Macdonald and Secretary, Department of Social Services (Social services second review) - [2021] AATA 399

Macdonald and Secretary, Department of Social Services (Social services second review) [2021] AATA 399 (5 March 2021)
Division:GENERAL DIVISION
File Number: 2020/3870
Re:Mr David Macdonald
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:5 March 2021
Place:Melbourne

The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – oral decision – assurance of support – valid visa – special benefit paid to assuree – debt due to the Commonwealth – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink – no special circumstances – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Assurances of Support) (DEEWR) Determination 2008 (Cth) (“2008 AoS Determination”)
Cases
Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154
Anderson and Secretary, Department of Families and Community Services, Re (2002] 69 ALD 494
Callaghan and Secretary, Department of Social Security, Re (1996]) 45 ALD 435
Christanty and Secretary, Department of Social Services [2015] AATA 627
Divjak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 945
Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Gunn and Department of Social Security [1999] AATA 87
Gutierrez and Secretary, Department of Social Security [1993] AATA 756
Hammelswang and Secretary, Department of Social Services [2015] AATA 905
Hassan and Secretary, Department of Social Services [2018] AATA 4618
Henshaw and Secretary, Department of Family and Community Services [2005] AATA 616
Kamil and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor [2007] AATA 1248
Lamvohee and Secretary, Department of Social Security [1997] AATA 942
Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867
Lubcke and Department of Family and Community Services [2002] AATA 642
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
NJDY and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1255
Phan and Secretary, Department of Employment and Workplace Relations (2006) 89 ALD 737
Ryde and Secretary, Department of Family and Community Services [2005] FCA 866
Stevens and Secretary, Department of Social Security, Re [1989] AATA 142
Minda and Secretary, Department of Social Security, Re [1989] AATA 53
Krzywak and Secretary, Department of Social Security, Re [1988] AATA 270
Secretary, Department of Social Security and Liebelt, Re [1992] AATA 256
Secretary, Department of Social Security and Kratochvil, Re (1995) 37 ALD 515
Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Secretary, Department of Social Security and Hales (1998) FCR 154
Snaith and Secretary, Department of Social Services [2019] AATA 2544
Soriano and Department of Family and Community Services [2000] AATA 842
Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99
Secondary Materials
The Social Security Guide
REASONS FOR DECISION
Ms A E Burke AO, Member

Mr Macdonald (the Applicant) is seeking a second-tier review of the decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) on 22 May 2020. AAT1 affirmed a decision of the then Department of Human Services that he had a recoverable assurance of support debt of $25,310.22 for the period 27 October 2011 to 20 August 2013.
The present application was heard by telephone on 19 January 2021. Mr Macdonald was represented by his friend Mr Luay Paulis. Mr James Henderson, a government lawyer in the Litigation and Information Release Branch of Services Australia, appeared for the Respondent.
The Tribunal provided an oral decision at the hearing, affirming the AAT1 decision and thereby affirming the original decision of 28 October 2013. Mr Macdonald’s representative subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). These are those reasons.
BACKGROUND
Mr Paulis and Mr Macdonald are friends, having met and known each other in Australia for some time. Whilst in Syria, Mr Paulis met Ms Hanan Isho and after a very short acquaintance, they married in January 2011. Mr Paulis explained this was not uncommon in their culture and he had to return to Australia. On Mr Paulis’ return to Australia, he subsequently applied to sponsor Ms Isho (his wife) and her daughter to Australia.
Mr Paulis explained that the then Department of Immigration and Citizenship (the Department of Immigration) required an assurance of support for both Ms Isho and her daughter as a condition of the Partner (Provisional) visa application. Mr Paulis was not in a financial position to provide such an assurance and so he asked his friend Mr Macdonald if he would act as Ms Isho and her daughter’s assurer. Mr Macdonald made enquiries about acting as the assurer for his friend’s new wife. On the understanding that if the marriage failed, he would no longer be responsible for Ms Isho and her daughter, he agreed to provide the assurance of support.
Ms Isho was granted a visa on 20 June 2011. She and her daughter arrived in Australia on 21 August 2011. Mr Paulis and Ms Isho’s relationship broke down soon after her arrival in Australia. Ms Isho left Mr Paulis’ home and enquired about special benefit payment on

27 October 2011. She made an application to Centrelink on 7 November 2011 for special benefit, which was granted on 23 November 2011 with effect from 27 October 2011.
As a result of Ms Isho receiving a special benefit payment, Mr Macdonald became liable for a debt to the Commonwealth, as he had provided assurance that he was able and willing to provide Ms Isho with support for two years. The assurance serves to ensure that visa applicants, such as Ms Isho, are provided for financially and therefore do not require any form of payment from Centrelink. As Ms Isho received a Centrelink benefit in the assurance of support period, Mr Macdonald incurred a debt to the Commonwealth equivalent to the amount Ms Isho received.
Ms Isho was subsequently granted a Subclass 100 visa and has become an Australian citizen.
EVIDENCE
The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), referred to as the “T documents” and “supplementary T documents”. Mr Macdonald provided written submissions, other documentation, and gave oral evidence at the hearing. Mr Paulis also provided oral evidence at the hearing.
Neither the Respondent nor Mr Macdonald provided any documentary evidence to the Tribunal from the Department of Immigration in respect of Ms Isho’s visa application,

Mr Macdonald’s Application to Provide an Assurance of Support or any evidence of

Mr Paulis’s interaction with the Department of Immigration. Indeed, the Respondent advised the Tribunal that neither Services Australia nor the Department of Home Affairs had been able to locate a copy of Mr Macdonald’s Application to Provide an Assurance of Support for

Ms Isho and her daughter.
By way of a Freedom of Information request, Mr Paulis has sought all documentation from the Department of Immigration in respect of his sponsorship of Ms Isho’s visa application and all related interaction with the Department, but that material had not been supplied by the time of the Tribunal hearing.
A Centrelink file note of 20 May 2011 records:
Customer contacted on 20 MAY 2011 regarding General
Enquiry for Assurer (Assurance of Support). Information was obtained
via Phone Call. Document created by JZH on 20 MAY 2011.
SU594 (Application to Provide An Assurance of Support) issued via QCAT3 letter.
A Centrelink file note of 16 June 2011 records:
Customer contacted AOS VICTORIA on 16 JUN 2011 regarding Claim for Assurance of Support. Information was obtained via AOS Application form using Personal – In Office.
Accept under s.1061 ZZGD...
Permanent Residency established.
Age requirements met.
Income verification provided:
Current income $90000.00.
On 16 June 2011, Centrelink advised Mr Macdonald of the following:
We are writing to you about your application to provide an Assurance of Support that you lodged on 2 June 2011. Your application to provide an Assurance of Support for the following people has been accepted: Hanan Isho and daughter
We have notified the Department of Immigration and Citizenship that we have accepted your application so they can now proceed with the visa application for the assurees listed above. This letter is a notice of decision and an information notice given under social security law.
Your responsibilities as an Assurer
Your responsibilities as an Assurer will start when the visa applicants arrive in Australia or are granted the Assurance of Support affected visa, whichever happens later.
As an Assurer, you are responsible for providing support to the assures listed above, so there is no need for them to claim payments from us.
You must tell us if your contact details change.
How long is the Assurance of Support
The Assurance of Support lasts for ten years for Contributory Parent visas and two years for all other visas. Once your assurees are issued the Assurance of Support affected visas, you cannot withdraw the Assurance of Support for any reason.
If you do not provide support
If you are unable or unwilling to provide support or it is unreasonable for the support to be accepted and certain Centrelink payments are made to your assurees during the Assurance of Support period, we will keep an account in your name of all the money paid. Under social security law you will be liable to repay the full amount at the end of the Assurance of Support period.
On 20 June 2011, Ms Isho was granted a Visa Subclass 309. She arrived in Australia on 21 August 2011.
On 28 October 2011, Centrelink advised Mr Macdonald of the following:
Assurance of Support has commenced
We are writing about the Assurance of Support that you signed for:
The daughter
Your application was accepted on 16 June 2011.
We have been informed that [the daughter] has been issued with the visa to which the Assurance of Support applies and has arrived in Australia. This means that your responsibility as an Assurer has started. You are now responsible for ensuring that [the daughter] has sufficient direct or indirect financial support so that they do not need to receive support from us.
If you are unable or unwilling to provide sufficient support or it is unreasonable for the support to be accepted, you will be required to repay the full amount of any recoverable payments made to [the daughter] during the Assurance of Support period. We may recover the amount you owe from the Commonwealth Bank under the terms of any bank guarantee provided in respect of the Assurance of Support.
The Assurance of Support remains in force for 2 years from 21 August 2011 to

20 August 2013 inclusive. We will write to you again when the Assurance of Support ends.
You must tell us if your contact details change
On 7 November 2011, Mr Paulis advised the Department of Immigration by letter that his relationship with Ms Isho had ended on 24 October 2011.
A Centrelink file note of 9 November 2011 records:
According to Mr Paulis and Mr Macdonald’s statement Customer Service Officer actioned record on__9 NOV 2011 regarding General Enquiry for Assurer (Assurance of Support). Information was obtained via Internal. Document created by GJ8 on__

9 NOV 2011. Customer is the assurer for Hanan ISHO … This person has claimed Special Benefit on 27.10.11 as her circumstances have changed. As a result, I have sent a Q041 and a MOD AR to cust advising him that assuree has claimed a payment and asking him to contact Centrelink … WHEN HE CONTACTS, PLEASE PUT CALL THROUGH TO … DO NOT DISCLOSE WHAT OFFICE I AM FROM OR ANY DETAILS RELATING TO THE ASSUREE AS DOMESTIC VIOLENCE IS INVOLVED.
(Errors in original)
On 17 November 2011, Mr Paulis completed a Centrelink Separation Details form in which he advised that his relationship with Ms Isho had ended on 24 October 2011.
On 23 November 2011, Centrelink advised Mr Macdonald by letter that Ms Isho had been granted special benefit, that this payment was being made because he was either unable or unwilling to support her and, as he had agreed to support Ms Isho from the period

21 August 2011 to 20 August 2013, he would have to repay any recoverable payments made to Ms Isho from 27 October 2011.
On 22 December 2011, Mr Paulis sent an urgent letter to Centrelink advising that he had previously written to the Department of Immigration and to Centrelink advising that his relationship with Ms Isho had ended on 24 October 2011. He asserted in the letter that since the marriage had ended, any commitment communicated with the Department of Immigration or Centrelink was now no longer valid. In the letter he advised that:
I have previously written a letter to immigration departememtn, dated the

7th Nov 2011, stating that my marriage relationship with Ms lsho has ended ion the 24th Oct 2011. I further provide details to this matter.
I hold no sponsor or assurance of support responsibility to Ms Isho, as the sponsor and the assurance was only provided in the context of the marriage, since the marriage has ended, any commitment communicated with the department and centerlink is now not valid.
I strongly advocate to the return of Ms Isho to her country.
I luay Paulis of … usual occupation school teacher, say under oath the following:-…
I met Ms Hanan lsho in Syria in mid Dec 2011. following a short time of knowing each other we married on the 13Jan 2011.
It is not unusual in our culture to marry in short given time, given that I had to return to Australia and that both sides are truthful and sincere to each other before and after the marriage. I believed that was the case with Ms Isho at the time I married her, later on I discovered that she did not tell me the truth about her and decided to end the marriage before she was granted the visa and before she came to Australia without my knowledge.
Ms Isho arrived to Australia without my knowledge and threatened from the first second that she will go to her cousin in Melbourne ( who is residing in [suburb 1]), if I did not take her as a wife.
I asked Ms Isho again about the issues that had risen consistently before ht [sic] marriage, and after the marriage, both while I was in Syria and while I was in Australia, Ms Isho did not comment as usual , and told me to trust her that she is good, I forgave her and started again living with her and gave her all the love and support to her and her daughter.
After two months , the problems about Ms lsho continued to occur, and there was no way that this relationship could continue. I was extremely disappointed, and decided to end the marriage, and asked Ms lsho to seriously consider going back to her country.
Ms lsho, threatened me again, and said she will go to her cousin, and started to abuse me verbally, and threatened me that she will cause me harm.
I separated with Ms lsho, on the 24/oct / 2011, and I wrote to the immigration department on Nov to let them know that I no longer sponsor Ms Isho as the marriage has ended.
After she left to her cousin in …. , which is about an hour and half drive from my home, she attempted to contact me through different family members and friends, I did not answer, and when she knew for sure that I ended up the marriage, she filed an intervention order about a month after the sepa ration, claiming false allegation, so she can stay in the country.
Before the marriage
I had concerns about Ms Isho's extremely little communication and her nature, being very reserved, and also about her judgement on the different matters and specially the important matters.
As I was concerned and decided not to go ahead with the marriage, Ms Isho's mother confirmed to me that her daughter is ok, and that she will be fine once she gets to Australia. Ms lsho did not say much but she promised that will be communicating to me and that she is ok.
I trusted her say, and we got married on eh 13th Jan 2011..
I came back to Australia in feb 2009, and started to complete the sponsorship application for Ms lsho and the assurance of support.
I was communicating with Ms Isho constantly over the next four months.
During this time, and during many stages of ups and downs, I discovered that Ms Isho was not that person she promised me to be, and the concerns about Ms Isho's personality and her way of thinking, that I experienced of her before the marriage and after it were still happening.
I was extremely disappointed and decided to disconnect the relationship in June 2011. I told that to Ms Isho clearly and we did not talk after that at all.
At that time Ms Isho had not yet been issued the Visa yet.
I knew later that , Ms lsho had failed to inform the department that the relationship had ended. And that Ms Isho then received the visa, and organised with her cousin in Melbourne … and her husband, and her cousin with liasing with my members of the family . Ms Isho's cousin reside in …..
Ms Isho with All these people organised to bring Ms lsho to Melbourne Australia without my knowledge and behind my back.
When they brought Ms lsho to the house on the evening of the 21st of Ausgust 2011 , I was totally shocked. I asked Ms Isho why she came after it had been that our relationship been disconnected and ended more than two months ago.
Ms lsho threatened that she will go to her cousin … if I don't accept her.
After I had ended the relationship I did not that Ms Isho did not inform the immigration department and I also did not know that she had been granted the visa after I ended the relationship with her.
Ms Isho had the visa in June and kept it till she came to Australia on the

21 Aug 2011. I was forced to accept Ms lsho.
I told Ms Isho about the problems that had occurred from her side while she was in Syria, and that her inability to communicate with me and other concerns were not resolved by her.
She remained silence, and she threatened that she will go to her cousin.
…..
I expressed my love and care and support in all aspects of life to Ms Isho and her daughter.
I did all the shopping, and most of the cooking. I fed Ms lsho and her daughter with the best organic food. And took them to many different places, restaurants, picnics, shopping's, beach and mountains.
I taught Ms Isho English and communicated positively to her constantly and was giving very constructive positive feed backs when even she was doing mistakes.
I encouraged her to study English and took her and enrolled her at AMES English classes form migrants. I also enrolled her daughter in child care; while they were attending I was doing the shopping and cooking.
I bought Ms Isho nice cloths and provided her with the enough money to spend on shopping. I opened an account in her name and I put 2,000 in her account.
We lived in a nice home and we had a nice bedroom, of which a picture is attached.
Unfortunately, Ms Isho was contributing extremely very little to the relationship, by not communicating with me, a concern that I had since she was in Syria. And also many other concerns about the way she thinks and behaves and about matters or many other times she doesn't think or reflect.
I was emotionally hurt by the very little she had to say, in talking negatively about the nice places I took her to, and she said that she hates it.
She would sleep very early at night like 8, 30 and wakes up at 11 or 12 midday, when She did not have to go to AMES. She could not pick up on cooking even the basics, And if she ever did she would spend three or four hours to fix a little meal.
Majorly I was hurt by her way of not communicating and reflecting on our daily life with me, and all the concerns I had before in Syria, and when I came here over the two months, were still occurring.
However over the two months period that we lived, and despite Ms Isho way of behaviour, I was always reflecting positively and hoping that Ms Isho will pickup on these fundamental issues and save the relationship.
There was extremely no improvement, and it seemed that Ms Isho had maintained this behaviour for many years and as her mother confirmed that she was always like that since her childhood. I only accepted and hoped that she will change when I married her, because she and her mother also told me that she will be talking when she is married to me and be in Australia.
As I was sincere with her, I did not ever expect that any one would not tell the truth about such important thing of their behaviour and get involved in extremely important matter and that is the marriage, hence, for me that was another reason to have believed them.
I was so hurt mentally and emotionally from this one sided relationship, and decided finally to end the relationship and asked Ms Isho to consider seriously returning to her family in Syria.
I also considered that she will have the support of her family there, and that her daughter will continue her relationship with her cousins there.
Ms Isho, told me that she wants to stay and she admitted that she is at fault, but also she did not say any matter how she would fix the problem.
Ms lsho contacted her cousin, and her cousin and husband coached her what to do to stay in the country, and obviously that was trying to maintain an intervention order against me.
Ms Isho was picked up by her cousin family, on the 24th Oct 2011.
Ms lsho attempted to call me many times through my family and her cousins. I expressed my concerns, but my concerns were not addressed.
When Ms Isho realised that I have ended the relationship, she was coached obviously to file an intervention order against me, more than one month after the separation. Ms Isho left to her cousin's house after the separation, I had never contacted her or seen her , her cousins house is about an hour and half drive from my address, and I have no interest in contacting her whatsoever.
The general allegation statement that Ms Isho provided is all false allegation, and is self contradictory.
Ms lsho is hoping to get this order approved by the court, so it gives her an reason sh can use to the immigration department to stay in the country.
And so a police officer in the name … from Narre Warren called me on my phone and stated different name. To serve me with the intervention. But also mentioned Ms lsho's name.
I cooperated with the police and told him my name, as it was miss stated [sic] in the order, and I also went and picked it up and cooperated with the police by making the service easy and smooth for him.
…..
I deny the accusation in Ms Isho"s statement and confirm the following.
I always provided love and care and support for Ms Isho and her daughter.
….
I provide pictures of Ms Isho and her daughter taking them to many places, contradictory to Ms Isho claiming that I locked her in the house. I attach evidence of that.
I provide pictures of myself and members of the family interacting positively with her daughter, contradictory to Ms Isho's false claims that I hit her daughter. I attach evidence of that.
I provide many statement and references from teachers and parish priests about my professional and caring character. I attach evidence of that
……
(Errors in original)

On 7 February 2012, Ms Isho completed an Assurance of Support – Review for Assuree form in which she advised that she had not received financial assistance from the person who signed her assurance of support. She advised:
I received special benefit from Centrelink only. I am in women’s refuge due to Domestic Violence.
On 30 May 2012, Mr Macdonald sent a letter to Centrelink by registered mail in which he requests that Ms Isho’s assurance of support be cancelled. In the letter he states that:
I have also requested for the cancelation of the assurance of support thought out the letters that was written by the sponsor Mr Paulis dated the 7^th Nov 2011 to the department of Immigration and the letter dated the 22 Dec 2011 to Centerlink of which a copy also attached.
I further confirm kindly my request to have the assurance of support to Ms lsho cancelled from the period of her separation from her visa sponsor her ex husband Mr Paulis.
I have requested and continue to request for this assurance of support to be cancelled for the following reasons:-
I signed the assurance of support; only in the context and condition that Ms lsho and Mr Paulis are living in a marriage relationship. The assurance of support was necessary to have Ms lsho application for visa approved.
Therefore knowing Mr Paulis as a friend I trusted that meanwhile Ms lsho and her daughter are in Australia for the first two years then Mr Paulis will not make any request for payment from centerlink for Ms lsho and her daughter therefofe there will be no issue to recover any money. I signed such application for assurance of support strictly on the understanding and agreement that Mr Paulis and Ms lsho were married and living together.
I have done this for a good dead to help out in this application. As this was a strict condition that was put by the department of Immigration before approving the visa application for Ms lsho. I do not know Ms lsho and I have never met her.
Mr Paulis promised me that while Ms lsho in the country and being his wife in a valid marriage and relationship he will not claim any centerlink money for her and so there will be no money that I have to recover to centerlink.
Mr Paulis fulfilled his promise, and truly from the time of Ms lsho's arrival to Australia of which was in Aug 2011 till the time of separation in Oct 2011,

Mr Paulis did not claim any centerlink money to Ms lsho. Despite the fact that

Mr paulis was on employment benefit from centerlink.
By Knowledge I knew that after I signed the application, It turned out to be, that Ms lsho was not truthful to Mr Paulis, and Mr Paulis decided to end up the relationship while Ms lsho was still overseas.
Ms lsho failed to inform the department of Immigration and came to Australia without the knowledge of Mr Paulis, in August 2012 and that was two months after their relationship had ended.
Ms lsho forced herself on Mr Paulis, and Mr Paulis was obliged to accept her under social pressure.
The issues of Mr lsho not being truthful were contineuting to happen, and after the breakdown, Ms lsho claimed false allegation more than a month after the separation.
Knowing Mr Paulis' character, and the fact he is very peaceful and educated man, that it is more than obvious, that Ms lsho , is alleging claims , to get documentation to support her staying in the country.
I can not afford any payment to Ms lsho and her daughter, neither Mr Paulis as he is on limited income from centerlink since early last year.
I strictly signed the application on the agreement and understanding in the context of their Marriage, and since that is broken, I am not able to support such application , neither that I could by any means support financially , I do not

Ms lsho neither I know where she lives.
(Errors in original)
On 3 August 2012, the Heidelberg Magistrates Court refused Ms Isho’s application for a Family Violence Protection Order against Mr Paulis.
On 2 October 2012, Mr Macdonald again wrote to Centrelink advising that he was unable to provide support to Ms Isho. In his letter, he states:
I refer to my previous correspondence, Since Oct 2012, I wrote to you confirming that I am unable to support Ms lsho at all.
In addition to all details that I provided before, Ms lsho sought application for intervention orders against Mr Paulis.
I detailed to you that Mr Paulis is a respectful man and that it is more than clear that Ms lsho has applied for intervention orders, so she can stay in the country.
My statement to you now proves to be right. Ms lsho application to the court was heard in details, Mr Paulis attended the court over five times to defend his position against Ms lsho claims since Nov 2011, and finally the court on the 3rd Aug2012 has refused Ms lsho application. Please see attached a copy of the certified extract of the magistrate court at Heidelberg on 3rd Aug 2012.
I detailed to you that I only signed the assurance of support in the context that

Mr Paulis and Ms lsho are married.
Ms lsho forced herself into the marriage by arranging with her cousin in Melbourne and coming to the country without Mr Paulis knowledge. Ms lsho threatened that If Mr Paulis does not accept her that she will go to her cousin.
Ms lsho lived with Mr Paulis from Aug 2011 till Oct 2012 and separated and in

Nov 2011 filed intervention orders against Mr Paulis. The court made an order on the 3 Aug 2012 that Ms lsho application for intervention against Mr Paulis was refused by the court.
Since Oct 2011I am not abided any more by any of this matter, as Ms lsho has sought to stay in the country based on a claim that she put the court, and the court has refused Ms lsho application.
I do not know Ms lsho and I haven [sic] not met her in my life, the assurance of support was solely that Mr Paulis reunite with his wife at that time, since then

Mr Paulis has fulfilled his obligation not to claim centerlink money for the time that Ms lsho lived with him even though Mr Paulis was on centerlink. Ms lsho claims and actions after the marriage breakdown since Oct 2011 have proven to be false and have been refused by the court.
Dealing with centerlink has been stressful and time consuming, please do not contact me by phone as you did before.
I reinstate that the reason for providing assurance of support for Ms lsho has collapsed in 2011, and her visa stay in the country has collapsed since Oct 2011 and the reason that she claimed to stay under has also collapsed.
I reinstate, that I requested for my assurance of support has been cancelled since 2011 and that I am unable to provide any support for Ms lsho at all.
(Errors in original)
On 2 November 2012, Ms Isho completed an Assurance of Support – Review For Assuree form in which she declared she had not received financial assistance from the person who signed her assurance of support, advising:
I didn’t met him before. I am in women refuge.
(Errors in original)
On 12 April 2013, Ms Isho completed an Assurance of Support – Review For Assuree form in which she advised she had not received financial assistance from the person who signed her assurance of support. She stated that:
I didn’t met him and I don’t know him. I still in the refuge support.
(Errors in original)
On 1 October 2013, Ms Isho completed a special benefit review form in which she advised that she had no dependants, was living in housing and had no other financial support.
On 15 April 2013, Mr Macdonald again wrote to Centrelink outlining his inability to provide support to Ms Isho, reiterating his belief that his reason for providing the assurance of support had collapsed in 2011 as Ms Isho’s reason to be in the country had collapsed. He again requested that his assurance of support be cancelled.
On 21 October 2013, Centrelink wrote to Mr Macdonald advising that his assurance period for Ms Isho had ended and providing him with his final statement. The letter advised:
We are writing to you about the account you have with us as a result of the Assurance of Support that you signed for:
• Hanan Isho
As the assurance period has ended and no further amounts will be added to your account, this letter is your final statement.
You agreed to support Hanan Isho for a period of 2 years. The period of assurance started on 21 August 2011 and ended on 20 August 2013. Under social security law you are required to repay to the Commonwealth any recoverable payments made to Hanan Isho while the Assurance of Support was in place.
Our records show that Hanan Isho received recoverable payments from

27 October 2011 to 20 August 2013 for the amount of $25,310.22.
On 22 May 2019, on internal review, an Authorised Review Officer (ARO) of the Department of Human Services affirmed the earlier Centrelink decision that Mr Macdonald had an assurance of support debt. The ARO stated:
An Assurance of Support is an agreement to financially support the assuree for the period of the assurance. It is also a legal commitment to repay the Commonwealth any recoverable social security payments made to the assuree while the assurance is in force.
You applied to provide an Assurance of Support for Hanan Isho on 2 June 2011, and your application was accepted on 16 June 2011. Ms Isho arrived in Australia on 21 August 2011, and this is the day your Assurance of Support commenced. You were liable to provide financial support to Ms Isho for 2 years from that day – until 20 August 2013.
You requested the cancellation of the Assurance of Support in your letter of

30 May 2012, and repeated this request in your letters of 2 October 2012 and

15 April 2013. You said that Ms Isho had separated from her partner, and you were unable to provide financial support to her.
The provisions of Section 1061ZZGF(4) of the Act state that the assurance that has come into force remains in force despite any change in circumstances whatsoever. As the assurance had already come into force when you wrote to the department on 30 May 2012, it could not be cancelled.
As you have already been notified, Ms Isho received recoverable payments totalling $25,310.22. This amount is a recoverable debt under the provisions of Section 1227 of the Act.
I have considered the rules that allow for recovery of a debt to be waived. A debt may be waived if there are special circumstances that make it desirable to waive. Circumstances need to be sufficiently unusual or uncommon to be considered special. You said that you were scammed by Ms Isho. You have been unemployed for the last 12 months, and have withdrawn your superannuation to help out your children. You said you have been depressed because of your situation. I accept that your circumstances are difficult, but am not satisfied that there are sufficient grounds to waive recovery of the debt.
This means you have an Assurance of Support debt of $25,310.22 that must be repaid. Please call 1800 076 072 if you wish to discuss repayment options.
On 22 May 2020, AAT1 affirmed the decision of the ARO, finding in part:
The tribunal accepts Mr Macdonald gave an assurance of support for Ms Isho. In respect of subsection 1237AAE(2), the tribunal has found Mr Macdonald was aware of the nature and effect of an assurance of support and the subsequent liability should a social security payment be made to Ms Isho.
…….
The tribunal has carefully considered the material before it, and in particular

Mr Macdonald’s written submissions. However, the tribunal is not persuaded that special circumstances are established in Mr Macdonald’s case, such that the assurance of support debt warrants waiver in whole or in part, under

section 1237AAD of the Act.
On 26 June 2020, Mr Macdonald sought a review of the AAT1 decision by this division of the Tribunal, stating in his application that:
The decision is wrong and another decision should have been made. Because the information provided was not taken into account.
A Centrelink Customer Record generated on 11 December 2020 records that Ms Isho became an Australian Citizen on 3 May 2017, that she was granted a Subclass 100 visa on 20 February 2014, and that the application date was 3 March 2011.
ISSUES
The issues for determination before the Tribunal are:
(a)does Mr Macdonald
have an assurance of support debt for the period

27 October 2011 to 20 August 2013;
(b)if so, is the debt recoverable; and if yes
(c)should the debt be waived due to administrative error pursuant to section 1237A(1) of the Social Security Act 1991 (Cth) ("the Act"); or
(d)do special circumstances exist such that the debt should be waived pursuant to section 1237AAD of the Act?
RELEVANT LEGISLATION
The Social Security Guide at Instruction 9.4.1.10 states:
The primary objective of the AoS [assurance of support] scheme is to protect social security outlays while allowing the migration of people who might otherwise not normally be permitted to come to Australia. Visa applicants (assurees) with a high likelihood of requiring income support, e.g. in the family reunion categories, are permitted to migrate to Australia on condition that an assurer, an Australian resident, assumes:
• financial responsibility for the new arrival's (the assuree's) support for the duration of the new arrival's AoS period, and
• responsibility for the repayment of any recoverable social security payments received by the assuree during the AoS period.
Section 1061ZZGA of the Act explains that an assurance of support is an undertaking that a person will pay the Commonwealth an amount equal to the amount of social security payments received in respect of a period by another person who is identified in the undertaking and who becomes the holder of a visa granted in connection with the undertaking:
assurance of support means an undertaking by a person under this Chapter that the person will pay the Commonwealth an amount equal to the amount of social security paymentsthat are:
(a) receivedin respect of a period by another person who:
(i) is identified in the undertaking; and
(ii) becomes the holderunder the Migration Act 1958of a visa granted in connection with the undertaking (whether or not the person continues to hold the visa throughout the period); and
(b) specified in a determination in force under section 1061ZZGHwhen the payments are received.
Section 1061ZZGEA of the Act provides:
A person who has given an assurance of support that has been accepted under this Chapter cannot withdraw that assurance once the person in respect of whom the assurance was given becomes the holder under the Migration Act 1958 of a visa granted in connection with the assurance.
Section 1061ZZGF of the Act provides:
(1) For the purposes of this Act, an assurance of support that has been given in respect of a person identified in the assurance and has been accepted under this Chapter:
(a) comes into force in respect of the person at the later of the following times:
(i) the time at which the person becomes under the Migration Act 1958 the holder of the visa that was granted under that Act in connection with the assurance;
(ii) the time at which the person enters the migration zone (as defined in that Act) as the holder of the visa; and
(b) remains in force in respect of the person until the earliest of the following times:
(i) the end of the period specified for the purposes of this subparagraph in a determination under section 1061ZZGH;
(2) The Secretary may determine that the assurance of support ceases to be in force in respect of the person at the time (which may be before the determination is made) another assurance of support comes into force in respect of the person.
(3) For the purposes of this Act, an assurance of support (as defined in

section 1061ZZGA) is in force in respect of a person only for the period for which it is in force in respect of the person under subsection (1) of this section.
(4) Except as provided by paragraph (1)(b), an assurance of support that has come into force in respect of a person remains in force in respect of that person in spite of any change in circumstances whatsoever (including any purported withdrawal, however described, of the assurance).
Section 1061ZZGG of the Act provides for a debt to be raised in circumstances where an assurance of support has been given and the assuree receives Centrelink payments:
(1) This section has effect if:
a.a person (the assurer) has given an assurance of supportthat has been accepted under this Chapter; and
b.a social security paymentis received, by another person who is identified in the assurance, in respect of all or part of the period for which the assurance is in force in respect of the other person; and
c.the social security paymentis specified for the purposes of this section in a determination in force under section1061ZZGHwhen the payment is received.
(2) The assurer is liable to pay the Commonwealth the amount of the social security payment.
(3) If the assurance was given by more than one person, all of the persons who gave it are jointly and severally liable to pay the Commonwealth the amount of the social security payment.
Special benefit is a social security payment for which assurers are liable under

sections 1061ZZGA and 1061ZZGG of the Act.
Section 18 of the 2008 AoS Determination provides:
Circumstances in which assurances of support cease to be in force
For subparagraph 1061ZZGF (1) (b) (iii) of the Act, the following circumstances are specified:
(a) after arrival in Australia, a person identified in an assurance of support is granted refugee status;
(b) the visa of a person identified in an assurance of support is cancelled.
(c) a person is the only person identified in an assurance of support and the person dies;
(d) the following special circumstances that, in the opinion of the Secretary, justify cancellation of an assurance of support:
(i) an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support;
(ii) the incapacity of a person identified in an assurance of support to travel to Australia before the expiration of a visa.
Note: Financial hardship on the part of an assurer will not, of itself, be considered a special circumstance.
Section 1227 of the Act provides that if a person is liable to pay an assurance of support debt, this amount is a debt due to the Commonwealth. It states that:
Assurance of support debt
(1) If a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth.
(2) In this Chapter:
assurance of support debt means:
a debt due and payable by a person to the Commonwealth, or a liability of a person to the Commonwealth, because of the operation of:
…
(b) a liability of a person to the Commonwealth because of the operation of

section 1061ZZGG.
Section 729 of the Act outlines the qualification criteria for special benefit and notes that it is a discretionary benefit:
(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).
(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 dependants (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)      is the holder of a visa that is in a class of visas determined by the Minister for the purposes of this subparagraph; and
…
(2D)    For the avoidance of doubt, if, at any time during the period for which special        benefit is granted to a person, the person’s circumstances change such that,                   if the person were to be making a claim for special benefit on the basis of the                changed circumstances, the person would not be qualified for special   benefit, special benefit ceases to be payable.

The Social Security Guide (the Guide) provides an overview of special benefit (SpB); emphasising the discretionary nature of the payment:
SpB is a discretionary income support payment that provides financial assistance to people who, due to reasons beyond their control, are in financial hardship and unable to earn a sufficient livelihood for themselves and their dependants.
To receive SpB, it must be established that the person is not eligible for any other pension or allowance. The circumstances under which it is granted and the amount paid are determined by a delegate of the Secretary of the Department.
The Guide provides an overview of the assessment process and considerations for the awarding of a special benefit claim:
Summary
The delegate must consider the following factors when making a decision about SpB:
·the intention of the SpB legislation
·ability to earn a sufficient livelihood
·circumstances which have led to the hardship
·other reasonable means of support
·social worker involvement
·the available funds test, and
·the income test.
…
Insufficient livelihood
For payment of SpB, it is not enough that a person is not earning a sufficient livelihood – they must be UNABLE to obtain or earn a sufficient livelihood because of:
·age, OR
·physical or mental disability, OR
·domestic circumstances, OR
·any other reason.
The amount of earnings needed to gain a sufficient livelihood depends on the individual circumstances of a person and the amount of resources available to them. Factors that may be taken into account to determine whether an amount is sufficient may include:
·the rate of benefit or pension which would be paid to the person if a pension or benefit were payable
·the physical and mental well-being of the person
·outstanding debts
·caring or other responsibilities, and/or
·any other income or support being provided to the person.
……
Reasonable means of support
A claim for SpB CANNOT be granted until all the domestic and social circumstances of the person are considered. In cases involving couples, the partner's circumstances must also be considered. Although it is not possible in all cases, if practical the person should try to make alternative arrangements to change the situation which has led to the need for income support.
SpB should NOT be granted if the person:
·is receiving, or able to receive support from other sources OR
·has reasonable means readily available by which they can obtain support OR
·has a partner who is engaged in a non-profit business or salary sacrifice scheme, and that scheme is the dominant reason for the person's hardship, OR
·can obtain funds from a country of origin or another country where they have had a significant working life.
Section 1223 of the Act outlines how debts arise from lack of entitlement, overpayment etc:
(1) Subject to this section, if:
a) a social security payment is made; and
b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Section 1237A(1) of the Act provides that the decision-maker must waive a debt or part of a debt if it was attributable solely to an administrative error made by the Commonwealth and the debtor received the payments in good faith.
Section 1236 of the Act allows the decision-maker to write off a debt 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.
Section 1237AAD of the Act allows the decision-maker to waive the right to recover all or part of the debt if they are 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, the Administration 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.
CONTENTIONS
Mr Paulis provided a lengthy document to the AAT1 in which he argued that

Mr Macdonald does not owe a debt to the Commonwealth. Mr Paulis argued that Ms Isho’s visa was not valid and should had been cancelled, that she should have left the country and that she should not been able to claim the special benefit allowance. Mr Paulis contended that Ms Isho had rorted the system to stay in the country by claiming that she and her daughter were victims of domestic violence. Mr Paulis argued that Ms Isho’s claim was unfounded as the Magistrates’ Court had refused a family violence protection order.
The Respondent contended in its Statement of Issues, Facts and Contentions that an assurance of support was in force between Mr Macdonald and Ms Isho (assuree) for the period 21 August 2011 to 20 August 2013 for the following reasons:
·Ms Isho was identified in the assurance of support undertaking accepted by the Department; and
·Ms Isho was issued a subclass 309 visa, where the Minister had requested an assurance of support as a condition of grant.
Mr Macdonald does not dispute that he undertook to provide Ms Isho an assurance of support so that she could be granted her visa.
The Respondent contends that, as Mr Macdonald had given an assurance of support for Ms Isho, he was therefore liable to pay the Commonwealth amounts of special benefit received by her during the assurance of support period. The Respondent contended that Mr Macdonald has an assurance of support debt of $25,310.22 to the Commonwealth as he was liable to pay for the social security payments received by Ms Isho under

section 1061ZZGG of the Act.
Mr Macdonald disputes that he has a debt to the Commonwealth, as he contends that

Ms Isho’s visa should have been cancelled when the relationship between Mr Paulis and

Ms Isho broke down soon after she arrived in Australia.
The Respondent contended that Mr Macdonald’s assurance of support did not cease to be in force under section 18 of the 2008 AoS Determination, for the following reasons:
·Ms Isho was not granted refugee status;
·Neither the assurer nor the assuree have died;
·Ms Isho’s subclass 309 visa was in force for the period 21 August 2011 to 20 August 2013 and was not cancelled;
·There are no special circumstances that justify cancellation of the assurance of support because:
i) The specific factors listed in section 18(d)(i) of the 2008 AoS Determination must have critically affected an assurer’s ability to provide adequate support, consideration of the same is limited to the assurance of support period during which the assurer had a legal obligation to financially support the assuree.

The Applicant’s current circumstances (once the assurance of support period has concluded), whilst relevant to the issue of debt waiver, are not relevant to whether an assurance of support ceased to be in force.
ii) In Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154, the Tribunal considered special circumstances to justify the cancellation of an assurance of support under section 18(d)(i) of the 2008 AoS Determination and stated
22. Mr Aboumelaya does not dispute that he knew the effect of what he was signing when he provided the assurance of support. Accordingly, he remains bound by the obligations contained in the document unless there are special circumstances that justify cancellation. The Determination notes that financial hardship on the part of an assurer will not, of itself, be considered a special circumstance.
23. The scope of what might be considered to be special circumstances is, in my view, narrower than that applicable to other aspects of social security legislation: eg s 1237AAD Social Security Act 1991. The present Determination uses strong words: an accident, disability, illness or other circumstance that has critically affected the assurer’s ability to provide adequate support. This differs from those in s 1237AAD which, in the absence of what amounts to dishonesty, require only that there are special circumstances (other than financial hardship alone) that make it desirable to waive rather than write off the debt. Even applying that section, in Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545, Keifel J, after referring to the Federal Court's decision in Beadle’s case [1984] AATA 176; (1985) 60 ALR 225, 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.
24. Mr Aboumelaya and Mr Ismael contend that Ms Hassaan ‘orchestrated’ the marriage for the sole purpose of gaining entry into Australia, which she would not have been able to do but for

Mr Aboumelaya’s assurance of support. It is difficult to determine if

Mr Aboumelaya and his brother have been victims of a scam, or whether the arrangement made in Egypt did not meet the parties’ expectations when they came together in Australia. Mr Aboumelaya and Mr Ismael have made numerous attempts to convey their concerns to the Department of Immigration and Citizenship. I accept that both men – for different reasons – are deeply disappointed at what has occurred.

Mr Aboumelaya helped his brother and now, for his support, faces a significant debt. However, whether they have been duped by

Ms Hassaan and her associates is not, ultimately, a matter which must be determined by this Tribunal, for the reasons discussed below.
25. Cuc and Secretary, Department of Social Security [1994] AATA 361, was a matter which, similarly, involved the breakdown of a family relationship within days of the arrival of the assuree in Australia. The Tribunal highlighted that the assuree’s promise was unconditional, even in circumstances where the person for whose benefit it has been entered has not played fair.
26. Also, in Fu and Secretary, Department of Family and Community Services [2004] AATA 357, the Tribunal acknowledged that the failure of the relationship produced sad consequences, in the context of the assurance of support and the presence of domestic violence, but found such circumstance does not of itself constitute a special circumstance.
27. More recently, in Yoosuf and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 969 the Tribunal apparently had before it some evidence of a widespread practice of sham marriages, but also declined to find special circumstances.
28. The obligation in the assurance of support is very clear. If there has been some fraud, it is a matter to be pursued elsewhere.
iii) In Christanty and Secretary, Department of Social Services [2015] AATA 627, Deputy President Constance adopted the approach in Aboumelaya regarding special circumstances and section 18(d)(i) of the 2008 AoS Determination, agreeing that the scope of what might be considered special circumstances is narrower than that applicable to other aspects of social security legislation.
iv) There is no evidence of an accident, disability or illness that critically affected the Applicant’s ability to provide adequate support to Ms Isho during the assurance of support period.
v) Financial hardship on the part of the Applicant is not, of itself, considered to be a special circumstance. In any event, there is no evidence regarding

the Applicant’s financial circumstances to demonstrate that they critically affected his ability to provide adequate support.
vi) The Applicant presumably had gainful employment during the assurance of support period, given he confirmed that his annual income was $90,000 in the application to provide assurance of support on 16 June 2011.
vii) With respect to any other circumstance, breakdowns in marriage/family relationships are common and is not a special circumstance that has critically affected the Applicant’s ability to provide support. In accordance with matters such as Aboumelaya, Cuc, et al, an assurer’s promise is unconditional even in circumstances where a failure in relationships occurs.
viii) The Applicant was expressly put on notice and acknowledged in the Application to Provide an Assurance of Support that: my responsibilities as an Assurer will remain in place for the full period of the Assurance of Support, regardless of any changes in circumstances, including my death, or a breakdown in the relationship between myself and any person(s) for whom I have given an Assurance of Support.
ix) While the Applicant may have thought that Ms Isho’s visa would or should be cancelled in the event of a relationship breakdown between her and

Mr Paulis, this does not alleviate or release the Applicant from his undertaking. It was incumbent upon the Applicant to have considered these risks before agreeing to provide the assurance of support.
x) Further, it is not for the Tribunal or the Secretary to analyse or probe into the reasons why Ms Isho’s visa was not cancelled. The fact remains Ms Isho’s subclass 309 visa was not cancelled and the assurance of support was in force for the period 21 August 2011 to 20 August 2013.
On an examination of all the evidence before the Tribunal finds that Mr Macdonald had provided an assurance of support to Ms Isho, for the period 21 August 2011 to 20 August 2013. Mr Macdonald’s own evidence confirmed he had willingly provided assurance to assist his friend Mr Paulis in bringing his wife to Australia. The Tribunal found that he did so willingly and in full knowledge of his obligations. At all times during this period Ms Isho had a valid visa to remain in Australia.
As the Tribunal has found that Mr Macdonald gave an assurance of support for Ms Isho, it therefore concludes that he was liable to pay the Commonwealth amounts of special benefit received by her during the assurance of support period. The Tribunal finds that

Mr Macdonald has an assurance of support debt of $25,310.22 to the Commonwealth as he was liable to pay for the social security payments received by Ms Isho under

section 1061ZZGG of the Act.
The Tribunal was not required to consider and did not dispute the validity of Ms Isho’s Visa status as she had a valid Visa at all times during Mr Macdonald’s assurance of support period. However, the Tribunal accepted Mr Paulis and Mr Macdonald’s evidence

they firmly believed Ms Isho’s visa should have been cancelled as it was their understanding Ms Isho had not been abiding by the requirements of her temporary visa obligations, as the relationship had broken down. The Tribunal accepted that Mr Paulis based on this believe had provided evidence to the Department of Immigration on numerous occasions both prior to Ms Isho’s arrival in Australia and after the relationship had broken down seeking to have her visa cancelled.
The Tribunal acknowledged that the Magistrates Court declined to issue a Family Violence order against Mr Paulis and this had lead Mr Paulis to feel completely frustrated by the system, as it was his believe that Ms Isho had played the system to remain in Australia. Whilst Mr Paulis and Mr Macdonald may feel that Ms Isho had manipulated the system to stay in Australia it is irrelevant as, the fact remains that Ms Isho’s visa was in place. It had not been cancelled and Mr Macdonald’s responsibility to provide support remained in place until his obligation ended on 20 August 2013. The Tribunal concurs with

Senior Member Isenberg in the matter of Aboumelaya where she succinctly summed up the situation:
The obligation in the assurance of support is very clear. If there has been some fraud, it is a matter to be pursued elsewhere.
…..The Tribunal highlighted that the assuree’s promise was unconditional, even in circumstances where the person for whose benefit it has been entered has not played fair.
The Tribunal finds that there were no factors in accordance with Section 18 of the 2008 AoS Determination under which Mr Macdonald’s assurance of support ceased to be in force, as Ms Isho had not been granted refugee status; neither he nor Ms Isho; Ms Isho’s Subclass 309 visa had not been cancelled and there were no special circumstances that justified cancellation of the assurance of support.
The Tribunal was not required to review why Ms Isho received special benefit payment and notes that special benefit is a discretionary payment which requires careful consideration of the claim by the applicant. The Tribunal acknowledged that Mr Paulis and Mr Macdonald’s

evidence it was their firm believe Ms Isho’s claim for special benefit payment may have been predicated on a false claim of domestic violence. Regardless, that was not a matter for the Tribunal to determine. A payment had been made, a valid visa was in place, an assurance of support existed and therefore Mr Macdonald had a valid debt to the commonwealth. The Tribunal notes the numerous other determinations have considered the issue of whether payments have been made in error to an assure and concurs with the finding of Deputy President Forgie in Gunn and Department of Social Security [1999] AATA 87 at [47]:
…That is so because, quite apart from any consideration of whether or not the Commonwealth has made an administrative error, it cannot be said that the debtor, who is Mrs Gunn, received the payments in good faith. She did not receive the payments that gave rise to the debt as they were received by her grandmother,

Mrs Besednik.
CONSIDERATION AND FINDINGS
Writing-off the debt
The Tribunal, standing in the shoes of the Secretary, has the discretion to write off the debt under section 1236(1) of the Act.
On the evidence before the Tribunal, Mr Macdonald did not meet the criteria as established in section 1236(1A) of the Act. As such, the Tribunal is unable to write off the debt.
Waiver of the debt on the basis of administrative error
Under section 1237A(1) of the Act, the Tribunal must waive the right to collect the debt if it was due solely to administrative error.
The Respondent contended that Mr Macdonald’s debt cannot be waived under
section 1237A of the Act as he did not receive the payments that gave rise to the debt, the assuree Ms Isho did.
The Respondent argued that the Tribunal has confirmed that administrative error waiver is not available for assurance of support debts in matters such as Re Secretary, Department of Social Security and Kratochvil (1995) 37 ALD 515; Gunn and Department of Social Security [1999] AATA 87; Henshaw and Secretary, Department of Family and Community Services [2005] AATA 616; and NJDY and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1255.
The Tribunal finds, as it has found on numerous other occasions, that the debt could not be waived, regardless of whether an administrative error had been made or not. This is because section 1237A was not applicable to this case because Mr Macdonald did not receive special benefit payments. Therefore, it cannot be said that Mr Macdonald had received them in good faith, which is a requirement for the section to operate.
The Tribunal discussed with Mr Paulis and Mr Macdonald that they may seek to dispute Centrelink’s decision that Ms Isho qualified for the special benefit payment, as affected parties of the payment. However, this possibility had no impact on this decision as the payment had been paid by Centrelink whilst an assurance of support was in place and, therefore, a debt had arisen for which Mr Macdonald was liable.
Waiver of all or part of the debt in special circumstances

The Tribunal, standing in the shoes of the Secretary, also has the discretion to waive all or part of Mr Macdonald’s debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.
The Respondent contends that there is no evidence to suggest that Mr Macdonald’s circumstances are such that they can be considered special to the extent that waiver of part or all of the debt is warranted under section 1237AAD.
Knowingly
The term ‘knowingly’ in s 1237AAD(a) is not defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.
In Re Callaghan and Secretary, Department of Social Security [1996] 45 ALD 435, Deputy President Forgie said at [48]:
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge rather than constructive knowledge, that he or she is making a false statement or representation that he or she is failing or admitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act of omission.
The Tribunal finds that Mr Macdonald’s debt did not arise because he had knowingly made false statements or declarations. The Tribunal finds that Mr Macdonald did not deliberately act dishonestly with any intention to mislead Centrelink.
The Tribunal finds Mr Macdonald did not knowingly or deliberately mislead Centrelink, and therefore the debt has not arisen solely or partly from him knowingly making a false statement or knowingly failing to comply with the legislation. As such, subsection (a) of section 1237AAD of the Act is not satisfied.
Special circumstances
The expression ‘special circumstances’ is not defined in the Act. However, the meaning of special circumstances has been considered extensively by the Federal Court and the Tribunal.
In Ryde v Sec Department of Family and Community Services [2005] FCA 866, Branson J said at [26]:
…the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for ‘special circumstances’ discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.
In Groth v Secretary Department of Social Security (1995) 40 ALD 541, Kiefel J said:
for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.
In summary, it has been held that for circumstances to constitute special circumstances they must be circumstances which are “unusual, uncommon or exceptional”, “markedly different from the usual run of cases”, “special”, or “out of the ordinary”, and they include “events which would render the (strict application of the rule in question) unfair or inappropriate”.
Mr Paulis, in his statement to the Tribunal, argued special circumstances should apply in respect of this matter because, he states:
·Due to the current situation of the COVID-19. I suffered loss of my job, also
Mrs Macdonald had also lost her job because of the current situation. Notwithstanding the main issue, both Mr Macdonald and Mr Paulis cannot repay the debt, either by instalment or a discounted amount. They submitted the main issue is that they are innocent from such debt, and their financial circumstances now or in the future do not enable them to repay such a debt.
·COVID-19 circumstances made it very difficult to access and seek legal representation in this short time.
·ARO was meant to respond in the ARO review in 2013. It has taken very long time. As the ARO only replied in 2019.
·The Government has lifted up the AOS requirements soon after this visa application in 2011. We ask the question, why? And is that reflective of the nature that cases like our case can be considered that it has been affected negatively and unfairly by Centrelink. And ask the AAT to take that also into consideration.
·Letters sent in demand to David, was causing daily unfair stress. While the ARO was making their decision, which took from 2013 to 2019, the letters of claimed demand and interest were causing daily stress and should not had been sent because the ARO have not submitted his review yet.
·Centrelink file does not contain all the information that we have informed Centrelink and immigration about this case. FOI were requested, but I … have not received it yet. Centrelink asked for Mr Paulis attendance with David, after the immigration directed us to make interview with Centrelink. Immigration and Centrelink liaised obviously closely in the time of application in this matter. Why did not the immigration and Centrelink liaise in this matter also, when Ms Isho visa was not valid anymore?
·Given that fact, Centrelink knew, that I was involved, and they continued to ignore me and not respond to my letters. Further the ARO is silent on the issues raised in these letters, which deals with the main issue explained above.
·Centrelink file is made of nearly 200 pages, but it is mainly amplified by the representation of sending letters of demand. Centrelink file is not represented, in a form that shows our case fairly.
·Centrelink file shows, some pages, where indicated of the word " deleted" we don't know what has been deleted, and why?
·Centrelink file, acknowledges, and mention to my attached letter, but fails to make contact with me, to write to me, and take into consideration that I am major part of this.
·AOR represented the case unfairly in favour of Centrelink, this evidence is exhibited by all information we provided to Centrelink. ARO in this case, is not acting as ARO independent, is clearly acting in the interest of Centrelink.
·We understand that Centrelink, is a welfare government organisation. To care fairly about the welfare of the Australian citizen. It seems that ARO representation is bias to Centrelink, and is purely after money, this looks like Centrelink is a business, not government welfare organisation.
·In our conclusion, to this point, our case has not been looked by purely independent source, and therefore, it is disadvantaging our case, because the only file represented in this case, is the ARO Centrelink file. Which we have stated why it is not the way we would have represented fairly our case. AOR states that he took the letters sent to him into consideration, but, is silent on the issues raised in these letters, which deals with the main issue explained above.
·AOR features comments from David, as a defence, rather than, follow instructions that David, has told them in many occasions, and documented by the [Centrelink] file, to communicate by letters, not by phone. This simply, because, from the nature of David's involvement, I know more about the case, And I would assist in replying to the letters. Centrelink continued to ignore communicating with me.
·Why did it take so many years for the AOR to reply, if we had delayed the reply, we would have suffered consequences? All the evidence shows that we did not run from this case, we did the right thing and communicated with all parties efficiently.
·Did Ms Isho inform the department of immigration in the change of her circumstances immediately after separation? This is another condition with the temporary visa.
·I have not forsaken Mr Macdonald in this issue, I kept my promise, not to claim Centrelink money for Ms Isho from Aug 2011 till Oct 2011, I have not run from this case. I continue to say, and it is very evident to the nature of this case, David has nothing to do with it in terms of being liable to any money. Further, David and his family have suffered dealing with this issue, for many years. I also have suffered dealing with this issue, evident by all information above, and also not liable for any money to Centrelink.
·Centrelink file acknowledges communicating about the court documents but fails to respond to that Centrelink are informed of Ms Isho separation in 24Oct/2011, the letter sent to them in 7 Nov 2011 and not as stated by the ARO on a later date.
·Centrelink pay in minim two weeks later after application get assessed, Centrelink had time to know and it is not like it is presented by the ARO. In addition, Centrelink did not question Ms Isho visa, which obviously was not valid anymore.
·Further, When Ms Isho approached Centrelink for Centrelink benefits, Centrelink would have known what kind of visa she had on her Syrian passport, because that is basic and mandatory question that Centrelink as of any applicant. The visa Ms Isho had was not any longer valid. Because it is spouse temporary visa and the relationship did not continue soon after Ms Isho's arrival. Centrelink took advantage to process Ms Isho application, taking advantage that there is assurance of support that Centrelink will claim their money from that. This is not the right action by Centrelink. Because Ms Isho had a visa that obviously was not valid anymore. Neither that Centrelink took into account that the assurance of support would be cancelled after the visa get cancelled …
·Where is the liaison between Centrelink and immigration in this matter? Given that they liaised at the time we went to Centrelink after being directed by the immigration to sign an assurance of support.
·Evidence in the AAT Centrelink file, that the immigration department and Centrelink were informed on the 7 Nov 2011 of the breakdown of the marriage. And that is only ten days from the claim date of Ms Isho claim to Centrelink. Centrelink had the time and power not to grant Ms Isho the payment, and it is not similar to Centrelink claim, that they cannot cancel payment once they start, because they had the time and knowledge not to do so. Even when they granted the payment, how many times, we see that Centrelink change their decision to a new one. The claim of ARO that they could not change is not correct.
(Errors in original)
The Respondent contended that Mr Macdonald’s circumstances are not sufficiently unusual, uncommon or exceptional so as to make his case markedly different from the ordinary run of cases and otherwise ‘special.’
The Respondent argued the Tribunal has previously found special circumstances to waive assurance of support debts in part, or in full, where:
·     The Department failed to provide a competent and independent interpreter for an assurer who did not understand English and hence, his obligations (Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867.
·     It was unclear whether the assurer had been provided advice and information about the consequences of signing an assurance of support, again, in circumstances where the assurer’s English was limited (Kamil and Secretary, Department of Families, Community Services and Indigenous Affairs and Anor [2007] AATA 1248).
·     The assurer was not issued a notice to confirm that an assurance of support had been accepted, or issued a notice that the assuree had subsequently applied for a social security payment (Divjak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 945).
·     The assurer had moved address and not received notices advising that the assuree was receiving social security payments and the Department had failed to ascertain whether the assurer was willing/able to provide support (Phan and Secretary, Department of Employment and Workplace Relations [2006] AATA 76).
·     The Department did not issue the assurer regular debt notices to advise of the accruing amount, amongst several other special factors (Soriano and Department of Family and Community Services [2000] AATA 842).
The Respondent argued Mr Macdonald’s case could be distinguished from those it outlined and sighted above in that Mr Macdonald:
·did not require the assistance of an interpreter;
·was put on notice from the outset about the consequences of an assurance of support, he attended an interview prior to his application being granted and he acknowledged that he was aware of his obligations in his applications. In Gunn and Department of Social Security [1999] AATA 87, DP Forgie stated that:
In this case, I am satisfied that Mrs Gunn understood what she was signing when she signed the assurance of support forms. She understood, I am satisfied, that she would be responsible to repay any payments made to her grandmother should she receive a payment under the SS Act. I am also satisfied that, at the time she signed the second assurance of support on 25 August, 1993, her financial circumstances were not as healthy as they had been earlier when she signed the first assurance of support on 27 April, 1992. I find that she signed the assurance of support on the understanding that her father, Mr Gorupic, would take responsibility for any money she might be required to pay. In the circumstances, this was not an unreasonable understanding for her to have.
She was aware that Mr Gorupic had managed to support Mrs Besednik for the previous twenty nine months and she had no reason to think that the situation would change during the two years. Life had been difficult for her father and grandmother but they had shown that they had been able to manage on very little in that time. These matters, however, do not make Mrs Gunn's circumstances special circumstances. Even knowing that she was in more straitened circumstances and presumably knowing the difficult circumstances in which her father and grandmother had lived, she undertook the responsibilities inherent in signing an assurance of support.
·was issued with numerous notices and account statements setting out his obligations as an assurer and he was requested to contact the Department to discuss the implications as soon as Ms Isho lodged a claim for special benefit;
·should have contemplated that the marriage between Mr Paulis and Ms Isho may end, as breakdowns in relationships are common and is not a reason that makes his matter unusual or out of the ordinary. The Tribunal in Snaith and Secretary, Department of Social Services [2019] AATA 2544 held:
54. The Applicant presented his evidence at the Hearing in a clear and open manner. I acknowledge the personal hardships that he has endured due to his relationship breakdown. It was clear that the Applicant entered into the Assurance of Support with good intentions and with the belief that the Assuree would live in his family home and be able to largely support herself. At that stage he did not envisage ever having an Assurance of Support debt. Unfortunately, family situations break down and often have wide ranging implications to the circumstances of those involved.
55. ………..Consequently, I find that the Applicant’s Assurance of Support debt cannot be waived pursuant to section 1237AAD of the Act.
·Mr Paulis provided no evidence of any other special circumstances. While Mr Macdonald had told the ARO that he was suffering from depression, there was no evidence to corroborate this claim. The Respondent contended that for ill health to be considered a special circumstance, it needs to be more severe than the majority of disability support pension recipients. In this regard, the Tribunal in Hammelswang and Secretary, Department of Social Services [2015] AATA 905 found:
It may be accepted that he has a very significant injury to his back that causes him considerable pain and requires that he take a frightening array of medication. It may be accepted, as well, that the medications that he has taken, and continues to take, affect his cognitive ability or, as he put it, he has difficulty remembering things and he has difficulty articulating…
Whilst I accept that Mr Hammelswang has a considerable injury and is in considerable pain that, it seems to me, is, in and of itself, not unusual. Most who qualify for disability support pension do so because of the presence of one or more impairments that prevent them from pursuing employment. That presupposes a level of disability common in persons who would qualify for disability support pension.
Mr Paulis argued that special circumstance should apply to Mr Macdonald’s debt as the legislation had changed removing the requirements for an assurance of support requirement from Subclass 309 visas from 1 January 2012. Mr Paulis’ argued that if Ms Isho had applied for her visa 6 months later than she had there would have been no need to provide an assurance of support. In his submission he stated:
The Government has lifted up the AOS requirements soon after this visa application in 2011. We ask the question, why? And is that reflective of the nature that cases like our case can be considered that it has been effected negatively and unfairly by Centrelink. And ask the AAT to take that also into consideration.
The Respondent addressed the removal of the discretionary requirement for assurances of support for Subclass 309 visas from 1 January 2012 (2012 amendments), taking the Tribunal to the Explanatory Memorandum for the Migration Legislation Amendment Regulations 2011 (No. 2) (Cth) which explained the reason for amendment as follows:
The purpose of this amendment is to restrict provisional partner visa holders’ access to Special Benefit during the Newly Arrived Residents Waiting Period. Provisional partner visas are temporary visas granted to people applying for permanent partner visas.
The amendments remove the Assurance of Support requirement from Partner visa applicants. An Assurance of Support may still be requested if a decision maker reasonably believes that the applicant who seeks to satisfy the primary criteria is likely to need any of the social security allowances that are recoverable under the Assurance of Support scheme.
The effect of the amendment to the Social Security Act 1991 is that if, on or after 1 January 2012, a person makes a claim for special benefit and holds a visa listed in a Determination by the Minister for Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) by legislative instrument, then the person is subject to the newly arrived resident’s waiting period under section 739A of the Social Security Act 1991 (unless an exception applies).
An Assurance of Support is an undertaking by an assurer to repay the Department of Human Services certain recoverable benefits paid to a visa applicant during the first two years after their arrival in Australia or grant of the relevant visa. Currently, an Assurance of Support may be required before an applicant can be granted a provisional partner visa. As a matter of policy, an Assurance of Support is requested if the Minister of Immigration and Citizenship assesses that the applicant is likely to access a recoverable payment during the period of the assurance. In this fashion, the Assurance of Support scheme acts to restrict access to Special Benefits during the Newly Arrived Residents Waiting Period.
Given that the amendments in the Social Security and Other Legislation Amendment Bill 2011 apply new restrictions on access to Special Benefit for Provisional Partner visa holders, the discretionary Assurance of Support requirement will become redundant for these visas.

The Respondent accepted that legislative change may be a relevant consideration in deciding whether there are special circumstances to waive a debt. However, legislative change alone, in the absence of other factors, cannot constitute special circumstances.
The Respondent made lengthy submissions in reference to a number of occasions on which the Tribunal has considered whether legislative change constitutes special circumstances.
The Respondent took the Tribunal to the matter of Re Krzywak and Secretary, Department of Social Security [1988] AATA 270, in which the Tribunal stated:
I must therefore ask whether in this matter there are special or unusual circumstances which justify making an exception to the principle that Mrs Krzywak should be deprived of pension throughout the lump sum payment period, because of the receipt by her of a lump sum award of compensation. Another way of looking at the matter is to consider whether they are circumstances which make it unjust, unreasonable or otherwise inappropriate for Mrs Krzywak to be without pension from mid 1987 to October 1988. A number of factors appear relevant to the exercise of the discretion in this matter. They may be broadly grouped under the following headings, financial hardship, legislative changes, incorrect legal advice, ill-health. Each requires further consideration.
…
(ii) Legislative change.
…
I have already expressed the conclusion that prior to the passing of the Retrospective Act, s.153 did not operate to preclude payment of invalid pension to Mrs Krzywak. The Retrospective Act has therefore operated harshly on Mrs Krzywak in that if her application had been decided before 15 June 1988 the Tribunal would have found, as did the Tribunal in Re Tallon, that she was not precluded from being paid invalid pension and that the refusal to pay her pension was incorrect. Because the matter was not heard until twelve days after 15 June 1988, she has lost an entitlement to pension which (subject to s.3(8) of the Act) she previously had.
Even though the retrospective operation of an Act appears harsh or unjust, a Court or Tribunal is bound by the intention of Parliament, if that intention is clear.
The Respondent argued this approach was followed by Deputy President R.K Todd in Secretary, Department of Social Security and Bolton (1989) 18 ALD 464 and Re Stevens and Secretary, Department of Social Security [1989] AATA 142.
The Respondent took the Tribunal to the matter of Re Secretary, Department of Social Security and Liebelt [1992] AATA 256, the Tribunal followed the cases above and found that:
16 (d) Legislative Changes
In this case the Act was amended to prevent moneys paid to children being recovered where such moneys are paid to parents in receipt of pensions, benefits or allowances. The amendment to the Act was effective from 1 January 1992. The legislation was not made retrospective and hence the Tribunal is satisfied and so finds that as the delegate's decision was made prior to the new amendment coming into force, the respondent is bound by the prior provision.
In Re Stevens and Secretary, Department of Social Security (1989) 18 ALD 659 it was held that although the retrospective operation of amendments to the Act might appear harsh or unjust to the applicant, the Tribunal was bound by the clear intention of Parliament; accordingly, the retrospective operation of those amendments could not be treated as a 'special circumstance' to warrant the exercise of the discretion.
In the current matter the Tribunal is mindful that while the respondent agreed the law as interpreted by the Department was correct, he submitted that it was wrong morally. The respondent submitted further that the legislators must have realised the legislation was wrong to have made the amendment. Whilst he acknowledged that the legislation was not retrospective he felt that the discretion provided by s.1184 could be applied to his case as had been done by the SSAT.
In considering the matter of retrospectivity the Tribunal is satisfied and finds that the amendment to the Act extended only from 1 January 1992. The Tribunal notes that all of the cases dealing with the issue of legislative change as a special circumstance, involved the situation where it was argued that retrospective legislation operated harshly and therefore constituted a special circumstance.
The Tribunal agrees with Ms Boylan's submission that 'Generally, legislative change is not considered to be a special circumstance because the tribunal considers it is bound by the law especially when it is clear on its face. The only case where it was found to be a special circumstance was the Krzywak case, and that case is very readily distinguished from the facts before the tribunal today because there were other factors there, particularly extreme financial hardship, and the retrospective legislation operated particularly harshly there in a situation where Mrs Krzywak was in extreme financial hardship.'
The Respondent took the Tribunal to the matter of Lubcke and Department of Family and Community Services [2002] AATA 642, the Tribunal stated that:
The effect upon his pension entitlement stems solely from the legislative change, which cannot of itself constitute a special circumstance.
The Respondent took the Tribunal to the matter of Re Minda and Secretary Department of Social Security [1989] AATA 53, the Tribunal held that:
While I regard the amendments introduced by the 1988 Act as a factor to be considered but not given such weight as to be rendered ineffective given their clear legislative intent, I do not consider their operation in the circumstance of this applicant constitute a special circumstance …
For these reasons, I do not consider there are factors which make the applicant's circumstances special. Consequently, I do not consider this to be a proper case for the exercise of discretion.
The Respondent took the Tribunal to the matter of Gutierrez and Secretary, Department of Social Security [1993] AATA 756, the Tribunal stated that:
36. Injustice resulting from legislative amendment was addressed by the Tribunal in Re Krzywak and Secretary, Department of Social Security (1988) AAR 275 in the consideration of 'special circumstances '. The harsh effects of legislative change were among the issues considered by that Tribunal in making a favourable determination about the existence of special circumstances. The decision of von Doussa J in the Federal Court of Australia Re Secretary, Department of Social Security v Smith (1991) 13 AAR 454 also addressed the issue of special circumstances. He noted that the object of the legislative scheme in relation to periodical payments was to prevent a person having an entitlement to receive payments from two sources for the same inability to work. He concluded at 461 -"Allowing that the object and purpose (of the scheme for preclusion and recovery of compensation payments) is one of practical expediency at the expense in some cases of perfect fairness it was open to find, as the Tribunal did, that the operation of Pt XVII (Payments by way of Compensation) would otherwise be unjust in the circumstances of this case".
37. That decision was followed by Deputy President Burns in the Tribunal's decision Re Secretary, Department of Social Security and Lee [1993] AATA 131; (1993) 17 AAR 532. He said at 546 –
".....nothing in the legislation or the secondary material which the Tribunal has examined, justifies the injustice which is the result of the operation of the legislation in the circumstances of this case. In the absence of any parliamentary explanation to the contrary, the Tribunal finds that this is the sort of situation envisaged by the s.1184 discretion.......The circumstances of this case are such that the operation of the legislation has the exact opposite effect, in that it places Ms Lee at a disadvantage compared to an invalid pension claimant (and indeed herself if her husband had not been injured) whose spouse is in receipt of wages as opposed to compensation payments".
38. Having found that the legislation has been correctly applied to the Applicant, nevertheless we are of the view that the outcomes of the strict enforcement of the relevant provisions are unjust and inappropriate. The Applicant should not be in a position where he is financially disadvantaged in this way. Although the Respondent argued that the Applicant is one of a class of people, all of whom are affected by the legislation in the same way, no evidence of this nature was brought by the Respondent. In any event, the fact that the Applicant's and his wife's combined incomes put them in a worse position than if they were simply receiving the pensions is just one factor, albeit an important factor, which goes towards the exercise of the discretion.
The unjust outcome of the legislation is compounded in this case by the other circumstances which have been detailed in the evidence. We believe that this case readily can be distinguished from the circumstances enumerated in Re Zarvalis. The Applicant before us is in a much worse financial situation, and in particular he has virtually no assets.
The Respondent submitted that the key principles to be distilled from the cases above is that:
·Legislative change alone cannot constitute special circumstances.
·The Tribunal is bound to give effect to Parliament’s intention if that intention is clear.
·If Parliament had intended a legislative amendment to have retrospective effect, it would explicitly say so.
For legislative change to be a special circumstances factor, the changes need to operate particularly harshly on an Applicant and/or be inconsistent with the underlying object of the changes …
In this context, the Respondent submits that legislative change is not a special circumstance for the Applicant for the following reasons:
·The assurance of support requirement was removed for subclass 309 visas from 1 January 2012 because it was made redundant by the introduction of a 2 year newly arrived resident waiting period – which generally prevented migrants on subclass 309 and other visas from claiming special benefit at all for a 2 year period after arrival.
·In making the legislative change, Parliament’s clear intention was to maintain the community expectation and status quo that migrants to Australia are to support themselves or be supported by their families and partners in the first instance, rather than the Australian taxpayer.
·The legislative change, in essence, was a bid to further reduce the Commonwealth’s exposure to financial risk by denying migrants the ability to claim at all for a 2-year period. This may have been, in part, due to assurers failing to meet their obligations under the Assurance of Support scheme, resulting in debts and subsequent issues with recovery.
·Tellingly, the introduced newly arrived resident waiting period of 2 years mirrored the exact same 2-year assurance of support period previously required under the Migration Regulations.
·The legislative change did not operate retrospectively, nor did it have unintended consequences or operate particularly harshly on the Applicant. The Applicant is in no worse position than everyone else who gave an assurance of support to a migrant on a subclass 309 visa prior to 1 January 2012, when the newly arrived resident waiting period did not exist.
·The legislative change was not inconsistent with the underlying object/purpose of the Assurance of Support scheme. It simply strengthened Parliament’s existing commitment to ensuring that Australian taxpayers do not support new migrants for at least a 2-year period following arrival.
·There is no evidence of any other factors which may be considered unusual or uncommon and otherwise ‘special’ to warrant waiver.
The Tribunal considers that Mr Macdonald acted in good faith to assist a friend in need and paid dearly for acting as an honourable friend. Mr Macdonald told the Tribunal that he had no regrets about his decision to help Mr Paulis and said he would happily do it again.

Mr Macdonald was disappointed with the system that he believed had allowed his friend to be used by a woman to enter and remain in Australia. Also, Mr Paulis’ and Mr Macdonald were both very disappointed in the Department of Immigration and Centrelink who had not acted on any of the information that they had provided in respect of Ms Isho and what they alleged were her false claims.
Whilst the Tribunal finds that Mr Macdonald and Mr Paulis were both genuine individuals who may well have been deceived by Ms Isho, this did not impact Mr Macdonald’s obligations to fulfil his undertakings as an assurer. The Tribunal finds that Mr Macdonald’s situation was not sufficiently unusual or different to find that he had demonstrated any hardship or unfairness sufficient to constitute special circumstances which would justify waiving his debt.
The Tribunal finds that Mr Macdonald had willing entered into an agreement to provide financial support to Ms Isho for her first 2 years in Australia, so that she would not require taxpayer-funded support. Mr Macdonald had at no time met or provided any support to

Ms Isho. Therefore, he had not fulfilled his end of the agreement and has a recoverable debt to the Commonwealth. Mr Macdonald may have assumed Ms Isho’s visa was no longer valid, as she had left Mr Paulis shortly after her arrival in Australia. However, this was not the case. Whilst her visa was in place, he had a responsibility to provide her with support. He failed to do so.
The Tribunal agrees with the Respondent’s contention that the change in legislation was not a special circumstance in this instance as the legislative change was not inconsistent with the underlying object/purpose of the Assurance of Support scheme. It simply strengthened Parliament’s existing commitment to ensuring that Australian taxpayers do not support new migrants for at least a 2-year period following arrival. Mr Macdonald and Mr Paulis may feel hard done by, as – after the legislative change – as they would not have been required to provide an assurance of support and Ms Isho would not have been able to claim special benefit. However, this is only conjecture and does not reduce Mr Macdonald’s responsibility for his original undertaking.
Waiving the debt more appropriate than writing-off the debt
The Respondent submitted that if the Tribunal were to find that Mr Macdonald’s circumstances are special (which is not conceded), then the discretion in section 1237AAD of the Act should not be exercised to waive the debts in part or in full.
The Respondent submitted that the power to waive in section 1237AAD of the Act is discretionary, it is not automatic. Waiver is not required simply because the cumulative factors in a), b) and c) are satisfied. The Respondent argued there are cases, such as the present, where it is not reasonable or desirable in all of the circumstances to exercise the discretion to waive – having regard to the object/purpose of the Act and the circumstances in which the debt arose.
The Respondent took the Tribunal to the matter of Secretary, Department of Social Security v Hales (1998) FCR 154 in which French J stated that section 1237AAD of the Act:
confers upon the Secretary a discretion to waive the right to recover all or part of a debt. That discretion is only enlivened when the Secretary is satisfied that the three conditions specified in paragraphs (a), (b) and (c) of the section are met. It does not follow that the Secretary is then obliged to waive the debt.
The first condition is negative, the second condition requires consideration of special circumstances that make it "desirable to waive" and the third condition requires the waiver be considered more appropriate than write off. The exercise of the discretion thus enlivened may be informed by other considerations which were not required to support satisfaction of the three necessary conditions.
The Respondent took the Tribunal to the matter of Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309, in which Deputy President Jarvis stated:
In matters of this kind, it is customary for decision-makers to examine all the relevant facts and decide whether the conditions referred to in paragraphs (a), (b) and (c) of s 1237AAD are met, and if so, then to decide whether or not to exercise the discretion conferred by that section to waive the right to recover all or part of the debt. In the present case, however, I find it unnecessary to consider the question of whether the conditions precedent in paragraphs (a), (b) and (c) have been fulfilled, because even if I were satisfied of those matters, I do not think it appropriate in the circumstances to exercise the discretion conferred on me (standing in the shoes of the Secretary) by s 1237AAD …
In those circumstances (which included a failure to comply with the Admin Act), I do not think that it would be appropriate to exercise the discretion under s 1237AAD of the Act to waive the right to recover all or part of the debt, even if I were satisfied that the relevant conditions precedent to that discretion had been fulfilled.
The Respondent took the Tribunal to the matter of Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99, in which the Tribunal stated:
Any assessment about the “unfair, unintended or unjust” character of particular circumstances, and whether it gives rise to "special circumstances" must be informed by a proper appreciation of the context – both the language and the apparent purpose – of the relevant statutory provisions. This context is a particularly important consideration where the "special circumstances" criterion is the threshold condition permitting a discretionary departure from an otherwise mandated statutory disqualification or sanction. This point was made by O'Loughlin J in Secretary, Department of Social Security v Hulls (1991) 22 ALD 570
The Respondent argued that the Tribunal has also specifically considered the discretion to waive for special circumstances in the context of assurance of support matters in the past.
The Respondent took the Tribunal to the matter of Hassan and Secretary, Department of Social Services [2018] AATA 4618, in which the Tribunal stated:
…There is a sound public policy reason for requiring the provision of an AoS in these circumstances. It is to ensure that the Australian public is protected from the cost of supporting an applicant for a Contributory Parent visa, which is granted on the basis that the public not be exposed to such costs. It would undermine the public policy purpose of the AoS if the debt that arose from that assurance was subsequently waived simply because the applicant complained of the very obligations that he had agreed to assume and which the Government had relied on in granting his mother and sister their visas. In order for the special circumstance provision to be enlivened there needs to be a circumstance that stands out from the ordinary.
The Respondent took the Tribunal to the matter of Lamvohee and Secretary Department of Social Security [1997] AATA 942. The Respondent submitted that the Tribunal, in finding that special circumstances (including legislative changes) did not apply to waive the assurance of support debt for special benefit received by the Applicant’s mother, stated that:
Indeed the nature of the debt and the circumstances in which it arose in this case weigh against waiver. This is not a case where the applicant was unaware that a claim for benefit had been made by the person the subject of the assurance of support. The assurance of support moreover is a solemn and explicit undertaking made in a document that contains appropriate explanations and warnings. Mr Lamvohee struck the Tribunal as an articulate and literate person. Although the Tribunal accepts that he was in an emotional state at the time the assurance was given and that he was also beset by financial worries, related largely to his mortgage commitments, at the time he assisted his mother to claim special benefit, there is no basis for finding that he did not comprehend the document he was signing or the document he was assisting his mother with. It may be that he did not “fully understand” but the Tribunal is quite satisfied that he understood well enough to be on warning that the assurance of support exposed him to liability. He is not a person who could not reasonably be expected to be able to cope with forms or to communicate with officials.

The Respondent therefore contended that even if the conditions in a), b) and c) are satisfied, it is not reasonable or desirable to exercise the discretion to waive under section 1237AAD of the Act for the following reasons:
·Per Hassan, it would undermine the public policy purpose of the Assurance of Support scheme if Mr Macdonald’s debt was waived simply because he complained of the very obligations that he had voluntarily agreed to assume and which the Government had relied on in granting Ms Isho and her daughter their subclass 309 visas.
·Any amount of waiver would frustrate the object/purpose of the Assurance of Support scheme and be counter to Parliament’s clear intention to protect the Commonwealth from financial risk, by transferring the burden of Ms Isho’s special benefit payments from Mr Macdonald to the Australian taxpayer.
·To waive any amount of Mr Macdonald’s debt would send a poor message to the community and potentially encourage others to renege on their Assurance of Support obligations, safe in the knowledge that any resultant debt will simply be waived.
·Mr Macdonald was content with the original decision and rested on his rights for some 5 ½ years before seeking ARO review. Seemingly, only taking action after the Commonwealth moved to recover the debt and hold him to his undertaking as an assurer.
·There is no injustice in requiring Mr Macdonald to repay the debt.
The Tribunal does not concur with the Respondent’s contention that Mr Macdonald had rested on his rights and had accepted the Commonwealth’s right to recover the debt. The Tribunal found that both Mr Paulis and Mr Macdonald had been attempting to have the assurance of support cancelled from the time at which the relationship ended in

October 2011. Mr Paulis and Mr Macdonald had also been attempting to have Ms Isho’s visa cancelled as they firmly believed that she had not fulfilled her visa obligations and should have returned to Syria.
Sadly, for Mr Macdonald, Ms Isho’s visa was not cancelled and she received benefits. As such, he has recoverable debt to the Commonwealth. The Tribunal has found no special circumstances or reason to use its discretion to waive all or part of the debt. Mr Macdonald agreed to provide support to Ms Isho and he failed to do so. His beliefs about her right to remain in the country were irrelevant as she had a valid visa for which he had provided assurance.
POSSIBLE RECOURSE FOR THE APPLICANT
The Tribunal feels that Mr Paulis’ and Mr Macdonald’s numerous letters to the Department of Immigration and Centrelink had not been given sufficient weight or consideration. On the information before the Tribunal, it would appear Ms Isho’s claim for special benefit had not been thoroughly investigated by Centrelink. The Magistrates’ Court decision not to issue Ms Isho a family domestic violence order was acknowledged by Centrelink but did not seem to have been taken into account in Centrelink’s dealings with Ms Isho. The failure of Centrelink to address Mr Macdonald’s objections to his debt for many years may have indeed contributed towards the amount of debt he now owes.
The Tribunal encourages Mr Paulis and Mr Macdonald to pursue their grievances regarding the validity of Ms Isho’s visa and her special benefit payment with the Department of Immigration and with Centrelink.
The Tribunal addressed the prospect of Mr Macdonald seeking redress by making a claim for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA), which is administered by the Department of Finance. Defective Administration is defined as:
a specific and unreasonable lapse in complying with existing administrative procedures; or
an unreasonable failure to institute appropriate administrative procedures; or
an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
It was explained to Mr Macdonald that he could only pursue a claim for CDDA as an avenue of last resort when there is no other avenue of redress available.
Applications under the CDDA Scheme are discretionary. They are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal advised Mr Macdonald that it has no jurisdiction in respect of perceived defects in administration by the Department and has no jurisdiction over the administration of the CDDA scheme.
DECISION
The Tribunal affirms the decision under review

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member

[sgd].........................................................
Associate
Dated: 5 March 2021

Date of hearing: 18 January 2021

Representative for Applicant: Mr Luay Paulis

Advocate for the Respondent:

Solicitors for the Respondent:

Mr James Henderson

Services Australia