Kado and Child Support Registry (Child support)
[2022] AATA 4801
•17 May 2022
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.
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Deputy President J W ConstanceCatchwords
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 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.
Section 72L of the Act sets out the circumstances in which the Registrar must issue a departure authorisation certificate.
Further evidence and findings of fact
Evidence of Mr Kado
In addition to the statement which accompanied his application to the Tribunal, Mr Kado gave evidence at the hearing.
If permitted to leave, he will return to Australia as his home is in Australia and he requires surgical treatment soon after his planned return. He was granted Australian citizenship in 1987 and has remained a citizen of this country ever since.
Mr Kado’s sole source of income is the pension he receives as the carer of his mother. He has no savings, investments, or other assets. He regularly withdraws his pension payment shortly after receipt to pay for medical treatment which must be paid for in cash. He is paying off a loan which will be finalised in the next two and a half years.
When asked to explain several money-transfers he had made to recipients overseas[7], Mr Kado said that these funds were provided to him by his mother from her pension payments. Later he said that his mother collects money from family members in Australia to send to relatives in Lebanon.
[7] AUSTRAC records, exhibit R1 at 88.
The main reason for his desire to travel overseas is to enable his mother to receive a series of injections which are unavailable in Australia. The treatment would be administered by Dr Dahi, who was last consulted by Mr Kado’s mother about four years ago.
Mr Kado’s mother has a brother, a son and about 20 nieces and nephews living in Australia. She contacts her brother on a weekly basis.
Reports of Dr Dahi, General Practitioner
Dr Dahi treated Mr Kado’s mother before she migrated to Australia in 2019. He provided a report dated 12 January 2022[8]. He did not give evidence at the hearing.
[8] Exhibit R1 at 25.
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?
REASONING
Issue 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?
Subsection 72L(2) requires a departure authorisation certificate to be issued in the event that each of the three issues above are satisfied. As I am satisfied that the answer to issue 2 is “no”, I do not need to answer the first and third questions.
Subsection 72I(1) is set out in paragraph nine (9) of these reasons. Based on the evidence before me I am satisfied that an appropriate period for the purposes of subsection 72L(2), is the period from the time of the hearing of this application until 30 June 2022, being the date of Mr Kado’s proposed return to Australia. There is nothing in the evidence to suggest that an appropriate period should extend beyond the time of Mr Kado’s proposed absence from Australia. It should be noted that my determination in this regard is based on the facts of this matter. Mr Kado did not indicate that he would be able to reduce the debt significantly in the foreseeable future. Mr Kado gave evidence that if he was able to travel to Lebanon he will make arrangements to make payments of approximately $30.00 per fortnight.
Based on his evidence, I am not satisfied that, within the appropriate period, Mr Kado will cease to have a child support liability or that he will make satisfactory arrangements to wholly discharge his liability or that the Registrar will be satisfied that the liability will be completely irrecoverable.
Issue 4: Has Mr Kado given security under section 72M for his return to Australia?
Although Mr Kado has offered to borrow $32,500.00 to provide a security, the offered security has not been considered appropriate by the Registrar. I am satisfied that the amount offered was not appropriate, in accordance with the provision of the Child Support Guide that the Registrar will only accept a security that is generally not significantly less in value than the amount of the debt owing. Although the Guide is a policy and therefore not binding on the Tribunal, it should be followed unless there is good reason not to do so.
In this matter there is no reason to depart from this policy. This is consistent also with previous decisions of the Tribunal in Valve and Child Support Agency (2009)[13] and Askew and Child Support Registrar (2014).[14]
[13] [2009] AATA 927 at [18].
[14] [2014] AATA 354 at [21].
At the time of the hearing Mr Kado had not given security for his return to Australia.
Issue 5: Should the certificate be issued on humanitarian grounds?
Is Mr Kado unable to give security for his return to Australia?
A pre-requisite to considering whether a certificate should be issued on humanitarian grounds is that Mr Kado is unable to give security in accordance with subsection 72M. I accept the argument put on behalf of the Registrar that I cannot be satisfied that this is so.
In Bettison and Child Support Registrar, the Tribunal said, in part:
The evidential onus is on the applicant to establish a lack of financial
capacity to provide security. The requisite inability to be demonstrated
must be financial and not circumstantial.[15]
[15] [2016] AATA 592 at [10].
Mr Kado’s evidence as to his financial circumstances was unsatisfactory. His finances are intermingled with those of his mother and he was unclear as to how he obtained the funds which has transferred to recipients overseas. He initially said that his mother gave him cash to transfer to family members in Lebanon and that the source of these funds was her government pension. Later he said that some of the money came from her nieces and nephews in what he describes as “a collective thing, if she needs money she asks her nieces and nephews in Australia …… and when she collects money to help in Lebanon they would not say no.” [16]When asked how he and his mother were able to purchase tickets to travel to Lebanon he replied “as Lebanese we have each other.”[17]I am not satisfied that Mr Kado provided all relevant information as to his financial capacity.
[16] Transcript 17/05/2022.
[17] Transcript 17/05/2022.
AUSTRAC records show that Mr Kado transferred $3084.00 to destinations overseas between 1 January 2022 and 12 April 2022.
Mr Kado’s evidence as to the source of the $32,500.00 he offered to provide by way of security was unsatisfactory also. He said it was a loan from a friend but later said that his friend collected the amount from others. Mr Kado said that he did not know how the money was received by his friend.
Are there humanitarian grounds to require the issue of a departure authorisation certificate?
As I have decided that I am satisfied that Mr Kado is not unable to give appropriate security for his return, it is not necessary that I consider whether there are humanitarian grounds for the issue of a certificate. However as this was an issue in contention between the parties, I will consider the evidence before me.
I was referred to the decision of the Tribunal in Crockett and Commissioner of Taxation[18] in which the meaning of the words humanitarian grounds was considered in the context of taxation legislation. The Tribunal decided that humanitarian grounds were not limited to the doing of good works but included also compassionate grounds based on an applicant’s circumstances. I agree that the words as they appear in subsection 72L(3) should be given the same interpretation.
[18] [1998] AATA 1033 at [12].
For the reasons which follow I am not satisfied on the balance of probabilities that there are humanitarian grounds for the issue of a departure authorisation certificate to Mr Kado.
The condition for which Mr Kado’s mother is said to suffer and for which treatment cannot be obtained in Australia, is unclear. In his report of 12 January 2022 Dr Dahi said that she is suffering from backache and needed treatment with Diprophos Amp. He did not elaborate on the connection, if any, between the proposed treatment and the stated condition. I have taken into account also that Mr Kado’s mother has not consulted Dr Dahi since she came to Australia several years ago. His report was provided at the request of Mr Kado’s uncle in Lebanon.
I prefer the opinion of Dr Youssef that Mr Kado’s mother suffers from several medical conditions, all of which can be treated in Australia, albeit with different means of treatment than that proposed by Dr Dahi.
Mr Kado argued further that he needed to accompany his mother to travel to Lebanon to visit family and that this would improve her mental health. He referred also to the benefit to his mental health as a result of such a visit. This was supported by their General Practitioner, Dr Youssef.
Dr Youssef did not provide further information to support his opinion that either Mr Kado or his mother would benefit from a visit to relatives in Lebanon, other than “from memory, he [Mr Kado] told me that he was not in the right frame of mind for surgery”.[19]There is no evidence to suggest that either Mr Kado or his mother has been referred to a specialist for psychiatric assessment or treatment. Dr Youssef did not indicate the severity of the respective mental conditions suffered by either Mr Kado or his mother or why alternative treatments available in Australia would not be appropriate.
[19] Transcript 17/05/2022.
Issue 6: Would refusing to issue the certificate be detrimental to Australia’s interests?
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.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Dated: 8 July 2022
Date of hearing: 17 May 2022 Applicant: Self-represented Solicitors for the Respondent: Mr A Taverniti, Sparke Helmore Lawyers
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