FEDERAL COURT OF AUSTRALIA

Chen v Secretary, Department of Social Services (No 2) [2020] FCA 384

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Applicant to pay the First Respondent’s costs of this appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    These proceedings stem from the applicant’s receipt of various Centrelink benefits, the decision by the respondent to cancel those benefits, and a subsequent debt that was raised for the recovery of certain moneys previously paid. This is an appeal pursuant to section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a second level decision of the Administrative Appeals Tribunal (the Tribunal) made on 27 March 2019 in which the Tribunal ordered the decision under review be set aside and the matter be remitted to the Secretary with the direction that the raising of the debts be reconsidered in line with its reasons: Chen and Secretary, Department of Social Services [2019] AATA 560 (AAT2).

2    The applicant was unrepresented in these proceedings, as before the Tribunal. Although in this Court the applicant had the assistance of an interpreter, the applicant sought little resort to that assistance. The applicant was again advised of the desirability of her obtaining some legal assistance, as she had been in the Tribunal. For completeness I note that at the commencement of the hearing an individual in his capacity as her friend, explained very briefly on the applicant’s behalf, what the applicant said she wanted to achieve at the hearing. Having done so he left the hearing shortly thereafter.

3    As explained in further detail below, the applicant relied upon 11 affidavits filed prior to, and after the hearing, in support of her appeal (which are in addition to the affidavits filed in respect to the interlocutory application). The affidavits are very extensive in content. A number of affidavits were filed in breach of the orders made on 29 May 2019 for the filing of material for the hearing of this appeal.

4    The affidavits attach, amongst other things, forms and documents from Centrelink and elsewhere, photos (including of bank records), text messages, emails and letter/notes some from the applicant, others apparently by persons described as witnesses (some of which are pleas from them that the applicant’s debt be waived), and financial records (e.g. bills). Included also are copies of the AAT2 judgment and the written submission of the respondent, each with handwritten comments, apparently by the applicant, addressing many aspects of the documents. Some of the material in the affidavits post-dates the cancellation of the applicant’s benefits and the judgment under appeal. Some of the material was not before the Tribunal. At the hearing of the application, at the request of the Court, the respondent provided a schedule which identified what, of the affidavit material, was before the Tribunal.

5    The applicant made oral submissions, a good deal of which were not directed to the decision of the Tribunal, but rather, the applicant’s story about how she found herself before this Court, complaints against Centrelink, and her current situation in life. The applicant’s submissions included that the real estate assets and the money in her bank accounts were not hers, but trust property, to which she has no access. Much of the submission was, in effect, a plea that she was correctly entitled to Centrelink and any debt ought to be waived. The applicant submitted that she came to this country to help people in society and claimed she is entitled to substantial compensation (millions of dollars) for the conduct of Centrelink. The description by the Tribunal of the applicant’s evidence before it, largely reflects her conduct on this appeal: see Chen and Secretary, Department of Social Services [2019] AATA 560 at [3]-[4].

6    I am conscious of the difficulties faced by an unrepresented applicant when attempting to file appropriate documents and in making submissions. I have taken that into account when considering the grounds of appeal and the manner in which the applicant made submissions in support of those grounds.

7    For the reasons below the appeal is refused.

Procedural history

8    These proceedings stem from the applicant’s receipt of various Centrelink benefits, the decision by the respondent to cancel those benefits, and a subsequent debt that was raised for the recovery of certain moneys previously paid.

9    From 11 October 1999 to 18 August 2006, the applicant received the Newstart Allowance (NSA) under the Social Security Act 1991 (Cth) (SS Act). The NSA is payable subject to a means test (an asset and income test) in accordance with sections 643 and 1068 of the SS Act.

10    On 19 August 2006, the applicant was granted a DSP under the SS Act on the basis that she was suffering from a mental health condition. The DSP is also subject to a means test in accordance with sections 117 and 1064 of the SS Act. Ms Chen was paid the DSP until 2 March 2018.

11    From 17 January 2017 to 1 December 2017, and from 2 December 2017 to 2 February 2018, the applicant was paid the Pensioner Education Supplement (PES) under the SS Act, which is also subject to a means test, with initial eligibility being dependent upon qualification for either the NSA or DSP at first instance, in accordance with section 1061PA of the SS Act.

12    This litigation arose in the context of five original decisions made by officers of the Department of Human Services (the Department), as follows:

(1)    on 15 March 2018, a decision to cancel the applicant’s DSP with effect from that day;

(2)    on 16 March 2018, a decision made to raise a debt against the applicant for overpayment of the PES for the period 17 January 2017 to 1 December 2017, amounting to $1,421.81;

(3)    on 16 March 2018, a decision made to raise a debt against the applicant for overpayment of the PES for the period 2 December 2017 to 2 February 2018, amounting to $280.80 (being a total PES debt of $1,702.61);

(4)    on 19 March 2018, a decision made to raise a debt against the applicant for overpayment of the NSA for the period 11 October 1999 to 18 August 2006, amounting to $66,494.77; and

(5)    on 19 March 2018, a decision made to raise another debt against the applicant for overpayment of the DSP for the period 19 August 2006 to 2 March 2018, amounting to $259,671.67.

13    On 2 July 2018, an Authorised Review Officer (ARO) undertook an internal review of the five original decisions, under sections 126 and 235 of the Social Security (Administration) Act 1999 (Cth) (Administration Act). The ARO affirmed the decisions in (1), (2) and (3) above; varied the debt in decision (4) above to $66,020.98; and varied the debt in decision (5) above to $256,924.56.

14    On 29 August 2018, the Tribunal undertaking a first level review (AAT1), under section 142 of the Administration Act and section 25 of the AAT Act, affirmed the ARO’s decisions.

15    On 20 December 2018, the Tribunal undertaking the second level review (AAT2) stayed the AAT1’s decision under section 41(2) of the AAT Act. The decision of the AAT2 in relation to the issue of stay, Chen and Secretary, Department of Social Services [2018] AATA 4672 at [60], was as follows:

The Tribunal grants the Applicant’s request for a stay of the decision of the Social Services and Child Support Division of the Tribunal of 29 August 2018 in respect to the cancellation of the Applicant’s DSP. It is ordered that any DSP arrears are to be paid to the Applicant from the original cancellation date of 15 March 2018 and ongoing payments of DSP are to be paid to the Applicant from the next day on which social security benefits are paid up until the decision of the Tribunal on the substantive application comes into operation.

16    As a result of that decision, the applicant’s DSP payments were reinstated, together with a back payment of the DSP to 15 March 2018.

17    On 27 March 2019, the AAT2 set aside the AAT1’s decision, and remitted the matter to the Secretary with the direction that the matter of raising any debts against the applicant prior to 18 May 2010 be reconsidered in line with the reasons of the AAT2. The AAT2 did so under section 179 of the Administration Act and section 25 of the AAT Act. The AAT2’s decision on 27 March 2019, which is the subject of the applicant’s substantive appeal to this Court, was as follows at [139]:

Pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 the decision under review is set aside and remitted to the Secretary with the direction that the matter of the raising of any debts against the Applicant prior to 18 May 2010 be reconsidered in line with the reasons of the Tribunal.

18    It is this decision of the AAT2 which is the subject of the proceedings in this Court. The appeal against this decision was filed on 24 April 2019.

19    According to the respondent’s written submissions made on an earlier stay application, on 2 April 2019, a Departmental officer made the decision to cancel the applicant’s DSP with effect from 15 March 2018, and made the following decisions to raise the debts against the applicant for:

(1)    overpayment of the PES for the period 17 January 2017 to 1 December 2017, amounting to $1,421.81;

(2)    overpayment of the PES for the period 2 December 2017 to 2 February 2018, amounting to $280.80 (being a total PES debt of $1,702.61);

(3)    overpayment of the NSA for the period 11 October 1999 to 18 August 2006, amounting to $66,020.98;

(4)    overpayment of the DSP for the period 19 August 2006 to 2 March 2018, amounting to $256,924.56; and

(5)    overpayment of the DSP from 15 March 2018 to 29 March 2019, a further debt amounting to $28,209.51.

20    On 3 April 2019, the respondent informed the applicant of these decisions, and on 9 July 2019, the total of the applicant’s debts to the Commonwealth was $352,109.14.

21    On 13 June 2019, the applicant applied for an order staying the decision which is the subject of this appeal to enable her DSP to be reinstated so that it could continue to be paid pending the outcome of the appeal. That application was refused on 29 July 2019: Chen v Secretary, Department of Social Services [2019] FCA 1155.

22    The applicant sought leave to appeal from that decision, which was refused on 25 September 2019: Chen v Secretary, Department of Social Services [2019] FCA 1595.

Preliminary issue

23    In the applicant’s affidavit affirmed on 15 August 2019 she stated that it had been suggested to her by two of her witnesses that “we would like to have [a] new judge” for the hearing of her case on 1 October 2019.

24    While the applicant did not raise this at the hearing, I drew it to her attention, to which she stated:

The reason witness – it’s not here, because they was worry about the judge was also being paid by the government for try to increase the income for the fraud team, and that make them very scare of judge has been brought by everyone. But I feel I want to come here to prove there is a god that can use your virtue to override their thinking.

25    It appeared from that that the applicant was not pursuing the request. Nonetheless, I told her I had considered the request but there was no proper basis for me not to proceed to hear the matter.

26    A judge has an obligation to sit unless reasonable apprehension of bias can be established: In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (In Re JRL; Ex parte CJL) at 352 per Mason J.

27    The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson v Johnson) at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.

28    The fair-minded lay observer, is amongst other things: (1) taken to be reasonable: Johnson v Johnson at [12]; (2) does not make snap judgments: Johnson v Johnson at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious: Johnson v Johnson at [53] per Kirby J; (4) has knowledge of all the circumstances of the case: Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293 – 294 per Mason, Murphy, Brennan, Deane and Dawson JJ, In Re JRL; Ex parte CJL at 355 per Mason J, 359 per Wilson J, 368 per Brennan J and 371 – 372 per Dawson J; (5) is an informed one, that is, they will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial. Against that background, thus judges are expected to decide factual contests on the evidence: Johnson v Johnson at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

29    Applying the relevant principles, there is no proper basis for me to disqualify myself from hearing and determining this case. My refusal of the applicant’s application for a stay of proceedings is not a proper basis. A decision on an interlocutory matter is not unusual and that a judge has made a previous decision on issues in a matter does not “mean either that [the judge] will approach the [other] issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that [the judge’s] previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that [the judge] will approach the issues in this way”: In Re JRL; Ex parte CJL at 352 per Mason J; Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 per Kerr, Davies and Thawley JJ at [11].

Section 44 of the AAT Act

30    The appeal to this Court is limited; a party to a proceeding before the Tribunal may only appeal to this Court “on a question of law, from any decision of the Tribunal in that proceeding”: s 44(1) of the AAT Act.

31    On 10 May 2019, a notice of objection to competency was filed by the respondent on the issue of whether the applicant’s appeal was with respect to a “decision” within the meaning of s 44(1) on the basis that the AAT2’s decision of 27 March 2019 was favourable to her as it set aside the AAT1’s decision (and the applicant’s debts) and remitted the matter to the Secretary, of the Department for reconsideration of her debts in line with the Tribunal’s reasons.

Any decision

32    As to the meaning of the word “decision” in s 44(1), in the oft cited case of Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 (Lawlor), Bowen CJ relevantly said at 314 and 317:

In the Administrative Appeals Tribunal Act a wide meaning is given to the word "decision" by s. 3(3). In s. 25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision….

… The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. [A restrictive] interpretation … would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in many cases useless…..

In the view which I take as to the meaning of s. 25 of the Administrative Appeals Tribunal Act, these questions do not need to be decided. As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.

33    There is a distinction between the decision and action taken upon it, with the decision itself being the important thing: Deputy Commissioner of Patents v Board of Control of Michigan Technological University [1979] FCA 84; (1979) 28 ALR 551 at [22] per Smithers J citing Lawlor at 335.

34    Despite the notice of objection to competency being filed, at the hearing the respondent conceded there was jurisdiction. The respondent accepted that according to the wide meaning attributed to the meaning of a “decision” in Lawlor, the AAT2’s findings on 27 March 2019 satisfied the criteria of a “decision” for the purpose of the applicant’s appeal.

35    The respondent submitted that the findings made by the AAT2 were expressly or implicitly that the applicant: (1) was the owner of six unencumbered investment properties from 5 February 1999 to 15 March 2018 (the relevant period); (2) was the account holder of approximately 51 bank accounts in Australia and overseas from time to time during the relevant period; (3) failed the assets tests for NSA, DSP and PES, with the result that she was not entitled to any of those payments during the relevant period; and (4) did not comply with her reporting obligations under the SS Act to report her true financial affairs to the Department during the relevant period, although she did not knowingly do so. Further, that 100% of the trust property in discretionary trusts controlled by the applicant was properly attributed to her under Part 3.18 of the SSA for the purpose of the assets tests and that the decision to cancel the applicant’s DSP from 15 March 2018 was the correct and preferable decision.

On a question of law

36    Whether a notice of appeal contains a question of law is to be approached as a matter of substance and not form: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [62] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. In cases of doubt, the Court will consider the notice of appeal in question, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal’s reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law: Haritos at [94]. That the applicant is unrepresented is a relevant matter to be taken into account: Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058. In the present circumstances, the applicant’s mental health issues are also a relevant matter to take into account.

37    What is “on a question of law” for the purposes of s 44 has been held to include: (1) whether the AAT has identified the relevant legal test; (2) whether the AAT has applied the correct test; (3) whether there is any evidence to support a finding of a particular fact; and (4) whether facts found fall within a statute properly construed: Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 at [13] per Dowsett and Gordon JJ. Where an appeal lies "on a question of law", the subject matter of the appeal is the question or questions of law: Hussain v Minister for Foreign Affairs [2008] FCAFC 128; (2008) 169 FCR 241 at [31] per Weinberg, Bennett and Edmonds JJ citing Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 at 178.

38    It is not a merits review, the merits of a review are for the Tribunal, not this Court: Kara v Comcare [2011] FCA 951 at [31] per Lander J citing Attorney-General for The State of New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 per Brennan J; Evans v Secretary, Department of Social Services [2014] FCA 491 at [21] per Perry J.

39    Even if the Tribunal erred in its conclusions on the facts, such error does not in itself constitute an error of law: Australian Postal Corporation v Edwards [2014] FCA 1348 at [39] per Collier J. While a factual finding made without evidence to support it involves an error of law no such error arises if there is some evidence upon which a Tribunal may make a finding: Holland v Federal Commissioner of Taxation [1999] FCA 1125 at [7] per Lee J. The decision as to what evidence is to be accepted is a matter for the Tribunal and it is not the function of this Court when hearing an appeal, to review the Tribunal's factual findings and to substitute its view of the facts for those of the tribunal: Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160 at [33] per Mansfield J.

40    The issue of if the questions raised in this case are questions of law is addressed below at [68].

Tribunal’s reasons

41    The Tribunal commenced its reasons by repeating some observations and concerns it had about the applicant which it expressed at the outset of the hearing. To those observations the Tribunal added at paragraphs [3]-[5]:

In the event, Ms Chen’s testimony both confirmed and qualified my concerns. Large parts of her testimony were rambling, incoherent, meaningless and indeed irrational and incomprehensible. She was highly distraught and emotional and at times unable to go on with her testimony. She made frequent references to her feeling that she was being persecuted (by Centrelink); that she wished she were dead and that her actions and those of the Respondent’s representative were controlled by “evil spirits”.

On the other hand when she was able to focus on matters of detail, such as recalling conversations with solicitors, the sale price of properties or the management of both trusts and superannuation funds, she evidenced a clear capacity to give more structured and coherent replies to some of the questions asked, although, even then, she tended to wander off into irrelevant monologues. At all times the Tribunal tried to bring her back to addressing precise questions or issues, but often, regrettably, without success.

It is on this basis that the Tribunal will seek to distinguish, as clearly as it possibly can, between those elements or parts of Ms Chen’s testimony upon which it feels it can place some reliance and those where this is not possible. Unfortunately there are far more instances of the latter than the former.

42    It is also appropriate to acknowledge the Tribunals statement at paragraph [8]:

The Tribunal was faced with more than 3900 pages of written evidence provided by both parties, a great deal of which (from both) did nothing to clarify any of the relevant issues or make a contribution to the resolution of this application.

43    In that context the Tribunal set out the background in relation to when and what Centrelink benefits were received by the applicant. The Tribunal noted that the DSP was granted on the following basis at [15] (footnotes omitted):

In 2006 Ms Chen was assessed by the Department to determine her eligibility for the DSP on the basis that she had a mental illness, defined as “Personality Disorder”. The assessment was made using what was then Table 6 (Psychiatric Impairment) found in Schedule 1B of the Act then in force. She was assessed on that Table with a rating of 30 points which was defined as:

“Serious psychiatric illness with major impairments in several areas, such as work, interpersonal relations, judgement, thinking, or mood (eg. Depressed person avoids friends, neglects family, unable to do housework), OR some impairment in reality testing or communication (eg. speech is at times obscure, illogical or irrelevant).”

44    The Tribunal referred to the Department’s review in 2010 at paragraphs [17]-[21] (footnotes omitted):

Ms Chen’s DSP was subject to review in 2010. The Department wrote to her on 19 March 2010, to the effect that her pension was being reviewed under the Data-matching program. This programme, which involves matching Centrelink records with those of certain other designated government departments, was described by the Department to her in these terms:    

“To make sure you are receiving the correct rate of payment, Centrelink uses information from a number of sources. One of the ways we make sure that our records are up to date, is to match Centrelink data with the Australian Taxation Office. These checks are done under the Data-matching Program (Assistance and Tax) Act 1990 and we are writing to you under section 11 of that Act.”

…

“This lets us know whether people who have been receiving social security payments have been and/or are currently receiving the correct amount.”

The actual request to Ms Chen was for her to supply her Tax File Number (TFN).

On 18 May 2010 the Department advised Ms Chen that of the result of this data-matching exercise:

“You may recall that we wrote to you about a review of your Disability Support Pension on 19 March 2010. This review has now been completed and all details about your Disability Support Pension are correct.

We would like to thank you for your co-operation during this review.”

Attached to this was further information about the data-matching programme which included the following rationale about the programme: “This lets us know whether people who are paid social security payments are getting the correct amount.”

This correspondence is important as it establishes that as at May 2010 the Department had checked Ms Chen’s documentation with various other agencies under the Data-matching Program (Assistance and Tax) Act 1990 and had found no reason to vary her rate of DSP.

45    The Tribunal recorded that nevertheless her benefits were cancelled on 15 March 2018 and a debt of $324,648.15 was raised against the applicant. The Tribunal noted that the reason for the cancellation was that the benefits received had both an income and assets test which the applicant exceeded. The Tribunal recorded the applicant’s submission that the assets are trust property, and that the applicant claimed that the PFT owns assets, being six properties in New South Wales and Queensland all of which appear to be unencumbered. The total purchase price of these properties, acquired between February 1999 and October 2017 was recorded by the Tribunal as being $872,000. The Tribunal noted that the applicant at that time held at least 13 separate current bank accounts with seven different banks, opened between July 2002 and August 2017, and that at various times she may have held or operated up to 50 such accounts. On 28 March 2018, Ms Chen established a self-managed superannuation fund (YPS Superfund) of which she is the sole director, secretary and shareholder of the trustee company.

46    The applicant argued that she was not the beneficiary of any of these Trusts; she did not have effective “control” of them; that she was not the actual “owner” of any of the properties and that the numerous bank accounts were either deposits made on behalf of third parties or accounts with zero balances.

47    The applicant made several further claims in relation to her assets, including a substantial (unspecified) debt owed to her mother in Taiwan, and a debt to some unspecified company in Taiwan and to a “family trust” established there of which there was no documentary evidence. The applicant also claimed a debt of 9,600,000 French francs (in the order of $A2.6 million) to her husband in Paris, and pointed to a document entitled the “Paris Agreement” in support of this contention. The Tribunal rejected these claims.

48    The Tribunal referred to the real estate assets and concluded at [40] (footnotes omitted):

As best as can be established from the material before the Tribunal, these are as follows, in order of purchase:

(i)    Campbelltown, NSW, registered in the name of Chia Huey Chen and purchased on February 1999 for the sum of $142,000;

(ii)    Broadway (number 1), Ultimo, NSW, registered in the name of Huey Peyronneau and purchased on 16 September 2005 for $98,000;

(iii)     Fortitude Valley, Brisbane, QLD, registered in the name of Jasmine Chen and purchased on 21 November 2005 for $260,000;

(iv)     Pyrmont, NSW, registered in the name of Jasmine Chen and purchased on 16 September 2008 for $95,000; and

(v)     Broadway (number 2), Ultimo, NSW, registered in the name of Chia Huey Chen and purchased on 11 October 2017 for $192,000.

49    The Tribunal recorded that the Campbelltown and Broadway (number 1) are shown as having a caveat in favour of the YPS Superfund, while the Fortitude Valley property is a heritage property under the Heritage Act 1992 (Qld). I pause to note that the YPS Superfund was created after the applicant’s benefits were cancelled. The Tribunal also noted that a previous property at Sussex Street, Sydney, NSW, was registered in the name of Huey Peyronneau and purchased on 9 April 2009 for $85,000 and then sold to the Riverwood Sports and Recreation Club Ltd on 14 December 2018 for the sum of $165,000.00.

50    The Tribunal then addressed the bank accounts, finding that the applicant had, during the relevant periods for determination of her benefits, held up to 51 separate accounts, some only operating for a few months. The Tribunal noted that details of the accounts were put before it by the Respondent, having been obtained under compulsory notices. The Tribunal set out the accounts at [47]:

(Note: * = Rounded to whole dollars only / ** = Date reported under compulsory notification to Centrelink / *** = Month/Year of maturing of term deposit. BoQ = Bank of Queensland)

51    The Tribunal also noted that there had been transfers of funds from Australian accounts to accounts held by the applicant in New Zealand, as well as to other bank accounts not listed in the table above including the Hong Kong, Shanghai ASB Bank and Citibank, amounting to a total of $147,329.00.

52    The Tribunal addressed the applicant’s argument in relation to the trust accounts. The Tribunal noted that during the hearing the applicant did produce some documents as to the existence of Trusts. In relation to the Trusts the Tribunal concluded:

(1)    On 5 February 1999, the applicant created the Chia-Huey Family Trust (CFT) and it appeared that the applicant was the sole trustee and a certain Ms Anna Sousa was the settlor.

(2)    The Campbelltown property (referred to above) was completed before that date, and it is to be assumed that the handwritten correction on the contract being a reference to the CFT was made after the contract was signed on 3 February 1999.

(3)    On 20 August 2008, the PFT was set up with the applicant as Trustee and Ms Helen Jiang as settlor. A schedule attached to the trust document stated that the trust owns the properties at Fortitude Valley, Broadway (number 1), Campbelltown and Pyrmont.

(4)    On 4 August 2010, another trust, also called the Peyronneau Family Trust (PFT2) was established with Garry Parsons and Gregory Kokaev as Trustees and Ms Helen Jiang as settlor. The Tribunal observed that a schedule attached to this deed lists the same four properties as held by the previous PFT as now being held by PFT2 with the addition of “[a]ny properties and assets under the name of this trust”, and although the Trustees changed between PFT and PFT2 no action appeared to have been taken to transfer the title deeds of any of the properties to the new Trustees. The Tribunal presumed that their ownership remains where it was at the time of purchase.

(5)    The Tribunal concluded PFT2 is not merely a replacement of the original PFT, but a separate Trust although bearing the same name.

53    The Tribunal noted the evidence given by Mr Parsons and Mr Kokaev before AAT1, and its conclusion that Mr Parsons and Mr Kokaev acted solely on direction of the applicant who had all the control of the functioning of the PFT, and that she met the control test. Even if she did not formally meet the control test for the PFT, the AAT1 noted that she met the source test because she dissolved the CFT and set up the new trust on her own terms. The assets of the PFT were attributable solely to her. Whether the applicant was regarded as the sole owner of the properties or whether they belonged to either trust or to both trusts in succession, the Tribunal found that the assets were attributable to her.

54    The Tribunal noted that the applicant asserted those witnesses were lying.

55    The Tribunal referred to and considered the relevant principles as to whether the trusts were Trusts for the purposes of Pt 3.8 of the Trustee Act 1925 (NSW), and if so, what if anything of the assets should be attributed to the applicant. The Tribunal concluded at [77]:

It has been established, to the Tribunal’s satisfaction, that Ms Chen was at all relevant times the effective owner of the properties which appear to [be] held either in her name(s) [or] via any of the Trusts of which she was, in effect, the sole controller. She was in a positon to wind up the trusts at any time and to distribute the funds to herself had she elected to do so. She derived income from the properties and was in a position to buy and sell them at her sole discretion. There are no proven liabilities against which her assets should be discounted or offset.

56    The Tribunal concluded at paragraph [80]:

The Tribunal agrees with that contention on the basis that Ms Chen owes a debt to the Commonwealth, because she was not entitled to payment due to her assets and income. In that respect it finds the debt more soundly grounded in s 1223(1AB)(b). It accepts that there was a breach of s 1223(1AB)(d), to the extent that there was a contravention of the social security law in terms of a failure to report assets and income however it believes (see below) that any false statements or misrepresentations by Ms Chen were as a result of her “state of mind” rather than attempted or calculated deception.

57    The Tribunal was satisfied that the debt was correctly assessed.

58    The Tribunal considered whether the debt should be written off pursuant to s 1236 of the SS Act (which provides that the Secretary may write off a debt if, and only if, certain circumstances exist including that the debtor has no capacity to repay the debt), but concluded the provisions had not been enlivened as there was nothing to suggest that it would be impossible to collect the debt.

59    The Tribunal considered s 1237A and whether the debt should be waived because of administrative error. It concluded that there was an administrative error made in 2010 as to the applicant’s pension entitlements which persisted until they were cancelled in 2018. However, the Tribunal concluded that that error was not the sole cause of the overpayment, as the applicant had an obligation to report changes in her income and financial positon which she failed to do. Therefore the debt could not be waived on that basis.

60    The Tribunal considered whether there were special circumstances under s 1237AAD to waive the debt. While the Tribunal concluded that it did not believe that the applicant sought to deliberately mislead or deceive Centrelink or that she knowingly made false representations, it was not satisfied there were special circumstances.

61    The Tribunal noted the amount which had been paid to the applicant prior to 2010 when the administrative error was made and noted that customers of Centrelink are entitled to rely on assurances provided to them by Centrelink.

62    In conclusion, the Tribunal remitted the matter to the Secretary to reconsider the issue of raising the debt in accordance with the Tribunal’s reasons.

Submissions

63    As noted above, the applicant filed 11 affidavits, including 10 affidavits sworn or affirmed personally by her prior to and after the hearing of this application in support of her appeal: affidavit affirmed 5 April 2019; affidavit sworn 1 May 2019; affidavit affirmed 15 May 2019; affidavit affirmed 27 May 2019; affidavit affirmed 15 August 2019; affidavit affirmed 27 August 2019; affidavit affirmed 12 September 2019; affidavit sworn 27 September 2019; affidavit sworn 30 September 2019; affidavit sworn 20 December 2019; and one affidavit affirmed by Gregory Kokaev on 16 December 2019. I note that an additional affidavit was handed up in Court during the hearing that appeared to be a duplicate of a previous affidavit filed in this matter (affidavit sworn 12 September 2019).

64    In addition, further affidavits were filed on the interlocutory application as outlined in the interlocutory judgment, Chen v Secretary, Department of Social Services [2019] FCA 1155 at [3]: affidavit dated 29 May 2019; affidavit dated 19 June 2019; affidavit dated 25 June 2019; affidavit dated 26 June 2019; affidavit dated 3 July 2019; affidavit dated 4 July 2019; affidavit dated 9 July 2019; and an affidavit dated 12 July 2019. In addition, two further affidavits were filed: one on the day of the hearing after the completion of the argument, and another, filed on 22 July 2019, several days following the hearing of the application.

65    In light of the nature and extent of the material filed in the affidavits I repeat what I previously said in my interlocutory decision, that generally s 44 of the AAT Act (by vesting original jurisdiction in this Court to hear an appeal from the Tribunal only on a question of law) does not permit further evidence to be relied on in this Court which was not before the Tribunal. While the prohibition against the reception of further evidence on the hearing is not a complete one, there is only limited scope where such evidence will be admitted: Rana v Repatriation Commission [2011] FCAFC 124; (2011) 126 ALD 1 at [19]-[21] per Kenny, Stone and Logan JJ. An "appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact": Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [58] per Edelman J.

66    The respondent objected to material in the affidavits which predated 28 March 2019 which was not in evidence in the Tribunal proceedings and is not in the nature of submissions in these proceedings, and also to the material which postdates that date which, again, is not in the nature of submissions. I have taken the affidavits filed (in so far as they are relevant to the proceedings) and treated them as the applicant’s written submissions in her appeal.

Consideration

67    The applicant’s appeal notice identifies five questions of law and two grounds of appeal as follows (extracted from the Notice of Appeal):

Questions of law:

1.    According to social Security Law Section 1237 AAD waive the debt under special circumstances of war threats and financial hardship.

2.    According to Social Security Act Section 1236, waive the debt due to administration error. In the T documents that Centrelink provided has shown that over 60% of the bank statement are in error and 100% of the bank statements in decision letter are in error just like current Centrelink statement are still in error after the applicant called and tried to tell them but they did not want to change it (Annie Walsh).

3.    Over 5 times from different respondents reports they all have different mistakes about almost three quarters of the property details are in error. This includes photos of wrong buildings wrong purchase dates, wrong purchase price and purchase year that applicant has not even entered Australia yet: in T documents and review office's letter.

4.    According to Social Security Act 3.7 RA Section 1070, waive the debt due to Chia Huey Chen had several injuries to her eyes which have become very sensitive to light and causing tears so that her eyes get very painful which affects vision which is worse than blindness because of the swelling and pain.

5.    According to Equality Act 2010, justifying discrimination. Her family trust asset is like superannuation for her family. There are over 35 beneficiaries in the two family trusts and Jasmine is the only one paid the bills not the beneficiaries still got blamed.

…

Grounds relied on

1.    Miss Chen had been told from Centerlink in 1999 that she can still have Newstart after she bring her family trust 6 million Taiwan dollars to Australia, we can find this from T documents even during the hearing break time that tribunal member wanted her to find this part of evidence after the break time she did find this to show them in the hearing to override the accused from respondent. Under instruction of lawyer set up family trust to purchased all properties for her family in Trust name, due to money not belonging to her. So, the trust is like a superannuation for her family.

2.    So, she went back to her country twice just to bring money over here by cancel all life insurance policies from her entire family for using this premium from everyone. By bring her families money here just to purchase two properties they lose their insurance cover (for twenty three million dollars).

68    Against that background, the five questions of law were treated for the purposes of the appeal as the grounds of appeal. The two paragraphs under the heading “Grounds relied on” are a factual argument that the trust is like superannuation. I note that on a separate page of the Notice of Appeal, the applicant had another heading entitled “Questions of Law” which included the following: “[a]ccording to Social Security Law, Superannuation and blindness are asset test free, waive the debt under special circumstances of a war threat”. The substance of this appears to be covered by questions 1, 4 and 5 above, and therefore is addressed by considering those grounds. At the hearing, the respondent accepted that questions 2 and 3, under the heading “Questions of Law” above, are questions of law.

69    Consequently, I will first address those grounds which relate to an allegation that the Tribunal was mistaken in relation to the applicant’s bank statements (ground 2) and real estate holdings (ground 3).

Ground 2: bank statements

70    In the appeal notice the applicant contended that: (1) 60% of the bank statements in the documents filed by the Secretary under s 37 of the AAT Act were in error; and (2) 100% of the bank statements in the AAT2’s reasons are in error, so that her debt should be waived “due to administrative error”.

71    In relation to her bank statements, the applicant submitted that the statements referred to in the Tribunal’s reasons were not the up-to-date statements, and that she had provided the Tribunal with more recent accounts which were not referred to. The applicant submitted, that as a consequence, the amounts the Tribunal said were in the accounts at the relevant point in time were not correct. The applicant also submitted that two of the accounts referred to were not her accounts.

72    The respondent accepted that if the Tribunal attributed money in bank accounts to the applicant for the purpose of the applicable assets tests in the SS Act, which were not her assets for that purpose, then the false attribution would be an error of law. However, the respondent submitted that there is no error, and that in any event, the real estate holdings were sufficient to put the applicant over the entitlement limit.

73    The respondent submitted that the tribunal made detailed findings with respect to the applicant’s bank accounts, in particular, that the applicant: (1) had “held up to 51 separate bank accounts, some of which have operated for only a matter of months”; (2) currently held the 13 bank accounts detailed in the reasons; and (3) had held three bank accounts in New Zealand from time to time during the debt period. The respondent submitted that the applicant had not identified which particular accounts she claimed were not hers, held either absolutely or on trust, during the debt period.

74    The respondent is correct, that in relation to the table of accounts at [47] of the Tribunal’s reasons (extracted above at [50]) the applicant does not suggest that the accounts were not hers held either absolutely or on trust, during the debt period. The issue appears to be the applicant’s claim that some of those accounts have been closed and that she had provided more up-to-date information to the Tribunal which was not relied on. It is also not disputed by the applicant that during the relevant period she held at various stages approximately 50 different accounts.

75    In respect to the applicant’s financial assets, the applicant’s affidavits on this application contain, amongst other things, some bank statements which reflect that some bank accounts referred to in the Tribunal’s reasons have been closed, or money from those account has since been withdrawn, significantly reducing the amount held in some accounts. However, these documents do not address all accounts, nor is there any evidence of what became of the money held in those accounts in the instances where an account had been closed. It appears that there was a withdrawal of substantial funds from some accounts shortly after the respondent cancelled the applicant’s benefits. It became obvious during the applicant’s oral submissions that she still has six or seven bank accounts, and there is money in the accounts (although the contents of these accounts are unknown). The applicant’s submission appears to be that the money in her accounts is not her money and that she is not entitled to use that money. However, that is not this ground of appeal. In any event, the Tribunal rejected that submission.

76    As to the bank statements which were attached to affidavits filed by the applicant which appear to relate to this ground of appeal, following the hearing of the matter, an email was sent to the parties requesting further submissions. The parties were requested to provide submissions on the following:

Dear Parties,

CHIA HUEY CHEN v SECRETARY, DEPARTMENT OF SOCIAL SERVICES & ORS - NSD609/2019

I refer to the above matter heard before Justice Abraham on 1 October 2019, and the submission made by the applicant that there were a number of errors in relation to the bank account details that were before the AAT. Specifically, the applicant drew attention to the bank accounts listed at paragraph [47] (page 15) of the AAT’s decision of 27 March 2019, and outlined a number of purported inaccuracies with this information.

The following exchange occurred during the hearing (transcript page 34, lines 20 to 35):

DR THOMPSON: …If, of course, on 15 March 2018, money and bank accounts was improperly taken into account, then – and the tribunal have adopted that finding or made that finding, then, of course, that would be an error of law.

HER HONOUR: So that if there was – it money had been taken out but they didn’t – Centrelink did not have the up-to-date bank statement, then that would be an error of law?

DR THOMPSON: Yes. Yes, if they assumed or – that money was still there because it was there years beforehand perhaps.

HER HONOUR: The findings that were made affirming the decision relies on bank statements some of which end before the purchase of that property in 2017.

DR THOMPSON: Yes.

Her Honour raises two examples in relation to that topic with the parties, for further written submission. These are items 2 and 3 on the table at [47] of the Tribunal’s reasons.

Her Honour requests a further submission as to whether the information in the table is correct, and if so, the effect of it on the ground of appeal in relation to an error in the bank accounts. The two items referred to in the table are provided as examples only. The material referred to in the last column are documents filed by Ms Chen on the appeal (which appear to be bank statements), which are amongst the items which it appears are objected to by the respondent. Her Honour requests the submission address the admissibility of this material on the appeal.

During the course of the hearing, in relation to the cancellation decision of 15 March 2018 and the assets test applied, the following exchange occurred (hearing transcript p31, lines 16 to 25):

HER HONOUR: So, assuming it was cancelled in March 2018, one assumes that what was taken into account were the assets as at March 2018.

DR THOMPSON: Yes. Quite so. The real estate holdings, themselves, were enough to push Ms Chen over the upper threshold for the assets test.

HER HONOUR: Did the tribunal find that, sorry, or refer to that? I think I’ve read it somewhere, but

DR THOMPSON: Not from memory, your Honour.

Her Honour notes that the submission that the real estate holdings were themselves enough to put Ms Chen over the threshold for the assets test was not elaborated on at the hearing or in the written submissions.

Her Honour requests that the further written submission also address that specific topic. Her Honour requests the submission by the respondent address whether that specific submission is advanced if the ground of appeal of appeal in relation to the bank accounts were to be established, and if so, on what basis.

The written submission is to be no longer than 5 pages, and forwarded to chambers by 4pm, Friday 20 December.

Kind regards,

77    In accordance with that request, on 20 December 2019, the respondent filed supplementary submissions and the applicant filed two further affidavits. Those affidavits did not really address the question at hand but provided additional material said to relate to her appeal. The respondent’s submission was that the AAT2 affirmed the decision of AAT1 (and the reasoning contained therein) which had concluded that the applicant’s benefits had been correctly cancelled. The decisions of AAT1 and AAT2 relied on the applicant’s assets (property investments) and not her financial investments (including bank accounts). It followed, so the respondent submitted, that the Tribunal did not rely on the applicant’s financial investments in reaching its conclusion that the benefits were properly cancelled, and the debt raised was accurate. It was submitted that in any event, the real estate holdings were above, and substantially above, the threshold in relation to the benefits the applicant was receiving. Therefore, on the respondent’s submission the real estate holdings were enough by themselves to cancel the benefits.

78    As explained in the next ground, there is no relevant error in the Tribunal’s description of the real estate holdings.

79    As the respondent correctly submitted, the bank account information in the table at paragraph [47] was only correct for the date that the financial institution supplied the information to Centrelink. The applicant has not established any error in relation to the information in the table. The table makes clear at the outset that the information was obtained under compulsory notice, and is reinforced by a note at the base of the table (extracted above at [50]). It is to be presumed that the date expressed in the table varied, depending on when the relevant compulsory notice was issued. While the date of cancelling the applicant’s benefits was 15 March 2018, the notices in respect to those accounts predate that date.

80    Therefore, the information contained in the table is not necessarily correct, and does not purport to be correct for any subsequent date, such as 15 March 2018. It follows that the applicant’s submission that the figures are not accurate must be judged against the date at which the information was received.

81    So, for example, in respect to the second example referred to in the email, the Bankwest account xxxxxx40 opened on 3 September 2014, the information is accurate as at 2 October 2017 (as listed in the fifth column), the date of the compulsory notice.

82    Meanwhile, the first example, a Bank of Queensland term deposit account number xxxxxx79 opened in the applicant’s name (as trustee) on 9 August 2017 had a balance of $30,000 on that date. The evidence before the Tribunal was that the compulsory notice was dated 18 October 2017. It follows that the accuracy of the information in that account is only accurate to 18 October 2017. Unfortunately, “current” in the fifth column omits the reference to the date of the notice (which appears in other entries). Nonetheless, the entry could not be read as current as at the time of the Tribunal’s decision, when read with the recital (and note) to the table. While it might have caused some confusion for the applicant, the Tribunal would not have been misled by the oversight.

83    In respect to both examples, the information provided by the applicant for this appeal post-dates the information obtained by the compulsory notices.

84    In any event, the respondent drew attention to the ARO’s decision statement of 2 July 2018 which states that as at 15 March 2018, the disqualifying assets test limit for the applicant was $755,000. The real estate referred to in the Tribunal’s reasons and the next ground of appeal is substantially above that limit.

85    Moreover, as the respondent submitted, properly read, the Tribunal did not rely on the information in the table at paragraph [47] when making its findings that the debts totalling $324,648.15 for the period 11 October 1999 to 2 March 2018 were properly raised against the applicant; that those debts are payable by her; and that the applicant’s DSP was properly cancelled on 15 March 2018.

86    The respondent set out the history of the decisions to illustrate that point.

87    On 14 March 2018, a departmental officer made a decision that the applicant’s DSP should be cancelled because her assets exceeded the relevant threshold for the assets test for the DSP. The letter to the applicant dated 15 March 2018, notifying her of the cancellation, relevantly said: “[o]ur records show the value of your assets are above the allowable limit and as a result you are no longer eligible for the Disability Support Pension”. The letter stated her total assessable assets as $1,081,113.00. The decision statement dated 14 March 2018 shows that this figure comprised a mixture of the applicant’s property investments and financial investments known to Centrelink on 14 March 2018. The purchase price for six properties totalled $892,000. The balance of the $1,081,113.00 appears to be the applicant’s financial investments. The decision statement said: “[i]t is to be noted that bank account balances are probably incorrect and require updating after the purchase price of property at 4024/185-211 Broadway, Ultimo NSW, 2007. However, DSP would still probably be not payable due to other assets”.

88    Any difficulties with the basis for cancelling the benefit on 15 March 2018 (with the balances “probably” being incorrect) was rectified by the internal review decision the ARO on 2 July 2018.

89    By the time of the ARO’s decision, the valuations of the applicant’s properties had been completed. Consequently, the ARO relied on the current market values for five properties which totalled $1,553,000, and the recent purchase price for a sixth property for $192,000, rendering the total assessable value of the real estate holdings as $1,745,000.

90    The ARO stated in the decision statement of 2 July 2018 that: “[t]he decision to cancel your Disability Support Pension on 15 March 2018 is correct as your total assessable assets exceed the disqualifying limit of $755,000 for a single non-homeowner. The level of your assessable assets from property alone at 15 March 2018 total $1,745,000”. The ARO dealt with the NSA, PES and DSP debts. Those debts were raised solely on the basis of the value of the applicant’s property investments at the relevant times.

91    As noted above, on 29 August 2018, the AAT1 affirmed the ARO’s decision. That decision included a table of market values of Ms Chen’s assessable investment properties for the period 3 February 1999 to 1 July 2017. The decision also included a table setting out the assets limits for NSA during the debt period for Ms Chen’s NSA debt, and a table of assets limits for DSP during the debt period for the DSP debt.

92    The AAT1 found that the applicant’s DSP was correctly cancelled on 15 March 2018, stating “[w]e have no reason to question the calculation after the authorised review officer’s variations…..The debt calculations also show that, on 15 March 2018, Miss Chen was not qualified to be paid disability support pension. Its cancellation was correct”: at [29]. The AAT1 did not rely on the applicant’s financial investments to affirm the ARO’s decision that the DSP had been properly cancelled on 15 March 2018, or to affirm the ARO’s decision that the applicant’s NSA, PES and DSP debts had been properly raised. Rather, the AAT1 relied on the market values of the assessable investment properties at the relevant times.

93    The AAT2 hearing was a de novo hearing. In those proceedings (which are the subject of the application in this Court), the Secretary relied on the assets test (not the income test) applied with respect to raising the NSA, PES and DSP debts, and the DSP cancellation decision on 15 March 2018. Nonetheless, the Secretary also relied on the applicant’s property investments and financial investments from time to time.

94    As referred to above, on 27 March 2019, the AAT2 effectively affirmed the AAT1’s decision, even though the AAT2 set aside the AAT1’s decision.

95    The AAT2 expressly considered the reasons for the cancellation of Ms Chen’s DSP. Amongst other things, the Tribunal concluded at [81] (footnotes omitted):

The AAT1 undertook a comprehensive analysis of the assets limits for both Newstart Allowance and the DSP during the relevant periods and combined this with the data relied upon by the ARO in making the initial determination. The Tribunal has reviewed these calculations and can find nothing which would suggest that they are, in any material respect, inaccurate. The minor recalculation made by the AAT1 to the ARO’s valuation of one of the properties shows the degree of scrutiny it applied to this task.

96    The AAT2 found that the applicant should be attributed with 100% of the trust property assets and was satisfied that the correct calculations of the extent of the NSA, PES and DSP over- payments had been made. The Tribunal referred in its judgment various tables relied on by the AAT1: the table of market values of the applicant’s assessable investment properties for the period 3 February 1999 to 1 July 2017; the table of assets limits for the NSA during the period for the applicant’s NSA debt; and the AAT1’s table of assets limits for the DSP during the period for the applicant’s DSP debt.

97    It follows that the Tribunal found that the applicant’s DSP had been correctly cancelled on 15 March 2018, for the same reasons as those given by the AAT1. While the financial assets are referred to in the Tribunal’s judgment, they were not relied upon to reach the conclusion affirming the NSA, PES and DSP debts raised against the applicant; and the decision to cancel her DSP on 15 March 2018.

98    No error has been demonstrated in relation to this ground of appeal.

99    As noted above, in any event, the value of real estate attributed to the applicant, referred to in the judgment and the next ground of appeal, is substantially above the disqualifying assets test limit.

100    This ground is not established.

Ground 3: real estate

101    The applicant submitted that there are mistakes in the descriptions of the property in the Tribunal’s reasons, as recited in paragraph [48] above.

102    The ground contended that “… they all have different mistakes about almost three quarters of the property details are in error. This includes photos of wrong buildings wrong purchase dates, wrong purchase price and purchase year that applicant has not even entered Australia yet”.

103    The respondent submitted that there was no relevant error made. As to the issue of the photographs the respondent submitted that this came about because of the confusion in relation to some documents, which the applicant had provided. It was submitted that there was no error as alleged and the confusion which resulted from the juxtaposition of certain documents was explained in the Tribunal. The respondent submitted that there was no argument by the applicant that Centrelink had attributed to her real estate assets which she did not own, either absolutely or on trust. It noted that the Tribunal spent most of the first hearing day examining the title searches, contracts for sale, registered transfers, rates notices and the like in the T documents for Ms Chen’s six real estate assets (five of which were investment properties) for the purposes of the assets tests in the SS Act. In particular, the applicant was taken to the title searches and searches of registered transfers for the six properties. All of the searches were in the applicant’s name. The applicant did not deny that the properties were registered in her name, but contended that she held the properties on trust, with the effect that they did not count for the purposes of the assets tests. The Tribunal attributed 100% of the trust properties to her for the purposes of the assets tests.

104    It should be noted that properties two to five listed in that paragraph (recited above at paragraph [48]), and the Sussex Street property which was purchased on 9 April 2009 for $85,000 and sold on 14 December 2018 for $165,000, were the properties relevant to the assets test.

105    The first property on the list, at Campbelltown, was exempt for the purposes of the assets tests in accordance with s 1118 the SS Act, because it was the applicant’s principal home.

106    During the hearing of this matter the applicant was asked to identify the alleged error, by reference to paragraph [40] of the Tribunal’s reasons (recited above at [48]). It became apparent that while there may have been errors as to the recording of dates (for example, the last property is said to have been purchased in November 2017 and not October 2017) or description of her name (for example, whether she is recorded as Peyronneau or Chen) that there was no error that the properties were in her name or in relation to any of the purchase prices. That is consistent with the applicant’s handwritten comments on the Tribunal’s reasons and the respondent’s submissions (which were attached to the affidavits affirmed on 5 April 2019 and 15 August 2019). Moreover, there was also no complaint in relation to the Sussex street property which had since been sold.

107    This is also clear from the transfer documents which are referred to in the footnotes in the Tribunal’s reasons.

108    It follows that even if there is a misdescription in the Tribunal’s reasons it is not a material one for the purposes of the decision. It has not resulted in any property being attributed to the applicant for the purposes of the asset test, which ought not to have been. Nor has it been established that the amount recorded as having been paid for the property was in any way inaccurate.

109    This ground of appeal is not established.

Remaining grounds

110    The fundamental issue with each of the remaining grounds is whether they are “on a question of law”. Those grounds each relate to an argument about waiver of the debt raised and can be addressed together.

Grounds 1, 4 and 5: waiver

111    The respondent accepted that an error of law may arise from an erroneous application of a statutory test to facts which are not in dispute, citing Seven Network Ltd v Australian Competition and Consumer Commission [2007] FCA 1929. However, the respondent submitted that the Tribunal correctly identified the elements in the relevant provisions and the applicable common law with respect to the discretion. The respondent pointed out that the statutory test in section 1237AAD requires special circumstances “other than financial hardship alone” that make it desirable to waive the debt. It submitted that the grounds are not on a question of law.

112    As I observed in my interlocutory decision, some of the matters referred to in these grounds, including the applicant’s reliance on her eyesight issue and the suggestion of blindness, were not before the Tribunal and were not the basis on which the DSP was granted. Similarly, her complaints in relation to her superannuation (and that it is exempt from the relevant means tests), were irrelevant to the Tribunal’s findings as to the correctness of the decision to cancel her benefits, as none of the properties were part of any superannuation fund at the time the decisions were made to cancel the applicant’s benefits. Each of those matters was referred to by the applicant in the passage recited at [67] above, which appeared under the heading “Questions of Law”.

113    The respondent is correct that the proper provisions were referred to and the correct elements identified. If the argument is that the Tribunal should have waived the debt, on the material, that is not a question of law.

114    Moreover, it must be borne in mind that the Tribunal did make some findings in the applicant’s favour, and expressed some sympathy for the applicant’s position, but ultimately found that there was no basis write off the debt on those grounds or that it ought to be waived on the basis of administrative error. However, the Tribunal did not make the finding in relation to the waiver on the basis of special circumstances, but remitted the matter to the Secretary to decide in light of the Tribunal’s reasons.

Conclusion

115    There are only two grounds that could be questions of law, however neither of those grounds are established. The remaining grounds are not questions of law. The application is dismissed with costs.

Associate:

Dated:    30 March 2020