Tirnova and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 589 (10 August 2010)

Last Updated: 12 August 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0087

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Gonul Tirnova

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 10 August 2010

Place Sydney

Decision

The decision made on 27 November 2006 to cancel family tax benefit is set aside and remitted to the Respondent for reconsideration.

....................[SGD]...................
Senior Member

CATCHWORDS

SOCIAL SECURITY – allowances – Family Tax Benefit – cancellation – provision of notice of cancellation – time limits on review of decisions relating to past payment periods.

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) — ss 109A, 109D, 109E, 142, 224

Acts Interpretation Act 1901 (Cth) — s 29

Evidence Act 1995 (Cth) — s 163

REASONS FOR DECISION

Senior Member A K Britton

1. The applicant, Ms Gonul Tirnova, seeks review of a decision made by Centrelink on 22 May 2006 to cancel her payments of family tax benefit for the 2006/2007 financial year. That decision was affirmed by a Centrelink Authorised Review Officer and subsequently by the Social Security Appeals Tribunal (SSAT).
2. Ms Tirnova had been in receipt of Family Tax Benefit (FTB) for some indeterminate period prior to May 2006.
3. On 10 May 2006, Ms Tirnova provided Centrelink with an updated estimate of her income for the 2006/2007 financial year. Centrelink recorded the estimate as being $470,000 for Ms Tirnova and $40,000 for her partner. It is agreed that the estimate provided by Ms Tirnova was $47,000, not $470,000, and that it had been incorrectly recorded by Centrelink.
4. According to Ms Tirnova, she provided Centrelink with revised income estimates because she was concerned that her overtime income might place her over the “threshold amount” — the maximum amount of family income that can be earned before FTB becomes not payable.
5. Centrelink asserts that Ms Tirnova was notified by letter dated 22 June 2006 that her FTB payments had been cancelled on the grounds that her estimated family income exceeded the threshold amount. The purported notice advised Ms Tirnova to check her entitlement with Centrelink at the end of the financial year, when her actual income would be known. It also informed her that she could request a review of the cancellation decision but must do so within 52 weeks.
6. Ms Tirnova testified in these proceedings and before the SSAT that she has no recollection of receiving that letter. In these proceedings, she claimed that had she been notified of the decision, she would have sought review due to its significant impact on her family’s income. She also claimed that she was not aware of any mail going astray from her address.
7. On 18 November 2009, Ms Tirnova contacted Centrelink and queried why she had not been paid FTB for the 2006/2007 financial year. She said she had assumed she had not been paid FTB for that period because her income exceeded the threshold amount. The Centrelink officer who spoke to Ms Tirnova made a file note recording that Ms Tirnova stated that she was unaware that her FTB payments had been cancelled.
8. Ms Tirnova sought review of the decision to cancel her FTB for the 2006/2007 financial year without success.
9. Ms Tirnova was subsequently back-paid FTB for the 2007/2008 and the 2008/2009 financial years, but not for the 2006/2007 financial year.

LEGISLATION

10. Section 109A of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act) empowers the Secretary to review a decision made under that Act, including the decision made in May 2006 to cancel Ms Tirnova’s FTB. By virtue of s 142 of the Administration Act, the powers of the Secretary on review under s 109A are exercisable by this Tribunal.
11. Section 109D of the Administration Act sets out time limits for seeking review under s 109A:

Certain applications to be made within 52 weeks of notification of decision
(1)  Subject to this section, an application for review under subsection 109A(1) of any decision (other than an excepted decision) must be made no later than 52 weeks after the applicant is notified of the decision concerned.
Exception--Secretary may extend time limits in special circumstances
(2)  The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under subsection 109A(1) for review of a decision (other than an excepted decision) within the 52 weeks mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the Secretary determines to be appropriate.

Subsection (3) sets out a number of further exceptions to the time limit in s 109D(1). None are presently relevant.

12. Section 109E of the Administration Act governs the date of effect of certain decisions relating to the payment of FTB. It provides as follows:

(1)  If:
                     (a)  a person applies to the Secretary, under subsection 109A(1), for review of a decision (the original decision ) relating to the payment to the person of family tax benefit by instalment; and
                     (b)  the application is made more than 52 weeks after the person was given notice of the original decision; and
                     (c)  the Secretary or an authorised review officer decides, under subsection 109A(2), to vary the original decision or to set aside the original decision and substitute a new decision; and
                     (d)  the decision of the Secretary or authorised review officer (the review decision ) will have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment;
the date of effect of the review decision is:
                     (e)  unless paragraph (f) applies--the date that would give full effect to the review decision; or
                      (f)  if the date referred to in paragraph (e) is earlier than the first day of the income year before the income year in which the application was made--that first day.
(2)  The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under subsection 109A(1) for review of the original decision within 52 weeks, determine that subsection (1) applies as if the reference to 52 weeks were a reference to such longer period as the Secretary determines to be appropriate.

DID MS TIRNOVA RECEIVE NOTICE OF THE DECISION TO CANCEL FAMILY TAX BENEFIT?

13. The first issue to be decided is whether, as asserted by Centrelink, Ms Tirnova received notice of the decision to cancel payment of FTB in June 2006.
14. Centrelink contends that by the combined operation of the Administration Act and the Acts Interpretation Act 1901 (Cth), Ms Tirnova is deemed to have received the cancellation notice. Section 224 of the Administration Act provides:

Notice of decisions
(1) If a notice of a decision of an officer:

(a) affecting a person's entitlement to be paid family assistance under the family assistance law; or
...
is:
...
(f) sent by prepaid post to the address of the person last know to the Secretary;

notice of the decision is taken, for the purposes of the family assistance law, to have been given to the person.

(2)  Notice of a decision of an officer affecting or about a matter referred to in paragraph (1)(a), (b), (c) or (ca) may be given to a person by properly addressing, prepaying and posting the document as a letter.
             (3)  If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.

15. The effect of these provisions is that where notice is given by way of pre-paid post, it is deemed to have been given on the date the notice would ordinarily be taken to have been delivered, unless the addressee of the notice proves on the balance of probabilities that notice has not been received.
16. Section 29 of the Acts Interpretation Act provides:

Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2) This Section does not affect the operation of Section 160 of the Evidence Act 1995.

(Section 160 of the Evidence Act raises a rebuttable statutory presumption that a pre-paid letter is delivered by the fourth working day after being posted.)

17. Before this Tribunal and the SSAT, Ms Tirnova stated that she did not receive written or oral notification of the decision to cancel payment of FTB made on 22 June 2006.
18. Centrelink contends that the document found at T5 of the section 37 [Administrative Appeals Tribunal Act 1975 (Cth)] documents is evidence that s 224(1)(f) of the Administration Act was satisfied that is, that a notice of the cancellation decision was sent to Ms Tirnova’s address. No other evidence that the document was sent by prepaid post to Ms Tirnova’s address was provided.
19. Some comments should be made about this document. Firstly, the original letter has, obviously, not been produced in evidence. Neither, however, has a copy. Document T5 is a printout of computer data which contains the contents of the alleged notice, along with what appears to be a significant amount of computer coding. It falls far short of being an actual copy of the correspondence allegedly sent to Ms Tirnova. While the common law “best evidence” rule was abolished under the Evidence Act 1995 (Cth) (the Evidence Act) and the Tribunal is not bound, in any event, by the rules of evidence, a copy of the original letter sent would be significantly more persuasive evidence than a printout of the contents of a Centrelink precedent letter with Ms Tirnova’s particulars inserted. The printout proves that those particulars were entered into a computer. The absence of a file copy of the letter purportedly sent to Ms Tirnova, however, leaves open the question whether a letter was ever printed off the computer, let alone sent.
20. Secondly, it is not apparent from the face of the document that it was dispatched by prepaid mail to Ms Tirnova’s address. There is nothing on the face of the document to indicate that it was sent by prepaid post. No prepaid postal receipt, sticker, or a photocopy of such, is attached. Nor is there any affidavit of service: see s 181 of the Evidence Act.
21. Section 163(1) of the Evidence Act provides:

(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

22. While, as noted, the rules of evidence do not apply, it is the Tribunal’s practice to take into account relevant evidentiary rules insofar as it is fair and useful to do so. Section 163 has obvious application in these circumstances. The threshold difficulty that T5 raises is whether or not a letter was ever, in fact, printed off. Even if, for argument’s sake, it is accepted that it may have been, the further question arises whether Ms Tirnova has adduced evidence “sufficient to raise doubt” about the posting of the letter or its receipt.
23. Thirdly, Centrelink has not provided the Tribunal with any evidence about its business practices of dispatching notices of this type once a cancellation decision has been made. The evidence adduced by the respondent appears to assume that the fact that T5 exists raises the statutory presumptions and negatives the evidence adduced by Ms Tirnova. In fact, it must be doubted whether it even meets the threshold test of proving that a letter was ever produced and sent, let alone received by Ms Tirnova.
24. Fourth, although no doubt most postal articles received by Australia Post for delivery are in fact delivered, it is a matter of common knowledge that some articles go astray. Articles may, probably in very small numbers of cases, be stolen. It is a matter of common knowledge that many people in the community have had the experience of receiving wrongly-delivered or wrongly-addressed postal articles or having articles they are expecting not arrive. The existence of T5 does little to negative that possibility in this case.
25. Perhaps even more telling is that for Ms Tirnova, the money that she and her family were expecting to receive by way of FTB was financially significant for them. It seems highly unlikely that had she received notice of cancellation she would not have queried this. Furthermore, her testimony of having no recollection of receiving the notice is consistent with the file note made by the Centrelink officer, following, on her account, her first learning of the cancellation. I accept her evidence on this point.
26. In these circumstances, I cannot be satisfied, on the balance of probabilities, that notice of the May 2006 decision to cancel Ms Tirnova’s FTB payments was provided in accordance with s 224 of the Administration Act. I am also satisfied on the balance of probabilities that if the rebuttable statutory presumption has been triggered, Ms Tirnova has discharged her onus of proof. I note that no evidence that she received the notice by some other means has been provided.
27. As I am not satisfied that Ms Tirnova was notified of the cancellation decision, the 52 week time limit for seeking review stipulated in s 109D(1) did not begin to run against her until she was notified of the decision in November 2009. Her application for review was therefore not out of time, and the decision made on 22 June 2006 to cancel FTB for the 2006/2007 financial year can be reviewed.

REVIEW OF DECISION

28. Centrelink has recently provided the Tribunal with information about Ms Tirnova’s income for the financial year 2006/2007, and contends that it reveals that had her eligibility for FTB been correctly calculated, she would nonetheless have been ineligible for FTB for that period as her taxable income, combined with that of her partner, exceeded the threshold amount.
29. Ms Tirnova has not had the opportunity to comment on those figures which were provided after the hearing had concluded. I have therefore decided to remit the matter to the respondent for reconsideration. I recommend that Ms Tirnova be consulted about the accuracy of those figures before any decision is made.
    

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ..............................[SGD]..........................................

Associate to Senior Member Britton

Date of Hearing: 7 May 2010

Date of Last Submissions: 3 August 2010

Date of Decision: 10 August 2010

The applicant was self-represented.

Representative for the Respondent: Centrelink Advocacy Branch