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Al-Abier and Anor and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 78 (10 February 2011)

Last Updated: 11 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4798

) 2009/5280

GENERAL ADMINISTRATIVE DIVISION
)

Re
MARIAM AL-ABIER

Applicant
Re
DIAA AL-HASNAWY

Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal
Deputy President S D Hotop

Date 10 February 2011

Place Perth

Decision
The Tribunal:
Application No 2009/4798
  • affirms the decision under review;
Application No 2009/5280
  • affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – member of a couple – applicants married in 1998 – applicants received parenting payment on basis that not members of a couple in period 2004-2008 (relevant period) – applicants not living separately and apart from each other on permanent or indefinite basis in relevant period – applicants members of a couple for whole of relevant period – applicants received overpayments of parenting payment in relevant period – debts due by applicants to Commonwealth – debts cannot be waived – debts cannot be written off – debts recoverable in full – decisions under review affirmed


Social Security Act 1991 (Cth), s 4(2), s 4(3), s 1223, s 1236 and s 1237AAD


REASONS FOR DECISION


10 February 2011
Deputy President S D Hotop

INTRODUCTION

  1. Mariam Al-Abier (“Ms Al-Abier”) received parenting payment under the Social Security Act 1991 (Cth) (“the Act”) in the period from 28 September 2004 to 1 December 2008 on the basis that she was not a “member of a couple”, for the purposes of the Act, in that period.
  2. Diaa Al-Hasnawy (“Mr Al-Hasnawy”) received parenting payment under the Act in the period from 28 September 2004 to 28 November 2008 on the basis that he was not a “member of a couple”, for the purposes of the Act, in that period.
  3. On 14 May 2009 a Centrelink authorised review officer (”ARO”) decided that Mr Al-Hasnawy was a “member of a couple”, for the purposes of the Act, for the whole of the period from 28 September 2004 to 28 November 2008 on the basis that he was not “living separately and apart from” Ms Al-Abier (to whom he was legally married) “on a permanent or indefinite basis” in that period. On 15 May 2009 the ARO made a similar decision in respect of Ms Al-Abier. The ARO decided that Ms Al-Abier had been overpaid parenting payment in the period from 28 September 2004 to 1 December 2008, and that Mr Al-Hasnawy had been overpaid parenting payment in the period from 28 September 2004 to 28 November 2008, and that the full amount of the relevant overpayment should be recovered from each of them.
  4. On 15 September 2009 the Social Security Appeals Tribunal (“SSAT”) affirmed each of the abovementioned decisions of the ARO.
  5. On 8 October 2009 this Tribunal received an application for review of the relevant SSAT decision by each of Ms Al-Abier (Application No 2009/4798) and Mr Al-Hasnawy (Application No 2009/5280).

THE ISSUES AND THE TRIBUNAL’S DETERMINATION

  1. The primary issue for the Tribunal’s determination is whether Mr Al-Hasnawy and Ms Al-Abier were “members of a couple”, for the purposes of the Act, in the period from 28 September 2004 to 1 December 2008 (“the relevant period”). If the Tribunal determines that they were “members of a couple” in that period and that each of them was overpaid parenting payment in that period, another issue will arise, namely, whether the amount of the relevant overpayment should be recovered from each of them.
  2. For the reasons which follow, the Tribunal has determined that:

THE RELEVANT LEGISLATION: “MEMBER OF A COUPLE”

  1. The phrase “member of a couple” is relevantly defined in s 4 of the Act (as in force at all material times) as follows:
“ 4(1) In this Act, unless the contrary intention appears:
...
member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);
...
Member of a couple—general
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
...
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) ... the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship.”

THE EVIDENCE

  1. The evidence before the Tribunal comprised:

THE FACTUAL BACKGROUND

  1. Mr Al-Hasnawy was born in Iraq in September 1972 and Ms Al-Abier was born in Syria in February 1972.
  2. Mr Al-Hasnawy arrived in Australia in May 1997 and was granted a Protection visa.
  3. In August 1998 Mr Al-Hasnawy travelled to Syria and he married Ms Al-Abier there in October 1998.
  4. Mr Al-Hasnawy returned to Australia in November 1998 and Ms Al-Abier joined him in Australia about six months later.
  5. In February 2001 Mr Al-Hasnawy’s and Ms Al-Abier’s first child was born, and Mr Al-Hasnawy then claimed family tax benefit. (T4)
  6. In January 2003 Mr Al-Hasnawy’s and Ms Al-Abier’s second child was born, and Ms Al-Abier then claimed family tax benefit. In the claim form Ms Al-Abier indicated that she and Mr Al-Hasnawy were living at the same address in Albert Street, Osborne Park. (T6)
  7. In November 2003 Mr Al-Hasnawy purchased a property in Meadowview Drive, Ballajura, and he, Ms Al-Abier and their two children commenced to reside there in January 2004.
  8. On 21 September 2004 Mr Al-Hasnawy claimed family tax benefit. In the claim form he:

A contemporaneous Centrelink record states that, on 21 September 2004, Mr Al-Hasnawy informed Centrelink that he separated from his “ex-partner” on 1 September 2004 and that he has care of one of their children and his “ex-partner” has care of the other child. (T55, p 1289)

  1. On 30 September 2004 Ms Al-Abier lodged with Centrelink a “Parenting Payment – Change of marital status : No longer partnered” form in which she indicated that:
  2. On 5 October 2004 Ms Al-Abier lodged with Centrelink a “Claim for Parenting Payment” form in which she indicated that:

As regards her accommodation, she indicated that she lives in a home that she (or her partner) owns and does not pay rent. (T11)

  1. On 12 October 2004 Mr Al-Hasnawy lodged with Centrelink a “Claim for Parenting Payment” form in which he indicated that:

As regards his accommodation, he indicated that he owns his own home but lives somewhere else where he receives free accommodation. (T12)

  1. On 29 April 2005 Mr Al-Hasnawy lodged with Centrelink a “Mod R – Real estate details” form in respect of the property in Meadowview Drive, Ballajura. In that form he:
“My partner Mariam Al-Abier”. (T13)

  1. On 10 October 2008 Mr Al-Hasnawy was interviewed by Brett Dubois, a Centrelink Officer. A statement of that interview, signed by Mr Al-Hasnawy and dated 10 October 2008, is as follows:
“ ...
My name is Diaa Al-Hasnaway (sic). I am 36 years of age and am currently residing at ... Albert Street, Osborne Park WA 6017. The Centrelink Officer Brett Dubois has advised that an allegation has been made against me in relation to living in a marriage like relationship with Jamal Al-Din.
I have resided at ... Albert Street, Osborne Park WA 6017 since late 2005. The electricity was in my name originally and I paid for the bills until sometime early 2006, after this date Ms Al-Din paid for the electricity. We have our own mobile phones and pay our own accounts for this. I do not assist Ms Al-Din with the rent, she pays for this fully herself. I buy my own food, and keep it at her house in the fridge. I will sometimes cook there for myself and my son, however, we normally eat out. I have two cars, one is my taxi which I own and use for employment during peak periods and one is for personal use. I took extra money out on my mortgage to pay for the taxi.
I am still married to my wife and have a continuing sexual relationship. I pay the mortgage for our property at ... Meadowview Road (sic) Ballajura WA 6066 which we purchased sometime in 2003/2004. Sometime late in 2004 my wife and I separated, I moved to ... Albert Street, Osborne Park WA 6017. I can state that for 12 months approximately after separating we were living separate lives, however, after this time we were spending more time together and maintained an ongoing sexual relationship whereby my wife fell pregnant. I continued to reside at ... Albert Street, Osborne Park WA 6017. My wife and I discussed the ongoing decisions required for our children which was done together including the meals the children would eat, schooling and general day to day welfare of the children. I would take ... my son to my wife’s house at ... Meadowview Road (sic), Ballajura WA 6066 and either myself or my wife would take the children to school and one of us would pick the children up.
I commuted between ... Meadowview Road (sic) Ballajura and ... Albert Street, Osborne Park, and would sometimes stay with my wife at the Ballajura address. When I stayed there I would sleep in the master bedroom with my wife, although this was not more than a couple of times a week. I maintained the outside of the house at ... Meadowview Road (sic) Ballajura after separation to assist my wife.
I helped my wife financially at times and have given my wife a secondary card for my Commonwealth Bank Account Visa. If money was to be lent to one another, I would not generally ask for it back. We do not have any joint bank accounts and cannot access each others accounts.
I am currently employed with Homecraft Textiles working 7-8 hours per week and have recently commenced working as a Taxi Driver during the peak periods on weekends for 1 or 2 nights per week not working for more than 10 hours though. Centrelink are aware of my income earnt from both sources of employment.
I would say that due to my wife being ill over the last couple of months that (sic) we have reconciled as a family and will decide after our third child is born whether we will divorce or continue to stay married. It is planned that we will go overseas for her to visit her family, where our situation will be discussed and decided with her family as to whether or not the marriage will end or not (sic).
We do not tell people of our situation and therefore our GP is not aware of our separation, her family knows of our circumstances and my brother knows. It is not discussed outside of these parameters due to our religion and beliefs.
I have been asked what the difference is in our relationship now, to when were (sic) living as a family and can only state that it was different because we were not able to live together.
I have been asked about the purchase of the property at ... Salvon (sic) Road, Gwellup (sic) and can only state that I did not advise of this property originally because I thought that it would affect my payments. I had to take an extra $35000 for a deposit from the family home mortgage, and took the remaining amount as a mortgage from the Challenge Bank. I have not been able to make the repayments myself in relation to this extra mortgage, and my friend who owns Homecraft Textiles has been giving me money to make the repayments into my account this is an arrangement made between us that whatever he has given me I will give him after the sale of ... Meadowview Road (sic), Ballajura.
I have been made aware by Brett Dubois that I may be incurring an overpayment of Parenting Payment Single from 1st October 2005 til 5 October 2008.
I can state that I contacted Centrelink in relation to me and my wife’s situation at the time and they advised that I would be eligible to claim the Parenting Payment Single.
This statement is true to the best of my knowledge and belief, and am (sic) aware that there are penalties for providing false or misleading information to Centrelink.” (T23, pp 288–290)

  1. On 17 October 2008 Mr Al-Hasnawy attended a Centrelink office and signed a statement whose contents are as follows:
“ My name is Diaa Al-Hasnawy
I live at ... Meadowview Rd (sic)
Ballajura
...
I hereby advise that (sic) the following change to circumstances. I have moved out of ... Albert St Osborne Park where I shared a house with Roufaida Jamal Al-Din. I moved out of this house because after we had completed the living arrangement forms and sent them back to Centrelink stating we are not living together as a married couple and that her child is not mine, Roufaida said she wanted me to move out as she had had enough problems with Centrelink and did not want any more. My wife Mariam Al-Abier is unwell and suffers from severe migraines that are getting worse during her pregnancy of our fourth (sic) child. When she suffers the migraines she is unable to use her arm her leg and her speech is affected as well. She has given me two letters which I have asked to be attached to this statement so that Centrelink will understand that she is too unwell to care for our two girls (sic) that she has in her care full-time and our son when he visits her. She has no family in Australia to move in and help her care for herself and the children. She has asked that I move back in to ... Meadowview Drive Ballajura to care for her and our children until after the baby is born and her migraines are either better or less debilitating. We have been separated since 2005 and when she has had the baby and is well enough we will travel to Syria her place of birth to stay with her family to help sort out our relationship.
We separated because Mariam wanted to return to Syria to her family and because she has qualifications in her country she can find work. I did not wish to return to Iraq or Syria as at that time it was still to (sic) dangerous to return and know I am still not comfortable with the government. I am working weekends as a taxi driver and through the week at Homecraft Textiles. I cannot afford to rent a property for just myself and my son and payment (sic) the mortgage on the Ballajura house. That is why I shared the house with Roufaida as her father and I are friends. I moved out of Osborne Park on the 11/10/08 and stayed in City Motel in Perth for a few nights as Mariam and I could not share the same house as we were fighting again. I want to state that I am not reconciling with Mariam. I will only be staying at Ballajura to care for her and the children until she has the baby and she is well and then we and her family will met (sic) and sort out the formal separation details and if Mariam decides to stay in Syria with our children I will go to Dubai to work and visit my children when I can. After our meeting we may decide to reconcile and stay in Australia. We cannot decide what we may do until Mariam is well.” (T24, pp 291–294)

  1. A letter from Dr Magda Beshay addressed “To whom it may concern”, dated 12 June 2008, states as follows:
“ This is to certify that Mrs Al-Abier is currently sixteen weeks pregnant, her migraines have been getting worse with the progress of her pregnancy, she has been taken by ambulance several times, as gets (sic) very unwell, she has 2 young children, her husband needs to stay next to her to take over her care, and take care of their two young children.” (T24, p 295)

A letter from Dr J Graham of King Edward Memorial Hospital for Women addressed “To whom it may concern”, dated 30 September 2008, states as follows:


“ This letter is to certify that Mariam Al-Abier is a patient receiving out-patient care at this hospital.
She may require at home assistance on some days by a carer.” (T24, p 296)

  1. In November 2008 Ms Al-Abier gave birth to a baby girl. On the child’s birth certificate, Mr Al-Hasnawy is named as the father. (T27, p 304)
  2. On 26 November 2008 Ms Al-Abier lodged with Centrelink a “Newborn Child – Claim for Family Assistance and Medicare” form. T26)
  3. A Centrelink record, dated 26 November 2008, states that Ms Al-Abier advised that she is “partnered”. (T55, p 1225)
  4. A Centrelink record, dated 8 December 2008, states that on that date Mr Al-Hasnawy informed a Centrelink officer that he was “in a marriage like relationship”. (T55, p 1265)
  5. On 19 December 2008 Ms Al-Abier claimed disability support pension. In the claim form she indicated that:

In an accompanying medical report, dated 18 December 2008, Dr Julie Copeman indicated that:

  1. On 7 January 2009 Mr Al-Hasnawy lodged with Centrelink a “Claim for Carer Payment and/or Carer Allowance” form, dated 2 December 2008, in which he indicated that:

THE EVIDENCE OF DIAA AL-HASNAWY

  1. Mr Al-Hasnawy’s oral evidence-in-chief may be summarised as follows:
  2. As regards his present financial position, Mr Al Hasnawy said that:
  3. As regards his interview with Centrelink officer Brett Dubois on 10 October 2008 (see paragraph 22 above), Mr Al-Hasnawy said that he regarded Mr Dubois’ attitude as racist and that Mr Dubois called him a liar. He said he then took all the paper, threw it away and left the interview room. He said that the woman who had been taking notes came after him, apologised to him and asked him to finish the interview and sign the statement. He said that he was then “really, really angry” and was “shaking” and Mr Dubois was also “really angry” and it was almost at a stage where there would be “physical fighting” between them, so he just asked the woman where he should sign, and he signed wherever she wanted him to and he then left the office. Asked whether he had read what he signed, he responded:
“No, not at all.”

  1. Mr Al-Hasnawy said that certain parts of the statement of that interview are incorrect. In particular:
  2. In cross-examination Mr Al-Hasnawy gave evidence to the following effect:
  3. Mr Al-Hasnawy was referred to documents provided to Centrelink by Westpac Bank regarding his application, dated 10 December 2007, for finance for the purchase of the Gwelup property, in which it is stated that he is self-employed on a full-time basis, his annual gross income is $140,000, his base monthly net income is $7,900, and his assets (comprising real and personal property) total $536,556 (see T51, pp 667–675), and he responded that he had not provided that information to Westpac. He said that the only information which he had provided to Westpac was his ABN number. He was asked further questions about Westpac Bank documents but he refused to answer them, despite a direction by the Tribunal that he do so.
  4. Mr Al-Hasnawy acknowledged that he had not informed Centrelink when he purchased the block of land at Gwelup in 2007. He said that, if he sold it and made a profit, he would tell Centrelink and the Taxation Office, but he added:
“If I don’t get anything from it, what the reason to tell anybody?”

  1. Mr Al-Hasnawy was referred to a Centrelink “Income and Assets” form, signed by him and Ms Al-Abier and dated 6 February 2008 (T18), which included details of certain bank accounts but omitted to refer to his two loan accounts with Westpac Bank or to a “Westpac One” account which, as at 6 February 2008, had a credit balance of $16,615.24 (see T51, pp 663–666, 848, 863). He was unable to explain that omission other than to say that he had previously told Centrelink about that.
  2. Mr Al-Hasnawy was also questioned extensively about a series of substantial deposits in his “Westpac One” account totalling approximately $78,000 in the period from September 2006 to December 2007, in addition to the regular deposits in his Westpac home loan account, and his ability to service two substantial loans totalling over $500,000 from December 2007. He was unable satisfactorily to explain those transactions or his ability to service those loans.

THE EVIDENCE OF MARIAM AL-ABIER

  1. Ms Al-Abier confirmed that she had signed a written statement, dated 3 May 2010, for the purpose of this proceeding. That statement (in which Ms Al-Hasnawy is referred to as “the Applicant”) is as follows:
“ ...
  1. I was born on ... February 1972
  2. I am currently engaged in home duties. I am qualified as a school teacher however I am unable to obtain employment due to language difficulties. I am also trained as a language teacher, which can only really be applied in Islamic schools. As the Islamic schools in Western Australia are run by a different denomination of Islam to which I am prescribed (sic) I am unable to obtain employment in the schools here.
  3. I met the Applicant in 1998 when he came to Syria. He was a long time friend of my brother’s.
  4. The Applicant and I knew each other for a few months before we were married in Syria on 2 October 1998.
  5. At the end of November 1998 the Applicant returned to Australia where he had attained permanent residency and I followed him there approximately six months later.
  6. When I first arrived in Australia I was completely shocked at how different the lifestyle was. I found it very hard because I had no family in Australia and also because I was unable to get a job despite having studied a very long time to get my teaching degree.
  7. As I was not very happy the Applicant and I decided to have children to make our lives better.
  8. I suffered two or three miscarriages, I cannot recall, approximately six months apart. The first occurred towards the end of 1999.
  9. I began to suffer extremely bad migraines and other symptoms of depression after my second miscarriage.
  10. I went to see a doctor who suggested that I see a psychologist however I was reluctant to do so as in my culture there is a large stigma attached to mental health disorders and the idea of seeing a counsellor or psychologist.
  11. After my miscarriages I eventually fell pregnant. During my pregnancy my migraines were getting worse to the point that half my body would go numb, I wouldn’t be able to talk and I wouldn’t be able to remember anything from when I had my migraine.
  12. Our first child ... was born on ... February 2001.
  13. I was struggling to handle looking after a small baby, I had no family support and I was still experiencing severe migraines and other symptoms.
  14. At the same time the tension and conflict between myself and the Applicant was increasing.
  15. I therefore decided at the end of 2001 that the Applicant, our son and I should all return to Syria. The Applicant however refused to do so. He is originally from Iraq and was involved in an opposing political party there and he therefore felt it would be unsafe to go back to the region.
  16. My second child to the Applicant ... was born on ... January 2003.
  17. Towards the end of 2003 or the beginning of 2004, I cannot recall precisely when, the Applicant and I purchased the property at ... Meadowview Drive, Ballajura (‘the Ballajura property’). However following our purchase of the property and the birth of our second child the problems between myself and the Applicant continued and remained unresolved.
  18. In an attempt to resolve our issues the Applicant asked members of our community and his relatives, Maad Al-Hasnawy (‘Maad’) and Hahidar Al-Asdi (‘Hahidar’) to speak to us both.
  19. Both Maad and Hahidar came to us on many occasions. They met with me separately and then met with the Applicant. They suggested to the Applicant that he and I separate.
  20. We then all discussed the idea and decided that the Applicant would move out and I would stay in the Ballajura property.
  21. Because I was sick at he time and unable to look after both children, our son ... moved with the Applicant while I took care of our younger child.
  22. The Applicant moved in with Maad into the house that we happened to live in before we purchased our property in Ballajura.
  23. The Applicant undertook to enrol [our son] in Ballajura Primary School, close to the Ballajura property, and also to ensure that I see [him] regularly and that the children see each other regularly.
  24. I went to Centrelink in 2004, a few days after I separated from the Applicant and with help from Hahidar reported that the Applicant and I had in fact separated.
  25. I told Centrelink that the Applicant and I were still married but separated and made a declaration of the same, which was witnessed by Hahidar.
  26. I always told Centrelink everything and told them in honesty. I never hid anything from them.
  27. Centrelink advised me that I should apply for Parenting Payment Single, which I did on the same day.
  28. The arrangement between myself and the Applicant remained the same however my health continued to deteriorate. The Applicant came to assist me on three or four occasions when I was hospitalised, by taking me to the hospital and looking after our children. On these occasions the Applicant stayed at the Ballajura property while I was in hospital.
  29. Towards the end of 2005 my father died and so I returned to Syria for one or two months. My situation at the time was becoming extremely dire, I was very unhappy and constantly ill.
  30. Towards the end of 2006 the Applicant and I had one or two sexual encounters. The problems between us continued however and we had no intention to reunite.
  31. Towards the end of 2007 I phoned the Applicant because again I was very ill and hospitalised. The hospital sent a letter to the Immigration Department asking someone to come from Syria to look after me on a full-time basis. The only option was my mother, who was old and ill herself. The Applicant therefore continued to assist me while I was ill.
  32. In October 2008 the Applicant and I decided that he would return home on a permanent basis to assist me. I had asked the Applicant previously to return but he had refused.
  33. On 17 October 2008 the Applicant told Centrelink on my behalf that we had re-partnered and he made a statement to that effect.” (Exhibit A3)
  34. In her oral evidence-in-chief Ms Al-Abier said that her physical and mental health problems adversely affected her relationship with Mr Al-Hasnawy and they “argued all the time”. She said that by mid-2003 their relationship was so bad that they sometimes hit each other and, because of these problems, they ended up separating.
  35. She said that Maad and Hahidar suggested to them that they should separate for a while, “hopefully... settle down a little bit, have a bit of a break, then [they] could come back again together”. She said that she and Mr Al-Hasnawy did not discuss how long the separation should be and she added that “it was a trial ... to support them... to put them back together”.
  36. She said that after Mr Al-Hasnawy moved to Albert Street, Osborne Park with their son, she asked him to bring their son to her each day so that she could see him, and that Mr Al-Hasnawy would just drop off their son at the Ballajura house and collect any mail from her but would not spend any time with her. He would also come to the house to mow the lawns and do maintenance jobs but “not to communicate” with her. She said that he also spent a few nights at the house to look after the children when she was in hospital, but never while she was there.
  37. Ms Al-Abier said that she and Mr Al-Hasnawy had sexual intercourse “two or three times” in 2006 and in 2007, and then in early 2008 she fell pregnant, but that this did not change their relationship.
  38. She said that during 2006 she was “thinking all of the times” and “hoping every single time” that she and Mr Al-Hasnawy might get back together, but there were “always problems” and that, no matter how hard they tried to fix things, it “didn’t happen”.
  39. Asked why they did get back together in October 2008, she said that she was exhausted and tired and needed someone to look after her and that she “pressured” him to return to look after her because he is the only person she has in Australia.
  40. Asked whom she told about her separation from Mr Al-Hasnawy, Ms Al-Abier said that Ms Jamal Al-Din’s family, and the “people [who] interfered to fix [their] problem”, all knew, but that she did not tell her family about it because it was “too hard” to tell her mother because of her mother’s ill health.
  41. In cross-examination Ms Al-Abier said that she and Mr Al-Hasnawy had separated “temporarily just for things to calm and to settle down a little” but that their problems continued and still do. Asked when Mr Al-Hasnawy left the matrimonial home, she said that it was at the end of 2003 or the beginning of 2004, as far as she could remember, but she added that her memory is “not good”.
  42. Asked whether their financial relationship changed in 2004, Ms Al-Abier said that, before they separated, Mr Al-Hasnawy was in charge and paid the bills and it was none of her business but that, after they separated, she had his VisaCard which she used to buy food and pay bills but she then paid him back, except for “small amounts” which he did not care about.
  43. She acknowledged that during their separation they shared responsibility for the care and control of their children, but she added that she was too tired to look after both of the children so he looked after their son and she looked after their daughter. She said that they cooperated and there was no problem between them regarding their children.
  44. As regards her present financial position, Ms Al-Abier agreed that she currently receives $1,004.30 per fortnight from Centrelink and that, although she does not pay rent or mortgage payments, that amount is not enough for her to live on because her medication is “really expensive”. She added that she has borrowed money from friends, such as Hahidar, and will definitely pay them back but at the moment she cannot because she does not work and is living only on Centrelink payments. She also said that Mr Al-Hasnawy does not give her any money now.

THE EVIDENCE OF ROUFAIDA JAMAL AL-DIN

  1. Ms Jamal Al-Din confirmed that she had signed a written statement, dated 11 August 2010, for the purpose of this proceeding and that its contents are true. That statement is as follows:
“ ...
  1. I grew up in Iraq where I knew ... Mr Al-Hasnawy who was then a friend of my father’s.
  2. I again saw Mr Al-Hasnawy after I left Iraq at the age of about 9 and gone (sic) to live in Syria. I was still young and he visited my father.
  3. Mr Al-Hasnawy became a reasonably regular visitor at my home in Syria when he came to see my father and my mother.
  4. My father passed away and subsequently my brother travelled to Australia with Mr Al-Hasnawy in 1996.
  5. My family followed my brother in 2001 and came to live in Perth.
  6. Mr Al-Hasnawy met my family at the airport when we arrived.
  7. At that stage Mr Al-Hasnawy was residing at ... Albert Street, Osborne Park.
  8. A friend of mine Maad, who is the father of my son, moved into ... Albert Street, Osborne Park when Mr Al-Hasnawy bought his house in Ballajura.
  9. I was aware through my family that Mr Al-Hasnawy had problems in his marriage and he particularly confided in my mother.
  10. I was aware when he separated from his wife because of those problems and moved back into ... Albert Street, Osborne Park with Maad.
  11. In 2005 I left my family home and I moved into ... Albert Street, Osborne Park.
  12. By the time I moved in Maad had left and I shared the house with Mr Al-Hasnawy from then until he returned to his wife in October 2008.
  13. I have never at any stage been in a relationship with Mr Al-Hasnawy other than as a friend of my father’s and a man whom I respect. I have always called Mr Al-Hasnawy uncle and that is the way I think of him.
  14. Nevertheless when this matter was first investigated by Centrelink I was accused of being in a relationship with Mr Al-Hasnawy.
  15. As a result of this I gave to Mr Dubois, a Centrelink Officer, a written statement which I signed on 8 October 2008. Annexed hereto ... is a copy of the statement ....
  16. During the time that I resided in the property at ... Albert Street, Osborne Park, I lived there continually and I slept there every night.
  17. In 2007 my son was born.
  18. I can say that from my own observation Mr Al-Hasnawy lived at the house with his son and slept at the house almost every night.
  19. There were rare occasions were Mr Al-Hasnawy told me that his wife’s illness was particularly bad and she was hospitalised with her migraines. On those occasions he told me that he had gone to stay at the house to look after his daughter and taken his son with him.
  20. I do not recall that in 2005 or 2006 Mr Al-Hasnawy spent a single night away from home and I think there were rare nights in 2007, maybe two or three nights.
  21. This of course does not include the times that Mr Al-Hasnawy went overseas.
  22. Throughout the time that Mr Al-Hasnawy lived in the house with me I remained close friends with his wife.
  23. I would on many occasions telephone her to find out how she was.
  24. She regularly told me of terrible migraines which would force her to go back to hospital because they were so intense.
  25. I was also aware that she was very depressed and she would describe how hopeless and sad she felt. She told me how she had come to Australia with high qualifications as a school teacher which were not recognised in Australia and she could not find work.
  26. She had no social support in Australia other than myself and my mother.
  27. Whenever I spoke to her, which was regularly, she would complain to me of her situation including the fact that she was separated from her husband and without any friends.
  28. I recall visiting her in hospital on one occasion when she had been hospitalised for migraines.
  29. I am aware that my mother pressured Mr Al-Hasnawy to go back to his wife because she had no support in Australia and she was all on her alone (sic) and struggled to cope.
  30. I know that Mr Al-Hasnawy from our conversation was reluctant to go back because of the difficulties that existed before they separated.
  31. Mr Al-Hasnawy’s wife’s condition deteriorated quite noticeably in 2008 and Mr Al-Hasnawy told me that he was going to attempt to reconcile with his wife because she needed him.
  32. Whilst I resided at ... Albert Street, Osborne Park, the telephone, the power were both in Mr Al-Hasnawy’s name although whilst he was still there I changed them into my name.
  33. My living arrangements with Mr Al-Hasnawy in the house at ... Albert Street, Osborne Park were that I paid the rent each fortnight. I paid for my own food and household supplies and Mr Al-Hasnawy paid for his own food and his son’s food and household supplies but he did not pay towards the rent. Mr Al-Hasnawy paid for the electricity and phone until it was transferred into my name for (sic) when I paid it.” (Exhibit A4 (including Annexure))
  34. In her oral evidence Ms Jamal Al-Din said that:

THE EVIDENCE OF THE WITNESSES CALLED BY THE RESPONDENT

Brett Dubois

  1. Mr Dubois confirmed that he had signed a written statement, dated 29 June 2010, for the purpose of this proceeding and that its contents are true and correct. That statement is as follows:
“ ...
  1. My full name is Brett Dubois and I am currently employed as an investigator with Centrelink. I have worked in this position from November 2006 and have been employed in various roles within Centrelink since June 2002.
  2. On 10 October 2008, in the course of my Centrelink duties, I interviewed Mr Al-Hasnawy in regard to an allegation received by Centrelink that he was living in a marriage like relationship with Jamal Al-Din.
  3. Copies of my notes made that day and signed by myself and Mr Al-Hasnawy as being true and correct are contained in the Section 37 (T documents) at T23 pages 288 to 290.
...” (Exhibit R1)

  1. In his oral evidence Mr Dubois confirmed that the “allegation” referred to in para 2 of his statement was received in the form of a “tip-off” by a member of the public. A Centrelink record, which indicates that that “tip-off” was received on 22 February 2007, was subsequently tendered in evidence (Exhibit R3).
  2. Mr Dubois confirmed that another Centrelink officer, Denise Rowling, was also present at the interview, and that he and Ms Rowling both took notes and composed a written statement (set out in paragraph 22 above) at the end of the interview. He described that written statement as a “summation of the conversation”, not a verbatim record. He said that Mr Al-Hasnawy was given the opportunity to alter the initial draft because it was to be “his statement”, and he did so. Asked whether he recalled Mr Al-Hasnawy “becoming angry”, he said that he remembered him “becoming agitated, not angry” but he did not remember him leaving the room and Ms Rowling going out to get him, although he acknowledged that “it could possibly have happened”.
  3. Mr Dubois said that the interview “went for quite some time... maybe an hour and a half”. He said that Mr Al-Hasnawy did not ask for an interpreter. He said that he recalled Mr Al-Hasnawy reading the draft and that changes were made “based on his input”. He said that Mr Al-Hasnawy then re-read the document, agreed with its contents, and signed it. He also confirmed that it had been explained to Mr Al-Hasnawy that he did not have to sign the document.

Peter Orechow

  1. Mr Orechow, an Authorised Review Officer within Centrelink, confirmed that he had written a letter dated 12 March 2009 to Mr Al-Hasnawy and to Ms Al-Abier regarding Family Tax Benefit debts raised by Centrelink in respect of the 2005/06, 2006/07 and 2007/08 financial years (Exhibits A1 and A2). The Tribunal does not regard Mr Orechow’s evidence as of any assistance to it in determining the primary issue in this case – namely, whether Mr Al-Hasnawy and Ms Al-Abier were “members of a couple”, for the purposes of the Act, in the relevant period – and, accordingly, it is unnecessary to refer further to that evidence in these reasons.

OTHER RELEVANT EVIDENCE

  1. There is much additional relevant material in the T Documents, and the Tribunal will refer to that material in the course of the analysis below.

THE CREDIBILITY OF MR AL-HASNAWY AND MS AL-ABIER

  1. The respondent put in issue the credibility of Mr Al-Hasnawy and submitted that his evidence should be given little weight because:
  2. The Tribunal, of course, had the opportunity to observe Mr Al-Hasnawy in the course of his evidence and the manner in which he gave his evidence, and to consider the content of his evidence in the context of the whole of the evidence before it. In the Tribunal’s opinion Mr Al-Hasnawy was a most unsatisfactory witness. He appeared to be evasive, particularly when being cross-examined about his financial and employment circumstances, and his repeated refusal to answer questions put to him in cross-examination in relation to his applications for bank loans in 2003 and 2007 – a refusal which he maintained despite a clear direction by the Tribunal that he answer those questions – was particularly telling. The Tribunal does not regard Mr Al-Hasnawy as a witness of truth and it has serious reservations about the credibility of his evidence, especially in respect of matters which are material to the determination of the primary issue in this case, namely, whether he and Ms Al-Abier were “members of a couple”, for the purposes of the Act, in the relevant period.
  3. As regards Ms Al-Abier, although the Tribunal did not form a similarly adverse opinion of her as a witness, it nevertheless regards her evidence in material respects as coloured by Mr Al-Hasnawy’s evidence and, accordingly, it has serious reservations about the reliability of that evidence. The Tribunal notes, furthermore, that Ms Al-Abier, on various occasions in the course of her evidence, acknowledged that her memory was “not good”, on one occasion saying that she “forgets a lot” and on another occasion saying that she has “memory loss”. In short, the Tribunal regards it as appropriate to treat Ms Al-Abier’s evidence in relation to material matters as lacking in objectivity, certainty and reliability.

ANALYSIS

Were Mr Al-Hasnawy and Ms Al-Abier each a “member of a couple”, for the purposes of the Act, in the relevant period?

  1. Mr Al-Hasnawy and Ms Al-Abier were for the whole of the relevant period, and continue to be, legally married to each other and, accordingly, the question whether each of them was a “member of a couple”, for the purposes of the Act, in the relevant period is, in accordance with s 4(2)(a) of the Act, to be answered by determining whether or not they were “living separately and apart from” each other “on a permanent or indefinite basis” in the relevant period.
  2. In forming an opinion about the relationship between Mr Al-Hasnawy and Ms Al-Abier, for the purposes of s 4(2)(a) of the Act, in the relevant period, the Tribunal is required, by s 4(3) of that Act, to “have regard to all the circumstances of the relationship” including, in particular, the matters and factors referred to in paras (a)–(e) of s 4(3). The Tribunal will now consider those matters and factors having regard to the whole of the evidence before it.

The financial aspects of the relationship

  1. It is common ground that Mr Al-Hasnawy and Ms Al-Abier have not, at any material time, jointly owned any real estate or other major assets, or had any joint liabilities. According to the evidence before the Tribunal, Mr Al-Hasnawy purchased the house in Meadowview Drive, Ballajura in his own name in November 2003, and he also purchased the land at Gwelup in his own name in 2007.
  2. There is no evidence before the Tribunal that Mr Al-Hasnawy and Ms Al-Albier have, at any material time, held a joint account with a bank or other financial institution. There is, on the other hand, evidence that Mr Al-Hasnawy, in the relevant period, held accounts in his own name with Westpac Bank, the Commonwealth Bank and the ANZ Bank, and that Ms Al-Abier, in the relevant period, held an account in her own name with the Commonwealth Bank.
  3. According to Mr Al-Hasnawy’s own evidence, Ms Al-Abier was a secondary cardholder on his VisaCard account throughout the relevant period, and he thereby incurred the legal obligation to pay the amounts debited to that account by reason of Ms Al-Abier’s use of that card.
  4. As regards the payment of day-to-day household expenses, Mr Al-Hasnawy’s evidence was that, throughout the relevant period, he continued to make the mortgage payments on the Ballajura property (where Ms Al-Abier and their daughter continued to reside) and he paid for his, and their son’s, food, meals and personal living expenses, and he paid the power and telephone bills at the Albert Street, Osborne Park property (where they were residing initially with Maad, and subsequently with Ms Jamal Al-Din and her son), but he did not contribute to the payment of the rent for that property. His evidence was that Ms Al-Abier paid for all the day-to-day household expenses in respect of Ballajura property but that she did not pay him any rent for her continued occupation of that property.
  5. The evidence before the Tribunal indicates that Mr Al-Hasnawy continued to provide substantial financial support to Ms Al-Abier throughout the relevant period primarily in the form of providing her with free accommodation in his Ballajura property and allowing her to use his VisaCard account for purchases and the payment of bills. The Tribunal does not accept their evidence that Ms Al-Abier always repaid Mr Al-Hasnawy in cash for the expenses she incurred in respect of his VisaCard account.
  6. In the Tribunal’s opinion the ongoing financial support which Mr Al-Hasnawy continued to provide to Ms Al-Abier throughout the relevant period is consistent with the continuation of their marital relationship, rather than a breakdown of that relationship, and does not indicate that they were “living separately and apart from” each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act, in the relevant period.

The nature of the household

  1. The Tribunal is satisfied that, even if the evidence of Mr Al-Hasnawy and Ms Al-Abier that their son lived with him at Albert Street, Osborne Park and their daughter lived with her at Meadowview Drive, Ballajura during the relevant period is accepted, they nevertheless remained jointly responsible for providing care and support to their children. According to their own evidence, they cooperated in ensuring that they each saw their children every day and in taking their children to and from school in the relevant period.
  2. As regards their living arrangements throughout the relevant period, the evidence of Mr Al-Hasnawy and Ms Al-Abier was that Mr Al-Hasnawy resided with their son at Albert Street, Osborne Park (which was corroborated by Ms Jamal Al-Din), while Ms Al-Abier continued to reside with their daughter at Meadowview Drive, Ballajura. The fact that Mr Al-Hasnawy continued to provide the Ballajura address, or did not provide a different address, to certain third parties (for example, Westpac Bank, the Commonwealth Bank, the ANZ Bank, Bazzo Real Estate – see T51-T53, T49, p585) in the relevant period is not necessarily inconsistent with his residing at Albert Street, Osborne Park at that time, given his own, and Ms Al-Abier’s evidence, that, on a daily basis, he visited the Ballajura property and collected any mail sent to him at that address. There is in evidence, furthermore, documentary material provided by independent institutions (for example, Telstra, the Department for Planning and Infrastructure (WA), and the Australian Taxation Office) which indicates that Mr Al-Hasnawy had notified them that his address was Albert Street, Osborne Park in the relevant period (see T16, pp236-237, T17, T50, pp 605, 611, 630). Even if, however, Mr Al-Hasnawy did reside at Albert Street, Osborne Park, and not at Meadowview Drive, Ballajura with Ms Al-Abier, during the relevant period, that physical separation would not, of itself, necessarily lead to the conclusion that they were “living separately and apart from” each other “on a permanent or indefinite basis”, within the meaning of s4(2)(a) of the Act. The question would then arise as to whether there had also been a breakdown of their marital relationship in that period. In the Tribunal’s opinion, the evidence before it indicates that such a breakdown did not occur during the relevant period and has not occurred since then. According to Mr Al-Hasnawy’s, and Ms Al-Abier’s, own evidence, throughout the relevant period:

Furthermore, Ms Al-Abier gave evidence to the effect that Ms Al-Hasnawy’s move to Albert Street, Osborne Park was intended to be temporary to allow things to “settle down” between them and that during 2006 she was constantly thinking and hoping that they would get back together. It is common ground that Mr Al-Hasnawy was again residing at the Ballajura property in a marital relationship with Ms Al-Abier from October 2008.

The social aspects of the relationship

  1. Although Mr Al-Hasnawy and Ms Al-Abier have been legally married to each other since October 1998, there is documentary evidence before the Tribunal that Mr Al-Hasnawy falsely described his marital status as “single” both before, and after, the commencement of the relevant period: see, for example, the documents, dated 10 December 2003, which he signed when opening an account, and making a personal finance application, with Challenge Bank (T51, pp 659-667, 686-693), and the documents, dated 10 December 2007, which he signed when making a personal finance application with Westpac Bank (T51, pp 667-675).
  2. According to Mr Al-Hasnawy’s, and Ms Al-Abier’s, own evidence, they informed their relatives and close friends in Australia – including Maad, Hahidar, Ms Jamal Al-Din and her mother – of their separation. In addition, Mr Al-Hasnawy’s evidence was that he informed his family members in Iraq of the separation, although Ms Al-Abier’s evidence was that she did not tell her family members in Syria of the separation because of her mother’s ill health.
  3. Although there is evidence that the abovementioned people were aware of Mr Al-Hasnawy’s and Ms Al-Abier’s separation, it is unclear to the Tribunal what those people’s assessment of the nature of the relationship between Mr Al-Hasnawy and Ms Al-Abier was at that time. The only one of those people who gave evidence was Ms Jamal Al-Din and it seems to the Tribunal that her evidence goes no further than that she was aware that Mr Al-Hasnawy “had problems in his marriage” and had “separated from his wife because of those problems and moved back into Albert Street, Osborne Park”. Her evidence certainly does not go so far as to say that she regarded Mr Al-Hasnawy’s and Ms Al-Abier’s marital relationship as having broken down. Her evidence was, furthermore, that her knowledge of the state of their relationship had come from her family – especially her mother in whom Mr Al-Hasnawy “particularly confided” – and from Ms Al-Abier. Her evidence was that her mother had “pressured Mr Al-Hasnawy to go back to his wife”, and that Ms Al-Abier had told her about her migraines and depression and complained that she was “separated from her husband and without any friends”, and that she was “so excited and happy” to get back with Mr Al-Hasnawy. That evidence does not suggest to the Tribunal that Ms Jamal Al-Din’s mother regarded the marital relationship between Mr Al-Hasnawy and Ms Al-Abier as having broken down; nor does it suggest that Ms Al-Abier herself regarded the marital relationship as having broken down.
  4. The evidence of Mr Al-Hasnawy and Ms Al-Abier was that, whereas they engaged in various joint social activities before the commencement of the relevant period, they did not engage in any joint social activities during the relevant period. There is no evidence before the Tribunal which contradicts that evidence.
  5. In the Tribunal’s opinion the evidence before it regarding the social aspects of the relationship between Mr Al-Hasnawy and Ms Al-Abier during the relevant period indicates that their relationship was going through a difficult period but it does not go so far as to indicate that their marital relationship had broken down and that they were “living separately and apart from” each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act, in that period.

Sexual relationship

  1. According to the evidence of Mr Al-Hasnawy and Mr Al-Abier, they had sexual intercourse together on a number of occasions during the relevant period – namely, two or three times in both 2006 and 2007, and in early 2008 when she became pregnant.
  2. The Tribunal accepts that that evidence does not, of itself, indicate that Mr Al-Hasnawy and Ms Al Abier were cohabiting at the those times. On the other hand, that evidence, in the Tribunal’s opinion, is consistent with the proposition that their marital relationship had not broken down and that they were not “living separately and apart from” each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act, at those times.

The nature of the mutual commitment

  1. According to Ms Al-Abier’s evidence, she and Mr Al-Hasnawy first met in Syria in 1998 and they were married there on 2 October 1998. It is common ground that they have continued to be legally married from that date.
  2. It may be that their marital relationship has not been a happy one by reason of Ms Al-Abier’s unhappiness with life in Australia and her suffering from migraines and depression resulting in many arguments and (according to their own evidence) occasional physical violence between them, and that Mr Al-Hasnawy moved out of the matrimonial home in Ballajura in September 2004 in order to avoid that conflictual environment. His moving out of the matrimonial home in those circumstances, however, would not, in the Tribunal’s opinion, have necessarily demonstrated the abandonment by him of his commitment to his marital relationship with Ms Al-Abier. Such action might, on the contrary, have been taken by him as an interim measure in the interests of saving the marriage in the longer term, thereby demonstrating his commitment to an ongoing marital relationship with Ms Al-Abier. It seems to the Tribunal, having regard to the evidence of Mr Al-Hasnawy and Ms Al-Abier, that Mr Al-Hasnawy’s moving out of the matrimonial home in September 2004 was indeed intended to be an interim measure taken, on the advice of Maad and Hahidar, for the purpose of saving their marriage in the longer term and that, notwithstanding their physical separation by reason of their living apart, they both maintained their commitment to their marital relationship throughout the relevant period.
  3. In the Tribunal’s opinion, Mr Al-Hasnawy demonstrated his ongoing commitment to Ms Al-Abier during the relevant period by:

It may be that Mr Al-Hasnawy did not otherwise provide much in the way of companionship and emotional support to Ms Al-Abier during the relevant period but, in the Tribunal’s opinion, her knowing that she could always rely on him for financial support, and physical and emotional support when she especially needed it, ought to have been a great comfort to her.

  1. It may be, having regard to the evidence of Mr Al-Hasnawy and Ms Al-Abier, that both of them, especially Mr Al-Hasnawy, regarded their marital relationship as unsatisfactory, at least from the time when Ms Al-Abier’s physical and mental health deteriorated and their arguments intensified in 2001, if not earlier. According to their evidence, although they decided that they would live apart and did so from September 2004, they resumed cohabitation in October 2008 but their personal problems are continuing. As far as the Tribunal is aware, neither Mr Al-Hasnawy nor Ms Al-Abier has ever seriously contemplated a divorce and it seems to the Tribunal that, notwithstanding that they may not have regarded their marital relationship as satisfactory since at least 2001, they have, at all material times, considered that that relationship is likely to continue indefinitely.
  2. In the Tribunal’s opinion, the nature of the commitment of Mr Al-Hasnawy and Ms Al-Abier to each other during the relevant period indicates that their marital relationship had not broken down and that they were not “living separately and apart from” each other “on a permanent or indefinite basis”, within the meaning of s 4(2)(a) of the Act, in that period.

Conclusion and finding

  1. The Tribunal, having considered the whole of the evidence before it relating to the circumstances of the relationship between Mr Al-Hasnawy and Ms Al-Abier – including, in particular, the matters referred to in s 4(3) of the Act – during the relevant period, is satisfied that their existing marital relationship did not break down at the commencement of, or during, the relevant period and that they were not “living separately and apart from” each other “on a permanent or indefinite basis”, within the meaning of s4(2)(a) of the Act, at any time during that period.
  2. Accordingly, the Tribunal finds that Mr Al-Hasnawy and Ms Al-Abier were each a “member of a couple”, for the purposes of the Act, for the whole of the relevant period.

Mr Al-Hasnawy and Ms Al-Abier owe debts to the Commonwealth

  1. The Tribunal understands it to be common ground that, in the event of a finding by it that Mr Al-Hasnawy and Ms Al-Abier were each a “member of a couple”, for the purposes of the Act, in the relevant period, it would follow that each of them had received an overpayment of parenting payment under the Act during that period and that, pursuant to s 1223 of the Act, a debt, in the total amount of the relevant overpayment, would be due by each of them to the Commonwealth. The Tribunal so finds.

Should the debts due by Mr Al-Hasnawy and Ms Al-Abier to the Commonwealth be recovered from them?

  1. Part 5.4 of the Act contains provisions dealing with the non-recovery (by way of write off or waiver) of debts which are recoverable by the Commonwealth under that Act.
  2. It was submitted on behalf of Mr Al-Hasnawy and Ms Al-Abier that, in the event that they owe debts to the Commonwealth, those debts should be waived pursuant to s 1237AAD of the Act or, in the alternative, written off pursuant to s 1236 of the Act.
  3. Section 1237AAD of the Act provides as follows:
“ 1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.”

Section 1236 of the Act provides as follows:

“ 1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
1236(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
1236(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
...”

Waiver

  1. It was submitted on behalf of Mr Al-Hasnawy and Ms Al-Abier that:
  2. The Tribunal does not accept the latter submission. The application of s 4(2)(a) and s 4(3) of the Act to the circumstances of this case, resulting in a finding that Mr Al-Hasnawy and Ms Al-Abier were each a “member of a couple”, for the purposes of the Act, in the relevant period and that they had each received an overpayment of parenting payment in the relevant period, being a debt due to the Commonwealth by reason of s 1223 of the Act, does not of itself constitute a “special circumstance” for the purposes of s 1237AAD (b) of the Act. Paragraph (b) of s 1237AAD refers to “special circumstances ... that make it desirable to waive”. The kinds of circumstances contemplated by that paragraph are circumstances which are sufficiently extraordinary, uncommon or exceptional such as to make it desirable to waive the relevant debt. In the Tribunal’s opinion, there are no such circumstances in the case of either Mr Al-Hasnawy or Ms Al-Abier, and there are no circumstances in the case of either of them that would make it unjust, unreasonable or otherwise inappropriate to recover the full amount of the debt due by each of them to the Commonwealth.
  3. Accordingly, para (b) of s 1237AAD of the Act is not satisfied in the case of either Mr Al-Hasnawy or Ms Al-Abier and, therefore, the relevant debt due by each of them to the Commonwealth cannot be waived under s 1237AAD.

Write off

  1. No specific submission was made on behalf of Mr Al-Hasnawy and Ms Al-Abier that the debt due by each of them to the Commonwealth should be written off pursuant to s 1236 of the Act.
  2. Having considered the circumstances of this case, however, the Tribunal is not satisfied, in the case of either Mr Al-Hasnawy or Ms Al-Abier, that the relevant debt is “irrecoverable at law” or that there is “no capacity to repay the debt”, for the purposes of para (a) and para (b), respectively, of 1236 (1A) of the Act. Paragraphs (c) and (d) of s 1236 (1A) are also not satisfied in this case.
  3. Accordingly, the relevant debt due by each of Mr Al-Hasnawy and Ms Al-Abier to the Commonwealth cannot be written off pursuant to s 1236 of the Act.

Conclusion

  1. None of the other non-recovery provisions in Pt 5.4 of the Act was sought to be relied on, or is applicable, in this case. The Tribunal concludes, therefore, that the relevant debt due by each of Mr Al-Hasnawy and Ms Al-Abier to the Commonwealth is recoverable in full from each of them by the Commonwealth in accordance with Pt 5.3 of the Act.

DECISION

  1. For the above reasons the Tribunal:

Application No 2009/4798

Application No 2009/5280

I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.


Signed: ...............[sgd D Brodie]........................

Associate


Dates of Hearing 2, 3 December 2010

Date of Decision 10 February 2011

Representative of Ms Al-Abier Self-represented

Representative of Mr Al-Hasnawy Mr J Redman

Solicitor for Mr Al-Hasnawy Gibson & Gibson

Representative of the Respondent Mr B Sparkes

Legal Services Branch, Centrelink


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