Assaf Applicant And Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 976

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 976

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3204

GENERAL ADMINISTRATIVE DIVISION		)
Re		Samira Assaf

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Mr D Letcher QC, Senior Member   

Date21 December 2009  

PlaceSydney

Decision The Tribunal affirms the decision under review.

..................[sgd]............................

Ms N Bell, Presiding Senior Member

CATCHWORDS:  Social Security – Assurance of Support – whether it continues in effect after related visa ceases to be of effect – cancellation of visa as opposed to ceasing to be of effect by expiration of time period.

Social Security Act 1991

Migration Act 1958

REASONS FOR DECISION

Ms N Bell, Senior Member

Mr D Letcher QC, Senior Member  

1.      Ms Samira Assaf seeks review of a decision of the SSAT on 11 June 2009 affirming a decision of Centrelink to refuse her claim for Newstart allowance lodged 26 September 2008 because she was subject to a current Assurance of Support.

2.      

On 23 July 2007 Ms Assaf obtained a Class 300 (Prospective Marriage) Visa allowing entry and stay in Australia for nine months ending on 23 April 2008.  She arrived in Australia on 21 August 2007.  It was a condition of issue of that visa that she should obtain an Assurance of Support to ensure that she did not require Centrelink payments.  Ms Hadla Trad, also known as Hadla Chaaban, applied to provide that Assurance on 25 March 2007 and signed a Statement by Assurer on

26 March 2007. Those documents are Centrelink documents and the Statement was witnessed by a Centrelink officer. The Statement acknowledges that the Assurer is required to provide sufficient financial assistance to Ms Assaf to ensure she will not rely on Centrelink payments, that the Assurance remains in force for a period of 2 years from the date of Ms Assaf’s arrival and that the Assurance cannot be withdrawn or cancelled regardless of any changes in circumstances. The application referred to a Class 300 visa for which Ms Assaf was an applicant and which she was granted.

3.      However, on 8 October 2007 Ms Assaf obtained a Class 010 “bridging visa” and on 17 September 2008 Ms Assaf obtained a Class 801 visa granting permanent residence. No Assurance of Support was requested or given in relation to the 801 visa.

4.      

On 26 September 2008 Ms Assaf claimed Newstart Allowance and on

10 October 2008 Centrelink rejected that claim on the basis that an Assurance of Support was in force until 20 August 2009. On 8 January 2009 Centrelink accepted the Newstart Allowance claim, backdating that acceptance to 26 September 2008 (the date of the application) but 12 days later on 20 January 2009 Centrelink again rejected the claim.

5.      

The Respondent has informed the Tribunal that the acceptance of

8 January 2009 was an error by a Centrelink employee. This error caused regrettable confusion to Ms Assaf and those who have advised her but it has no significance to the decision required from the Tribunal.

6.      The bridging visa was given apparently because Ms Assaf alleged domestic violence and the Department of Immigration and Citizenship (DIMIA) believed that her migration status would probably not be clarified before the original visa expired. The Class 300 and 801 visas are classified as “substantive” visas while the 010 visa is not.

7.      The Tribunal is informed by the Respondent that the original 300 visa remained in effect when the bridging 010 visa was granted but it ceased to be in effect upon another “substantive” visa (the 801 class) being issued.

8. Section 1601 ZZGH(1) of the Social Security Act 1991 requires that the Minister make a Determination for section 1061 ZZGF(1)b(i) of the period for which an Assurance of Support remains in force. Section 17 of the Minister’s 2008 Determination specifies the relevant period to be 2 years. Section 1061 ZZGF(4) provides that such an Assurance “remains in force ….. in spite of any change in circumstances whatsoever (including any purported withdrawal, however described, of the assurance)”, except as provided by section 1061 ZZGF(1)(b). That section provides for the Secretary to determine circumstances in which an Assurance of Support is no longer in force. One such circumstance provided for in the 2008 Determination is where the visa of the person identified in the Assurance of Support is cancelled (section 18(b)).

9.      The issues in the case are:

1.        Was the Class 300 visa cancelled before 26 September 2008?

2.Did the Assurance of Support given by Ms Trad continue in effect after the original Class 300 visa expired by time on

23 April 2008?

“Cancellation” or “cease to be of effect”?

10.     

The Social Security (Assurance of Support) (DEEWR) Determination 2008 commenced on 19 February 2008 before Ms Assaf claimed the Newstart Allowance on 26 September 2008. Under Section 18 of the 2008 Determination an Assurance of Security ceases to be in force if the person’s visa is cancelled. If a visa is cancelled it ceases to be in effect but not every visa ceasing to be in effect is cancelled. A visa can cease to be of effect by expiry of the time or issue of another substantive visa. There is a particular procedure leading to cancellation with obligatory steps set out in sections 119, 127 and 136 of the Migration Act 1958. There is no evidence that any such steps were taken in this case. We find that

Ms Assaf’s Class 300 visa expired and ceased to be of effect on 23 April 2008 without ever being cancelled.

Period of Assurance of Support

11.     Nothing in the Minister’s Determination affects the period in which an AoS remains in effect if the relevant visa ceases to be of effect as opposed to being cancelled. We are of the opinion based on the evidence that the Assurance of Support given to Centrelink continued in force until its two year period stipulated in the Determination expired on 20 August 2009.

12.     The term of the visa granted on condition that an Assurance was given was 9 months, but in many cases (including Ms Assaf’s) the visa holder would remain in Australia thereafter and might well require financial support. The Assurance was in effect at the time Ms Assaf applied for Newstart. The terms of the Assurance Statement clearly set out that the Assurance is for the purpose of replacing benefits such as are given by Newstart.

13.     There was no attempt on behalf of Ms Assaf to identify any special circumstance affecting the Assurer which could justify cancellation of the Assurance nor any suggestion that change in the circumstances of Ms Assaf would justify cancellation. Indeed, the terms of the Assurance Statement and Section 18 of the 2008 Determination made it plain that such changes would not justify cancellation of the Assurance by the decision-maker in any event.

Decision

14.     The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell,
Senior Member, and Mr D Letcher QC, Senior Member

Signed:         ................................[sgd]................................................
  Associate: Lloyd Doherty

Date/s of Hearing  14 December 2009
Date of Decision  21 December 2009
Date of written reasons  21 December 2009     

Representative for the Applicant  Self-represented with assistance
from Mr Omal Jamal

Representative for the  Respondent                 Ms Christine Butler