Henshaw and Secretary, Department of Family and Community Services

[2005] AATA 616

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 616

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1393

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAHNOOSH HENSHAW

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date29 June 2005

PlaceSydney

Decision The decision of the Social Security Appeals Tribunal is set aside and in substitution thereof the Tribunal decides that the amount of the assurance of support debt to be raised and recovered from the Applicant for the period 11 November 2003 to 4 September 2005 is to be calculated at the rate of $80 per week.

[sgd] Ms N. Isenberg, Member

CATCHWORDS

SOCIAL SECURITY – assurance of support – debt arising from assuree receiving special benefit – income support - spouse visa – special circumstances - whether any grounds not to recover debt

LEGISLATION

Social Security Act 1991 (Cth) sections 729 (1), (2), 1236, 1237A and 1237AAD

CASE LAW

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

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Gunn v Department of Social Security (1999) 28 AAR 527

Melino and Secretary, Department of Family and Community Services [1999] AATA 857

Riddell v Secretary, Department of Social Security (1993) 30 ALD 31

Stojanovic and Secretary, Department of Family and Community Services [1999] AATA 304

REASONS FOR DECISION

Ms N Isenberg, Member      

DECISION UNDER REVIEW

1.      The decision under review before the Administrative Appeals Tribunal (‘the Tribunal”) was the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 23 September 2004, reviewing a decision made by Centrelink on 17 December 2003 and affirmed by the Authorised Review Officer (“the ARO”) on 20 May 2004.  

BACKGROUND

2.        In approximately July 2002, Mr Pouzideh married Ms Mahnaz Moghaddam, Mrs Henshaw’s sister, in Iran.  They subsequently made an application for a spouse visa in order that Mr Pouzideh might travel to, and live in, Australia.  As part of his Immigration application, Mr Pouzideh declared that he intended to bring approximately $A40,000 into the country with him.

3.        At the request of her sister, Ms Moghaddam, and her mother, Mrs Nasiri, Mrs Henshaw signed a Discretionary Assurance of Support Agreement (‘the Agreement’) in respect of Mr Pouzideh on 13 March 2003.  By signing this Agreement, Mrs Henshaw gave an assurance of support for a period of two years. (T5)

4.        In March 2003 Ms Moghaddam moved to Australia from Iran and was given accommodation in the home of Mr and Mrs Henshaw.  Later, on 5 September 2003, Mr Pouzideh arrived in Australia on a visa subclass 309.  He also was given accommodation in the home of Mr and Mrs Henshaw.

5.        In October 2003 Mr Pouzideh and Ms Moghaddam left the home of the Henshaws.  

6.        On 11 November 2003 Mr Pouzideh applied to Centrelink for income support and was granted special benefit from this date. (T15)

7.        On 17 December 2003 Centrelink advised Mrs Henshaw that Mr Pouzideh had been granted special benefit from 11 November 2003 on the basis that Mrs Henshaw was either unable or unwilling to support Mr Pouzideh.  As such, because of her assurance of support, Mrs Henshaw was required to repay the special benefit payments made to Mr Pouzideh.

ISSUES BEFORE THE TRIBUNAL

8.        The issues before the Tribunal were:

(a) whether Mrs Henshaw has an assurance of support debt to the  Commonwealth, and if so

(b) whether there are any grounds not to recover the amount.

DOCUMENTARY EVIDENCE

9. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”), which I took into evidence. The parties provided other documents which have been attached to the Tribunal’s file.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

10.      At the hearing Mrs Henshaw was represented by Ms Kathryn Boyle, solicitor, of Brett Slater Solicitors.  Centrelink was represented by Luke Carter, an advocate from the Centrelink Legal Services Branch.

11.      Evidence was given at the hearing by Mrs Henshaw and her husband, Mr Andrew Henshaw, her mother, Mrs Nasiri and her sister,  Ms  Moghaddam.

12.      In coming to the correct and preferable decision, I took into account all the evidence, written submissions, case law and relevant legislation.

·Did Mrs Henshaw validly execute the assurance of support?

There was no dispute that Mrs Henshaw had validly executed an assurance of support.

·Does Mrs Henshaw owe Centrelink a debt?

Mr Pouzideh was paid special benefit in accordance with section 729 of the Social Security Act 1991 (Cth) (“the Act”):

729(1) “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. Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).

729(2) The Secretary may, in his or her discretion, determine that a special benefit should be granted to a person for a period if:

(a) no social security pension  is payable to the person during the period; and      (b) no other social security benefit is payable to the person for the period; and

(e) the Secretary is satisfied that the person is unable to earn a sufficient livelihood for the person and the person’s dependents (if any) because of age, physical or mental disability or domestic circumstances or for any other reason; and

(f) the person:
           (i) is an Australian resident; or

(v) becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of this paragraph; and

(g) if the person is:

(i) the holder of a visa included in a class of visas that is issued for temporary protection, humanitarian, or safe haven purposes and that is determined by the Minister to be a class of visas to which this subparagraph applies; and
(ii) a person to whom subsection (2A) applies;
the person meets the additional criteria set out in paragraph (2B)”

13.      Centrelink’s position was that, as Mr Pouzideh’s visa was in a class of visas determined by the Minister under subsection 729(2)(f) of the Act, and also, as Mrs Henshaw had taken out an apprehended violence order (‘AVO’) against him, it was unreasonable for Mr Pouzideh to accept the support of Mrs Henshaw.  He was qualified to receive a special benefit and this was paid with effect from 11 November 2003.

14.      The question to consider is whether Mrs Henshaw owes an assurance of support debt.  The relevant legislation is section 1227 of the Act, which states:

1227(1)” If a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth”

15.It is worthwhile recording the obligations set out in the Agreement: 

·“I undertake to provide sufficient direct or indirect financial assistance to the persons covered by this assurance to ensure they will not rely on any form of Australian Social Security benefit.

·I undertake to repay to the Commonwealth the funds paid where any Special Benefit is paid under the Social Security Act 1991 to a person covered by this assurance during the period for which the assurance of support is given;

·I understand that Centrelink, on behalf of the Department of Family and Community Services, may use its debt recovery powers under the Social Security Act 1991 or that action may be taken in a court to recover from me such funds as a debt due pursuant to the Migration Regulations… (T5).”

16.     Centrelink contended that as Mrs Henshaw entered into an Agreement in respect of Mr Pouzideh, and he subsequently received special benefit, Mrs Henshaw therefore has a debt under section 1227 of the Act.  That debt is equivalent to payments to Mr Pouzideh under the Act during the assurance of support period, namely 5 September 2003 to 4 September 2005.  Payment commenced on 11 November 2003 and I am informed that as at 14 April 2005 this amount was $10,234.29.

17.      In these circumstances it is clear that Mrs Henshaw owes Centrelink the assurance of support debt.

· Are there are any grounds upon which the Secretary cannot recover the amount?

Writing Off

18.      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.

1236(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.

19.      Subsections (a), (c) and (d) are clearly not satisfied in this case.  The only one of these subsections that might apply to Mrs Henshaw is (b).  While she gave evidence of her financial circumstances (which are discussed below), and provided a statement of her expenses, no argument was made of an inability to repay the debt.  Notwithstanding her expenses, suffice to say she is in a well paid job and is part owner of two properties.

20.      I find that she has the capacity to repay the debt and hence the debt cannot be written off.

Waiver of the debt: administrative error

21.      Section 1237A(1) of the Act, which deals with the waiver of debts due to sole administrative error, is not applicable to this case because Mrs Henshaw did not receive special benefit payments.  Therefore, it cannot be said that she had received them in good faith, which is a requirement for this section to operate.

22.      I find that the debt which arose because special benefit was paid to Mr Pouzideh is not solely attributable to Commonwealth error.

Waiver of the debt in special circumstances

23.      Section 1237AAD of the Act provides:

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

24.      It was on this basis that Mrs Henshaw sought relief from her obligations under the Agreement.

25.      Mrs Henshaw gave evidence that her sister Mahnaz had asked her to sign the Agreement.  Mahnaz told her that Mr Pouzideh had no need of money but he would not be allowed to come and start a new life in Australia with her without that document being signed.  Mrs Henshaw’s evidence was that she told her sister that she could provide support by way of accommodation in the family home, and food, but that because of her limited resources she was unable to provide her and Mr Pouzideh with money or any other form of financial support.  Ms Moghaddam gave evidence that she was aware that her sister had a lot of debts and was supporting their mother and would be unable to provide financial support to Mr Pouzideh.

26.      Mrs Henshaw said that while reading the document she felt that it needed to be “completed by someone with income”.  She said she told Mahnaz that she did not think her husband would let her sign it.  She gave evidence that she told him that if she did not sign it, the marriage of her sister may be affected.  She said she told Mahnaz that she and Mr Pouzideh were “never to go to Centrelink” and that if things went wrong they, the sisters, would end up “hating each other”.

27.      Mrs Nasiri said that they had discussed the Agreement with Mahnaz and she told Mahnaz that Mrs Henshaw supported her, their mother, and that Mrs Henshaw’s financial situation was ‘not good’.  Mahnaz told her that Mr Pouzideh was a lawyer, that he owned his own company and earned 2.5 million Touman per month and that his only problem was “getting here”.

28.      Mrs Henshaw said she talked to Mr Pouzideh on the telephone and told him the same thing she had told her sister about the level of support, and specifically that it did not extend to financial support.  She sent him a copy of pay slips to accompany his application so as to verify where he was going to stay and that she had the income to support him.

29.      Mr Pouzideh resided with the Henshaw family for three weeks.  During that time Mrs Henshaw provided him and her sister with:

• accommodation
• specifically requested food and drinks
• toiletries and other personal items
• a television for use in their room

30.      Mrs Henshaw gave evidence that she would give Mahnaz money for trips out and treats, such as ice-cream.  She also gave Mahnaz her credit card and PIN number so she and Mr Pouzideh could get what they needed, as she was too busy at work to buy everything.  She booked a holiday for them in Queensland, but because they had left her home before the holiday, they did not go.  She lost her money, as she was unable to get a refund.

31.      Soon after his arrival, however, Mr Pouzideh’s behaviour became unreasonable, hostile and aggressive.  She said that he:

·behaved in an abusive manner towards her children, by physically assaulting them, threatening them, yelling at them and otherwise disciplining them inappropriately;

·verbally abused members of her family and threatened her by saying in an aggressive manner that he was “going to show Mahnoosh”;

·refused to comply with her reasonable requests to modify his behavior in order to protect the wellbeing of the children.  For example: he left the gas on in the kitchen for an extended period, left the back door open which enabled the children to access the construction site on a nearby property, left vitamin tablets lying around the house within easy reach of young children, (resulting in at least two incidents in which a child consumed these tablets), and consumed alcohol to an unreasonable level in the presence of the children;   

·made unreasonable demands on Mrs Henshaw’s resources, including: insisting that he would not sleep in the same bedroom as his wife; insisting that particular foods be provided and that his food be cooked in particular ways; refusing an offer of more comfortable and spacious accommodation in two rooms at Mrs Nasiri’s house; and refusing at least two jobs which he was offered in order to support himself.

32.      Mr Pouzideh and Ms Moghaddam left Mrs Henshaw’s home after an argument between Mrs Nasiri and Ms Moghaddam in which Mrs Nasiri was assaulted in the presence of the Henshaw children.  

33.      Mrs Nasiri gave evidence that on the following day, Mr Pouzideh, together with Ms Moghaddam, returned to the house.  Mr Pouzideh forced his way into the house by damaging the door and, in the process, injured Mrs Nasiri’s hand.  Mrs Nasiri became distressed and suffered an asthma attack.  Mr Pouzideh and Ms Moghaddam gathered their possessions and left the Henshaw’s home, with the assistance of a male friend.

34.      Mrs Henshaw’s evidence was that prior to leaving, Mr Pouzideh and Ms Moghaddam had not discussed their intention to leave, nor did she ask them to leave at any time.  Mr Henshaw also gave evidence that he was trying to smooth things over and he, also, did not ask them to leave nor did he ask Mr Pouzideh to modify his conduct.  He said he could see things were tense between Mr Pouzideh and Ms Moghaddam.  Ms Moghaddam also gave evidence that they were not asked to leave.

35.   Mrs Henshaw and her mother successfully applied for AVOs against Mr Pouzideh and Ms Moghaddam.

36.    It is submitted that the circumstances outlined above constitute “special circumstances” in which it would be appropriate to waive the debt in that it would be “unjust, unreasonable or otherwise inappropriate” for the Commonwealth to pursue recovery of this debt. 

37.   It is submitted that Mrs Henshaw acted in good faith in providing accommodation and support to Mr Pouzideh, but that owing to circumstances beyond her control, it became manifestly unreasonable for her to provide continuing accommodation and support to him.

38.     She contended that his behavior, and that of and Ms Moghaddam, was such as to leave her no choice but to obtain AVOs against them.  Mrs Henshaw asserted that Mr Pouzideh behaved in a violent, aggressive and otherwise unreasonable manner towards her and her family.  

39.      Mrs Henshaw said that she has ongoing fears in respect of Mr Pouzideh, and that she remains unable to continue to accommodate him in her house. 

40.      Mrs Henshaw had previously contended that the relationship with her sister  had irretrievably broken down.  The sisters (and their mother) have recently reconciled.

41.      Ms Boyle referred me to the UN Convention on the Rights of the Child (to which Australia became a signatory in 1990) which stipulates that children have the right to be protected from neglect and abuse (article 19).  She submitted that to require that Mrs Henshaw continue to accommodate Mr Pouzideh in the above circumstances would be unreasonable, inappropriate and in breach of this Convention.

42.      Mrs Henshaw contended that she was induced by her sister and mother to sign the Agreement in favour of Mr Pouzideh in order to assist him to enter Australia.  It was further contended that she signed the Agreement on the basis that Mr Pouzideh had genuinely entered the marriage and that she would be helping her sister to establish a life in Australia with her new husband.  Mrs Henshaw formed the view that Mr Pouzideh was never committed to a genuine relationship with her sister and that she was deceived by Mr Pouzideh into assisting him.  Mr Henshaw thought Mr Pouzideh had ‘played them all for a fool’.  It was submitted that Mrs Henshaw is an innocent victim of Mr Pouzideh’s fraudulent behaviour and she has, at all times, acted in good faith.  In those circumstances it was submitted, it would be unjust, unreasonable or otherwise inappropriate to pursue the debt against her.

43.      As such, it was submitted that these circumstances give rise to an injustice which constitutes “special circumstances” where it is appropriate for the debt to be waived. 

44.      The phrase “special circumstances” has been considered in the following cases:  In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 Toohey J stated: "An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context, which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special."

In a later case, Groth v Secretary, Department of Social Security (1995) 40 ALD 54, at 545, Keifel J, observed that special circumstances: "would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case .... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."

In Riddell v Secretary, Department of Social Security(1993) 30 ALD 31, the Full Court of the Federal Court said at page 38: "Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other."

In Melino and Secretary, Department of Family and Community Services [1999] AATA 857 (15 November 1999), the AAT said: “The Tribunal considers that the exercise of the discretion contained within section 1237AAD must involve the evaluation of a combination of factors in each particular case, taking into account any unusual or exceptional circumstances, or situations where it would be "unjust, unreasonable or otherwise inappropriate" not to exercise the discretion: Re Ivovic and Director-General of Social Security (1981) 3 ALN N95”.

45.While there are no doubt inequities in this matter, I need to decide if the unfortunate result of those inequities should fall on Mrs Henshaw or the taxpayer.  I must start with the premise, enunciated in Gunn v Department of Social Security (1999) 28 AAR 527 at 539, where it was noted that: “In the ordinary course of events, those who are granted [a relevant entry permit] should not be supported by public funds… for the first two years of their being granted it”.

46.      I accept that Mrs Henshaw disclosed to Mr Pouzideh and Ms Moghaddam the nature of the support that she was able to provide prior to the Agreement being signed, and this offer was considered acceptable to them.  She provided accommodation and food, and was, on her evidence, generous in what she provided.  She arranged a holiday for them, and gave her sister access to her credit card to make purchases on their behalf. 

47.      However, I observe that the terms of her agreement with the Commonwealth is that she undertook to provide sufficient direct or indirect financial assistance

“to the person’s covered by this assurance to ensure
  they will not rely on any form of Australian Social
  Security benefit…”

48.      The terms of that Agreement are clear, and there was no suggestion that Mrs Henshaw was unaware of those terms.  Indeed, on reading the document she had concerns about her ability to comply, but nonetheless, out of loyalty to her sister and mother, and apparently despite her better judgment, entered into the Agreement. As between herself, her sister and Mr Pouzideh, however, she attempted to make some lesser commitment.  Vis-à-vis the Commonwealth, however, her obligation is clear.  Therefore, I do not consider it appropriate to waive the whole of the debt.

49.      However, my attention was invited to Stojanovic and Secretary, Department of Family and Community Services [1999] AATA 304). In that case the applicant, for reasons beyond her control, was unable to continue to honour the assurance of support.

50.      I accept that, at all times, Mrs Henshaw acted honestly and in good faith and has made reasonable efforts to accommodate and provide support to Mr Pouzideh while he remained at her home.  Further, I accept that Mrs Henshaw did not ask Mr Pouzideh to leave her home, and that Mr Pouzideh did so voluntarily.  In doing so, Mrs Henshaw’s ability to continue to support Mr Pouzideh was compromised, creating circumstances outside her control.

51.      However, her evidence was that notwithstanding his demands and the disruption to her family, she was prepared to support Mr Pouzideh in her home.  She should meet that obligation to the extent to which she was prepared to honour it. 

52.      In Stojanovic,  the Tribunal was prepared to accept that the sum of $60 was a reasonable assessment of the cost of feeding and clothing a person who is living with a family.  That case was decided in 1999 and related to an assurance of support period in 1997.  I consider an amount of $80 to be a fair representation of that current cost. 

53.      The financial level of Mrs Henshaw’s preparedness to support Mr Pouzideh has been determined above at $80 per week, and it is at this rate that I find she should remain indebted to the Commonwealth.

54.      I find that there are special circumstances applicable in this case.  Therefore, it is appropriate that the debt should be waived to the extent that it exceeds the amount of any benefit paid to Mr Pouzideh over and above the sum of $80 per week.

DECISION

55.      The decision of the Social Security Appeals Tribunal is set aside and in substitution thereof the Tribunal decides that the amount of the assurance of support debt to be raised and recovered from the Applicant for the period 11 November 2003 to 4 September 2005 is to be calculated at the rate of $80 per week.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         Lori Feely

Associate                   

Date/s of Hearing  15 June 2005
Date of Decision  29 June 2005
Solicitor for the Applicant                Kathryn Boyle
Advocate for the Respondent        Luke Carter  

Note:   The Act makes provision in limited circumstances for non-recovery of debts.