ABOUMELAYA Applicant And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 154
•2 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 154
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2009/2307
GENERAL ADMINISTRATIVE DIVISION ) Re ELSAYED ABOUMELAYA Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date2 March 2010
PlaceNewcastle
Decision The decision under review is affirmed.
...................[SGD]...........................
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – assurance of support – ‘cancellation’ of visa– distinction between cancellation and cessation of visa - decision affirmed
Social Security Act 1991 sections 1236, 1237A, 1237AAD
Migration Act 1958
Social Security (Assurance of Support) (DEEWR) Determination 2008
Cuc and Secretary, Department of Social Security [1994] AATA 361
Beadlev Director-General of Social Security(1985) 60 ALR 225
Fu and Secretary, Department of Family and Community Services [2004] AATA 35
Groth v Secretary, Department of Social Security (1995) 40 ALD 5417
Yoosuf and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 969
REASONS FOR DECISION
2 March 2010 Ms N Isenberg, Senior Member DECISION UNDER REVIEW
1. This is a review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 15 May 2009 affirming the decision of an authorised review officer (ARO) on 26 February 2009 not to cancel Mr Aboumelaya’s assurance of support.
BACKGROUND
2. Mr Aboumelaya’s brother, Mr Ismael planned to marry Hoda Abdellatif Hassaan, an Egyptian woman. As Mr Ismael was receiving social security benefits he was unable to provide an assurance of support in respect of his bride. Mr Aboumelaya agreed to provide the assurance of support.
3. On 30 December 2008 Centrelink wrote to Mr Aboumelaya advising him that Ms Hassaan had been issued with a visa; consequently the assurance of support was in force for a period of two years from 5 November 2008 to 4 November 2010. The letter reminded Mr Aboumelaya that he was responsible to ensure Ms Hassaan has sufficient direct or indirect support so that she did not require support from Centrelink.
4. Ms Hassan claimed and was paid New Start Allowance. On 5 February 2009 Mr Aboumelaya contacted Centrelink requesting the assurance of support be cancelled on the basis that he had been deceived by Ms Hassaan. Centrelink informed Mr Aboumelaya that the assurance of support would remain in place. That decision was affirmed on internal review and by the SSAT. Mr Aboumelaya now seeks review of that decision by this Tribunal.
ISSUES BEFORE THE TRIBUNAL
5. The issue before the Tribunal is whether the assurance of support provided by Mr Aboumelaya for Ms Hassaan should be cancelled.
LEGISLATION
6. Section 1061ZZGEA Social Security Act 1991 (the Act) provides that an assurance of support cannot be withdrawn once a visa is granted in connection with the assurance, and remains in force except for very limited circumstances: s 1061ZZGF.
7. Section 1061ZZGG of the Act provides that the assurer is liable to pay social security benefits paid to the assuree during the period of assurance.
8. Under s 1061ZZGH of the Act, the Minister has made the Social Security (Assurance of Support) (DEEWR) Determination 2008 which provides:
18Circumstances in which assurances of support cease to be in force
For subparagraph 1061ZZGF (1) (b) (iii) of the Act, the following circumstances are specified:
(a) …
(b)the visa of a person identified in an assurance of support is cancelled.
(c) …
(d)the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support:
(i)an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support;
(ii)….
Note Financial hardship on the part of an assurer will not, of itself, be considered a special circumstance.
…
9. Section 1227 of the Act provides that if a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
10. During proceedings, Mr Aboumelaya gave evidence that his brother, Mr Ismael, lived in Western Australia and he had not seen him for 20 years. His brother met Ms Hassaan overseas through his family and, after a very short traditional and formal courtship, they married. A spouse visa was granted but because his brother was on a ‘sick’ pension he was unable to provide an assurance of support in relation to Ms Hassaan and she remained in Egypt. Mr Ismael then asked him to provide the assurance of support, which he did because he thought his brother would provide for his new wife. He knew his brother wanted a new life and to settle down. He agreed that he knew the effect of the assurance of support, as he had previously provided assurances of support for his own wife and step-children and other family members.
11. Ms Hassaan arrived in Perth but within a few days she had left her husband, gone to the police alleging domestic violence and had fled to a women’s refuge. Mr Aboumelaya thought her visa was “cancelled”.
12. Soon after leaving Mr Ismael, Ms Hassaan applied for, and received, social security benefits. Mr Aboumelaya has been informed that a debt to Centrelink is accruing. In due course he may be called upon to, effectively, refund any money paid to Ms Hassaan by Centrelink. He has been informed that to date the amount paid to Ms Hassaan exceeds $15,000.
13. The family in Egypt has subsequently told him and his brother that Ms Hassaan intended to come to Australia “no matter what.” Mr Aboumelaya said Mr Ismael had complained to the Department of Immigration and Citizenship when Ms Hassan left him. He and his brother believe they have been duped. He alleged that the refuge in fact facilitated the scam.
14. At the resumed hearing on 12 February 2010 Mr Ismael gave evidence in person. His account was broadly consistent with that of Mr Aboumelaya. He elaborated upon the circumstances of Ms Hassaan’s arrival in Australia.
15. Mr Ismael said that while in transit to Australia, Ms Hassaan had sent him a text message to the effect that she did not want him. At first she claimed it was a joke. Two days after she arrived she told him their marriage was finished and she wanted a ticket home. He bought her a ticket but she changed her mind and said she wanted to stay in Australia and she wanted to be his wife in name only. Within days she had left him and gone to a Muslim women’s centre in Perth, taking some money of his. He called the police and she was told, he said, that if she went back to Egypt there would be no charge. He bought her another ticket to Egypt but instead she went to another Muslim women’s refuge in Victoria. He alleges the owner of the refuge sent people to damage his home and car. He said she admitted she had used him and his brother. She allegedly boasted that she had ‘fooled’ the Department of Immigration and Citizenship and had obtained a visa. He immediately contacted Immigration.
16. Mr Ismael provided what he said was a transcript of a conversation recorded between him and Ms Hassaan. I have attached little weight to this information because it is unclear if Ms Hassaan was aware that a recording was being made of the conversation.
17. Ms Hassaan took out a Restraining Order against Mr Ismael but it was cancelled following a mutual undertaking. Mr Ismael subsequently obtained a Restraining Order against Ms Hassaan.
Was Ms Hassaan’s visa cancelled?: s18(b) of the Determination
18. In view of Mr Aboumelaya’s contention that Ms Hassaan’s visa had been “cancelled”, I requested the Centrelink advocate to enquire as to Ms Hassaan’s current immigration status and, in particular, if her visa had in fact been cancelled.
19. I was informed that Ms Hassaan arrived in Australia on a Partner Subclass 309 (Temporary) visa granted offshore on 6 July 2008. This allows the visa holder to enter and remain in Australia until the permanent (Subclass 100) application is decided – usually two years. A Subclass 100 visa entitles the person to remain in Australia permanently, and confers eligibility to receive certain social security payments. The two year period may be reduced where there is evidence of family violence, as was alleged in this case.
20. Ms Hassaan's Partner Subclass 100 (Permanent) visa was granted on 2 April 2009 and her visa Subclass 309 ceased the same day. The legislation connecting the two visas does not use the word "cancellation." There is a clear distinction under the Migration Act 1958 (“the Migration Act”) between a visa which is cancelled and a visa which has ceased. The "cancellation" provisions in the Migration Act are linked to very specific circumstances: subs 82(1). "Cessation" of a substantive visa is also specifically dealt with under the Migration Act. To that end, s 82(2) relevantly provides that a substantive visa held by a non-citizen "ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes in to effect.”
21. Because of the clear difference between cancellation and cessation, I cannot accept that Ms Hassaan’s visa was “cancelled” as Mr Aboumelaya submitted. I therefore find that I am unable to apply the provisions in s 18(b) of the Social Security (Assurance of Support) (FAHCSIA) Determination 2007 to bring an end to the assurance of support.
Are there special circumstances that justify cancellation of an assurance of support?: s18(d)(i) of the Determination
22. Mr Aboumelaya does not dispute that he knew the effect of what he was signing when he provided the assurance of support. Accordingly, he remains bound by the obligations contained in the document unless there are special circumstances that justify cancellation. The Determination notes that financial hardship on the part of an assurer will not, of itself, be considered a special circumstance.
23. The scope of what might be considered to be special circumstances is, in my view, narrower than that applicable to other aspects of social security legislation: eg s 1237AAD Social Security Act 1991. The present Determination uses strong words: an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support. This differs from those in s 1237AAD which, in the absence of what amounts to dishonesty, require only that there are special circumstances (other than financial hardship alone) that make it desirable to waive rather than write off the debt. Even applying that section, in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court's decision in Beadle’s case (1985) 60 ALR 225, observed that special circumstances:
Would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case […] It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
That Mr Aboumelaya was misled
24. Mr Aboumelaya and Mr Ismael contend that Ms Hassaan ‘orchestrated’ the marriage for the sole purpose of gaining entry into Australia, which she would not have been able to do but for Mr Aboumelaya’s assurance of support. It is difficult to determine if Mr Aboumelaya and his brother have been victims of a scam, or whether the arrangement made in Egypt did not meet the parties’ expectations when they came together in Australia. Mr Aboumelaya and Mr Ismael have made numerous attempts to convey their concerns to the Department of Immigration and Citizenship. I accept that both men – for different reasons – are deeply disappointed at what has occurred. Mr Aboumelaya helped his brother and now, for his support, faces a significant debt. However, whether they have been duped by Ms Hassaan and her associates is not, ultimately, a matter which must be determined by this Tribunal, for the reasons discussed below.
25. Cuc and Secretary, Department of Social Security [1994] AATA 361, was a matter which, similarly, involved the breakdown of a family relationship within days of the arrival of the assuree in Australia. The Tribunal highlighted that the assuree’s promise was unconditional, even in circumstances where the person for whose benefit it has been entered has not played fair.
26. Also, in Fu and Secretary, Department of Family and Community Services [2004] AATA 357, the Tribunal acknowledged that the failure of the relationship produced sad consequences, in the context of the assurance of support and the presence of domestic violence, but found such a circumstance does not of itself constitute a special circumstance.
27. More recently, in Yoosuf and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 969 the Tribunal apparently had before it some evidence of a widespread practice of sham marriages, but also declined to find special circumstances.
28. The obligation in the assurance of support is very clear. If there has been some fraud, it is a matter to be pursued elsewhere.
Mr Aboumelaya’s marriage breakdown
29. Two days after the hearing in December 2009 Mr Aboumelaya’s wife of 31 years left him because of this matter. He said that while she had initially agreed that he should enter the assurance of support to help his brother, she was upset that they had been misled and their savings would have to be used to repay Centrelink for its support of Ms Hassaan. Mr Aboumelaya was devastated at his wife’s decision to leave him and was visibly upset when talking about it at the hearing. He has sought intervention by community leaders but there is no prospect of reconciliation. Lawyers have been engaged. He is depressed and has been prescribed medication and has started seeing a psychologist.
30. I accept that the foreshadowed debt has had a terrible effect on Mr Aboumelaya’s marriage.
Mr Aboumelaya’s health
31. In addition to his depression occasioned by his sudden marriage breakdown, Mr Aboumelaya has recently been found to suffer from liver and kidney problems. His health has rapidly deteriorated and he has lost 25kg in weight since the hearing in December 2009 – less than 2 months. He did not look well at the resumed hearing.
32. I accept that his health has deteriorated but he is continuing to work, albeit at somewhat reduced hours.
Mr Aboumelaya’s financial circumstances
33. Mr Aboumelaya has worked hard in the same company for some 38 years. His employer has been very sympathetic and has reduced his hours because of his depression. This, unfortunately, has also reduced his income.
34. His average fortnightly pay is between $1,500 and $1,800, depending on whether he receives $400 bonus. He owns his own unencumbered house in a Newcastle suburb, which he estimates is valued at about $300,000. He has about $600,000 in his superannuation. His legal advice is that he will likely have to pay his wife half of all his assets. He partially supports his adult son who is studying medicine.
35. I accept that Mr Aboumelaya’s financial circumstances have suffered in recent times due to his ill health, and the likely halving of his assets following the dissolution of his long marriage.
CONCLUSION
36. As I mentioned at the outset of my consideration, the circumstances which permit the cancellation of an assurance of support are extremely limited: an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support. While Mr Aboumelaya may be ill, and his financial circumstances dramatically changed, his ability to meet his obligations under the assurance of support has not, at this stage, been critically affected.
DECISION
37. The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: .................................[SGD]...........................................
AssociateDate/s of Hearing 9 December 2009 and 12 February 2010
Date of Decision 2 March 2010
Applicant in person
Solicitor for the Respondent Ms Glenda Heggen
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