Ceasar Fajloun and and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 32
[2013] AATA 32
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3120
Re
Ceasar Fajloun
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
File Number(s)
2012/3121
Re
Faouzi Fajloun
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 23 January 2013 Place Sydney The Tribunal affirms the decision under review.
...........[sgd].............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – assurance of support – whether assurance of support debt should be waived – whether special circumstances – whether breakdown of relationship amounted to special circumstance – whether delay in notifying applicants of social security payments a special circumstance – decision under review affirmed
LEGISLATION
Social Security Act 1991 ss 1061ZZGA, 1061ZZGG, 1061ZZGH, 1227, 1237AAD
CASES
Davy and Secretary, Department of Employment and Workplace Relations 94 ALD 693
Elsayed Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154
Hong Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867
Groth v Secretary, Department of Social Security (1995) 40 ALD 541Re Beadle and Director-General of Social Security (1984) 6 ALD 1
SECONDARY MATERIALS
Centrelink eReference 003.25660 - Determining of notification of a debt to an assurer can be delayed while the assuree seeks refuge from domestic or family violence
Minister for Education and Minister for Employment and Workplace Relations, Social Security (Assurances of Support) (DEEWR) Determination 2008
REASONS FOR DECISION
Senior Member J F Toohey
23 January 2013
BACKGROUND
Georgette Mansour and Faouzi Fajloun, who is an Australian citizen, married in Lebanon in 2009. In September 2009, Ms Mansour applied to emigrate to Australia to join Mr Fajloun. A condition of her entry into Australia was that he support her financially for two years.
In December 2009, Mr Fajloun and his cousin, Ceasar Fajloun, signed Assurances of Support (AoS) by which they undertook to support Ms Mansour and to repay any social security payments she received in the two years after her arrival in Australia. Centrelink accepted their AoS.Ms Mansour arrived in Australia on 31 March 2010, and Centrelink determined that the AoS would be in effect from 30 March 2010 to 29 March 2012.
Ms Mansour gave birth to the couple’s first child in May 2010. In July 2011, shortly after the birth of their second child, she and Mr Fajloun separated and she left the family home with the children. In August 2011, she was granted special benefit. In October 2011, she was granted parenting payment.
Centrelink contends that Faouzi Fajloun and Ceasar Fajloun are jointly and severally liable to repay a debt of $10,691.07 comprising the following amounts paid to Ms Mansour:
(i)$2,468.65 in special benefit paid from 1 August 2011 to 6 October 2011;
(ii)$8,150.42 in parenting payment paid from 7 October 2011 to 29 March 2012.
The applicants do not dispute that each gave an AoS in respect of Ms Mansour. They do not dispute that they understood the obligations it imposed. They do not dispute that Ms Mansour was paid the amounts now claimed from them but they contend there are special circumstances by reason of which at least some of the debt should be waived.
WHAT IS AN ASSURANCE OF SUPPORT?
An AoS is an undertaking to support a person (the assuree) who wishes to migrate to Australia, and to repay to the Commonwealth the amount of any social security payments received by the assuree while the AoS is in force: ss 1061ZZGA, 1061ZZGG, 1061ZZGH of the Social Security Act1991 (the Act).
The binding and irrevocable nature of an AoS is illustrated by the following:
·it must be given unconditionally;
·it cannot be withdrawn once the assuree is granted the visa in respect of which it was given; and
·it remains in force notwithstanding any change in circumstances whatsoever: ss 1061ZZGGEA and s 1061ZZGF(4).
An AoS ceases to be in force only in the limited circumstances set out in the Social Security (Assurances of Support) (DEEWR) Determination 2008. They are:
·if the assuree is granted refugee status after arriving in Australia;
·if the assuree’s visa is cancelled; or
·if the assuree dies, or is incapacitated and cannot travel to Australia.
As well, the Secretary may cancel an AoS if the assurer’s ability to provide support is critically affected by accident, disability or illness: cl 18.
For reasons which are not clear, but which do not matter, Ms Mansour’s immigration status changed on 7 October 2011. Up until that date, she held a temporary visa. From that date, she was granted a permanent visa, the effect of which was that she became eligible for certain social security payments (which explains why she was paid parenting payment from that date).
The only circumstances in which an AoS ceases to be in force are those described above. The cessation of one visa in favour of another is not a cancellation for the purposes of the Determination. For this reason, the change in Ms Mansour’s migration status had no bearing on the applicants’ obligations under the AoS they gave (see Elsayed Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154).
DO THE APPLICANTS HAVE A DEBT ON ACCOUNT OF THEIR ASSURANCE OF SUPPORT?
A person who is liable to pay an AoS debt has a debt due to the Commonwealth: s 1227(1) of the Act.
If the AoS is given by more than one person, all of the persons who gave it are jointly and severally liable to pay the Commonwealth the amount of the social security payment: s 1061ZZGG(3).
The applicants do not dispute, and I am satisfied that they are jointly and severally liable to repay the amount claimed. The issue is whether all, or any part, of the debt should be waived.
Circumstances of the separation and payments to Ms Mansour
Ms Mansour left the family home on 27 July 2011, when her second child was three-weeks-old, and moved to a women’s refuge. Two days earlier, she obtained a provisional Apprehended Domestic Violence Order (AVO) against her husband. According to her AVO application, she had been subjected to ongoing violence by Mr Fajloun, and her younger child had sustained a head injury.
Mr Fajloun maintains that he was not aware that Ms Mansour was unhappy in the marriage, and the first he knew of the separation was when police arrived at their house on 27 July 2011 to escort her and the children as they moved out.
Documents provided to the Tribunal by Centrelink show that, on 29 July 2011, a worker from the refuge contacted Centrelink to inquire about Ms Mansour’s eligibility for social security payments.
On 12 August 2011, Ms Mansour lodged a claim for special benefit with Centrelink. (At that time, her temporary immigration status meant she was not eligible for any other payment.) She stated she had separated from her husband due to domestic violence and was living in a refuge.
Centrelink records show that Ms Mansour attended a Centrelink office on 13 September 2011 in connection with her claim for special benefit. She was accompanied by a support worker from the refuge. She stated she had been living at the refuge since leaving the family home; it was a “safe place” and she was well-supported there; she had not had contact with Mr Fajloun since leaving and had no plans to reconcile with him. The record notes that the AVO was to be heard on 29 September 2011.
On 14 September 2011, Ms Mansour was granted special benefit as from 1 August 2011. From 7 October 2011, she was granted parenting payment.
On 29 September 2011, Ms Mansour’s application for an AVO was dismissed and Mr Fajloun was awarded $500 in costs. The reasons for the dismissal and costs order are not before the Tribunal. Orders were subsequently made in the Family Court of Australia for Ms Mansour to have custody, and Mr Fajloun to have access to the children.
Notification to the applicants
Usually, Centrelink will speak to an assurer before providing financial support to an assuree (see: However, notification may be delayed in cases of domestic violence (see: Centrelink eReference 003.25660 – Determining of notification of a debt to an assurer can be delayed while the assuree seeks refuge from domestic or family violence).
The stated purpose of delaying notification to an assurer is as follows:
When an assuree applies for income support from Centrelink and claims that they are escaping a situation of domestic or family violence and that they are fearful of the assurer’s reaction to them claiming Centrelink payments, the Centrelink social worker will discuss the situation with assuree before any contact with assurer is made by Centrelink.
[…] The intention of this procedure is to delay notification of a debt to the assurer while the assuree seeks refuge from domestic or family violence.
…
[…] The intention is that this delay in debt notification may create a window of opportunity for the assuree to leave the domestic or family violence situation.
According to the procedure, in most cases an initial three month period should be sufficient time for the assuree to relocate safely so that she or he is not vulnerable to an adverse reaction from the assurer. However, if the social worker determines there is continued risk, notification may be delayed for a further three months, but for no longer than six months.
There is no evidence of a formal assessment of risk by the social worker at any point in Ms Mansour’s claim for special benefit. However, as the Tribunal observed in Hong Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867, Centrelink officers are not required to conduct investigations and decide competing claims as to whether domestic violence has taken place or not; they are entitled to act on the material put before them in support of an application. In my view, when Ms Mansour attended the Centrelink office with a refuge worker, it was reasonable for Centrelink to put the delayed notification procedure in place.
Mr Fajloun strenuously denies the allegations of violence. It is not necessary for me to make any finding about the allegations, and I make no such finding.
A note of an interview with Ms Mansour on 17 January 2012 shows that she left the refuge on 22 November 2011 and had been living in private rental accommodation. She said Mr Fajloun “still has frequent contact with the children” and unsupervised contact two afternoons a week; she was hoping to reconcile with him but he had shown no remorse and she did not wish to pursue this; she was receiving child support payments from him.
On 19 January 2012, Centrelink wrote to both applicants advising that Ms Mansour had been granted special benefit and parenting payment and, to that date, had been paid $6,933.99 which they were required to pay when the assurance of support period ended.
A purpose of notifying an assurer of proposed or actual payments to an assuree is to give the assurer the opportunity to offer continuing support and for Centrelink to consider the reasonableness of any offer, and of any refusal by an assuree to accept it.
From what I can see, the delay in notifying the applicants of the accruing debt was longer than was necessary to achieve the purpose of securing Ms Mansour’s safety. Further, there is no evidence that the applicants were given any opportunity to offer continuing support. I cannot see in the material before me any documented assessment of the risk to her of contacting the applicants before January 2012.
The applicants say they would have continued to support Ms Mansour and the children and ensure they were provided for, had they been given the opportunity. Mr Ceasar Fajloun says either of his parents, who live apart in large homes, would have provided accommodation and, if that was not suitable to Ms Mansour, they would have rented a fully furnished apartment for her and the children. Both applicants say they would have provided financial support for other expenses, although they maintain she could have lived on considerably less than the Centrelink payments, thereby reducing their debt to Centrelink.
I accept that both applicants were prepared to continue to support Ms Mansour for the AoS period. I cannot see in the material before me anything to suggest they were given the opportunity to make such an offer so that its reasonableness might be assessed and put to Ms Mansour. Regardless of whether she would have accepted it, it is understandable that the applicants feel aggrieved by the process.
SHOULD ANY OR ALL OF THE DEBT BE WAIVED?
A debt may be waived if it did not result wholly or partly from the debtor knowingly making a false statement or a false representation, or failing or omitting to comply with the relevant legislation; and there are special circumstances, other than financial hardship alone, that make it desirable to waive; and it is more appropriate to waive than to write off the debt or part of the debt: s 1237AAD.
The Act does not define “special circumstances” and gives no guidance as to its meaning in s 1237AAD. It has been observed many times by the Courts and this tribunal that the expression is “by its very nature incapable of precise or exhaustive definition” and will depend on the particular case. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 Toohey J said at 3:
An expression such as “special circumstances” is by its very nature incapable of precise definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of the descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances are markedly different from the usual run of cases. That is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J observed:
… it would require something to distinguish Mr Groth’s case from others, to take 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.
In Davy and Secretary, Department of Employment and Workplace Relations 94 ALD 693, Deputy President Forgie said:
… “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.
In Davy, there being no injustice or unfairness to the applicant that was not “visited, or potentially visited, upon all other recipients of social security payments under the Act”, the Tribunal was not satisfied it was desirable to waive the debt under s 1237AAD of the Act.
The applicants believe that Ms Mansour’s marriage to Mr Faouzi Fajloun was not genuine, and that she only entered the marriage in order to migrate to Australia. I cannot reach any conclusion about that, even if it were true, it would not amount to a special circumstance, and nor is the fact that a marriage breaks down unusual or out of the ordinary.
I am not satisfied that the delay in notifying the applicants that payments were being made to Ms Mansour constitutes special circumstances. It is usual Centrelink practice to delay notification in such cases, and was appropriate in the circumstances. Even if they had been notified sooner, the outcome would most probably have been the same; Ms Mansour and Mr Fajloun would not have reconciled, and she would have continued to claim, and be paid, benefits. The fact that the applicants believe she could have lived on a lesser amount than Centrelink payments is not the point.
I accept that both applicants undertook in good faith to support Ms Mansour, and it is understandable that both feel aggrieved at how things have turned out but, as the legislation makes clear, Assurances of Support are intended to bind persons giving them in all but special circumstances. For the reasons I have given, I am not satisfied there are special circumstances in this case.
I affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. .........[sgd]...............................................................
Associate
Dated 23 January 2013
Date(s) of hearing 17 January 2013 Applicant In person Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
2
2
0