Dixon and Child Support Registrar (Child support)
[2021] AATA 4602
•13 December 2021
Dixon and Child Support Registrar (Child support) [2021] AATA 4602 (13 December 2021)
Division:GENERAL DIVISION
File Number: 2021/5506
Re:Mr Billy Christopher Dixon
APPLICANT
AndChild Support Registrar
RESPONDENT
Date: 13 December 2021
Place:Brisbane
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent dated 3 August 2021.
...............[SGD].....................
Senior Member B. Pola
Catchwords
CHILD SUPPORT – refusal to issue a departure authorisation certificate – child support debt – where the applicant is unable to give security – whether a departure authorisation certificate should be issued on humanitarian grounds – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
Bettison and Child Support Registrar (Child support second review) [2016] AATA 592
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Whittaker v Child Support Registrar [2010] FCA 43
Secondary Materials
Child Support Guide
REASONS FOR DECISION
Senior Member B. Pola
13 December 2021
BACKGROUND
The Applicant in this matter, Mr Billy Christopher Dixon, separated from the mother of his two children (born in 2003 and 2006)[1]. The Tribunal notes that the Applicant’s first child, born in 2003, recently turned eighteen years of age and is no longer an eligible child for the purposes of providing child support. The Tribunal observes there is still some two and half years until the Applicant’s second child, born in 2006, reaches eighteen years of age.
[1] Exhibit R1, Section 37 T Documents, T22, page 107.
On 18 April 2007, the mother of the Applicant’s two children requested Services Australia (herein referred to as the ‘Agency’) to calculate the relevant amount of child support owed from the Applicant. The Agency subsequently wrote to the Applicant notifying him of an administrative assessment for child support, with the case subsequently registered in a private collection arrangement[2].
[2] Ibid, T5, page 32; T22, pages 107 to 110.
On 28 August 2007, the mother of the Applicant’s two children requested the Agency collect, on her behalf, arrears of child support for the period of 28 May 2007 to 27 August 2007, an arrangement which has remained in place to present[3].
[3] Ibid, page 110.
On 29 May 2019, a delegate of the Registrar made a Departure Prohibition Order (herein referred to as a ‘DPO’) pursuant to section 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (herein referred to as the ‘Collection Act’) to prohibit the Applicant from departing Australia for a foreign country[4].
[4] Ibid, T9, pages 42 to 43; T10, page 44.
On 7 May 2021, the Applicant booked tickets on Singapore Airlines to travel to London Heathrow Airport, departing Melbourne 12 July 2021 and arriving on 13 July 2021, with flights from London Heathrow Airport to Edinburgh booked for 27 July 2021[5]. On 2 July 2021, the Department of Home Affairs wrote to the Applicant confirming that he met the travel exemption criteria concerning departure from Australia on the basis that he is ordinarily a resident in a country other than Australia[6]. On 23 July 2021, the Australian Federal Police notified the Agency that the Applicant was attempting to depart Australia from Melbourne Airport[7]. The Applicant was stopped by Federal police at the airport from departing Australia[8].
[5] Ibid, T19, pages 72 to 73.
[6] Ibid, T12, page 46.
[7] Ibid, T21, page 99.
[8] Ibid, page 97.
On 26 July 2021, the Registrar received a verbal application from the Applicant for a Departure Authorisation Certificate (here in referred to as ‘DAC’)[9].
[9] Ibid, T16, page 50.
On 3 August 2021, a delegate of the Registrar refused to issue the Applicant with a DAC[10].
[10] Ibid, T2, page 7.
On 10 August 2021, the Applicant applied to the Administrative Appeals Tribunal for review of the decision to refuse to issue a DAC[11].
[11] Ibid, T1, pages 1 to 6.
A hearing into this application was held on 2 December 2021, with the Applicant (who was self-represented), and the Respondent (represented by Ms Maleah Underhill of Services Australia), both appearing via telephone. The Tribunal heard oral submissions from both parties, and additionally considered submissions as outlined in the Exhibit Register, in Annexure 1 of these reasons.
ISSUE
The issue for the Tribunal to consider is whether, or not a Departure Authorisation Certificate (DAC) should be issued to the Applicant in accordance with section 72L of the Collection Act.
JURISDICTION
Section 72T of the Collections Act provides:
72T Applications for review of certain decisions
(1)Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar under section 72I, 72L or 72M.
(2)In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
The Tribunal is satisfied that it has relevant jurisdiction to review the decision of the Respondent, dated 3 August 2021, not to issue the Applicant with a DAC pursuant to section 72L of the Collections Act, in accordance with section 72T(1) of the Collections Act.
RELEVANT LEGISLATIVE FRAMEWORK
Section 3 of the Collection Act states:
3 Objects of Act
(1)The principal objects of this Act are to ensure:
(a)that children receive from their parents the financial support that the parents are liable to provide; and
(b)that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and
(c)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
DPO’s are issued in accordance with section 72D of the Collections Act, which provides:
72D Registrar may make departure prohibition orders
(1)The Registrar may make an order (a departure prohibition order)
prohibiting a person from departing from Australia for a foreign country if:
(a) the person has a child support liability or carer liability; and
(b)the person has not made arrangements satisfactory to the Registrar for the liability to be wholly discharged; and
(c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i)child support debts arising from a registrable maintenance liability under section 17; or
(ii)a child support debt arising from a registrable maintenance liability under section 17A; or
(iii)one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); or
(iv)a carer liability; and
(d)the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i)wholly discharging the child support liability or carer liability; or
(ii)making arrangements satisfactory to the Registrar for the child support liability or carer liability to be wholly discharged.
(2)For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:
(a)the capacity of the person concerned to pay the debt or debts;
(b)the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;
(c)if subparagraph (1)(c)(i) applies—the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(d)if subparagraph (1)(c)(ii) or (iv) applies—the length of time for which the debt mentioned in that subparagraph has remained unpaid after the day on which it became due and payable;
(da)if subparagraph (1)(c)(iii) applies:
(i)the length of time for which the debts mentioned in that subparagraph have remained unpaid after the day on which they became due and payable; and
(ii)the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(e) such other matters as the Registrar considers appropriate.
(3)A departure prohibition order must be in the approved form.
Note: For approved form see section 72X.
A person who has a DPO in place can apply under section 72L for a DAC to allow them to leave Australia. Under section 72L of the Collection Act, the Registrar must issue a DAC where the following circumstances are made out:
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 is not 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
The Tribunal observes relevant authority from the Federal Court in the decision of Whittaker v Child Support Registrar[12], where their Honor Lingren J stated that the purpose of DPO’s, with respect to the purpose of the Collection Act:
… are, inter alia, to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis: s 3(1)(a) and (b) of the Collection Act. The connection between a departure from Australia of the parent liable and discharge of his or her child support liability is obvious: enforcement of the obligation to pay is likely to be more difficult if the person liable is out of Australia…
…
Generally speaking, the terms of s 72D(1) show that a DPO is intended to “ensure” that a person does not depart from Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the Registrar for its discharge. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated…
[12] [2010] FCA 43 at [250]; [291].
The Tribunal notes the Department has issued a Child Support Guide[13] (herein referred to as the ‘Guide’), which seeks to provide additional guidance for decision makers in exercising discretion when making determinations under the Collections Act.
[13] Child Support Guide, ‘5.2.11 Departure prohibition orders’.
Whilst the Tribunal is not bound to strictly apply such guidance, the Tribunal refers to His Honour Brennan J in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2)[14], where he stated the following in relation to the Tribunal applying Ministerial policy:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
[Tribunal bold for emphasis]
[14] [1979] AATA 179.
In view of this, the Tribunal has regard to Chapter 5.2.11 of the Guide which applies to DPO’s and DAC’s. Relevantly, it states:
… The Registrar believes it is desirable to make a DPO
The purpose of a DPO is to secure payment of a child support debt or a carer debt.
The Registrar will not make a DPO unless there are grounds for the reasonable belief that making the order will make payment of the debt more likely.
If a debtor is about to leave Australia (regardless of any plans to return) the Registrar will consider whether to make a DPO. The Registrar will generally make a DPO if satisfied on the balance of probability that the debtor has the ability to discharge their liability, and is either:
·likely to fail to return to Australia without discharging his or her liability or making satisfactory arrangements to do so, or
·likely to discharge his or her liability or make satisfactory arrangements to do so if a DPO is made.
A DPO may be appropriate if the debtor:
·is transferring assets offshore, either directly or indirectly, for example, borrowing funds overseas by securing Australian assets
·has resources (whether financial or otherwise) that would enable them to live offshore, for example, family, assets, employment or a business
·is likely to discharge the debt or make satisfactory arrangements for discharge of the debt if a DPO is made.
…
Wholly discharged
A debt is wholly discharged when no part of it remains owing. A child support debt or carer debt can be wholly discharged either by payment of the debt or by an administrative or judicial process that decreases the amount of the debt. Where either or both of these processes result in no part of the debt remaining payable, the debt is wholly discharged. A debt treated as uneconomic to pursue is not wholly discharged.
Satisfactory arrangements
Those arrangements that lead the Registrar to be satisfied that the debt will be wholly discharged are satisfactory arrangements. A common sense approach is required to determine whether arrangements are satisfactory in each case. A payment arrangement that effectively requires the presence of the debtor in Australia to function is not a satisfactory arrangement. Where the debtor has sold property and needs to leave Australia before settlement occurs, a section 72A notice (5.2.9) in relation to the known proceeds would be a satisfactory arrangement.
Issuing a DAC
Where a DPO is in force, a debtor can apply for the issue of a DAC (CSRC Act section 72K). A DAC allows a debtor to depart Australia, for a defined period, despite a DPO being in force.
The Registrar must issue a DAC in situations where:
·a debtor is likely to depart and return to Australia within a specified period, it is likely that the Registrar will be required by CSRC Act section 72I(1) to revoke the DPO within a period the Registrar considers appropriate, and security for the debtor's return to Australia is not necessary (CSRC Act section 72L(2)), or
·a DAC is to be issued as the debtor has provided appropriate security for their return to Australia by a specified date (CSRC Act section 72L(3)(a)), or
·the debtor is unable to provide appropriate security for their return to Australia, however a DAC is to be issued on humanitarian grounds or in Australia's interests (CSRC Act section 72L(3)(b)).
There is no discretion to issue a DAC in other situations.
Where a DAC has been issued, a copy of that certificate must be provided for inspection, if requested by an authorised officer, when departing Australia (CSRC Act section 72W).
CONSIDERATION
The Tribunal observes the Applicant’s child support debt (as of 16 November 2021) totalled $18,712.04 (consisting of a child support debt of $14,590.32 and penalties of $4,121.72), which was due and payable from 25 October 2021[15]. With respect to the outstanding child support debt, the Applicant initially claimed that he was not aware of it when he departed Australia in 2016, and that he had thought the purpose of the hearing was to examine the calculation of the debt[16]. The Tribunal explained to the Applicant the sole purpose of the hearing was to determine whether a Departure Authorisation Certificate (DAC) should be issued to the Applicant in accordance with section 72L of the Collection Act[17]. The Tribunal observes section 116(2) Collection Act Certificate is prima facie evidence of the child support liability due and payable by the Applicant.
[15] Exhibit R1, Section 37 T Documents, T18, page 71.
[16] Transcript (2 December 2021), page 11, lines 39 to 47; page 12, lines 5 to 26; page 26, lines 23 to 27.
[17] Ibid, page 18, lines 26 to 36.
The Tribunal observes file notes of a call between the Agency and the Applicant on 26 July 2021 which states that the Applicant had been privately paying cash to the mother of his two children, and that he was not aware of his child support debts[18]. The Tribunal notes the Agency verified this claim of the Applicant with the mother of his two children, who told the Agency that no payments other than transfers from the Agency had been received as the parties, “do not speak”[19].
[18] Exhibit R1, Section 37 T Documents, T21, page 97.
[19] Ibid, page 95.
Evidence before the Tribunal indicates that on 26 July 2021, the Applicant agreed to make a, “goodwill payment” of $300, with further monthly instalments of $400, payable on 31 August 2021[20]. The Agency advises the first goodwill payment was received, however the agreed monthly payments of $400 following this had defaulted[21]. During the hearing, the Applicant confirmed he had paid the initial goodwill payment of $300 and confirmed he did not continue to pay the agreed $400 monthly instalments[22]. When the Applicant was questioned as to why he had not paid his outstanding child support debt, he conceded during the hearing that he should have[23].
[20] Ibid, page 94.
[21] Exhibit R3, Respondent Statement of Facts, Issues and Contentions – Attachment A.
[22] Transcript (2 December 2021), page 17, lines 35 to 42; page 19, lines 15 to 29.
[23] Ibid, page 13, lines 25 to 30.
The Respondent submitted additional evidence ahead of the hearing which contained information obtained through single touch payroll. This confirmed the gross employment income received by the Applicant in the 2021-22 financial year was approximately $19,974.58[24], and for the 2020-21 financial year it was approximately of $70,523.87[25]. During the hearing, the Applicant was questioned as to what he had done with his earnings since returning to Australia in December 2020, and why some of these earnings had not been directed to paying off his child support debt. The Applicant stated that he had spent all his money that he had earned, the majority of which went toward funding his gambling addiction for which he has sought counselling[26]. He also stated that he suffered from anxiety and depression[27].
[24] Exhibit R5, Supplementary Section 37 T Documents, ST2, pages 116; 120; 124; 128; 132; 136; 142.
[25] Ibid, pages 146; 150; 154; 158; 162; 166; 170; 174; 178; 182; 186; 190; 194; 198; 202; 206; 210.
[26] Transcript (2 December 2021), page 13, lines 41 to 45; page 14, lines 18 to 47.
[27] Ibid.
The Respondent has submitted to the Tribunal that, “… Beyond a one-off payment of $180 credited 20 March 2015 and the single voluntary payment of $300 aforementioned, the only contributions made to the Applicant’s child support debt have been in the form of Centrelink deductions and Tax Refund Intercepts…”[28].
[28] Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 9, paragraph 40(d). With reference to Exhibit R1, Section 37 T Documents, T17, pages 63 to 68.
During the hearing, the Applicant advised the Tribunal that he was not currently in receipt of support payments, he was living off a small amount of savings, and that he was due to commence a new job in early January 2022[29]. The Tribunal observes the Applicant submitted a screenshot of an appointment for a pre-employment medical which was to take place on 18 November 2021[30], but the Applicant advised in oral submissions this was to occur on 10 December 2021[31].
[29] Transcript (2 December 2021), page 10, lines 42 to 46, page 11, lines 1 to 30.
[30] Exhibit A2, Applicant Submission.
[31] Transcript (2 December 2021), page 11, lines 12 to 13.
The Tribunal is of the view that the Applicant has not adequately disclosed his financial arrangements and is consequently not satisfied the Applicant’s child support debt is completely irrecoverable.
With respect to the application to the Tribunal for review of the decision to not issue a DAC, the Applicant contended[32]:
[32] Exhibit R1, Section 37 T Documents, T1, page 4.
I think that considering I have a daughter in Scotland whom is 3 need to be care for whilst my partner completes her uni for nursing.
I don’t see my other kids cause that’s what Nicole wanted I had already got an exemption from home affairs
Also a delegate from passport office exempt me to leave. The country. For a year so I could be and care for my daughter. This decision has cause major depression anxiety for me and my partner and my daughter. It seems you reclaiming that money I do call owe is more important that a innocent kid. It’s inhumaine it really is. So cause of what happened in the past I don’t see my kids and now your not letting me see my daughter
I still wanna go to Scotland please
There are 2 sides to the story I know my ex is a fantastic mother but she hid those kids from me she wanted nothing to do with me or my money as well
It was only few yeArs ago the grandparents of charli and Ollie said that they need to meet there dad and so I have
started seeing them. A few times
Also what was not taking into account was my ex and I had sold our house and she kept the 17 thousand plus all furniture etc etc
[sic]
The Tribunal observes the Applicant made the following submissions to the Department of Home Affairs when applying for a Travel Exemption regarding travel he had planned to undertake in July 2020[33]:
… I can’t stress enough or make it any clearer that I need to be in United Kingdom as I’m a sole carer of my daughter who is 3
I hope the extra documents I have given is enough for you to grant this
I need to be back in Edinburgh I have been living there for the last 4.5 years I returned home to Australia due to ill health
I need to care for my daughter as we have no one to look after her and Kelly Ann Colquhoun (Mother) has her final months of completing her UNIVERSITY degree as a nurse and is in placement, which requires her to be working 5 days a week to completed her final year on Uni. Also her other 2 days are were she works as a Carer for a disabled girl and that also is of some importance as that is only source of income.so it’s imperative that I be there to care for my daughter Georgia Dixon
Could I be.Contacted personally if there is anything else you need to approve this request as I need to be back home where my life has been for the last 4.5 years
Once I get grated…”
[sic; Tribunal bold for emphasis]
[33] Ibid, T20, page 79.
In evidence before the Tribunal, the Applicant, in a submission to the United Kingdom Visas and Immigration on 23 July 2021, stated that he intended to, “Stay in the UK”, when asked what his intended travel plans were[34].
[34] Ibid, T14, page 48.
The Tribunal observes that whilst the Applicant has claimed to the Agency that he had started seeing his two children in Australia, “a few times”, to the Tribunal it seems from the Applicant’s submissions to various immigration authorities that he intends to reside in the United Kingdom, where his, “… life has been for the last 4.5 years…”, and where his young daughter presently resides with her mother[35].
[35] Ibid, T20, page 79.
During the hearing, the Applicant stated that he only wished to depart Australia for the United Kingdom for, “a few weeks” and, “just a month”[36] and that he had intentions to return home to Australia[37].
[36] Transcript (2 December 2021), page 7, lines 36 to 28; page 25, lines 45 to 47; page 26, lines 1 to 7; page 27, lines 24 to 25; page 32, lines 30.
[37] Ibid, page 21, lines 26 to 30; page 23, lines 38 to 46; page 24, lines 1 to 10; lines 27 to 34.
The Respondent has contended that the Applicant does not meet any of the requirements pursuant to section 72L(2) of the Collections Act[38].
[38] Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 8, paragraphs 37 to 38.
The Tribunal is not satisfied that the Applicant has given a compelling reason for his return to Australia, given the various statements he has made to immigration authorities as detailed in these reasons. It is the Tribunal’s view that the Applicant’s ties to the United Kingdom are stronger than those which tie him to Australia (with respect to the relevant consideration in section 72L(2)(a)(i) of the Collections Act).
The Tribunal is of the view that a holistic reflection of the evidence suggests it is very unlikely that a DPO will be required to be revoked in an appropriate amount of time, pursuant to section 72L(2)(a)(ii) of the Collections Act given the following circumstances:
(a)the size of the Applicant’s child support debt, and the fact that he is now subsisting off $500 in savings[39];
(b)the Applicant’s failed attempts to pay down the outstanding child support debt after providing verbal undertakings to the Agency to do so[40]; and
(c)the Applicant’s failure to adequately disclose his financial circumstances such that an appropriate assessment could be made as to the Applicant’s capacity to contribute towards the outstanding child support debt.
[39] Transcript (2 December 2021), page 11, lines 21 to 25.
[40] Exhibit R3, Respondent Statement of Facts, Issues and Contentions – Attachment A.
With respect to relevant the relevant consideration in section 72L(2)(b) of the Collections Act, the Tribunal supports the Respondent’s contention that, “… it is necessary for the Applicant to provide appropriate security for his return to Australia. This requires consideration of all relevant circumstances to determine whether the security to be given is appropriate or suitable for its stated purpose, namely to ensure the Applicant returns to Australia by an agreed date…”[41].
[41] Exhibit R3, Respondent Statement of Facts, Issues and Contentions, page 10, paragraph 41.
Section 72M of the Collections Act sets out the following requirements for security regarding a person’s return to Australia:
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.
When the Tribunal questioned the Applicant as to what discussions had taken place with respect to provision of security, the Applicant stated that he had no options available to him except to pay the debt off in full, and that he was unable to do so as he was not, “wealthy”[42]. The Applicant further contended that he had made arrangements to submit Australian and international income tax returns for the years in which he had failed to do so (more recently this encompassed the financial years panning 2017 to 2020)[43].
[42] Transcript (2 December 2021), page 8, line 21.
[43] Ibid, lines 29 to 39.
The Tribunal is of the view the Applicant’s claims with respect to him being unable to afford security are unverified in circumstances where:
(a)he has made no attempt to verify his financial circumstances by making a full and frank disclosures (e.g., through the provision of bank statements and payslip information);
(b)he has only made one voluntary payment off his child support debt, with evidence confirming all other payments have been through compulsory deductions through support payments, or intercepted tax refunds; and
(c)evidence was obtained through single touch payroll that the Applicant had been earning a not insignificant income since he returned to Australia (as detailed in earlier reasons of this decision).
The Tribunal is not satisfied the Applicant has satisfactorily demonstrated that security need not be provided pursuant to section 72M of the Collection Act, with evidence before the Tribunal confirming the Applicant has failed to provide any such security. Consequently, the Tribunal is not persuaded the Applicant satisfies section 72L(2)(b) of the Collections Act.
For the reasons set out in this decision, the Tribunal is satisfied the Applicant does not meet the conditions, pursuant to section 72L(2) of the Collections Act, for a DAC to be issued.
With respect to relevant considerations in section 72L(3) of the Collections Act, the Tribunal observes the Applicant has not provided appropriate security for his return to Australia, observing the requirements of section 72M of the Collections Act stated in earlier reasons of this decision. Further to this, the Tribunal is of the view the Applicant has not taken adequate steps to substantiate his financial circumstances to convince the Tribunal that he is unable to provide such security (with respect to the relevant consideration in section 72L(3)(a) of the Collections Act).
With respect to relevant considerations regarding humanitarian grounds, as stipulated in section 72L(3)(b)(i) of the Collections Act, the Tribunal regards the Applicant’s original submission to be allowed to depart Australia, namely that he is the, “sole carer of [his] daughter who is 3”, has long since lapsed. This is because the evidence before the Tribunal from the University where the Applicant’s partner in the United Kingdom is studying confirms the placement was to be five days per week from May 2021, concluding in late August 2021[44]. Movement records of the Applicant indicate that he last arrived in Australia in December 2020 and did not attempt to leave for the United Kingdom until July 2021[45]. Submissions from the Applicant with respect to providing care for his daughter in the Tribunal’s view are diminished given the significant passage of time between the Applicant last returning to Australia and seeking to return to the United Kingdom. Whilst the Tribunal appreciates the Applicant wants to spend time with his daughter overseas, this does not satisfy the Tribunal that a DAC should be issued on humanitarian grounds.
[44] Exhibit R1, T11, page 45.
[45] Ibid, T21, page 100.
In the Tribunal’s view, conditions regarding humanitarian grounds are conditions which, for example, are based on compelling, substantiated medical grounds[46]. The Applicant’s reasons, in the Tribunal’s view, undermine the purpose and mandate of the Collection Act, particularly when one has regard to section 3, as transposed in earlier reasons of this decision.
[46] See Bettison and Child Support Registrar (Child support second review) [2016] AATA 592 at [11].
With respect to the remaining consideration in section 72L(3)(b)(ii) of the Collection Act, the Tribunal has not been presented with any corroborative evidence to suggest it is detrimental to Australia’s interests if a DAC is refused.
For the reasons set out above, the Tribunal is satisfied the Applicant does not meet requisite conditions, pursuant to section 72L(3) of the Collections Act, for a DAC to be issued
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent dated 3 August 2021.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
………….[SGD]….…………
Associate
Dated: 13 December 2021
Date of Hearing: 2 December 2021
Applicant: Mr Billy Christopher Dixon (Self-represented)
Solicitor for Respondent: Ms Maleah Underhill (Services Australia)
Annexure 1 – Exhibit Register
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| R1 | Section 37 T Documents (pages 1 to 110) | R | Various dates | 3 November 2021 |
| R2 | Respondent Statement of Issues (pages 1 to 2) | R | 3 November 2021 | 3 November 2021 |
| R3 | Respondent Statement of Facts, Issues and Contentions (pages 1 to 12) | R | 19 November 2021 | 19 November 2021 |
| R4 | Respondent Statement of Facts, Issues and Contentions – Attachment A (pages 1 to 2) | R | 19 November 2021 | 19 November 2021 |
| R5 | Supplementary Section 37 T Documents (pages 111 to 215) | R | Various dates | 1 December 2021 |
| A1 | Applicant Submission (email) | A | 21 November 2021 | 21 November 2021 |
| A2 | Applicant Submission (a) Pre-Employment Check Confirmation (b) Text Message Screenshot (c) Unsigned and unsworn statement from Applicant’s partner, Kelly Colquhoun | A | Various dates | 2 December 2021 |
| T1 | Tribunal Direction – SM Pola | T | 3 November 2021 | --- |
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