Xiang v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2017-06-09

REASON FOR DECISION

In this matter, the Tribunal made Ex-Tempore orders on 9 June 2017, at the conclusion of an oral hearing. It now publishes its reasons for decision as follows.

Background

Mr Weidong Xiang ("the Applicant") has made an Application for Administrative Review of a Restitution Order made on 19 July 2016, by the Delegate of the Commissioner of Victims Rights ("the Commissioner") in relation to an Objection lodged by the Applicant. That decision varied the amount payable under a Provisional Order for Restitution dated 6 June 2016, which related to an approval of Victims Support, and which was made pursuant to s 64 of the Victims Rights and Support Act 2013 ("the Act").
On 31 October 2009, the victim (the applicant's wife) made an application for statutory compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 ("the old Act"), in which she alleged that he had been the victim of domestic/family violence that was perpetrated by the Applicant over a period of time from 28 December 1997 to 19 March 2001. She claimed compensation for the compensable injury of "domestic violence".
The Police COPS Event report indicates that the victim reported that she had endured domestic violence from the applicant for 13 years, but that this had occurred regularly in the last 3 months and on 19 March 2011, the applicant punched her in the left side of her face, grabbed her around her neck, slapped her, punched her on the bottom of her lip and bit her left hand.

Award of victims support to the victims

On 7 May 2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. On 3 June 2013, the old Act was repealed and replaced by the Act and cl 5 (1) of sch 2 of the Act set out the following saving and transitional provision: 5 Applications for compensation under statutory compensation scheme (1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.
On 15 October 2014, an Assessor (client claims) approved payment of victims support to the victim in the sum of $6,500 (comprising a Category D Recognition Payment pursuant to s 35 (3) (c) of the Act in the sum of $1,500 and a special grant pursuant to sch 2, cl 5 (3) of the Act in the sum of $5,000). The Assessor's reasons included (relevantly): 8. According to the application form, during the period of 28 December 1997 and 19 March 2011, the applicant was a victim and sustained injury as a result of domestic violence committed by the applicant's husband (the alleged offender) in Ryde, NSW. 9. In addition to the application form, I have considered the police report, court information, applicant's submissions, and other documents on the applicant's file. 10. I have read the police COPS report event (number provided) which relate to the alleged incidents. The report states that the applicant reported to police that she had endured domestic violence from the alleged offender for 13 years, but that in the recent 3 months, the abuse was regularly occurring. The report indicates that on 19 March 2011, the applicant was punched to the left side of her face, grabbed around her neck, slapped, punched on the bottom of her lip and bitten on her left hand by the alleged offender. 11. Court information indicates that the alleged offender was charged and convicted of 'assault occasioning actual bodily harm' and was sentenced to a good behaviour bond for a term of 18 months. 12. For the purposes of sections 19 (1) (a) and 19 (1) (b) of the act, I am satisfied on the balance of probabilities that the act occurred in the course of the commission of an offence and involved violent conduct… 14. In addition, I find that the acts were committed against the applicant by the same person over a period of time, the acts are a series of related acts pursuant to section 19 (4) of the act, and pursuant to section 19 (7) of the act, constitute a single act of violence… Recognition Payments … 21. A category D recognition payment is payable under section 36 (1) (e) of the Act, and pursuant to clause 12 of the Regulation, the prescribed amount of recognition payment under Category D is $1,500.00. Special Grant from the Victims Support Fund 22. Clause 5 (3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years from the date of the Act of violence. 23. The applicant states that the act of violence between the period of 28 December 1997 and 19 March 2011. I note that the application for statutory compensation was lodged on 31 October 2012. Noting the applicable dates the applicant is therefore eligible to receive a special grant, pursuant to Schedule 2, Clause 5 (3) of the Act. 24. Payment of a recognition payment in the sum of $1,500 and a special grant in the sum of $5,000 is approved, as indicated in the following table.

Provisional Order

Section 59 of the Act provides: 59 Commissioner's discretion to make provisional order for restitution by offender (1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make an order for restitution against the person. (2) An order may not be made against a person if: (a) 2 years or more have elapsed since: (i) the end of the period in which a claim may be made under an application for victims support under section 40 (6), or (ii) the date on which the person was convicted of the relevant offence, whichever is the later, or (b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.
The Commissioner's discretion under s 59 (1) of the Act to make a provisional order is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of "relevant offence" makes it clear that the conviction has to relate to the act of violence concerning which payment is made. This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that the person from whom recovery is sought must have been convicted of the offence arising from the act of violence for which statutory compensation (or a recognition payment) has been paid. Without that requirement, provisional orders could be made against persons who have no prior knowledge of all of the acts of violence alleged against them, and who have not been convicted of offences relating to such acts of violence.
On 14 May 2016, the Commissioner made a provisional order against the applicant in the sum of $6,500 (the amount of victims support paid to the victim). Notice of the provisional order was given to the applicant by post on 19 May 2016, as required by Section 61 of the Act.

Objection

Section 62 of the Act gives a person upon whom such an order is served 28 days in which to make a written objection to a provisional order. The grounds of objection must be fully stated (see: s 62(3)) and the objector bears the onus of proving their case (see: s 62(4)).
The applicant filed an objection on 3 June 2016, which he failed to declare as being true and correct to the best of his knowledge, in which he stated: My ex-Wife believed bad guys and lie to the court 5 years ago then she took all of my money and went to overseas forever. Bringing up my 3 children all the time but she didn't give me any support to my 3 boys. I am very bad financial circumstance. Australian Government give me money because I am real victim. My 3 boys can give evidence for me. My elder son already 18 years old.
Section 64 of the Act is concerned with the Commissioner's consideration of objections to provisional orders. It provides: (1) After considering an objection, the Commissioner may: (a) allow the objection in whole or in part or disallow the objection, and (b) accordingly reverse, vary or confirm the decision to which the objection was made. (2) On confirmation of the decision the amount payable under the provisional order concerned may be recovered (subject to section 71) by the Commissioner under section 72. (3) The Commissioner must discharge the provisional order concerned if the Commissioner reverses the original decision. (4) For the purpose of enabling a defendant to apply to the Tribunal for an administrative review, the Commissioner is taken to have failed to determine an objection if 90 days have passed since the objection was lodged with the Commissioner. (5) The Commissioner's failure to determine an objection within the period referred to in subsection (4) does not prevent the Commissioner from continuing to deal with the objection after that period has expired. (6) In calculating a period referred to in subsection (4), the period between the date on which the Commissioner requests further information or supporting evidence from the defendant in relation to the objection and the date on which that further information or supporting evidence is furnished is excluded.
On 19 July 2016, the Commissioner's delegate determined the objection and reduced the amount of restitution to the sum of $2,000, to be paid forthwith. Notice of that determination was served on the applicant as required by Section 65 of the Act under cover of a letter from the Commissioner dated 20 July 2016.
The date upon which the Determination of Objection was posted to the Applicant is not indicated in the documents before me.

Application for Administrative Review

The powers of the Tribunal upon review are set out in s 67 as follows: (1) On an administrative review, the Tribunal may: (a) confirm, vary or reverse the original decision the subject of review, and (b) make any other orders it thinks fit. (2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (3) The Tribunal may confirm a provisional order made under Section 59 if satisfied that the applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision. (4) The Tribunal may confirm a provisional order made under section 60 if satisfied that: (a) a person against whom a provisional order has been made has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and (b) the applicant was a party to the scheme and obtained property under the scheme without giving sufficient consideration. If the Tribunal is not so satisfied, it must reverse the original decision.
On 21 February 2017, the Applicant applied to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with s 66 of the Act. That section contains a number of important provisions affecting such applications, including that the parties are not limited to the original grounds for objection (see: s 66 (2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (see: s 66(3)).
In support of his application, the Applicant lodged submissions dated 10 February 2017, which are essentially the same as those set out in his letter to the Commissioner in support of the Objection. However, he also stated: Justice gave my ex-wife $6,000. She gave this to the church. After 5 years Justice Victims services ask me gave them $2,000 because I was guilt. I always said I was not guilty but nobody trust me at that time. I don't have money and time to find lawyers. All my said is true in fact. She believed bad religious. She got mental problem. She gave money to the church rather than to support her children.
The application came before me for a Directions hearing on 12 May 2017, when Ms Sabesan appeared for the Commissioner and the applicant appeared in Person. The Tribunal was also assisted by a Mandarin Interpreter, Mr W Yue. The Commissioner had lodged relevant documents under s58 of the Administrative Review Act 1997.
During the directions hearing, the applicant vehemently denied that he was guilty of the offence of which he had been convicted and argued to the effect that he should not be ordered to pay any further money to his ex-wife's church. The Tribunal advised the applicant that this organisation was not involved in the matter in any way and that the Restitution Order had been issued by the Commissioner in an effort to recover part of the victims support that was approved for his ex-wife as a result of the act of violence that had been found to have occurred. The Tribunal also advised the applicant that it has no power to look behind his conviction in the Local Court and asked whether he wished to file an updated Affidavit of Financial Circumstances? He replied 'yes.' The Tribunal ordered him to file and serve this by 2 June 2017. The matter was then listed for hearing on 9 June 2017.
At the hearing of the matter on 9 June 2017, the applicant again appeared in person and Ms Sabesan appeared for the Commissioner. The Tribunal was assisted by a Mandarin Interpreter, Jun Hua Shi. The applicant had filed and served an Affidavit of Financial Circumstances sworn on 24 May 2017 and the Tribunal asked him some questions in order to clarify his financial situation.
The Tribunal noted that the applicant disclosed total income of $3,100 per month, including $1,600 net wages, and total expenditure of $3,000 per month and that the applicant is employed as a Taxi driver. He stated that his financial situation "is tight" and that he has had to borrow money from his Parents and Family, who are in China, and that he has done so "often and each year". He has borrowed about $10,000 from them to date, but there are no Loan agreements to evidence the loans. On that basis, I am satisfied that the applicant has financial capacity to pay restitution by monthly instalments.
The applicant stated that he supports his 3 children and that he feels that he should not have to pay the restitution money. He became agitated, both during the directions hearing and the hearing of his application and made frequent outbursts to the effect that he is "not guilty" (although the available evidence is that he pleaded guilty to the charge and was convicted) and that his ex-wife "is a liar". He complained that "whoever I ask for help asks me for money" and said that he did not want to come here (to the Tribunal) but that "this organisation" (Victims Services) made him come. He also advised the Tribunal that he "wants to sue "this organisation (Victims Services) because they want me to die" and he described Victims Services as "a criminal organisation". The Tribunal admonished him for these outbursts and requested that he direct his attention to matters that are relevant to the review of the restitution order.
The applicant also informed the Tribunal that he intended to lodge an appeal against his conviction, but he agreed that he had not done this to date. The Tribunal noted, and Ms Sabesan confirmed, that if the applicant successfully appealed against his conviction then the restitution order would be set aside. However, until there was a successful appeal, the restitution order had been validly made.
The applicant then advised the Tribunal that the only ground of his application that he wished to pursue was an application to pay the restitution order by way of instalments.

Consideration

I have carefully considered all of the available evidence, including the applicant's Affidavit of Financial Circumstances, which was not available to the Commissioner prior to the determination of the Objection. Having done so, I determined that it was appropriate to vary the restitution order under s 67 (1) (a) of the Act and to order that the varied order should be payable by way of monthly instalments.

Orders

The Tribunal made the following ex-tempore decision and orders: 1. The decision of the Commissioner's delegate is varied. 2. The applicant to pay the sum of $1,500 by way of restitution, by equal instalments of $50 per month.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2017

At a glance

Court

Decision date

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Judgment (9 paragraphs)

Parties

Cited By (4)