|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 29 April 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
|
|
Re |
Nadir Saikal |
|
|
And |
Secretary, Department of Family and Community Services |
|
|
And |
Sayeda Abbasi |
Tribunal |
Mr G A Mowbray |
Decision |
The Tribunal sets aside the decision under review and in substitution therefor decides that the Second Respondent does not qualify for the receipt of Special Benefit under the Social Security Act 1991 for the period 25 November 1999 to 27 November 2000. |
|
|
|
...................(sgd).....................
SOCIAL SECURITY - Special Benefit - newly arrived resident's waiting period - substantial change in circumstances beyond the person's control
Social Security Act 1991 ss 729, 732, 739A
Re Chelechkov and Department of Social Security (1998) 26 AAR 321
Re Secara and Secretary, Department of Social Security (1998) 26 AAR 334
Re Secretary, Department of Social Security and Fomin (1998) 26 AAR 337
Secretary, Department of Social Security v Secara (1998) 89 FCR 151; 51 ALD 481; 28 AAR 385
24 April 2003 |
Mr G A Mowbray |
|
1. This is an application by Mr Nadir Saikal for review of a decision of the Social Security Appeals Tribunal (SSAT). That Tribunal decided that Ms Sayeda Abbasi met certain criteria for the payment of Special Benefit, effectively overturning the decision of a Centrelink authorised review officer. Mr Saikal had been made a party to the SSAT hearing because Centrelink was likely to recoup from him any social security payment made to Ms Abbasi. He had provided an Assurance of Support for Ms Abbasi.
2. At the hearing of this matter Mr Saikal was represented by Mr George Lombard, the Secretary by Mr Leonard Leerdam and Ms Abbasi by Mr Edward de Zilwa. This matter was initially heard on 29-30 November 2001 but oral evidence was not completed. Hearing resumed on 19-21 March 2002 but the matter was again adjourned. The hearing of evidence was finally concluded on 15 July 2002, after which written submissions were made by each party. The final submissions were received on 10 September 2002.
HISTORY OF THE APPLICATION
3. On 25 November 1999 Ms Sayeda Abbasi lodged a claim for Special Benefit with Centrelink (T4). Her reason for the claim was that her assurer of support, Mr Nadir Saikal, would not help her because of her refusal to marry her intended fiancee, Mr Shoab Mawlanazada. At the time of her claim Ms Abbasi also signed a statement (T5) indicating her awareness that any payments of Special Benefit before 27 August 2001 would have to be repaid to Centrelink by Mr Saikal, who would therefore need to be interviewed before any payment was be made.
4. Centrelink rejected the Special Benefit claim on the grounds that an Assurance of Support still applied. It found that Ms Abbasi had refused Mr Saikal's assistance without an acceptable reason for doing so (see T8, T17).
5. On 30 March 2000 Ms Abbasi requested the decision to deny Special Benefit be reconsidered by an authorised review officer (T19). On 11 May 2000 a review officer affirmed the previous decision (T23).
6. On 7 July 2000 Ms Abbasi appealed to the Social Security Appeals Tribunal (T24). On 3 October 2000 Mr Saikal was joined as a party to the appeal (see Statement of Agreed Facts - AF1).
7. On 14 December 2000 the SSAT set aside the decision under review and substituted its decision that the Second Respondent was "subject to satisfying other qualification criteria, qualified to receive Special Benefit" (T2).
8. On 15 January 2001 Mr Saikal made an application for review of the SSAT's decision to this Tribunal (T1). Ms Abbasi is the Second Respondent to the application, the first being the Secretary of the Department of Family and Community Services.
9. On 15 June 2001 the Tribunal ordered a stay of the SSAT's decision "as to arrears, but not to ongoing entitlement, pending the decision of the Tribunal on the ultimate hearing of this application or pending further order by the Tribunal".
LEGISLATION
10. The following sections of the Social Security Act 1991 ("the Act") are set out as they applied at 25 November 1999, the date of Ms Abbasi's application for Special Benefit
"729 Qualification for special benefit
(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:
(a) no social security pension is payable to the person during the period; and(b) no other social security benefit is payable to the person for the period; and
...
(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person's dependants (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and
(f) the person:
(i) is an Australian resident; or
...
(v) is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph; and
(fa) the person is in Australia throughout the period; and [sic]
(3) The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period.
..."
"732 Special benefit not payable in some circumstances
(1) Even though a person might otherwise be qualified for a special benefit, the benefit may not be payable to the person because:
...(da) the person is subject to a newly arrived resident's waiting period and that period has not ended (see section 739A); or
...
..."
"739A Newly arrived resident's waiting period
(1) Subject to this section, a person who, on or after the commencement of this subsection:
(a) enters Australia; or(b) becomes the holder of a permanent visa; or
...
(e) becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
is subject to a newly arrived resident's waiting period.
...
(3) If:
(a) a person is subject to a newly arrived resident's waiting period; and(b) before, on or after the commencement of this subsection, the person applies for:
...
(iii) a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
the waiting period:
(c) starts on the day on which the person applied for that visa; and(d) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(4) If:
(a) a person is subject to a newly arrived resident's waiting period; and(b) before, on or after the commencement of this subsection, the person was the holder of:
...
(iii) a visa that is in a class of visas determined by the Minister for the purposes of this paragraph;
the period:
(c) starts on the day on which the person applied for that visa; and(d) ends when the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
(5) If:
(a) a person is subject to a newly arrived resident's waiting period; and(b) neither subsection (3) nor (4) apply to the person;
the waiting period starts on the day on which the person:
(c) first entered Australia; or(d) becomes the holder of a permanent visa;
whichever occurs last, and ends on the day after the person has been in Australia for a period of, or periods totalling, 104 weeks after that day.
...
(7) Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control."
ISSUES
11. There is no dispute that the visa Ms Abbasi held when she entered Australia - a subclass 309 (provisional spouse) visa - would generally subject her to the newly arrived resident's waiting period under section 739A(1). If that subsection applies then the discretion to grant special benefit can not be exercised (section 729(3)). One of the major issues in this matter is whether Ms Abbasi is exempt from the waiting period because of section 739A(7). Ms Abbasi contends that she "has suffered a substantial change in circumstances beyond [her] control".
12. Ms Abbasi was granted a Protection Visa on 27 November 2000. It is not in dispute that as a result of this she was no longer entitled to receive Special Benefit. Therefore the Tribunal is only concerned in this application with a closed period from 25 November 1999 to 27 November 2000. This lies entirely within the hypothetical waiting period.
13. The other major issue is the satisfaction of section 729(2)(e). To grant special benefit the Tribunal must be satisfied that at the relevant time Ms Abbasi was unable to earn a sufficient livelihood for herself "because of age, physical or mental disability or domestic circumstances or for any other reason".
EVIDENCE
14. The documentary evidence before the Tribunal included the T-documents (T1 to T25), a Statement of Agreed Facts (AF1), Applicant's exhibits A1 to A28, First Respondent's exhibit R1 and Second Respondent's exhibits S1 to S9.
15. Oral evidence was given by Mr Saikal, Mr Mawlanazada, Ms Nahid Kazemi (Mr Saikal's sister-in-law and Ms Abbasi's cousin), Ms Zarin Latif (Mr Saikal's mother-in-law and Ms Abbasi's aunt), Ms Abbasi and Ms Megan Mahon from Hanover Women's Centre. All witnesses other than Mr Saikal and Ms Mahon gave evidence with the assistance of an interpreter.
Mr Nadir Saikal
16. Mr Saikal gave evidence that Ms Abbasi is his wife's cousin. Prior to the events surrounding the current matter he had never met Ms Abbasi and his wife had not seen her since about 1983.
17. In about the middle of 1998 members of Mr Mawlanazada's family were visiting the Saikals, saw a photograph of Ms Abbasi and recognized her. This ultimately led to a marriage being arranged between Ms Abbasi and Mr Mawlanazada. Mr Saikal denied any involvement in creating this arrangement - the initiative was taken by Mr Mawlanazada's relatives in Australia and Pakistan (Exhibit A21).
18. His own role in the preparations was confined to completing two forms. One was a "form 888" declaration in support of Ms Abbasi's application to remain permanently in Australia as Mr Mawlanazada's spouse (one of the documents in Exhibit A24). The second was the Assurance of Support (T7), which he undertook at the request of Mr Mawlanazada's brother-in-law. He agreed to do so because Ms Abbasi was a family member.
19. Mr Saikal was told by Mr Mawlanazada's family that Ms Abbasi was coming to Australia about one month before her arrival. A customary wedding ceremony and party were also arranged by Mr Mawlanazada's family. However Ms Abbasi and Mr Mawlanazada were legally and officially married before her arrival in Australia. A proxy marriage took place in Pakistan in Mr Mawlanazada's absence. Ms Abbasi had not wanted Mr Mawlanazada to go to Pakistan because it was unsafe.
20. On 27 August 1999 (a Friday) Mr Saikal met Ms Abbasi when she arrived at Canberra airport. Also waiting at the airport were Mrs Saikal, Mr Mawlanazada and Mr Mawlanazada's sister and brother-in-law. Accompanying Ms Abbasi from Pakistan was another sister of Mr Mawlanazada and her immediate family. All of these people then had lunch together at the house of Mr Mawlanazada's mother. Ms Abbasi and Mr Mawlanazada did not spend any time talking privately during this gathering.
21. After the lunch Ms Abbasi chose to come back to the Saikals' house and stay there until the final wedding ceremony, which was to take place about a week later. That night, however, Ms Abbasi told Mr Saikal she was unhappy about going ahead with the marriage. She did not provide any explanation. Mr Saikal was shocked, but also thought that her attitude might be due to tiredness after the long journey. The following day (Saturday) no further discussion of the matter took place. Ms Abbasi slept for much of the day.
22. On the Sunday Mr Mawlanazada rang to say he was coming to visit Ms Abbasi. That afternoon Mrs Saikal drove Ms Abbasi and Mr Mawlanazada to a shopping centre. They later returned to the Saikals' house and had dinner there.
23. After dinner Mr Saikal gave Mr Mawlanazada a lift home, during which Mr Mawlanazada told him that Ms Abbasi had said she did not wish to proceed with the marriage. This conversation had occurred while they were shopping. She had also said she was involved with someone else. Like Mr Saikal, Mr Mawlanazada attributed her comments to tiredness, and he seemed unsure of how serious the situation was.
24. That night Ms Abbasi also told Mr Saikal of the conversation that had taken place at the shopping centre, and asked him to pass the news on to Mr Mawlanazada's family. She said she was involved with someone else, but in a joking tone and immediately changed her mind. Mr Saikal did not take her statement seriously at that time.
25. The next day (Monday) Mr Saikal informed Mr Mawlanazada's sister and brother-in-law, who were shocked at the news. That evening they came to the Saikals' house to hear from Ms Abbasi directly. On that occasion she said she would think about the marriage but needed some time. Mr Saikal was still optimistic the marriage would eventually take place.
26. On the same day Ms Zarin Latif (Mr Saikal's mother-in-law and Ms Abbasi's aunt) arrived in Canberra from Melbourne to attend the wedding party. At the end of that week she returned to Melbourne and Ms Abbasi went with her to visit the rest of her relatives in Victoria. Ms Abbasi said that she intended to return to Canberra to announce her decision regarding the marriage. Mr Saikal paid for Ms Abbasi's bus ticket to Melbourne. Mr Mawlanazada said farewell to her before she left. Ms Abbasi took her passport with her to Melbourne. She left her belongings in Canberra.
27. A few weeks after Ms Abbasi's departure Mr Mawlanazada's mother died. Ms Abbasi initially said she would return for the funeral but changed her mind, saying she was happy to stay with her aunt (Ms Latif) in Melbourne.
28. Ms Abbasi in fact never returned to Canberra and Mr Saikal had not seen her since her departure. He had spoken to her on the phone on many occasions while she was staying at Ms Latif's house and subsequently, including several lengthy phone calls in June 2001. These calls occurred partly because of an abusive letter sent by Ms Abbasi to a relative in America (Mrs Saikal's sister), copies of which were also posted by Ms Abbasi to Mrs Saikal and Nahid Kazemi. The original had been received in America in July 2000, but the copy posted to Mrs Saikal was received in June 2001.
29. Mr Saikal was worried that the letter would cause disruption in the family and rang Ms Abbasi in an attempt to intervene. Also during these calls Ms Abbasi indicated she wished to withdraw from the current proceedings. Mr Saikal offered her assistance in putting this in writing because her English was poor. It was after these calls that an order was issued against Mr Saikal at Ms Abbasi's request (Exhibit S2), much to his surprise. However he decided not to challenge the order.
30. Mr Saikal said that he had begun arranging offers of assistance to Ms Abbasi as soon as she had said she did not wish to proceed with the marriage. These offers related to employment, accommodation and learning English and were in both Canberra and Melbourne. He did not document any of these offers (Exhibits A4 to A10) until December 2000, when he was informed of the decision of the SSAT. Prior to that there had been no need to put the offers into writing. Until that time he had been confident Ms Abbasi would still return to Canberra, as she had promised repeatedly to do so.
31. He had personally offered financial assistance to Ms Abbasi, such as paying for rent, electricity and phone bills and providing some "pocket money".. Ms Abbasi had never asked him directly for money. Instead she had said that he would have to pay via Centrelink.
32. Mr Saikal had seen a video taken by Nahid Kazemi at a party in Melbourne in approximately February 2001. He could not recall the precise date but the recording had a date on it. It showed that Ms Abbasi was at the party along with relatives and other women in the Afghan community in Melbourne.
Ms Mary Saikal
33. Ms Mary Saikal (Mr Saikal's wife) did not give oral evidence. The documentary evidence includes several statements by both the Saikals which generally add little to Mr Saikal's oral evidence. However one of Ms Saikal's statements made on or about 29 December 1999 (T14) supplies more information about the immediately preceding few days
"? On Wednesday evening 22/12/99 I rang my cousin (Qudsia Hakimi) to find out Sayeda's whereabouts. She said "Sayeda is not living with them anymore" and she is at Hanover Women's Centre... I asked for the reasons why she has gone to that Centre. Qudsia said she does not know either, but during her stay in our house we gave her a good hospitality and she was quite happy.
? During that evening on Wednesday 22/12/99 my husband phoned Sayeda at Hanover Women's Center and asked her if she can come back to Canberra. Sayeda responded positively and said if someone from the relatives in Melbourne helped her with transport to take her to Qudsia Hakimi's house... to pick up some of her belongings then she would be very happy to come to Canberra. Then my husband arranged transport through my sister (Nahid Kazimi)...
? On Thursday 23/12/99 when my sister went to Hanover Centre to pick up Sayeda, one of the staff at the Centre said Sayeda is not in. My sister stayed until 3pm and Sayeda still didn't turn up...
? On Friday evening 24/12/99 my husband rang Sayeda at Hanover Women's Centre... she promised that she was coming to Canberra by Sunday 26/12/99 and she asked for transport. Then my husband again contacted my sister Nahid Kazimi to take Sayeda... in order to collect her belongings from Qudsia Hakimi's house on Saturday 25/12/99.
? On Saturday morning my husband rang Sayeda to reconfirm the appointment between Sayeda and Nahid and Sayeda said she had already packed her stuff and was waiting for someone to come and pick her up. My husband also talked with one of the staff at Hanover Women's Centre and she confirmed that Sayeda is happy to leave the Centre and she was going to return the key.
? In the Afternoon my sister (Nahid) went to Hanover Women's Centre and picked up Sayeda and Sayeda asked Nahid to purchase a bus ticket from Melbourne to Canberra for Sunday 26/12/99.
? Nahid purchased a ticket through her MasterCard... and gave all of the details to Sayeda. At that time Sayeda was very happy and she went to Qudsia Hakimi's house in order to stay overnight and collect her belongings...
? On Sunday morning around 8.30am I rang to Qudsia Hakimi to find out what time Sayeda left Melbourne but she said that Sayeda woke up around 5am and changed her mind and rang Hanover Women's Centre to send a taxi to take her back to the Centre. Qudsia said to her that she was supposed to go to Canberra that day and had already packed everything and a ticket had been booked. Sayeda responded that she did not need financial support from Nadir and Mary and was going back to Hanover Women's Centre and find a job and she was not destitute and was young enough to find a job easily.
..."
Mr Shoab Mawlanazada
34. Mr Mawlanazada gave evidence that he had never met Ms Abbasi before her arrival in Canberra, although some of his relatives knew her. After seeing her picture in the Saikals' photo albums he decided to arrange a marriage and contacted his sisters in Pakistan.
35. While she was in Pakistan Ms Abbasi sent him somewhere between 10 and 20 letters in total, one every one or two weeks. Exhibits A11 (two letters), A12 (one letter), A13 (one letter) and A14 (a New Year card) were all sent to him. They also spoke on the telephone every 7 to 10 days, for 15 to 30 minutes at a time. He sent money to her every month and also some other items she requested that were not available in Pakistan.
36. Mr Mawlanazada met Ms Abbasi when she arrived at Canberra airport on a Friday. They then went to his mother's house to have lunch. During that gathering he spent about half an hour with Ms Abbasi to say hello, but otherwise did not spend time with her.
37. He next saw Ms Abbasi on Sunday. They had lunch together at the Saikals' house and in the afternoon they had coffee at a shopping centre. He talked of "starting a life together". Ms Abbasi responded that she had a boyfriend in Pakistan and did not want to start a life together. She said her boyfriend was rich and she would go back to Pakistan to marry him. She did not say whether she would return to Australia following this marriage.
38. Mr Mawlanazada told Mr Saikal about this conversation on Sunday night, when the latter gave him a lift home. At that time he thought Ms Abbasi had been joking. However the next day Mr Saikal rang and told Mr Mawlanazada that he too had been told by Ms Abbasi that she had a boyfriend. He then "understood" that she was not joking.
39. Mr Mawlanazada in fact regarded himself as already married. A religious marriage ceremony had taken place in Pakistan in his absence and Ms Abbasi would be regarded as his wife. He wanted a celebration in Canberra for his mother's sake. In his eyes Ms Abbasi was still his wife, as he had not divorced her.
40. After the relationship was damaged Mr Mawlanazada threw most of Ms Abbasi's letters in the rubbish, but gave the Saikals those letters that contained greetings to them.
41. Mr Mawlanazada was cross-examined extensively on the state of his health. He described his health as normal, but then went on to describe what he initially called, albeit through an interpreter, a "mental illness".. He had not told Ms Abbasi of his illness, and was not aware of anyone else having told her. Later in his evidence, however, he stated that he now only had ordinary headaches and not a mental illness. In re-examination he stated that he had recovered from the "mental illness" of memories of the war in Afghanistan, something that all Afghans suffered from.
42. He stated that while in Afghanistan undertaking military service he had been arrested and hit on the head. He had been examined by doctors in Afghanistan, including psychiatrists, and had been treated for epilepsy there. He had taken some unspecified medication while in Afghanistan and Pakistan, but not while living in Italy. Since in his arrival in Australia he only took Panadol. In re-examination Mr Mawlanazada said he had only ever had a checkup with a psychiatrist, not treatment, and he had not been treated for epilepsy. His earlier evidence had been about headaches.
43. Mr Mawlanazada also acknowledged that his eyes did not "look in the same direction". This was a condition he had had since he was born. He could not give the name of the condition but rejected the suggestion he was "cross-eyed". He could read, write and see things without difficulty.
Ms Nahid Kazemi
44. Ms Kazemi gave evidence that she first met Ms Abbasi, her cousin, in Melbourne when the latter was living at Zarin Latif's house (Ms Latif is Ms Kazemi's mother). She had never met Mr Mawlanazada but had seen his photo.
45. Ms Abbasi had sometimes said she would marry Mr Mawlanazada and sometimes that she would not. Ms Kazemi could not work out her true intentions or whether she was joking. While she was in Melbourne no pressure was placed on Ms Abbasi to return to Canberra and marry.
46. In about November 1999 a letter arrived from Pakistan addressed to Ms Kazemi's brother. The family regularly received letters from Pakistan, although this particular letter did not say who it was from. When it was opened the letter turned out to be for Ms Abbasi from a man named Farooq Qubat. Her brother had never heard of this person.
47. The whole family read the letter. Ms Kazemi was very surprised at the contents. She described it as a "love letter" written in the same way a man would write to his wife. It contained instructions that Ms Abbasi should try to study and obtain a visa to stay in Australia, after which she could marry the writer. It did not mention Mr Mawlanazada by name but told Ms Abbasi not to marry her fiancee.
48. On the day the letter arrived Ms Abbasi was staying at another cousin's house for one or two nights. On her return Ms Abbasi was confronted with the letter and asked why she had not told the family about her relationship with Farooq Qubat. Ms Abbasi appeared to be very surprised, embarrassed and ashamed, but "did not say anything".. She did not ask for the letter but she "acknowledged" it was hers.
49. The letter was then put in a suitcase. It was not given to Ms Abbasi because the family wanted evidence to explain to her brothers why she had not married Mr Mawlanazada. Ms Kazemi's brother also made a photocopy which was placed in the suitcase. The suitcase was subsequently torn open, both the original and copy of the letter were taken, and Ms Abbasi had left the house. Ms Abbasi was not seen taking the letters but in Ms Kazemi's opinion no-one else in the house had any reason to tear the case open. They would have used a key.
50. Despite this incident and Ms Abbasi's departure from Ms Latif's house, Ms Kazemi continued to see Ms Abbasi. They saw each other at parties and community functions. In about December 1999 Ms Abbasi had said she wanted to go back to Canberra. Ms Kazemi booked a bus ticket for her, but Ms Abbasi changed her mind and returned to the women's hostel she was living in at the time. About three months later they saw each other at an Afghani women's gathering. Ms Kazemi had taken a video at one gathering. She estimated this was in the middle of 2001, but the exact date was on the recording.
51. In June 2001 she had received a letter from Ms Abbasi written in Farsi. It was a copy of a letter that was originally addressed to Ms Kazemi's sister in America. The copy was in an envelope written in English and addressed by Ms Abbasi. It was not posted from America. The letter contained very bad language and was "disgusting". She could not understand why Ms Abbasi had sent it, nor had she asked the reason. She received the letter some time after the gathering where the video was taken.
52. Some time after the receipt of the abusive letter she met Ms Abbasi at Alfred Hospital, to give her "a letter". This letter had been faxed by Mr Saikal, and was for Ms Abbasi to sign to "withdraw her complaint". Ms Kazemi identified Exhibits S6 and S7 as copies of the relevant letters. Ms Abbasi was friendly, acknowledged having spoken to Mr Saikal, took "the letter" and said she would sign it and fax it back to Mr Saikal. She did not say that Mr Saikal had abused or threatened her, nor was there anything abnormal about her demeanour. Ms Kazemi did not ask Ms Abbasi any questions about the abusive letter on this occasion because they were in a hospital. Ms Kazemi no longer tried to contact Ms Abbasi as she had been "instructed by the court" not to (by the Intervention Order).
Ms Zarin Latif
53. Ms Zarin Latif gave evidence that she had known Ms Abbasi (her niece) since the latter's childhood although Ms Abbasi's family had spent a considerable number of years away in Iran. Ms Latif had at one point returned to Pakistan from Australia for three months, visiting Ms Abbasi's mother. She had also known Mr Mawlanazada as a child and had met him more recently in Canberra.
54. Ms Abbasi came to Australia "because she was married". Ms Abbasi had brought with her a "wedding video" which Ms Latif watched, showing the "party" in Pakistan at which Ms Abbasi was married to Mr Mawlanazada in the latter's absence. It included Ms Abbasi being slowly brought to a stage by her brother, something that indicated it was not a normal party. It also included a song traditionally played for a bride and groom.
55. Ms Latif was not in Canberra when Ms Abbasi arrived but was going to Canberra for the "marriage ceremony" or "party" to act in the place of Ms Abbasi's dead mother. Ms Latif regarded Ms Abbasi's failure to marry Mr Mawlanazada as personally embarrassing. It caused her loss of face because she knew Mr Mawlanazada and his family. She had been anticipating the marriage for some time. Mr Mawlanazada's family had asked for Ms Abbasi's hand in marriage in Pakistan.
56. Ms Latif stayed in Canberra for 6 or 7 days. Ms Abbasi then came with her back to Melbourne, saying she wanted to see her relatives there. Ms Abbasi would sometimes say to Ms Latif she was going to marry Mr Mawlanazada, and at other times say she would not. She would also say she was going to marry someone else, but without saying whom. Because the answers kept changing Ms Latif thought that Ms Abbasi was making fun of the matter.
57. No pressure was placed on Ms Abbasi to return to Canberra. Ms Latif received phone calls from Mr Saikal, her son-in-law, but they did not talk about Ms Abbasi other than to ask whether she wanted to come back. At one time Ms Abbasi decided she would go back and a ticket was booked, but she then changed her mind.
58. A letter arrived from Pakistan addressed to Ms Latif's son at her house, and initially she thought it was from her nephews. However the letter inside was from a man named Farooq Qubat and it was "all about love". The end of the letter indicated it was for Ms Abbasi.
59. Ms Latif confronted Ms Abbasi with this letter. She held it in front of her but did not give it to Ms Abbasi to read. Ms Latif then asked Ms Abbasi why she had not said she did not want to marry Mr Mawlanazada and why she had allowed him to send money and pay for her ticket to Australia. Ms Abbasi's reaction was to "make fun" of the situation, although Ms Latif also gave evidence that Ms Abbasi did not say anything.
60. A phone call was made to Ms Abbasi's brother in Pakistan and he was told about the letter. He requested a copy of it, and Ms Latif's son made a photocopy to send. It was placed in a locked suitcase along with the original and $200, which was also going to be sent to Pakistan. They were not sent immediately because Ms Kazemi was going to write an additional letter to Ms Abbasi's brother. According to Ms Latif, Ms Abbasi tore the suitcase, took the money and both copies of the letter and left. She did not see Ms Abbasi tear the suitcase, but she herself had a key and there was no-one else in the house.
61. Ms Abbasi went to Qudsia Hakimi's house. She said this would only be for a few days but never returned to live in Ms Latif's house again. Instead she returned with Ms Hakimi for her belongings and then went to live in a hostel. On finding this out Ms Latif offered Ms Abbasi accommodation but Ms Abbasi refused.
62. Ms Latif had not seen Ms Abbasi during 2001. She had however seen a "bad" letter written by Ms Abbasi and sent to Ms Latif's three daughters in Canberra, Melbourne and America. She could not understand why Ms Abbasi had written this. She had not asked her partly because she did not want the trouble to continue, and also because the hearing in this Tribunal was approaching. Once this matter was finalised she would ask Ms Abbasi why she had sent the letter.
Ms Sayeda Abbasi
63. Ms Abbasi gave evidence that she was born in Afghanistan and had lived in Afghanistan, Pakistan and Iran during her childhood. From 1994 she lived in Peshawar, Pakistan with her mother (now dead) and brothers. She had paid employment there teaching the Koran to children aged 8 to 10 at an English centre, having had a few months training before she commenced this job.
64. Her marriage to Mr Mawlanazada, who at that time she had never met, was arranged in about 1998. Ms Latif and Mrs Saikal had written to her and Mr Mawlanazada's three sisters in Peshawar had come and asked for her hand in marriage. She was told that Mr Mawlanazada was a doctor and he was studying. She was not told anything about his health.
65. Ms Abbasi denied writing any of Exhibits A11 to A14. She had written letters to Mr Mawlanazada, but did not keep copies. Mr Mawlanazada sent them back so that she could show them to the Australian embassy in Pakistan and prove they had been in contact. She did not know what had happened to the letters after this. Mr Mawlanazada had rung every one or two months on a total of about ten occasions. Each call lasted less than five minutes. She made no conclusions about his personality from those calls.
66. Mr Mawlanazada's brother-in-law in Pakistan completed the papers needed to apply for an Australian spouse visa. Ms Abbasi only signed them. She signed a "Nikah Nama", or marriage certificate (a document in Exhibit A24) written in English and Urdu because Mr Mawlanazada's brother-in-law and sister said it was needed for identification, in order to show the embassy she was a refugee in Pakistan. She did not read Urdu well. Her brother's signature had been forged on another document.
67. In cross-examination Ms Abbasi acknowledged that "Nikah Nama" meant the same thing in Arabic, Urdu and Farsi (a language she is fluent in), that she could read the Koran in Arabic and that she could recognise the English alphabet but knew very little English. However she did not see the heading of the document because it was folded over. Nor did she see any photos of herself and Mr Mawlanazada attached to the document. She did not read any of the document, which she now agreed contained various other words that were the same in Urdu and Farsi. She knew the document would be used in support of her visa application.
68. Ms Abbasi recalled being interviewed by an Australian immigration officer in Islamabad, Pakistan in April 1999 (the officer's record of interview appears within Exhibit A24). The interview was less than five minutes long. She said that she had been told what to say at the interview by Mr Mawlanazada's sisters, including that she knew Mr Mawlanazada and they had had a lot of contact before marrying. She took phone bills to the interview but they were not looked at. She denied having said that they were already married over the phone or that they had planned to marry in Afghanistan several years earlier. She also later denied saying she had had contact with Mr Mawlanazada in Pakistan. She had been told to say it was unsafe for Mr Mawlanazada to return to Pakistan to get married, which was untrue. She denied saying that Mr Mawlanazada was studying rather than working and on social security, suggesting this information was written by the immigration officer from forms rather than her answers at the interview.
69. Ms Abbasi admitted she had lied to the immigration officer and agreed to the use of false documents. She had done this in order to come to Australia where she could get married and have a better life. She agreed that a previous application to come to Australia had been rejected. She denied having no intention to marry Mr Mawlanazada. She answered questions to match the information already written by Mr Mawlanazada's family in forms so that her application would be processed faster and she could go to Australia sooner. Lying was not her decision but theirs. She did not feel she had any power to disagree with Mr Mawlanazada's sisters. If she had not co-operated all of his family would have been made out to be liars.
70. Ms Abbasi denied going through a marriage ceremony in Pakistan. A few days before she left Pakistan a small party was held at her house in Peshawar. It was paid for her by her brother, whereas a wedding would be paid for by the groom's family. She wore a red dress, whereas for her wedding she would wear white. Only one brother was on the video. Ms Latif and Ms Kazemi were lying when they said they said seen all three of her brothers on it, as the other two were missing at that time.
71. She came to Australia with one of Mr Mawlanazada's sisters and her family. At Canberra airport they were greeted by the Saikals, Mr Mawlanazada and Mr Mawlanazada's sister and brother-in-law. She had not seen Mrs Saikal for 20 years and had never met Mr Saikal. She did not know anything at that time about the Assurance of Support Mr Saikal had signed.
72. She stayed at the Saikals' house rather than Mr Mawlanazada's because she was not yet married. She was to be married a week after her arrival in Canberra. However she described the idea of being married by an imam at the mosque as "shocking" because traditionally the marriage should have taken place at a reception. She was surprised that Mr Mawlanazada considered they were married and never regarded herself as married. The Nikah Nama was a fake because the bride and groom had not both been there. Ms Abbasi later acknowledged that marriage by proxy was possible, but only if both parties and their families were happy and the bride and groom had seen each other.
73. On the day she arrived in Canberra she went to lunch at the house of Mr Mawlanazada's mother, who was ill. This was an ordinary lunch not a party. She did not talk to Mr Mawlanazada privately. He came to see her once or twice at the Saikals' house because she was feeling ill. Their only private conversation was three or four days after her arrival at a shopping centre.
74. Ms Abbasi considered Mr Mawlanazada's behaviour and speaking abnormal. His laughter was delayed and his gait was abnormal. He had eye problems. She discovered that he was not a doctor but unemployed, and that he was not allowed to have a driver's licence because he was ill. In evidence she described him as "plain" and "retarded". She decided she did not want to marry him, and told him so at the shopping centre. He reacted by pleading with her to marry him, but she said she wanted to return to Pakistan. She also told the Saikals the same day, who initially thought she was joking.
75. She had about six hours of personal contact with Mr Mawlanazada before deciding she did not want to marry him. If she had met him in Pakistan she would have reached the same conclusion. She had wanted to meet him in Pakistan, but his family had said he was studying and could not come. However in re-examination Ms Abbasi said that it was her older brother's opinion that was crucial. Even if she had changed her mind she would have to follow her brother's wishes. Conversely the marriage could not have gone ahead without his approval.
76. Mr Saikal told Mr Mawlanazada's relatives the news by phone. Mr Mawlanazada's sister and brother-in-law then came to the house and argued with her, accusing her of misusing them and threatening to send her back to Pakistan. A week or 10 days after her arrival she left Canberra for Melbourne with Ms Latif, because Mr Saikal was worried about Mr Mawlanazada's relatives coming to the house and fighting.
77. She stayed at Ms Latif's house for about one-and-a-half months. She shared Ms Latif's bedroom. Her own belongings were limited to $100, clothing and some other items. She did not have her original passport because Mr Saikal had taken it and given it to Mr Mawlanazada. Initially her stay was pleasant, but Mr Saikal began ringing every night. Ms Latif's behaviour would change after these calls and she would say Mr Saikal was upset, swearing and yelling.
78. One day Ms Latif came to her holding something in her hand. Ms Latif said it was a letter from a man called Farooq Qubat, but did not show it to Ms Abbasi or read the letter out. Ms Latif's son and daughter-in-law were also present. Ms Latif had previously said letters would be faked to dishonour Ms Abbasi so that the rest of the family would not be dishonoured. She now said this letter could be shown as the reason for Ms Abbasi not marrying and that it would be sent to their relatives in America. Ms Abbasi believed they were trying to lay the blame for the marriage not proceeding on her rather than on Mr Mawlanazada's illness.
79. One night she went to the Hakimis' house for a visit. At one point in her evidence Ms Abbasi said the Hakimis were distant relatives, but later said that Qudsia Hakimi was not a relative. The next day Ms Latif, her son and Ms Kazemi came and accused her of stealing $300 and told her not to return. Nothing was said about a letter. The day after that she went back and Ms Latif threw her belongings out. She spent about one-and-a-half months living with the Hakimis, but Ms Latif and Ms Kazemi kept coming and telling the Hakimis to throw her out. She cried constantly and the Hakimis were also upset.
80. She was introduced to the Hanover Women's Centre by the Migrant Resource Centre. At the time she only had $80 and was not receiving the help she expected from her cousins in Melbourne, Ms Latif's sons. Hanover provided her with a room free of charge, and also food and food vouchers.
81. She applied for special benefit on 25 November 1999. She agreed that a short time before this the existence of Mr Saikal's Assurance of Support had been discussed and how she might access it (T3). When her application was rejected she was told the reasons for this, including that Centrelink considered there was no valid reason for her to refuse help from Mr Saikal (T8). She was also told she could apply again if Mr Saikal stopped supporting her.
82. Ms Abbasi recalled a further interview with a social worker on 23 February 2000 (T15). She was told by the social worker that it was reasonable for her to accept Mr Saikal's assistance and therefore her claim for special benefit would be rejected.
83. She did not consider going back to Canberra as she did not know anyone there who could help. The Saikals had previously been unable to help. She was also happier living in Melbourne as she was familiar with the city and there was no-one to accuse her of having done things. The pressure on her to marry Mr Mawlanazada only stopped once she was living by herself.
84. In about June 2000 Ms Latif called relatives in Sydney, America and Pakistan and accused Ms Abbasi of having a relationship with a social worker in Melbourne named Farooq Mirraniy. This was also untrue.
85. Ms Abbasi wrote a "bad" letter to her cousin in America because Ms Latif and her daughters had been saying bad things about her. She wanted them to know what it was like to have bad things said about them. She did not send a copy to anyone else. She was surprised to discover about a year later that Mr Saikal knew about the letter. She denied writing the letter in order to create a dispute, to demonstrate her circumstances had changed and enhance her chances of receiving special benefit.
86. She was invited to a function in Werribee by friends in early 2001. At the time she felt lonely. She had not known Ms Latif or Ms Kazemi would be there. Ms Kazemi started taking a video of her specifically and following her around. Other women stopped Ms Kazemi, saying they did not want to be filmed.
87. Mr Saikal phoned her once at Hanover asking to meet her. He called her several times in June or July 2001, which surprised her as she had not given him her phone number. He wanted her to live in Canberra or with Ms Latif. He made an offer for her to live at the Saikals' house and receive food and board plus $50 a month, which she rejected. He did not inform her of any job offers. She was not aware of any of the job or accommodation offers in exhibits A4 to A10 and did not know the people who made these offers
88. He also wanted her to tell her solicitor she did not wish to go ahead with the current matter, as he could not afford to pay. He said he would send two pages for her to sign and give to her solicitor. She agreed to at least take the letters, which she received at a hospital from Ms Kazemi. Ms Kazemi had also found Ms Abbasi's house without being given the address. Ms Abbasi was upset and went to court to stop the unwanted phone calls and visits.
89. Ms Abbasi gave evidence she had believed she was not entitled to work in Australia until given permission by the Department of Immigration. She had believed this at the time of making an application for Asylum Seeker Assistance in April 2000 and made a statutory declaration to this effect (part of Exhibit A22). She wanted to work, but did not tell her lawyers or social workers this. She wanted to learn English first. Her goal in studying English was to find a job.
90. She received Asylum Seeker Assistance - a fortnightly payment of about $350 - from the Red Cross from 16 May 2000 to November 2000. This assistance ceased when she was granted a protection visa.
Ms Megan Mahon
91. Ms Mahon gave brief evidence in relation to her witness statement (Exhibit S9). She had met Ms Abbasi in her first week of working at Hanover Womens' Service in June 2000. In the time since then Ms Abbasi had obtained long-term housing, had improved her English and appeared more confident.
92. She had believed that Ms Abbasi did not have permission to work on the basis of a letter from the Red Cross in December 1999. She had assumed the letter was correct and was surprised to learn at the hearing that Ms Abbasi had actually had permission to work at that time.
SUBMISSIONS
Mr Saikal's submissions
93. Mr Lombard for Mr Saikal submitted that Ms Abbasi had not suffered a change of circumstances beyond her control. On the contrary she had created the circumstances herself. She was not unaware that she was already married to Mr Mawlanazada
"Therefore, instead of being an innocent victim of a scheme conceived and arranged by others she is entirely responsible for the events which have taken place."
Her claim that she was obliged to obey the instructions of Mr Mawlanazada's sisters was an attempt to construct a persona that might assist her case, which stood in contrast to her clear ability to leave the marriage only a few days after arriving in Australia and to write the "abusive letter" (Exhibit A18).
94. Mr Lombard submitted that Ms Abbasi had also been fully aware of her husband's mental condition before arriving in Australia, having exchanged letters with him and spoken to him on the phone. His low intellect was readily evident. She also had not provided any explanation as to why she chose to stay in Australia rather than immediately returning to her family in Pakistan when the marriage was abandoned.
95. The evidence also did not support the view that Ms Abbasi was unable to obtain a sufficient livelihood for the purposes of section 729(2)(e) of the Act. She had conceded that she was not looking for work during the relevant period and would not be looking for work until her education was complete. Rather she was claiming it would not have been reasonable for her to accept support through Mr Saikal's household, friends or family members.
96. Mr Lombard submitted that Ms Abbasi's credibility was questionable
"The Second Respondent is claiming effectively that six letters tendered in evidence are fabrications, and that all the Applicant's witnesses are lying. She has acknowledged significant fabrications in her spouse visa application, and circumstances relating to her SB application, and her protection visa application and ASA application also appear to involve fabrications, although the extent to which she was the author of those fabrications is denied. The spouse visa fabrications are acknowledged, but claimed to be the result of influence from Shoab's sisters. The SSAT was never informed of the extent of her receipt of Asylum Seeker Assistance... Having been prepared at the outset of her migration application to lie to her advantage, her subsequent statements must be evaluated with extreme caution."
The Secretary's submissions
97. Mr Leerdam for the Secretary submitted that the central issue to be determined was payability under section 739A, and in particular whether Ms Abbasi had suffered a substantial change in circumstances beyond her control. This test had both a subjective and objective component (Re Chelechkov and Department of Social Security (1998) 26 AAR 321 at 333).
98. Rather than being outside her control, however, Ms Abbasi had deliberately engineered circumstances before her arrival in Australia. Her Statement of Facts and Contentions (Exhibit S1) made a disingenuous attempt to characterise her as a single, independent migrant who would be sponsored by Mr Saikal and only consider the option of marriage after her arrival. On the other hand she said in evidence that she knew she was granted a spouse visa, admitted lying at her immigration interview to convince the officer that she was in a genuine marital relationship and said she had allowed a supposedly bogus document to be used to prove the non-existent marriage existed. As to the suggestion that she had been coerced into this deception by her in-laws, the abusive letter which she acknowledged writing (Exhibit A18) dispelled any thought that she was sensitive to the way in which her relatives let alone her in-laws would be perceived if she failed to follow their directions.
99. Mr Leerdam submitted it was more likely that Ms Abbasi had considered the marriage to be legally binding but had no intention of continuing it after her arrival in Australia. Having previously been unsuccessful in applying to migrate to Australia, she agreed to the marriage because it provided an opportunity to obtain a visa. She already had a boyfriend in Pakistan whose existence was confirmed when a letter from him was received and accidentally opened.
100. Mr Leerdam submitted it was clear that Ms Abbasi would lie to suit her purposes and that the Tribunal should place no weight on her evidence unless it could be independently corroborated. Before the Tribunal she denied authorship of letters to Mr Mawlanazada (Exhibits A11 to A14) because they would show she had known he was unemployed. She was unable to satisfactorily explain how Mr Mawlanazada's unemployed status had appeared in a record of her interview with an immigration officer.
101. When Ms Abbasi's application for Special Benefit was rejected she was twice told that she could reapply if her circumstances changed. Mr Leerdam submitted that the abusive letter (Exhibit A18) was sent to family members in an effort to sever any possibility that she could rely on Mr Saikal or other family members for support. The evidence of the family that they continued a cordial, albeit strained, relationship with Ms Abbasi prior to receipt of this letter should be accepted.
102. Mr Leerdam summarised his submissions on section 739A(7) of the Act by addressing the elements of the section
"18. Firstly, the Second Respondent could not, as a matter of logic, argue that her circumstances had changed, if in fact she had planned this outcome all along. Her intention was to obtain a visa by deceit, on the basis that she was genuinely married, and to announce her true intentions after arrival in Australia. It was also reasonably foreseeable that the relationship with her relatives, particularly the Applicant, would suffer as a result.
19. Secondly, the Second Respondent agreed in cross-examination that if she had insisted on meeting Mr Mawlanazada for just 6 hours in Pakistan before arriving in Australia, she would have decided not to go ahead with the marriage. Her reasons for choosing not to do so have nothing to do with the claimed fear of her in-laws (she demonstrates no fear towards any of her relatives) but rather her intention to commit a fraud. It must also be clear that she could have chosen not to lie to DIMIA officials at interview but chose to do so in order to maximise her chances of gaining entry to Australia.
20. In effect, she has agreed that these circumstances were not beyond her control...
21. Thirdly, the Second Respondent cannot demonstrate that she has "suffered" any adverse change in her circumstances if she planned, and then succeeded in getting out of the marriage.
22. This is the clearest and most likely picture emerging from the evidence. The Second Respondent lied to DIMIA from the start. She had no intention of continuing with the marriage in Australia. Her aim was to come to Australia to achieve permanent residency and, at some time in the future, reunite with Farouk Qabat.
23. Even without making any findings as to her motivation, the Second Respondent is not entitled to special benefits. She recklessly lied to the DIMIA (sic) in order to procure a visa to come to Australia. By definition, her reckless indifference to the consequences means that these were not circumstances beyond her control."
103. Mr Leerdam also made brief submissions that the discretion under section 729(2) ought not in any case be exercised in Ms Abbasi's favour. It was reasonable for her to rely on the assistance of her family during the period in question. She was also paid substantial Asylum Seeker Assistance during that period. More importantly, as a matter of public policy the discretion should not be exercised in favour of someone who had committed fraud to obtain entry to Australia.
Ms Abbasi's submissions
104. Mr de Zilwa for Ms Abbasi submitted that Mr Saikal had a closer relationship with Mr Mawlanazada and his family than with Ms Abbasi. He agreed to be Ms Abbasi's assurer of support at the request of Mr Mawlanazada's family. Therefore the Assurance of Support could be characterised as an obligation he assumed towards Mr Mawlanazada and his relatives.
105. The allegation that Ms Abbasi had told Mr Saikal and Mr Mawlanazada she had an affair with someone in Pakistan was not credible. It was improbable she had made these statements to people she had only met in the last few days when they were demeaning according to her own cultural, moral and religious values. The allegation was more probably made in an attempt to save face, particularly for Mr Mawlanazada.
106. Mr de Zilwa submitted that great pressure was placed upon Ms Abbasi to marry by those she was most dependent upon when she was in a vulnerable position. Her decision not to marry was not well received. She moved to Melbourne to escape the antagonism she experienced in Canberra. Other examples of the pressure applied were the phone calls by Mr Saikal that led Ms Abbasi to take out an Intervention Order against him, and his attempts to influence her to withdraw her opposition to his application in this Tribunal.
107. Mr Mawlanazada's evidence before the Tribunal was contradictory and his credibility questionable. The most significant part of his evidence was not the actual state of his health but the fact that this information was kept from Ms Abbasi. She was ignorant of his health and his true personality until meeting him.
108. Mr de Zilwa submitted that the letter written by Ms Abbasi to her cousins in America (Exhibit A18) showed
"[H]ow desperate Ms Abbasi had become because of a lack of family support. It was her way of defending herself from the false and unjust accusations and great pressure to marry Mr Mawlanazada."
The evidence of Ms Kazemi and Ms Latif demonstrated the difficulties and unpleasantness that Ms Abbasi would have had to endure if she had continued living with the family. There was a high expectation that she would marry Mr Mawlanazada.
109. Throughout the immigration process Ms Abbasi was "wholly reliant" on other people. She was told what to do by Mr Mawlanazada's sisters, who represented authority figures to her. Her evidence was that she did not have the power to disagree with them.
110. Mr de Zilwa submitted that Ms Abbasi was qualified to receive Special Benefit
"44. ...For the relevant period Ms Abbasi was not able to receive any other social security benefit and was unable to earn a sufficient livelihood for herself... She was living in emergency accommodation, had no English language or trade skills and possessed no professional or technical qualifications which were recognised in Australia. Because of the circumstances which led to her being in Australia and then feeling she could not proceed with marriage to a man who, on her evidence, bore no resemblance to the personality she had been led to expect, Ms Abbasi was effectively estranged from her family. In her circumstances she was socially isolated and bereft of any other economic support. As a newly arrived resident she was confronted by all of these difficulties, outlined above, which were outside her control.
...
46. It is submitted that Ms Abbasi was confronted with a substantial change in circumstances beyond her control when she met Mr Mawlanazada for the first time... Mr Mawlanazada was not the man he had been made out to be by his relatives. Ms Abbasi was disappointed and felt she had been deceived. That the deception was very much beyond her control is borne out by the fact that in cross-examination Mr Mawlanazada conceded he had not told Ms Abbasi of his mental illness nor did he believe anyone had told her. He knew she had been kept ignorant of this very important fact...
47. Further circumstances beyond her control were the reaction of her relatives to her decision not to marry Mr Mawlanazada. Understandably they were disappointed, but Ms Abbasi could not have foreseen the anger and the hostility which her decision aroused. Ms Abbasi was confronted with this animosity from each of the relatives whom she might otherwise have expected to assist her... All of these things created an unendurable burden on Ms Abbasi who was a young woman in a strange land unable to speak English. All of these things, when taken together, amount to a substantial change in circumstances quite beyond Ms Abbasi's control which led to financial hardship.
48. The alternative would have been for either Ms Abbasi to marry Mr Mawlanazada or to return to Canberra and accept Mr Saikal's support. The former was unfair and unthinkable to her. The latter was made fearful, oppressive and intolerable by the conduct of Mr Saikal...
...
50. It is submitted that the Tribunal should have regard to the fact that Ms Abbasi's expectations of marriage to Mr Mawlanazada were founded upon either wilful concealment of his true condition from her or a misunderstanding of it, such as to represent a substantial change in circumstances within the terms of s.739A(7)...
"
CONSIDERATION OF ISSUES AND FINDINGS
111. The ultimate decision of the Tribunal must address section 729, which is concerned with a person's "qualification" for Special Benefit. Section 729(1) states
"A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period."
However subsection (3) contains a precondition for making a determination under subsection (2)
"The Secretary is not to determine that a special benefit should be granted to a person for a period if the Secretary is satisfied that the benefit is not payable to the person for that period." (emphasis added)
112. Section 732(1)(da) provides one of the reasons that Special Benefit may not be payable: that a person is subject to a newly arrived resident's waiting period under section 739A and that period has not ended. I therefore accept Mr Leerdam's submission, supported by Mr Lombard, that the correct approach in this matter is to first consider the application of section 739A of the Act.
113. It is not in dispute that were it not for the operation of subsection (7), section 739A would impose a waiting period upon Ms Abbasi that would preclude her from receiving benefit between 25 November 1999 (when she applied for Special Benefit) and 27 November 2000 (when she was granted a protection visa and would no longer be entitled to Special Benefit for different reasons). Therefore it is essential to consider the application of subsection (7) which states
"Neither subsection (1) nor (2) apply to a person if the person, in the Secretary's opinion, has suffered a substantial change in circumstances beyond the person's control."
114. As has already been alluded to in setting out Mr Leerdam's submissions, the test of whether someone has suffered a "substantial" change in circumstances has both subjective and objective components. In Re Chelechkov Justice Matthews, then President of the Tribunal, said at 332-3
"The Macquarie Dictionary (Second Edition) defines "substantial", relevantly, to mean "....2. of ample or considerable amount, quality, size etc..."
What is "substantial" in any given case will often depend upon the person from whose viewpoint it is considered. $US1750 was obviously a very large amount of money to the applicants. It represented several months wages, and its payment dissipated their hard earned savings. However as Mr Gibb points out, it is not a large amount in an Australian context. Had the applicants retained this amount it would certainly have postponed the day of destitution, perhaps by a period of a few months, but could never, on its own, have averted it until the end of the waiting period. It was inevitable that, in the absence of additional funds, the applicants' resources would have been depleted during the course of the waiting period, through the payment of normal living expenses.
Mr Gibb's submission, as I understand it, is this. It is assumed that all unsponsored migrants will have with them, when they arrive in Australia, sufficient funds to maintain them for a period of two years. This assumption is consistent with paragraph 14 of the Secretary's guidelines, and, more importantly, with the philosophy underlying the Amendment Act. It follows, according to this reasoning, that a change which causes the loss of any amount less than would be necessary to see a migrant through the remainder of the two year period, cannot be "substantial" under subsection (7). Putting it another way, it is only if the amount lost would have been sufficient to avert destitution within the two year period, not merely to postpone it until later in the period, that there can be a "substantial" change under subsection (7).
There are some superficial attractions in this approach. It creates an objective test as to what is "substantial" under subsection (7) and it accords with the philosophy behind the Amendment Act. In the best of all possible worlds, where prospective migrants are given accurate and realistic information about living in Australia, it may well be an appropriate approach which should be adopted. However the beneficial nature of the legislation requires, in my view, that a less rigid approach be adopted in relation to migrants, such as the applicants, who come to Australia, through no fault of their own, with entirely unrealistic expectations as to the cost of living and the availability of employment here...
The imposition of a two year waiting period for newly arrived residents is predicated upon the assumption that they will be able to maintain themselves from their own resources during this period. So long as prospective residents are given realistic information about what this is likely to involve, and about the extent of the benefits which might be available to them during this period, then the system is capable of operating fairly. In this regard it must be remembered that many migrants, the applicants included, come from countries where the cost of living is very much lower than it is here. To tell them merely that they will need to have the resources to maintain themselves for two years does nothing to prepare them for the reality of life in this country. In the applicants' case, this was compounded by the giving of positively misleading information as to their employment prospects.
...
In my view, the beneficial nature of the Social Security legislation, together with dictates of basic fairness, compel the conclusion that the test of what constitutes a "substantial" change under subsection (7) must have a subjective as well as an objective component. In other words, a change which produces the loss of an amount less than would be required to see a newly arrived resident through the remainder of the two year waiting period might still be "substantial" in certain circumstances. In this case, the applicants clearly regarded the $US1750 which they were required to pay for their airfares as a substantial amount. This, in the circumstances, was a reasonable assessment. They did not believe that it would last for as long as two years, but expected that it would keep them for at least 5 to 6 months and were fully confident of obtaining employment well within that period. These expectations were, as we all now know, quite unrealistic. But they were reasonable at the time, given the applicants' personal circumstances and the advice which they had received. In that context, the amount of $US1750 was a very significant sum. The change in the applicants' circumstances when they were unexpectedly required to outlay this amount can therefore, in my view, be categorised as substantial."
115. Her Honour applied similar reasoning in Re Secara and Secretary, Department of Social Security (1998) 26 AAR 334 at 336
"[I]n my view the difference between a migrant's expectations as to a relevant aspect of life in Australia (such as cost of living, employment prospects or, as here, social security assistance) and the reality of life here is capable of constituting a change in circumstances under subsection (7). The change occurs when a migrant with false expectations as to life in Australia is confronted with, and required to accommodate to, the reality. The circumstances have both a subjective component (the migrant's expectations) and an objective one (the reality of life here). Whether the change is a substantial one will depend upon the facts of each case. Whether it is beyond the control of the migrant will usually depend upon the source of the erroneous belief in the first place. If the migrant's expectation is merely the product of wishful thinking or a failure to make appropriate enquires, then the change which occurs when expectation meet reality is probably not beyond the person's control. However if the migrant's erroneous belief as to life in Australia is the product of misleading, inaccurate or inadequate information received in the country of origin, then the difference between the expectation and the reality might well constitute a change in circumstances beyond the person's control."
See also Re Secretary, Department of Social Security and Fomin (1998) 26 AAR 337 at 339.
116. Her Honour's decision in Re Secara was overturned by the Full Federal Court (Secretary, Department of Social Security v Secara (1998) 89 FCR 151; 51 ALD 481; 28 AAR 385). However it does not appear that the principle expressed by Her Honour was disapproved. Justice Mansfield (with whom Justices von Doussa and O'Loughlin agreed) said at 162-4; 492-4; 397-8
"It is important to bear in mind the provisions of the SS Act, and in particular the context in which s 739A(7) appears. It is that context which will indicate the legislative intention as to what is encompassed within the expression "change in circumstances beyond the person's control". Similar expressions in other legislation do not greatly assist in the proper construction of that clause, precisely because they are found in their different legislative contents...
The intention of the amending Act in introducing the newly arrived resident's waiting period is clear enough. It does not require paraphrasing. Section 739A(7) then is intended to relieve a person recently arrived into Australia from the consequences of the application of that waiting period in certain circumstances... It presupposes a newly arrived person in Australia is in sufficiently needy circumstances as to otherwise qualify, in the case of other Australian residents, for some form of benefit under the SS Act. It then contemplates that something will have happened to that person which, in a practical and realistic sense, that person could do nothing about. It indicates that that which has happened to that person is of sufficient significance to no longer impose upon that person the newly arrived resident's waiting period. Thus, the change in circumstances cannot be the need itself for the benefit under the SS Act, as the possible existence of that need underlies the legislative policy that, for two years, it should not be met by benefits payable under the SS Act. In my judgment, the change in circumstances must be some event or events, not necessarily "external" to the person, which creates that need where it did not previously exist or if it did previously exist where it is no longer appropriate to respond to that need by application of the newly arrived resident's waiting period. There are some circumstances where it is easy to discern its appropriate operation, such as unexpected severe illness, serious accident, or loss of employment. It is clear that in such circumstances the legislative policy is to permit the affected person to pursue benefits under the SS Act before the newly arrived resident's waiting period has expired. Those circumstances will reflect that it is no longer appropriate to oblige the newly arrived person to provide self support for two years. The two elements which the events or matters constituting the changed circumstances must satisfy are first that the events or matters must be "substantial", that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon, and secondly that the events or matters be beyond the person's control.
In identifying eligible events or matters as potentially falling within the description "change in circumstances", in my view there is no clear or useful line necessarily to be drawn between a person's expectations and objective events. That is because, in a practical sense, there may be only a difference of degree between them. An intending migrant may have sought to make arrangements for employment upon arrival within Australia. Those arrangements may result in an enforceable contract of employment, or an offer of employment, or a statement of intention to employ the particular person, or a statement from a particular employer about that employer's intentions to offer employment to the prospective migrant specifically or to a number of persons with the prospective migrant's skills and for which that person would be likely to be accepted for employment. It is possible to envisage a spectrum of certainty or uncertainty, and from the intending migrant's viewpoint, to describe the arrangement as an expectation of employment of greater or less great strength. Like examples could be generated in relation to the arrangements an intending migrant has put in place or negotiated for support from family and friends upon arrival in Australia during the newly arrived resident's waiting period. Similar examples could be generated with respect to other matters. It is unnecessary to do so. Once it is accepted, however, that s 739A(7) is capable of responding to changes in circumstances where the pre-existing circumstance is not a matter of absolute certainty but may be the prospect of something happening in the future, then in my judgment it is not helpful to exclude from qualifying changes in circumstances those which may attract the description "changes in expectations".. I have indicated above that the pre-existing circumstances to which the change occurs need not be truly certain future events. They may include the prospect of something happening in the future. Circumstances may change to make that prospect no longer a real one... Accordingly, I do not think that there is any necessary dividing line to be drawn which necessarily excludes `expectations' from being considered in an appropriate case as providing a foundation for a substantial change in circumstances. In my judgment, the correct proposition is that it will only be by reference to the particular facts and matters pertaining to a particular applicant that it will be possible to determine whether there has been, in terms of s 739A(7), a "change in circumstances" and whether that change is substantial."
117. Ms Abbasi's state of mind, both before and after her arrival in Australia, and her expectations in relation to the prospect of marriage to Mr Mawlanazada are central to the issues in the current matter. Many of the basic facts are not in dispute. For example, Ms Abbasi did not ever live with Mr Mawlanazada as husband and wife. But the motivations and thoughts behind these facts are contested. It is for this reason that so much of the evidence focused on the credibility of the witnesses as they provided the Tribunal with differing versions of the same events.
118. Put broadly, the Tribunal was presented with allegations of two different conspiracies. On the one hand Ms Abbasi is accused of using an offer of marriage as a means to gain entry to Australia. On the other hand various family members are accused of harassing Ms Abbasi to marry and, when this failed, fabricating evidence to create a reason for the marriage's failure. Each of these scenarios is not without a degree of plausibility.
119. I have carefully examined the evidence provided by both Mr Saikal and Ms Abbasi, both written and oral but inevitably focusing on the oral testimony of those involved. Some of the written evidence is clearly of little value. For example Ms Latif, who does not speak English, was entirely unable to recognise her own statutory declaration (Exhibit A28) which was in almost identical terms to that of Ms Kazemi (Exhibit A27).
120. Overall I consider Mr Saikal's witnesses to be credible. In particular Mr Saikal himself and Ms Kazemi both gave evidence in a clear and forthright manner. Their evidence was both internally consistent and consistent with the other evidence before the Tribunal. These witnesses and Ms Latif may have somewhat downplayed the level of tension created by Ms Abbasi's refusal to marry Mr Mawlanazada, but if that is the case I do not think it was a conscious attempt to mislead the Tribunal. The evidence of Mr Saikal, and indeed that of Ms Abbasi, suggests that it was Mr Mawlanazada's relatives who were particularly upset initially at the failure of the marriage. It is probable this would have caused at least some friction between Ms Abbasi and her own relatives.
121. I accept the majority of Mr Mawlanazada's evidence, albeit with some hesitation. In many respects his evidence was corroborated by that of Mr Saikal, and sometimes also by that of Ms Abbasi. My concern relates to his evidence regarding his "mental illness", which was conflicting and did appear to change considerably between cross-examination and re-examination. In a matter where so much reliance was placed on interpreters it is difficult to be certain whether changes in evidence are due to misunderstandings. However the exact nature of Mr Mawlanazada's mental state is not as important as how apparent that mental state was and what others, particularly Ms Abbasi, knew of it, matters which do not depend on Mr Mawlanazada's own testimony.
122. It is Ms Abbasi's evidence that I consider most questionable. I repeat my earlier comment, that it is difficult in a matter where interpreters are used to be certain that changes in evidence are not due to misunderstandings. Nevertheless there were numerous occasions on which Ms Abbasi's evidence altered in small details. She often appeared to be evasive, especially when faced with independent evidence that had the potential to conflict with her own. An example of this was her cross-examination by Mr Leerdam regarding the interview with an immigration officer. At times she reluctantly admitted giving false answers, at others she denied having ever said what appeared in the record of interview. She suggested some of the information came from documents, but neither she nor Mr de Zilwa was able to identify the documents in question. In my view it is inherently unlikely that the immigration officer could have obtained much of the record of interview from documentary sources. It is also unlikely that the officer would have intermingled these pieces of information into the record of interview in the manner implied by Ms Abbasi.
123. Another example of Ms Abbasi's evasiveness was in her cross-examination by Mr Lombard regarding the "Nikah Nama".. She initially claimed to not read Urdu well. Then, when it was pointed out to her that some of the important words on the document were the same in other languages she was more fluent in, she asserted that the document had been folded in such a way as to prevent her from reading it.
124. There are also examples of apparently inconsistent behaviour on Ms Abbasi's part. She claims to have found Mr Saikal's phone calls in June 2001 quite distressing, to the extent that she sought an Intervention Order against him. However Mr Saikal's phone records (Exhibit A17) show that he was able to talk to Ms Abbasi on several nights, each conversation lasting for a considerable time. Furthermore in the course of these conversations Ms Abbasi agreed to receive copies of letters drafted by Mr Saikal.
125. There is also the example, cited by both Mr Lombard and Mr Leerdam, of the apparent inconsistency between Ms Abbasi's claimed inability to resist the fraudulent behaviour of Mr Mawlanazada's relatives in Pakistan and the admittedly graphic and unpleasant letter she wrote to her own relatives (Exhibit A18). Indeed much of her behaviour while in Australia has not suggested a person unable to resist coercion. She has refused attempts to persuade her to move residence on several occasions and has steadfastly maintained her refusal to continue with her marriage to Mr Mawlanazada.
126. There are elements of the conspiracy she alleges against her extended family that seem peculiar on closer examination. For example there is little to be gained by the family in sending copies of the "abusive letter" to each other - on the evidence a year after the original was sent - but accusing Ms Abbasi of sending them. As Mr Leerdam submitted, in the context of an application for Special Benefit there is far more to be gained by Ms Abbasi in sending those copies to emphasise the rift between herself and the rest of the family.
127. In a similar vein it seems implausible that the family would tell her of their intention to create fake letters, actually create one, show it to her but apparently not to any independent witnesses and then destroy it. She is the one person to whom it would be pointless to show a faked letter because she would know it was fake. The version of events put forward by Ms Kazemi and Ms Latif suffers from no such difficulty.
128. As a result I have concluded that I cannot accept Ms Abbasi as a credible witness. I accept Mr Leerdam's submission that where there is conflict between her evidence and that of Mr Saikal's witnesses I should prefer the latter.
129. I also broadly accept Mr Leerdam's submission as to the findings of fact that are appropriate in light of this conclusion regarding Ms Abbasi's evidence. However I do not wish to simply endorse the findings he has suggested.
130. I find that while living in Pakistan Ms Abbasi was acquainted with a man named Farooq Qubat, who was her boyfriend. I find that Ms Abbasi and her immediate family were approached with an offer of marriage to Mr Mawlanazada, who lived in Australia. I find that Ms Abbasi agreed to the marriage, which was to occur in conjunction with an application for migration to Australia. I find that she lied in a number of respects in her interview with an immigration officer in order to improve her chances of obtaining a visa.
131. I am of the view that it is probable that Ms Abbasi had been married to Mr Mawlanazada before she left Pakistan, and that she was aware of this. Nevertheless, I do not think it is necessary to determine whether or not a binding marriage - that is, legally, religiously and culturally - was entered into in Pakistan. The evidence is not sufficiently clear on both Afghan custom and Pakistani law to be certain of this. It is not the objective fact that is important but Ms Abbasi's own subjective intention in regard to the marriage.
132. It is also not necessary to determine conclusively whether Ms Abbasi had already decided before arriving in Australia that she would not continue with the marriage to Mr Mawlanazada. It is conceivable that she had adopted a "wait and see" approach. I am however quite satisfied that she did not arrive in Australia with the firm intention of continuing in her marriage to Mr Mawlanazada. I so find. I also find that within a few days of her arrival she had decided not to continue with the marriage.
133. Regardless of whether she had made this decision in Pakistan or had kept her options open until arriving in Australia, it is possible that Ms Abbasi had prior to her arrival decided that if she did not continue with the marriage she would move to Melbourne. She was aware that she had many more relatives with whom she could stay in Melbourne than in Canberra. She foresaw that refusal to continue with the marriage was likely to cause friction, at the very least with Mr Mawlanazada's relatives and probably with her own, and that remaining in Canberra was likely to be more awkward than creating some distance by living in Melbourne.
134. It follows from the above findings that meeting Mr Mawlanazada, announcing that she did not wish to continue with the marriage and leaving Canberra were not a substantial change of circumstances beyond Ms Abbasi's control. I so find. Even if she had not positively planned this outcome Ms Abbasi had contemplated it as a serious alternative to marriage. She also anticipated that pursuing this course could create a level of hostility towards her. As it was expected in response to her own actions, the existence of any hostility in Canberra or in Melbourne was not a substantial change of circumstances beyond Ms Abbasi's control. I so find.
135. What was arguably not planned nor desired by Ms Abbasi was that her intentions in regard to marriage and immigration to Australia would subsequently be uncovered. That they were was the result of a letter from Farooq Qubat being opened and read by her aunt and cousins in Melbourne. I find that they confronted Ms Abbasi with this letter, and that Ms Abbasi later removed it from the suitcase where it was kept.
136. From the point of view of Ms Abbasi this revelation was undoubtedly adverse. It may well have increased the tension within the family, at least in the short term. I accept the evidence of Ms Latif that she remained willing to provide accommodation to Ms Abbasi, and that it was Ms Abbasi who chose to move out. I also accept Mr Saikal's evidence that he continued to be willing to make arrangements for Ms Abbasi's support. Nevertheless it is at least plausible that Ms Abbasi herself found the prospect of living with her relatives untenable once they knew of her relationship with Farooq Qubat.
137. In my view, however, this does not represent a change of circumstances beyond her control. It was a direct and natural consequence of her having created a deception in the first place. All that occurred was that the true situation was revealed to those around her. To borrow the language of Justice Matthews in Re Secara, the expectation that she would not be found out was "merely the product of wishful thinking" and not an expectation created by any other person's actions.
138. If I am wrong in that conclusion, I would also find that the change in circumstances was not a "substantial" one. I refer to the previous quotation of Justice Mansfield in SDSS v Secara at paragraph 116 above and in particular the following passage
"[T]he events or matters constituting the changed circumstances... must be "substantial", that is be of sufficient moment as to warrant that the primary self-support obligation imposed for a period of two years should not be insisted upon..."
Given that Ms Abbasi's presence in Australia as, for practical purposes, a single woman with no direct income was the result of her own actions, I do not consider that the uncovering of her true intentions is of sufficient significance in the scheme of things to be described as "substantial".
139. If I should be wrong in that conclusion also there remains for consideration the criteria in section 729 of the Act. It is clear from section 729(2) that regardless of other factors the payment of Special Benefit is discretionary. I accept Mr Leerdam's submission that there is a dominant public policy reason against exercise of the discretion in Ms Abbasi's favour. On the above findings she has participated in deception in order to enter Australia, both of the Australian government and of Mr Mawlanazada's family. It is not appropriate to reward her with financial assistance from the public purse when that deception goes awry.
DECISION
140. The Tribunal sets aside the decision under review and in substitution therefor decides that Ms Sayeda Abbasi does not qualify for the receipt of Special Benefit under the Social Security Act 1991 for the period 25 November 1999 to 27 November 2000.
I certify that the 140 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
............(Trevor Mobbs)......................................
Associate
Date/s of Hearing 29-30 November 2001, 19-21 March 2002
and 15 July 2002
Date of Final Submissions 10 September 2002
Date of Decision 24 April 2003
Representative for the Applicant Mr George Lombard, George Lombard Consultancy Ltd
Solicitor for the 1st Respondent Mr Leonard Leerdam, Sparke Helmore
Counsel for the 2nd Respondent Mr Edward de Zilwa
Solicitor for the 2nd Respondent Ms Elena Totino, Victoria Legal Aid
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/379.html