Christanty and Secretary, Department of Social Services (Social services second review)
[2015] AATA 627
•7 August 2015
Christanty and Secretary, Department of Social Services (Social services second review) [2015] AATA 627 (7 August 2015)
Division
GENERAL DIVISION
File Number(s)
2015/0642
Re
Enny Christanty
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 7 August 2015 Date of written reasons 24 August 2015 Place Sydney The decision of the Social Security Appeals Tribunal, dated 6 January 2015, is affirmed.
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Deputy President J W Constance
Catchwords
SOCIAL SECURITY – widow allowance – assurance of support – whether assurance of support in force – whether grounds for cessation – whether precluded from receiving widow allowance
Legislation
Social Security Act 1991 (Cth) ss 408BB, 1061ZZGA, 1061ZZGF
Cases
Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154
Fajloun and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 32
Secondary Materials
Social Security (Assurances of Support) (DEEWR) Determination 2008 (Cth) cl 17, 18
REASONS FOR DECISION
Deputy President J W Constance
24 August 2015
Ms Christanty lodged two separate claims for payment of Widow Allowance on 23 April 2014 and 27 May 2015.
Each claim was refused by Centrelink on the grounds that Ms Christanty was not eligible to receive Widow Allowance as she was covered by an Assurance of Support until 26 April 2018. This had the effect of precluding her from receiving Widow Allowance.
The decisions were affirmed by an Authorised Review Officer of Centrelink and then by the Social Security Appeals Tribunal.
Ms Christanty has applied to this Tribunal for a review of the decision of the Social Security Appeals Tribunal.
At the hearing of Ms Christanty’s application, I delivered an oral decision affirming the decision of the Social Security Appeals Tribunal. My reasons for that decision follow.
BACKGROUND
Ms Christanty first arrived in Australia in 1983. After remaining in Australia for 10 years on tourist visas, Ms Christanty returned to Indonesia. She subsequently returned to Australia in 2002.
Since 2002, Ms Christanty has spent the majority of her time in Australia. She has lived in Australia under a series of visas. Significantly, on 16 August 2007, Ms Christanty applied for a Subclass 143 Contributory Parent (Migrant) visa. A mandatory requirement of that visa was that the visa holder is subject to an Assurance of Support.
An Assurance of Support is an undertaking given by one person to repay the Commonwealth any social security payments received by another person who has been granted a visa in reliance upon that undertaking.
On 24 September 2007, Ms Christanty’s brother, Mr Kwik, applied to Centrelink to provide an Assurance of Support. In a statement signed by Mr Kwik on that date, he asserted that he understood that:
I am required to provide sufficient direct or indirect financial assistance to the person(s) listed in the Application to provide an Assurance of Support that I have signed to ensure that they will not rely on Centrelink payments.
I am required to repay to the Australian Government the full amount of any Centrelink payments that are affected by an Assurance of Support paid to any person(s) listed in the Application...
...
the Assurance of Support remains in force for a period of 2 years for all visa subclasses, except subclasses 143 and 864, for which the period is 10 years. This period begins on the day the person(s) for whom I have given the Assurance of Support arrive(s) in Australia or is granted the visa for which the Assurance of Support was required, whichever happens later.
...
After Mr Kwik paid a bond of $10,000, which Centrelink had informed him would be held for the duration of the Assurance of Support, Centrelink accepted that Assurance of Support. Pursuant to that acceptance, Ms Christanty’s application for a Subclass 143 Contributory Parent (Migrant) visa was granted.
Ms Christanty was granted Australian citizenship in 2009.
After an earlier claim was rejected on the grounds that Ms Christanty was subject to an Assurance of Support, Ms Christanty applied for, and was granted, Newstart allowance on 1 April 2011.
Ms Christanty’s Newstart allowance was later cancelled in June of that year on the grounds that she was subject to an Assurance of Support. Pursuant to that Assurance of Support, Mr Kwik accrued a debt to the Commonwealth of $2,770.11, being the amount of Newstart paid to Ms Christanty.
Ms Christanty sought a review of this decision by an Authorised Review Officer and then by the Social Security Appeals Tribunal. Each affirmed the decision on the basis that Ms Christanty was subject to an Assurance of Support. This Tribunal subsequently affirmed the decision of the Social Security Appeals Tribunal on 31 July 2012.[1] An appeal to the Federal Court was dismissed,[2] and special leave to appeal the decision to the Full Court of the Federal Court[3] and the High Court[4] was refused.
[1] Christanty and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 497.
[2] Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1360.
[3] Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 33.
[4] Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] HCASL 90.
Ms Christanty lodged a third claim for Newstart Allowance in July 2012. This claim was rejected by Centrelink, in a decision ultimately affirmed on review by this Tribunal on 14 April 2014.
Seven days after that decision, Ms Christanty lodged the first of her claims for Widow Allowance.
LEGISLATION
Eligibility for payment of the widow allowance is governed by the Social Security Act 1991 (Cth).
Section 408BB of the Act provides that:
A woman is not qualified for widow allowance in respect of a period if the Secretary is satisfied that:
(a) an assurance of support is in force in respect of the woman for that period; and
(b) throughout the period the person who gave the assurance of support is likely to be willing and able to provide an adequate level of support to the woman; and
(c) throughout the period it would be reasonable for the woman to accept that support.
An Assurance of Support is defined in section 1061ZZGA as:
... 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.
Section 1061ZZGF details when an assurance is in force. It states:
(1) For the purposes of this Act, an assurance of support that has been given in respect of a person identified in the assurance and has been accepted under this Chapter:
(a) comes into force in respect of the person at the later of the following times:
(i) the time at which the person becomes under the Migration Act 1958 the holder of the visa that was granted under that Act in connection with the assurance;
(ii) the time at which the person enters the migration zone (as defined in that Act) as the holder of the visa; and
(b) remains in force in respect of the person until the earliest of the following times:
(i) the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;
(ii) the time (if any) determined by the Secretary under subsection (2);
(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.
...
(2) The Secretary may determine that the assurance of support ceases to be in force in respect of the person at the time (which may be before the determination is made) another assurance of support comes into force in respect of the person.
...
(4) Except as provided by paragraph (1)(b), an assurance of support that has come into force in respect of a person remains in force in respect of that person in spite of any change in circumstances whatsoever (including any purported withdrawal, however described, of the assurance).
By way of determination, the Social Security (Assurances of Support) (DEEWR) Determination 2008 provides at clause 17 that an assurance of support for a Contributory Parent (Migrant) (Class CA) visa remains in force for a period of 10 years.
Clause 18 of the Determination provides that an assurance ceases to be in force in limited circumstances. It provides:
For subparagraph 1061ZZGF (1) (b) (iii) of the Act, the following circumstances are specified:
(a) after arrival in Australia, a person identified in an assurance of support is granted refugee status;
(b) the visa of a person identified in an assurance of support is cancelled.
(c) a person is the only person identified in an assurance of support and the person dies;
(d) the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support:
(i) an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support;
(ii) the incapacity of a person identified in an assurance of support to travel to Australia before the expiration of a visa.
Note Financial hardship on the part of an assurer will not, of itself, be considered a special circumstance.
ISSUES
The issues in dispute are:
(a)is Ms Christanty subject to an Assurance of Support which is in force?
(b)If yes, should that Assurance of Support be ceased?
(c)If no, is Ms Christanty precluded from receiving the Widow Allowance on account of the Assurance of Support?
CONTENTIONS OF MS CHRISTANTY
In her Application for Review, filed in this Tribunal on 12 February 2015, Ms Christanty stated under the heading “Reasons for Application” in part:
I’m not under Assurance of Support, I request the document from Immigration (Fill Form 424A). In 2005, I applied 103 Visa. After 2 years I’m not under Assurance of Support. I have been granted Newstrat [sic] Allowance on 1st April ‘11.
Ms Christanty has provided the Tribunal with a copy of an application for a Subclass 103 visa, completed on 3 March 2004. A Subclass 103 visa was only subject to a two year Assurance of Support period. In relation to that visa application, Ms Christanty said:
It’s on that visa, visa 103, is only need two years’ waiting period. But they didn’t grant it until 2007. So I write a letter... to the Minister.
The Minister say to me, “If you’re changing to the 143 visa, three months you been granted your permanent residence”.[5]
[5] Transcript, 07/08/2015, p.9.
Ms Christanty also sought to rely on the payment of Newstart Allowance to her in 2011. She stated that at that time, nothing said that she was under an Assurance of Support. Centrelink did not say anything to her about an Assurance of Support.
On 28 February 2015, Ms Christanty re-commenced employment. She seeks the payment of widow allowance from 7 April 2014, when her previous employment ceased, up until that time.
CONSIDERATION
Is Ms Christanty subject to an Assurance of Support which is in force?
I am satisfied that Ms Christanty is subject to an assurance of support until 2018.
Ms Christanty was granted a subclass 143 Contributory Parent (Migrant) visa which is subject to an Assurance of Support for a period of 10 years. Prior to the visa being granted, Ms Christanty’s brother, Mr Kwik entered into an Assurance of Support arrangement for a period of 10 years. The Act makes clear that the Assurance of Support continues to apply even though Ms Christanty does not still hold a subclass 143 visa.[6]
[6] Social Security Act 1991 (Cth) s 1061ZZGA(a)(ii)
Despite Ms Christanty’s claims that she was granted a visa with only a two year assurance of support, I can find no support for this contention. I do have before me a copy of an application for a Subclass 103 visa.[7] I am satisfied that this application was received by the Department of Immigration on 22 March 2004. Nonetheless, this only establishes that an application was made. Departmental records[8] contain no record of any such application being granted. Furthermore, there is no evidence of an Assurance of Support being entered into in support of the visa application. This is despite an Assurance of Support being a mandatory requirement of the visa which Ms Christanty alleges that she was granted. In such circumstances, I am satisfied that Ms Christanty was never granted a Subclass 103 visa.
[7] Exhibit A2.
[8] Exhibit R3.
Ms Christanty also sought to rely upon the payment to her of Newstart Allowance in 2011 to suggest that she was not subject to an Assurance of Support. It has been made clear in previous decisions of this Tribunal, and of the Federal Court, that the decision to grant Newstart Allowance did not impact upon the continued operation of the Assurance of Support. As a consequence of the payment of Newstart Allowance, Mr Kwik, as the assurer, currently owes a debt to the Commonwealth. Although Ms Christanty may have been advised that she was not subject to an Assurance of Support at that time, any such advice was erroneous. The evidence that Ms Christanty is subject to an Assurance of Support until 2018 is unequivocal.
Should that Assurance of Support be ceased?
The circumstances in which an assurance of support can be ceased are:
(a) after arrival in Australia, a person identified in an assurance of support is granted refugee status;
(b) the visa of a person identified in an assurance of support is cancelled.
(c) a person is the only person identified in an assurance of support and the person dies;
(d) the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support:
(i) an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support;
(ii) the incapacity of a person identified in an assurance of support to travel to Australia before the expiration of a visa.
Ms Christanty has not been granted refugee status and her subclass 143 visa was not cancelled. The cancellation of a visa has a specific meaning under the Migration Act 1958 which does not encompass cessation of a visa.[9] The only basis upon which Ms Christanty can argue for the assurance of support to be ceased is therefore sub-clause (d).
[9] Fajloun and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 32, [10]; see Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154, [20]: “There is a clear distinction under the Migration Act 1958 (“the Migration Act”) between a visa which is cancelled and a visa which has ceased. The "cancellation" provisions in the Migration Act are linked to very specific circumstances: subs 82(1). "Cessation" of a substantive visa is also specifically dealt with under the Migration Act. To that end, s 82(2) relevantly provides that a substantive visa held by a non-citizen "ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes in to effect.”
In terms of special circumstances, I adopt what SM Isenberg said in Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:[10]
The scope of what might be considered to be special circumstances is, in my view, narrower than that applicable to other aspects of social security legislation: eg s 1237AAD Social Security Act 1991. The present Determination uses strong words: an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support. This differs from those in s 1237AAD which, in the absence of what amounts to dishonesty, require only that there are special circumstances (other than financial hardship alone) that make it desirable to waive rather than write off the debt. Even applying that section, in Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court's decision in Beadle’s case [1984] AATA 176; (1985) 60 ALR 225, observed that special circumstances:
Would require something to distinguish Mr Groth's case from others, to take it 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.
[10] [2010] AATA 154, [23].
There is no evidence that the assurer, Mr Kwik, has suffered an accident, disability or other circumstances which have critically affected his ability to provide adequate support to Ms Christanty. I note also that Ms Christanty has also not been prevented from travelling to Australia before the expiration of her visa. I cannot therefore be satisfied that either subparagraph (d)(i) or (d)(ii) have been met. There is therefore no basis under the Determination to cease the Assurance of Support.
Is Ms Christanty precluded from receiving the Widow Allowance on account of the Assurance of Support?
Section 408BB of the Act provides that a person is not qualified for the widow allowance if they are subject to an Assurance of Support, and the assurer is likely to be willing and able to provide an adequate level of support, and throughout the period it would be reasonable for the person to accept that support.
Ms Christanty did not suggest to this Tribunal that her brother was not willing and able to support her adequately, nor did she suggest for any reason that it was not reasonable for her to accept his help.
In 2007, Mr Kwik signed a declaration in which he declared that he understood that he was required to provide “sufficient direct or indirect financial assistance” to Ms Christanty. The Social Security Appeals Tribunal spoke to Mr Kwik on 6 January 2015, at which time he stated that if Ms Christanty requires his support, he remains willing to provide it. This is consistent with what Mr Kwik told the Social Security Appeals Tribunal in 2013.
There is nothing before me to suggest that Mr Kwik is not willing and able to provide Ms Christanty with assistance should she require it. Furthermore, there is no evidence that suggests that it is unreasonable for Ms Christanty to accept the assistance of her brother. Ms Christanty did not suggest to this Tribunal, nor is there evidence to suggest, that any such support would be conditional. Although the relationship between Ms Christanty and her brother may be strained, and Ms Christanty may not want to accept his help, this does not make it unreasonable for her to do so.
In the circumstances, I am satisfied that it was, and remains, likely that Mr Kwik will continue to be willing and able to support Ms Christanty to an adequate level, and that it is reasonable for Ms Christanty to accept any such support.
In accordance with section 408BB of the Social Security Act 1991 (Cth), Ms Christanty was not qualified for widow allowance at the time of her claims and at any time since.
CONCLUSION
The decision of the Social Security Appeals Tribunal, being the decision that Ms Christanty was not entitled to the payment of widow allowance, will be affirmed.
I certify that the preceding 42 (forty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated 24 August 2015
Date(s) of hearing 7 August 2015 Date final submissions received 7 August 2015 Applicant In person Solicitors for the Respondent G Heggen, Department of Human Services
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