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

Procedures in the AAT 19 The AAT's procedural powers give it considerable flexibility in the way it deals with its function of reviewing administrative decisions, such as the ones affecting Mr Soames. 20 Section 25(4A) of the AAT Act provides: 25 Tribunal may review certain decisions … (4A) The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers. 21 Section 33(1) of the AAT Act provides: 33 Procedure of Tribunal (1) In a proceeding before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. 22 Owing to the fact that Mr Soames' various applications to the AAT involved review of decisions about entitlements which had been pursued more than once, there were some areas where the AAT had considered, assessed and ruled on particular material in an earlier decision. The approach taken by the AAT in both AAT Decision 2 and AAT Decision 3 was to re-examine earlier findings only if there was an apparent need to do so, such as fresh evidence or a new argument or contention which required consideration. 23 That approach did not prejudice Mr Soames, except that he could not constantly revisit issues already determined unless there was a good reason to do so. In AAT Decision 3, which is the specific subject of the present appeal, that approach in effect led to one major re-assessment and financial adjustment in Mr Soames' favour, albeit insufficient to change the final outcome.

Issue 1 - Disability support pension 24 In 2009, Mr Soames and his wife sold a small business known as SSS Food Company. In July 2010, Mr Soames sold the property from which the business had been conducted. Proceeds of the sales were in each case banked to an account conducted by Mr Soames with the Commonwealth Bank of Australia. On 3 August 2010, Mr Soames closed the account. He withdrew $1,090,040, principally in the form of three bank cheques of $360,000 each ($1,080,000 in total). He flew to Syria on the same day and cashed the bank cheques shortly after arrival. On return to Australia, Mr Soames brought back $40,000 in cash. He initially left $120,000 with his sister in Syria. 25 Later, Mr Soames caused $40,000 of the money left with his sister to be brought back to Australia. The question of how the bulk of the money taken from Australia was spent by Mr Soames in Syria (and later in Australia) was at the centre of the conclusions of the AAT in each of the decisions. 26 In the first two decisions in the AAT, it was not accepted that Mr Soames purchased a house in Damascus in 2010 with the money taken from Australia. In AAT Decision 1, it was concluded that the house was purchased earlier. In AAT Decision 2, that conclusion was not revisited. However, in AAT Decision 3, the Senior Member examined fresh evidence submitted by Mr Soames and accepted Mr Soames' assertions that he used some of the money to purchase a substantial house in Damascus for about the equivalent of AUD$350,000. 27 Mr Soames also claimed that in Syria he repaid a US$160,000 loan to a relative given to him in 2004, together with US$9,000 in interest. In AAT Decision 1, the AAT did not accept that Mr Soames paid US$169,000 to a relative as repayment of a loan. That conclusion was not revisited in AAT Decision 2 or in AAT Decision 3. 28 In AAT Decision 1, it was accepted, after detailed examination of Mr Soames' claimed travel expenses, that he may have spent as much as AUD$90,000 on travel and associated costs in Syria (apparently including cost of accommodation and living expenses). His actual domestic expenses in Syria were found to be indeterminate. That assessment was accepted in AAT Decision 3. 29 In AAT Decision 1, Mr Soames was found to have "disposed of", without adequate consideration, $940,000. This amount seems to have been calculated by deducting, from the $1,080,000 Mr Soames took to Syria, $40,000 with which he returned to Australia, $90,000 allowed as travel expenses in Syria and another $10,000 allowed (up to the available limit per annum) as gifts in Syria. To that sum of $940,000, the house in Syria was also added as a pre-existing and continuing asset. In view of the fact that AAT Decision 1 is not directly under challenge in the present proceedings, it is not necessary to examine further the basis for those conclusions. 30 In AAT Decision 2, the Senior Member declined to revisit the earlier findings about assets because Mr Soames provided no new evidence about those matters. The AAT did, however, deal with some new contentions by Mr Soames. One was that the money realised from the sale of the business in 2009 and the sale of the business property in 2010 was held, as to 80%, for his wife, from whom Mr Soames had separated financially. 31 The AAT did not accept this argument and concluded that the contention did not assist Mr Soames in any event. Mr Soames had banked the proceeds of the sale of the business and the property into his own bank account. He withdrew the money and took it to Syria. He returned with only $40,000. The AAT concluded that as Mr Soames had asserted (and exercised) control over the money, his disposal was regarded by Part 3.18 of the Social Security Act as a disposal by him and the value of those assets was to be attributed to him for the purpose of calculating his entitlement to a disability support pension. 32 AAT Decision 2 then considered whether Mr Soames was entitled nevertheless to a pension under the "hardship" provisions of the Social Security Act. Those provisions allow the payment of a pension in some circumstances where a person has an unrealisable asset and they would suffer severe financial hardship if the hardship provisions were not applied. A calculation is then required of a notional income based on a value attributed to assets (including disposed assets) but disregarding unrealisable assets. This calculation was performed by the AAT and produced a nil rate of pension. 33 AAT Decision 3 revisited and updated some, but not all, of the earlier findings. 34 Based on fresh evidence and updated translations of documents, the Senior Member accepted that Mr Soames had purchased the house in Damascus in 2010 with the money taken from Australia. The consequence of this finding was that the amount representing the purchase price did not fall within any amount disposed of for inadequate consideration or no consideration. The house, on that view, represented an asset to be taken into account but not one to be added to "disposed assets" as a pre-existing asset. 35 AAT Decision 3 accepted, without revisiting, the finding in AAT Decision 1 that Mr Soames had received adequate consideration for up to $90,000 spent in Syria. 36 AAT Decision 3 also examined claims by Mr Soames about how he had spent the $40,000 with which he returned to Australia, and another $40,000 that he recovered from the $120,000 left with his sister. The Senior Member decided that, although Mr Soames' evidence was not satisfactory or clear, she would assume that all of the latter $40,000 was actually expended to meet living expenses in Australia. However, the Senior Member took the view that only $10,000 of the earlier $40,000 could be explained in this way and she was not satisfied that Mr Soames received adequate consideration for the remaining $30,000 of claimed expenditure within three months of Mr Soames' return to Australia. In AAT Decision 3, $20,000 was also allowed for permissible gifts ($10,000 per annum or part thereof). 37 In the calculations which were then made based on those conclusions, the Senior Member appears to have made a mathematical error, as was pointed out and accepted on behalf of the Secretary. The Senior Member appears not to have given credit for the $90,000 accepted as travel and associated expenditure in Syria as an amount for which adequate consideration was given and therefore not a disposed asset. 38 AAT Decision 3 assessed Mr Soames' current assets at $363,241 (including the house in Damascus with a value of $350,000) and disposed assets of $650,000 (including $80,000 left with Mr Soames' sister, $30,000 unexplained expenditure in Australia, with the balance being unexplained expenditure in Syria). When a further credit for $90,000 is taken into account, the disposed assets, on the factual findings of the AAT, should be regarded as $560,000 and Mr Soames' total assets as $923,241 (not $1,013,241 as found). 39 This is a further significant reduction from the conclusion in AAT Decision 1 that a total value of $1,340,000 in assets should be attributed to Mr Soames. However, the mathematical error does not ultimately provide a reason to doubt the final conclusion of the AAT about an entitlement to a disability support pension because the "cut-off" is $835,750 and, on the factual findings made by the AAT, Mr Soames remained above the cut-off by a large margin. 40 The other issue dealt with in AAT Decision 3 was whether a pension was payable to Mr Soames on hardship grounds. The AAT gave this issue further consideration. The AAT did not make a final decision about whether the Syria property was an unrealisable asset. That issue, if decisive, would have needed to be the subject of further evidence. The AAT determined that it was not decisive because, contrary to the position accepted in AAT Decision 2, in AAT Decision 3 the Senior Member (although accepting that Mr Soames suffered financial hardship in Australia) did not accept that Mr Soames suffered severe financial hardship. 41 All the findings to which I have referred in AAT Decision 3 were supported by cogent, clearly expressed factual findings and explanations which were related to the operative provisions of the Social Security Act. The findings are findings of fact beyond review in this Court. 42 The attack on those findings was represented by repeated, but unsupported, allegations of bad faith. As I said earlier, I reject those assertions without hesitation. AAT Decision 3 (the only one under direct challenge here) appears to me to be scrupulously fair and balanced. It is obvious to me that the Senior Member put aside the difficulties which arise from the way Mr Soames puts his arguments and devoted herself to a balanced and fair assessment of the issues on their merits.

Issue 2 - Health care card 43 Having regard to the findings already referred to, AAT Decision 3 concluded that the income to be attributed to Mr Soames rendered him ineligible for a low income health care card by a significant margin.

Issue 3 - Deductions from carer's allowance to repay debt 44 Mr Soames' argument was that recovery of overpayment of his disability support pension should have been waived because the overpayment was due to an administrative error. Section 1237A of the Social Security Act requires a waiver of the proportion of a debt attributable solely to administrative error, if the payments were received in good faith. 45 The Senior Member concluded, in AAT Decision 3, that the cause of the overpayment was Mr Soames' failure to notify Centrelink of his assets of over $1 million, despite regular reminders to him of notification requirements during the overpayment period. Accordingly, there was no error in declining to waive the debt. 46 The Senior Member also concluded that the debt could not be written off as irrecoverable (s 1236(1A)) because it could be recovered by deductions from a social security payment (s 1236(1C)(a)). 47 The Senior Member also considered, but did not finally decide, whether there were special circumstances making it desirable to waive the debt (s 1237AAD). The Senior Member directed further argument about that matter. 48 Without deciding whether there was power to order a refund of money legitimately withheld from a social security payment, the Senior Member decided that it would not be appropriate to make such an order in Mr Soames' case.

Issue 4 - Special benefit 49 A special benefit is a discretionary payment to someone unable to get any other income support payment (s 729 of the Social Security Act). It is not available if assets exceed $190,250 (s 733 of the Act). The Senior Member concluded that Mr Soames did not qualify for consideration of exercise of the discretion to pay a special benefit.

The nature of the present proceedings 50 An appeal to this Court relying on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is only available on a question of law. It has been repeatedly emphasised in this Court that the limitation is a jurisdictional one. It is not the role of the Court to examine the merits of decisions made by the AAT (or other decision-makers, whether the Secretary or the SSAT) or to substitute a different view of the facts. 51 The result Mr Soames sought from the appeal was: 'Restating [sic] of [his disability support] pension from July 2010'. 52 That statement of the relief sought betrays the reality that Mr Soames really seeks a different result on the merits of his application. 53 Mr Soames' attempts to state a question of law for the attention of the Court fell well short of that objective. The questions of law stated in the notice of appeal were as follows: Questions of law 1. The extreme bias that the respondent has. 2. The manipulation of evidence. 3. The hiding of vital evidence known to the member. 4. An unfair hearing and disregard for the large amount of evidence given for hardship. 5. Supporting the previous judgments wrong grounds and facts. 6. Preventing the applicant from calling key witnesses (Hannah and the interpreter). 7. Denying national justice and supporting the wrong doings of Hannah and Mahony. 8. Denying rights to live by taking the pension on wrong grounds. 9. Preventing the applicant from supporting his family and his son, Sammy, who has major disabilities (As a result from the respondent, both State and Federal, where he was violently forced to perform oral sex on woman for 5 years). 10. Running the hearing with a faulty hearing aid. 11. Allowing the respondent to use false evidence at the hearing and use this same evidence as facts for her judgement. 54 These complaints and assertions appear to me to have no substance whatsoever. Nevertheless, I will make some brief comments about them. 55 Items 1 and 2 appear to concern the alleged conduct of the respondent. There is no apparent substance to the complaints but in any event they afford no basis for a challenge to the findings of the AAT. To the extent that bias is alleged against the AAT, I deal with it below. 56 Item 5 appears to complain about the merits of earlier AAT decisions. It does not raise a question of law. 57 Items 8 and 9 may refer to decisions by the respondent or findings by the AAT. On either view they raise questions about merits, not questions of law. 58 Items 3, 4, 6, 7, 10 and 11 allege unfair conduct of the proceedings by the AAT. The prospective witnesses identified in item 6 were a solicitor who represented the Secretary in an earlier AAT hearing and an interpreter at that hearing. No basis was identified to the AAT, or on the present appeal, which would have justified the issue of a summons to either person, as sought by Mr Soames. If there was any substance in the allegations in this, or any other of these items, an error of law would probably have occurred. However, there is no apparent substance in any of the allegations. In the affidavit filed with the notice of appeal, no specific fact or circumstance (or combination of facts or circumstances) was identified from which it would be proper to draw any inference or conclusion that there had been a denial of procedural fairness to Mr Soames in any of the ways alleged. 59 In the affidavit filed with the notice of appeal, many paragraphs and pages of assertions dealt with Mr Soames' personal circumstances and that of his family. The evident intent underlying the assertions made was to challenge the merits of the various decisions (including that of the AAT under challenge in the present proceedings) to deny Mr Soames a disability support pension or the other benefits or advantages he has claimed. The material advanced did not identify a question of law or provide any basis to think that the AAT might have committed some legal error. 60 Mr Soames' position did not improve at the oral hearing.

Mr Soames' submissions 61 In his submissions, Mr Soames concentrated on three matters which he described as the loan, the partnership, and hardship. 62 The first of those issues concerns the alleged loan from a cousin in 2004 which Mr Soames claimed to have repaid in 2010 with money taken from Australia. Examination of Mr Soames' claims to have applied US$169,000 to the discharge of a business loan involved the assessment of his own assertions, as well as consideration of what documentary evidence there was to support the claim. The documentary evidence was slight and in AAT Decision 1 the Senior Member found it unconvincing. Mr Soames' own assertions were insufficient to make this claim good. This was an issue of fact for the AAT to resolve. In the appeal to this Court, no particular question of law was identified in relation to it. 63 The second of the three issues concerned a claim by Mr Soames, which was dealt with in AAT Decision 2, that the proceeds of sale of the business in 2009 and the business property in 2010 were held for himself and his wife. In proceedings in this Court he said the proceeds were held "50/50". Before the AAT he claimed that his wife had an 80% interest. Neither assertion changes the basic facts with which the AAT dealt. When the business was sold Mr Soames deposited the proceeds to his own account, later withdrew the great bulk in the form of bank cheques, took them to Syria and, in the course of five months or less, parted with all but $40,000 - i.e. over AUD $1 million - at his discretion. The task of the AAT was to evaluate whether, under the Social Security Act, disposal in that way by Mr Soames should be attributed to him for the purpose of assessing his entitlement to a disability support pension. That evaluation did not turn on resolution of a legal issue, such as whether the money was held by Mr Soames in trust. It turned on an assessment of his conduct and whether he had appeared to assert control of the assets of which he disposed. It concerned matters of fact. The assertions made on the present appeal about that issue did not raise any particular question of law. 64 The third of the three issues addressed by Mr Soames in his submissions concerned his allegation that he suffered financial hardship. In AAT Decision 3, the Senior Member accepted that, at the relevant time, Mr Soames suffered financial hardship, but did not accept that he suffered severe financial hardship. Mr Soames' submissions did not address that distinction. Again, no particular question of law was identified. 65 I have said, in each case, that no particular question of law was raised in relation to any of the above issues which were otherwise addressed at some length by Mr Soames' submissions because, when pressed to identify a question of law in relation to them, or more generally, Mr Soames' repeated response was that the Senior Member had acted in bad faith. Upon any fair analysis, that assertion is simply a way of conveying Mr Soames' disagreement with the outcome. As a proposition that he was treated unfairly, in any procedural or substantive way, or that the Senior Member was motivated by bias, malice or any other legally disabling factor, Mr Soames' assertions had no substance. 66 In Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, French J (when his Honour was a judge of this Court) said (at 106): The onus of demonstrating actual bias lies upon an applicant for judicial review and it is a heavy onus. 67 When that case reached the High Court (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507), Gleeson CJ and Gummow J said, about allegations such as abuse of power and actual bias (at [69]): 69 … if any such submission were to be advanced, or any such conclusion reached, the allegation would have had to be distinctly made and clearly proved. 68 I have no hesitation in rejecting Mr Soames' repeated, unsubstantiated and plainly unsupportable suggestions of bad faith by the Senior Member who handed down AAT Decision 3. The allegations seem to me to represent no more than a vain attempt to find a means of attacking findings of fact which are highly inconvenient to Mr Soames. The findings seem unsurprising in light of the events which led to the cancellation of Mr Soames' disability support pension and which explain the subsequent refusals to reinstate it or grant any of his other claims.

Procedural rulings 69 During the course of the proceedings it became necessary to make some procedural rulings in response to requests or applications by Mr Soames. The rulings are recorded in the transcript, should they require future attention, but I will mention them briefly here. 70 At the outset (as he had at an earlier directions hearing), Mr Soames asked to be provided with legal representation. He has, apparently, earlier sought such representation on his own behalf and, on one earlier occasion, a referral to a legal practitioner was apparently made. Ultimately, none of those initiatives resulted in legal representation for the present proceedings. Whether that was the result of some assessment of the merits of Mr Soames' position, I do not know. 71 There is no doubt that the Court may, in an appropriate case, make a request for consideration of pro bono legal assistance for an unrepresented litigant. But it is not, in my view, a matter which may be the subject of a formal application, and I declined to treat Mr Soames' requests as a matter he was entitled to pursue. In any event, I would not judge his case as one where such assistance should be sought for him by the Court. 72 Another request which Mr Soames made on a number of occasions was to be supplied with a transcript of the proceedings then occurring. That was not a matter which in any way affected his ability to put his case, or the proceedings themselves, and I refused to give such a direction for the future supply of transcript. 73 At another point, later in the day, Mr Soames' request to have legal assistance provided to him became connected with an application to adjourn the proceedings, part heard, until that could be done. Prior to that point Mr Soames had insisted his case should have priority and be heard urgently. In large measure that request had been met. As I would not entertain an application for legal assistance there was no ground for an adjournment and the application for an adjournment was refused. 74 Both before the AAT and in this Court, Mr Soames insisted upon his "right" to have an interpreter present. The request was met. The services of the interpreter were not used and there was no apparent necessity for such services. Mr Soames has apparently lived in Australia for over 40 years, and although he speaks sometimes with a heavy accent, particularly when excited, he has no difficulty in expressing himself, sometimes rapidly and volubly, and no apparent difficulty understanding what is said.

Conclusion 75 The application to this Court must be dismissed. The Secretary has sought the costs of the proceedings in this Court. There is no reason why the normal practice, that costs follow the result, should not apply. 76 The application will therefore be dismissed with costs. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.