Blazek and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 592

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2381

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VOJTECH BLAZEK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member  

Date9 July 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

social security – assurance of support – wife of father migrated to Australia – special benefit and parenting payment paid – recovery of debt from assurer – whether valid assurance of support – whether waiver of debt desirable

Social Security Act 1991

re Davey and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114  

REASONS FOR DECISION

9 July 2008 Mr B.H. Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent to raise and recover assurance of support debts totalling $12,256.25 consisting of special benefits of $11,620.54 for the period 7 March 2003 to 10 June 2004 and parenting payments of $635.71 for the period 10 February 2005 to 6 March 2005 paid to Ms Irina Blake.

2.      At the hearing the applicant, Mr V. Blazek Jnr, was represented by his father Mr V. Blazek.  The respondent was represented by Mr A. Carson an advocate in the legal services branch of Centrelink.  The applicant did not appear personally at the hearing.

3.      Mr Blazek Snr, also known as Victor Blake, said that he married Ms Irina Blake in Czechoslovakia.  She had a Russian passport and they had to wait for one year until she could obtain a visa to Vienna for an interview at the Australian Embassy to apply for an Australian visa.  Mr Blazek Snr said that at that interview, he understood that there would be no requirement for an Assurance of Support (AoS) because he was then employed.  He said that, subsequently, he was told that an AoS would be required.  He thought this unfair and not in accord with Australian immigration policy.  Nevertheless, he completed the required form and asked his son to sign it and send it back with copies of payslips.  He said that this initial AoS was rejected, apparently on the basis that his son had been a recipient of Social Security payments within the prior 12 months.  Mr Blazek Snr said that he had not been advised that the son’s AoS had been approved subsequently and assumed when his wife’s visa was granted that the requirement for an AoS had been waived.  He said that, prior to the grant of the visa, he had arranged an offer of employment for his wife but the delay in arriving in Australia resulted in no available employment for her or himself.  He said that he had expected to be away from Australia for three months but the visa delay resulted in the absence extending to nine months.

4.      The records of the Department of Immigration and Citizenship (DIAC) show that Mr V. Blazek Jnr signed an AoS on 25 October 2002.  Initially that AoS was shown as refused on 6 November 2002 but this was amended on 9 January 2003 to show it as approved.  In a letter to Ms Blake dated 6 November 2002 from the Migration office of the Australian Embassy in Vienna she was advised that it appears that the AoS application will not be approved  and suggested that she seek another person to provide an AoS.  In a further letter to Ms Blake dated 14 January 2003 the Migration Case Officer advised that the AoS of Mr Blazek had been approved and requested her to send a copy of the letter to Mr Blazek.  Ms Blake was granted a 309 Provisional Visa on 16 January 2003 and entered Australia on 7 March 2003.

5.      A claim for Special Benefit was lodged with Centrelink on 12 March 2003 by Ms Blake.  A Module AR Assurance of Support form was sent to Mr V. Blazek Jnr and signed by him on 19 March 2003.  This form required information on income and whether he was providing any financial or other assistance to the assuree.  Mr Blazek answered no to that latter question.  By letter of 4 June 2003, Mr Blazek was advised by Centrelink that Ms Blake had been granted Special Benefit from 7 March 2003, that this was a recoverable payment under his AoS covered the period 7 March 2003 to 7 March 2005.  The letter advised that he need not make payment until requested and that he would be provided with regular statements of the amount owed.  Such statements were provided on 5 September 2003, 5 December 2003, 15 March 2004, 9 June 2004, 1 October 2004 and 15 January 2005.  The first showed a debt of $4,598.85 and the last a debt of $11,620.54 being the total of special benefit paid to 30 May 2004 when special benefit ceased.  The only response from Mr Blazek Jnr, was a statement provided to Centrelink dated 22 February 2005 in which he acknowledged the signing of an AoS but referred to the Australian Embassy letter of 6 November 2002.  The statement concluded:

If Department of Immigration stated I was not good enough for AoS.  Why should I repay the benefit that Irina and Kirill is going to get.  Therefore, I am not willing to support them.

By letter of 21 January 2006, Centrelink advised that the debt was then $12,256.25 after including parenting payment to Ms Blake from 10 February 2005 to 16 March 2005 and was payable by Mr Blazek by 19 February 2006.  On 26 February 2007, an Authorised Review Officer of Centrelink affirmed the decision to raise and recover the debt of $12,256.25.

6.      It was submitted by Mr Blazek Snr that neither he or his son were aware that any AoS by his son had been approved and would be acted upon.  As they had the letter of 6 November 2002, Mr Blazek Jnr had applied for a waiver of an AoS requirement and, at the time, employment was available in Australia for Ms Blake, he assumed that the AoS signed by his son had no effect.  He said that no copy of the AoS had been given to Ms Blake and that his son was not interviewed prior to the granting of either special benefit or parenting payment.  Mr Blazek suggested that it was very possible that the amendment on the AoS form showing it as approved had been made much later than the alleged date of 9 January 2003.  He argued that the AoS should not be accepted or enforced against his son but, if it was to be, then the mismanagement by DIAC and Centrelink should be accepted as special circumstances for the debt to be waived.  While Mr Blazek Snr did not specifically refer to the letter of 14 January 2003 to Ms Blake he appeared to be saying that no such advice had been received.

7.      It is unfortunate that Mr Blazek Jnr did not choose to appear and give evidence on his own behalf.  It is clear that he signed, presumably at the request of his father, an AoS in respect of Ms Blake and her child Kirill (then 15 years).  The heading on this form specifically states that … your undertakings in this assurance cannot be withdrawn after persons covered by this assurance are granted visas.  The wording of the declaration over the signature of the assurer is clear in stating:

I undertake to provide sufficient direct or indirect financial assistance to the person/s covered by this assurance to ensure they will not rely on any form of Australian social security benefit …

The declaration further undertakes to repay funds paid under the Social Security Act 1991 (the Act) to the assuree including special benefit and parenting payment.  It is difficult to accept that Mr Blazek Jnr was not fully aware of the undertaking he signed.  Again, given the family connection with the assuree being the new bride of his father, it is difficult to accept that neither he or his father were aware of the approval of the AoS in the letter of 14 January 2003.  As a consequence, I am satisfied that Mr Blazek Jnr is liable for the debt pursuant to s 1227(1) of the Act.

8.      It was submitted that the debt should be waived.  Section 1237AAD provides for the waiver of such debt where there are special circumstances (other than financial hardship above) that make it desirable to waive.  This requires a consideration of the person’s individual circumstances and a consideration of the general administration of the social security system.  It was argued that Mr Blazek was not told of the application of special benefit by Ms Blake.  However, at least from 5 September 2003 he was aware that special benefit was being paid and Centrelink would be seeking repayment.  Again, without the evidence of Mr Blazek Jnr, I cannot be satisfied that this was the first time that he was aware of the claim and subsequent payment.  In that letter and each succeeding letter, he was advised of his rights of review of the decision to recover a debt from him.  No apparent action occurred until 2006.  In line with decisions of this Tribunal such as re Davey and Secretary Department of Employment and Workplace Relations (2007) AATA 1114. I am unable to find that there were special circumstances to justify waiver of the debt.

9.      It follows from the foregoing that the decision under review should be affirmed.

I certify that the nine (9) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member

Signed:         Dianne Eva
  Clerk

Date/s of Hearing  4 February 2008 and 21 April 2008
Date of Decision  9 July 2008
Advocate for Applicant                Mr V. Blazek Snr

Advocate for the Respondent     Mr Andrew Carson,

Centrelink Legal Services Branch