Melnikova and Secretary, Department of Social Services (Social services second review)

This matter concerned an application by Ms Melnikova for a review of a decision by the Secretary of the Department of Social Services regarding an assurance of support debt. Ms Melnikova had provided an assurance of support for her mother, Mrs Hudeakova, who migrated to Australia on a Contributory Parent visa. Mrs Hudeakova subsequently received special benefit and widow allowance payments. Ms Melnikova argued that her changed personal circumstances, including marital breakdown and declining health, limited her ability to support her mother and herself, and that certain payments made to her mother were not subject to the assurance of support. She also raised concerns about administrative conduct by Centrelink.

The Administrative Appeals Tribunal was required to determine whether Ms Melnikova was liable for the social security payments made to her mother during the assurance of support period, and whether this debt should be written off or waived. Specifically, the Tribunal had to consider if the debt was irrecoverable, if there were special circumstances warranting a write-off, or if the debt was due solely to administrative error. The Tribunal also considered whether waiving the debt would be reasonable or desirable, having regard to the purpose of the assurance of support scheme.

The Tribunal found that Ms Melnikova had willingly provided the assurance of support for her mother, understanding her obligations. It concluded that she was jointly and severally liable for the debt, which amounted to $120,565.31, representing the special benefit and widow allowance payments received by her mother during the assurance period. The Tribunal determined that Ms Melnikova did not meet the criteria for writing off the debt under section 1236(1) of the Act, as the debt was not irrecoverable, her whereabouts were known, and she had demonstrated a capacity to repay. Furthermore, the Tribunal found that the debt was not due solely to administrative error, and therefore could not be waived under section 1237A of the Act. The Tribunal also held that waiving the debt would undermine the public policy purpose of the assurance of support scheme, frustrate its intention to protect the Commonwealth from financial risk, and send a poor message to the community.

The Tribunal affirmed the decision under review.