Demirci and Secretary, Department of Family and Community Service S

[2003] AATA 601

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/228

GENERAL ADMINISTRATIVE DIVISION		)
Re		KENAN DEMIRCI

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date27 June 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – debt – Assurance of Support - special benefit – social security payments made to a person for whom the applicant has given an Assurance of Support – whether monies paid to the social security recipient should be recovered from the applicant – waiver – whether special circumstances exist

Social Security Act 1991

Migration Regulations 1994

Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 60 ALR 225
Re Cuc and Secretary, Department of Social Security (1994) 85 SSR 1242

REASONS FOR DECISION

27 June 2003 Mr K L Beddoe, Senior Member  

1.      This is an application for review of a decision of the respondent, made on 14 November 2001, to recover an amount of social security benefits paid to the applicant’s wife during the period 25 November 1999 to 20 July 2001.  That decision was affirmed by an authorised review officer (on 20 December 2001) and then by the Social Security Appeals Tribunal (on 4 February 2002).  The applicant has sought a review of the decision by this Tribunal.

2. The Tribunal heard this matter on 6 November 2002 at Bundaberg. The applicant was represented at the hearing by Ms Brennan of counsel. The respondent was represented by Ms Wallis-Dunn, a Departmental Advocate. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and the following documentary exhibits:

§Exhibit A:      Notices of Income Tax Assessments for years ended 2000, 2001 and 2002;

§Exhibit B:      Signed statement of the applicant, dated 29 October 2002;

§Exhibit 1:      Attachments to the respondent’s statement of facts and contentions.

3.      The applicant does not challenge the manner in which the debt has been calculated.  Instead, the applicant contends that the right to recover the debt should be waived on the basis of special circumstances.

4.      The facts of this case are not in dispute and, therefore, the Tribunal makes the following findings of fact. 

5.      The applicant is a naturalised Australian, who was born in Turkey on 3 February 1960.  He is the father of, and primary carer for, two children, both of whom suffer from autism.

6.      In September 1998, following a divorce from his first wife, the applicant married Turkan Yavuz in Turkey.  On 24 June 1999, the applicant signed an Assurance of Support document with the Department of Immigration and Multicultural Affairs in respect of Turkan, for the period 22 July 1999 to 21 July 2001. 

7.      Turkan arrived in Australia on 22 July 1999, but left the matrimonial home in November alleging domestic violence by the applicant and his sister.  She claimed, and was paid, Special Benefit by Centrelink during the period 25 November 1999 to 20 July 2001.  The applicant was advised of the decision to pay Special Benefit to Turkan and of his obligations in relation to the reimbursement of those benefits by letter dated 6 January 2000 (T7, folio 23). Turkan received benefits totalling $17,691.18 during the relevant period. 

8.      On 14 November 2001, Centrelink raised an Assurance Support debt against the applicant, in the amount of $17,691.18, and sought to recover that money from him.  The applicant has repaid the debt in full, but now seeks waiver on the debt on the grounds of special circumstances.

Legislative Framework

9.      Pursuant to Regulation 2.33 of the Migration Regulations 1994, if a person receives social security support in the form of a Special Benefit whilst an Assurance of Support is in effect in relation to that person, an amount equal to the amount of the benefits paid to the person is a debt due to the Commonwealth by the assurance giver. 

10. Section 1227 of the Social Security Act 1991 (the Act) further provides that, if a person is liable to pay an Assurance of Support debt, the debt is a debt due to the Commonwealth which can be recovered by the Department. 

11.     The Social Security Appeals Tribunal in this case considered the decision in Re Cuc and Secretary, Department of Social Security (1994) 85 SSR 1242 to be authority for the view that a promise given under an Assurance of Support is unconditional regardless of the circumstances which gave rise to the payment.  The Tribunal does not agree with that approach.  Whilst it is clearly intended that monies paid to a social security recipient where there is an Assurance of Support in existence are to be recovered, the fact that such monies are treated as a debt to the Commonwealth means that the debt is recoverable pursuant to the provisions of the Act and, accordingly, the right to recover the debt may be subject to the waiver provisions in the Act, where appropriate.

12.     In relation to the waiver of the debt, the Act provides that, in certain circumstances, the right to recover a debt due to the Commonwealth can be waived.  Those circumstances include cases where there has been an administrative error by the Department which was the sole reason the debt arose, or cases where there are “special circumstances” which would warrant the debt being waived.  There is no suggestion in this case that the debt arose from administrative error.

13.     The “special circumstances” provisions are contained in section 1237AAD of the Act.  That section provides:

“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)    making a false statement or false representation; or

(ii)   failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.”

14.     In order for the circumstances of this case to be considered “special” there must be circumstances which are “unusual”, “uncommon” or “exceptional” (see Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3). In Beadle v Director-General of Social Security (1985) 60 ALR 225, the Full Federal Court observed (at 228) that the phrase “special circumstances” would usually include events that rendered the operation of the statute in a particular case “unfair or inappropriate”.

15.     The applicant contends that the state of health of his children, and his financial situation, would amount to special circumstances.  The applicant and his two children reside with the applicant’s aged parents in rental accommodation in Bundaberg.  The applicant works on farms when such work is available, and in 2002 he earned $22,276. 

16.     The applicant’s two children have autism and learning difficulties. The youngest also has speech difficulties. Both need special care. The applicant contends that the $17,691.18 he paid to the respondent could have been used instead for a deposit on a house or on maintaining the family.  He contends that he has limited assets and, since the debt was raised, has been limited in his financial spending and can only afford the necessities of life. 

17.     However, the Tribunal is not satisfied that the applicant’s circumstances are sufficiently “unusual”, “uncommon” or “exceptional” to warrant the exercise of the discretion in section 1237AAD.  The applicant’s children were unwell prior to him giving his Assurance of Support.  There is no evidence that their condition has deteriorated recently, or that the requirement to repay the debt has had any particularly adverse affects upon them.  Further, the applicant’s financial situation could not be described as “unusual”, “uncommon” or “exceptional”..  Throughout the period of the overpayment, the applicant was unable to buy luxuries and could only spend money on the necessities of life.  This is no different to many other people in society, particularly people who may be repaying debts, or people who are in receipt of social security payments.

18.     Accordingly, the Tribunal finds that there are no special circumstances in this case to warrant the waiver of the Commonwealth’s right to recover the Assurance Support debt from the applicant.

19.     The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member

Signed:         .......................................................................................
  Associate

Date of Hearing  6 November 2002 (at Bundaberg)
Date of Decision  27 June 2003

Counsel for the Applicant         Ms Brennan
Solicitor for the Applicant          Charlton, Muller & Madders
For the Respondent                  Ms Wallis-Dunn, Departmental Advocate