Hassan and Secretary, Department of Social Services (Social services second review)

Hassan and Secretary, Department of Social Services (Social services second review) [2018] AATA 4618 (17 December 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0080
Re:Fouad Hassan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:17 December 2018
Place:Melbourne

The decision under review is set aside and substituted with the following decision:
1.Under the AoS entered into in respect of Nima Hassan, the applicant assumed liability for all recoverable social security payments paid to Nima Hassan between 18 September 2006 and 17 September 2016;
2.The applicant’s liability under the AoS gave rise to a total debt payable to the Commonwealth in the amount of $118,159.79 (the Applicant’s Total AoS Debt); and
3.Any unpaid or unrecovered amount of the Applicant’s Total AoS Debt is waived with effect from the date of this decision.

........................[sgd]................................................
The Hon. Matthew Groom, Senior Member
Catchwords
SOCIAL SECURITY – assurance of support debt – whether the debt was appropriately raised – whether the debt should be written off or waived – whether special circumstances exist – decision set aside and substituted
Legislation
Social Security Act 1991
Cases
Angelakos and Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9
Dranichnikov v Centrelink [2003] FCAFC 133
lvovic and Director-General of Social Services (1981) 3 ALN N95
Secondary Materials
Social Security (Assurances of Support) (FaHCSIA) Determination 2007
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
17 December 2018
INTRODUCTION

This is a review of a decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 6 December 2017 in respect of an Assurance of Support (AoS) debt of the applicant. The AAT1 affirmed an earlier decision of Centrelink that the applicant has an AoS debt in respect of recoverable social security payments paid to his sister, Nima Hassan, and that no part of the debt should be written-off or waived.
RELEVANT FACTS
On 21 October 2004 the applicant’s mother, Fatuma Yusuf, and sister, Nima Hassan applied for a Contributory Parent visa (subclass 143).
On 11 January 2005, the former Department of Immigration and Multicultural and Indigenous Affairs (the Department) sent the applicant a letter which acknowledged the application received on 21 October 2004 for a Contributory Parent visa (subclass 143) in respect of his mother and sister. The letter set out the requirements for the provision of an AoS as a mandatory criterion for the visa subclass. The letter states as follows:
An AoS is a legal commitment made by an assurer or assurers to repay any social security payments paid by the Australian Government to the applicants during the first ten years in Australia.
The visa applicants are:
1.Fatuma Yusuf (born / 1954) Female
2.Nima Ibraham Hassan (born 03 June 1987) Female
On 14 January 2005 the Department sent the applicant an SU594 Application to Provide an Assurance of Support (the SU594 Form). The SU594 Form includes explanatory notes which state relevantly:
Assurances of support cover the primary applicant and the family included in the visa application.
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.
..An Assurance of Support musty be given for these visa categories:
·Contributory parent
…Children under 18 in an application are usually listed in the primary visa applicant’s Assurance.
..The assurance of Support period begins on the day that the new migrant enters Australia, or on the day that the visa that the Assurance of Support covers is issued, whichever is later. For Contributory Parents visa categories, the Assurance of Support remains in force for 10 years from this date.
…Once the Assurance of Support has been accepted and the visa has been issued, the Assurance of Support cannot be cancelled or withdrawn for any reason, even if your relationship with the person(s) covered by the Assurance of Support breaks down, or you pass away.
…For all visa categories that are listed as Bonded (mandatory) a bond has to be lodged at any Australian branch of the Commonwealth Bank of Australia.
The bond is held by the bank for the full period of the Assurance of Support. Centrelink will authorise the release of the bond at the end of the Assurance of Support period, where appropriate. Any amount needed to repay recoverable payments made to anyone covered by the Assurance of Support during the Assurance of Support period will be deducted before it is released.
…Bonds cannot be released until the Assurance of Support period has ended for all people covered by the Assurance of Support.
For the Contributory Parents visa categories, the bond amount is A$10,000 for the primary applicant and $4,000 for each other person aged 18 years or over included in the visa application.[1]
[1] Supplementary T Documents (ST) 140.
The SU594 Form also included a Statement of acknowledgement by the Assurer which was required to be signed in front of a Centrelink officer which stated as follows:
Statement by the Assurer
I understand that:
·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.
·I am required to repay the Australian Government the full amount of any Centrelink payments that are affected by an Assurance of Support paid to any person(s) listed in the Application to Provide an Assurance of Support that I have signed…
·Once the person(s) for whom I have given an Assurance of Support is/are 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 my death, or a breakdown in the relationship between myself and any person(s) for whom I have given an Assurance of Support.[2]
[2] ST 155.
Centrelink’s internal records state that the applicant attended in person to the office of AOS Victoria on 15 February 2005 for an interview regarding the provision of an AoS.
Unfortunately, neither Centrelink nor the Department has been able to locate a copy of the application form lodged by the applicant for the purpose of the AoS. However, based on Centrelink’s internal records it is reasonable to infer that the applicant completed and lodged the SU594 Form when he attended AOS Victoria for the purpose of the interview.[3] The applicant, who was an extremely credible witness, told the Tribunal that he had no reason to doubt that he had lodged an application for the AoS using the SU594 Form consistent with the Centrelink records. Further, he stated that he had no reason to doubt that he read the SU594 Form before signing it. For these reasons, the Tribunal finds that the applicant lodged an application for the AoS in respect of his mother and sister, using the SU594 Form, on or around 15 February 2005.
[3] T Documents (T) 112.
On 25 February 2005, the applicant deposited $10,000 into a term deposit with the Commonwealth Bank, against which the Commonwealth Bank issued a bank guarantee in favour of Centrelink as security for the AoS.[4]
[4] ST 156.
On 28 February 2005, Centrelink accepted the applicant’s AoS application and issued him with an acceptance notice (AoS Acceptance Notice) that stated in part:
I am writing to you about your application to provide an Assurance of Support which you lodged at AoS Victoria Centrelink on 15 February 2005. Your application to provide an Assurance of Support for the following people has been accepted:
Fatuma Yusuf
Nima Hassan
…..Your responsibilities as an Assurer will start when your Assurees arrive in Australia or are granted the visa to which this Assurance of Support applies, whichever happens later. Your responsibilities will remain in place until the Assurance of Support expires, 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.
As an Assurer, you are responsible for providing sufficient direct or indirect financial support to your Assurees, so that they do not need to claim payments from Centrelink. If you are unable or unwilling to provide sufficient support and if certain Centrelink payments are made to your Assurees, Centrelink will keep an account in your name of the full value of the amounts that are paid. Under social security law, you will be liable to repay the full amount at the end of the Assurance of Support period. Any bond that has been lodged will be taken from the bank by Centrelink and credited towards your account…[5]
[5] T 43.
On 12 April 2006, the Department wrote to the applicant notifying him that the visas for Fatuma Yusuf and Nima Hassan had been approved (Visa Notification Letter).[6]
[6] ST 158.
On 18 September 2006, Nima Hassan arrived in Australia and the applicant’s 10 year assurance of support period for her commenced.[7]
[7] ST 162.
On or around 1 September 2008 Nima Hassan lodged a claim for parenting payment.[8]
[8] T124.
On 18 September 2008 Centrelink issued a notice to the applicant advising him of his sister’s claim for parenting payment and requesting an interview to discuss the implications for him under the AoS.[9]
[9] T 45.
On 23 September 2008, the applicant attended Centrelink. An internal Centrelink record of the meeting states as follows:
Customer attended office reg letter issued to him reg support for Nima Ibrahim Hassan
Mr Hassan stated that he is not able to support his sister, her child due to his financial commitments
Explained legal requirements reg aos, which he stated he is aware…[10]
[10] T 111.
On 3 October 2008, Centrelink granted parenting payment to Nima Hassan from 1 September 2008 and issued a notice to the applicant advising him of the grant and his obligations under the AoS.[11]
[11] T 50.
On 16 September 2010 Nima Hassan was granted Australian citizenship.
On 17 September 2016, the applicant’s AoS in respect of Nima Hassan ceased.
On 15 February 2017, Centrelink made a decision that the applicant had a total AoS debt of $118,159.79 in respect of Nima Hassan comprising the following payments made to her during the period 18 September 2006 and 17 September 2016 as follows:
$67,498.25 parenting payment (single), 25 September 2008 to 6 September 2012;
$48,299.25 parenting payment (partnered), 19 September 2012 to 17 September 2016; and
$2,362.29, 20 July 2009 to 31 December 2010.[12]
[12] T 29.
On 20 February 2017 Centrelink issued the applicant with a notice advising of the total AoS debt (Debt Notice). The Debt Notice states that $10,000 will be recovered against the bank guarantee in part repayment of the debt. The Debt Notice states that the outstanding balance to be repaid under the AoS is $67,498.03. It is not clear on what basis this amount is identified as being the outstanding amount. It would appear to be an administrative error. [13]
[13] T 74.
On 16 March 2017, the applicant sought a review of the decision by an Authorised Review Officer (ARO).[14]
[14] T 88.
On 24 March 2017, the ARO affirmed the original decision. It would appear that the decision erroneously states the total of the debt under the AoS as being $108,159.79. No explanation has been provided for this, although it would be reasonable to infer that the amount was erroneously described as being the total amount of the debt when in fact it was the amount the ARO had calculated would remain outstanding on the assumption that $10,000 would be recovered against the bank guarantee.[15]
[15] T 33.
On 5 April 2017, the applicant lodged an application for review of the ARO decision with the AAT1.
On 23 June 2017, the applicant was made redundant from his employment with Telstra Corporation Limited and received a payout of $160,000.
On 6 December 2017 the AAT1 affirmed the ARO’s decision.[16]
[16] T 5.
On 8 January 2018 the applicant lodged a review of the AAT1 decision with this Tribunal.[17]
[17] T 1.
On 13 March 2018 the applicant received notice of the cessation of the AoS in respect of his mother, Fatuma Yusuf. The applicant told the Tribunal that, following receipt of the notice, the Commonwealth Bank transferred the $10,000 that had previously been held in the term deposit to support the bank guarantee back to the applicant. The respondent was not able to provide any explanation for the transfer of the $10,000 back to the applicant other than to describe it as a “mistake and an error”.
On 22 March 2018 Centrelink recovered $107,902.67 from a bank account of the applicant by way of garnishee order.[18]
[18] ST 178.
The respondent contends that the difference between the applicant’s total AoS debt (being $118,159.79) and the amount recovered under the garnishee order (being $107,902.67) remains outstanding. The respondent was not able to confirm at the hearing whether or not it is intending to recover the outstanding amount of the applicant’s AoS debt.
ISSUES
The central issue to be determined by the Tribunal is whether the AoS that the applicant entered into gave rise to a debt due to the Commonwealth in respect of recoverable social security payments paid to his sister and, if so, for what amount. A secondary issue is whether there is any basis for either writing-off or waiving all or any part of such debt.
CONSIDERATION
The statutory provisions relevant to this review are set out in the Social Security Act 1991 (the Act).
The provisions governing assurances of support are set out in Chapter 2C of the Act.
Section 1061ZZGA of the Act provides that an AoS is an undertaking by a person that they will pay the Commonwealth an amount equal to the amount of social security payments that are received by another person who is identified in the undertaking and becomes the holder of a visa granted in connection with the undertaking.
Section 1061ZZGEA of the Act provides that a person who has given an AoS 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 (Migration Act), of a visa granted in connection with the assurance.
Section 1061ZZGF of the Act provides that the AoS comes into force when the assured person becomes the holder of the visa granted under the Migration Act in connection with the assurance or when the assured person arrives in Australia as the holder of the visa, whichever comes later in time. Section 1061ZZGF also sets out the period during which the AoS remains in force.
Under section 1061ZZGG of the Act, the assurer is liable to pay the Commonwealth the amount of a social security payment received by the assured person in respect of all or part of the period for which the AoS is in force in respect of the assured person if the assurer has given an AoS that was accepted, the assured person is identified in the assurance and the social security payment is specified for the purposes of section 1061ZZGG in a determination in force under section 1061ZZGH when the payment is received.
Under section 1227 of the Act, a person owes a debt due to the Commonwealth if they are liable to pay an AoS debt.
The respondent contends that, by entering into the AoS, the applicant assumed liability for any recoverable social security payments paid to the applicant’s sister between 18 September 2006 and 17 September 2016. Recoverable social security payments include, relevantly, parenting payments and the pension education supplement.[19]
[19] Social Security (Assurances of Support) (FaHCSIA) Determination 2007.
Having considered all of the materials before it, the Tribunal finds that the applicant’s sister was paid a total of $118,159.79 of recoverable social security payments during the relevant period as follows:
$67,498.25 parenting payment (single), 25 September 2008 to 6 September 2012;
$48,299.25 parenting payment (partnered), 19 September 2012 to 17 September 2016; and
$2,362.29 pensioner education supplement, 20 July 2009 to 31 December 2010.[20]
[20] T 29 and T 93.
In the course of the hearing, the applicant has raised a question as to whether or not, in entering into the AoS, he assumed liability for social security payments paid to his sister after she had reached 18 years of age. The applicant concedes that when he entered into the AoS he believed he was assuming liability in respect of both his mother and his sister for a period of 10 years. However, the applicant told the Tribunal that he subsequently became uncertain about whether he was liable for social security payments paid to his sister after she became an adult for two reasons. First, when he deposited the $10,000 bond as security for the AoS, the bank guarantee documentation named only his mother as the visa applicant. Secondly, the Visa Notification Letter sent to the applicant on the granting of the visa for both his mother and sister included a description of the AoS as follows:
An AoS is a commitment, made by an assurer, to provide financial support to the person(s) migrating so that the migrant(s) will not have to rely on any government forms of support. For Contributory Parent (Migrant) visa holders the AoS is in force for a period of 10 Years from the time the permanent visa was granted. An AoS is also in force for the same period from the time the permanent visa was granted for any applicant’s over 18 years of age who were included on the application.
From the applicant’s perspective, the bank guarantee documentation and the Visa Notification Letter could be read as suggesting that the AoS that he had entered into only extended to a minor secondary applicant for the period they remained a minor, and that once they (the minor) attained 18 years of age, a new separate AoS was required to be entered into. The applicant told the Tribunal that he had raised this issue with the Department and Centrelink on a number of occasions but had not received an answer.
While the applicant’s confusion on this point is understandable, the terms of the AoS that the applicant entered into are set out in the SU594 Form, read together with the AoS Acceptance Notice. Those terms make clear that, on entering into the AoS, the applicant assumed liability for all recoverable social security payments paid to either his mother or sister for a period of 10 years from the date of their entry into Australia. It is true that the applicant’s sister was a minor at the time the applicant entered into the AoS, and that she had reached the age of majority by the time she entered Australia, but that is of no consequence. The applicant was at all times, during the 10 year term of the AoS, liable for his sister’s recoverable social security payments.
During the hearing the applicant also questioned whether the bank guarantee could be enforced against a debt that arose from social security payments paid to his sister, given that it did not name her. The applicant’s uncertainty on this point is again understandable and, had the security remained in place, there may well be some vulnerability to the enforcement of the security on the basis of the applicant’s argument. However, the issue is moot as the security was in fact released back to the applicant and therefore it is not necessary for the Tribunal to consider this matter any further.
The applicant has also raised a question about the validity of the respondent’s enforcement of the garnishee order against his Commonwealth Bank account. This is the subject of a separate review process and, for that reason, was not argued before this Tribunal. It is therefore not necessary or appropriate for the Tribunal to consider this matter any further.

During the course of the hearing the applicant stated that he had challenged Centrelink on his legal obligation to meet the social security payments of his sister under the AoS, and had also asked Centrelink to review the AoS with a view to waiving or cancelling his obligations under it on the basis of his ongoing financial difficulties.[21]
[21] T 107.
The documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents) tendered by the respondent include a letter from Centrelink to the applicant dated 5 March 2009, which confirms an earlier decision of Centrelink to reject the applicant’s request to cancel or otherwise waive the applicant’s obligations under the AoS. The letter makes reference to a further review by an ARO and indicates that the applicant will be contacted by the ARO in relation to the outcome of that review.[22]
[22] ST 157.
The respondent has been unable to locate any further correspondence in relation to the ARO review but asserts that a further letter was sent to the applicant in relation to the outcome of the ARO review and relies on internal Centrelink records to support this contention. Notwithstanding the insistence by the applicant that he did not receive any further correspondence from Centrelink in relation to the ARO review, the Tribunal accepts that it is more likely that Centrelink did issue a letter to the applicant with the outcome of the ARO review consistent with Centrelink’s internal records.
For the reasons set out above, the Tribunal finds that:
(a)the applicant entered into an AoS in respect of both his mother and sister on the terms set out in form SU594, read together with the AoS Acceptance Notice;
(b)under the AoS, the applicant assumed liability in respect of both his mother and his sister for any recoverable social security payments for a period of 10 years up until 17 September 2016;
(c)The applicant’s sister was paid recoverable social security payments as contended by the respondent and that those payments gave rise to a debt under the AoS that was owed by the applicant to the Commonwealth in the amount of $118,159.79.
Having determined that the applicant is liable for a debt under the AoS as described above, the Tribunal needs to determine whether there is any basis for either writing-off or waiving the whole or any part of the debt.
The write-off provisions are contained in section 1236 of the Act. In accordance with the provisions, in certain limited circumstances, the Secretary may write-off some of all of the debt. Those circumstances include where:
(a)The debt is irrecoverable at law;
(b)The debtor has no capacity to repay the debt;
(c)All reasonable efforts have been made to locate the debtor but the whereabouts remain unknown; or
(d)It is not cost effective for the Commonwealth to take action to recover the debt.
While in the course of his oral evidence the applicant indicated that he was experiencing financial difficulties as a consequence of not being in current employment, there was no evidence of an incapacity to meet the balance of the AoS debt. It is important to note here that the vast majority of the debt has already been recovered as a result of the enforcement of the garnishee order. In his oral evidence the applicant confirmed to the Tribunal that he owns his current home mortgage-free. Notwithstanding his unemployed status, the applicant also confirmed that has not been receiving any form of social security which would indicate an ongoing capacity to meet his day to day living expenses.
Having regard to all of the circumstances of this case, the Tribunal is satisfied that there is no basis on which any or all of the debt could be written-off in accordance with section 1236 of the Act.
The waiver provisions are set out in section 1237 of the Act.
Under section 1237A(1) of the Act the Secretary must waive the right to recover the proportion of a debt that is attributable “solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt”.
In this case, the payment or payments that gave rise to the debt were payments made to the applicant’s sister and therefore waiver by way of administrative error under section 1237A(1) is not available to the applicant.
Section 1237AAD of the Act provides for recovery of a debt to be waived in certain circumstances if, amongst other things, there are special circumstances that warrant the waiver of all or part of the debt. Requirements that must be met for special circumstances to apply are:
(a)The debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation or failing or omitting to comply with a provision of the Act; and
(b)It is more appropriate to waive than to write off the debt or part of the debt.
The term “special circumstances” is not defined in the Act but its meaning has been considered by the Federal Court and this Tribunal on a number of occasions.
In Dranichnikov v Centrelink [2003] FCAFC 133 the Federal Court determined that whether there are special circumstances in a particular case is dependent on whether there are circumstances that would distinguish the case from the usual case.
In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25, the Federal Court concluded that there must be something that distinguishes the case from the ordinary or usual cases. Justice Besanko said at paragraph 33:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
In lvovic and Director-General of Social Services (1981) 3 ALN N95, the Tribunal concluded that the decision-maker must ‘... be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise appropriate’.
Having regard to the case law, in applying special circumstances the Tribunal must consider the individual circumstances of the case and be satisfied that those circumstances involve some aspect that is unusual or uncommon and that having regard to those circumstances it would be unjust, unreasonable or otherwise inappropriate for the debt to be recovered.
While the applicant was unrepresented at the hearing, during the course of the hearing he presented a number of arguments to the Tribunal that could be considered relevant to the issue of a waiver of the debt as a whole. The applicant argued that he should not be liable for his sister because:
(a)it had the potential to cause him financial difficulty and impact on his capacity to provide assistance to his own children;
(b)he did not agree with some of the decisions his sister had made in her personal life;
(c)his relationship with his sister had broken down; and
(d)his sister had been married and that her husband should have been able to provide for her.
What concerns the Tribunal is that these arguments are inconsistent with the obligations that the applicant assumed when he entered into the AoS. When he agreed to provide the AoS he understood that he was agreeing to be liable for social security payments in respect of both his mother and sister. This was the basis on which the Government agreed to grant them their visa. There is a sound public policy reason for requiring the provision of an AoS in these circumstances. It is to ensure that the Australian public is protected from the cost of supporting an applicant for a Contributory Parent visa, which is granted on the basis that the public not be exposed to such costs. It would undermine the public policy purpose of the AoS if the debt that arose from that assurance was subsequently waived simply because the applicant complained of the very obligations that he had agreed to assume and which the Government had relied on in granting his mother and sister their visas. In order for the special circumstance provision to be enlivened there needs to be a circumstance that stands out from the ordinary. For these reasons, the Tribunal finds that special circumstances do not exist that could justify a waiver of the applicant’s AoS debt as a whole.
However, the Tribunal is more sympathetic to the circumstances of the applicant in relation to that portion of his AoS debt that still remains outstanding. The applicant has been left in the unenviable position of not knowing whether or not the respondent proposes to pursue further debt action against him to recover any unpaid portion of the AoS debt. The applicant made clear to the Tribunal that he remained very uncertain as to his ongoing exposure to further action. The respondent’s representative could not say whether or not the respondent proposed to take further action but made clear to the Tribunal that it reserved the right to do so. Further to this, there have been a number of communications to the applicant in relation to his residual exposure under the AoS that have added to his state of uncertainty, including:
(a)The letter from Centrelink to the applicant dated 20 February 2017, which erroneously stated that the unpaid portion of the AoS debt was $67,498.03;
(b)The ARO decision of 24 March 2017, which erroneously described the applicant’s total AoS debt as being $108,159.79.
(c)The garnishee order which recovered $107,902.67 from the applicant’s bank account with seemingly no logical explanation as to how or why that amount was determined; and
(d)The release of the bank guarantee and the transfer back to the applicant of $10,000, again with no explanation as to what this mean with respect to his AoS debt.
All of these communications have involved error on the part of Centrelink and caused confusion and uncertainty on the part of the applicant. The fact that against this backdrop the applicant continues to be uncertain about further debt recovery in respect of any outstanding amount is, in the view of the Tribunal, an unusual circumstance and one that is unfair on the applicant. For these reasons, the Tribunal is satisfied that there are special circumstances that justify the waiving of any unpaid or unrecovered portion of the applicant’s AoS debt in accordance with section 1237AAD.
The Tribunal is satisfied that there is no basis for the applicant being denied a waiver because the debt has resulted wholly or in part from the applicant or another person knowingly making a false statement or false representation or failing or omitting to comply with the Act.
For the reasons set out above, the Tribunal is satisfied that it is more appropriate to waive than write-off any outstanding amount of the applicant’s AoS debt.
Section 1237AAE of the Act sets out extra rules that apply to the waiver of AoS debts. These rules include a requirement that:
(a)The decision maker must be satisfied that the waiver is justified on grounds other than the assurer being unaware of the legal effect of the AoS; and
(b)If a security has been provided then any waiver should be exclusive of the amount of the security.
The Tribunal is satisfied that section 1237AAE presents no bar to the granting of a waiver in these circumstances. The Tribunal is satisfied that the waiver is justified on grounds other than the applicant being unaware of the legal effect of the AoS. Further, while there was previously a form of security in place, it has since been released and in any case the total amount that has already been recovered against the applicant’s AoS debt is well in excess of the previous amount of the security.
DECISION
The decision under review is set aside and substituted with the following decision:
1.Under the AoS entered into in respect of Nima Hassan, the applicant assumed liability for all recoverable social security payments paid to Nima Hassan between 18 September 2006 and 17 September 2016;
2.The applicant’s liability under the AoS gave rise to a total debt payable to the Commonwealth in the amount of $118,159.79 (the Applicant’s Total AoS Debt); and
3.Any unpaid or unrecovered amount of the Applicant’s Total AoS Debt is waived with effect from the date of this decision.

2. I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

..................................[sgd]......................................
Associate
Dated: 17 December 2018

Date of hearing: 21 November 2018

Applicant: Self-Represented

Advocate for the Respondent:
Mr James Henderson
Department of Human Services

[2018] AATA 4618

17 December 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Remedies

Statutory Construction

Date of hearing:	21 November 2018
Applicant:	Self-Represented
Advocate for the Respondent:	Mr James Henderson Department of Human Services