EHAB HAILE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Mr A Sweidan, Senior Member 6 December 2011 26 April 2012 Perth
[2011] AATA 953
•6 December 2011
[2011] AATA 953
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2581
Re
EHAB HAILE
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
WRITTEN REASONS FOR DECISION
Tribunal Mr A Sweidan, Senior Member
Date of Decision 6 December 2011 Date of written reasons 26 April 2012 Place Perth 1. On 6 December 2011 the Tribunal in an oral Decision affirmed the decision of the Social Security Appeals Tribunal dated 13 June 2011 which affirmed the decision of a Centrelink Review officer dated 18 March 2011.
2. The Applicant has requested written reasons for the Tribunal’s Decision.
3. The written reasons are attached.
..(sgd) Mr A Sweidan................
Senior Member
Catchwords
Social Security – “assurance of support” – whether special circumstances exist to justify cancellation of assurance
Legislation
Social Security Act 1991
Social Security (Assurances of Support) Determination 2008Cases
Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867
Abdihakim Kamil and the Secretary Department of Families, Community Services and Indigenous Affairs and Anor [2007] AATA 1248
WRITTEN REASONS FOR DECISION
Mr A Sweidan, Senior Member
26 April 2012
BACKGROUND AND RELEVANT FACTS
Applicant Mr Haile seeks review by this Tribunal of a decision of the Social Security Appeals Tribunal (SSAT) of 13 June 2011.
By that decision the SSAT affirmed an earlier decision of a Centrelink Authorised Review Officer to raise and recover “assurance of support” debts totalling $22,630.68 from the applicant.
The following facts are not in dispute:
3.1 On 13 January 2008 Mr Haile married Ms Birikti Beyen overseas.
3.2On 23 October 2008 Mr Haile attended a Centrelink interview and lodged an application to provide assurance of support for Ms Beyen and her daughter Timnit Tesfay.
3.3Mr Haile was notified of the rejection of his assurance of support application on 15 December 2008.
3.4On 16 December 2008 he was notified that his application had been accepted and that once the assuree’s visa had been issued, that he could not withdraw the assurance of support for any reason. Further it informed him that if he was unwilling or unable to provide support, any Centrelink payments paid to the assuree as a result would be recovered.
3.5 On 29 May 2009 Ms Beyen and her daughter arrived in Australia.
3.6 On 1 July 2009 Mr Haile and Ms Beyen separated.
3.7On 25 August 2009 Mr Haile was notified of the commencement of the assurance of support and reminded of his responsibility to provide Ms Beyen with sufficient direct or indirect financial support until 28 May 2011 and the consequences of not doing so.
3.8On 24 December 2009 Mr Haile was notified that Ms Beyen had been granted Special Benefit from 9 December 2009 and that he would be informed every three months or so of the amount of payment he would have to make.
3.9On 2 March 2010 he was informed that the recoverable amount was $3,065.51.
3.10On 2 June 2010 the recoverable amount was $6,058.56.
3.11On 2 July 2012 Mr Haile made an application for divorce.
3.12By 2 September 2012 the recoverable amount had increased to $10,045.11.
3.13In January 2011 the recoverable amount was $13,735.10.
3.14 Mr Haile and Ms Beyen were divorced on 28 February 2011.
3.15On 18 March 2011, after discussing the situation with Mr Haile, a Centrelink Authorised Review Officer affirmed the decision that Mr Haile had to repay the assurance of support debt.
3.16On 15 April 2011 Mr Haile was advised that the assurance of support recoverable amount was $22,225.30.
3.17On 9 June 2011 he was notified that the assurance of support period had ended on 28 May 2011 and that the recoverable amount now totalled $22,630.68.
3.18On 13 June 2011, after discussing the matter with Mr Haile and his representative, the SSAT affirmed the decision that Mr Haile had to repay the assurance of support debt.
Mr Haile asserts that he was duped into marrying Ms Beyen and that she was in fact married to someone else at the time of his marriage to her.
ISSUES
The following issues have been identified:
5.1Whether there are circumstances which justify the cancellation of Mr Haile’s assurance of support; and if not,
5.2Whether Mr Haile has assurance of support debts totalling $22,668.68; and if so,
5.3Whether any or all of the debt should be recovered by the Commonwealth.
RELEVANT LEGISLATION
The legislation relevant to this decision is contained in the Social Security Act 1991 (the Act) and the Social Security (Assurances of Support) Determination 2008 (the Determination).
Relevant legislation in regard to the assurance of support.
Section 1061ZZGA of the Act sets out the consequences in regard to undertaking an assurance of support.
Section 1061ZZGC of the Act sets out how an assurance of support can be made and what information has to be provided.
Section 1061ZZGD(2) of the Act lists the conditions for accepting an assurance of support.
Section 1061ZZGH(2) requires a written notice to be sent to the assurer containing the person(s) name(s), the information that they have entered the migration zone and the start and end dates of the assurance of support period.
Section 1061ZZXGEA of the Act provides that an assurance of support cannot be withdrawn once the assuree(s) visa has been issued.
Section 1061ZZGF of the Act set outs when an assurance of support comes into force and the duration of the assurance of support period.
Section 1061ZZGG of the Act provides that if any of the social security payments listed in section 5 of the Determination are paid to the assuree, the assurer is liable to reimburse the Commonwealth the amount of that payment.
Sections 7, 11 and 12 of the Determination sets out an individual’s requirements that must be met before an assurance of support can be accepted.
Section 17 of the Determination sets out the period of time for which the assurance of support remains in force.
Section 18 of the Determination lists the conditions that justify the cancellation of an assurance of support.
Relevant legislation in regard to the debt and its recovery.
Section 1227 of the Act defines an assurance of support debt and provides that such a debt is a debt due to the Commonwealth.
Section 1236 provides that a debt can written off, that is not recovered for a period of time, if the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take action to recover the debt.
Section 1237 of the Act provides that an assurance of support debt can only be waived in conjunction with section 1237AAE of the Act.
Section 1237A of the Act provides that the recovery of a debt may be waived in part or wholly if the debt was caused solely by Commonwealth administrative error and the person received the excess payment in good faith.
Section 1237AAD of the Act allows part or the whole of a debt to be waived if it was not caused by the debtor or another person knowingly making a false statement or false representation and there are special circumstances (other than financial hardship alone) which makes it desirable to do so.
Section 1237AAE of the Act relevantly provides that waiver under section 1237AAD of the Act can only occur if the Secretary is satisfied that the assurer was unaware of the effect of section 1061ZZGG of the Act or of the assurance regulations made under the Migration Act 1958.
Assurance of support
It is not disputed that Mr Haile entered into an assurance of support for Ms Beyen and her daughter which was accepted on 16 December 2008.
At the end of his application form he signed a statement that said, in part, that he was required to provide sufficient direct or indirect financial support to the assurees to ensure that they would not have to rely on Centrelink payments for a period of two years. In addition he agreed that he was obliged to repay the full amount of any Centrelink payments recoverable under the Determination.
The statement also informed him that his responsibilities as an assuror would remain in force for the full period of the assurance of support regardless of any changes in circumstances, financial hardship, or a relationship breakdown with the assuree.
He was reminded of his responsibilities as an assuror in the letter sent to him on 16 December 2008 following the acceptance of his assurance of support and again in the letter of 25 August 2009 notifying him that the assurance of support period started on 29 May 2011 and would end on 28 May 2011.
Shortly after Ms Beyen’s arrival in Australia the relationship broke down allegedly as a result of Mr Haile finding out that she was already married and feeling that he had been duped by her and her brother into signing the assurance of support.
Ms Beyen moved out of Mr Haile’s home citing domestic violence and claimed special benefit and then parenting payment, which are social security payments listed in section 5 of the Determination and so subject to repayment by Mr Haile.
Whether the assurance of support can be cancelled.
Section 18 of the Determination provides that an assurance of support can be cancelled if:
·After arriving in Australia the assuree is granted refugee status;
·The assuree’s visa is cancelled;
·The assuree dies; or
·There are special circumstances in that an accident, illness or other circumstance has critically affected the assurer’s ability to provide adequate support, or the assuree has become too incapacitated to travel to Australia before their visa expires.
The Tribunal finds that Mr Haile’s circumstances do not satisfy any of these criteria therefore his assurance of support cannot be cancelled.
Whether there is a debt due to the Commonwealth.
Section 1227 of the Act provides that an assurance of support debt is a debt due to the Commonwealth.
It is not disputed that Ms Beyen was paid $8,275 special benefit during the period 9 December 2009 to 22 July 2010 and $14,355 parenting payment during the period 23 July 2010 to 28 May 2011.
In lodging an assurance of support application for Ms Beyen and her daughter, Mr Haile unconditionally undertook to repay any social security payments made to Ms Beyen, therefore he has a debt of $22,668.68 to repay.
Whether the recovery of the debt can be written off
Section 1236 provides that a debt can written off, that is not recovered for a period of time, if the debt is irrecoverable at law, the debtor has no capacity to repay the debt, the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take action to recover the debt.
The Tribunal finds that none of the above criteria apply to Mr Haile. Currently he is in receipt of $426.70 per fortnight Austudy and there is no evidence that he cannot repay the debt via withholdings from his payments, although they were previously written off pursuant to an AAT stay order.
If the withholdings result in financial hardship, negotiations for a lesser amount can take place between him and Centrelink.
Whether the recovery of any part of the debt can be waived pursuant to section 1237A of the Act.
Section 1237A of the Act provides that the recovery of a debt may be waived in part or wholly if the debt was caused solely by Commonwealth administrative error and the person received the excess payment in good faith.
Mr Haile asserts that Centrelink’s failure to contact him before granting special benefit to Ms Beyen amounts to an administrative error and that the debt should be waived due to the lack of investigation into the facts by Centrelink.
Chapter 9.4.7 of the Guide to the Social Security Law recommends that an assuror is contacted by Centrelink, prior to the grant of a recoverable social security payment, to give the assuror the opportunity to support the assuree and therefore avoid incurring a debt. An exception to this process is when a Centrelink social worker considers such contact would place the assuree at significant risk of harm, as Centrelink believed in this case.
In regard to investigating the false allegations of domestic violence, Senior Member Allen commented in Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867 (5 November 2010) [T3:p.62-69] that:
In my opinion officers of Centrelink are not required to conduct investigations and decide competing claims as to whether domestic violence took place or not. In the absence of competing evidence Centrelink is entitled to act on the material placed before it in support of an application. In this matter the report of a social worker was obtained by Centrelink, which report supported the assuree’s claims. It was entirely proper for Centrelink to act on that material.
Whilst Mr Haile was not contacted prior to the grant of Ms Beyen’s special benefit payment on 9 December 2009, he was notified of it by letter dated 24 December 2009 which also informed him of his rights of review.
Further it is clear that the relationship had ended prior to Ms Beyen’s claim and that Mr Haile was unwilling/unable to offer financial support to Ms Beyen during the assurance of support period. Consequently the Tribunal finds that no administrative error was made when Centrelink granted Ms Beyen social security payments.
In addition section 1237A of the Act can only apply if the person received the excess payment in good faith. Mr Haile did not receive these payments, Ms Beyen did, therefore section 1237A of the Act cannot be applied to his debt.
Whether the recovery of any part of the debt can be waived pursuant to sections 1237AAD and 1237AAE of the Act.
Section 1237AAD of the Act allows part or the whole of a debt to waived if it was not caused by the debtor or another person knowingly making a false statement or false representation and there are special circumstances (other than financial hardship alone) which makes it desirable to do so.
Section 1237AAE of the Act relevantly provides that lack of knowledge of the effect of section 1061ZZGG of the Act cannot be a ground for waiver under section 1237AAD of the Act.
Section 1061ZZGG of the Act provides that if any of the social security payments listed in section 5 of the Determination are paid to the assuree, the assurer is liable to reimburse the Commonwealth the amount of that payment.
It is clear that Mr Haile was informed from the start of the assurance of support process that he would have to repay a debt equal to the amount of any social security payments paid to Ms Beyen and consequently it is not appropriate to waive the recovery of any of the debt under section 1237AAD of the Act.
In the alternative Mr Haile asserts that his circumstances i.e. the alleged fraudulent marriage and the amount of money he outlaid should be considered as being special under section 1237AAD of the Act, relying on the case of Abdihakim Kamil and the Secretary Department of Families, Community Services and Indigenous Affairs and Anor [2007] AATA 1248 (20 April 2007).
The Tribunal determined that there were special circumstances in that matter because there was doubt as to whether Mr Kamil signed the assurance of support application, no reason was provided as to why the assurance of support was required and it was uncertain whether Mr Kamil, or the person who may have forged his signature, was provided with advice and information about the consequences of signing an assurance. It was noted that although Mr Kamil was providing financial assistance to his sister and others in Somalia and that he had been dismissed from employment and was in receipt of newstart allowance, his financial situation was not one of the factors that the Tribunal believed warranted the waiver of the debt on the basis of special circumstances.
The Tribunal notes that Mr Kamil’s assurance of support application was made prior to the changes on 1 July 2004 (the Social Security (Assurances of Support) Determination 2004) which resulted in, amongst other things, section 1237AAE being inserted into the Act and Centrelink undertaking the assessment and processing of the applications.
The Social Security (Assurances of Support) Determination 2004 was revoked in 2008 by the Determination which broadened the definition of income, established a clearer formula for the income test threshold and expanded the list of recoverable payments.
Mr Haile’s matter is clearly different to that of Kamil in that Mr Haile’s application was made after 1 July 2004 and therefore section 1237AAE of the Act must be applied in regard to the consideration of special circumstances. As well it is not disputed that he attended a Centrelink assurance of support interview on 23 October 2008 where the consequences of signing an assurance of support were explained to him.
The Tribunal notes that Ms Beyen was notified by letter dated 28 September 2008 that a decision had been made that an assurance of support was required before her visa could be issued, based on the likelihood that she or her daughter would need to rely on income support during their first two years of settlement in Australia. She was required to give the notice to the prospective assuror (Mr Haile) who then had to provide it to Centrelink when making his assurance of support application and this was duly done.
Although Mr Haile asserts that the marriage was fraudulent and that he was duped by Ms Beyen and her brother, the Tribunal does not have the jurisdiction to determine whether this is the case, and in any event in the Tribunal finds that this is not relevant to the issues.
DECISION
The Tribunal finds that Mr Haile made his assurance of support application in the full knowledge that he would be required to pay Centrelink an amount equal to the amount of any recoverable social security payments made to Ms Beyen if he failed to support her and her daughter.
Although Mr Haile disputes Ms Beyen’s allegations of domestic violence, he does not dispute the breakdown of the marriage nor his unwillingness or inability to financially support her and her daughter. The Tribunal finds the assurance of support debt has been correctly raised and must be recovered. The Tribunal accordingly affirms the SSAT decision.
I certify that the preceding 56 (fifty six) paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member .
....(sgd) T Freeman..........
Associate
Dated 26 April 2012
Date(s) of hearing 6 December 2011 Advocate for the Applicant Mr Greg Logan-Scales Advocate for the Respondent Ms M Conlon
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