Fu and Secretary, Department of Family and Community Services
[2004] AATA 357
•6 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 357
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1817
GENERAL ADMINISTRATIVE DIVISION ) Re WEI FU Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Date6 April 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed. ..............................................
Ms S M Bullock Senior Member
CATCHWORDS
SOCIAL SECURITY - Assurance of Support - Debt - Waiver - Special Circumstances
Social Security Act 1991 - ss 23, 1227, 1237AAD
Secretary, Department of Family and Community Services v Hales (1998) 82 FCR 154
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Boscolo v Secretary, Department of Family and Community Services (1999) 90 FCR 106
Re Secretary, Department of Family and Community Services and Morgan (1999) 57 ALD 187
Re Secretary, Department of Family and Community Services and Birgden (2003) 36 AAR 374
Re Ceresna and Secretary, Department of Family and Community Services [1999] AATA 346
Re Gunn and Secretary, Department of Social Security (1999) 28 AAR 527
REASONS FOR DECISION
6 April 2004 Ms S M Bullock , Senior Member 1.Mr Wei Fu, the Applicant, (referred to in this decision as Mr Fu) has an Assurance of Support debt raised against him in the amount of $7,093.23 from 23 November 2000 to 1 August 2001. Mr Fu is seeking a review by the Administrative Appeals Tribunal (“the Tribunal”) of a decision of the Social Security Appeals Tribunal ("SSAT") made on 12 November 2001 (T2), which affirmed an Authorised Review Officer's decision that a debt existed in the amount of $7,093.23 and that it should be repaid to the Commonwealth (T41). As at 14 March 2002, the outstanding balance of the debt is $10,721.64. The Assurance of Support period expired on 19 May 2002 (T23).
2.Mr Fu signed an Assurance of Support in respect of his then wife, Ms Jing Yu Wu (referred to in this decision as Ms Wu), on 28 January 2000. Mr Fu, an Australian Resident, married Ms Wu (whose date of birth is 8 April 1963) in China on 6 November 1998. This was Mr Fu's second marriage. Ms Wu was granted permanent residence in Australia on 13 November 2000 (T75). Mr Fu and Ms Wu's relationship deteriorated approximately four months after she arrived in Australia. Ms Wu was granted income support from Centrelink with effect from 23 November 2000 (T9).
3.At a hearing before the Tribunal in Sydney, Mr Fu provided evidence with the assistance of an interpreter in the Chinese (Mandarin) language. Documents were lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1-T77) and a number of exhibits listed in Schedule 1 to this decision. Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, a Direction was made on 29 May 2002 by Deputy President R P Handley that the contents of documents contained within T49 to T58, being pages 92 to 131, are not to be disclosed to the Applicant and his legal advisers.
issue
4.The only issue in this matter is whether or not there are special circumstances, which would allow for part of or the whole of the Assurance of Support debt to be waived.
legislation
5.The legislation which must be applied in making a determination in this matter is the Social Security Act 1991 ("the Act").
There is no dispute that there is an Assurance of Support debt. Section 23 of the Act defines an Assurance of Support debt as a debt due and payable by a person to the Commonwealth.
Section 1227 of the Act provides that if a person is liable to pay an Assurance of Support debt, that debt is a debt due to the Commonwealth.
6.Under Part 5.4 of the Act concerning the non-recovery of debts, section 1237 AAD allows for waiver of a debt in part or in whole in special circumstances if the debt did not result wholly or partly from the debtor knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the Act and that it is more appropriate to waive the debt than write it off.
evidence of mr wei fu
7.Mr Fu told the Tribunal that in China, within three weeks of meeting his second wife to be, they decided to marry. Mr Fu told the Tribunal that his wife forced him to marry. She pointed out to him that they were both getting older and that her attributes or “conditions” matched his requirements (Transcript, 27 August 2003, p24). At that time Mr Fu was living in Campsie and working as a sample machine sewer. Mr Fu owned the Campsie property and lived there with his parents. Upon deciding to marry, Mr Fu finalised the purchase of a property in Parramatta in May 2000, and his wife moved straight into that property upon arrival from China. There was a 100 per cent mortgage on the Parramatta property and Mr Fu’s parents helped with finances by contributing approximately $120.00 per week.
8.When Ms Wu first arrived in Australia, Mr Fu described the marriage as being “normal” (Transcript, 27 August 2003, p31). Mr Fu acknowledged that supplementary documents were provided by his wife and himself, to assist with Ms Wu's visa, signed on 26 September 2000. Those documents indicated that Mr Fu and Ms Wu were very happy and deeply in love (T76, 77). Mr Fu explained that after those supplementary documents were handed in, the relationship changed. Mr Fu stated that Ms Wu treated their home like a hotel, asking for money for her telephone card and not returning home until late. Mr Fu stated that he was worried that his wife might "cheat" him (Transcript, 27 August 2003, p31). By this time Mr Fu had just purchased a cleaning business in Parramatta and was working 45 hours per week. Ms Wu was studying English.
9.Mr Fu stated that it was surprising to him to note a document in the material from a Counsellor from Mission Australia, who noted on 26 March 2001, that Ms Wu saw the Counsellor on 5 September 2000, stating that Ms Wu was afraid of her husband, was constantly threatened by Mr Fu if she did not have sex with him, and that he had threatened to withdraw his sponsorship if Ms Wu did not comply with his sexual demands (T64). This statement by the Counsellor contradicted Ms Wu’s Statutory Declaration, which was part of the supplementary material, signed by Ms Wu and Mr Fu on 26 September 2000 (T76, T77).
10.Mr Fu agreed that he had voluntarily signed the Assurance of Support because he wanted his second wife to come to Australia to live with him. He stated that the then Department of Immigration and Multicultural Affairs ("DIMA") officials clearly told him that if there were marriage problems within two years, then the temporary visa held by Ms Wu would be cancelled. Mr Fu believed that if the marriage failed, he could cancel the visa and his second wife would have to leave Australia. Mr Fu agreed that when he signed the Assurance of Support on 28 January 2000, he agreed to do so, acknowledging a number of points in the Declaration at the end of the document, including the parts that referred to supporting his wife and the fact that he could not withdraw support after a visa was granted (T3, p20).
11.As the marital relationship deteriorated, Mr Fu reiterated that his wife would go out and come back very late, often not having meals at home. He became concerned about this and on 10 October 2000, he had telephoned DIMA and spoke through the Telephone Interpreter Service to a DIMA officer requesting that Ms Wu's Permanent Residency Visa not be issued until March 2001. He did this because he felt uncertain as to whether or not the relationship would continue and he stated that he wanted to allow time to assess whether or not his wife really loved him and whether she was going to adapt to married life in Australia. Mr Fu stated that he was told by the departmental officer that everything would be alright and his information and request had been entered onto the computer. Mr Fu asked the officer whether he could have an appointment so that he could go to a DIMA office to discuss this, but was told that there was no need. During that same conversation, Mr Fu advised the officer of a changed address for correspondence. Mr Fu noted that the record of the telephone conversation of 10 October 2000 was recorded on the "Residence The Rocks Enquiry Form" (T74).
12.Mr Fu was shocked to hear from his wife that on 13 November 2000, she had been granted a Permanent Residency Visa. Mr Fu thought his wife was joking, but she proceeded to show it to him. He noted that on that day, Ms Wu had to his knowledge, made three telephone calls to DIMA and he believed on the third occasion, she found that she had obtained her visa. Ms Wu told Mr Fu, on about 15 November 2000, that she wanted to move out of the marital home. Mr Fu informed the Tribunal that on about 18 November 2000, Ms Wu left the house and did not come back for some considerable time. He called the police at about 3pm or 4pm on 19 November and then at about 9pm or 10pm, Ms Wu arrived home. Mr Fu and Ms Wu began to argue and they moved around the house arguing. At one point, Mr Fu stated that Ms Wu pushed him and that he retaliated. Mr Fu said that Ms Wu scratched his face and grabbed his genitals. Mr Fu stated that he did not intend to hurt his wife but he protected himself by hitting her head with a Discman (a portable device for playing musical compact discs).
13.As Ms Wu was injured, Mr Fu said that she wanted him to drive her to hospital, but he stated that he was in no condition to drive. Mr Fu called an ambulance and accompanied Ms Wu to hospital, staying with her that night and only leaving the next day at about 10am when told to by a hospital social worker. Mr Fu was referred to the hospital notes of Ms Wu's admission on 20 November 2000 to the Emergency Department of Westmead Hospital, which noted that she had a scalp haematoma, a small abrasion to her neck, bruising on the vertex, right elbow and left medial wrist and a mucosal tear to the inner aspect of her mouth (T65). Mr Fu stated that Ms Wu did not return to the family home after that incident. As a result of the incident, Apprehended Violence Orders were issued and Mr Fu was eventually charged with assault. Mr Fu noted that he had paid a solicitor $6,440.00 to help with his defence but lost the case. Mr Fu also employed a Migration Agent in 2001 to assist and advise him in relation to the possible cancellation of his wife's Permanent Residency Visa.
14.Mr Fu informed the Tribunal that in about May 2002, he received notice from the Family Court that he and his wife were divorced.
15.Mr Fu attempted to have his wife's Permanent Residency Visa cancelled because he believed that it was not lawful for her to have obtained the visa, particularly as the Immigration Officer, Mr Morgan, had not taken his request to put a hold on the Permanent Residency Visa into account. The Tribunal noted the handwritten file note dated 6 December 2000 from “DRM”, understood by the Tribunal to refer to Mr Morgan, which noted that Mr Morgan had not been aware of Mr Fu’s request to put a hold on Ms Wu’s Permanent Residency Visa (Spouse Visa) (T74). Mr Fu also wrote to Centrelink on 8 December 2000, stating that as of 24 November 2000, he was not willing to support his wife (T7). There is also a report from Mr Morgan, Case Assessor of DIMA dated 6 December 2000, noting that Mr Fu wished to withdraw his sponsorship for his wife because the relationship had ceased. The information provided to the case assessor was being submitted to DIMA's Visa Cancellation Unit (T5).
16.It was Mr Fu’s evidence that after Ms Wu left, she asked him for financial assistance in the amount of approximately $200.00 per week, stating to him that as he was her spouse, he had to look after her. Mr Fu stated that he told his wife that she chose to leave and he did not force her to go. In such circumstances Mr Fu told Ms Wu that he was not going to financially support her.
17.Mr Fu stated that he did not think that he should have to pay any debt to the Commonwealth arising out of his wife receiving income support, because DIMA had made a mistake in not taking into account his telephone call of 10 October 2000 asking that his wife's visa be put on hold. In this regard, Mr Fu referred the Tribunal to Mr Morgan’s file note dated 6 December 2000, stating that Mr Morgan had not seen the Department's records of Mr Fu's call wishing to put his wife's visa on hold (T74).
18.Mr Fu stated that DIMA should have to pay the Assurance of Support debt because it was the Department's fault that the debt arose. Mr Fu believed that his wife cheated him and the Australian Government in order for Ms Wu to be able to obtain an Australian Passport and Permanent Residency Visa.
19.DIMA considered cancelling Ms Wu's visa but did not do so. Ms Wu and Mr Fu were interviewed and various documents were considered in relation to the cancellation of the Permanent Residency Visa but on 28 September 2001, a decision was made that there was no evidence to support cancellation of the visa. It was noted by the Case Officer, Ms Frontino, that based on the evidence available, and given the Domestic Violence Provisions within the Department, Ms Wu would have met the special domestic violence provisions and accordingly would have been granted a Permanent Residency Visa in any event (T60).
20.In relation to Mr Fu's financial situation, he noted that he purchased a cleaning business in May/June 2000 for approximately $8,000.00, but because of the stress of his Centrelink debt, he became ill and ceased the business in July 2001. Mr Fu said that he sold the business for approximately $2,500.00 In 1997, Mr Fu had purchased an apartment in Campsie costing $130,000.00. Mr Fu stated that he had borrowed the money from friends to purchase the property. The Campsie property was then sold in May 2001 for $167,000.00 (Exhibit A4). Mr Fu used the funds to pay off a mortgage on another property in Parramatta and also to repay his outstanding debts to friends. The Parramatta property was sold for $250,000.00. Mr Fu stated that he needed to sell that property because he required the funds. It was Mr Fu’s evidence that he was not working and that he had too many problems. Mr Fu believed that he lost approximately $20,000.00 on the sale of the Parramatta property.
21.At a later point in time, Mr Fu said that he obtained a loan from the Wizard Mortgage Company in the amount of $49,600.00. He recouped $49,200.00 of that initial loan which he had invested in December 2000. Mr Fu believes that he lost approximately $2,000.00 on investment payments and government charges.
22.Mr Fu stated that currently he does not have any money and finds it difficult repaying his debt to Centrelink of approximately $50.00 - $60.00 per fortnight (Exhibit A4, par.17). At the hearing, Mr Fu noted that he is repaying approximately $30.00 per week to Centrelink. Since most recently returning to Australia from China, Mr Fu has continued to receive income support from Centrelink of approximately $320.00 per fortnight. Mr Fu stated that he is currently repaying $50.00 per week to friends, and that he owns a car. Mr Fu estimated that he had lost over $100,000.00 in total attributing this to the expenses relating to selling his assets and travelling overseas. Mr Fu also said that he cannot think clearly because of the injustice he has experienced. He felt his second wife had “cheated” him and, having obtained a Permanent Residency Visa, left him (Exhibit A4). Mr Fu is still not working and is currently studying the English language at TAFE.
23.In terms of his health, Mr Fu stated that he was referred by his General Practitioner, Dr A Khin to Dr S K Law, Consultant Psychiatrist, in August 2001 (Exhibit A4). Mr Fu stated that he consulted Dr Law on four or five occasions. Mr Fu stated that he takes whatever medication he is prescribed and corrected his Statutory Declaration, paragraph 11 (Exhibit A4) which indicated that he had ceased all medication. Mr Fu told the Tribunal that he visited China between August and September 2001, where he obtained Chinese traditional medicine to assist with a number of his health issues (including his poor sleeping habits) and to assist with his mental health. Mr Fu informed the Tribunal that this trip cost approximately $11,000.00 (Exhibit A4, paragraph 12). Mr Fu explained that, on average, he would only sleep five or six hours per night even when taking medication.
24.Mr Fu told the Tribunal that he returned to China on 24 December 2002, again to consult traditional Chinese doctors. He returned to Australia on 20 June 2003. In order to undertake this trip, Mr Fu borrowed $5,500.00 from friends. Mr Fu explained that he takes Chinese medicine compounds, which includes “Danseng” and other ingredients which are to assist in calming him down and helping him with his sleep difficulties. Mr Fu stated that he experiences palpitations, anxiety and often feels depressed. Dr A Khin has prescribed the medication "Neulactil” for Mr Fu’s sleeping problems.
25.Mr Fu stated that whilst In China, most recently, he met his future wife and was married on 31 March 2003. His third wife was, at the time of hearing, due to have a baby in November 2003. It was Mr Fu's plan to return to China for that event. Mr Fu told the Tribunal that there is a complication with his wife's health in that she was found to have a tumour in the uterus and required an operation which would cost approximately $800.00. Mr Fu said that he has already had to pay $800.00 for his new wife's medical treatment. Mr Fu's sister-in-law was paying the medical bills but she expected that Mr Fu would repay the entire cost of his new wife's treatment.
26.Mr Fu stated that he had entered into his new marriage understanding all the responsibility that that entailed. Mr Fu said that whilst these new circumstances would undoubtedly impact upon him financially (particularly as he was repaying a debt to the Commonwealth), Mr Fu did not consider that he should have to pay the Assurance of Support debt, as DIMA had made a mistake and caused him to suffer financial loss and emotional pressure. Mr Fu had received legal advice from his solicitor that he should apply to the Administrative Appeals Tribunal about the SSAT’s decision which he has done.
consideration and findings
27.I have reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and relevant case law.
28.Mr Fu entered, voluntarily, into an Assurance of Support on 28 January 2000 to allow his second wife, Ms Wu, to enter Australia. The Assurance of Support was freely signed and I find that it was a valid Assurance of Support, and that at the time of signing it, Mr Fu understood his responsibilities under the Assurance of Support.
29.In signing the Assurance of Support, Mr Fu had signed a Statutory Declaration indicating that he would provide sufficient direct or indirect financial assistance to Ms Wu. He made an undertaking to repay the Commonwealth certain benefits, if claimed by the Assuree, Ms Wu. Furthermore, Mr Fu declared in writing that he understood that the Assurance of Support could not be withdrawn after Ms Wu was granted her Permanent Residency Visa. I further find that the Assurance of Support commenced when Ms Wu arrived in Australia, being 20 May 2000. I further find that once Ms Wu received income support from the Respondent, then the Assurance of Support was broken and Mr Fu was rendered liable to repay the arising Assurance of Support debt.
30.I accept that Ms Wu’s and Mr Fu’s marriage was initially stable. There is a contradiction in evidence however, which indicates that all was not well in the marriage, from September 2000. I note that there are Statutory Declarations from Ms Wu and Mr Fu, dated 26 September 2000, providing information to the effect that their marriage was stable and that they were very much in love and happy to be in a relationship (T76,T77). However, prior to those declarations by Ms Wu and Mr Fu, there is a letter from a Mission Australia Counsellor indicating that on 5 September 2000, Ms Wu sought assistance, informing the Counsellor that she was afraid of her husband, and that Mr Fu threatened to withdraw the sponsorship of her under the Assurance of Support (T64). Thus, there is a stark contrast between the information presented in the documents provided to the Department of Immigration dated 26 September 2000 and the letter from the Mission Australia Counsellor dated 5 September 2000. Personal photographs were provided to DIMA in late September 2000 and also provided by Mr Fu to the Tribunal (Exhibit A5), which are indicative of pleasant family photographs and are evidence to support the existence of a stable and happy marriage.
31.On 10 October 2000, there is a record of a phone call to DIMA from Mr Fu (T74), indicating that he wanted to put a hold on his wife's Permanent Residency Visa to Australia, in order for him to ascertain whether the relationship was going to continue, and if Ms Wu was going to adapt to married life in Australia. It is unfortunate and quite clear that the notation of Mr Fu's call to a DIMA officer, while recorded, was not forwarded to the officer making the decision as to the grant or refusal of an Australian Permanent Residency Visa. The decision to grant a Permanent Residency Visa was made on 13 November 2000. The notation of Mr Fu's conversation with the DIMA officer requesting the case be put on hold, did not reach the assessing officer until 16 November 2000, which was too late as Ms Wu had already been advised that her application for an Australian permanent visa had been accepted. However, given the information provided by Mr Fu to DIMA subsequent to the grant of the Permanent Residency Visa for Ms Wu, an investigation was undertaken as to whether or not Ms Wu's permanent visa should be cancelled. Ms Wu was advised on 18 July 2001 of the possible cancellation of her visa. Mr Fu had alleged that Ms Wu was using him to stay in Australia and that the Commonwealth Government had also been cheated by Ms Wu.
32.I note that the investigation as to whether or not Ms Wu’s Permanent Residency Visa should be cancelled involved DIMA examining documents from a variety of sources, including various medical and hospital documents (in terms of injuries sustained by Ms Wu as a result of domestic violence between herself and her husband) and interviews with relevant people. The decision was made on 28 September 2001 by DIMA, that given all of the evidence, Ms Wu’s Permanent Residency Visa should not be cancelled and that it therefore would remain active (T60).
33.The Tribunal finds that in relation to the violence which occurred at the marital home on 19 and/or 20 November 2000, Ms Wu was admitted to hospital with head, neck and arm injuries, having been hit in the head by Mr Fu with a Discman. Ms Wu never returned to the marital home after this event. Following discharge from hospital, Ms Wu was accommodated in a women's refuge. Mr Fu had a number of Interim Apprehended Violence Orders taken out against him and as the Tribunal understands, he was eventually convicted of assault.
34.It is in the context of the break down of Mr Fu's marriage and DIMA's mistake in not forwarding information to the assessing officer about Mr Fu's request to put the granting of the visa on hold, that Mr Fu considers such circumstances special, and that he did not therefore consider himself responsible for the Assurance of Support debt. There are additional special circumstances, Mr Fu submitted, in relation to his health and present financial situation. The combination of those circumstances is special in the legislative context of section 1237 AAD of the Act and hence, it is submitted for the Applicant, that the debt should be waived.
35.Mr Vincent referred the Tribunal to Secretary, Department of Social Security v Hales (1998) 82 FCR 154, in which the Federal Court discussed the concept of special circumstances being broad enough to include more than evidence of financial hardship. The Federal Court noted that it must respond flexibly when considering what may constitute special circumstances and that such a concept covers a range of situations which could result in hardship or unfairness. It was submitted for the Applicant that in Mr Fu's case, the circumstances that should be noted by the Tribunal involved him being in the statutory Assurance of Support scheme to allow the migration of a person to Australia, where the government would be reimbursed if it had to pay income support for a migrant. The Assurance of Support scheme, Mr Vincent submitted, involved the rights and responsibilities of the Assurer and was designed to ensure that people are legitimate about those they bring into the country and that the Commonwealth is not unfairly burdened with immigration costs.
36.In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, the Federal Court looked to special circumstances (in the context of section 1184 of the Act) as being out of the ordinary and in circumstances where "unfair, unintended or unjust" outcomes had resulted. It is clear from the evidence that Mr Fu was asking DIMA to put Ms Wu's visa "on hold" and the mistake of not taking that request into account produced, in the Applicant's view, an unintended or unfair result in that the visa was granted when it should not have been.
37.In Boscolo v Secretary, Department of Family and Community Services (1999) 90 FCR 531 at 18, French J noted that a core requirement for special circumstances to be found is that there be something unusual or different. Mr Fu contended that the unusual circumstance for him that warranted the use of the discretion available, was that DIMA did not act on the advice that Mr Fu had provided in relation to his concerns about Ms Wu. Furthermore, in Re Secretary, Department of Family and Community Services and Morgan (1999) 57 ALD 187, Re Secretary, Department of Family and Community Services and Birgden [2003] 36 AAR 374, and also in Re Ceresna and Secretary, Department of Family and Community Services [1999] AATA 346, the issue of administrative error was accepted as a special circumstance. In Re Gunn and Secretary, Department of Social Security (1999) 28 AAR 527, the circumstances of persons other than the debtor were also taken into account in terms of the special circumstances legislative provision. It was contended that this had relevance to Mr Fu’s case, and that the Tribunal should allow the circumstances relating to Mr Fu's new wife to be taken into account, in particular, her health and the impending birth of their baby. It was submitted that the responsibilities Mr Fu has towards his elderly parents, with whom he lives, should also be taken into account.
38.I find that Mr Fu's allegations concerning Ms Wu making false statements to DIMA and also of using Mr Fu in order to obtain entry into Australia and eventually an Australian passport, were fully investigated and assessed by DIMA when it considered the possible cancellation of Ms Wu's Permanent Residency Visa. On 28 September 2001, a decision was made by an officer of DIMA, taking into account a large amount of evidence, not to cancel Ms Wu's visa (T60). Any error of DIMA not to take into account Mr Fu’s concerns and request made on 10 October 2000, was rectified in DIMA’S investigation of Mr Fu’s allegations which lead to the decision given on 28 September 2001 to affirm the grant of a Permanent Residency Visa for Ms Wu.
39.I further find that Mr Fu clearly knew of his obligation to support his wife arising out of his signing of the Assurance of Support and the Statutory Declaration contained within it, yet decided not to honour his obligation. While I acknowledge that the failure of Mr Fu’s and Ms Wu’s relationship produced sad consequences, in the context of the Assurance of Support and the presence of domestic violence, such a circumstance does not of itself constitute a special circumstance.
40.In consideration of Mr Fu’s financial circumstances, the Tribunal acknowledges that they are difficult, but Mr Fu has managed to travel to China on at least two occasions and to take on the responsibility of a new wife and impending family. It is clear that while Mr Fu's financial situation is tight and difficult, he is in no worse a position than many social security recipients and certainly has managed his affairs either within his own means or with the assistance of family and friends.
41.In terms of Mr Fu’s health, he is taking traditional Chinese medication to assist him with sleep disturbance and through some emotional difficulties. I note Dr A Khin’s medical certification that Mr Fu is suffering from an Adjustment Disorder and Mr Fu’s evidence that he is consulting Dr S K Law, Consultant Psychiatrist (although there is no objective medical data available to the Tribunal about this). Again, while Mr Fu may have some health difficulties, he is not so incapacitated as to have his circumstances considered as special, when viewed against other relevant Federal Court and Tribunal authorities.
42.I find that while the cases referred to by the Applicant are instructive in relation to special circumstances and the matters which the Federal Court and Tribunals have taken into account, it is incumbent upon the Tribunal to look at the specific circumstances of Mr Fu’s case. It is my view that whilst there are a number of issues in this matter such as the failure of DIMA to take account of Mr Fu's request of 10 October 2000, Mr Fu’s health, his difficult financial circumstances and the added responsibility for a wife and new baby, I am not persuaded on all of the evidence available to me that these circumstances are, either alone or in combination, special in the legislative sense to the extent that they should allow waiver of Mr Fu’s debt arising out of his obligations under the Assurance of Support. Accordingly, for all of the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act1975, the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member.
Signed: .....................................................................................
Associate
Dates of Hearing 27 August 2003, 17 September 2003
Date of Decision 6 April 2004
Representative for the Applicant Mr M Vincent of Counsel
Solicitor for the Applicant Mr A Wei, AAT Legal SolicitorsRepresentative for the Respondent Ms H Schuster, Departmental Advocate
SCHEDULE 1
Exhibit Description Date A1 Applicant's Statement of Facts and Contentions 25 July 2002 A2 Marriage Certificate and Translation 31 March 2003 A3 Medical certificate for Mr Wei Fu by Dr A Khin 26 August 2003 A4 Statutory Declaration of Mr Wei Fu 25 July 2002 A5 Nine photographs of Mr Fu and Ms Wu R1 Respondent's Statement of Facts and Contentions 22 March 2002 R2 Screen print-out of Assessment of debt 26 August 2003 R3 Debt Action Summary -print-out 26 August 2003 R4 Statement of Assurance Account 26 May 2002
3
2
0