Allen and Secretary, Department of Social Services (Social services second review) - [2017] AATA 526

Allen and Secretary, Department of Social Services (Social services second review) [2017] AATA 526 (21 April 2017)
Division:GENERAL DIVISION
File Number: 2016/3967
Re:Isobel Allen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:21 April 2017
Place:Brisbane

The Tribunal affirms the decision under review.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Assurance of Support - applicant should not be released from assurance of support before end of ten year period - no “special circumstances” – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 15AA
Migration Act 1958 (Cth), s 55
Social Security Act 1991 (Cth), ss 1061ZZGA, 1061ZZGEA, 1061ZZGF, 1061ZZGG and 1061ZZGH
Social Security (Assurances of Support) (FaHCSIA) Determination 2007, ss 17 and 18
CASES
Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154
Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1360
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Enny Christanty v Secretary, Department of Social Services [2015] AATA 627
Fajiloun and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 32
Jones and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 708
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) CLR 355
R v Regos (1947) 74 CLR 613
Secretary, Department of Social Services and Irvine [2016] AATA 306

Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
SECONDARY MATERIALS
Guide to Social Security Law, (2016, Cth)
REASONS FOR DECISION
Member D K Grigg
21 April 2017
INTRODUCTION

In December 2010 the Department of Human Services (“Department”) accepted Ms Allen’s Assurance of Support (“AoS”) application for the purposes of acting as an assuror for her parents.[1] As a result of the AoS, Ms Allen’s parents were granted Contributory Parent (Migrant) (Class CA) visas on 14 March 2011.
[1]Exhibit 1, T Documents, T6, pages 31-32, Letter from the Department to Ms Allen dated 10 December 2010.
Pursuant to the AoS Ms Allen provided a bank guarantee for the sum of $14,000.[2] The term of the AoS is 10 years - it is in effect until 13 March 2021, at which point the bond will be released.
[2]Exhibit 1, T Documents, T17, page 58, Assurance details.
On 23 January 2014 Ms Allen’s parents became Australian citizens. Ms Allen has now applied for early termination of the AoS.[3]
[3]Exhibit 1, T Documents, T10, pages 42-44, AoS Bank Guarantee Release Form completed by Ms Allen dated 15 January 2016.
On 21 January 2016 the Department advised Ms Allen that her application had been refused because no special circumstances existed in accordance with the Social Security Act 1991 (Cth) (“the Act”) in which the Department could release the AoS bond.[4]
[4] Exhibit 1, T Documents, T12, pages 49-50, Centrelink letter and decision dated 21 January 2016.
Ms Allen argues that special circumstances do exist such that the Department can and should release the AoS bond.
For the reasons set out below I have affirmed the decision under review.
Claim History
Ms Allen sought a review of Centrelink’s original decision by an Authorised Review Officer (“ARO”). The appeal to the ARO was unsuccessful on the grounds that Ms Allen’s circumstances did not meet the requisite guidelines which would enable the release of the AoS bond.[5]
[5] Exhibit 1, T Documents, T13, pages 51-53, Authorised Review Officer’s letter and decision
dated 31 March 2016.
On 26 April 2016 Ms Allen then lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[6] The SSCSD rejected Ms Allen’s claim and affirmed the ARO’s decision on 4 July 2016.[7]
[6]Exhibit 1, T Documents, T15, page 55, Letter from AAT to Department advising of appeal dated 26 April 2016.
[7] Exhibit 1, T Documents, T2, pages 3-6, SSCSD’s Decision and Reasons for Decision
dated 4 July 2016.
Ms Allen has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1-2, Application for Review dated 29 July 2016.
ISSUES FOR DETERMINATION
The issues for determination are whether or not “special circumstances” exist such Ms Allen’s AoS should be released.
LEGISLATIVE REQUIREMENTS
Pursuant to the section 1061ZZGA of the Act, an "assurance of support " means:
an undertaking by a person under this Chapter that the person will pay the Commonwealth an amount equal to the amount of social security payments that are:
(a) received in respect of a period by another person who:
(i) is identified in the undertaking; and
(ii) becomes the holder under the Migration Act 1958 of a visa granted in connection with the undertaking (whether or not the person continues to hold the visa throughout the period); and
(b) specified in a determination in force under section 1061ZZGH when the payments are received.
The assurer, Ms Allen, is liable to pay for any social security payments made to the assuree(s), her parents (section 1061ZZGG of the Act).
An AoS cannot be withdrawn once a visa has been issued (section 1061ZZGEA) and remains in force until, relevantly, the earliest of the following times (section 1061ZZGF(1)(b)):
(i) the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;
…
(iii) if a circumstance specified for the purposes of this subparagraph in a determination under section 1061ZZGH applies in relation to the assurance--the time determined by the Secretary in relation to that circumstance.
Section 17 of the Social Security (Assurances of Support) (FaHCSIA) Determination 2007 (“Determination”)[9] provides that, for Contributory Parent (Migrant)(Class CA) visas the AoS remains in force for a period of 10 years.
[9] Made pursuant to section 1061ZZGH of the Act.
Section 18 of the Determination sets out the circumstances in which an AoS ceases to be in force. In order for Ms Allen’s AoS to cease to be in force she has to demonstrate that either:
(a)her parents’ visas have been cancelled (section 18(b) of the Determination); or
(b)the following special circumstances exist that, in the opinion of the Secretary, justify cancellation of an assurance of support (section 18(d)(i) of the Determination):
(i) an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support.
Section 18 of the Determination specifically notes that “[f]inancial hardship on the part of an assurer will not, of itself, be considered a special circumstance”.
WERE MS ALLEN’S PARENTS’ VISAS CANCELLED: SECTION 18(B) OF THE DETERMINATION
Ms Allen’s parents became permanent residents of Australia on 14 March 2011 and Australian citizens on 23 January 2014.
The Tribunal has previously considered the meaning of cancellation of a visa under the Migration Act 1958 (Cth) in Fajiloun and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 32, Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154 and Jones and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 708 (“Jones”), at [30] to [33]. In those matters the Tribunal determined that the meaning of “cancellation” is different to that of “cessation”. The Migration Act sets out specific circumstances in which visas may be cancelled and they do not include situations where a visa ceases to be in effect where another visa has replaced it. In this instance Ms Allen’s parents’ visas ceased upon their attaining citizenship but were not cancelled.
Further, the definition of “Assurance of Support” in section 1061ZZGA(a)(ii) makes it clear that it is an undertaking which continues “whether or not the person continues to hold the visa throughout the period”.[10]
[10] See Enny Christanty v Secretary, Department of Social Services [2015] AATA 627, at [29].
I also note the decision of the Federal Court in Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1360 where the Federal Court dismissed an appeal from a Tribunal decision where the Applicant argued, in essence, that the AoS ceased to be in force upon her becoming an Australian citizen and upon the grant of Newstart allowance. The Court found that this argument had no reasonable prospects of success.
In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (“Drake”), Brennan J (as President of the AAT) noted that consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision”.[11]
[11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 643.
Therefore, consistent with previous decisions of the Tribunal, section 18(b) of the Determination is not satisfied and it is necessary to consider whether there are any “special circumstances” pursuant to section 18(d)(i) of the Determination.
Ms Allen was represented by her father at the hearing. Mr Allen said he did not dispute that section 18(b) of the Determination was not satisfied.
ARE THERE SPECIAL CIRCUMSTANCES FOR THE PURPOSES OF SECTION 18(D)(I) OF THE DETERMINATION?
What does “special circumstances” mean?
In the context of this part of the Act, the Determination has expressly stated what “special circumstances” may justify cancellation of an AoS; namely, an “accident”, “disability”, “illness” or “other circumstance” “that has critically affected the assurer’s ability to provide adequate support”. The Determination specifically states what will not, of itself, constitute a “special circumstance”, namely financial hardship.
The Secretary referred me to extracts from the Guide to Social Security Law (“Guide”), which is used by the Department as a guide in the application of the Act. The Tribunal is not bound to apply the Guide but it may, and should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[12]
[12] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
The Guide states at Instruction 9.4.4.20:
A full or partial release of security may be considered in 'special circumstances' without cancellation of the AoS where the delegate may decide that there is a 'special reason' to release the security. This is discretionary and should only apply in limited situations. The following special circumstances may justify the release of a security:
A severe illness or disability afflicting the assurer that has critically affected the assurer's ability to provide adequate support to the assuree and where the assurer is in need of financial assistance. Any such illness or disability needs to be supported by medical evidence and a Centrelink social worker. In addition, evidence of depletion of funds will be required to be produced.
The assuree is entitled to and is receiving a non-recoverable income support payment or pension.
…
Financial hardship alone on the part of the assurer will not be considered a special circumstance to justify a partial release of security.
I also note the comments of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 70,[13] that:
....the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
[13]Referred to by Deputy President Dr P McDermott RFD in Secretary, Department of Social Services and Irvine [2016] AATA 306, at [24]-[25].
Do special circumstances exist?
Ms Allen argues that, contrary to her financial position at the time of providing the AoS, she is now, following a difficult divorce, solely dependent on social welfare (she receives the single parenting payment[14]) and the support of her parents.[15]
[14] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 November 2016, Attachment A.
[15] Exhibit 1, T Documents, T8, page 36, Letter to Centrelink from Ms Allen dated 5 January 2015.
Mr Allen was given leave to file evidence concerning Ms Allen’s financial circumstances. Mr Allen subsequently provided a Statement of Financial Circumstances declared by Ms Allen on 28 February 2017.[16] The Statement of Financial Circumstances sets out that:
(a)Ms Allen is not presently employed and she receives approximately $1,213.00/fortnight from Centerlink.
(b)Ms Allen’s expenses are approximately $1,200/fortnight
(c)Ms Allen frequently has to ask her parents for financial assistance to pay for things like car servicing and unexpected medical bills and the her motor vehicle was a gift from her parents.
[16] Exhibit 7, Statement of Financial Circumstances of Ms Allen dated 28 February 2017.
Mr Allen gave evidence that he assists Ms Allen financially when required and that he and his wife are essentially her “bankers” when she needs money.
Ms Allen submits that her current difficult financial circumstance qualifies as an “other circumstance that has critically affected [her] ability to provide adequate support” and constitutes a “special circumstance” for the purpose of section 18(d)(i) of the Determination.
The Secretary submits that Ms Allen’s circumstances do not meet any of the situations provided for under s 18 of the Determination which specifically states that “financial hardship on the part of an assurer will not, of itself, be considered a special circumstance."[17]
[17]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 November 2016, paras 26-30 and Exhibit 9, Secretary’s Supplementary Statement of Facts and Contentions dated 15 March 2017, para 5.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
In interpreting a section of an Act, “[t]he words of the statute, not non-statutory words seeking to explain them, have paramount significance”: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [22].
The High Court discussed the primary objective of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at [69]-[71] (per McHugh, Gummow, Kirby and Hayne JJ):
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed“. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…
The Secretary submitted that to be categorised as an “other circumstance” it would need to be a circumstance like an accident, disability or illness applying the principle of esjudem generis. The esjudem generis rule is a rule of construction that If general words follow particular or specific words, the general words may be restricted to things of the same kind which preceded them.[18]
[18] R v Regos (1947) 74 CLR 613, at 623.
It may be that Ms Allen is not now able to provide adequate support to her parents if needed. That is, she may at present be experiencing a time of financial hardship. However, what is the circumstance that has resulted in that inability? Section 18(d)(i) of the Determination clearly states that one must find a “circumstance” (i.e. an accident, disability, illness, or other) and that it is that circumstance which has “critically affected” Ms Allen’s ability to provide adequate support.
Therefore, even if I were to find that Ms Allen is not now able to provide adequate support to her parents, no evidence has been proferred as to what circumstance it is that has so critically affected Ms Allen so that an assessment can be made as to whether it would constitute a special circumstance.
At the first hearing Mr Allen submitted that there were also medical circumstances which critically affected Ms Allen and would constitute a “special circumstance”. However, Mr Allen elected not to elaborate at that time. As no medical evidence had been provided, leave was granted for that evidence to be obtained.
Despite the extra time given to allow medical evidence to be obtained, the Applicant has provided no other medical evidence to support a finding that "an accident, disability, illness or other circumstance that has critically affected the assurer's ability to provide adequate support." A statement by the Applicant's representative that the Applicant has a longstanding illness is not sufficient.[19] At the subsequent hearing Mr Allen told the Tribunal that Ms Allen had decided not to provide any medical evidence in support of her application.
[19] Exhibit 8, Email from Mr Allen dated 5 March 2017.
Regardless of how debatable the Act may seem in its application to this circumstance, that is, where the assurees are now Australian citizens who have not received any social security payments, the Act is very clear as to what will not constitute a special circumstance.
Financial hardship alone is not sufficient. As no other circumstance has been raised to justify its cancellation, Ms Allen’s AoS continues in force.
Eligibility for pension
Ms Allen also contended that the AoS should be terminated early because her parents are not and will not be eligible for a social security benefit. Ms Allen submits that because they are the recipient of Irish pensions and because income and assets are above the allowable limit,[20] they are ineligible to receive any social security benefit and therefore there is no need for an AoS.[21]
[20] Exhibit 1, T Documents, T11, page 46, Email from Mr Allen dated 16 February 2016.
[21] Exhibit 4, Letter from Mr Allen dated 29 August 2016.
The Guide states at Instruction 9.4.4.20:
Release of security in 'special circumstances'
A full or partial release of security may be considered in 'special circumstances' without cancellation of the AoS where the delegate may decide that there is a 'special reason' to release the security. This is discretionary and should only apply in limited situations. The following special circumstances may justify the release of a security:[22]
…
·The assuree is entitled to and is receiving a non-recoverable income support payment or pension
…
AoS validity
·When the security is released due to special circumstances the relevant AoS cannot be cancelled unless the circumstances fall within the provisions for cancellation of an AoS (my emphasis)
[22] Exhibit 1, T Documents, T5, page 29, Extracts from Guide to Social Security Law.

In Jones the Tribunal held that there is no power to release a security without cancelling it. Deputy President D G Jarvis found (at [25]):
…the Guide suggests that there is an ability for the security to be released but for the AoS to remain in force. However, Chapter 2C of the Act and of the Determination do not provide for any such ability, and nor is that contemplated by the undertakings which form part of the AoS. To the contrary, s 1061ZZGF(1)(b), read in conjunction with s 18 of the Determination, provide for the only circumstances where an AoS (as opposed to a security) may cease to be in force, and if those circumstances apply the AoS be cancelled and the associated security refunded. For the above reasons I consider that the Guide does not reflect the correct legal effect of the relevant sections of the Act, and it would be an error of law to follow it. I therefore do not accept that a security bond and associated AoS exist independently of one another, and in my opinion a security may not be released whilst an AoS remain in force.
The Tribunal can certainly appreciate the frustration Mr Allen and Ms Allen feel about money being held for a purpose which they believe will never arise. However, this situation is not covered by section 18 of the Determination.
Even though Ms Allen’s parents, the assurees, may be financially independent and ineligible to obtain any social security benefit, such a circumstances is not provided for in the legislation as a basis for early termination of the AoS.
CONCLUSION
Ms Allen’s appeal fails. The decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 21 April 2017

Dates of hearing: 13 February 2017 and 29 March 2017

Advocate for the Applicant: Mr E Allen

Advocate for the Respondent: Ms D Smith

Solicitors for the Respondent: Department of Human Services

Dates of hearing:	13 February 2017 and 29 March 2017
Advocate for the Applicant:	Mr E Allen
Advocate for the Respondent:	Ms D Smith
Solicitors for the Respondent:	Department of Human Services