MAREK MIERNIK and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 150

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 150

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3268

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAREK MIERNIK

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date16 February 2009

PlaceSydney

Decision For the reasons given orally at the conclusion of the Hearing on 16 February 2009, the decision under review is AFFIRMED.

....................[sgd]..........................

M D Allen
  Senior Member

CATCHWORDS

SOCIAL SECURITY: Assurance of support debt - Applicant bound by his signature on assurance of support form nothwithstanding his claims he did not understand its import - no grounds to waive debt.

CASE LAW

Gallie v Lee (1969) 2 CR 17

Secretary, Department of Social Security and Ellis (1997) 24 AAR 535

REASONS FOR DECISION

16 February 2009 Senior Member M D Allen

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act (1975), requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.

I certify that the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:
M. Corcoran........................................................................
  Associate

Date of Hearing  16 February 2009
Date of Decision  16 February 2009          

Solicitor for the Applicant  Appeared on own behalf
  Solicitor for the Respondent              M. Nicoletti, Centrelink Legal Services

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR. ALLEN: In this matter, the immigrant was a Mrs. Nell Jasinowska. The assurance of support is to be found at document T4 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act (1975). At T4, page 23, occurs a signature which it is stated by the Respondent is the signature of the Applicant. In these proceedings, the Applicant denied that it was his signature. For example, in answer to my question, after saying “I did not sign”, he added further;

“I say on my oath I did not sign that document”.

Later, in cross-examination, he said:

“…for sure it is not my signature…”

The signature was apparently signed in the presence of a Dr. Richard Adams – Dzierzba. I understood from the Applicants evidence that not only was that person the Applicant’s general practitioner at the time of signing the document, but he is still the Applicant’s treating general practitioner. I deduce from that that the relationship between the Applicant and the doctor is such that they remain on good terms. Unfortunately, however, we have not heard from the doctor although the Applicant did state in his evidence that he had a solicitor contact the doctor who stated words to the effect that he could not remember whether he signed it or not.

I can quite readily understand that a doctor would not remember the full circumstances of a document that he signed some nearly six years ago, but I would have thought the doctor could have explained some facts or circumstances as to whether that was his signature there and whether he was in the habit of witnessing patients signatures. Furthermore, I note that in a letter to Centrelink dated 28 September 2004, the Applicant says:

“I have signed some form for Mr Les Jasinowski approximately a year ago in the form of a gentleman agreement and Mr Jasinowski has assured me that he simply needed that form to speed up the process for his wife to arrive in Australia.”

That statement was repeated in a further document written by the Applicant to Centrelink and dated 18 April 2005. The Applicant sought to explain those statements in these proceedings by saying it related to Mr Jasinowski’s abilities as a concreter. I reject that explanation. It seems to me that the words of the document are quite clear. In addition, the Applicant conceded that after the entry of Mrs Jasinowska into Australia, he provided money to Mrs Jasinowska. An interesting comment in the letter of 18 April 2005 is as follows:

“ The copy of discretionary statement of support doesn’t confirm that signing that statement I automatically agreed to support Mrs Nell Jasinowska financially. We did not agree to any specific amount and Mr Jasinowski assured myself that he has a lot of money in Poland which his wife will bring to Australia.”

In cross – examination, the Applicant stated that Mr Jasinowski said that he needed money to support his wife and buy a ticket to Australia. He said his wife was an extremely rich woman and when she arrived in Australia he would pay back. The Applicant says that the document which is the assurance of support contains inconsistencies and, as far as he is concerned, pages may have been added after his signature. That may well be so. Assuming that it was in fact done, suffice it to say, that on the page which the Applicant signed is a statutory declaration. It reads in part:

I undertake to provide sufficient direct or indirect financial assistance to the person covered by this assurance to ensure they will not rely on any form of Australian Social Security benefits as listed below. I undertake to repay to the Commonwealth the fund paid where any special benefit is paid under the Social Security Act (1991) to a person covered by this assurance during the period for which the assurance of support is given. I understand that Centrelink, on behalf of the Commonwealth Department of Family and Community Services may use its debt recovery powers under the Social Security Act (1991), or that action may be taken in court to recover from me such funds are as a debt due pursuant to migration regulations.

That would seem to be quite clear to the Applicant, who is an educated man and practised as a civil engineer in Australia, that the statutory declaration would result in him potentially incurring a debt to the Commonwealth, whatever other pages may or may not have been added to the document. If however he says that he did not sign the document, or rather, he did not read the document before signing it, I would simply refer to the remarks of Lord Denning as Master of the Rolls in Gallie v Lee (1969) 2 CR 17 at pages 36 – 37, namely:

“Whenever a man of full age and understanding who can read and write signs a legal document which is out before him for signature, by which I mean a document which if it is apparent on the face is intended to have legal consequences, then if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say this it is not his document. By his conduct in signing it, he has represented to all those into whose hands it may come that it is his document and once they act upon it as being his document he cannot go back on it and say that it was a nullity from the beginning.”

In this matter I reject totally the Applicants evidence that he did not sign the document at T4. I believe the real circumstances are that he was under the impression, as he said, that it was a document which would facilitate Mr Jasinowski bringing his wife to Australia, but as that may be, he signed a document which assured her support and is to be bound by his signature.

A debt such as the one incurred by the Applicant can either be waived or written off. In the current circumstances write-off is not a question, the debt has in fact been recovered. So far as waiver is concerned, the test is that there must be said to exist special circumstances. As to what special circumstances, I would simply refer to the judgment of his Honour, Carr J, in Secretary, Department of Social Security and Ellis (1997) 24 AAR 535 at 539. Suffice it say that in these proceedings there was nothing out before me at all which in any way would constitute special circumstances such as to warrant the waiver of the debt. In particular, I do not regard it as a special circumstance that the Applicant has been placed in debt by reason of signing a document of whose import he is unaware.

All in all, there are no reasons to anything in this matter but to affirm the decision under review.

END OF EXTRACT