Metin Reyhanli and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Secretary, Department of Education, Employment and Workplace Relations
[2013] AATA 587
•22 August 2013
[2013] AATA 587
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5366
Re
Metin Reyhanli
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENTS
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 22 August 2013 Place Sydney The Tribunal affirms the decision under review.
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Ms G Ettinger, Senior Member
CATCHWORDS
SOCIAL SECURITY – Assurance of Support for wife who obtained visa to enter Australia from Turkey – couple separated a short time later - debt incurred when wife was granted Special Benefit, Austudy and Newstart allowance – Assurance of Support properly entered into – cannot be withdrawn once visa issued – no special circumstances to enliven discretion to end Assurance of Support before end of two year period – decision affirmed.
LEGISLATION
Social Security Act 199; ss 122, 1061GG, 1061ZZGEA, 1236, 1237A, 1237AAD, 1237AAE
Social Security (Assurances of Support)(DEEWR) Determination 2008; s 18
CASES
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SECONDARY MATERIALS
Guide to Social Security Law, 9.4.7 AoS Debt?
REASONS FOR DECISION
Ms G Ettinger, Senior Member
SUMMARY
Mr Metin Reyhanli, the Applicant in these proceedings, has applied for review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 22 October 2012, which held that he incurred a debt with regard to the Assurance of Support (AoS) agreement he entered into on 29 October 2008 in order to obtain a Visa Subclass 309 for his wife, now known as Hasret Cimen.
Under the terms of the AoS Mr Reyhanli is responsible for repayment of any social security payments Ms Cimen has received from the time she entered Australia, and for two years thereafter. The couple, who were married in Turkey, separated shortly after Ms Cimen’s arrival in Australia on 13 January 2009. Ms Cimen then applied for, and was granted Special Benefit, Austudy and Newstart allowance, which in turn have activated debt provisions in the legislation, for which Mr Reyhanli is responsible. Such debts may be written off or waived in full or in part under particular circumstances.
I did not find from the evidence that such circumstances existed in Mr Reyhanli’s case, and I have affirmed the decision under review. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
I must decide whether Mr Reyhanli owes debts of $10,067.31, $3,541.65 and $4,248.63 to the Commonwealth, and whether there is any reason why the debts incurred pursuant to the AoS should not be recovered in full.
RELEVANT LEGISLATION
The legislation governing the AoS agreement is found in Chapter 2C of the Social Security Act 1991 (SSA). Part 2C.1 deals with the giving of assurances, Part 2C.2 with the acceptance of assurances and Part 2C.3 with the effect of accepted assurances. Also relevant is the Social Security (Assurance of Support) (DEEWR) Determination 2008, (Determination 2008).
Section 1061ZZGEA of the SSA provides as relevant:
1061ZZGEA Assurance cannot be withdrawn once visa issued
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.
Ms Cimen was granted a Visa Subclass 309 on 27 November 2008 and arrived in Australia on 13 January 2009. An AoS is a mandatory requirement of that visa which comes into force on the arrival of the visa holder, and cannot be withdrawn once the visa has been granted in connection with the AoS. The Applicant arrived in Australia on 13 January 2009, and therefore the AoS came into force on that day.
There is provision in section 18 of the Determination 2008 for circumstances in which an AoS ceases to be in force.
Section 1061ZZGG of the SSA provides that the assurer, the person who has given the assurance of support, in this case Mr Reyhanli, is liable to pay for any social security payments made to the assuree, Ms Cimen.
Certain circumstances exist under which an AoS may cease to be in force. Section 18 is made pursuant to the Determination 2008, and provides that:
18 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.
I am mindful from the evidence before me that none of the above circumstances are relevant to Mr Reyhanli’s case.
Section 1227 of the SSA provides that if a person is liable to pay an assurance of support debt, the debt is a debt due to the Commonwealth.
Debts may be written off pursuant to section 1236 of the SSA for a time if they cannot be recovered. They may also be waived in full or in part for sole administrative error of the Commonwealth (section 1237A), or waived in full or in part pursuant to section 1237AAD of the Act where there are special circumstances which would make it appropriate to do so.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant, who is now 39 years old, came to Australia from Turkey. He said that he returned there, and married Ms Cimen, and on 29 October 2008, was granted a visa for her to come to Australia. Mr Reyhanli undertook to become the assurer, and the AoS commenced on 13 January 2009, the day Ms Cimen arrived in Australia. An AoS is a mandatory criterion of the Visa Subclass 309. That means the assurer must make a legal commitment to repay any social security payments paid by the Australian Government to the assuree, Ms Cimen, during her first two years in Australia.
When Mr Reyhanli signed the AoS application on 28 October 2008, he was required to declare that he accepted the obligations as stated on the final page of the document, at ST1/149. He said that he did not recall exactly whether he read the statement before signing the document, but accepted that he must have done so at the time.
I am mindful that there are a number of paragraphs which are very important for people who sign and accept the conditions for the AoS. Those conditions follow:
Statement of Assurer
I understand that:
·I am required to provide sufficient direct or indirect financial assistance to the person(s) listed in the Application to provide an Assurance of Support that I have signed to ensure that they will not rely on Centrelink payments.
·I am required to repay the Australian Government the full amount of any Centrelink payments that are recoverable under the terms of the Assurance of Support paid to any person(s) listed in the Application to provide an Assurance of Support.
·I am required to advise Centrelink of any change to my contact details such as address or phone number. If Centrelink cannot contact me recoverable payments may be made to an assuree without my knowledge.
·new payments may be included as recoverable payments at any time and that I may also be required to repay any amounts of these made to the person(s) listed in the Application to provide an Assurance of Support.
·Centrelink may use its debt recovery powers under the Social Security Act 1991, including action that may be taken against me in court, to recover from me any debt to the Australian Government that arises as a result of me giving this Assurance of Support.
·the Assurance of Support remains in force for a period of two years for all visa subclasses, except subclasses 143 and 864, for which the period is ten years. This period begins on the day the person(s) for whom I have given the Assurance of Support arrive(s) in Australia or is granted the visa for which the Assurance of Support was required, whichever happens later.
·once the person(s) for whom I have given an Assurance of Support is/are granted the visa to which they Assurance of Support applies, the Assurance of Support cannot be withdrawn, and 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, financial hardship, or a breakdown in the relationship between myself and any person(s) for whom I have given an Assurance of Support.
·a bank guarantee cannot be cancelled, and other related security deposit cannot be released, until the Assurance of Support period has ended for all people covered by the Assurance of Support.
In summary, Mr Reyhanli agreed, by signing the application for the AoS, that he would give financial and other assistance to Ms Cimen, and that any Centrelink payments incurred by her within the two years of the AoS would have to be repaid by him. The document also made clear that the AoS could not be withdrawn, and that Mr Reyhanli was required to advise Centrelink of any changes to his contact details, such as telephone numbers and addresses.
Mr Reyhanli gave some conflicting evidence regarding the marriage breakdown, first saying that it was some six weeks after Ms Cimen’s arrival, and then, that it did not work out from the first day. I do not make any value judgment regarding that, nor that he could not recall the date of their wedding in either 2007 or perhaps July 2008.
What occurred was that following the separation, Ms Cimen applied for and was granted Special Benefit, later Austudy, and also Newstart allowance. All of those benefits, totalling $17,857.59 are repayable pursuant to section 1227 of the SSA and the AoS document which Mr Reyhanli signed. I note for the sake of completeness that $9,835.01 remains outstanding as the rest has been recovered by garnishee of Mr Reyhanli’s tax returns.
Mr Reyhanli complained that he was not notified by Centrelink before Ms Cimen was granted benefits, and felt that he should have been. He pointed to the document at T3/37 headed Rationale behind AoS debt recovery in which the policy in regard to debt recovery by Centrelink is discussed. The document includes a statement as follows:
Centrelink SHOULD contact the assurer before granting any recoverable social security payments to the assuree. This is to ensure that the assurer is aware that the assuree is making a claim for a recoverable payment, and that if this claim is granted it will result in a debt against the assurer … The assurer should be given the opportunity to support the assuree instead, and avoid this outcome.
In cases where advising the assurer could have a negative impact on the assuree, the Centrelink customer service advisor must liaise closely with Centrelink social workers to ensure that the assure is not put at risk.
Example: The Centrelink social worker considers that contacting the assurer in a domestic violence case will place the assuree at significant risk of harm, Centrelink may defer contacting the assurer until the social worker assesses that the risk of harm is sufficiently diminished. This would generally be no longer than 3 months after recoverable social security payments are granted. The assurer remains liable to repay any AoS debt accrued during this time.
Ms Anniwell, the Respondent’s representative, submitted that the risk of harm to Ms Cimen from Mr Reyhanli was the trigger for granting her benefits before he was notified. She acknowledged that Ms Cimen was granted Special Benefit in March 2009, and that Mr Reyhanli had not been notified until September 2009. Ms Anniwell agreed that the period in this case exceeded the three months recommended in the guidelines, but submitted that the three months was only a recommendation.
I had before me in the T-documents at T11/53, the transcript of a hearing in the Waverley Local Court dated 30 October 2009 which referred to an earlier hearing. I understood from the evidence given at the hearing that the earlier hearing before the Waverley Local Court may have been in April 2009. The hearing was concerned with an AVO granted on application by Ms Cimen who complained that Mr Reyhanli had been violent towards her, and that she had left him as a result. Ms Cimen told the Court that Mr Reyhanli had sworn at her, and when asked what sort of things he said, replied: Things like ‘slut’, ‘what type of woman are you’, ‘you’re a hoar’ (sic) – get lost from here. Ms Cimen also told the Court that Mr Reyhanli had hit her on the ear, causing pain, and had kicked her on the legs. Following evidence and submissions, an AVO for 12 months was granted at Ms Cimen’s application on 30 October 2009 by the Court.
Mr Reyhanli’s evidence was that the allegation of violence towards Ms Cimen was untrue, and that she applied for an AVO because she wanted to remain in Australia, and did not want to return to Turkey.
As to notification to Mr Reyhanli that Ms Cimen had been paid a social security benefit; Ms Anniwell submitted that Centrelink tried to contact Mr Reyhanli by writing to him at his last known address from 10 September 2009, and that he had not responded. Ms Anniwell submitted that further letters, copies of which appear in the T-documents, were sent on 23 September 2009, 13 October 2009, 17 December 2009, 17 March 2010, 17 June 2010, 17 September 2010 and 17 December 2010 to the Applicant’s last known address advising him of the accruing AoS debt.
The final letter from Centrelink dated 17 December 2010 was forwarded to Mr Reyhanli’s new address on 23 December 2010. He did not deny that he had neglected his obligation to keep Centrelink informed of his whereabouts as he undertook when he signed the AoS document. Mr Reyhanli pointed out to me however, that his email address had been available the whole time, and was as noted on the original application form at ST1/141 dated 28 October 2008. I noted that Centrelink had not used the email address to contact him.
Mr Reyhanli also submitted that Ms Cimen had worked in paid employment in a shop without declaring the income to Centrelink, and that she had travelled overseas between June and September 2010. I was satisfied that Ms Anniwell’s submissions and references to T-documents indicated Ms Cimen had declared certain income to Centrelink in the relevant period, and that her overseas travel had been documented. I was satisfied with Ms Anniwell’s submissions that the debt Mr Reyhanli incurred had taken those dates into account. It is also not my task to investigate or calculate whether the income as declared by Ms Cimen was accurate.
I move now to consider whether the AoS debt Mr Reyhanli incurred can be written off or waived in whole or in part, noting that certain amounts have been garnisheed from Mr Reyhanli’s tax returns with a debt of $9,835.01 remaining.
As to write-off; a debt can be written off pursuant to section 1236 of the SSA if it is irrecoverable at law, or the Applicant has no capacity to repay, or his whereabouts are unknown, and it is not cost effective to continue to recover. In such cases the debt remains, and recovery efforts can be renewed if a person’s circumstances change. I am satisfied from the evidence that none of the above indicia apply to Mr Reyhanli’s circumstances, and that the debt cannot therefore be written off.
A debt can be waived pursuant to section 1237A of the SSA where it is attributable solely to error of the Commonwealth. From the evidence before me, I am satisfied that Ms Cimen was within her rights to claim a social security payment in February 2009, and that the decision by Centrelink not to notify Mr Reyhanli before she was paid a benefit, and not until September 2009, was due to allegations of violence in the relationship as reported by Ms Cimen and recorded by the Waverley Local Court on 30 October 2009. No error of the Commonwealth in relation to this matter is established to my satisfaction from the evidence before me.
The only other grounds for waiving all of or part of Mr Reyhanli’s debt arise in the application of sections 1237AAD and 1237AAE (in relation to AoS) of the SSA. Those sections take into account the application of the term special circumstances which has been applied in many decided cases in the past. The term itself is not defined in the SSA. However, for example, in the well known and oft quoted case of Beadle and Director-General of Social Security (1984) 6 ALD 1 the AAT stated:
...An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special…
In Dranichnikov v Centrelink [2003] FCAFC 133, the Full Federal Court said at [66]:
…what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary…
Mr Reyhanli considers that special circumstances apply to him, and that his debt should accordingly be waived. Mr Reyhanli said that he finds himself in difficult circumstances because he remarried in Turkey and has a new born child.
He also relied on the fact that Ms Cimen was in paid employment during the AoS period, and the fact he says she did not declare her earnings in full. Ms Anniwell submitted that Ms Cimen’s earnings were taken into account and reduced the rate of Special Benefit or Newstart allowance payable to her during relevant periods of employment, and that this then reduced Mr Reyhanli’s liability. I am not in a position to investigate whether there were further earnings, and I accept the submissions of the Respondent in that regard. No specific evidence to the contrary has been presented. The fact that Ms Cimen was employed during the AoS period is not a special circumstance as contemplated by the legislation, and which therefore might warrant waiving the debt in part or in whole.
Mr Reyhanli also argued that Ms Cimen travelled overseas during the AoS period. Centrelink records in the T-documents show that Ms Cimen travelled overseas during the AoS period from June to September 2010, and was not paid a social security payment during her absence. Accordingly, the AoS debt did not accrue during her absence, and Mr Reyhanli has not been asked to repay any amounts in relation to the overseas absence.
Mr Reyhanli also argued that he should not have to repay the AoS debt because Ms Cimen left the relationship a short time after her arrival in Australia. Unfortunately breakdowns in relationships do occur, and are not considered unusual or uncommon events in the special circumstances context. Mr Reyhanli entered into the AoS and by signing up for it, assumed the responsibilities imposed. I am satisfied from his evidence that he understood the implications when he signed the document at ST1/140. The unfortunate circumstance of an early breakdown in a relationship does not fall within the meaning of special circumstance within the legislation.
CONCLUSIONS
I am satisfied from the evidence that the AoS was entered into correctly, and that Mr Reyhanli acknowledged in writing, and understood his obligations to provide financial assistance to Ms Cimen for the period 13 January 2009 to 12 January 2011. That was the basis for her obtaining the Visa Subclass 309.
I am satisfied from the evidence that the reason Mr Reyhanli was not notified before Ms Cimen was paid a social security benefit was because of allegations of violence in the marriage. I am satisfied also that when attempts were made to notify him, he had moved without notifying Centrelink of his then current address and details as he was obligated to do.
I am satisfied from the evidence as discussed above that neither write-off, sole error of the Commonwealth or special circumstances exist in this case which would reduce or waive Mr Reyhanli’s debt. His application is unsuccessful, and the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
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Associate
Dated 22 August 2013
Date(s) of hearing 12 August 2013 Applicant In person Solicitors for the Respondent Ms Anniwell, Department of Human Services
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