Kewei Xu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 296
[2013] AATA 296
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3268
Re
Kewei Xu
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 15 April 2013 Date of written reasons 13 May 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY - Assurance of support debt - whether grounds for waiver - whether special circumstances - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43(2A)
Social Security Law 1991, s 1061ZZGA, 1237AAD
CASES
Re Pico and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 357
Yoosuf v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 969
REASONS FOR DECISION
Ms N Bell, Senior Member
13 May 2013
At the conclusion of the hearing of this application the terms of the decision intended to be made and the reasons for it were stated orally. After service upon the parties of a copy of the decision that was made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish it with a statement in writing of the reasons of the Tribunal for the decision.
The following statement of reasons, amended and reordered to better exhibit the Tribunal’s reasoning, is drawn from the transcript of the proceedings by Merrill Corporation, the Commonwealth Reporting Service.
Mr Xu seeks a review of the decision to recover from him an assurance of support debt in the sum of $2756.24 in respect of social security payments made to Ms Chunfei Chen.
It is not in dispute that Mr Xu signed an assurance of support in respect of Ms Chen which commenced on 9 May 2010, and that, on his own evidence, he understood the meaning of the document he signed and in particular that he would be liable for any social security payments made to Ms Chen for a two year period.
It is also not in dispute that Ms Chen commenced to be paid a special benefit in December 2011 backdated to October 2011. The Secretary later raised an assurance of support debt in a final amount of $2756.24. The issue here is whether that debt should be recovered. Mr Xu objects to repaying the debt because in his view special benefit was paid by Centrelink to Ms Chen on the basis of false allegations that she was subject to or affected by domestic violence.
Mr Xu’s concern about this is understandable. Mr Xu says that the allegations were false because on 28 October 2011 the Local Court dismissed the application for an apprehended domestic violence order that was before it. Mr Xu says that there was social security cheating on the part of Ms Chen and he should not have to pay the amount of social security she was paid. Mr Xu also says that he considers that Ms Chen is now in Australia unlawfully and he is not willing to pay where a person is not here lawfully. I have no evidence as to her current migration status in Australia.
Mr Xu also says that he was advised by a Centrelink officer in October 2011 that if he does not want Ms Chen to be paid special benefit then Centrelink will not pay her special benefit. I accept Ms Maclean's advice that the Centrelink office number recorded on Mr Xu’s statement of telephone account for a call made on 28 October 2011 is the number of a specialist assurance of support office within Centrelink. It would be surprising if an officer of that part of Centrelink gave that advice to Mr Xu. I think it more likely that the conversation was one that was misunderstood. However, on Mr Xu's own evidence, he made no effort to contact Ms Chen to offer or to arrange support for her.
It is clear from the Social Security Act 1991, and in particular section 1061ZZGA, that an assurer cannot withdraw an assurance of support and that an assurance of support will only be cancelled in very limited circumstances. None of those circumstances apply in this application. The question remains whether repayment of an assurance of support debt can be waived in Mr Xu's case.
I note that Mr Xu is currently employed and has the usual family burdens on his income, but that indicates to me that the debt cannot be written off. As to waiver, the relevant section in Mr Xu's circumstances is section 1237AAD of the Act concerning special circumstances. I am unable on the evidence before me to be satisfied that Ms Chen has defrauded Centrelink as Mr Xu contends. The only evidence he relies on is the court's dismissal of the apprehended domestic violence order. The Court's reasons for dismissal are not before me. I cannot be satisfied that this dismissal means that Ms Chen and others on her behalf made false statements to Centrelink in order to obtain special benefit. I therefore cannot find that these circumstances claimed as special circumstances in fact exist. In any event, I note that section 1237AAD of the Act requires as a condition of waiver that the debt did not arise wholly or partly from a debtor or another person knowingly making a false statement or a false representation. This means that if Mr Xu is right about Ms Chen lying about domestic violence in order to get special benefit, or if someone else lied to Centrelink in order to get special benefit for Ms Chen, his assurance of support debt cannot be waived under section 1237AAD anyway.
I find support for this approach in the Tribunal's decisions in Re Pico and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 357 and in Yoosuf v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 969. For those reasons, I affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. .....[Sgd]...................................................................
Associate
Dated 13 May 2013
Date of hearing 15 April 2013 Applicant In person Solicitors for the Respondent J Maclean, DHS Program Litigation and Review Branch
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