Elmasri and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 728

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/3569

General Administrative Division

Re: Nina Elmasri
Applicant

And: Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent

DIRECTION

TRIBUNAL:             Ms Robin Hunt, Senior Member

DATE:                      21 August 2008

PLACE:                   Sydney

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the tribunal directs the Registrar to alter the text of the decision in this application as follows:

The paragraph numbering on the front page of the Decision dated 20 August 2008 should read “a, b, c, d”.

.................[Sgd].................

Ms Robin Hunt
            Senior Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 728

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3569

GENERAL ADMINISTRATIVE DIVISION		)
Re		NINA ELMASRI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date20 August 2008

PlaceSydney

Decision

The decision under review is varied insofar as:

a.    The applicant does owe a debt to the Commonwealth arising from the assurance of support she provided;

b.    The portion of the applicant’s debt to the Commonwealth for the period 29 September 2005 to 18 April 2006 is waived;

c.    The matter is remitted for re-calculation of the debt in accordance with the finding in paragraph (b) above; and

a.    The balance of the debt is recoverable by the Commonwealth.

...................[Sgd]....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – assurance of support – assurer disputing debt to Commonwealth – Centrelink payments to assuree – debt to assurer raised in consequence – payments to assuree of special benefit and newstart allowance – Centrelink failed to contact assurer for lengthy period – consideration of guidelines – finding that special circumstances justify partial waiver of debt – decision varied.

Social Security Act 1991 (Cth) ss 729, 1061ZZGG, 1227, 1236, 1237AAD

Guide to Social Security Law para 9.4.7

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Re Fuller and Secretary, Department of Family and Community Services (2004) 83 ALD 152

Re Ozkaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 258

Ryde v Secretary, Department of Family and Community Services [2005] FCA 866

REASONS FOR DECISION

20 August 2008 Ms Robin Hunt, Senior Member   

summary

1.      In 2005, Ms Nina Elmasri gave an assurance of support (‘AoS’) for her brother’s then wife, Achwak El Khazna (‘Ms El Khazna’), who was seeking to enter Australia.  Ms El Khazna entered Australia and moved into the family home shared with her husband, Ms Elmasri, their parents and another brother. Ms El Khazna subsequently left the house and has not returned. Centrelink decided to grant Ms El Khazna financial assistance and called upon Ms Elmasri to repay the debt resulting from her AoS undertaking to support the assuree. Ms Elmasri disputes the debt.

issues

2.      I must decide whether Ms Elmasri has a debt to the Commonwealth arising from the AoS and, if so, whether there are grounds not to recover the debt. That is:

(a)      Is there an AoS debt; and

(b)      If so, should it be recovered.

decision

3.      I have decided to vary the decision of the Social Security Appeals Tribunal (‘the SSAT’), which found Ms Elmasri owed an AoS debt of $10,836.96, by finding that:

(a)      Ms Elmasri does owe a debt to the Commonwealth arising from the AoS which she provided;

(b)      The portion of Ms Elmasri’s debt to the Commonwealth for the period 29 September 2005 to 18 April 2006 be waived;

(c)       The matter is remitted for re-calculation of the debt in accordance with the finding in paragraph (b); and

(d)      The balance of the debt is recoverable by the Commonwealth.

consideration and findings

4. Under section 1061ZZGG of the Social Security Act 1991 (‘the Act’), if a person has given an AoS that has been accepted and the person identified in the assurance receives a social security payment, the assurer is liable to pay the amount of the social security payment. Ms El Khazna did receive social security payments, including a special benefit payment before being placed on newstart allowance. Under subsection 729(1) of the Act, a person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period. A special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment as is provided in paragraphs (a) and (b) of subsection 729(2).

5.      Ms Elmasri does not dispute that she furnished an AoS for Ms El Khazna. A copy of her completed application form is on record. Centrelink records also show that an employee wrote to Ms Elmasri on 24 February 2005 and informed her that her application to furnish the AoS was successful. On 30 June 2005, Centrelink records show it again wrote to Ms Elmasri to inform her that Ms El Khazna had been issued with a visa and was present in Australia. This letter also informed her that her assurance applied in connection with the grant to Ms El Khazna of her visa. It went on to explain that the assurance would remain in force for two years from 26 March 2005 to 25 March 2007 and that Centrelink would keep an account in her name should Centrelink make payments to Ms El Khazna.

6.      As events turned out, Ms El Khazna left her husband and sought assistance from Centrelink about three months after she arrived in Australia. Centrelink commenced to make payments to Ms El Khazna from late June 2005 but did not inform Ms Elmasri until 18 April 2006 that her assurance had been activated and that a debt was accruing. According to the letter Centrelink wrote to Ms Elmasri, on 18 April 2006, it made payments to Ms El Khazna from 29 June 2005 onwards. The debt at the time Centrelink first notified Ms Elmasri, on 18 April 2006, amounted to $7,679.56. The debt continued to accumulate and increase. The debt which Centrelink seeks to recover is $10,836.96. A total of $10,836.96 was paid to Ms El Khazna by 26 March 2007 when the AoS expired. The reviewable decision of the SSAT made on 2 July 2007 affirmed a Centrelink decision to raise and recover from Ms Elmasri an AoS debt in the amount of $10,836.96.

7.      Ms Elmasri objected to Centrelink’s demand, arguing that once the whereabouts of Ms El Khazna became unknown to her, the “contract” she had made must come to an end because it was impossible for her to provide any direct or indirect financial support. Ms Elmasri gave evidence that she endeavoured to withdraw her support and pointed to an unsigned copy of a letter dated 24 June 2005 in which she stated “I would like to withdraw the assurance of support I have provided for Mrs Achwak El Khazna …”. She further argued through her solicitor who represented her before the tribunal that the contract or undertaking she had given to support Ms El Khazna was not enforceable because it was impossible to perform.

8.      Ms Elmasri told the tribunal that she remembered sending the letter of 24 June 2005 but was not sure if she sent it to Immigration or to Centrelink. The letter is addressed to neither but commences with the words “To whom it may concern”. The copy before me forms part of the respondent’s records as an attachment to a letter to Centrelink from Ms Elmasri’s then solicitors.  These solicitors wrote to Centrelink on 29 May 2006 contending that their client, Ms Elmasri, had not been notified until 18 April 2006 that payments to Ms El Khazna had commenced in 2005. They further asserted that their client was not liable for any debt under the assurance as being informed of a claim was a precondition to her pledging support. As well, the solicitors claimed that the copy of their client’s letter dated 24 June 2005 was sent to Centrelink and showed she had given notice she wished to withdraw her support.

9.      Ms Elmasri gave oral evidence that when she came home from work on 23 June 2005 someone told her that Ms El Khazna had left and the police had been to collect her clothes. She had not seen Ms El Khazna since and could find out nothing more when she went to the police. She did not know why Ms El Khazna left, and Ms El Khazna had made no contact with her nor asked her for help. That was why she had written a letter to Immigration withdrawing her support.

10.     Ms Elmasri’s two brothers also made written statements. Fadi Elmasri confirmed that Ms El Khazna came to the house with police when he and his mother were at home and collected her clothes. The assuree’s husband, Mohammed Elmasri, also made a statement saying that he had been working when Ms El Khazna collected her clothes from the house and did not know why she had left him. Also before me is a copy of an application for divorce apparently lodged with the Federal Magistrates Court of Australia by the assuree on 11 October 2006, but it does not disclose why the assuree sought a divorce.

11. On 4 April 2007, Centrelink informed Ms Elmasri that it had paid Ms El Khazna special benefit from 29 June 2005 to 23 August 2005 and then Newstart allowance from 24 August 2005 to 22 August 2006. The letter went on to say that a debt equal to the amount of these payments was raised against her under section 1227 of the Act. On 4 May 2007, an Authorised Review Officer (‘ARO’) considered the initial decision and affirmed it. The ARO wrote to Ms Elmasri explaining that Ms El Khazna had made a claim for assistance which Centrelink provided. The ARO noted that internal guidelines require staff to interview both the assurer and the assuree before granting payment but, in this case, no one contacted the applicant because a social worker had advised that her close ties to the assuree’s husband might endanger the assuree. This assessment was based on the opinion that “evidence was presented that the Assuree may have been under a threat of violence from the Applicant’s brother”. As a result, the claim for financial assistance was granted without first speaking to Ms Elmasri.

12.     The purpose of an AoS is to reimburse Centrelink for social security assistance given to a migrant to Australia should circumstances arise where it becomes necessary. The person who signs an AoS undertakes to provide monetary and other support to the visa holder for their first two years of residence in Australia. An AoS having been given, should the visa holder receive social security benefits during the first two years in Australia, Centrelink may seek reimbursement from the assurer of the amount paid to the visa holder. This is the situation that arose in the present case. Ms Elmasri is 26 years old. She was born in Australia to parents from Lebanon. She has two brothers, Fadi and Mohammed. In 2003, Mohammed met and married Ms El Khazna in Lebanon. He returned to Australia in August that year and initiated immigration applications for Ms El Khazna, who at the time, remained in Lebanon. On 24 February 2005, Ms Elmasri signed an AoS for Ms El Khazna at the request of her mother.  Ms Elmasri told the tribunal that she understood what she was signing but felt that she had no real choice in the matter because culturally it was not appropriate for her to refuse a request put to her by her parents.

13.     The tribunal documents show the AoS was accompanied by a Centrelink booklet entitled “Information you need to know about Assurance of Support”. Some salient points about the form and the booklet follow. On the cover of the booklet appears the advice “Keep this Information booklet”. The booklet contains the following statements:

i.An assurance of support is a commitment to provide adequate direct or indirect financial support to a person applying to migrate to Australia, so that the migrant will not have to rely on payments from Centrelink (T5/18)

ii.It is also a legal commitment by you …. (T5/18)

iii.If you sign this form, you are making an undertaking to provide assistance and a legal commitment to repay the Australian Government any recoverable Centrelink payments made to those it covers while in force (T5/18)

14.     The Assurance of Support document itself contained the following statements:

i.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 (emphasis added) (T6/38)

ii.I am required to repay the full amount of any Centrelink payments that are affected by an Assurance of Support paid to any person listed in the Application to provide an Assurance of Support that I have signed (T6/38)

iii.Once the person for which I have given an Assurance of Support is granted the visa to which the Assurance of Support applies, the Assurance of Support cannot be withdrawn or cancelled; and that my responsibilities as an assurer will remain in place for the full period of the Assurance of Support, regardless of any changes in circumstances, including a breakdown in the relationship between myself and any persons for whom I have given an Assurance of Support (T6/38)

15.     Ms Elmasri agrees that she signed the AoS. The provision of assistance and the call upon the applicant is in conformity with the assurance she gave. However, Centrelink failed to notify Ms Elmasri in accordance with its own guidelines when it continued to assist Ms El Khazna for several months before notifying Ms Elmasri. It is not clear to me why informing Ms Elmasri that Centrelink proposed to assist Ms El Khazna would have exposed Ms El Khazna to possible violence. It may be that the officers involved in the decision-making thought that informing Ms Elmasri that the assuree had made a claim would involve informing her of the assuree’s new address but this is not stated.

16.     Paragraph 9.4.7 of the Guide to Social Security Law (‘the Guide’), headed “AoS – Debt”, discusses policy with respect to the rationale behind AoS debt recovery. The Guide states that, if an assuree makes a claim Centrelink must establish whether:

·The assurer is willing and able to provide an adequate level of support to the assuree; and

·It is reasonable for the assuree to accept that support.

17.     On the material before me, there is no suggestion that this course was followed. This failure is explained in the decision of the ARO as arising because a social worker thought that speaking to Ms Elmasri might expose the assuree to danger because of her close ties to the assuree’s husband.             There is no further explanation of what risk would be created by speaking to Ms Elmasri and I have heard no evidence of what information would be considered necessary to impart to Ms Elmasri which might have the consequence feared.

18.     The respondent has argued that Ms Elmasri was unwilling to support the assuree as she stated this in the letter which she believes she sent to Immigration on 24 June 2005. Ms Elmasri did make it plain in that letter that she was unwilling but the letter was not relied on by any decision-maker and the copy on record is there only as a result of her then solicitor’s letter dated 29 May 2006. I consider that the respondent cannot rely on this letter as firm evidence that she was unwilling without further investigation having taken place.

19.     The content of Ms Elmasri’s letter attempting to withdraw shows she did not understand that her undertakings under the AoS could not be withdrawn. She says in the letter that she is withdrawing her support because the marriage has broken down. When giving oral evidence, Ms Elmasri said that she had read the form of application for providing an AoS but then claimed she had not read the page headed, “statement by assurer”, which set out the matters which she was required to observe and concluded with a paragraph explaining that an assurance, once given, could not be withdrawn or cancelled. Ms Elmasri conceded she nevertheless had signed this statement. A letter from Centrelink reminding Ms Elmasri of her obligations once Ms El Khazna needed assistance may have resulted in the applicant accepting the terms of her assurance.

20.     While I do not consider the applicant blameless in this regard, a letter or contact from Centrelink reminding Ms Elmasri of her obligations under the AoS once Ms El Khazna made a claim would have made the position clear to Ms Elmasri. This possibly would have prevented the present situation arising at least to the extent that such a large debt has accrued and is doubtless the reason contact with the assurer is recommended in the Guide.

21. The Guide again reinforces the importance of contacting the assurer in the paragraph following the dot points set out at [16] above. It states: “This is to ensure that the assurer is aware that the assuree is making a claim for a recoverable payment, and that if this claim is granted it will result in a debt against the assurer”. The next sentence observes that the Centrelink officer must liaise closely with social workers to ensure this does not have a negative impact and the assuree is not put at risk. It is this part of the policy that was followed by Centrelink in preference to the other guidelines referred to.

22.     The example given in the Guide about implementation of policy refers to domestic violence cases and suggests that Centrelink may defer contact with the assurer in such cases until the risk is sufficiently diminished. It goes on to read, “This would generally be no longer than 3 months after recoverable social security payments are granted”.  It adds that the assurer still remains liable.

23.     In the present case, Centrelink contacted Ms Elmasri well outside the 3 month period suggested in the Guide. The solicitor for the respondent was unable to furnish any explanation for the delay. The first contact with Ms Elmasri was attempted on 18 April 2006, approximately 10 months after Centrelink had started making payments to Ms El Khazna. Not only this, Ms Elmasri was overseas and unable to respond to the demand until she returned in May 2006. Centrelink records show her mother tried to respond to the demand on her behalf but that Centrelink officers took the view that she had no permission to enquire. The lack of notice until April 2006 has meant that Ms Elmasri was left ignorant of the situation for an unduly long period while her debt grew.

24.     Ms Elmasri gave evidence that, before she went overseas for a holiday in 2006, she attended a Centrelink office to enquire about her position in respect to the assurance. She said she was reassured after this visit that she did not have to provide support and went on her holiday unconcerned about whether she had sufficient funds. She was given the impression she was not called upon to meet any payments for the assuree or Centrelink. Ms Elmasri’s evidence to this effect is supported by a Centrelink file note made on 22 November 2005 that Ms Elmasri made an enquiry about her AoS. This is approximately five months after Centrelink made payments to Ms El Khazna. However, the file note goes on to read:

In case AOR wants to appeal against the AOS debt or wants to find out the whereabout of the AOE, don’t let her know about it.

…

If a/n has any enquiry about the recoverable payment granted (if so happens she knows about this), or any issue related to AOS, … take down the info and then pass on to the ODM.

25.     The Centrelink file note illustrates that officers were not following the Guide except as to the initial warning that an assurer should not be contacted for up to 3 months in some cases.

is there a debt?

26. I am satisfied that a debt has arisen pursuant to section 1061ZZGG of the Act. Ms Elmasri gave a valid AoS and Centrelink paid Ms El Khazna social security allowances. These amounts are prima facie recoverable from Ms Elmasri under the assurance. I do not agree with any of the contentions made on behalf of Ms Elmasri that her “contract” or undertaking under the assurance was suspended or altered in any way according to principles other than those set out in the Act and the Guide.

27. A debt arising from implementation of an assurance may be waived or written off in some circumstances. Where special circumstances exist, the debt may be waived pursuant to section 1237AAD. Writing off may occur under section 1236 of the Act.

writing off

28. Section 1236 of the Act provides:

(1)  Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

(1A)  The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)  the debt is irrecoverable at law; or

(b)  the debtor has no capacity to repay the debt; or

(c)  the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

29.     None of paragraphs (a), (b), (c) and (d) are satisfied in this case. Ms Elmasri is a single woman living with her parents and is employed. She has not argued that she is unable to repay the debt or that it is irrecoverable. Hence the debt cannot be written off.

waiver of the debt in special circumstances

30. Under section 1237AAD, a decision-maker may waive the right to recover a debt if there are special circumstances that make it desirable to waive all or part of the debt. The phrase, “special circumstances”, is not defined in the Act. The Macquarie dictionary gives several meanings of “special”, beginning with “of a distinct or particular character” and a range of other meanings including “different from what is usual or ordinary”. It also gives as meanings, “extraordinary” and ”exceptional”. All of these meanings suggest some unusual situation is required in order to dispense with the debt involved.

31.     As explained in the case Re Beadle and Director-General of Social Security (1984) 6 ALD 1, circumstances must be "unusual, uncommon or exceptional" in order to qualify as "special". Unfairness as well as hardship may be special circumstances. See, for example, Re Fuller and Secretary, Department of Family and Community Services (2004) 83 ALD 152 at [27] where Downes J expressed the view that both hardship and unfairness can form the basis of exercising discretion under a similar legislative provision. In Ryde v Secretary, Department of Family and Community Services[2005] FCA 866 at [26], Branson J held that the description “special circumstances” in section 1237AAD meant that the “hardship or unfairness” should be “sufficient to justify departure from the general rule in the particular case”.

32.     Centrelink’s records in the present case show that policy set out in paragraph 9.4.7 of the Guide about AoS debts was not followed. Ms Elmasri was not informed about implementation of her assurance until 18 April 2006 at the earliest. She was overseas at that time and returned in May or thereabouts.

33.     Another Centrelink entry shows Ms Elmasri made an enquiry about the assurance on 22 November 2005 before she went overseas. The Centrelink entry on that day shows she was deliberately mislead or at best left in the dark about what was happening with her assurance. This occurred despite the Guide saying that the assurer should be notified no longer than 3 months after recoverable payments are granted in domestic violence cases and that notification should occur in most cases before the assurance is implemented. I have borne in mind there is no evidence of domestic violence except a brief reference that Ms El Khazna may have been exposed to domestic violence, but I do not consider it a necessary part of my review to find whether there was or was not actual domestic violence.

34.     In my view, the long period over which Centrelink failed to inform Ms Elmasri contrary to its own guidelines takes this case out of the ordinary. To leave her ignorant of the situation for ten months while her debt accumulated was a serious failure towards her as well as going against policy expressed in the guidelines. I made a similar finding in an earlier tribunal case of Re Ozkaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 258.

35.     I therefore find that it is appropriate to waive that part of the debt which arose after the lapse of the initial three months and up to the time when Centrelink notified Ms Elmasri. Although she was overseas at the time, her solicitor’s letter of 29 May 2006 accepts that she was notified on 18 April 2006 and Ms Elmasri gave oral evidence that her mother told her about the Centrelink letter while she was away. I therefore find that so much of the debt raised against the applicant as is attributable to this period up to one month after she was first notified of the grant to the assuree should be waived pursuant to section 1237AAD. The remainder of the debt raised is recoverable by the Commonwealth. This means I have varied the decision under review in favour of the applicant to an extent.

decision

36.     The decision under review is varied insofar as:

a.The applicant does owe a debt to the Commonwealth arising from the assurance of support she provided;

b.The portion of the applicant’s debt to the Commonwealth, for the period 29 September 2005 to 18 April 2006, is waived;

c.The matter is remitted for re-calculation of the debt in accordance with the finding in paragraph (b) above; and

d.The balance of the debt is recoverable by the Commonwealth.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]............................
  Jennifer Wong, Associate

Date/s of Hearing  22 July 2008
Date of Decision  20 August 2008
Solicitor for the Applicant          Mr S Hodges
Solicitor for the Respondent     Mr A Cox