Kamil and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor
[2007] AATA 1248
•20 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/640
GENERAL ADMINISTRATIVE DIVISION ) Re ABDIHAKIM MOHAMMED KAMIL Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondents
DECISION
Tribunal Regina Perton, Member Date20 April 2007
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant does not have an assurance of support debt. (sgd) Regina Perton
Member
SOCIAL SECURITY – assurance of support – payments of special benefit and parenting payment partnered – applicant claims not to have signed form ‑ decision set aside
Social Security Act 1991 ss 1227, 1237A, 1237AAD, 1237AAE
Social Security Legislation Amendment (Newly Arrived Residents Waiting Periods and Other
Measures) Act 1997 s 3(1)
Migration Regulations 1994 Division 2.7, reg 2.38
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Lee v Secretary, Department of Social Security (1996) 139 ALR 57
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
REASONS FOR DECISION
20 April 2007 Regina Perton, Member 1. Mr Abdihakim Mohammed Kamil (Mr Kamil), who was born in Somalia, arrived in Australia on a humanitarian visa in 1993. He was accepted for resettlement in Australia from a Kenyan refugee camp. Mr Kamil is the youngest of several siblings. One brother has lived in Australia since 1984. Another of his brothers accompanied him to Australia. His parents arrived a year later.
2. Ali Mohamed Kamil (Mr Ali Kamil) is one of Mr Kamil’s brothers. A year older than Mr Kamil, Mr Ali Kamil returned to Somalia in 2000 and married Deqo Ali Mead. Ms Mead subsequently applied for a spouse visa (subclass 309) at the Australian High Commission in Kenya. One of the criteria for the grant of a spouse visa is a discretionary assurance of support. In Ms Mead’s case, a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship) decided that an assurance of support was required before a spouse visa would be granted.
3. A person signing an assurance of support (the assurer), undertakes to provide monetary and other support to the person granted the visa for their first two years of residence in Australia. If the newly arrived person receives social security benefits during the first two years in Australia, Centrelink, on behalf of the Commonwealth, may seek reimbursement of the amount paid to the newly arrived person from the assurer. Centrelink acts as the service delivery agency for the Secretary to the Department of Families, Community Services and Indigenous Affairs and the Secretary to the Department of Employment and Workplace Relations (the respondents). A minimum level of income is required of an assurer for the Department of Immigration and Citizenship (as it now is) (the Department) to accept an assurance of support. Mr Ali Kamil, who is disabled and in receipt of a disability support pension (DSP), would not have been an acceptable assurer. Mr Kamil was the only member of the immediate family who was employed. An assurance of support was provided in Mr Kamil’s name. The document, dated 4 September 2001, appeared to have been signed by Mr Kamil. The assurance of support was deemed acceptable by the Department. Ms Mead was granted a spouse visa and arrived in Australia on 20 February 2002.
4. The relationship between Ms Mead and Mr Ali Kamil has now ended. Ms Mead left the family home which her husband shared with his parents and siblings before the end of the period covered by the assurance of support. Ms Mead was eligible for, and was granted, a social security benefit shortly after her arrival in Australia. Centrelink decided that Mr Kamil, as the assurer, should reimburse the Australian Government for the benefits received during Ms Mead’s first two years in Australia. Ms Mead received special benefit from 24 April 2002 to 27 August 2002 ($998.37) and parenting payment partnered (PPP) from 30 August 2002 to 19 February 2004 ($13,171.21). On 20 April 2004, a Centrelink delegate raised a debt of $14,169.58 against Mr Kamil.
5. Mr Kamil sought reconsideration of the decision to raise the debt and enforce the assurance of support. On 25 February 2005 an authorised review officer of Centrelink affirmed the delegate’s decision that Mr Kamil was required to repay the amount of benefits received by Ms Mead. Mr Kamil sought review of the decision by the Social Security Appeals Tribunal (SSAT). On 13 May 2005 the SSAT affirmed the decision. Mr Kamil lodged an application for review of that decision with the Tribunal on 19 July 2005. The application was outside the prescribed time limits. The Tribunal, with the consent of the respondents, extended the time for lodgement.
6. Mr Kamil contends that he did not sign the assurance of support and therefore, does not owe a debt to the Commonwealth. The Tribunal needs to consider whether Mr Kamil personally signed the assurance of support. If the Tribunal determines that he did sign the document, it needs to consider whether the debt can or should be waived due to special circumstances.
Why was a Debt Raised?
7. The Social Security Act 1991 (the Act) and the Migration Regulations 1994 (the Migration Regulations) contain legislative provisions dealing with assurances of support. Division 2.7 of the Migration Regulations deals with assurances of support which were lodged after 19 December 2001 and accepted by the then Minister of Immigration and Multicultural Affairs (the Minister) prior to 1 July 2004. Division 2.7 applies to this case. Regulation 2.38 of the Migration Regulations states:
(1) If a person receives support in the form of:
(a)a job search allowance payable under Part 2.11 of the Social Security Act 1991 ; or
(b)a newstart allowance payable under Part 2.12 of that Act; or
(c)a special benefit payable under Part 2.15 of that Act; or
(d)a widow allowance under Part 2.8A of that Act; or
(e)a partner allowance under Part 2.15A of that Act; or
(f)a parenting allowance under Part 2.18 of that Act; or
…
and an assurance of support has effect in respect of the person when he or she receives the support, the person who gave the assurance is liable, subject to this regulation, to pay to the Commonwealth the amount of the support.
(2) A person is not liable to pay an amount that would otherwise be payable under subregulation (1) in respect of a required assurance until the Commonwealth has taken all reasonable steps to enforce the bond lodged in respect of the assurance.
(3) An amount payable under subregulation (1) is reduced by:
(a)any amount obtained by the Commonwealth under the bond that has not been applied to reduce a person’s liability to the Commonwealth; and
(b)any amount paid to the Commonwealth in respect of the support.
8. Section 1227 of the Act states that if a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth. An assurance of support was signed in September 2001. Ms Mead arrived in Australia in February 2002. She was paid special benefit and then parenting payments from 24 April 2002 to 19 February 2004. Therefore, assuming that Mr Kamil signed the assurance of support, the Tribunal is satisfied that Centrelink was entitled to raise a debt of $14,169.58 against Mr Kamil.
Centrelink Records
9. Centrelink records show that Ms Mead lodged a claim for special benefit on 28 February 2002, 8 days after her arrival in Australia. A Centrelink officer noted that Mr Kamil had provided an assurance of support. The officer also recorded that Ms Mead’s husband was a DSP recipient. Ms Mead’s claim was initially rejected due to an assurance of support being in place.
10. On 4 March 2002, Centrelink wrote to Mr Kamil at the address given in the assurance of support (the family home). Mr Kamil was informed that Ms Mead had applied for special benefit. As her assurer, Mr Kamil was asked to telephone a Centrelink officer to make an appointment for an interview to discuss the assurance he had signed for Ms Mead. Centrelink records indicate that an officer contacted Mr Kamil by telephone on 15 March 2002. The officer made the following note:
…
Customer is under… assurance of support.
Contacted the assurer by phone and he advised that he doesn,t [sic] know that he signed the assurance of support. His [sic] not willing to pay the any [sic] debt from Centrelink.
11. A record dated 18 March 2002 states that Centrelink received a statement from Mr Kamil. It shows a different address for Mr Kamil to the one in the assurance of support (the Dandenong address). The statement says, in part:
…
I WOULD LIKE TO INFORM TO YOU THAT I CANNOT SUPPORT FINANCIALY [sic] FOR MRS DEQO ALI MEAD, BECAUSE I AM ALREADY SUPPORTING A SOMALIAN WOMEN [sic] WITH NO HUSBAND AND SHE HAS GOT FIVE KIDS. IT IS NOT POSSIBLE FOR ME TO SUPPORT HER, SO, THAT I AM NOT HAVING MONEY TO SUPPPORT HER.
THANKS, YOURS SINCERELY, ABDIHAKIM MOHAMED KAMIL, THE ASSURER.
12. Another Centrelink record dated 18 March 2002 describes a statement received from the Somali United Society. The organisation’s address is the same as the address of Mr Kamil’s family home.
…
Statement says: After our discussion on Friday 15/3/2002, at the Cheltenham Office, we come this [sic] conclusion as follows:
1. As Somali United Society (community), we are agreed to support Mrs Deqo Ali Mead financial [sic] if the Centrelink, Cheltenham approves for her Claim of Special Benefit.
2. We are prepared to repaid [sic] it back the money she takes from your office as Special Benefit.
3. We will repay as an installment [sic] per fortnightly as we agreed.
We would like with due respect to ask to you to approve it for her claim [sic] of Special Benefit.
THANKS
ABDUL MOHAMED
SOMALI UNITED SOCIETY…
13. On the following day, 19 March 2002, a Centrelink officer at the Cheltenham office spoke to an officer in the Assurance of Support team (AOS Team) of Centrelink.
C...@ CHL rang on 18/3/02 re a/n’s assurer is unable to provide support to a/n & said that the community association will be repaying the debt. I said to C…that if assurer is unable to provide support to a/n payment can be granted but a debt will be incurred against assurer, C’link will trace up assurer as assurer is under the legal bind agreement. However, if assurer would like to make other repayment arrangement, Debt Recovery Unit is the team to contact. C…rang again on 19/3/02 requesting for AOS form as assurer said no AOS signed…
14. A Centrelink record dated 24 April 2002 indicates that Ms Mead was granted special benefit as she was exempted from the usual two year waiting period for social security benefits, having arrived on a spouse visa. The record states:
…special benfit [sic] granted section 729 with 2 pay review customer on visa 309 exempted from 2year waiting period. I have spoken to ausserer [sic] see my previous doc. Assurer is not willing to provide support. AOS team have been notified… customer is married and is getting free board and lodge so entitled for 1/3 rate of pay. She has a new born child born on 26/3/2002, exempted for activity test for 4 months due to carer responsibilities…
15. Another record dated 24 April 2002 summarises a telephone conversation between an officer at Cheltenham and Mr Kamil:
I phoned assurer today as above name [Ms Mead] has lodged another application of special benefit. Assurer stated “he is not providing any support to a/n. She is not his wife. She is not his blood. I try to explain to the assurer….that you have signed AOS. Any payment made to a/n will be debt to you. He said “he is not paying anything you can take me to court if you like” He is not willing to provide any support.
16. A further record dated 24 April 2002 summarises a discussion between an officer at Cheltenham and an officer in the AOS team:
I…@ CHL rang the AOS unit advising that she had conducted a phone interview and the assurer was quite rude and is adamant that he does not want to provide support to a/n. I…will grant SPL. I explained to I…that the AOS team will raise a manual debt against the assurer once SPL has been granted.
…
17. A record dated 11 July 2002 indicates a Statement of Account was sent by the AOS team to Mr Kamil for the amount received by Ms Mead between 24 April 2002 and 2 July 2002, $554.65. There is a comment that Mr Kamil’s debt is accruing and that no payment is required until the assurance of support expires in February 2004. On 11 July 2002 Centrelink sent a letter to Mr Kamil at the Dandenong address (not the Kamil family home). The letter informed Mr Kamil that Ms Mead had been receiving special benefit since 24 April 2002; that he would be required to repay any recoverable payments made until 19 February 2004; and that he would be sent statements every three months or so, to advise him of the updated amount that he owed. Mr Kamil was informed that he did not need to make any repayments until Centrelink asked him to do so.
18. A record dated 17 July 2002 made by an officer of the AOS Team states:
A/n claims not to have signed an Assurance of Support for anyone.
States he will not pay the AOS debt regardless of what we say. Says he doesn’t care if the woman (the assuree) lives or dies; he doesn’t know her (never met her); he’s looking after himself only – not anyone else. * Difficult to get a straight answer from him.
*Said he attended CHL on 02/06/02, or at Easter, or March/April some-time, and gave POI there to prove that he is not the one who signed an AOS for the assure…
19. On 15 August 2002, the AOS Team officer determined that Mr Kamil had signed the assurance of support despite his claims that he did not do so:
A/n’s claim that he did not sign the AOS is not true. The signature on the AOS Form 28 matches the signatures on documents on his NSA file such as SU19s and new claims. The pharmacist who witnessed his signature on the AOS Form 28 also confirmed that he knows a/n and that he would only have winessed [sic] the AOS Form 28 if a/n was standing [sic] in from ft him at the time…
20. A record dated 12 September 2002 indicates that Ms Mead became a permanent Australian resident on 30 August 2002. Ms Mead lodged a claim for parenting payment on 12 September 2002.
21. On 30 October 2002, Centrelink sent two letters to Mr Kamil at the Dandenong address, giving him an update on the amount owed under the assurance of support. Mr Kamil was informed that the debt for the special benefit was $998.05; and the debt for parenting payment was $958.05. Both letters advised Mr Kamil that the debt did not have to be paid until the end of the assurance of support period. He was advised that he would be provided with the next update in approximately 3 months. However, the next letter sent to Mr Kamil about the assurance of support debt was almost 14 months later, on 12 December 2003. The letter was sent to the Dandenong address. Mr Kamil’s debt for special benefit and parenting payment had now risen to $12,209.82.
22. On 20 February 2004, Centrelink wrote to Mr Kamil at the Dandenong address, informing him that his responsibilities as Ms Mead’s assurer had ended on 19 February 2004. On 20 April 2004, Centrelink sent two letters to Mr Kamil at the Dandenong address. One letter informed him that he was required to pay $998.37 as reimbursement for special benefit paid to Ms Mead from 24 April 2002 to 27 August 2002. The other letter informed him of a debt of $13,171.21 for parenting payment partnered paid to Ms Mead between 30 August 2002 and 19 February 2004. The debts were payable by 18 May 2004. On 17 May 2004, a reminder was sent for the outstanding amount.
23. On 19 May 2004, Mr Kamil contacted Centrelink. The Centrelink record states:
…A/n rang, tds and adh updated, a/n wanted to know the reason for the debt, advised its due to AOS he might have given in the past and that person might have claimed benefits. a/n said he has advised earlier has well that his signatures were forged and he doesn’t owe any money. I couldn’t find the ODM details, advised someone will ring him on mob. Case forwarded to big debts team.
24. On 21 May 2004, a Centrelink officer noted:
…tried to call on mobile as per prev doc. The voicemail msg is in another language (arabic?) i couldn’t understand it and so did not leave a measage [sic] as i can’t be sure it is the customers voicemail. i am assuming he wants the debt reviewed and have requested the file…
25. Centrelink sent further reminder notices of the debt on 24 May 2004 and 14 June 2004. Mr Kamil contacted Cheltenham Centrelink on 21 June 2004 and again advised that he did not sign an AOS document. A Centrelink record dated 21 June 2004, made by the officer in the AOS Team who originally investigated Mr Kamil’s claim, indicates that she maintained her view that Mr Kamil had signed the assurance of support.
26. On 22 July 2004, the original decision maker reviewed the decision and affirmed the original decision on the basis that the signature on Mr Kamil’s claim for newstart allowance was identical to the signature on the assurance of support form. On 2 August 2004, Mr Kamil rang Centrelink querying the overpayment assessment and seeking a personal interview to find out more about the circumstances of the debt. On 1 September 2004, Mr Kamil spoke to an officer at the Cheltenham Centrelink office about the debt and his appeal rights. Mr Kamil is reported as having asked when Ms Mead came to Australia, why the amount she had been paid was so high and related matters.
27. A Centrelink record dated 28 January 2005 indicates that Mr Kamil had been interviewed by a team leader at Cheltenham on 27 January 2005:
Team leader…interviewed customer on 270105. Customer stated that he HAD signed the AoS documents. This is a different version of events He now does not dispute that he signed the AoS documents, but says now that he disagrees with the AoS debts because he did not know what he was getting himself into when he signed the AoS, and did not know the consequences.
What Happened at the SSAT?
28. In his application to the SSAT Mr Kamil gave the following reason as to why he believed the previous decisions were incorrect:
I (Abdihakim Kamil), signed the “assurance of support” form for my sister-in-law Deqo Ali Mead when she arrived in Australia. At the time I was unaware of the ‘legalities’ involved. I was under the impression that I had [sic] provide for her for 2 years before she was able to claim any entitlements from Centrelink. No one ever explained it to me thoroughly and my English is not that good.
Whilst Deqo Ali Mead has been living in Australia I have provided her with food, rent, furniture and bedding for her 2 children, clothing. Early to mid last year I received a letter from Centrelink stating that I owed money to them because Deqo Ali Mead had actually been receiving payments over the past 2 years from Centrelink.
My question is why? Why didn’t Centrelink contact me to let me know that she was receiving payments? As far as I knew I was fulfilling my obligation as “assurance of support” by providing her and her family with everything she required.
No one living in the household, not even myself had any idea she was collecting money. I approached Deqo about it before Christmas. She would not explain to me what she did with her money and has now been living away from here for the past 2 months. She has left with her 2 young children and not even her husband has been able to contact her or have contact with his children.
Please consider my plea. I have provided everything I could for this woman and I totally disagree that I should be the one paying this money back.
29. The SSAT’s Reasons for Decision dated 13 May 2005 provides a summary of the oral evidence given by Mr Kamil. The SSAT notes that Mr Kamil declined the offer of an interpreter. Extracts under the heading Information provided at the hearing include:
The assurance of support letter came from the Australian High Commission in Nairobi and his brother asked him to sign it; he was told it was for “immigration”. He only found out last year what it was all about. His older brother filled in the form because he cannot read or write in English.
…
He didn’t know anything about the debt until last year when he was told he owed $8,000 and was then told he owed $14,000. He went to Centrelink every day and no one told him anything. He was sent two different letters with two different amounts of money. He was only called on one occasion and was asked if he had signed an assurance of support. He didn’t take any notice of the Centrelink letters sent to him because of the confusion about the similarity of the names in his family. He thought that the letters were for his brother. He didn’t contact Centrelink in March 2002 because he didn’t think it was anything to do with him.
When he was contacted by Centrelink he told them to take the money back and to stop paying special benefit to Ms Mead but they didn’t listen. He told them t he could not afford to pay the debts. Ms Mead shouldn’t have been getting special benefit because she was already getting help from the family.
His parents and two of his brothers (one is Ms Mead’s husband) live at…[the family home] – he doesn’t live there but uses this as his postal address because it is “safe”…
30. The SSAT found that Mr Kamil had signed the assurance of support. It also determined that even if Mr Kamil had been unaware of the implications of signing the assurance of support, the Act expressly prohibits waiver of debts arising due to the ignorance the assurer.
Evidence Before the Tribunal
31. Mr Kamil had indicated on the application form that he did not need an interpreter. Therefore, a hearing was listed without one. However, when Mr Kamil commenced his oral evidence, the Tribunal was not satisfied that his English language skills were adequate for him to respond to questions put to him in full knowledge of what was being asked. Given the nature of the issues in dispute and the consequences for Mr Kamil, the Tribunal adjourned the matter to another date to enable a professional Somali interpreter to be engaged.
32. In written and oral evidence before the Tribunal, Mr Kamil stated that he had not signed the assurance of support. He suspected that a member of his family had signed, it but would not state which one of them. He said that his brothers had impersonated him in the past. Mr Kamil referred to an incident where one of his brothers gave police Mr Kamil’s name and driver’s licence number to avoid a citation for a traffic offence. Mr Kamil said that a member of his family had also redirected social security benefits payable to Mr Kamil without his consent.
33. Mr Peter Swan, a pharmacist, witnessed Mr Kamil or another person sign the assurance of support. Mr Swan indicated that it is his usual practice to ask a person who is signing an assurance of support to provide identification. He said that he knew Mr Kamil’s family and regularly provided medication for Mr Kamil’s father and disabled brother. However, he could not remember if he had asked the person who signed this assurance to provide identification. Mr Swan knew that it was definitely not Mr Ali Kamil or his father who had signed the form. Given the effluxion of time and the large number of documents he had witnessed, Mr Swan could not be sure whether it was Mr Kamil or one of his other brothers who presented before him.
34. The Tribunal was presented with photocopies of a number of documents which Mr Kamil is presumed to have signed. These included Centrelink documents, a migration application, a driver’s licence and employment related documents. The signatures presented were photocopies with most signatures in a block letter format.
35. Mr Peter Wright, a manager at the firm where Mr Kamil then worked, gave evidence that Mr Kamil’s English language skills were sufficient for him to function in the workplace. Mr Wright said that Mr Kamil had written notes and completed courses where he was required to respond in English. He provided a copy of a question and answer sheet completed by Mr Kamil following a safety course conducted by the company. He also stated that he had seen Mr Kamil reading the sports pages of the newspaper at work.
36. Mr Kamil’s cousin, Mr Mohammed Kamil (Mohammed), gave evidence that he had helped Mr Kamil to complete the written material presented by Mr Wright, namely the answer book following a workplace course. Mohammed, a university student, said that he would read out the questions to Mr Kamil and would then write down the answer Mr Kamil gave in the booklet. Mohammed said that he had prepared and read out other written material for Mr Kamil.
Did Mr Kamil Sign the Assurance of Support?
37. The Tribunal faces considerable difficulties in deciding whether Mr Kamil signed the document. Neither party submitted any expert evidence about the similarity or otherwise of all the signatures. There was no evidence to identify the actual signatory, if it was not Mr Kamil. There was no evidence from, or identification of, the migration agent who assisted Mr Ali Kamil with his wife’s visa application. Most of the signatures presented to the Tribunal were photocopies. While there were similarities in many of the signatures, they were not all identical. Mr Kamil’s signature appears to have evolved over time, from the first one made available, when Mr Kamil applied for Australian residence as a teenager, to the more recent signatures. The Tribunal notes that Mr Kamil’s signature is not particularly complicated in structure. In the Tribunal’s, admittedly non-expert, view, a signature of the type used by Mr Kamil could be easily forged.
38. Mr Kamil gave sworn evidence before the Tribunal that he had not signed the assurance of support. However, he did tell the SSAT and Centrelink that he had signed the assurance of support form but did not understand the implications of the document. The inconsistent evidence given by Mr Kamil is not the only barrier to making a definitive finding. The evidence of Mr Wright was inconclusive, given Mohammed’s evidence and that of Mr Kamil about his limited literacy skills. Mr Swan could not recall if he had asked the signatory for identification when the document was signed and admitted that while he knew Mr Ali Kamil and his father quite well, he was not as sure about the names of the other siblings.
39. In light of the above evidence, or more accurately, the lack of evidence, it is not practical for the Tribunal to undertake an independent investigation into the circumstances in which the assurance of support was signed and whether the signature was forged. Given its decision below, concerning waiver of the debt, there is no need for the Tribunal to make a definitive finding, based on the insufficient and contradictory evidence before it, as to who actually signed the document.
Should the Debt be Waived?
40. Ms Mead qualified for PPP as the family member of an Australian citizen or permanent resident under s 3(1) of the Social Security Legislation Amendment (Newly Arrived Residents Waiting Periods and Other Measures) Act 1997. Hence, when Ms Mead gained permanent residence, she was exempted from the usual 104 week waiting period.
41. Mr Kamil was not the recipient of the payments that are the subject of the assurance of support. Therefore, he is not able to rely on s 1237A of the Act that allows a debt to be waived if it arose solely due to an administrative error by Centrelink. In any case, the Tribunal is not satisfied that the debt has arisen due to administrative error on the part of Centrelink.
42. The only provision for waiver of the assurance of support debt that is available to Mr Kamil is that found in s 1237AAD of the Act. Section 1237AAD allows for waiver on the ground of special circumstances:
1237AAD. 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 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.
43. However, s 1237AAE of the Act imposes extra requirements for waiver where the debt is an assurance of support debt.
1237AAE.(1) This section affects waiver under some other provisions of this Part of an assurance of support debt in connection with an assurance of support given by one or more persons (the assurers), by setting out extra rules limiting the circumstances in which waiver may occur and the extent of waiver.
1237AAE.(2) The Secretary may waive under section 1237AAD the right to recover all or part of the debt only if the Secretary is satisfied that the waiver is justified on grounds other than one or more of the assurers being unaware of the effect of section 1061ZZGG, or of regulations made under the Migration Act 1958, in connection with the assurance.
…
44. Section 1061ZZGG of the Act refers to assurances of support entered into later than that applicable to Mr Kamil and does not apply to his situation. Section 1237AAE was inserted by amending legislation which commenced on 1 July 2004. Section 1237AAE also refers to assurances of support given under regulations made under the Migration Act 1958. The assurance for Ms Mead was given under such regulations. Section 23 (which deals with definitions) and s 1227 of the Act combine to make s 1237AAE apply retrospectively to assurances of support that were given prior to the introduction of the amendments. Hence, notwithstanding that the current regime requires the provision of more information and an interview with Centrelink, prior to acceptance of an assurance of support; and that there was no such procedure in place at the time the assurance in relation to Ms Mead was given, it is arguable that s 1237AAE may restrict the Tribunal’s power to waive Mr Kamil’s debt on the basis of him being unaware of the effect of the assurance of support.
45. On the other hand, Centrelink imposed the debt on Mr Kamil in April 2004 and he sought a review soon thereafter, prior to 1 July 2004. Mr Kamil’s counsel suggested, and the respondents conceded, that s 1237AAE of the Act may not apply to Mr Kamil as he has an accrued right to have the decision considered according to the law operating at the date he sought review, namely in May 2004 (Lee v Secretary, Department of Social Security (1996) 139 ALR 57). Hence, one of the factors which the Tribunal needs to consider is whether Mr Kamil (if, indeed he was the signatory) was aware of what he may have signed.
46. The debt in this matter has arisen due to Ms Mead receiving social security benefits to which she was entitled. There is no evidence before the Tribunal to suggest that Ms Mead made false statements or failed to comply with a provision of the Act in obtaining the benefit. The Tribunal is also satisfied that one of two scenarios applied to Mr Kamil. Either he signed the assurance of support document but was unaware of the implications of what he was signing. Alternatively, his signature was forged; most likely by a relative. In either scenario, the Tribunal is satisfied that the debt did not arise as a result of Mr Kamil knowingly making false statements or representations; or failing to comply with a provision of the Act. He certainly tried to avoid the debt but was adamant from the first contact with Centrelink, that he did not believe he should be accumulating a debt due to Ms Mead’s receipt of a social security benefit. His protestations were not accepted by Centrelink and they paid benefits to Ms Mead. The Tribunal is satisfied that the criteria in s 1237AAD(a) of the Act have been met.
47. The meaning of the term special circumstances in the context of social security law has been discussed in several Federal Court cases. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J considered the term in the context of s 1237AAD of the Act. Besanko J refers extensively to Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, where Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases. Branson J went on to state that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.
48. In Angelakos, Besanko J states (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…It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case, there must be something that distinguishes the case from the ordinary or usual case…
49. The Tribunal is satisfied that Mr Kamil was not aware of the binding nature of the document, whether he signed the document or someone signed it on his behalf. His English skills are limited. It is clear from his communication with Centrelink throughout the process that Mr Kamil did not believe he should be liable for benefits received by Ms Mead.
50. The arrangements for accepting assurances of support have changed considerably in recent years. Centrelink now undertakes vetting directly and provides information in many languages about the impact of signing such a document before the assurer signs the document. A script for an SBS Broadcast dated 21 November 2004 prepared by Centrelink and other agencies indicates that there was a widespread education campaign in late 2004 to inform the community about the implications of signing an assurance of support.
51. At the time the assurance of support was provided for Ms Mead, an assurer signed a document provided by the Department. Centrelink’s role in those days was only to check financial details and advise the Department accordingly. There was no interview with the assurer by Centrelink, as occurs now. The only warning of the consequences of signing the form was in English above the assurer’s signature. There may have been brochures describing the role of the assurer; but there is no evidence whether these were provided; or if Mr Kamil could read them. There was generally no personal contact by any Government agency with an assurer who was not the sponsor. In this case, Mr Ali Kamil was the sponsor of his wife but Mr Kamil, because he was working, was the assurer (either with his knowledge or by the forging of his signature).
52. The Tribunal is of the view that there are a number of other factors that distinguish this case from the ordinary or usual case. There is a doubt whether Mr Kamil actually signed the assurance of support. There is no evidence available as to why the delegate, before granting the spouse visa to Ms Mead, decided to impose an assurance of support as it was a discretionary requirement only. Mr Kamil gave evidence that Ms Mead had left the family home by the time the debt was imposed. The Tribunal was not presented with any evidence to the contrary by Centrelink nor was it given any of her details. She was not asked to give evidence. It is not known whether she actually knows that Mr Kamil has accumulated the debt due to her receipt of benefits; and if she did know, whether she could or would make arrangements to share the repayments. She is not required to do so. It is uncertain if Mr Kamil or the person who may have forged his signature, were provided with advice and information about the consequences of signing an assurance.
53. Mr Kamil told the Tribunal about his regular, ongoing, financial commitments. He provides financial assistance to his sister and others in Somalia who have no other sources of income. After the hearing concluded, the Tribunal also received advice that Mr Kamil had been dismissed from his employment and that he relied on Newstart allowance while he was looking for work. However, Mr Kamil’s financial situation is not one of the factors that the Tribunal believes would warrant waiver of the debt on the basis of special circumstances.
54. Taking into account the factors described above, the Tribunal is satisfied that this case is out of the ordinary and that there is hardship or unfairness that is sufficient to justify departure from the general rule in the particular case. The Tribunal finds that it is appropriate to waive the debt due to special circumstances.
DECISION
55. The Tribunal sets aside the decision under review and substitutes a decision that the applicant does not have an assurance of support debt.
I certify that the fifty‑five [55] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) .Dianne Eva
Clerk
Dates of hearing: 18 May 2006, 26 July 2006, 15 August 2006
Dates of final submissions: 8 December 2006
Date of decision: 20 April 2007
Counsel for applicant: Mr A. Lewis
Solicitor for applicant: Monash-Oakleigh Legal Service Inc
Solicitor for respondents: Ms J Hume, Sparke Helmore
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