Baena and Child Support Registrar (Child support second review)

[2019] AATA 767

Baena and Child Support Registrar (Child support second review) [2019] AATA 767 (29 March 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1659

Re:Farid Baena

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:29 March 2019

Date of written reasons:        30 April 2019

Place:Sydney

The decision under review, being the decision of the Respondent dated 25 March 2019 to refuse the Applicant’s application for a Departure Authorisation Certificate under s 72L of the Child Support (Registration and Collection) Act 1988 (Cth), is affirmed.

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Deputy President J W Constance

CATCHWORDS

CHILD SUPPORT – application for review of refusal to issue departure authorisation certificate – where departure prohibition order in force – where Applicant contravened previous departure authorisation certificate – whether Applicant likely to return to Australia within appropriate period – where no security given for Applicant’s return to Australia – whether certificate should be issued on humanitarian grounds – whether refusal to issue certificate detrimental to Australia’s interests – decision under review affirmed

LEGISLATION

Child Support (Registration and Collection) Act 1988 (Cth)

WRITTEN REASONS FOR DECISION GIVEN ORALLY ON 29 MARCH 2019

Deputy President J W Constance

30 April 2019

INTRODUCTION

1. On 27 March 2019, Mr Baena applied to the Tribunal for review of the decision of the Child Support Registrar to refuse his application for a Departure Authorisation Certificate under the Child Support (Registration and Collection) Act 1988 (Cth). Without such a certificate, Mr Baena is precluded from travelling outside Australia by reason of a Departure Prohibition Order issued to him on 22 February 2017 and which remains in force. At the time of the issue of the Order, and as at the date of the hearing, Mr Baena owed a child support debt.

2. On 29 March 2019, I affirmed the decision to refuse the application for a Departure Authorisation Certificate. At the time I gave the reasons for my decision orally. I now provide my reasons in writing.

   FACTS

3. On 20 March 2019, Mr Baena made a verbal application for a Departure Authorisation Certificate for the period 1 April 2019 to 15 May 2019. His stated reasons for wishing to travel to the Philippines were to attend a family reunion, to finish rebuilding a bus engine, and, on the evidence he gave at the hearing, to take part in proceedings to establish a new chapter of the Order of the Knights of Rizal. He deposed that the Order was founded to propagate the teachings of a national hero of the Philippines who advocated human rights through non-violent means. Mr Baena further deposed that he is the only person authorised and available to establish the new chapter.

   Previous Departure Authorisation Certificates issued to the Applicant

4. Mr Baena has previously been issued Departure Authorisation Certificates on three occasions while the Departure Prohibition Order has been in force, and he travelled outside Australia on each of those occasions.

5. He travelled to the Philippines between 10 October 2017 and 16 October 2017, and on that occasion the conditions of the Certificate were met.

6. On the next occasion, he travelled to the Philippines between 9 February 2018 and 19 February 2018, and again the conditions of the Certificate were met.

7. On the third occasion, Mr Baena failed to comply with the conditions of the Departure Authorisation Certificate granted in respect of the period 10 August 2018 to 25 August 2018. On that occasion, Mr Baena travelled to the Philippines for the purposes of attending a court hearing and evicting tenants from his parents’ property. He did not return to Australia until 29 December 2018, and did not contact the Department of Human Services to extend the length of the Certificate.

8. Mr Baena gave evidence at the hearing, which I accept, that he stayed in the Philippines outside the period authorised for the purpose of attending court proceedings and that he was in an area where it was difficult to make contact with the Department to seek an extension of the Certificate.

9. Whilst accepting that evidence, Mr Baena’s explanation as to why he was nevertheless unable to contact the Department, or attempt to do so, is quite unsatisfactory. He conceded that he had access to the internet at times and thus opportunities to contact the Department by email. The essence of the explanation Mr Baena gave in evidence for making no such attempts was that he thought the Department “would just understand” that remaining in the Philippines outside the period authorised, in response to the adjournment of the court proceedings he was involved in, was “the right thing to do”. It is not clear to me why the Department would have had any understanding of Mr Baena’s circumstances given the complete lack of communication on his part.

   The child support debt

10. As at the date of the hearing, the Registrar’s evidence was that Mr Baena had a total child support liability of $20,910.32, consisting of a maintenance debt of $3,634.02 and a late payment penalty debt of $17,276.30. Mr Baena did not dispute the debt owing. He explained that he planned to repay the debt by making significant payments from his income in the lead up to his planned departure on 1 April 2019.

11. It does appear from the records that form part of Exhibit R1 in these proceedings that Mr Baena had made an effort in this regard prior to losing his employment in early March of this year. The records show that on 29 January 2019 a payment of $300 was received by the Department; on 30 January 2019, $1000; on 6 February 2019, $750; on 13 February 2019, $700; and on 25 February 2019, $600. However, prior to 29 January 2019, there is a considerable period going back to late August 2018 in which no payments were made by Mr Baena against his debt. During that period, Mr Baena was in the Philippines and was not working.

    LEGISLATION

12. The relevant sections of the Child Support (Registration and Collection) Act 1988 (Cth) for present purposes are ss 72L and 72M:

    72L When Registrar must issue departure authorisation certificate

    (1)  This section applies if a person makes an application under section 72K for a departure authorisation certificate.

    (2)  The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:

    (a)  that, if the certificate is issued:

    (i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and

    (ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and

    (b)  that it is not necessary for the person to give security under section 72M for the person’s return to Australia.

    (3)  If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:

    (a)  the person has given security under section 72M for the person’s return to Australia; or

    (b)  if the person is unable to give such security, the Registrar is satisfied:

    (i)that the certificate should be issued on humanitarian grounds; or

    (ii)that refusing to issue the certificate will be detrimental to Australia’s interests.

    72M Security for person’s return to Australia

    (1)  A person may give such security as the Registrar considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Registrar and is specified in the departure authorisation certificate.

    (2)  The Registrar may substitute a later day for the day mentioned in subsection (1), either on the Registrar’s own motion, or on application by the person in the approved form.

    (3)  The Registrar may refuse an application by a person to substitute a later day if:

    (a)  the person refuses to increase the value of the security already given to a level that the Registrar considers appropriate; or

    (b)  the person refuses to give such further security as the Registrar considers appropriate; or

    (c)  the Registrar considers that it would not be appropriate to substitute the later day.

13. Section 72L of the Act sets out the circumstances in which the Registrar must issue a Departure Authorisation Certificate.

    Can I be satisfied that it is likely that Mr Baena will return to Australia within a period considered appropriate?

14. The period for which Mr Baena sought the Certificate was from 1 April 2019 to 15 May 2019. I consider this to be an appropriate period given Mr Baena’s stated reasons for wishing to travel. Unfortunately, by reason of his past conduct, I cannot be satisfied that it is likely that Mr Baena will return to Australia within this period should he be permitted to leave.

15. As I have already set out, on the last occasion Mr Baena was issued a Certificate he did not return to Australia for some four months after the expiry of the Certificate. And while I have accepted his evidence as to the reason for his protracted stay in the Philippines in contravention of the conditions of the Certificate, his explanation as to why he did not request an extension by contacting the Department, for the reasons already given, is unsatisfactory.

    Should the certificate be issued on other grounds?

16. Subsection 72L(3) provides that if the Registrar (and thus the Tribunal on review) is not satisfied as to the requirements of s 72L(2), the Registrar must nevertheless issue a Departure Authorisation Certificate if the applicant has given security under s 72M, or, if the applicant is unable to give security, the Registrar is satisfied that the applicant’s departure should be authorised on humanitarian grounds or that a refusal to authorise the departure would be detrimental to Australia’s interests.

17. In this application, Mr Baena has given no security for his return to Australia. Nor am I satisfied that either of the provisions relating to the issue of a Certificate without security in s 72L(3)(b) have been met.

18. In applying for the Certificate, Mr Baena is recorded as stating that he wished to travel to the Philippines to carry out further repair work on a bus engine and to attend a family reunion. Neither of these purposes amount to humanitarian grounds.

19. Moreover, I am not satisfied that Mr Baena’s presence in the Philippines for the purpose of establishing a new chapter of the Order of the Knights of Rizal amounts to a humanitarian ground. It would seem that Mr Baena’s presence to assist in establishing the chapter is only necessary because another person – as I understand, a judge – is not available to conduct the proceedings. It would appear that the role that Mr Baena was to fulfil can be carried out by another person at a convenient time. Nor, in my view, does this purpose for Mr Baena’s travel rise to the level of a humanitarian ground on account of the content of the Order’s teachings.

20. As for s 72(3)(b)(ii), there is no evidence before me to suggest that the refusal to issue Mr Baena with a Departure Authorisation Certificate would be detrimental to Australia’s interests. I cannot but be satisfied that no such detriment would result.

    CONCLUSION

21. For the reasons stated, the decision under review, being the decision of the Respondent dated 25 March 2019 to refuse the Applicant’s application for a Departure Authorisation Certificate under s 72L of the Child Support (Registration and Collection) Act 1988 (Cth), was affirmed.

I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 30 April 2019

Date(s) of hearing:	29 March 2019
Applicant:	In person
Solicitors for the Respondent:	Mills Oakley