Nguyen and Child Support Registrar (Child support)

[2019] AATA 2773

Nguyen and Child Support Registrar (Child support) [2019] AATA 2773 (21 June 2019)

Division:GENERAL DIVISION

File Number(s):      2019/3212

Re:Van Thuong Nguyen

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:21 June 2019

Date of written reasons:        7 August 2019

Place:Sydney

The Tribunal dismisses the application pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CHILD SUPPORT - application for review of refusal to issue departure authorisation certificate - where decision refusing to issue departure authorisation certificate made on a date on which, by operation of s 72N of the Child Support (Registration and Collection) Act 1988 (Cth), the Respondent was precluded from issuing a departure authorisation certificate - no reasonable prospects of success - application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

WRITTEN REASONS FOR ORAL DECISION DELIVERED 21 JUNE 2019

Emeritus Professor P A Fairall, Senior Member

7 August 2019

1. On 21 December 2010 a delegate of the Respondent issued a Departure Prohibition Order (DPO) in respect of the Applicant under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Collection Act”).

2. The DPO was issued in circumstances where the Applicant had a child support debt of $19,504.03: T7 at p. 41; see also T 17 at p. 98. 

3. On 21 January 2019 the Applicant made a written request to the Respondent for a Departure Authorisation Certificate (DAC) in respect of the period 19 June 2019 to 31 July 2019 (“the relevant period”).

4. On 22 May 2019, some four months after the Applicant made his request, and less than a month before the start of the relevant period, a delegate of the Respondent made a decision under s 72L of the Collection Act to refuse to issue a DAC to the Applicant: T14 at p. 67.

5. The Applicant’s request for a DAC was refused by reference to the statutory grounds referred to in s 72L.

6. Section 72L states:

   72L When Registrar must issue departure authorisation certificate

   (1) This section applies if a person makes an application under section 72K for a departure authorisation certificate.

   (2) The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:

   (a) that, if the certificate is issued:

   (i) it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and

   (ii) it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and

   (b) that it is not necessary for the person to give security under section 72M for the person’s return to Australia.

   (3) If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:

   (a) the person has given security under section 72M for the person’s return to Australia; or

   (b) if the person is unable to give such security, the Registrar is satisfied:

   (i) that the certificate should be issued on humanitarian grounds; or

   (ii) that refusing to issue the certificate will be detrimental to Australia’s interests.

7. It is noteworthy that s 72L is structured in such a way that a DAC must be issued to a person with a child support debt unless the Registrar is satisfied of certain things, including that the debtor is likely to return if allowed to travel overseas. A security to return may be required, a condition that can be waived on humanitarian or public interest grounds.

8. The delegate found that the Applicant had not tendered any evidence of a return flight to Australia and had not given security as provided for by s 72L(3): T 13 at pp. 63-64.

9. Section 72T of the Collection Act provides for applications to be made to the Tribunal for review of decisions made under ss 72I, 72L or 72M.

10. By letter dated 16 April 2019 the Department wrote to the Applicant stating that he had an outstanding child support liability of $5,968.42.

11. On 5 June 2019 the Applicant applied to the Tribunal for review of the 22 May decision.

12. On 21 June 2019 Mr Christopher Bishop, counsel for the Respondent, wrote to the Tribunal attaching a copy of a letter to the Applicant dated 20 June 2019. In the email Mr Bishop indicated that the outstanding child support amount was $20,981.76, and with penalties of $19,252.66 the total amount of the debt is $40,234.42: T 17 at p. 98.

13. In the letter of 20 June 2019 sent to the Applicant by express post, Ms Nicola Johnson, solicitor for the Respondent, foreshadowed an application to the Tribunal under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) should the matter proceed to hearing. This was based on the implications of s 72N of the Collection Act.

14. The matter proceeded to a directions hearing on 21 June 2019 given the travel dates nominated by the Applicant (19 June - 31 July).

15. The Applicant appeared before the Tribunal in person, assisted by an interpreter. 

16. At the directions hearing counsel for the Respondent submitted that the application should be dismissed under s 42B(1)(b) of the AAT Act on the basis that the proposed date of travel did not conform to the requirements of s 72N, and therefore the application had no reasonable prospects of success.

17. Section 72N provides:

    72N What departure authorisation certificate must authorise

    (1) A departure authorisation certificate in respect of a person must authorise the departure of the person on or before the seventh day after a day specified in the certificate.

    (2) The day specified in the certificate must be a day that is after the day on which the certificate is issued, but not more than 7 days after that day.

18. The decision under review was made on 22 May 2019. It was made on the merits of the application. It resulted in no certificate being issued. Therefore, there is no actual “day on which the certificate is issued”. This raises a perplexing question as to the operation of s 72N in light of counsel’s submission that the application should be dismissed pursuant to s42B(1)(b). If, hypothetically, the Tribunal were to set aside the decision made on 22 May, a question would arise as to the operation of s 72N. Section 72N(2) refers to the “day on which the certificate is issued”. 

19. Counsel’s argument proceeded on the assumption that for the purposes of s 72N(2), 22 May would be taken to be the day on which the certificate was issued – were the Tribunal minded to set aside the decision made on that date not to issue a DAC to the Applicant. Taking 22 May as the date of issue would mean that the date specified in the certificate would have to be no later than 29 May, and the date of departure would have to be on or before seven days thereafter, i.e. no later than 5 June, more than a fortnight prior to the date of hearing. Counsel in essence argued that even if the Applicant were to succeed on the merits, the application would run afoul of s 72N(2).

20. One might be forgiven for thinking that this is a somewhat surprising argument given the four month processing period taken by the Registrar before rejecting the Applicant’s request. Counsel for the Respondent acknowledged that it was unsatisfactory that the original application for a DAC made on 21 January 2019 was not decided upon by the Respondent until 22 May, at which point, on the Respondent’s own argument, the Applicant’s rights of appeal in respect of the proposed travel itinerary were seriously compromised if not entirely abrogated.

21. An alternative interpretation is to treat the expression “day on which the certificate is issued” as attaching to the Tribunal decision date, in this case, 21 June 2019. Under s 43(6) of the AAT Act the day on which the Tribunal’s decision comes into effect is deemed to be the date on which the decision under review was made (that is, 22 May), unless the Tribunal orders otherwise. Assuming the Tribunal decided to set aside the decision under review and substitute it with a decision issuing a DAC to the Applicant, the date of hearing might be taken as the date of issue of the certificate. On this footing the “day specified in the certificate” would need to be after 21 June but no more than seven days thereafter; that is, no later than 28 June. Section 72N(1) then provides:

    (1) A departure authorisation certificate in respect of a person must authorise the departure of the person on or before the seventh day after a day specified in the certificate.

    The day specified in the certificate being no later than 28 June would require the Applicant’s departure on or before the seventh day thereafter, that is, a departure on or before 5 July. This falls within the range of dates proposed by the Applicant (19 June - 31 July).

22. Finally, there was some uncertainty as to the quantum of the child support debt owed by the Applicant. The letter dated 16 April 2019 refers to an amount of $5,968.42, whereas the information provided by counsel to the Tribunal indicated that as at 20 June 2019 the total amount owed was $40,234.42.

23. This discrepancy was acknowledged but not explained by counsel. Indeed, this discrepancy complicates the issue arising as to the durational issues implied by s 72N, given that the proposed travel dates would have long passed.

24. In this case the Tribunal accepted the interpretation of s 72N(2) advanced on behalf of the Respondent. For substantially those reasons given in support of that interpretation, the Tribunal concluded that the application had no prospects of success and dismissed it pursuant to s 42B(1)(b) of the AAT Act.

25. The Tribunal notes that counsel for the Respondent undertook to ensure that the Applicant was provided with updated details of his child support obligations as well as having someone from the Department contact him to explain and assist with the process of reapplying for a DAC.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 7 August 2019

Date of hearing:	21 June 2019
Applicant:	In person
Solicitors for the Respondent:	Mr Christopher Bishop, Mills Oakley Lawyers