a couple. As I have indicated above however, I consider aspects of their evidence to be unreliable and although there is little positive evidence of them socialising as or representing themselves as a couple, I consider it likely that they have behaved and conducted themselves as a couple more than they have admitted to in their evidence.
Any sexual relationship between the two people
Mr Nguyen is listed as the father of all four of Ms Cao’s children on their birth certificates.[11] He has questioned the paternity of the three younger boys in his evidence, however he also admitted that he did have occasional sexual relations with Ms Cao during the relevant period. I consider that he may have been more frank in his evidence in relation to this issue than other matters as he could have chosen to deny any sexual relationship during this period, albeit his evidence may then have been inconsistent with that of Ms Cao.
[11] T13/245-248 Cao. T19/219-222 Nguyen.
Doing the best I can on the material before me, I have concluded that there was a sexual relationship between Mr Nguyen and Ms Cao which continued at least from 1994 until approximately 2006 and possibly beyond that date. I also accept however that their sexual relationship has been occasional and intermittent. Accordingly, whilst this is consistent with them being members of a couple, it does not point strongly toward that conclusion.
The nature of the people’s commitment to each other
Ms Cao and Mr Nguyen have been married since 1994 and although Mr Nguyen attempted to initiate a divorce at one stage, he did not pursue this. Ms Cao also has four children and Mr Nguyen accepts that he is the father of her eldest son and may be the father of some or all of her other three children. On my findings above, although they appear to have separated relatively soon after they married, they have been living together in the Croydon property since at least October 2007 and probably earlier. They have also supported each other in financial endeavours in so far as Mr Nguyen lent Ms Cao money to purchase the Croydon property and she repaid that money at a time which enabled him to purchase the Hove Deli. The evidence also suggests that Mr Nguyen has endeavoured to help Ms Cao and the children in times of crisis and that he has been responsive to her demands upon him in these situations, albeit partly out of concern for the children. In this regard, the evidence suggests that Ms Cao has had very significant mental health difficulties in the period since 2003 and for example in August 2010 she was detained under the Mental Health Act.[12]
[12] Exhibit 4.
I should also acknowledge however that I received the strong impression from their evidence and the behaviour and demeanour of both Ms Cao and Mr Nguyen during the hearing that they do not any longer have a relationship of a “romantic” or sexual nature. I accept therefore that their relationship currently is more one of friendship and convenience but involving some level of commitment to the welfare of one another and the children.
Overall assessment
In view of the fact they are actually married, and on the basis of my findings above that they have lived together since at least October 2007, together with the other aspects of the evidence I have referred to, I am satisfied that Ms Cao and Mr Nguyen were not living separately and apart and were therefore a couple within the meaning of the Act from at least October 2007 to date. The more difficult question is whether they were in fact living together and were members of a couple prior to that date. They have each given evidence that they had little contact during the period 2004 to 2007 and there is not a great deal of evidence to suggest they were in contact, let alone living together in the period prior to October 2007.
However I have found their evidence on this issue to be unreliable and it is relevant that Ms Cao’s younger three sons were born respectively on 3 May 2002, 17 May 2004 and 20 March 2007, albeit Mr Nguyen has raised issues as to the paternity of these children. Significantly however, he did not assert that any of the children could not be his. In addition to that, he has not given a clear or consistent account of where he lived during that period if it was not with Ms Cao and nor has he called any corroborative evidence in this regard. In these circumstances, whilst I acknowledge there is some evidence pointing away from this conclusion, on balance, I am satisfied that Mr Nguyen and Ms Cao were living together throughout the whole of the relevant period and that they were also members of a couple within the meaning of the Act during the period 24 September 2004 to July 2010.
The remaining issues to be addressed concern the amount of the debts owed by each of them, and whether those debts should be waived or written off.
DID MR NGUYEN FAIL TO DELARE INCOME TO CENTRELINK?
The respondent contended that there were two sources of income for Mr Nguyen that had not been taken into account in determining his rate of DSP payments during the relevant period. The first was unexplained cash deposits into Mr Nguyen’s bank account over an extended period of time as revealed by his bank statements.[13] The second was Mr Nguyen’s employment in his businesses at the Hove Deli from 20 September 2004 to 17 June 2005, and at the Croydon Park bakery from 11 May 2009. The respondent pointed out that Mr Nguyen had not apprised Centrelink any time during the relevant period that he was working or receiving income.
[13] T37 Nguyen.
The banking records relied upon by the respondent relate to a Commonwealth Bank account held by Mr Nguyen. The records available show [14] a number of significant cash deposits, one in the sum of $4,567, were made in January 2003 with some smaller deposits in February and April 2003.[15] In May 2003, there were two unexplained deposits of $1,499 and $29,126.[16] In June 2003, there were two deposits over $1,000 and in July 2003 a deposit of almost $5,000. In August 2003, there was a deposit of $1,000 and in October 2003 there were two further small cash deposits recorded.[17]
[14] T37/952 Nguyen.
[15] T37/953 Nguyen.
[16] T37/954 Nguyen.
[17] T37/956 Nguyen.
The records show a small cheque deposit was made in April 2004 and a larger one in May 2004, of $1,200.[18] The records for October 2004 also reveal a number of large cash deposits and the same is the case with respect to November 2004 and December 2004 with a cash deposit on 7 December 2004 totalling $4,400.[19] There is also a record of a deposit on 16 December 2004 of $8,000.
[18] T37/951 Nguyen.
[19] T37/933-935 Nguyen.
The records also show numerous significant deposits into the account from 4 January 2005 onwards, including a significant number of deposits over $1000. For example, in the month of January 2005, there were seven deposits of over $1,000, and in February 2005 there were seven deposits over $1,000, including one of $5,090, being a cash deposit. The records relating to March 2005 and April 2005 also reveal cash deposits, and the records for May 2005 also reveal eight deposits over $1,000.[20]
[20] T37/930-932 Nguyen.
The records do not show any irregular deposits from January 2007 until July 2007, but from August 2007 through to December 2007 a number of cash deposits, each under $1000, are also recorded.[21] The records for February through to August 2008 also show a number of cheque deposits, ranging between approximately $700 and $1000 per month.
[21] T37/943-945 Nguyen.
When he was asked about these deposits at the hearing, Mr Nguyen said that they were at least in part attributable to him having lent money to friends who then paid him back. He also referred to having won money at the casino.
As referred to above, Mr Nguyen did not dispute that he had owned the Hove Deli from 20 September 2004 to 17 June 2005 and the bakery at Croydon Park from 11 May 2009. He claimed he had only worked in the Hove Deli for four months, but acknowledged that during that period he worked five or six days per week. He agreed that he had used his own money to purchase the Hove Deli and that he had sold it in 2005. When it was put to Mr Nguyen that he received approximately $60,000 on 21 June 2005 from the sale of the Deli, he agreed this was correct. He said he had gambled or spent this money.
Mr Nguyen also said that at the time that he took over the Hove Deli, he did not appreciate that he was required to tell Centrelink about this, as friends had told him that he only needed to notify Centrelink one year after he started working. He also said that he did not understand letters sent to him from Centrelink as he speaks only Vietnamese and is not able to read English.
In relation to the Croydon Park bakery, Mr Nguyen acknowledged he had opened this in May 2009 and said that he worked in the bakery six days per week. He said that he had bought the Croydon Park bakery for $29,500 and that this money had come from his savings, and money he had won at the casino and borrowed from his sister.[22]
[22] See also T23/259 Nguyen. T17/285 Cao.
Asked specifically about the cheque deposits into his account in November and December 2007, Mr Nguyen said these were explained by the fact that he borrowed money from friends and he also lent money to friends who subsequently paid him back.
Under cross examination, Mr Nguyen’s attention was drawn to records which indicated that a number of the cheque deposits into his account between 2003 and 2008 were cheques drawn upon the account of DNP Australia, which is the parent company for “Tiara Bridal Palace” for which Ms Cao had worked.[23] When it was put to him that Ms Cao had been paying cheques into his account, he said he did not know whether this occurred. He said he had never worked himself for Tiara Bridal Palace.
[23] Exhibit 7.
When Mr Nguyen was asked about the purchase of the vehicle shown in the surveillance footage, a Toyota Kluger, he said this had cost $40,000.00 and he had won that money at the casino.
In relation to this evidence, Mr Visser, who appeared as advocate for the respondent, submitted that during the time he was working in the Hove Deli, Mr Nguyen was clearly not qualified for DSP, and I accept that submission. I also accept the respondent’s submission that Mr Nguyen is likely to have been working in the Hove Deli throughout the period during which he owned it, from September 2004 to 17 June 2005. Similarly, as he commenced working at the Croydon Park bakery in May 2009, clearly Mr Nguyen was not entitled to receive DSP after that date.
In addition, I am satisfied that the unexplained deposits into Mr Nguyen’s bank account referred to above have been correctly treated as income which has been taken into account in calculating the amount of his debts. In respect of some of the deposits, Mr Nguyen referred to the fact that he had borrowed money from friends and also lent money to friends who subsequently paid him back. However having regard to the fact that I have found his evidence to be unreliable on other issues, and in the absence of any evidence to substantiate his claim that any of these deposits amounted to loans or the repayment of loans, I am not satisfied that any of these deposits are properly characterised as loans or the repayment of loans rather than income.
I am accordingly satisfied that Mr Nguyen received the income to which Centrelink has had regard in calculating the debts, and that he failed to disclose that income to Centrelink.
HAVE THERE BEEN OVERPAYMENTS OF DISABILTY SUPPORT PENSION TO MR NGUYEN?
As I have indicated above, it is clear that Mr Nguyen was not qualified to receive DSP whilst he was working at the Hove Deli from 20 September 2004 until 17 June 2005, or at the bakery at Croydon Park from 11 May 2009. It therefore follows that he has been overpaid DSP during those periods and I note that the debt calculations undertaken by Centrelink have been done on that basis.[24]
[24] T39 Nguyen.
Based upon the income amounts referred to above, and the fact that he was a member of a couple with Ms Cao from September 2004, the ARO determined that in the period 22 November 2003 to 26 March 2004 Mr Nguyen received DSP totalling $4,130.53 whereas he was only entitled to $2,440.31. The ARO also determined that in the period 27 March 2004 and 14 May 2010 Mr Nguyen was entitled to receive DSP of $10,519.37 whereas he received $87,291.55.
However, whilst I am satisfied that Mr Nguyen’s debts have been correctly calculated having regard to his income, as I will proceed to discuss below, I have concluded that Ms Cao’s debts will need to be recalculated because amounts which have been treated as income received by her were in fact loans. As Ms Cao’s income is potentially relevant to Mr Nguyen’s debt in the period after 20 September 2004, it therefore follows that his debt for that period will also need to be recalculated.
WHAT ARE THE AMOUNTS OF ANY DEBTS OWED BY MR NGUYEN?
As I have indicated above, I have concluded that Mr Nguyen’s debt will need to be recalculated to take account of my findings in relation to Ms Cao’s income.
SHOULD MR NGUYEN’S DEBT BE WAIVED OR WRITTEN OFF, IN WHOLE OR IN PART?
As to whether Mr Nguyen’s debt should be waived or written off, there are a number of provisions of the Act which are potentially relevant.
The two provisions which are relevant in this matter are s1236 of the Act which allows for a debt to be written off, and s 1237AAD which allows for a debt to be waived if there are special circumstances.
Lack of capacity to pay
Section 1236 of the Act relevantly provides as follows:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
…
(b) the debtor has no capacity to repay the debt; or
…
(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
….
It is clear on the evidence before me however that Mr Nguyen is currently working in his own business and earning an income. In those circumstances, I am satisfied that he does have capacity to repay the debt and therefore s 1236 is not applicable.
Special circumstances waiver
Section 1237AAD of the Act relevantly provides as follows:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.
As is apparent from the terms of the provision, the discretion it confers is only available where a person has not knowingly made a false statement or false representation or omitted to comply with a provision of a relevant Act.
In light of the evidence in this matter, there is a live issue as to the extent to which Mr Nguyen was aware of his obligations to Centrelink. Even if he did not “knowingly” fail to comply with his obligations however, I am not satisfied that there are “special circumstances” within the meaning of the provision which justify waiver of his debt. As I have indicated above, Mr Nguyen is currently working. I accept his evidence that he finds the existence of the debt stressful and distressing and that he also feels distressed and depressed about other aspects of his life. However I do not consider there to be any particular injustice or unfairness in Mr Nguyen being required to repay the debt and nor do any of the other matters he has put forward constitute “special circumstances” within the meaning of the Act.[25]
[25] See ReBeadle and Director-General Social Security (1984) 6 ALD 1.
Accordingly I have decided it is not appropriate for the debt to be waived pursuant to s1237AAD.
I now propose to address the debt issues as they relate to Ms Cao.
DID MS CAO HAVE UNDECLARED INCOME DURING THE RELEVANT PERIOD?
The respondent also contended that Ms Cao had income from two sources during the relevant period which was not declared to Centrelink.
The first source of income was a number of unexplained cash deposits into Ms Cao’s bank accounts between 2002 and 2010.[26] The second source of income was undeclared income from employment by a number of businesses known respectively as Vins Garments, Renown Clothing and Tiara Bridal Palace. The respondent also submitted that Ms Cao worked in Mr Nguyen’s businesses at Hove Deli in 2004 and the Croydon Park bakery from 2009.
[26] T23 Cao.
The respondent pointed out that Ms Cao had told the SSAT that she had worked at Tiara Bridal Palace but only earned $1,000 per year.[27] She also told the SSAT that she did work for Renown Clothing although her work involved “picking up a few shirts and working from home”.[28] She also told the SSAT that she thought she only earned a few hundred dollars for this work.
[27] T2/20 Cao.
[28] T2/20 Cao.
In her evidence in chief in this matter, Ms Cao said she had never actually been paid for working for Renown Clothing, but was learning to sew from them. She conceded that she worked for Tiara Bridal Palace from 2007 to 2008 and that she worked part-time, approximately ten hours per week, earning approximately $6,000 per year. She denied that Mr Nguyen worked for Tiara Bridal Palace and also denied paying cheques from them in to his bank account, although she claimed in her evidence that she had borrowed money from Tiara Bridal Palace.
Ms Cao also conceded that she worked for Vins Garments for a few months, although she didn’t continue with them. She said she earned $2,000 from this work in 2007, again working around ten hours per week.
Ms Cao was also asked about a credit card application she had completed in 2003 stating that at that time she was working full time as a ‘bread maker” at North Haven Bakery.[29] She said this was not true as she was not in fact working at all at that time. She said she had stated that on the form so that she could borrow some money. She said she did not regard this as lying as she needed to borrow the money and knew she could repay it.
[29] T23/357 Cao. T26/326 Nguyen.
She was also asked about a RAMS Home Loan application form she signed in March 2007 stating that she was the owner of the “Thi My Dung Cao” bakery started on 1 January 2002.[30] However she explained that she had not understood that in this form she was representing that she owned that bakery. She said the form had been completed by a representative of RAMS who had asked her for the address of her sister’s bakery.
[30] T8/161 Cao. T15/135 Nguyen.
Turning to the deposits into Ms Cao’s bank account which Centrelink have treated as being income, these can be summarised as follows:
YEAR
MONTH
DATE
AMOUNT
Ref
Cao T Docs only
2002
July
31
500.00
T35/1004
“
August
30
1,000.00
T35/1005
“
Sept
27
400.00
“
“
Oct
4
1,996.00
“
“
Nov
5
1,170.00
T35/1006
“
Dec
2
1,100.00
“
“
“
3
1,833.00
“
“
“
12
1,000.00
“
“
“
23
459.00
“
“
“
24
3,300.00
“
2003
January
31
380.00
T35/998
“
February
27
400.00
“
“
March
3
1,562.00
“
“
“
5
900.00
“
“
April
15
1,500.00
T35/999
“
“
29
2,300.00
T35/1000
“
May
1
500.00
“
“
“
30
2020.00
“
“
June
30
1,100.00
T35/1001
“
August
1
760.00
“
“
“
5
825.00
“
“
“
6
500.00
“
“
October
13
31,198.00
T35/1003[31]
YEAR
MONTH
DATE
AMOUNT
Ref
Cao T Docs only
2003
December
3
800.00
“
“
“
5
800.00
“
“
“
8
800.00
“
“
“
10
700.00
“
“
“
10
930.00
“
2004
January
5
1,250.00
T35/991
“
“
8
550.00
“
“
“
12
1,200.00
“
“
Feb
10
1,500.00
T35/992
“
“
11
500.00
“
“
March
9
1,200.00
T35/993
“
April
7
1,500.00
“
“
“
16
6,580.00
“[32]
“
May
4
1,000.00
“
“
“
10
950.00
T35/994
“
June
7
1,000.00
“
“
“
10
700.00
“
“
July
12
1,200.00
T35/995
“
Sept
8
1,200.00
T35/996
“
“
13
65,964.00
T35/996 [33]
2005
March
7
239.00
T35/986
“
May
12
300.00
T35/987
“
Sept
7
2,400.00
T35/989
“
“
20
150.00
“
“
“
22
2,850.00
“
“
Dec
13
600.00
T35/990
2006
July
5
2,000.00
T35/982
‘
“
31
100.00
T35/983
‘
August
8
3,000.00
T35/983
‘
Sept
19
38,106.00
T35/984[34]
“
October
31
3,000.00
T35/984
“
November
30
2,250.00
T35/985
2007
Jan
2
1250.00
T35/974
“
“
30
1500.00
T35/974
2007
Feb
7
3000.00
T35/975
“
“
8
550.00
T35/975
“
March
1
1800.00
“
2007
March
29
1200.00
T35/975
YEAR
MONTH
DATE
AMOUNT
Ref
Cao T Docs only
2007
“
30
3000.00
T35/976
“
April
30
200.00
T35/976
“
May
18
60,837.00
T35/976[35]
“
“
28
1120.00
T35/965
“
June
12
1350.00
T35/965
“
“
15
170.00
T35/965
“
“
25
1350.00
T35/965
“
July
4
414.00
T35/965
“
“
9
1000.00
T35/965
“
“
17
572.00
T35/965
“
“
23
992.00
T35/966
“
“
31
292.00
T35/977
2007
August
6
1050.00
T35/966
“
“
8
292.00
T35/966
“
“
14
270.00
T35/966
“
“
16
182.00
T35/966
“
“
20
800.00
T35/966
“
“
28
350.00
T35/966
“
“
28
10,000.00
T35/978
2007
Sept
3
1100.00
T35/966
“
“
12
420.00
T35/966
“
“
13
1400.00
T35/966
“
“
24
400.00
T35/978
“
“
26
1200.00
T35/978
2007
Oct
1
1400.00
T35/966
“
“
2
700.00
T35/966
“
“
8
52,000.00
T35/966[36]
“
“
15
1420.00
T35/966
“
“
23
945.00
T35/966
“
“
26
600.00
T35/966
“
“
29
100.00
T35/966
“
Nov
12
1460.00
T35/967
“
“
14
842.00
T35/967
“
“
26
700.00
T35/967
“
December
4
871.00
T35/967
“
“
10
700.00
T35/967
“
“
21
866.00
T35/967
2007
Dec
24
1500.00
.00
T35/967
2008
Feb
4
1400.00
T35/962-963
“
“
11
788.00
“
YEAR
MONTH
DATE
AMOUNT
Ref
Cao T Docs only
2008
“
18
400.00
“
“
“
18
400.00
“
2008
March
3
1500.00
“
“
“
17
1500.00
“
“
“
26
795.00
“
“
“
31
750.00
“
2008
April
14
1520.00
“
“
“
17
3000.00
T35/970
“
“
23
934.00
T35/962-963
“
“
28
600.00
“
2008
May
12
1550.00
“
“
“
13
773.00
“
“
“
15
1700.00
T35/970
“
“
26
9274.00
T35/962-963
“
“
26
1570.00
“
2008
June
6
1500.00
“
“
“
12
1600.00
T35/970
“
“
16
1500.00
T35/962-963
“
“
23
1630.00
“
2008
July
7
1600.00
“
“
“
10
1600.00
“
“
“
21
1600.00
“
“
“
22
1336.00
“
2008
August
1
1650.00
T35/964
“
“
4
105.00
“
“
“
7
1600.00
“
“
“
15
1620.00
“
“
“
29
1600.00
“
“
“
29
1650.00
“
2008
Sept
12
1650.00
“
“
“
26
1650.00
“
2008
October
1
1600.00
“
“
“
10
1650.00
“
“
“
14
3500.00
“
“
“
24
1650.00
“
“
“
29
1600.00
“
2008
November
7
1500.00
T35/964
“
“
21
1600.00
“
“
“
28
1600.00
T35/965
2008
December
5
1500.00
“
“
“
19
1500.00
“
“
“
23
1600.00
“
2009
January
2
1500.00
T35/962-963
[31] This matched by a withdrawal of $31,000.00 on 16 October 2003.
[32] This deposit is matched by a withdrawal of $6,590.00 on 21 April 2004.
[33] There are also withdrawals of $35,505.00 on 14 September 2004 and $31,200.00 on 17 September 2004.
[34] $38,000.00 was withdrawn from the account on 27 September 2006.
[35] $60,005.00 was withdrawn on 23 May 2007 – T35/976 Cao.
[36] This was withdrawn on 12 October 2007 – T35/966 Cao.
In the course of her evidence, Ms Cao was asked specifically about some of the larger of these deposits, in particular the deposit of an amount of cash of $52,000.00 on 8 October 2007, which was withdrawn on 12 October 2007.[37] She said this money belonged to her brother-in-law, Mr Tran, who had been intending to purchase a house in Adelaide. She said he had effectively used her account to transfer the money to Adelaide. However he had subsequently changed his mind and she accordingly withdrew the money and gave it to her nephew to be returned to Mr Tran. This evidence was corroborated by Mr Tran in the course of his evidence. He confirmed that he put $52,000.00 into Ms Cao’s account when he was intending to buy a property in Adelaide. He also confirmed that he subsequently received the money back after he had changed his mind about purchasing a home in Adelaide.
[37] T35/966 Cao.
Accordingly, in respect of the deposit of $52,000.00 on 8 October 2007, I accept the evidence of Ms Cao and her brother-in-law that this was in fact Mr Tran’s money and should not be taken in to account as income received by Ms Cao.
In addition, the Welfare Rights Centre submitted to the SSAT on Ms Cao’s behalf that a number of deposits which had been treated as income were attributable to Ms Cao re-financing her mortgage. It was submitted that this applied to deposits of $31,198.00 on 13 October 2003, $65,964.00 on 13 September 2004, $38,106.00 on 19 September 2006 and $60,837.00 on 18 May 2007. Having regard to the size of these amounts, Ms Cao’s evidence and some corroborative material in the T Documents,[38] I accept that these lump sums did represent the proceeds of Ms Cao re-financing her mortgage and that those amounts therefore should not be treated as income in calculating Ms Cao’s debts. I did not understand the respondent to contend that these lump sums were not attributable to re-financing.
[38] T27/886-887, T29/903.
As to the balance of the deposits outlined above, when she was asked about these Ms Cao said in her evidence that friends and family lent her money. She said that she had repaid all of the money she had been lent apart from approximately $10,000.00, and produced some hand written records indicating the amounts she still owed to various people. She also said that her sister and brother-in-law, Mr Tran, had been especially generous and had regularly paid significant amounts into her bank account. She said she regarded those amounts as loans but did not know if or when she would be able to pay them back.
Ms Cao’s brother-in-law, Mr Tran, confirmed in his evidence that he and his wife had been helping Ms Cao financially because of her very difficult situation. He said that up until about two years ago he had been putting approximately $1,500.00 or $1,600.00 into her account each month to help her pay for her house. He said he had done this during 2005, 2006, 2007 and 2008. He said that he trusted that Ms Cao would pay this money back when she could, when she sold her house, although he did not necessarily expect to receive the money back. He said that he estimated that he had given or lent Ms Cao approximately $15,000.00 to $16,000.00 in total.
I accept Ms Cao and Mr Tran’s evidence that some of these deposits represented money paid into her account by her sister and Mr Tran. However in light of both her evidence and that of Mr Tran, I consider these monies to have been more in the nature of a gift than a loan. This has the consequence that they are properly regarded as income to be taken into account in calculating Ms Cao’s debt.
In relation to the other monies which Ms Cao has claimed were loans, other than the hand written document referred to above, Ms Cao has provided no evidence to substantiate her claim that the relevant deposits were loans rather than gifts or other income. In these circumstances, and having regard to my conclusions as to Ms Cao’s reliability as a witness, I do not accept that any of these deposits represented loans which Ms Cao was obliged to pay back. I consider it more likely that they represented gifts or other income, including income from employment, and I therefore consider they have been properly taken into account in calculating the amount of Ms Cao’s debts.
In light of all of this evidence, it follows in my view that during the relevant period Ms Cao did receive income which she failed to declare to Centrelink. In calculating her debts, Centrelink have taken into account each of the deposits detailed above. However I have concluded that some of the deposits which have been treated as income were not in fact income received by Ms Cao and those amounts should not be taken into account in calculating her debt.
It therefore follows that, although I consider Ms Cao did have significant income during the relevant period which she did not declare to Centrelink, the precise amount of her overpayment and debts will need to be re-calculated so as to exclude the amounts referred to above.
WAS MS CAO OVERPAID PARENTING PAYMENT?
It follows from the above that Ms Cao was paid PPS in excess of her entitlement, both because she was a member of a couple during the relevant period and because of her undeclared income.
The ARO determined that Ms Cao had been paid parenting payment of $104,544.38 in the period 23 October 2002 to 20 July 2010, whereas she was only entitled to receive $8,450.48.[39] However, as I have indicated above, I have concluded that the amount of Ms Cao’s overpayment will need to be re-calculated so as to exclude the deposits referred to above, and I propose to remit the matter to the respondent for that purpose.
[39] T3/99 Cao.
WAS MS CAO OVERPAID FAMILY TAX BENEFIT?
It is apparent on the material before me that the FTB debts which were initially raised against Ms Cao were raised primarily because she and Mr Nguyen did not lodge tax returns for the relevant financial years. However Ms Cao and Mr Nguyen have subsequently lodged tax returns or shown that they were exempted from so lodging returns with the result that the debt amounts assessed by the respondent have changed. As I understand the material before me, the total amount of the FTB debt is currently approximately $8,000.00.[40] However as there is limited material before me relating to this debt, I propose to also remit that debt to the respondent, to be recalculated having regard to all of the information currently available, and consistently with these Reasons. In light of the very limited information before me as to the amount of that debt, and the basis upon which it has been calculated, I have also decided to remit the question of any waiver or write off of that debt to the respondent.
[40] Exhibit 14.
WHAT ARE THE AMOUNTS OF ANY DEBTS OWED BY MS CAO TO THE COMMONWEALTH?
As I have indicated above, I have concluded that both the PPS and the FTB debts will need to be recalculated consistently with my findings and conclusions.
SHOULD THE PPS DEBT OWED BY MS CAO BE WAIVED OR WRITTEN OFF, IN WHOLE OR IN PART?
The provisions which are relevant in this context are the same as those I have referred to on the context of Mr Nguyen’s debt, i.e. ss 1236 and 1237AAD, relating to lack of capacity to pay and special circumstances respectively.
Lack of capacity to pay
In relation to capacity to pay, I note Ms Cao’s evidence that she is currently working in the Croydon Park bakery and that she is paid for that work. She also owns her own home, albeit that this is subject to a significant mortgage, and she receives rent from Mr Nguyen. On my findings as to the nature of the relationship and arrangements between them, I also consider it likely that she receives other financial assistance from Mr Nguyen. In light of these circumstances, I am not satisfied that Ms Cao lacks capacity to pay her debt, such as to invoke the provisions of s 1236 of the Act.
Waiver for special circumstances
It is apparent on the evidence before me that Ms Cao has had some very significant mental health difficulties during the relevant period. I accept that she has been hospitalised on occasion for mental health issues and that she also spent some time in a women’s refuge at various times in the period 2005 to 2008. However, as Ms Cao herself acknowledged, her mental health has improved recently and she is currently employed at the Croydon Park bakery.
I accept that her financial situation is not easy and that she has required support, in particular from her brother-in-law and sister, over the years, in order to meet her financial commitments. Having regard to documentation tendered at the hearing by Ms Cao, I also accept that she has recently been given notice of intention to commence legal proceedings by the National Australia Bank in respect of an outstanding debt of $8,510.46. However, as I have noted above she does own her own home, albeit with a significant mortgage, and to that extent is in a better situation than many welfare recipients. As I have also indicated above, I consider it likely that she and Mr Nguyen have pooled and continue to pool their financial resources to a greater extent than they have admitted to in their evidence.
Therefore, assuming that Ms Cao’s debt did not arise as a result of her “knowingly” making a false statement or failing or omitting to comply with a provision of a relevant Act, I am not satisfied that the evidence before me discloses “special circumstances” within the meaning of s1237AAD which would justify waiver of Ms Cao’s PPS debt, in whole or in part.
CONCLUSION
I have concluded that Mr Nguyen and Ms Cao were not living “separately and apart” on a “permanent or indefinite basis” in the period 20 September 2004 to 20 July 2010 and were therefore members of a couple within the meaning of the Act in that period.
In relation to Mr Nguyen, I have also concluded that the amounts which have been treated as his income in calculating his debts have been correctly treated as income, and that there are no grounds upon which the debts should be waived or written off. However I have also concluded that the amount of his debt should be recalculated to take account of my findings in relation to Ms Cao’s income.
In relation to Ms Cao, I have concluded that most of the deposits into her bank account which have been treated as income have been correctly treated as income, however there were a number of large deposits which were not income and which need to be excluded in calculating her debt. In relation to the FTB debt, in light of the fact that since the matter was decided by the SSAT, tax returns have been lodged by Ms Cao and Mr Nguyen and the FTB debt amount has changed, I have concluded that I should also remit that debt to the respondent for reconsideration in light of the tax return information which is now available, and consistently with these Reasons. The scope of that remittal therefore includes calculation of the debt, and also the question of write off or waiver.
DECISION
In application 2011/1251:
(a) The decision of the Authorised Review Officer (ARO), (as affirmed by the SSAT), that Ms Cao has been a member of a couple with Mr Nguyen from 20 September 2004, is affirmed;
(b) The decision of the SSAT in relation to Ms Cao's Parenting Payment Single (PPS) debt is varied so as to provide that:
(i) The ARO’s decision to affirm Ms Cao’s PPS is set aside;
(ii) The debt owed by Ms Cao in respect of overpayment of PPS is to be recalculated on the following bases:
- She has been a member of a couple with Mr Nguyen from 20 September 2004 to date, and his income is to be taken into account after that date;
- The following deposits recorded in Ms Cao’s bank account do not represent income and are to be excluded in calculating her overpayment and debt:
$31,198.00 on 13 October 2003;
$65,964.00 on 13 September 2004;
$38,106.00 on 19 September 2006;
$60,837.00 on 18 May 2007; and
$52,000.00 on 8 October 2007.
(iii) There are no grounds upon which Ms Cao's PPS debts should be waived or written off; and
(c) The decision of the ARO to affirm Ms Cao's Family Tax Benefit debts (as affirmed by the SSAT) is set aside and in substitution for that decision it is decided that:
(i) the issue of the Family Tax Benefit debts owed by Ms Cao, and whether any part of those debts should be waived or written off, is remitted to the respondent for reconsideration in light of the tax returns lodged by Ms Cao and Mr Nguyen, and consistently with these Reasons
In application 2011/1327:
(a) the decision of the ARO (as affirmed by the SSAT) that Mr Nguyen has been a member of a couple with Ms Cao since 20 September 2004 is affirmed;
(b) the decision of the ARO (as affirmed by the SSAT) to affirm Mr Nguyen’s DSP debt of $1,690.22 for the period 22 November 2003 to 26 March 2004, is affirmed;
(c) the decision of the ARO (as affirmed by the SSAT) to affirm Mr Nguyen’s DSP debt of $76,772.18 in respect of the period 27 March 2004 to 14 May 2010, is set aside and in substitution for that decision it is decided that:
(i) the debt is to be recalculated having regard to this Tribunal’s findings relating to Ms Cao’s income for the period after 20 September 2004 and so as to exclude those deposits into Ms Cao’s bank account which this Tribunal has concluded were not income; and
(ii) there are no grounds on which the debt should be waived or written off.
I certify that the preceding 127 (one hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean.
.....................[Sgd]...................................................
Administrative Assistant
Dated 8 May 2012
Date(s) of hearing 7, 8 & 9 February 2012 Applicants In person Advocate for the Respondent Mr Christian Visser Solicitors for the Respondent Program Litigation and Review
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security - Disability Support Pension
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Social Security - Family Tax Benefit
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Social Security - Parenting Payment
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Undeclared Income
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Living Separately and Apart
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Surveillance Material
0
0
0