Enny Christanty and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 497
•31 July 2012
[2012] AATA 497
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4810
Re
Enny Christanty
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
Decision
Tribunal Ms G Ettinger, Senior Member
Date 31 July 2012 Place Sydney Decision: The Tribunal affirms the decision under review.
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Ms G Ettinger, Senior Member
Catchwords
SOCIAL SECURITY – Assurance of Support – debt incurred when Newstart allowance granted - assurance of support properly entered into – cannot be withdrawn once visa issued – no special circumstances to enliven discretion to end assurance of support before end of ten year period – decision affirmed.
Legislation
Social Security Act 1991, Sections 1061ZZGEA, 1061GG, 1227
Social Security (Assurances of Support)(DEEWR) Determination 2008, Section 18
REASONS FOR DECISION
Ms G Ettinger, Senior Member
SUMMARY
Ms Enny Christanty, the Applicant in these proceedings, has applied for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 25 October 2011, which held that she is in Australia under an Assurance of Support (AoS). That AoS was entered into by her brother, Chris Kwik, in order for Ms Christanty to be able to obtain the Contributory Parent (Migrant) Visa (Subclass 143) under which she came to be in Australia in April 2008. She had previously been in Australia under different visas; is presently an Australian citizen; and has two children born in Australia.
The duration of the AoS is for a period of 10 years, from 27 April 2008 (when Ms Christanty commenced residing in Australia on the Contributory Parent visa), to 26 April 2018.
The AoS means that Mr Kwik is responsible for repayment of any social security payments Ms Christanty has received until 26 April 2018. This can, pursuant to the legislation, only be altered under very special circumstances.
I did not find from the evidence, that such circumstances existed in Ms Christanty’s case, and I have affirmed the decision under review. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
I must decide whether there are circumstances present under which the AoS provided by Mr Kwik for the Applicant should be cancelled.
RELEVANT LEGISLATION
The legislation governing Assurance of Support is found in Chapter 2C of the Social Security Act 1991 (the Act). Part 2C.1 deals with the giving of assurances, Part 2C.2 with the acceptance of assurances and Part 2C.3 with the effect of accepted assurances.
Section 1061ZZGEA provides as relevant:
1061ZZGEA Assurance cannot be withdrawn once visa issued
A person who has given an assurance of support that has been accepted under this Chapter cannot withdraw that assurance once the person in respect of whom the assurance was given becomes the holder under the Migration Act 1958 of a visa granted in connection with the assurance.
Ms Christanty was granted a Visa Subclass 143 Contributory Parent (Migrant) visa on 21 April 2008. An AoS is a mandatory requirement of that visa which comes into force on the arrival of the visa holder. The Applicant arrived in Australia on 27 April 2008, and therefore the AoS came into force on 27 April 2008.
Section 1061ZZGG of the Act provides that the assurer, the person who has given the assurance of support, in this case Mr Kwik, is liable to pay for any social security payments made to the assuree, Ms Christanty.
Certain circumstances exist under which an AoS may cease to exist. The relevant Determination is made pursuant to the Social Security (Assurance of Support) (DEEWR) Determination 2008, and provides that:
18 Circumstances in which assurances of support cease to be in force
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.
Section 1227 of the Act provides that if a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant, who is now aged 57 years, first came to Australia from Indonesia in 1983. She told me that her two children were born here. She returned to Indonesia in 1992, and came to Australia again in 2003, and in 2004. She has lived in Australia under various visas. In connection with the education of her children in Australia, she applied for a Visa Subclass 143 Contributory Parent (Migrant) visa in August 2007. An AoS is a mandatory criterion of that subclass of visa. That means the assurer must make a legal commitment to repay any social security payments paid by the Australian Government to the Applicants during the first ten years in Australia.
Mr Kwik, Ms Christanty’s brother, undertook to become the assurer, and on 12 November 2007, Mr Kwik deposited $10,000, representing the bond for the AoS, with the Commonwealth Bank. The evidence before me indicates that both he and Ms Christanty were correctly informed by Centrelink regarding the operation of the AoS, which was to last from 27 April 2008 to 26 April 2018. The AoS covered both the Applicant and her son.
Mr Kwik was sent correspondence including the following:
The Assurance of Support bond may be released without penalty after the Assurance of Support has expired, if the person(s) listed have not received payment from Centrelink within the Assurance period.
When Centrelink wrote to Mr Kwik on 26 November 2007 informing him that his AoS for Enny Christanty and her son had been accepted, the notice stated:
Responsibilities will remain in place until the Assurance of Support expired, 10 years after it begins. Once the people listed above are issued the visa to which this Assurance of Support applies, the Assurance of Support cannot be cancelled or withdrawn for any reason.
Ms Christanty’s subclass 143 visa was granted on 21 April 2008, and she commenced living in Australia on 27 April 2008. As already stated, the AoS commenced on that day.
In September 2008, Centrelink further informed Mr Kwik of his appeal rights, and wrote as follows:
If you are unable or unwilling to provide sufficient support or it is unreasonable for the support to be accepted, you will be required to repay the full amount of any recoverable payments made to Enny Christanty during the Assurance of Support period. We may recover the amount you owe from the Commonwealth Bank under the terms of any bank guarantee provided in respect of the Assurance of Support.
The Assurance of Support remains in force for 10 years from 27 April 2008 to 26 April 2018 inclusive.
Ms Christanty contacted Centrelink with regard to Newstart Allowance in December 2010. This was refused on the basis that she was subject to an AoS. She told Centrelink that she needed assistance because her brother did not want to help her, and that he only provided the bond money because she begged him at the time.
Following a review, Ms Christanty was granted Newstart Allowance from 4 April 2011. She seems to have misunderstood what she says she was told by Centrelink officers, that is, that as of 1 April 2011, the AoS is no longer in force. Ms Christanty has contacted Centrelink a number of times in that regard.
By the date of the hearing at this Tribunal, Ms Christanty had been paid $2,770.11 by Centrelink, so a debt for that amount has accrued for which Mr Kwik is responsible. It must be repaid to Centrelink from the bond he paid to the Commonwealth Bank. In that regard, I noted from the Centrelink documents before me in the Tribunal documents that Centrelink has written to Mr Kwik about the debt, and his rights of appeal a number of times.
It was on the basis of the Applicant’s request that the situation regarding the AoS be reviewed, that Centrelink affirmed the decision it had made that the AoS had been properly entered into, and that it remains in effect until 26 April 2018. It was on that basis that Ms Christanty appealed to the SSAT, and further, to this Tribunal.
Ms Christanty’s submissions
Ms Christanty told me that as she was granted Newstart Allowance from 4 April 2011, from 1 April 2011, the AoS is no longer in force. She further told me, in support of her argument that the AoS should not apply, that she is unwell, has had bypass surgery, is disabled, and cannot work. She said that she can suffer a stroke at any time, and that her boss, for whom she works as a cleaner, (contradicting her earlier statement that she cannot work), can dismiss her at any time. She has been an Australian citizen since October 2009, and claims that the AoS can therefore no longer apply. She appears to continue to hold the belief that she is responsible for the AoS debt rather than her brother, and submits that she was told by a Centrelink officer that she does not have to repay the debt, and that it is finished.
Ms Maclean’s submissions
Ms Maclean who appeared for the Minister, submitted that the AoS had been correctly entered into, that Mr Kwik had accepted the conditions, and had been provided with his rights of appeal. The effective dates, she confirmed, were 27 April 2008 to 26 April 2018, noting that Mr Kwik had given a written undertaking regarding the AoS. She submitted that the AoS remained in place regardless of the relationship the Applicant now had with her brother. She also stated that in June 2011 Mr Kwik had been informed of the debt he had incurred because Ms Christanty had been granted Newstart Allowance, and that the amount paid to her would be repayable at the end of the AoS period
Ms McLean also contended that there is no discretion to end the AoS before the whole of the compulsory 10 year period has expired, because none of the circumstances in section 18 of the Social Security (Assurance of Support) (DEEWR) Determination 2008 apply in this case:
·the Applicant has not been granted a refugee visa since her arrival in Australia (s18(a));
·the Applicant’s subclass 143 visa has not been cancelled (s18(b));
·sections 18(c) and 18(d) are not relevant.
Ms McLean also emphasised that the fact Ms Christanty is now an Australian citizen does not alter the fact that the AoS is in place, and that there was no legislative basis on which it could be cancelled.
CONCLUSIONS
I am satisfied from the evidence that the AoS was entered into correctly, and that Mr Kwik acknowledged in writing, his obligations to provide financial assistance to Ms Christanty and her son for the period 27 April 2008 to 26 April 2018. That was the basis for her obtaining the subclass 143 visa.
I am satisfied that Mr Kwik has been notified of the fact that Ms Christanty was granted Newstart Allowance, and a debt he must repay, has accordingly arisen. He has also been notified of his appeal rights.
I am mindful that the AoS is binding for 10 years from 27 April 2008, and that the conditions under which it can vest before, are only available pursuant to section 18 of the Social Security (Assurance of Support) (DEEWR) Determination 2008. The conditions required to achieve that are simply not available in this case, in that Ms Christanty’s subclass 143 visa has not been cancelled; she has not been granted a refugee visa since arriving in Australia; there has been no death as anticipated in paragraph (c), and no circumstances anticipated in paragraph (d) of clause 18 of the Social Security (Assurance of Support) (DEEWR) Determination 2008 have arisen. Ultimately it is a matter for Mr Kwik to make an application if he thinks his circumstances have changed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Date of hearing 26 June 2012 Applicant In person Representative for the Respondent Ms J Maclean, DHS Legal Services Division
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