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Administrative Appeals Tribunal of Australia |
Last Updated: 3 November 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
VAHID SELIMOVIC |
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And |
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
Tribunal |
Linda Savage Davis, Member |
Date 31 October 2003
Decision
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The Tribunal affirms the decision under review. |
..........(sgd L Savage Davis)................
SOCIAL SECURITY - decision subject to review - family tax benefit - arrears of family tax benefit - arrears of family payment and family allowance - compensation for detriment caused by defective administration
Social Security Act 1947
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Secretary, Department of Social Security and Nelly Mosca AAT No 13155 5 August 1998
Christos Katsimalis v Secretary, Department of Social Security (1994) 36 ALD 759
Secretary, Department of Social Security v Sevel and O'Connell (1991) 38 FCR 540
31 October 2003 |
Linda Savage Davis, Member |
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1. This is an application by Mr Vahid Selimovic (the applicant) for review of the decision made by the Social Security Appeals Tribunal (SSAT) on 18 February 2003, to affirm a decision by an authorised review officer of Centrelink, dated 9 August 2002, not to pay arrears of family tax benefit from 1 July 2001 to 26 December 2001 or family allowance or family payment for any period since the birth of the applicant's son Semir.
2. At the hearing the applicant was represented by Mr Antonio Gonzalez an advocate from the City of Fremantle, Community Legal and Advocacy Centre. The applicant gave oral evidence via an interpreter, Mr Muhamed Merdjanic. The applicant's wife, Mrs Remzija Selimovic also gave oral evidence via the interpreter. Mr James Underwood, an advocate from Centrelink, represented the respondent. The Tribunal had before it the T-documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as the following exhibits;
A1 - Passport of Mrs Remzija Selimovic, No. 0703955195001.
A2 - Photocopy of a page from applicant's bank account ( Ljubljanslea Bank)
A3 - Centrelink's record of telephone conversation with Mr Selimovic on 24 December 1996.
ISSUES
3. It became apparent at the commencement of the hearing that the applicant and respondent had different views as to the scope of the decision that was being reviewed. Mr Gonzalez maintained that the Tribunal should consider whether Mr Selimovic was entitled to Family Tax Benefit (FTB) or any comparable payment from the date of birth of his son in Bosnia on 14 June 1990 until payment of FTB commenced on the 27 December 2001. Mr Underwood submitted that the only decision that could be subject to review was the decision granting FTB from the fortnight commencing 27 December 2001 and not the earlier date of 1 July 2001.
4. Mr Gonzalez submitted that since becoming involved in this matter Mr Selimovic had always indicated that he understood that the decision concerned his son's eligibility from birth. Mr Gonzalez referred to the decision of Secretary, Department of Social Security and Nelly Mosca (AAT No 13155, 5 August 1998). This case, he submitted supported the view that the Tribunal could consider entitlement back to the date of birth of Mr Selimovic's son. Mr Selimovic had only intended to stay away for a limited time when he left Australia, and it was for reasons beyond his control, in particular his lack of finances that prevented him from returning.
5. Mr Underwood referred the Tribunal to T13 which he said was evidence that the appeal involved reconsideration of the start date of payment of FTB from 27 December 2001. The original decision to grant FTB from 27 December 2001 followed Mr Selimovic's return to Australia and lodgement of a claim form on 2 January 2002. That claim for FTB had printed on the first page that it was for the 2001 - 2002 financial year. On the basis of that claim, the earliest date that a decision could have been made to pay FTB was from 1 July 2001. Mr Underwood said the respondent conceded that Mr Selimovic was a resident of Australia throughout the entire period he was overseas. It would be on grounds other than residency that the respondent would argue that the applicant was entitled only to payment from 27 December 2001.
6. The Tribunal reached the conclusion that it was within its jurisdiction to consider entitlement form the birth of the applicant's son as discussed in paragraphs 27 to 29 of this decision.
BACKGROUND
7. The following background was not in dispute. Mr Selimovic arrived in Australia in 1970, was granted citizenship in 1977 and returned to Bosnia in 1988. Whilst living in Bosnia he married in 1990 and his son Semir was born on 14 June 1990. In December 2001 he and his son returned to Australia. On 2 January 2002 he lodged a claim for FTB and was paid from 27 December 2001. The respondent does not dispute that Mr Selimovic was a resident of Australia throughout the period he was absent from Australia.
EVIDENCE OF MR VAHID SELIMOVIC
8. Mr Selimovic told the Tribunal that prior to returning to Australia he had on a number of occasions asked for family payment for his son. As soon as his son was born he approached the High Court in the former Yugoslavia for translations of documents and sent them to Hobart. He believed that this was an application. He had subsequently received questionnaires from the respondent and completed them. His wife's passport (Exhibit A1) showed that visas had been obtained for her and his son to enter Australia between 24 June 1991 and 5 August 1991. This had been his intention but it was a difficult time and his bank accounts were closed and he could not get access to the money and leave the country. Mr Selimovic provided a copy of a page from a passbook as evidence that he could not access any funds (Exhibit A2).
9. Mr Selimovic said all his attempts to obtain payment for his son were answered by no response. At the time it was very difficult to communicate. Phones did not work and his preoccupation was with his survival and that of his wife and child.
10. At the first opportunity after the war ended he contacted his friends by phone for help. They made enquiries on his behalf to Centrelink but were told that nothing could be done until he arrived back in Perth. He eventually got to Croatia after the war had finished in 1995/96 and again sought assistance to claim family payments. Mr Selimovic said he rang Hobart which cost him 50-100 deutsche marks per time. It was difficult for him to understand, even when he had the assistance of an interpreter, but he was told he could only be helped when he arrived in Australia. He said that Exhibit A3 was evidence of the phone conversation that he had on the 24th December 1996 with Centrelink, at which this issue was raised.
11. When friends visited him after the war he told them that he was unable to return because of lack of funds. By then his wife had no visa and his own passport had expired. His friends said they would try to help him. Mr Selimovic said his friends, including Mr Bektic, Mr and Mrs Gavronovic, Mr Boboscov and Mr Hodzic assisted him and lent him money. He still owes them some money. Some time in 2001 he sent a fax to Hobart before leaving for Australia. Mr Selimovic said he did not have a copy with him although he believed he had shown it to Mr Gonzalez at some time. In any event, no one ever replied,
12. Two days after arriving in Australia he went to Centrelink, Mirrabooka. Mr Selimovic said he was interviewed and asked a lot of questions. At that time he was very tired and scared. He was intimidated by questions such as why hadn't his wife arrived with him. He tried to explain that it had been a struggle just to get himself and his son out of the country and that his wife didn't have a visa. When he asked if they knew about his wife and child, he was told they were registered with Centrelink as part of his family. Mr Selimovic said he was led to believe that things would be fixed up. He went often to Centrelink to raise the issue. Subsequently he moved to Spearwood. It was there that he came into contact with Mr Gonzalez who has provided him with assistance.
13. Mr Selimovic said he knew he had some entitlement due for his son, but the law had changed a lot while he had been away. He said that he had had some problems in the 1970s including a severe accident. His health was poor and he had never received any compensation.
14. In cross-examination Mr Selimovic confirmed that he left Australia for Bosnia on the 15th April 1988. He also confirmed that his son Semir was born on the 14th June, 1990. Mr Selimovic said he wrote to the Department of Social Security (DSS) after they wrote to him. He sent proof of his son's birth within two to three months. He was never paid family payments.
15. Mr Selimovic was asked if the forms he filled in were already in part completed. Mr Selimovic said they had his name and address already and he filled in further information about his marriage and child. Mr Underwood put it to Mr Selimovic that a claim form would not be pre-printed with information already on it. Mr Selimovic maintained that he returned a number of forms and did so with the assistance of a person who could translate the forms. This cost him approximately $50 each time he had to complete forms. It was difficult for him to remember exactly what was on them. He did recall that they asked questions about any children, wife, work and assets. He recalled receiving one or two forms to complete about the situation regarding his marriage.
16. Mr Selimovic said he continued to receive disability support pension (DSP) throughout the entire 12-year period he was in Bosnia and Croatia. He had some communication with DSS, later Centrelink, both before and after the war. Mr Selimovic said his friends who made enquiries on his behalf never sent him claim forms in regard to his son because they were advised that his claim could only be dealt with when he returned to Australia.
EVIDENCE OF MRS REMZIJA SELIMOVIC
17. Mrs Selimovic told the Tribunal that she met her husband in 1989. From the very beginning he told her he would take her to Australia, but due to the war and their financial situation, in particular their inability to access their frozen funds, that was not possible. As soon as the war was over they wanted to come straight away, but again their lack of finances prevented it. They managed to come after Mr Selimovic's friends' lent them money.
18. Mrs Selimovic said she recalls her husband trying to organise payment for their son and him talking about it a lot.
FINAL SUBMISSIONS
Mr Gonzalez for the applicant
19. Mr Gonzalez submitted to the Tribunal that Mr Selimovic went to Bosnia for a particular and passing purpose. That is, he wanted a new wife and family and intended to return in 1991. The fact that he got a visa for his wife and child in 1991 (Exhibit A1) was evidence of his intention to return to Australia at that time. However even then the pre-war situation was tense and subsequently he could not access funds and so was unable to return.
20. Mr Gonzalez submitted that money remained a problem throughout the period and he had to rely on friends to assist him in bringing himself and his child, and later his wife, to Australia. This was evidenced by the letters from those friends (T19 / 73 - 76).
21. Mr Gonzalez submitted that Mr Selimovic did inform the respondent and completed review forms as requested, notwithstanding the difficulty of communication. He said whilst DSP was paid throughout the entire period he was outside Australia, the issue of payment for his son was not sorted out although Mr Selimovic always believed he was entitled to payment for his child.
22. Mr Gonzalez referred the Tribunal to a number of cases that he said supported the applicant's case including Mosca (supra), Christos Katsimalis v Secretary, Department of Social Security (1994) 36 ALD 759 and Secretary, Department of Social Security v Sevel and O'Conell (1991) 38 FCR 540. He submitted these cases were authority that family allowance was payable outside Australia and also of the distinctive nature of the payment that was to benefit children.
23. Mr Gonzalez submitted that FTB allows for the payment of arrears and that the applicant should be back paid at least for the six months to July 2001. In addition, he argued that in keeping with Mosca (supra) it should be payable to Mr Semilovic for three years from the birth of his child.
24. In regard to no claim being made, Mr Gonzalez submitted that there was no evidence that his client did not make a claim. There was evidence, however, that Mr Selimovic filled in all sorts of forms. If the respondent failed to send him the form as it should have, then a recommendation for `compensation for detriment caused by defective administration' (CDDA) should be made.
Mr Underwood for the respondent
25. Mr Underwood submitted that the appeal is concerned with Mr Selimovic's entitlement to FTB under A New Tax System (Family Assistance) Act 1999 that came into effect on the 1st July 2000. Mr Underwood submitted:
* Mr Selimovic lodged a claim for Family Tax Benefit for the 2001/2002 financial year on the 2nd January 2002 (T10/20-43);
* In response to question 20 of that claim "Do you want to claim Family Tax Benefit for any period during the past financial year?" Mr Selimovic ticked yes. Mr Selimovic was not contacted by the Family Assistance Office as the form indicated he would be (T10/38);
* Section 7(1)(b) of A New Tax System (Family Assistance) Administration Act 1999 provides that an individual may make a claim for FTB. Section 7(2) provides that for it to be effective it must be in a form and manner required by the Secretary. The claim form of 2 January 2002 is a claim in a form and manner required by the Secretary for payment of FTB;
* It was conceded that Semir is a family tax benefit child, however, Mr Selimovic's eligibility for payment for him was modified by s24(1) of the A New Tax System (Family Assistance) Act 1999 (FA Act).
Section 24(1) states that:
"If:
(a) either:
(i) an FTB child leaves Australia; or
(ii) a child born outside Australia is an FTB child at birth; and
(b) the child continues to be absent from Australia for more than 3 years;
the child is not, during that absence from Australia, an FTB child at any time after the period of 3 years beginning on the first day of the child's absence from Australia."
* Mr Selimovic's son Semir was born on 14th June 1990. As a FTB child he would continue to be so until 13th June 1993. After that he would only be able to regain Family Tax Benefit status when he returned. This occurred on the 27th December 2001. When read in conjunction with s24(4) Mr Selimovic's last day of eligibility was the 14th April 1991, having left Australia on the 15th April 1988. He only again became eligible for Family Tax Benefit on the day he arrived back in Australia. In regard to the overlap between the 14th June 1990 and the 14th April 1991 it was submitted that Family Tax Benefit did not exist at that time, and so reference would need to be made to the Social Security Act 1947.
* It was submitted that for the overlapping period only the Social Security Act 1947 (the 1947 Act) was applicable because the Social Security Act 1991 did not come into effect until the 1st July 1991. Part 10 of the 1947 Act is relevant. Sections 82 and 83 of that part also contain three-year limitation periods. Additionally, s159 of the 1947 Act requires a claim to be in writing and to be lodged in Australia. Section 159(4)(a) allows for some extremely limited backdating. It was submitted however that it was not clear if Mr Selimovic believes he ever lodged a claim. The applicant's evidence was that he completed pre-printed forms in regard to his wife, child, income and assets. A form that already contained his name and address could not be a claim form. These it was submitted could not be claim forms but were forms relating to DSP which he received for the entire period he was absent from Australia;
* Mr Selimovic it was submitted did not lodge a claim in writing for family allowance, or any other payment in respect of his child. In regard to the period where he may have been eligible - 14th June 1990 - 14 April 1991, there is confusion as to the adequacy of postal services. It is the respondent's submission that there is no documented or written request for payment. In the absence of a form, he would not be eligible to receive a payment as required by section 83 of the Social Security Act 1947 and section 814 of the Social Security Act 1991;
* Mr Selimovic's entitlement it was submitted was limited to that under the A New Tax System (Family Assistance) Act 1999 when he submitted his claim form (T10/ 20-38). Therefore no arrears were payable.
26. In reply Mr Gonzalez submitted that Mr Selimovic did write to Centrelink and fill in some forms. Mr Selimovic's recollections, coloured by the time that had elapsed and the stresses of the period did not mean it was impossible that he had completed a form in regard to payment for his son. In the event that he had not completed a claim form it was submitted that it was due to the respondent's failure to send one. In Mr Selimovic's mind he had requested family payment and it was not possible for him to know what form it should take. The telephone discussion (Exhibit A3) of 24 December 1996 records that no family payment was being paid for Mr Selimovic's 6 year old son and is evidence that the respondent knew this. In conclusion it was submitted that some form of payment for Mr Selimovic's son should be made either from the birth of the child or if not consideration should be given for a CDDA payment.
CONSIDERATION OF THE ISSUES
27. The first issue to be resolved by the Tribunal was the scope of the decision under review. To assist, the Tribunal requested a copy of the original decision from the respondent. The respondent had made available to the Tribunal during the hearing a copy of part of the letter recording the decision and the Centrelink computer record pertaining to the decision of 8 August 2002. This was not however the original decision, but a reconsideration by the original decision-maker of the decision about the applicant's claim for FTB. Subsequently a copy of what had been stored recording the contents of the letter issued on 6 February 2002 granting FTB was located. It was noted by Centrelink however that they could not reproduce the letter as sent to Mr Selimovic. Examination of the document indicates that it refers only to the grant of the payment from 27 December 2001. Although it outlines what steps to take if Mr Selimovic believes the decision is wrong, it does not state what the decision actually was. The respondent provided the Tribunal with a copy of the first page of the letter to Mr Selimovic in which the original decision, that is stated as the claim for FTB, is reviewed. This letter and a Centrelink file note of 8 August 2002 refer only to decision not to backdate FTB. In addition the file note records that as requested the file has been sent to the authorised review officer (ARO) The ARO in his letter to the applicant dated 16 December 2002 has identified the issue as follows;
"Does the Family Assistance Law allow you (to) be paid Family Tax benefit prior to your arrival in Australia on 27/12/2001". (T18/64)
28. Although the ARO letter on a number of occasions states that the decision under review is the decision not to pay arrears of FTB from 1/7/01 to 26/12/01 it also refers to the now repealed section 51 of the Social Security Act 1991. In considering the issue of eligibility for Family Payments under that section the ARO notes that no claim was made, so Family Payment cannot be paid. This supports the conclusion that consideration was given to arrears prior to the period 1/7/01 to 26/12/01.. The SSAT has also referred to the change of legislative provisions in the payment of family allowance, noting that Mr Selimovic has never made a claim for family allowance and concluding that, "...he is not eligible for back payments of family allowance." The decision of the SSAT focused on whether or not the applicant was a resident throughout the period of his absence form Australia and found he was not. This issue is no longer in dispute having been conceded by the respondent. The evidence supports the conclusion that throughout the review process consideration has been given to the possibility of payment prior to the 2001/2002 financial year and so the Tribunal finds that the operative decision in this case is the applicant's eligibility for a family payment of some kind since the birth of Semir. The Tribunal notes that the respondent in their submission did address eligibility to some form of family payment back to the date of Semir's birth.
29. The Tribunal therefore considered the relevant statutory provisions that have been in place since Semir's birth on 14 June 1990 until the grant of FTB from 27 December 2001. A common thread from June 1990 until grant of FTB in December 2001 was the requirement to lodge a claim form in writing.
14 June 1990 to 1 July 1991
30. Between 14 June 1990 and 1 July 1991 when the Social Security Act 1991 (the 1991 Act) came into effect the provisions of the Social Security 1947 Act (the 1947 Act) applied. Section 158(1)(c) of the 1947 Act provided that a grant or payment of family allowance shall not be made except upon the making of a claim. A claim was required to be made in writing in accordance with section 159(1) of the 1947 Act.
Making and lodgment of Claims, &c.
"159.(1) A claim shall be made in writing in accordance with a form approved by the Secretary and shall be lodged:
(a) at an office of the Department in Australia; or
(b) at a place (whether inside or outside Australia), or with a person (whether inside or outside Australia), approved for the purpose by the Secretary."
31. Section 159(4A) specifically provides for backdating of family allowance to the date of birth where a claim has been lodged within 4 weeks of the birth of the child.
I July 1991 to I July 2000
34. Similarly payment of family payment required the lodging of a claim form in writing. (sections 851(1) and 852 of the 1991 Act). There are a number of extremely limited circumstances that enable a claim to be backdated. Both the 1947 Act and the 1991 Act limit the period payment can be received for a child if the child is absent from Australia (section 83 of the 1947 Act and section 840 of the 1991 Act).
32. On Mr Selimovic's behalf it has been submitted that the case of O'Connell (supra) is authority for the distinctive nature of family allowance, and Mosca and Katsimalis (supra) are authority that family allowance should be payable for 3 years from Semir's birth.
35. Authorities referred to by Mr Gonzalez are distinguishable from this case. In O'Connell the issue concerned a decision to cancel payment. In this case each of the respondents were in receipt of family allowance. In October 1989 the then Department of Social Security sent notices to them requiring them to complete and return a financial form. The respondents had failed to advise that they had moved and did not receive the forms and so failed to return them. The payment of Family Allowance was cancelled. Payment was regranted following the lodging of new claim forms but no arrears were paid. It was argued before the Full Court of the Federal Court that arrears could not be paid because the respondents had failed to apply for a review of the cancellation decisions within three months as required by the 1947 Act. The Full Court noted that once the original decision to cancel had been set aside the respondents had the benefit of the previous decisions granting claim and would be entitled to be paid moneys attributable to that decision without the need for any new decision under section 168(3) of the 1947 Act. Section 1243A of the Social Security Act 1991 ("the 1991 Act") was inserted by the Social Security Amendment Act (No 2) 1993 to effectively prevent the payment of arrears where a decision to cancel or reduce payments was subsequently overturned on review. Mosca (supra) can be distinguished on the grounds that it dealt with a decision to suspend payment of family payment under the 1991 Act.
36. The applicant claims he made a number of attempts to obtain payment for his son and that he believed he completed forms in that regard. What is apparent is that despite the difficulties he faced in communicating he continued to be paid DSP and complete all necessary documentation during his entire absence from Australia. On the applicant's behalf it has been submitted that on a number of occasions he sought payment by direct approaches by telephone to the respondent. His evidence was also that his friends in Australia also made enquires on his behalf and were told nothing could be done until he returned to Australia. The Tribunal obtained a copy of a Customer Record Access Report (CRAMS report). A CRAMS report shows if and when a customer's system record was accessed by any staff member. Further explanation was sought by the Tribunal in regard to contacts and activities recorded on the applicant's record. The Tribunal understands CRAMS reports have only been available since 1994. The first recorded access is on 13 January 1995. There are three references to Family Screens - 8 January 1997, 7 April 1995 and 20 January 97. In addition Exhibit A3 records `... client has req additional fin assistance because his W is not rec a pension and we are also not paying any FPA for his child who is 6 years old." The Crams report does not cover the period when the applicant claims he sent proof about the birth of his son, nor is there any record that at any time that a claim form for payment for his son was sent or returned and completed.
1 July 2000 to 27 December 2001
36. A claim for FTB must be in a form and manner required by the Secretary. (section 7 of A New Tax System (Family Assistance) (Administration) Act 1999).. No such claim was made by the applicant. It is not in dispute that the applicant was a resident of Australia for the entire time he was absent nor that Semir is a FTB child (sections 21 and 22 of the A New Tax System(Family Assistance) ACT 1999 ("FA Act"). This is qualified however by s 24(1) of the FA Act 1991. That is that a child is no longer a FTB child after a period of three years absence from Australia beginning on the first day of that absence. Therefore payment cannot commence prior to his arrival in Australia. This qualifies the usual practice of payment of FTB from 1 July of the financial year it is claimed in.
38. Mr Gonzalez has requested that the Tribunal recommend a CCDA payment. The Scheme for Compensation for Detriment caused by Defective Administration was established in 1995 to allow Commonwealth agencies to provide compensation to persons adversely affected by defective administration. Payment may be made for detriment both quantifiable financially or non-financial damage such as pain and suffering. Criteria are established under which payment may be made. They include detriment that has been caused by giving advice that was in all the circumstances incorrect or ambiguous or an unreasonable failure to give a claimant the advice that was within the officials power and knowledge to give. For the applicant it has been argued that such a recommendation should be made on the basis that despite on going contact with the respondent and evidence that it knew of the existence of the applicant's son it did not send the applicant a form that may have led to payment in respect of his son for at least some period while he was outside Australia.
39. The Tribunal accepts that the former Yugoslavia was in a chaotic state for a substantial period whilst the applicant was there. In addition to the general difficulty of communicating he also faced language difficulties. The Tribunal has concluded that no claim forms were sent to the applicant although Centrelink was in contact with the applicant and forwarded DSP forms to him on a number of occasions that he completed and returned. The respondent has itself asserted that the applicant could not have completed a claim form because his recollection of the forms he completed already contained personal information. These factors, in particular the fact that no claim form was sent have contributed to the applicant's failure to test his eligibility to obtain payment for Semir which as Mr Gonzalez has pointed out has been recognised as a payment for the benefit of children. The CRAMS report and Exhibit A are evidence that Centrelink was aware of the existence of Semir at least from December 1996. Whilst a CDDA payment is a matter for the applicant to pursue with the respondent, the Tribunal strongly recommends that it should receive favourable consideration for the reasons outlined in this paragraph.
40. Accordingly the Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Linda Savage Davis, Member
Signed: .................(sgd V Wong)............................
Associate
Date/s of Hearing 5 August 2003
Date of Decision 31 October 2003
Counsel for the Applicant Mr A Gonzalez
Solicitor for the Applicant Fremantle Community Legal and Advocacy Centre
Counsel for the Respondent Mr J Underwood
Solicitor for the Respondent Service Recovery Team, Centrelink
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