Melnikova and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4293

Melnikova and Secretary, Department of Social Services (Social services second review) [2021] AATA 4293 (18 November 2021)
Division:GENERAL DIVISION
File Number:2019/2448
Re:Ms Albina Melnikova
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke, AO Member
Date:18 November 2021
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Ms A E Burke, AO Member
Catchwords
SOCIAL SECURITY – assurance of support – valid visa – special benefit and widow allowance paid – jointly and severally liable for the debt - 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)
Cases
Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154
Callaghan and Secretary, Department of Social Security (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 v Secretary, Department of Social Security (1995) 40 ALD 541
Gunn and Department of Social Security [1999] AATA 87
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
Lu and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 867
NJDY and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1255
Phan and Secretary, Department of Employment and Workplace Relations [2006] AATA 76
Ryde and Secretary, Department of Family and Community [2005] FCA 866
Secretary, Department of Social Security and Kratochvil (1995) 37 ALD 515
Snaith and Secretary, Department of Social Services [2019] AATA 2544
Soriano and Department of Family and Community Services [2000] AATA 842
Secondary Materials
The Social Security Guide, Department of Social Services
REASONS FOR DECISION
Ms A E Burke, AO Member
18 November 2021

Ms Melnikova (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 28 March 2019. The AAT1 affirmed a decision of the then Department of Human Services that Ms Melnikova had a recoverable assurance of support debt of $120,565.31 for the period 11 March 2010 to 23 December 2017.
This application was heard by telephone on 23 August 2021. Ms Melnikova was self-represented and Mr Tim De Uray, Deputy General Counsel in the Litigation and Information Release Branch of Services Australia, appeared for the Respondent. At the conclusion of the hearing Ms Melinkova was given additional time to provide further evidence and the Respondent was provided time to respond.
BACKGROUND
Ms Melinkova advised the Tribunal that she is Russian by ethnicity but prior to coming to Australia she had been living in Moldova, which she said was not a safe place for Russian people. As a result of this, the Applicant’s sister came to Australia as a refugee and Ms Melnikova subsequently migrated to Australia in 1990 as a scientist. Ms Melnikova stated that the situation in Moldova has not resolved since then and is still a hot spot where Russians are persecuted and even killed. Following her father’s death in 2006, she determined that her mother, Mrs Larisa Hudeakova, was no longer safe in Moldova, especially as she had no family left to support her. Ms Melnikova decided to bring her to Australia as quickly as possible and applied for a a Contributory Parent visa for her mother.
Ms Melinkova advised the Tribunal that she initially hoped to apply for refugee status for her mother once she was in Australia, but she never made such an application. Ms Melinkova understood the visa her mother was granted required an assurance of support, but as her income was insufficient, her husband at the time acted as joint assurer. Ms Melnikova claimed that initially all went well after her mother arrived in Australia, with her mother living with her and her family, but then her marriage broke down, her health declined, and she became unemployed.
On 29 March 2007, Ms Melnikova attended a Centrelink appointment to lodge her assurance of support.
On 12 April 2007, Centrelink advised Ms Melnikova that her taxable income for the 2005 year was insufficient for her to meet the income threshold required for an assurance of support and a joint assured was required. The Centrelink file note records:
Joint assurer is required as your taxable income for 2005 financial year ($32,313) is insufficient for you to meet the income threshold required ($42,500). The other assurer will need to make an appointment to personally lodge an AOS application and all required documentation at Centrelink.
On 24 April 2007, Centrelink recorded that a bond of $10,000 had been lodged and the assurance of support had been accepted. Ms and Mr Melnikov co-signed the assurance of support for Mrs Hudeakova.
On 21 August 2007, Mrs Hudeakova was granted a visa subclass 143, a Contributory Parent visa, which has a 10-year assurance of support requirement for the individual to be able to reside in Australia. Mrs Hudeakova arrived in Australia on 24 December 2007.
On 11 March 2010 Mrs Hudeakova commenced receiving Special Benefit.
On 11 March 2010, Ms Melnikova provided the following statement to Centrelink:
Four years ago, my father died and my mother left alone with absolutely no family in Moldova. We decided to bring her to Australia and have organised assurance of support that brought her here as a sponsored parent. The sponsorship was provided by me and my husband (at that time) [Mr] Melnikov. In 2009 (29/04/2008) we got divorced and my ex-husband stop sponsoring and supporting my mother. I have remarried later (August 2008) and live in France since the end of 2008 coming for 1-2 months visit to Australia. I currently hold no job and have no income to provide my support to my mother. My husband (lives in France) and I live there on our income and share it with my mother to support her and pay her rent, food and bills.
On 23 March 2010, Ms Melnikova completed an assurance of support form to advise Centrelink of her capacity to fulfil her obligations as an assurer.
On 25 March 2010, Centrelink contacted Ms Melnikova by phone to advise that if her mother was granted special benefit then a debt would be raised, as she was advised at the time of her assurance of support interview. The file not records that any debt would first be deducted from the bond and then any remaining amount would be recovered from the assurer.
On 27 January 2011, Mrs Hudeakova completed an assurance of support review for assuree form in which she advised that in the last three months she had not received financial assistance from the persons who had signed the assurance of support, “due to changed family circumstances (divorce of my daughter) and therefore changes in all… financial arrangements”.
On 13 December 2011, Mrs Hudeakova completed another assurance of support review for assuree form in which she advised that in the last three months she had not received financial assistance from the persons who had signed the assurance of support, stating “nothing changed in my situation e.g. daughter unemployed, divorced etc.”.
On 13 July 2011, 5 March 2012, 28 January 2012, 18 September 2012, 14 April 2013, 10 August 2013, 11 February 2014, 16 May 2014, 9 August 2014, 28 October 2014, 16 January 2015, 7 April 2015, 21 April 2015, 14 July 2015, 5 September 2015, 5 December 2015, 28 February 2016, 5 June 2016 and 19 December 2016, Mrs Hudeakova completed an assurance of support review for assuree forms in which she advised that in the last three months she had not received financial assistance from the persons who had signed the assurance of support, in each stating that there had been no change in her circumstances.
On 12 June 2011, 9 December 2011, 15 March 2012, 17 September 2012, 14 January 2013, 14 May 2013, 12 August 2013, 7 February 2014, 29 August 2014, 12 September 2014, 16 February 2015, 14 July 2015, 3 November 2015, 28 February 2016, 2 June 2016, 4 October 2016, 20 March 2017 and 21 July 2017 Ms Melnikova completed an assurance of support review for assurer form in which she advised that in the last three months she had not provided any support to Mrs Hudeakova.
On 19 October 2016, Mrs Hudeakova ceased to receive special benefit. She commenced receiving widow allowance from 20 October 2016.
On 27 November 2018, on internal review, an Authorised Review Officer (ARO) of the Department of Human Services affirmed the earlier Centrelink decision that Ms Melnikova had an assurance of support debt. The ARO stated:
A debt may also 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. I took into account what you told the department in your request for review. I am not satisfied there are special circumstances that make waiving the debts desirable.
This means you have debts of $98,095.08 and $22,470.23 that must be repaid.
The ARO recorded in the notes:
Reasons for decision
Mrs Melnikova ceased to provide support for her assuree. Payments made to her assuree are recoverable debts for Mrs Melnikova. Review forms and notification letters were correctly sent throughout the review period. I did not find that waiver provisions had been met.
On 28 March 2019, AAT1 affirmed the decision of the ARO, finding in part:
The tribunal is satisfied that in the period 11 March 2010 to 19 October 2016, which was ' within the assurance of support period, Mrs Hudeakova received $98,095.08 of special benefit. The tribunal is also satisfied that in the period 20 October 2016 to 23 December 2017, which was within the assurance of support period, Mrs Hudeakova received ($22,470.23 of widow allowance. This means that within the assurance of support period Mrs Hudeakova received a total of $120,565.31 in social security payments.
Section 5 of the Social Security (Assurances of Support)(DEWR) Determination 2008 (the Determination), being the relevant determination at the time, specifies that both special benefit and widow allowance are a "social security payment" for the purposes of paragraph 1061ZZGG(1)(c) of the Act. Therefore, Mrs Melnikova is liable to pay the Commonwealth $120,565.31 in respect of social security payments made to Mrs Hudeakova during the assurance of support period.
Nevertheless, the tribunal does not consider that these factors could lead to a conclusion that the assurance of support should cease to be in force for the purposes of subparagraph 1061ZZGF(1)(b)(iii), of the Act, because although Mrs Melnikova’s income and ability to provide adequate support declined, there is no evidence of an accident, disability, illness or other circumstance which, in the tribunal's view, critically affected her ability to provide adequate support. Further, the tribunal notes that the Determination does not allow general financial hardship on the part of Mrs Melnikova to be considered a special circumstance which justifies the cancellation of the assurance of support. Taking into account all of the circumstances that occurred during the assurance of support period, as outlined by Mrs Melnikova, the tribunal concludes that Mrs Melnikova's circumstances were not special circumstances such that the assurance of support should cease to be in force. Accordingly, the tribunal finds that Mrs Melnikova has incurred an assurance of support debt of $120,656.31 over the debt period.
The tribunal acknowledges that Mrs Melnikova owes a very large debt and.that she is currently experiencing personal and financial difficulties. However the tribunal is of the view that the changed personal circumstances described by Mrs Melnikova should have been contemplated when she decided to give the assurance of support. She signed documents where she acknowledged that she would repay the Commonwealth if Mrs Hudeakova claimed social security payments during the assurance of support period. She was made aware of her obligations. She was also made aware throughout-the debt period that Mrs Hudeakova was receiving social security payments and the amount of the debt she was accruing as a result.
In this case the tribunal does not find that Mrs Melnikova's circumstances are "special" such that they may provide sufficient reason to waive recovery of some or all of the debt and the tribunal so finds.
On 3 May 2019, Ms Melnikova sought a review of the AAT1 decision by this division of the Tribunal, stating in her application that:
Decision made by first tier AAT supported Center Link decision but did not consider, ignored all the facts that I have put forward in the appeal, e.g. the decision did not reflect/consider/referred to the changed (life and health) circumstances that not just limited my ability to support my mother, they limited my ability to support myself.
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”. Ms Melnikova provided written submissions, other documentation, and gave oral evidence at the hearing.
On 24 May 2021, Ms Melnikova provided the following statement in support of her application.
In this statement I would like to outline main points presented for this final appeal which can be presented as two separate issues/subjects I was trying to address with Centre Link during last two and a half years, they are:
1. a) Appeal to change status and prove my mother’s eligibility to financial support other than Assurance of Support receiver. Number of steps was taken since 2012 to address these issues which included but not limited to letters of appeal and application for Widow Pension based on the Australian Law. The latter was offered by Center Link as a consequence with the assurance that my mother was, in fact, eligible to a Widow status based on Australian Law and that was indeed different to a status of Assurance of Support receiver with all following consequences that the change of the status had implied.
b) I am contesting the amount Center Link insisting of repaying back which include not only Assurance of Support payments t but also all small supplementary payments that were made to my mother during that period which were NOT Assurance of Support and included payments like Rent Assistance, Electricity Supplement, etc. On the number of occasions we have contacted Center Link asking to clarify the conditions of those payments and we were assured that only Assurance of Support payments were subject of repayment. During stages of appeal all above points were presented but disregarded by Center Link representative without much consideration and legal justification.
2. I also have raised a question of my ability to repay the debt which was/is the same reason why my mother had applied for financial help on the first place – broken marriage and worsening state on my health surely but steadily brought my financial situation to the point where I no longer could provide any meaningful assistance except hands on care to support her. This was when the decision to apply for financial support was made. Nothing changed since then except the situation became more difficult, life became more expensive and employment in my current conditions is really out of questions. However, I would like to state that I still very much provide care for my mother, who is currently 85 years old, has number of conditions she has to live with, and is highly dependent due to her extremely limited knowledge of English language.
I have tried to address these and other points related to the issues raised above, however, I found dealing with Center Link is an extremely one-sided, fact dismissive and very often simply arrogant and disrespected of law (the instance when Center Link representative did not hesitate to contact a Supplementary lawyer, who consulted me on the subject of the appeal. After I have explicitly stated to the Center Link representative that I did NOT give my permission to contact the lawyer and discuss any issues I have discussed with the lawyer including the advice the lawyer had given me. Despite all my objections the lawyer was contacted. As a result, I have refused any further assistance from any free services provided by the Government, which seemed to me after all that happened to be services serving each other rather than serving the Law).
At the conclusion of the hearing the Tribunal allowed Ms Melnikova to provide evidence of her claimed medical condition and treatment received. On 5 October Ms Melnikova outlined the following:
…I have travelled overseas since 2016 (one can see the first entry date in the medical book from the Tibetan clinic) to address my medical conditions that included Thyroids and DUB (dysfunctional uterine bleeding). At times when Tibetan doctor needed more tests he asked me to do it in the hospital.
Considerable bulk of the documents and records has been left in Nepal with my friends and at the Tibetan clinic as I had no idea that it will my last visit to Nepal, that things will get so complicated with COVID and that I will need them to prove my statements at the hearing. I knew about Tibetan medicine and its capacity to treat and heal most complex health conditions because Tibetan medical school is thousands years old and treat the whole body and doesn't just provide temporary relief and a one organ treatment.
I looked but I could not find an equivalent medical treatment here, in Australia, that would provide this form of integrated diagnostics and match it with appropriate integrated treatment which would address not just one organ in the body but all related issues that manifested as a range of different symptoms.
If there are any doubts re the purpose of my overseas visits in the last six years I could also arrange letter from the Tibetan doctor from the monastery where I was receiving the treatments.
Ms Melnikova provided copious documentation from the Shelkar Tibetan Medical Institute, Shechen Clinic & Hospice, CIWEC Hospital and Metro Kathmandu Hospital which corroborated her claim that she has received medical treatment in Nepal from 2016 for her conditions of hyperthyroidism and dysfunctional uterine bleeding (DUB). Ms Melnikova’s records from the Metro Kathmandu Hospital state that she had been taking Tibetan medicine for hyperthyroidism since 2016, that the ‘scan and uptake finding are consistent with thyroiditis’, that and that her “thyroid is getting better, this doesn’t explain DUB’.
Having received the additional evidence from Ms Melnikova after the hearing, the Respondent advised that their position remained unchanged and as such did not provide further submissions responding to the additional material lodged by Ms Melnikova.
ISSUES
The issues for determination before the Tribunal are:
(a)Does Ms Melnikova have an assurance of support debt of $120,565.31 for the period 11 March 2010 to 23 December 2017;
(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 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 provides:
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 section 1061ZZGHwhen 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, widow allowance and the age pension are social security payments for which assurers are liable under sections 1061ZZGA and 1061ZZGG of the Act.
Section 18 of the Social Security (Assurances of Support) (DEEWR) Determination 2008 (the 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:
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
Section 1223 of the Act outlines how debts arise from lack of entitlement and overpayment:
(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
Ms Melnikova disputed that she has a debt to the Commonwealth, arguing her debt in the first instance should be reduced by everything except the special benefit allowance received by her mother.
Ms Melnikova argued she had sought to transfer her mother from special benefit to the age pension as she was of the belief it was a payment not covered under the assurance of support. However, she discovered her mother was not eligible for the age pension as she did not meet the 10-year residence requirement. Instead, her mother was transferred from special benefit to widow allowance.
Ms Melnikova argued that her mother’s payment for widow allowance was not subject to the assurance of support and should not be included in the calculation of her debt. Ms Melnikova contended there had been no review of her mother’s claim for widow allowance, and Centrelink had not advised her that this benefit would result in a debt. Ms Melnikova argued the amount of widow allowance received by her mother should be reduced from her debt liability, as there had been nothing to indicate this payment was claimable.
Ms Melnikova also argued that if any payment received by her mother was claimable, then it should follow that any Medicare benefits or other payments like pension card discounts received by her mother would also be included in any debt she owed, but this is not the case. Ms Melnikova argued if these payments were not claimable, then any additional benefits such as electricity energy supplement, rent assistance, and pension supplement were not claimable and should be removed from any debt she owed to the Commonwealth. Ms Melnikova asserted that she did not believe these additional benefits were part of the assurance of support and therefore should not be included in the calculation of her debt.
Ms Melnikova also asserted there was a question of her ability to pay the debt and that her special circumstances had not been considered by any decision maker when assessing the possibility for debt waiver. Ms Melnikova outlined there was a great deal happening in her life at the time she made the assurance of support for her mother which was causing her significant stress. Ms Melnikova outlined the following factors she was experiencing at this time:
(a)She separated from and divorced her first husband;
(b)She met and remarried a French national, and so was travelling between France and Australia;
(c)Her second husband moved to Australia, but could not adjust and attempted suicide, so she asked him to return to France. Her mental health was greatly impacted by this and she was no longer able to look after herself, her mother or her son;
(d)Her sister in Australia refused to provide any support to her mother and so she was left with the whole burden;
(e)She got so sick she could not do anything, she thought it was depression but after two years she was diagnosed with hyperthyroidism;
(f)Due to this illness, she was unable to work and was without income for a long period of time;
(g)She was suffering from complex medical conditions which had not responded to Western medicine; however, as a practising Buddhist, she was introduced to treatment in Nepal which greatly helped her condition;
(h)She travelled to Nepal on eight occasions for this purpose and her husband in France assisted with the cost of the travel;
(i)Her medical condition was trigged by stress because when she gets stressed the adrenalin in her body exhausts her very quickly, which leads to headaches and depression; she also has some related heart issues and she experienced significant problems with menopause.
Ms Melnikova submitted that she had not been in contact with her former husband since they separated and did not know if he had made any repayments towards the debt.
The Respondent submitted that:
(a)Mrs Hudeakova was granted a Contributory Parent visa (visa sub-class 143); which required an assurance of support for 10 years, which commenced when she entered Australia on 24 December 2007;
(b)An assurance of support was in force between Ms Melnikova and her former husband for her mother from the date of Mrs Hudeakova’s entry into Australia, 24 December 2007 to 23 December 2017;
(c)Mrs Hudeakova did not enter Australia as a refugee nor was she granted refugee status after her arrival;
(d)Neither Mrs Hudeakova nor Ms Melnikova had died;
(e)Mrs Hudeakova’s Contributory Parent visa remained in force and was not cancelled; and
(f)Mrs Hudeakova received Widow Allowance and Special Benefit which are social security payments for which assurers are liable.
The Respondent therefore contended Ms Melnikova was liable to pay the Commonwealth the amounts of Special Benefit and Widow Allowance received by her mother during the 10-year assurance of support period.
The Respondent noted Ms Melnikova’s submission that the fact that her mother was old, vulnerable and in a needy position overseas ought to be considered in her request to have the debt waivered. However, the Respondent contended that the assurance of support scheme was put in place to enable people such as Mrs Hudeakova, who would otherwise not be permitted, to migrate to Australia. The Respondent took the Tribunal to the Explanatory Memorandum to the Introductory Act which states the objective of the assurance of support scheme:
The Assurance of Support Scheme allows migrants who are at a higher risk of needing to claim social security payments to come to Australia, while protecting the Commonwealth from financial risk.
The Respondent argued the explanatory memorandum recognises that migrants under this category have a high likelihood of requiring income support and are only permitted to migrate on the condition that assurers guarantee to repay any Commonwealth payments which the migrants receive. The Respondent argued assurers accept financial responsibility for new arrivals, including repayment of any social security payments. It is because of this underlying purpose that the approach to assurance support debts is narrower and harsher than other special circumstances considerations under the Act.
The Respondent submitted that Ms Melnikova had not adduced cogent evidence of any accident, disability, illness or other circumstance which has critically affected her ability, as an assurer, to provide adequate support, as required by the Determination. As such, the Respondent argued Ms Melnikova was jointly and severally liable with her former husband for the debt of $120,565.31 to the Commonwealth.
The Respondent submitted that it was of critical importance that the assurance of support was entered into by both Mrs Melnikova and her former husband, such that they were both jointly and severable liable for the debt, and both remain liable for the whole debt. This means the debt can be recovered from one or the other of Ms or Mr Melnikov or a combination of both.
The Respondent submitted this was significant because Mr Melnikov has been making repayments to reduce the assurance of support debt. The Respondent provided the Tribunal with Centrelink records which verified this.
CONSIDERATION AND FINDINGS
Assurance of Support
On examination of all the evidence before it, the Tribunal finds that Ms Melnikova provided an assurance of support for her mother Mrs Hudeakova, for the period 24 December 2007 to 23 December 2017.
Ms Melnikova’s evidence confirmed she and her former husband willingly provided the assurance to bring her mother to Australia. The Tribunal finds that she did so willingly and in full knowledge of her obligations. The Tribunal finds that at all times during this period, Mrs Hudeakova had a valid visa to remain in Australia and was not recognised as a refugee.
As the Tribunal has found that Ms Melnikova gave an assurance of support for her mother, it therefore concludes that she is liable to pay the Commonwealth the amount equal to the special benefit and widow allowance which were received by her mother during the assurance of support period.
The Tribunal finds that Ms Melnikova has an assurance of support debt of $120,565.31 (for which she is jointly and severally liable with her former husband) to the Commonwealth as she was liable to pay for the social security payments received by her mother, Mrs Hudeakova, under section 1061ZZGG of the Act.
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.
The Respondent contented that Ms Melnikova’s debt cannot be written-off under section 1236 of the Act for the following reasons:
(a)The debt is not irrecoverable at law;
(b)Ms Melnikova’s whereabouts are known;
(c)Ms Melnikova has capacity to repay the debt as evidenced by the fact she has been repaying the debt; and
(d)It is cost effective for the Commonwealth to recover the debt.
On the evidence before the Tribunal, Ms Melnikova did not meet the criteria 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 Ms Melnikova’s debt cannot be waived under
section 1237A of the Act as she did not receive the payments that gave rise to the debt, her mother, Mrs Hudeakova, did as the assuree.
The Respondent submitted 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 cannot be waived, regardless of whether an administrative error had been made. This is because section 1237A is not applicable as Ms Melnikova did not receive special benefit or widow allowance payments and therefore, it cannot be said she received them in good faith, which is a requirement for the operation of section 1237A.
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 Ms Melnikova’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 Ms Melnikova’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 Callaghan and Secretary, Department of Social Security (1996] 45 ALD 435, Deputy President Forgie said at 445 [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 Ms Melnikova did not knowingly or deliberately mislead Centrelink, and therefore the debt has not arisen solely or partly from her knowingly making a false statement or failing to comply with the legislation. The Tribunal finds that Ms Melnikova did not deliberately act dishonestly with any intention to mislead Centrelink. As such, subsection (a) of section 1237AAD of the Act is 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 Secretary, 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 at 545:
…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 or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one were 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’.
Ms Melnikova contended her circumstances were indeed special as she had outlined at length her inability to repay the debt, that she felt like a broken record who had not been listened to, and she could not comprehend what more she could possibly tell the Tribunal. Ms Melnikova contended that her marriage breakdown, unemployment, the stress of her second marriage, her ill health, and financial stress should all constitute special circumstances.
Ms Melnikova’s argued she did not know that these numerous terrible things would happen to her, that she would transition from being full of life, employed, able to support her mother to the position she found herself in – divorced, unemployed, seriously unwell and unable to take responsibility for her mother. Ms Melnikova’s submitted her circumstances had drastically changed and she could not have foreseen this when she signed the assurance of support for her mother.
Ms Melnikova submitted that no one had explained to her what constituted special circumstances and she felt that she was being asked to compare herself to other Applicants which she thought was unfair and unjust as she could only speak to her own circumstances which she felt were sufficiently special.
Ms Melnikova submitted that she did not understand the legal system or know the law but as a human, she believed she should have been shown more respect through this process. She stated that no Centrelink representative had ever asked her to provide proof of her special circumstances.
The Respondent contended that Ms Melnikova’s circumstances ‘are not sufficiently unusual, uncommon or exceptional so as to make her case markedly different from the ordinary run of cases and otherwise ‘special’’.
The Respondent, in their Statement of Facts, Issues and Contentions, argued the Tribunal has previously found special circumstances to waive assurance of support debts in part, or in full, where:
(a) 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).
(b) 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).
(c) 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).
(d) 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 Ms Melnikova’s case could be distinguished from those cited above as Ms Melnikova:
(a)Did not require the assistance of an interpreter;
(b)Was put on notice from the outset about the consequences of an assurance of support as she attended an interview prior to her application being granted and she acknowledged that she was aware of her obligations. She also did not deny signing the assurance of support for her mother, or of failing to understand the implications of her entering into an assurance of support. In Gunn, DP Forgie stated at [50]-[51]:
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.
(c)Ms Melnikova was issued with numerous notices and account statements setting out her obligations as an assurer, and she was contacted by the Department to discuss the implications as soon as Mrs Hudeakova lodged a claim for special benefit.
(d)She should have contemplated that one’s circumstances can change, like marriage breakdown and job loss, which are not unusual or out of the ordinary. The Tribunal in Snaith and Secretary, Department of Social Services [2019] AATA 2544 at [54]-[55] held:
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.
….Consequently, I find that the Applicant’s Assurance of Support debt cannot be waived pursuant to section 1237AAD of the Act.
(e)Ms Melnikova provided a paucity of cogent evidence of her ill health, failing to demonstrate their seriousness, duration and impact on her ability to support her mother for all or some of the assurance of support period. the Tribunal in Hammelswang and Secretary, Department of Social Services [2015] AATA 905 at found:
4.…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.
…
7. 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.
The Respondent contended that as Ms Melnikova’s case centres solely on whether special circumstances exist, the following cases were relevant, as discussed in Aboumelaya and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 154 at [22]-[28] in which the Tribunal considered special circumstances under section 18(d)(i) of the Determination:
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.
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.
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.
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.
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 a circumstance does not of itself constitute a special circumstance.
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.
The obligation in the assurance of support is very clear. If there has been some fraud, it is a matter to be pursued elsewhere (emphasis added).
The Respondent also took the Tribunal to the matter of Christanty and Secretary, Department of Social Services [2015] AATA 627, in which Deputy President Constance adopted the approach in Aboumelaya regarding special circumstances and section 18(d)(i) of the Determination, agreeing that the scope of what might be considered special circumstances is narrower than that applicable to other aspects of social security legislation.
The Respondent argued that in light of these authorities, cancellation of Ms Melnikova’s assurance of support obligation was not justified under section 18(d)(i) of the Determination for the following reasons:
(a)Section 18 of the Determination specifically notes that financial hardship on the part of the Assurer will not, of itself, be considered a special circumstance.
(b)Although Ms Melnikova claimed to be suffering from ill health, there was otherwise a paucity of cogent evidence demonstrating the seriousness, duration and impact on her ability to support her mother for all or some of the assurance of support period.
(c)As the specific factors listed in section 18(d)(i) of the 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.
(d)The evidence regarding Ms Melnikova’s financial circumstances were vague and there was evidence that Ms Melnikova was working for periods of time during the assurance of support period.
(e)Ms Melnikova had the capacity to repay the debt as she was currently in receipt of carers allowance for her mother and her mother was receiving the Australian aged pension.
(f)Ms Melnikova clearly had both the health and financial means to travel overseas, noting Ms Melnikova had departed Australia eight times since 2015
(g)Ms Melnikova’s health had not prevented her from proving care to her mother.
(h)With respect to any other circumstances, to date Ms Melnikova has not adduced such evidence.
The Respondent contended that regardless of any evidence provided by Ms Melnikova to justify why her assurance of support obligation should be cancelled, it could not as she was jointly and severally liable for the assurance of support debt with her former husband.
The Respondent contented that as Ms Melnikova was jointly and severally liable for the assurance of support debt with her former husband, and he was currently repaying the debt, there was no justification for waiving any amount of the debt under subsection 1237AAE(4) of the Act. This subsection provides the discretion to waive an amount under section 1237AAD where there is more than one assurer:
(4) If 2 or more assurers are jointly and severally liable for the debt, the Secretary may waive under section 1237AAD the right to recover an amount of the debt that is not greater than the amount (which may be a nil amount) of the debt that the Secretary is satisfied cannot be recovered from any of the assurers.
The Tribunal finds that Ms Melnikova had willingly entered into an agreement to provide financial support to her mother to enable her to migrate to Australian under a Contributory Parent visa. Ms Melnikova provided her mother with financial supports for the first three years of her mother’s residence in Australia, so that she was not required to seek taxpayer-funded support. However, after 2010 she ceased to provide any form of financial support to her mother and Mrs Hudeakova was granted taxpayer benefits. Therefore, Ms Melnikova has not fulfilled her end of the agreement and has a recoverable debt to the Commonwealth.
The Tribunal can find no reasons which could justify the cancellation of Ms Melnikova’s assurance of support obligation for her mother. At all times Mrs Hudeakova held a valid visa, had not died and had not been granted refugee status. Ms Melnikova, jointly and severally with her former husband, therefore had a responsibility to provide financial support to her mother for the entire assurance of support period, which they failed to do.
The Tribunal also finds that Ms Melnikova was on notice from the outset about the consequences of an assurance of support and was aware of her obligations and the consequences of her mother receiving Centrelink benefits. The Tribunal also finds Ms Melnikova was notified by Centrelink on numerous occasions of her obligations as an assurer and the quantum of her debt over time.
The Tribunal does not find that the debt could be reduced by the amounts of rent assistance or energy supplement, as argued by Ms Melnikova. Rent assistance, energy supplement and other similar benefits are paid as a supplement to the primary payment; that is, they are added to the rate of pension received by eligible recipients and are not stand-alone payments. As these payments are paid only to eligible pension recipients, it simply forms part of their pension. As such the Tribunal determines they formed part of the recoverable debt under the assurance of support and cannot be waived.
The Tribunal also does not find that the debt could be reduced by the amount of widow allowance despite Ms Melnikova’s claim that widow allowance was not subject to the assurance of support. The Tribunal notes that the Act clearly outlines which benefits received by an assuree will result in a debt for the assurer. The benefits which will be subject to the assurance of support are specified in the Determination in force under section 1061ZZGH of the Act. The Determination includes both widow allowance and age pension and as such they form part of Ms Melnikova’s debt. The Tribunal could find no reference to any advice being provided to Ms Melnikova that these benefits were not subject to the assurance of support.

The Tribunal does not consider Ms Melnikova’s circumstances sufficiently unusual, uncommon or exceptional so as to make her case markedly different from the ordinary run of cases or otherwise special to justify waiver of any amount of the debt under subsection 1237AAE(4) of the Act.
The Tribunal finds that while Ms Melnikova’s marriage breakdown and subsequent divorce were obviously not foreseeable or desirable, unfortunately they are circumstances which are not in themselves sufficiently unique to have a particular quality of unusualness that permits them to be described as special.
The Tribunal finds Ms Melnikova’s medical condition of hyperthyroidism and DUB, were also not foreseeable or desirable but also not sufficiently unique to be considered special. Ms Melnikova’s choice of medical treatment was obviously unique, but the Tribunal does not consider this constitutes special circumstances as it was Ms Melnikova’s choice to travel to Nepal at great expense to undergo treatment. The Tribunal considers Ms Melnikova’s choice of treatment did not constitute special circumstances as it was within her control and there are readily available and affordable options for treating these conditions in Melbourne.
Additionally, the Tribunal finds Ms Melnikova’s financial situation is not sufficiently unique to have a particular quality of unusualness that permits it to be described as special, noting the Determination states at section 18 that financial hardship of the assurer will not of itself be considered special circumstances. Ms Melnikova should have considered that agreeing to a 10-year period of assurance for her mother would place a financial strain on her over time and contemplate this when entering into the assurance. Unemployment is not uncommon, nor is living on Centrelink benefits, which whilst it may be argued is not easy, is certainly not uncommon. The Tribunal finds there was no suggestion at any stage that Ms Melnikova considered Mrs Hudeakova would be able to undertake paid employment when she migrated to Australia to support herself financially.
Whilst the Tribunal was sympathetic to the hardships and stressors faced by Ms Melnikova, tragically these circumstances as discussed above are not of themselves, or combined, so out of the ordinary to be considered unique or uncommon. Additionally, Ms Melnikova has demonstrated a capacity to repay the debt as she was previously making repayments.
The Tribunal also considers that the debt in its entirety cannot be waivered as Ms Melnikova was jointly and severally liable with her former husband for the debt of $120,565.31 to the Commonwealth. As such the debt can be recovered from one or the other of Mrs Melnikova or Mr Melnikov, or a combination of both. As Mr Melnikov is making repayments towards the debt, it cannot be waivered wholly or in part and the Tribunal does not think it is reasonable to place the entirety of the debt onto Ms Melinkova’s former husband.
Waiving the debt more appropriate than writing-off the debt
The Tribunal considers that even if the conditions in subsections (a), (b) and (c) were satisfied, which the Tribunal has determined they are not, it is not reasonable or desirable to exercise the discretion to waive the debt under section 1237AAD for the following reasons:
(a)Per Hassan and Secretary, Department of Social Services [2018] AATA 4618, it would undermine the public policy purpose of the Assurance of Support scheme if Ms Melnikova’s debt was waived simply because she complained of the very obligations that she had voluntarily agreed to assume and which the Government had relied on in granting her mother a subclass 143 visa.
(b)Any amount of waiver would frustrate the object and 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 Mrs Hudeakova’s special benefit and widow allowance payments from Ms Melnikova to the Australian taxpayer.
(c)To waive any amount of Ms Melnikova’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.
(d)Ms Melnikova is jointly and severally liable for the assurance of support debt with her former husband, and he is currently repaying the debt to the Commonwealth there was no justification to waive any amount of debt under subsection 1237AAE(4) of the Act
(e)There is no injustice in requiring Ms Melnikova to repay the debt.
DECISION
The Tribunal affirms the decision under review

I certify that the preceding 97(ninety-seven) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member

.......................[sgd].................................
Associate
Dated: 18 November 2021

Date of hearing: 23 August 2021

Date of final submissions: 1 November 2021

Representative for Applicant: Self-represented

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Tim De Uray

Services Australia

Date of hearing:	23 August 2021
Date of final submissions:	1 November 2021
Representative for Applicant:	Self-represented
Advocate for the Respondent: Solicitors for the Respondent:	Mr Tim De Uray Services Australia