Kado and Child Support Registry (Child support) - [2022] AATA 4801

Kado and Child Support Registry (Child support) [2022] AATA 4801 (17 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/3815
Re:John Kado
APPLICANT

AndChild Support Registrar
RESPONDENT

WRITTEN REASONS FOR ORAL Decision
Tribunal:Deputy President J W Constance
Date:17 May 2022
Date of written reasons: 8 July 2022
Place:Sydney

The decision under review, being the decision of the Respondent made 11 May 2022 to refuse the Applicant’s application for a departure authorisation certificate under s 72L of the Child Support (Registration and Collection) Act 1988 (Cth), was affirmed.
.................................[SGD]..................................
Deputy President J W Constance
Catchwords
CHILD SUPPORT – child support debt – departure prohibition order – application for departure authorisation certificate refused – whether departure authorisation certificate must be issued – decision affirmed
Legislation
Child Support (Registration and Collection) Act 1988 (Cth) ss 72I, 72L, 72M
Cases
Askew and Child Support Registrar [2014] AATA 354
Bettison and Child Support Registrar [2016] AATA 592
Crockett and Commissioner of Taxation [1998] AATA 1033
Valve and Child Support Agency [2009] AATA 927
Secondary Materials
The Child Support Guide
Written REASONS FOR DECISION given orally on 17 May 2022
Deputy President J W Constance
8 July 2022
INTRODUCTION

On 12 May 2022, Mr Kado applied to the Tribunal to review the decision of a delegate of the Child Support Registrar to refuse his application for a departure authorisation certificate[1] under the Child Support (Registration and Collection) Act 1988 (Cth). Without such a certificate, Mr Kado is precluded from travelling outside Australia by reason of a departure prohibition order issued to him on 26 July 2007[2] and which remains in force. At the time of the issue of the order, and as at the date of the hearing, Mr Kado owed a child support debt.
[1] Exhibit R1 at 45.
[2] Exhibit R1 at 47.
On 17 May 2022, I affirmed the decision to refuse the application for a departure authorisation certificate. At the time I gave the reasons for my decision orally. I now provide my reasons in writing.
background
Unless stated otherwise, findings of fact in these reasons have been made based on the evidence of Mr Kado.
Mr Kado sought the certificate to allow him to travel overseas between 19 May 2022 and 30 June 2022.
The grounds on which the Certificate is sought
As part of his application for a departure authorisation certificate made to the Registrar, and in his application to the Tribunal, Mr Kado stated that he sought the certificate on the following humanitarian grounds:
·the need to accompany and care for his elderly mother to ensure her safety during a planned trip to Lebanon;
·his mother needs to travel to Lebanon to receive medical treatment which is unavailable in Australia;
·he has been advised that his mother’s mental health would be improved by the travel as she would be able to visit relatives in Lebanon and Syria;
·the proposed travel would improve his mental health.[3]
[3] Exhibit R1 at 32-32 and 18-19 respectively.
Previous departure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4801
Decision Date: 17 May 2022

CaseChat Overview and Summary

This matter concerned an application by Mr Kado for a departure authorisation certificate to permit him to travel overseas to Lebanon. Mr Kado sought the certificate on humanitarian grounds, citing the need to accompany and care for his elderly mother during her trip for medical treatment and to improve both his and his mother's mental health. At the time of the application, Mr Kado had a significant child support debt of $207,544.80. The court was required to determine whether to affirm the Registrar's decision to refuse the application for the certificate.

The legal issues before the court were whether it was likely that Mr Kado would depart from and return to Australia within an appropriate period, and if so, whether the Registrar would be required to revoke the departure prohibition order. Further, the court had to consider whether it was necessary for Mr Kado to provide security for his return, and if not, whether the certificate should be issued on humanitarian grounds or if refusing it would be detrimental to Australia's interests.

The court found no evidence to support the assertion that refusing the certificate would be detrimental to Australia's interests, nor was this basis argued by Mr Kado. The court affirmed the Registrar's decision to refuse the application for a departure authorisation certificate.

Orders

Orders of the court

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Background

Background to the litigation

On 17 May 2022, I affirmed the decision to refuse the application for a departure authorisation certificate. At the time I gave the reasons for my decision orally. I now provide my reasons in writing.background Unless stated otherwise, findings of fact in these reasons have been made based on the evidence of Mr Kado. Mr Kado sought the certificate to allow him to travel overseas between 19 May 2022 and 30 June 2022.The grounds on which the Certificate is sought As part of his application for a departure authorisation certificate made to the Registrar, and in his application to the Tribunal, Mr Kado stated that he sought the certificate on the following humanitarian grounds:·the need to accompany and care for his elderly mother to ensure her safety during a planned trip to Lebanon;·his mother needs to travel to Lebanon to receive medical treatment which is unavailable in Australia;·he has been advised that his mother’s mental health would be improved by the travel as she would be able to visit relatives in Lebanon and Syria;·the proposed travel would improve his mental health.[3][3] Exhibit R1 at 32-32 and 18-19 respectively.Previous departure authorisation certificate issued to Mr Kado Mr Kado was issued with a departure authorisation certificate in 2011 to permit him to visit his brother.[4] There is no evidence to suggest that he did not comply with the terms of that certificate.[4] Exhibit R1 at 48.Child Support debt On 13 May 2022, Mr Kado had a total child support liability of $207,544.80, consisting of a maintenance debt of $64,951.30 and a late payment penalty debt of $142,593.50.[5] Mr Kado did not dispute the debt owing. I am satisfied that at the time of the hearing the debt had not altered significantly.[5] Exhibit R1 at 84. The child support debt has been incurred in respect of Mr Kado’s five children born between 1 January 1981 and 31 December 2004. Child support first became payable by Mr Kado in February 1991 and has been collected by the Registrar since that time.[6] [6] Exhibit R1 at 198.LEGISLATION The relevant sections of the Child Support (Registration and Collection) Act 1988 (Cth) for present purposes are sections 72I, 72L and 72M:72I Revocation and variation of departure prohibition orders(1) The Registrar must revoke a departure prohibition order in respect of a person if:(a) the person no longer has a child support liability or carer liability; or(b) the person has a child support liability or carer liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or(c) the person has a child support liability or carer liability, but the Registrar is satisfied that the liability is completely irrecoverable.……….72L When Registrar must issue departure authorisation certificate(1) This section applies if a person makes an application under section 72K for a departure authorisation certificate.(2) The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:(a) that, if the certificate is issued:(i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and(ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and(b) that it is not necessary for the person to give security under section 72M for the person’s return to Australia.(3) If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:(a) the person has given security under section 72M for the person’s return to Australia; or(b) if the person is unable to give such security, the Registrar is satisfied:(i)that the certificate should be issued on humanitarian grounds; or(ii)that refusing to issue the certificate will be detrimental to Australia’s interests.72M Security for person’s return to Australia(1) A person may give such security as the Registrar considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Registrar and is specified in the departure authorisation certificate.(2) The Registrar may substitute a later day for the day mentioned in subsection (1), either on the Registrar’s own motion, or on application by the person in the approved form.(3) The Registrar may refuse an application by a person to substitute a later day if:(a) the person refuses to increase the value of the security already given to a level that the Registrar considers appropriate; or(b) the person refuses to give such further security as the Registrar considers appropriate; or(c) the Registrar considers that it would not be appropriate to substitute the later day.

Evidence

Evidence Before The Court

On 12 January 2022 Dr Dahi reported:[Mr Kado’s mother] complains of backache and she needs treatment at my clinic and the necessary procedure for her with Diprophos Amp. She also needs companions due to the necessity of her health and difficulty in walking.Evidence of Dr Youssef, General Practitioner Dr Youssef provides medical care for Mr Kado and his mother. He provided a report dated 15 October 2021 in respect of each patient and gave evidence at the hearing. He also provided support letters dated 5 May 2022[9] and 15 May 2022[10] in respect of Mr Kado’s mother.[9] Exhibit R1 at 44.[10] Exhibit R1 at 85. On 15 October 2021 Dr Youssef reported that Mr Kado’s mother had worsening mental health caused by her feeling that she is away from her home and family in Lebanon. He had advised her that visiting her family would greatly improve her mental health if it was safe for her to do so. She would need Mr Kado to travel with her as her carer.[11][11] Exhibit R1 at 26. At the same time Dr Youssef reported that Mr Kado suffered from anxiety and depression which was being contributed to by his concern for his family in Lebanon. Dr Youssef had advised Mr Kado to accompany his mother to Lebanon to ease his worry and improve his mental state before returning to Australia for surgery.[12][12] Exhibit R1 at 28. Dr Youssef affirmed the opinion he expressed in his reports. He has not heard of the treatment Diprophos Amp reported by Dr Dahi as being appropriate for Mr Kado’s mother. She suffers from several conditions, including arthritis. Treatment for all conditions from which she suffers is available in Australia. issues for determination The following issues arise for determination.(1) If a departure authorisation certificate is issued, is it likely that Mr Kado will depart from Australia and return to Australia within an appropriate period?(2) If so, is it likely that, within an appropriate period, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of Mr Kado?(3) If so, is it not necessary for Mr Kado to give security under section 72M for his return to Australia?(4) If the Tribunal is not satisfied of any one or more of the preceding three issues, has Mr Kado given security or been unable to give security under section 72M for his return to Australia?(5) If Mr Kado has been unable to give security, is the Tribunal satisfied that the certificate should be issued on humanitarian grounds?(6) Or is the Tribunal satisfied that refusing to issue the certificate will be detrimental to Australia’s interests?REASONINGIssue 1: If a departure authorisation certificate is issued, is it likely that Mr Kado will depart from Australia and return to Australia within an appropriate period?Issue 2: Is it likely that, within an appropriate period, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of Mr Kado?Issue 3: Is it not necessary for Mr Kado to give security under section 72M for his return to Australia?

Decision

Reasons for decision

There is no evidence to support a determination that refusing to issue the certificate would be detrimental to Australia’s interests. Mr Kado did not argue that a certificate should be issued to him on this basis.Conclusion For the reasons stated, the decision under review, being the decision of the Respondent made 11 May 2022 to refuse the Applicant’s application for a departure authorisation certificate under s 72L of the Child Support (Registration and Collection) Act 1988 (Cth), was affirmed.

Ratio Decidendi

Legal Principle Established

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