Toma and Secretary, Department of Family and Community Services

[2005] AATA 558

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 558

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V2004/1274

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMIL TOMA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date10 June 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

SOCIAL SECURITY – cancellation of newstart allowance and raising a debt – allegation that applicant had been employed and working – Centrelink engaged an enquiry agent who conducted surveillance – surveillance film purporting to depict applicant – finding that applicant not depicted – finding that applicant employed and had been working – decision affirmed

Social Security Act 1991 (Cth) s 593 and s 601

Director- General of Social Services v Thomson 38 ALR 624
Re McKenna and Director-General of Social Services (1981) 3 ALD 219
McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462
Re Davis and Secretary, Department of Social Security (1992) 15 AAR 328

REASONS FOR DECISION

10 June 2005 Mr John Handley, Senior Member            

1.       The applicant applies to review a decision of the Social Security Appeals Tribunal (“SSAT”) which decided on 20 October 2004 to affirm a decision made by an Authorised Review Officer (“ARO”) of Centrelink on 12 August 2004.  The decision then under review was to cancel the applicant’s new start allowance and to raise and recover a debt of $984.15 with respect to new start allowance paid in the period 24 May 2004 to 25 June 2004.

2.       Although details from the documents lodged by the respondent are scant, it would appear that the applicant was exempt from satisfying the qualifying criteria for new start allowance of “actively seeking work” (refer s 593 and s 601 of the Social Security Act 1991) because of temporary medical conditions affecting his neck, shoulder and upper arm (refer SSAT Reasons at paragraph 16 and T23 (pages 72 and 73)).

3.       The ARO decided that within the period 24 May 2004 to 25 June 2004, the applicant had been working and therefore had no entitlement to newstart allowance.  The SSAT agreed with that decision.

4.       The hearing commenced on 31 March 2005 but upon reviewing evidence then heard and after viewing a surveillance film, I decided to resume the hearing on 6 June 2005.  On that day the alleged employer, Mr Ishe Daniel and his son Robert attended the hearing and gave evidence.  Mr Perdon on behalf of the respondent called Mr Kevin Klunder, an officer of Centrelink and Mr Showler, a surveillance agent, to give evidence.  On both days the applicant appeared without representation.

jamil toma

5.       At the commencement of the hearing, despite having previously been invited to do so, the applicant had not inspected the surveillance film which was obtained by Centrelink and which had formed (in part) the basis for the decision under review in these proceedings.  I decided to suspend the hearing at the outset and have the applicant view the surveillance film.

6.       When the hearing resumed, the applicant said that the person depicted by the film was not him.  He was very angry with the manner in which Centrelink had treated him and remained adamant throughout the giving of his evidence and his cross-examination that he had not worked during the relevant period and was not the man depicted in the surveillance film.  He also relied on a letter from Mr Daniel (Exhibit A) dated 5 March 2005 which is reproduced as follows:

I have known Jamil Toma for over twenty years.  He has suffered injury/sickness which has meant he is unable to work.

Recently, Jamil visited my home while I was doing renovations.  Not wanting to just stand around while I worked, he decided to help with a few small tasks.  He did not do any heavy labour at all – and was in pain for the short amount of time he assisted me.

I have never paid Jamil Toma any wages.  I have only repaid him for his assistance by buying him items such as cigarettes or food.

This letter should put to rest any concerns you may have had that Jamil Toma was working for me as an employee, and receiving wages.  He is not an employee of Dan Constructions, and has never received wages from Dan Constructions.

7.       In cross-examination the applicant said that he had known Mr Daniel for approximately 25 years.  He said they were both members of the Assyrian Community in Melbourne and they frequently have contact with each other through community groups, at church or in coffee shops.  He also said that he visits Mr Daniel on a frequent basis at his home in Fairbairn Road, West Sunshine.

8.       The applicant was asked to comment upon the surveillance film which depicted a person alight from a white Toyota Hi Ace vehicle after parking it near premises where heavy labouring type activity was undertaken.  The activity comprised shovelling, pushing a wheelbarrow and emptying it into a rubbish skip.  The applicant said that the person depicted was not him and he had never undertaken work of that type.  He agreed that from time to time Mr Daniel had given him money for petrol or cigarettes as a loan or because he was a friend, but not by way of payment in cash as wages for work undertaken.  The applicant remained adamant that he had not ever worked for Mr Daniel.

9.       The applicant agreed that he would visit Mr Daniel from time to time and had visited his house when it was being renovated.  He said he visited Mr Daniel when he was bored.  They would also meet at a coffee shop in Brunswick.

10.     The applicant was then referred to a memorandum prepared by an officer of Centrelink at the Footscray office on 21 July 2004 which is recorded as follows (T33, page 93) –

. . . doing two hours training per day with dan constructions and that company was paying petrol. then stated that was working to get him fit again. cus [customer] advised that is not working and has no money. also stated that company gave him money for food because he was short and that he paid this money back to the company.

11.     The applicant reaffirmed his earlier evidence that he has not worked, and did not work, for Dan Constructions.  He said that he has never undertaken “training” with Dan Constructions nor anyone else and said that the entries in the memorandum were not true (refer transcript, page 14).

12.     Although the applicant agreed that he signed a statement completed by the ARO (Mr Giles) on 9 August 2004, he said that an entry within his statement that he had worked for Dan Constructions for “one day and one hour per week” was not true.  He said that he does visit Mr Daniel and “I help him some time when he . . . and all of the story coming from that”.

13.     The applicant said that Mr Daniel left his white Toyota Hi Ace vehicle (registration DVZ 896) at his house at night because there was no space available at his own premises in Fairbairn Road, West Sunshine.  He said the vehicle is not taken every day for work purposes but when it is, it is usually collected by Mr Daniel’s son, Robert.  He also said that Mr Daniel stores wood in the garage of his home but he does not keep machinery for him.

14.     The applicant was then asked to comment on the evidence recorded by the SSAT and the Reasons for Decision.  He denied having said to the SSAT that he had used a shovel or a wheelbarrow or had collected stone and bricks.  He agreed that he had “helped” Mr Daniel for “between 10 minute, or 15 minute” and on another occasion “I collect the dirt and I sweep and I do all that sort of stuff” but remained adamant that he did not perform any other work for Mr Daniel (transcript, pages 24 and 25).  The applicant said that Mr Daniel employs between four or five people, that he has met those persons but he did not know their names.  He said he did not know whether Mr Daniel paid those persons in cash and he again denied that he had ever been paid cash as wages by reason of working for Mr Daniel.

15.     In 2004 the applicant said that his neck and shoulder injuries would have prevented him from being able to use a shovel or manoeuvre a wheelbarrow or tip it into a skip.  He said he was then “sick”.

16.     The surveillance film also depicted a person at an address in Kathleen Court in Sunshine.  The report of the surveillance operator records that the white van was followed from the applicant’s address in Maribyrnong to Kathleen Court.  The applicant said that he had not ever been to Kathleen Court and the only job that he had attended with Mr Daniel was at his own house in Fairbairn Road.

17.     The applicant said that the person depicted in the video was a person who collected the van from time to time who lived in Glenroy.  He said that person drove to his house in Maribyrnong, left his car at the house and took the van away on work days.  He said the van would be returned at night and that person would leave driving his own car.  The applicant said he did not know that person’s name.  He said that he was one of the contractors who worked for Dan Constructions.

18.     When the surveillance film was played during the hearing on the first day, Mr Toma said that the white van depicted was the van owned by Dan Constructions.  He said the person depicted in the film was not him and he could not identify the two premises in the film taken on 3 June and 10 June 2004.

ishe daniel

19.     Mr Daniel is the proprietor of the business named Dan Constructions.  He said that Dan Constructions is not an incorporated company.  He said that he could not explain why “Dan Constructions” is not recorded in the Melbourne white pages telephone book nor could he explain why he is recorded in the telephone book under the surname of “Ishe”.

20.     Mr Daniel said that Dan Constructions is the registered owner of a white Hi Ace motor vehicle DVZ 896.  He said the vehicle is frequently parked overnight at the home of the applicant.  He said that he has four cars parked at his home and last year he had five cars parked there when his daughter and her husband lived at Fairbairn Road.  He said there was no room for the van and the applicant agreed to allow it to be parked at his premises.

21.     Mr Daniel was then shown the surveillance film and said that the person depicted on 3 June 2004 is a person he identified as Koshea.  He said he did not know his surname but said he was a sub-contractor.  He said that person was performing work at his home at Fairbairn Road. 

22.     Mr Daniel said that he could not identify the person depicted on 10 June 2004 in the video.  He said the van appeared to be his although it did not appear to have a roof rack, whereas his van did.  Additionally he said that he could not identify the premises depicted in the video of 10 June 2004.

23.     Mr Daniel said that he had known the applicant for approximately 25 years and had first met him when he came to Australia from Assyria.  He said that he socialises with him on a frequent basis either at coffee shops or at his home.  He also said that he gives the applicant money from time to time to help him meet his expenses.

24.     Mr Daniel said that he knew the applicant was “sick” but he did not know the nature of the illness.  He said that “when he bends he feels injury”.  He said he did not know how long the applicant had suffered from his injuries, he did not know when the applicant last worked and he did not know if he was able to use a shovel or push a wheelbarrow.  He said that he had not ever seen the applicant perform work of that type.

25.     When he was taken to the Reasons for Decision of the SSAT, Mr Daniel denied that he had ever asked the applicant to load or unload wood.  When he was apprised of the evidence on the first day of hearing that “wood” was stored at the applicant’s garage, Mr Daniel said that he had dropped off stumps from a building site which were intended to be used as firewood.

26.     Mr Daniel said that he engages a number of sub-contractors being plumbers or electricians or plasterers.  He said that he has employed persons who worked part time at four hours per day together with his son who is his apprentice.  These persons, who he agreed were employees, were paid by cash.  He said all other persons are engaged on a sub-contract basis and are paid by cheque.  He said the person Koshea did work for “a couple of days” for him last year and although he was previously described as a sub-contractor, he was paid cash of between $40 and $60.  He said he could not remember specifically when this person worked.

27.     Mr Daniel became very agitated during the hearing and at one stage refused to answer any further questions.  He said that his business affairs were under scrutiny by Centrelink, despite his belief that he had agreed to attend the Tribunal to assist the applicant and to verify that he had not ever employed him.  He said “we don’t need a solicitor because there is no proof he worked”.  He also alleged that Centrelink had been selective in the surveillance of the applicant.  He referred to his telephone discussions with Mr Klunder (who he said was rude) and said that he had also notified Centrelink that the applicant could not have driven the white Hi Ace vehicle because he only drives automatic vehicles whereas the Hi Ace is a manual vehicle.

28.     Mr Daniel was then asked to explain his letter of 5 March 2005 where he recorded in part “Not wanting to just stand around while I worked, he decided to help with a few small tasks.  He did not do any heavy labour at all – and was in pain for the short amount of time he assisted me”.  Mr Daniel said that reference in his letter was to occasions when the applicant had attended his home and had either made tea or had prepared his lunch.  He said the applicant was not a tradesman, that he did not perform heavy work and he was not an employee.  He agreed that he has “helped” the applicant by giving him money for cigarettes and food and on some occasions gave him money for petrol.  He said that he has not assisted the applicant in the payment of telephone, gas or electricity bills, but said that when he gave the applicant money he did not know how it was spent.

29.     Mr Daniel said that the applicant had not been to building sites with him but he has shown the applicant two houses that he is building at Cairn Lea, being a new housing sub-division in Deer Park.

30.     Mr Daniel said that a job at Kathleen Court, Sunshine involved two or three days of restumping.  He said that the applicant did not attend those premises nor did he work on that job.

robert daniel

31.     Robert Daniel is the son of Ishe Daniel.  He is presently 21 years of age and is an apprentice carpenter employed by his father.  He said a white Hi Ace Toyota vehicle is used by Dan Constructions but he did not know the registration number.  He said the vehicle is parked nightly at the applicant’s house because there is no room to park it at the family home at Fairbairn Road.  He said the vehicle is collected in the mornings either by himself or by his father and is returned daily.  Robert said that he could not remember any other person driving the vehicle.

32.     Robert was shown the surveillance film and said that the vehicle depicted on 3 June 2004 appears to be the Hi Ace vehicle owned by Dan Constructions.  Robert was unable to identify the person depicted in the surveillance film but said that it was not the applicant.  He said the person appeared to be working at the Daniel home in Fairbairn Road.  He said the person depicted by the surveillance film was not the applicant because he had “a different skin colour” and because he was “balder”.

33.     When he observed the person depicted in the surveillance film of 10 June 2004, Robert said that the vehicle did appear to be the Toyota vehicle owned by Dan Constructions.  He said he did not know who the person was depicted in the surveillance film but said that the person appeared to have “curly hair”.

34.     In cross-examination Robert said that he had known Mr Toma for all of his life.  He said that he sometimes visits his father at Fairbairn Road but could not estimate the frequency because he was “hardly ever home”.

35.     Robert said that his father engaged a number of sub-contractors for jobs but said that he did know whether any persons other than himself are employed as wage earners nor did he know whether persons other than himself were paid cash.  He said that he did not know anything about materials or machinery being stored at the applicant’s house, that he had not ever seen the applicant “help out” on renovations at Fairbairn Road and he had not ever paid the applicant any money.

36.     Robert said that the applicant and his father were friends but he did not know whether they saw each other during a work day.  Additionally he said that he had not ever seen the applicant at the work site of the homes being constructed at Cairn Lea.

37.     Robert denied that he had ever been told by his father what his evidence should be during these proceedings, nor had he ever discussed these proceedings with his father or the applicant.  He said he understood that this case was about “tax or something”.

kevin klunder

38.     Mr Perdon called Mr Klunder, an officer of Centrelink, to give evidence in these proceedings.  He had previously provided a witness statement before the first day of the hearing but was not then called.  He was called on the second day of the hearing.  His witness statement was received as Exhibit 2 and is reproduced as follows:

WITNESS STATEMENT OF KEVIN KLUNDER

My name is Kevin Klunder. I am employed by Centrelink as a Project Officer with the Optical Surveillance Initiative within the Fraud Investigation Team. The address of my employment is P0 Box 13260 Law Courts Post Office Melbourne 8010.

I have been employed by Centrelink, formerly known as the Department of Social Security, since 1989. I have worked in the current configuration of the Fraud Investigation Team for 2 years, and have worked in compliance areas for the last 10 years.

I have been provided with a copy of the Tribunal Documents in the Administrative Appeals Tribunal application of Mr Jamil Toma.

I was the investigating officer in respect of a public information received by Centrelink in respect of Mr Toma and caused several further inquiries to be made in my investigation eg Documents T7 to T9. The investigation also included a referral to a contracted surveillance provider, Document T11, with photo identification of Mr Toma attached to that referral, Document T12 page 37.

The surveillance referral resulted in a written report dated 16/6/04 concerning the full period of observation, Document T19, and a video tape recording of approximately 42 minutes duration of observations of Mr Toma over 2 different days. 

I reviewed the paper and computer files of Mr Toma, the results of other enquiries, the surveillance report and the surveillance video tape before arranging an interview with Mr Toma on 8/7/04.

The handwritten notes which appear at Document T25 page 82 are my own notes made by myself during the course of our interview on 8/7/04. The computer record notes that appear at Document T25 page 83 are an online document which I completed on 8/7/04, as well as additional annotations to that online document made by myself on 9/7/04 and 16/7/04.  My notes and the online record are a true and correct account of my recollection of my interview with Mr Toma on 8/7/04, and were made by me on that day.

On 8/7/04 I decided that Mr Toma was not qualified for newstart allowance on the bases that I was not satisfied that he was unemployed, given the objective evidence and the results of our interview, Document T25, nor was I satisfied that the medical certificates that he had previously provided reflected his actual capacity for employment, Document T3 7 page 103. I stopped Mr Toma’s payments on 8/7/04 and advised him that I was doing so.

On 8/7/04 I also decided that Mr Toma had not been qualified for newstart allowance since the first date of surveillance, being 24/5/04. I advised Mr Toma on 8/7/04 that I would be raising a recoverable debt on that basis.

Mr Toma requested review of my decisions and I referred his request to an authorised review officer on 2/8/04, Document T37 pages 102-103.

39.     The file of the applicant was referred to him following a “public denunciation” received by Centrelink in 2004.  He said it was the practice of Centrelink in those circumstances to make enquiries as to whether there is “collusion” and if that opinion is formed, a surveillance provider is engaged by Centrelink.  In the present case the firm of Morris Kerrigan and Associates was engaged.  Mr Klunder said that the surveillance agency was provided with some details of the applicant’s background, the alleged hours of his work, a photograph obtained from his motor car licence and any other materials relevant to the potential enquiry.  (The T‑documents at pages 34 to 37 inclusive are a copy of the documented information made available to Morris Kerrigan and Associates).

40.     Mr Klunder said that upon receipt of the report from the agency – and having received additional documentation from the Victorian Motor Registration Branch – arrangements were made to interview the applicant at the Footscray office of Centrelink.  The interview was conducted on 8 July 2004.  Mr Klunder then made handwritten notes which appear at T25, page 82.  He said he returned to his office in Melbourne and typed a report which is found at T25, page 81.  The typed report is reproduced as follows:

Kevin 99634448.allegation rec’d a/n working f/t with Dan Constructions doing house restumping.  a/n is on NSA med cert with a bad shoulder and arm.  Surv conducted between 24.5.04 & 10.06.04 shows a/n driving a van reg DVZ 896 owned by Dan Constructions to various sites where he was filmed and noted working physically with a shovel and wheelbarrow.  At no stage has eans been recorded from Dan Const.  He produced a vic dl 084637235 as id.  This dl & photo matched that used by operatives to identify a/n during surveillance.  I gave him a legal caution and comm. My questions.  He stated he had not worked for 18 mths or more.  Asked him if he knew of a company called Dan Constructions.  He said he knew this co as it was run by a friend of 20 years, dan Ishe.  Asked if he ever goes to building or renovation sites?  He said he did not.  I asked if he ever drove Dan Ishe’s or Dan const vehicles?  He replied no.  I asked if he ever worked at Everlast Laminating, as indicated on a Baycorp check?  He said he did not know them.  I asked if he ever drove vehicle DVZ 896 owned by Dan const?  He said he never drives that car and that he doesn’t drive at all.  I read to him excerpts of the surv rep.  that state that he drove that car from his residence on mornings and proceeded to building/renovation sites.  He said it wasn’t him.  I asked if he had done any shoveling work this year?  He said he hadn’t as his back arm and shoulder were too sore.  I showed him still shots from surveillance tape which showed him shoveling and asked him what could he say about them?  He shrugged and said “I don’t know” . . . I then told him that on the basis of the evidence we had gathered and his unsatisfactory answers in view of this evidence his pmts could not continue and that an o/p will be calc from the first day of surv.  I said it was my view that this emp probably existed from long before the surv date but the lack of evidence meant I could not raise this o/p.  I reminded him that he had my phone no and that he could ring me if he wanted to provide any further inf.

ANNOTATE BY C8V ON 9 JUL 2004

Spoke to person stating they were Dan Ishe manager of Dan Constructions.  He stated he did not pay a/n and was only helping him out.  I expl I could not help him.  I suggested he mail his comments so that they can be attached to file and considered along with all other evidence.

ANNOTATE BY C8V ON 16 JUL 2004

Cust rang re can & o/p but his no’s not listed. He rang 9.55 and I again told him that I wasn’t changing decision but advised him that if he was still dissatisfied he was able to APL.

41.     Mr Klunder said that a written statement was not obtained from the applicant.  He said that in his experience, persons under investigation deny the allegations put to them and choose not to provide a statement.  Mr Klunder confirmed that the applicant did not at any stage make any admission that he had been working with or had been trained by Dan Constructions.  He said Mr Toma told him that his injuries had prevented him from working.  Mr Klunder also said that he recalled a subsequent telephone discussion with Mr Daniel who had told him that he had not employed the applicant.  Mr Klunder decided to suspend newstart allowance payments and caused an overpayment to be calculated.

42.     Mr Klunder said that he had seen the surveillance film before the interview with the applicant but he did not show him the film because the Footscray office did not have a video machine.  He confirmed that he showed him “stills” (extracted from the surveillance film) which are found at page 61 of the T‑documents.  Mr Klunder said that he again observed the surveillance film when he delivered it and his report to Mr Giles, the ARO.  Mr Klunder said that “in all likelihood” the applicant was depicted on the surveillance film.

43.     During the hearing the surveillance film was played and Mr Klunder was asked to observe it.  He said the person depicted on the film on 3 June 2004 was the applicant and was the same person that he interviewed at the Footscray office.  He said that the person seated at the Bar table during the hearing was the person that he interviewed at the Footscray office but it appeared to him that the applicant’s appearance at the hearing was different to the extent that his hair had been combed forward.

44.     Mr Klunder said that he could not be “100 per cent certain” that the person depicted on the surveillance film at 10 June 2004 was the applicant.

michael james showler

45.     Mr Showler is a surveillance agent employed by Morris Kerrigan and Associates.  Mr Showler conducted the surveillance of the applicant on four occasions being 24 May 2004 and on 3, 7 and 10 June 2004.  A report of his surveillance is found at T19 together with handwritten notes.  He also obtained an 8mm film and a surveillance film of his surveillance of the person he believed to be the applicant.  The surveillance film produced by him is the film which has been observed by all witnesses in these proceedings.

46.     Mr Showler confirmed that he had received instructions from Centrelink which contained information relevant to the applicant including a photograph of the applicant.  He observed the person that he believed to be the applicant leave premises at Lindenow Crescent in Maribyrnong on 24 May and on 7 June 2004 driving a white Toyota van but that vehicle was lost in traffic.  He said that he observed a person believed to have been the applicant, and obtained a surveillance film on 3 and 10 June 2004.  On 3 June he observed a person he believed to be the applicant, working at premises in Fairbairn Road, West Sunshine.  On 10 June 2004 he said that he observed this person drive the vehicle to an address in Kathleen Court in Sunshine.  He said that there were two other passengers in the vehicle but they are not depicted on the surveillance film for privacy reasons.  He said he ceased surveillance of the applicant, after the Hi Ace van was parked in the driveway of the premises at Kathleen Court, because it was no longer possible to obtain surveillance without being detected.

47.     Mr Showler said that he saw the surveillance film again in the week prior to the hearing and he was then satisfied that the person depicted in the film is “likely” to be the applicant, having regard to a similarity in complexion, eyebrows, hair, height, build and age.

48.     The surveillance film was shown to Mr Showler during the hearing.  I asked the applicant to stand in order to have Mr Showler estimate his height.  He said he estimated the applicant’s height to be 5’ 5” and acknowledged that his report refers to his surveillance of a person with an approximate height of 5’11”.  Mr Showler acknowledged that the person on the surveillance film appeared to have a similar build to the applicant but he acknowledged that the applicant “appears shorter today”.  He said as a point of reference during his surveillance he noted that the height of the person depicted was approximately the same height as the top of the door of the van when the person was standing at road level.

49.     With respect to the person depicted on 10 June 2004, Mr Showler said that the most prominent feature of the person was his hair, being “wavy”.  However he noted that the hair of the applicant during the hearing was “closer to his head”.

50.     Mr Showler reported that the person that he observed on 3 and 10 June 2004 had “medium length brown hair” whereas the applicant, during the hearing, had hair of a colour that he described as being black/brown.  He said colour was a matter of interpretation.

submissions

51.     Mr Perdon submitted that the present review related to concerns held by Centrelink “about the cash economy”.  He said Centrelink found it difficult to prove cash transactions between a worker and an employer (where the worker is a Centrelink beneficiary) because both persons have a “vested interest in concealing the transaction”.  Mr Perdon said that it was impossible to prove cash transactions by surveillance when agents are required to be discreet and operate without the knowledge of the person under investigation.

52.     Whilst acknowledging that surveillance was not an “exact science” Mr Perdon said that there should be a finding on the balance of probabilities that the applicant was the man depicted in the film and that he had been working and earning an income during a period of time that he had been in receipt of newstart allowance.

53.     Mr Perdon submitted that the person depicted on the surveillance film appears to have a degree of baldness greater than the applicant at present but it would appear that the applicant has, during the two days of hearing, combed his hair in a manner to conceal his baldness.  He also noted that one of the witnesses in these proceedings was of the view that the person depicted by the film appeared to be bald because hair had been pushed backwards after a cap had been removed.  To this extent Mr Perdon referred to page 120 of the T‑documents where Mr Giles, the ARO, referred to the applicant being a person who does wear “a cap”.  Mr Perdon also submitted that the surveillance film depicted a person who had eyebrows, build and age similar to that of the applicant.

54.     Mr Perdon submitted that the evidence of Mr Showler was sufficiently persuasive to the extent that his report confirms that the applicant was followed from his home residence in Maribyrnong on a number of occasions and was then driving a vehicle owned by Dan Constructions which had been parked in his driveway.

55.     Mr Perdon submitted that even in the absence of the surveillance film, a finding could be made on the balance of probabilities, that the applicant had, at the relevant times, been working.  By reference to the Centrelink officer notes at T33, the report of the ARO at T47, the findings of the SSAT at T2 and the transcript of the first day of the hearing, he submitted the Tribunal should find major inconsistencies in the applicant’s evidence, not just in relation to minor details.

56.     On balance therefore it was submitted that the applicant at relevant times was not looking for, nor was he available for work.  In those circumstances the qualifying criteria for newstart allowance had not been met.  It was submitted that the decisions under review should be affirmed.

conclusion and reasons for decision

57.     After the first day of hearing I was concerned that the person depicted in the surveillance film was not the applicant.  Considerable reliance was placed on the content of the film by Centrelink because it was suggested that the film not only depicted the applicant but also depicted him working at a period of time when he had declared to Centrelink that he was unable to work and had been exempted from the activity test by reason of illness.  It was also suggested that the applicant had been paid in cash and had not declared that income to Centrelink.  Because of my concerns I directed that the hearing resume and arrangements were made to have Ishe Daniel and Robert Daniel attend to give evidence on the resumed day.  Mr Perdon then arranged for Mr Klunder and Mr Showler also to give evidence.

58.     The surveillance film was again shown during the hearing to each of the four witnesses on the second day.

59.     Mr Daniel said that the person depicted on the film at 3 June 2004 was a person he said had the name of Koshea.  He did not know whether that was the person’s first name or surname.  He said Koshea was a person he had engaged, and had paid cash, for working “a couple of days”.  He could not identify the person depicted on 10 June 2004. 

60.     Robert Daniel said the person depicted on 3 June 2004 was not the applicant but he could not identify the person.  Additionally he was unable to identify the person depicted on 10 June 2004. 

61.     Mr Klunder said that when he saw the surveillance film last year that “in all likelihood” it was the applicant and at the hearing he said that the person appearing in the surveillance film on 3 June 2004 was the applicant.  He said that he could not be certain who the person was depicted at 10 June 2004.

62.     Mr Showler said he observed the surveillance film in the week prior to the hearing and said that the person depicted on 3 and 10 June 2004 was “likely” to be the applicant.  At the hearing – having observed the height of the applicant in the hearing room – Mr Showler acknowledged that the person depicted in the film was of a greater height and had been recorded as being of a greater height in his report.  Nonetheless he said that the person depicted in the surveillance film was of a similar build, complexion and had other characteristics similar to the applicant.  He agreed that the person depicted on the surveillance film at 10 June 2004 was not distinct and agreed also that the features of the person’s hair was different to the hair of the applicant at the hearing.

63.     Having observed the surveillance film on the first day of hearing, subsequently and on four occasions during the second day of hearing, I am not satisfied that the person depicted in the surveillance film is the applicant.  I make that finding on the balance of probabilities.  The person depicted in the surveillance film is, in my view, of a greater height and bigger build than the applicant.  The person depicted is balding whereas the applicant has hair which has thinned but he could not be described as bald.  At the hearing his hair was combed across his scalp and it was submitted that would conceal baldness.  It was also suggested that the person depicted in the surveillance film appeared to be bald because his hair had been misplaced after having worn a cap.  It was also suggested that the applicant was a person who wore a cap by reference to comments made in the report of Mr Giles found at page 120 of the T‑documents.  It is interesting to note that the applicant has been described as a person who “always” (refer page 120) wears a cap whilst the person depicted in the surveillance film was not wearing a cap at the time the film was taken.  The film was approximately 41 minutes in duration.  Save for the last minute of the film, being taken on 10 June, the remainder of the film was taken on 3 June.  The person then depicted in the film taken on 10 June had the back of his head and the side of his face only shown.  It was impossible to identify that person.

64.     The surveillance film was relied upon by the respondent as evidence of the applicant working during a period of time when newstart allowance was being paid.  I agree with Mr Perdon’s submission that even if it were found that the applicant was not the person depicted in the video there is other material which points to him not being unemployed.

65.     As I reflect on the evidence heard in these proceedings and having read the documents variously lodged, there appears to have been a focus upon whether Mr Toma was working for Dan Constructions.  The correct focus should be whether he was at relevant times “unemployed”.

66.     This appeal concerns entitlement to newstart allowance.  Perhaps more precisely the review concerns whether the decision to cancel newstart allowance for the period 24 May 2004 to 25 June 2004 was the correct and preferable decision.  Newstart allowance is payable to a person if that person is both unemployed and is a person who either satisfies the activity test or is not required to satisfy the activity test (refer s 593 and s 601 of the Social Security Act 1991).  In the present case, Mr Toma was not required to satisfy the activity test having previously satisfied Centrelink by medical certificates lodged that his neck, shoulder and upper arm injuries exempted him from having to satisfy the activity test under s 601 of the Act.  The activity test is satisfied if a person is “actively seeking” and “willing to undertake” paid work that is not unsuitable.  It therefore follows that a person is unemployed either if the activity test is satisfied or if the person is not required to satisfy the activity test.  If a person is engaged in activities which would suggest that they are not actively seeking paid work, or if they are not willing to undertake paid work, the person will not have satisfied the activity test and that person will not be deemed as being unemployed.

67.     In the present case the respondent submitted that even in the absence of the surveillance film, the applicant had been working for Dan Constructions and in those circumstances the activity test was not satisfied.  In the alternative the applicant could not be found to be unemployed when, as a fact, it should be found that he was working for Dan Constructions.

68.     The applicant denied all suggestions put to him that a number of references in the documents pointed to him having worked for Dan Constructions.  That is despite the documents, at least at face value, suggesting that he had made a number of admissions of work and other activities that he had undertaken for Dan Constructions.  On balance I am satisfied for reasons which follow, that within the period under review in these proceedings, the applicant was working for Dan Constructions or Mr Daniel and was not, in those circumstances, unemployed.

69.     Probably the most compelling evidence is the Reasons for Decision of the SSAT.  Whilst a transcript of those proceedings is not available and whilst it is apparent that the Tribunal did not observe the surveillance film (although it did find that the photographic stills did not depict the applicant), the thorough questioning of the applicant elicited evidence from him of activity which clearly in my view points to him having worked for Dan Constructions.

70.     The Members of the SSAT recorded that the applicant had told them (page 7) that he had carried out the tasks of shoveling of dirt, piling it into a wheelbarrow and tipping the wheelbarrow into a bin.  He also told the Members that he picked up stones and bricks and placed them in a bin and cleared a site ready for concrete to be laid.  He said that that activity was undertaken at Mr Daniel’s house in Sunshine.  He denied performing concreting work but said that he had undertaken the shoveling and wheelbarrow work and collection of stones and bricks for “two to three times every week.  Sometimes he did it four times a week”.  At page 8 of the T‑documents the applicant told the SSAT Members that the work that he was doing for Mr Daniel was not his “occupation” because he “just goes there as a friend.  During the three months that he was helping to build his friend’s house he did not look for work”.

71.     The SSAT Members referred the applicant to the notes of Mr Klunder of 8 July  (page 81 – 82) which record the applicant as denying working for Mr Daniel and also denying attending any building or renovation sites.  He specifically denied undertaking any “shoveling work”.  The applicant told the SSAT Members (page 8) that he

did advise the Centrelink officer that he did do the work.  He told the Centrelink officer exactly what he told the Tribunal.  He told the Centrelink officer that he worked as a friend and spent time with Mr Daniel’s family who were at Mr Daniel’s home when the extension was being built.  He told the Centrelink officer that he does do shoveling and wheelbarrowing.

72.     Apparently in order to explain how the applicant was able to perform manual work when medical certification exempted him from the activity test, Mr Toma told the Members of the SSAT that “he did the work for exercise.  He did the work for one to two hours and then he stopped and he did other things and then he later did the manual work”.  That explanation is reasonably consistent with the memorandum found at T33 (page 93) where an officer of Centrelink at Footscray recorded on 21 July 2004 that the applicant was doing “two hours training per day with dan constructions and that company was paying petrol. then stated that was working to get him fit again”.  The memorandum continues that the applicant then advised that he was “not working” but that would appear to be a reference to the applicant “not working” at the date of the attendance at Footscray being 21 July 2004 which was in the month following the cessation of the period in issue by these proceedings.

73.     There was a further reference in the Reasons for Decision of the SSAT to the applicant having told the Members of that Tribunal (page 8) that the contents of the memorandum of 21 July 2004 were accurate to the extent that he had undertaken two hours of “training” per day with Dan Constructions, that he had spent time with Dan Constructions “to get experience from the builders and that he was spending two to three hours per day doing some work”.

74.     The decision of the SSAT was put to the applicant on the first day of the hearing.  He made what might appear to be some admissions of working but generally denied his evidence to the SSAT as was recorded in the Reasons for Decision.  Relevantly the transcript with respect to this part of the proceeding is reproduced as under (page 25):

So when you told the Tribunal you were doing shovelling that was correct, was it? --- Nothing.  I never told the Tribunal nothing, I never - I told them he's got to run his place and I go there for between 5 or 10 minute, I help him there.  And only for short times, maybe for two, three weeks he finish his extension, his builders come and finish it.  I got the foreman to help me.

Did you tell the Tribunal that you shovelled dirt into a wheelbarrow? --- No.

Did you tell the Tribunal that you took the dirt from the wheelbarrows and upended it in the bin? --- No, I collect the dirt and I sweep and I do all that sort of stuff, I am not going to take wheelbarrow, it is not my job.  There is builders - there is people working there.

So you did not tell the Tribunal that you picked up the stones and bricks and everything and put them in the bin? --- No.  That is not true.

You sometimes did that up to four times a week it says here? --- Never.  That is wrong.

So the Tribunal got all that bit wrong? --- I don't care who - this is not all coming from - this and the ..... from Tribunal - from Centrelink is make up all this page on all this story.  And this story nothing to do with me.  I told you.

75.     The applicant does have an imprecise command of English and he is, on occasions, difficult to understand, however I am satisfied that the Members of the SSAT (as may be gleaned from their Reasons) responsibly, patiently and carefully questioned the applicant and equally they were responsible and careful in the recording of his answers.  As a fact I am satisfied that the applicant did give evidence to that Tribunal consistent with it having been recorded in the Reasons for Decision.  It is clear from the Reasons for Decision of that Tribunal that the applicant had been working.  His evidence to that Tribunal is also consistent with the memorandum of the officer of the Centrelink branch at Footscray (T33).  Indeed the applicant admitted to the Members of the SSAT that the notes of Mr Klunder recording the applicant as having denied working and denied having used a shovel was incorrect.  He admitted to the SSAT that he had performed work which did involve the use of a shovel and having undertaken work at the home of Mr Daniel.

76.     I think it quite likely that the applicant focused his attention throughout the hearing, entirely on the surveillance film rather than the references to him performing activity in a number of other documents.  It appears that it was his belief that because the respondent was unable to demonstrate by the surveillance film that he had been working, in those circumstances it was his belief that he was entitled to newstart allowance.

77.     I also consider it quite likely that he did not interpret the activity that he had been undertaking at Mr Daniel’s house as being “work” when it would appear that he may have been giving assistance to Mr Daniel who was and remains his friend.  Perhaps he did not regard Mr Daniel’s home as a “building site” and perhaps he did not regard himself as working for “Dan Constructions” as opposed to giving assistance to Mr Daniel only.

78.     Nonetheless I am satisfied that the activity undertaken by the applicant – having regard to the nature of that activity, the frequency of it and the duration of it amounts in my view to the applicant having worked.

79.     The issue of what constitutes “unemployed” has been explored in a number of cases.  Two prominent cases being those of Director- General of Social Services v Thomson 38 ALR 624 (“Thompson”) and Re McKenna and Director-General of Social Services (1981) 3 ALD 219 (“McKenna”). Both cases identify the absence of any clear test and the need to decide matters according to their individual facts and circumstances. In McKenna at 222, the Tribunal decided:

When regarded in the context of the apparent legislative intent and the other terms and expressions used in the sub-section, it seems to us that the word “unemployed” bears its colloquial or popular meaning of not being engaged in work of a remunerative nature.

80.     In Thompson at 628 – 629, the Full Federal Court decided:

…the possibility must be recognized that activities being pursued by a person without paid work may be so fundamentally incompatible with the person’s being regarded as unemployed that no further inquiry is necessary.  However, we anticipate that such a case would be exceptional.  In the usual case….the solution will be arrived at by reference to all the circumstances, of which the activities being pursued for the time being by the applicant for benefit will be one.

81.     Remuneration, or the absence thereof, will not determine whether a person is “unemployed” (refer McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462; Thompson at 359), when the person is engaged, as a fact, in “work”.

82.     The broad opportunity to examine a person’s circumstances and to apply common sense and community expectations is highlighted by Re Davis and Secretary, Department of Social Security (1992) 15 AAR 328, where an escaped prisoner, “on the run” was found not to be “unemployed” and in Thompson where a student whilst either studying or between semesters – is not “unemployed”.

83.     Perhaps Mr Daniel also had the same uncertainty as to what constituted “work” and whether by him making cash payments to Mr Toma he was assisting him as his friend and or rewarding him for his efforts in the renovation of his home.  However, I do not think that the evidence of Mr Daniel can be regarded as being truly neutral and independent when clearly there is a significant degree of friendship between Mr Daniel and Mr Toma.  Additionally I am not satisfied that the admission by Mr Daniel of the activity of the applicant being confined only to making tea and making lunches is entirely truthful.  In my view it is inconceivable that Mr Daniel would not have known of the activities being undertaken by the applicant at his own home, having regard to the frequency and duration of the activities that were undertaken and which must have been undertaken either at Mr Daniel’s request and or by his direction.

84.     The period 24 May 2004 to 25 June 2004 is a period which commenced on the first day of the applicant being subject to the surveillance and concluded at the commencement of the fortnight ending 8 July 2004 being the date of the interview with Mr Klunder.  Whilst there is some imprecision about the occasions that the applicant was working for Mr Daniel it would appear that it did extend beyond four weeks and did occur approximately in the middle of 2004.  It would appear that in fact it did occur before 8 July 2004 having regard to the admission to the SSAT of working by way of denial of the contents of the memorandum that Mr Klunder made on 8 July 2004.  I am satisfied therefore that within the period under review the applicant was working and was not unemployed.  Because he was not “unemployed” he was not entitled to newstart allowance.  The decision to cancel newstart allowance and to raise a debt was the correct or preferable decision and in those circumstances the decision of the SSAT should be affirmed.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:          Alice Beattie
  Associate

Dates of Hearing  3 March and 6 June 2005
Date of Decision  10 June 2005
Solicitor for the Applicant           Nil - Self Represented
Departmental Advocate             Mr D Perdon